IN THE HIGH COURT OF JUDICATURE AT PATNA

SA No.87 of 2006

Dashrath Gope @ Dashrath Yadav son of Late Lala Gope,

resident of Mohalla-Dariyapur, Birla Mandir Road,

Patna, P.S. Pirbahore, District-Patna.

…………….Defendant-Appellant-Appellant.

Versus

Sheopujan Gope @ Sheopujan Yadav, son of Late Lala Gope,

resident of Mohalla-Dariyapur, Birlamandir Road, Patna,

P.S.-Pirbahore, District-Patna.

………. .Plaintiff-Respondent-Respondent.

For the appellant : Mr. Nawal Kishore Singh, Advocate.

For the respondent : Mr. Anjani Kumar, Birendra Kumar and Sudhir

Kumar Upadhyay, Advocates.

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20.11.2008

Heard learned counsel for the appellant and learned counsel

for the respondent.

This second appeal has been filed on behalf of the sole

defendant-appellant-appellant challenging the judgments and decree of

the learned courts below.

The matter arises out of Title Partition Suit No. 71 of 1998,

which was filed by the sole plaintiff-respondent-respondent for

partition of the suit property claiming that both the parties were full

brothers being the sons of Late Lala Gope and hence each of them had

moiety share therein. The said claim was contested by the defendant on

the ground of previous partition supported by Punchnama, notices of

Municipal Corporation, Assessment Register, Mutation Order, etc.

The said suit was decreed on contest without cost by learned

Subordinate Judge-6, Patna vide judgment and decree dated

19.10.2001, which was challenged by the defendant in Title Appeal

No. 100 of 2001. The said title appeal was dismissed by the learned 5^th

Additional District Judge, Patna vide judgment and decree dated

21.01.2006 whereafter the instant second appeal has been filed by the

2

appellant.

From the averments of the parties and the materials on

record, including the impugned judgments and decree of the learned

courts below, it is quite apparent that the matter has been considered in

detail and it has specifically been found that the plaintiff claimed that

the Punchanama did not bear his signature and the defendant, who was

relying upon the said Punchanama did not get the signature of the

plaintiff examined. The learned courts below specifically found that

the said Punchanama was an unregistered document and it was not

considered fit to be relied upon even for collateral purposes. So far the

other claims of the defendant with regard to mutation receipts, electric

connections, etc. are concerned, the learned courts below specifically

found that they cannot be held to be proof of partition by metes and

bounds as required in law. In the said circumstances the learned courts

below rightly came to the conclusion that there was no previous

partition in the disputed house by metes and bounds and hence, the

plaintiff was fully entitled to get the said premises partitioned.

In the said circumstances, this court does not find any

illegality in the impugned judgments and decree of the learned courts

below nor does it find any substantial question of law involved in the

second appeal, which is accordingly dismissed at this stage of hearing

under Order XLI Rule 11 of the Code of Civil Procedure.

harish/

( S.N.Hussain, J.)