Chakradhari Sharan Singh, J. (Oral) - This Second Appeal has been placed for hearing under Order 41, Rule 11 of the Code of Civil Procedure. The plaintiff/appellant has put the judgment and decree dated 12.06.2009, passed by the learned Additional District & Session Judge-III, West Champaran at Bettiah, in Title Appeal No. 61 of 1990, whereby he has affirmed the judgment and decree dated 18.08.1990 passed by the learned 3rd Additional Munsif, Bettiah in Title Suit No. 236 of 1987. The suit was filed for cancellation of sale deeds dated 06.08.1952 and 06.02.1953, executed by Chhatiya Devi in favour of the defendant in respect of the suit property, and for declaration of plaintiffs title and possession over the suit property.

2. It was the case of the plaintiff/appellant that one Halkhori Mahto @ Pasi had two sons, namely, Gopal Pasi and Badar Pasi. Gopal Pasi had three sons, namely, Deoki Pasi, Narayan Pasi and Shiv Pasi whereas Badar Pasi had only one son Heera Pasi. All the three sons of Gopal Pasi were living jointly, with Deoki Mahto @ Deoki Pasi a Karta of the family. While in jointness, they had acquired 1 bigha 15 dhur of land. In 1945, Narayan pasi @ Narayan Mahto died in jointness leaving behind his daughter Chhatiya devi. Deoki Pasi also died in jointness in 1950, leaving behind his widow Maniya and daughter Marachhiya, who had one son, Jaglal. Accordingly, Shiv Mahto @ Shiv Pasi, father of the plaintiff acquired exclusive right and title over the entire property since 1950. The plaintiffs father, namely, Shiv Mahto died in 1975 and after death of Shiv Mahto, the plaintiff acquired right, title and interest over the suit property, being the only surviving legal heir. It was only in 1987 that defendants started claiming their right and title over the suit property on the basis of the sale deeds executed on 06.08.1952 and 06.02.1953 by Chhatia Devi, the daughter of late Narayan Pasi and started causing disturbance in peaceful enjoyment of the suit property by the appellant which gave rise to cause of action for the plaintiff to file the suit.

3. The defendants contested the suit by filing written statement. While admitting the genealogy as asserted by the plaintiff, they denied the factum of the jointness in the family. They asserted that Narayan Pasi and Deoki Mahto and Shiv Mahto were not living in jointness as asserted in the plaint, rather they were separate.

4. Based on rival pleadings, the trial court framed altogether six issues. Issue Nos. 4 and 5 are relevant for the present adjudication, which are as under :-

IV. Whether Narayan Pasi died in jointness with his brothers Shiv Pasi and Deoki Pasi.

V. Whether the sale deeds dated 06.08.1952 and 06.02.1953 are legal and valid.

5. The parties adduced their evidence, by both oral and documentary. On appreciation of the evidence in respect of the Issue No. 4, the trial court recorded specific finding that Narayan Pasi was not living in jointness with his brothers as on the date of his death. The trial court, accordingly, decided the issue against the plaintiff. Dealing with Issue No. 5, the Trial Court opined that the sale deeds dated 06.08.1952 and 06.02.1953 are valid. The findings have been affirmed by the Appellate Court, upon consideration of the relevant issues involved after taking into account and discussing the pleadings of the parties and evidence adduced on their behalf.

6. Following are the substantial questions of law which, according to the appellant, the present second appeal involves:

(A) Whether prior to enformant (sic, enforcement) of Hindu Succession Act 1956, Chhatiya Devi, being the daughter had any right in the property on the basis of inheritance and was entitled to transfer the land prior to 1956 on the basis of inheritance

(B) Whether the courts below have committed an error of law in disbelieving the statements of plaintiff witnesses who had born much prior to the death of Narayan and Deoki and believing the statements of witness at defendants who had borns after the death of Deoki and Narayan and had not seen the jointness and separation of Deoki and Narayan

(C) Whether the appellate court had committed an error in holding the suit at the time barred and barred by Consolidation when the trial court had arrived at conclusion that the suit was neither time barred nor barred by Consolidation Act.

7. As has been discussed above, the two Courts below have concurrently recorded the finding that Narayan Pasi was not living in jointness with his brothers as on the date of his death. The said finding cannot be described to be perverse. In view of the said finding, the appellant could not have established his claim of title in respect of the demised property. It is noticeable that learned appellate Court below has held the issue to be hopelessly time-barred, instituted 34 years after registration of the sale deeds. I do not find the present case to be fit for admission.

8. The Second Appeal is, accordingly, dismissed.