Judgment:
1 Appeal from original Decree No. 117 of 1999(R) --- Against the judgment and decree dated 31.8.1999/08.09.1999 passed by Sub-Judge-II, Saraikella in Title Suit No. 2 of 1997(S/R-27/99) 1. (a)Most. Khoku Mandal (b)Fotik Chandra Mandal (c)Subhash Chandra Mandal (d)Romni Mandal 2. (a) Kaushalya Mandal (b) Vijay Mandal (c ) Bhabesh Chandra Mandal (d) Nepal Chandra Mandal (e) Phoolmani Mandal 3. Manohar Mandal 4. (a) Yasoda Mandal (b) Brindaban Mandal (c ) Bipin Mandal (d) Sapan Mandal .... Plaintiffs/Appellants 5. Raghunath Mandal 6. (a) Most. Icha Mandal (b) Sita Ram Mandal (c ) Gopal Mandal vs. 1. (a) Smt. Lulu Mandalani (b) Sapan Mandal (c ) Bhagya Mandalani (d) Bijpa Mandalani (e) Asha Mandalani (f) Posta Mandalani (g) Aluwa Mandalani 2. Gasi Ram Mandal 3. (a) Tustu Mandalain (b) Sunil Mandal (c )Mihir Mandal 4. Judhisthir Mandal ....Principal Defendants/ Respondents 5. Sarita Mandalani 6. Nimai Mandal 7. Shobha Mandalani 8. Joba Mandalani ....Proforma Respondents. For the Appellants : Mr. V. K. Prasad, Mr. Amit Kumar Verma, Advocates For the Respondents : Mr. S. K. Ughal, Advocate Mr. T. Kabiraj, Advocates. PRESENT HON'BLE MR. JUSTICE APARESH KUMAR SINGH Reserved on : 12.10.2017 Pronounced on: 23 /11 /2017 Aparesh Kumar Singh,J 1. Plaintiffs and proforma defendant nos. 5 and 6 in Title Suit No. 2 of 1997 are the appellants aggrieved by the judgment and 2 decree dated 31st August, 1999 passed by learned Sub JudgeII, Seraikella, whereby the suit was dismissed on contest with cost. 2. The facts, as pleaded by the parties before learned trial court, are briefly stated as under: Plaintiffs along with proforma defendants claimed inheritance from the common ancestor, Mukund Mandal as per Genealogical table furnished in the plaint. Mukund Mandal took Raiyati settlement of suit lands from the landlord in the year 1888 through a registered Patta, as described in the plaint and schedule annexed thereto. Since there was no survey settlement in operation, Mukund Mandal came in possession of the land and reclaimed it gradually for cultivation. He constructed residential house and continued his possession. His two sons, namely, Akshya Mandal and Bolai Mandal inherited the suit lands jointly. Akshya Mandal died leaving behind his widow Kamini, two sons Khetromohan and Patal, who are proforma defendants. They succeeded to half interest of Akshya Mandal over the suit land. Bolai Mandal, the other son of Mukund Mandal died leaving behind the plaintiffs as the only son and heirs, who succeeded to the interest in their favour over the suit land. Madhu Mandal, grandfather of defendant nos. 1 to 4 was son of uncle of Mukund Mandal. Father of Mukund Mandal, Bhairab Mandal, was brother of Ridai and Madhu was the son of Ridai. Mukund Mandal while in his death bed, desired that his sons should allow Madhu who was homeless, to construct a small house on a small piece of land and to permit him to live therein until he found a place for construction of his home elsewhere. Thus, Madhu came to construct a house within the suit land area. After death of Madhu Mandal, his son Charan Mandal and father of defendant nos. 1 to 4 came in permissive possession of the house. After death of Charan Mandal, defendant nos. 1 to 4 are residing on permissive basis in their house. 3. Plaintiffs asserted lack of any right in favour of defendant nos. 1 to 4 over the suit land. The plaintiffs have asserted ½ share and proforma defendants have asserted ½ share over the suit land. The 3 suit lands were recorded in the revisional survey and settlement in Khata no. 56 of Hundrupathardih. It is alleged that defendant nos. 1 to 4 started proclaiming in the month of Baishak last year that they have 1/3rd share of the suit land under Khata no. 56 noted in the Khatiyan in the name of their father. Plaintiffs obtained certified copy of Khatiyan of Khata no. 56 and found in column no. 2, name of father of defendant nos. 1 to 4 with 20 Annas entered against his name along with the names of plaintiffs and proforma defendants. They asserted that entry of 20 Annas or 1/3rd share in the name of Charan Mandal, is palpably wrong and erroneous. 4. According to the plaintiffs, cause of action for the suit arose in Baisakh last year on the assertion made by defendant nos. 1 to 4 of having 1/3rd interest over the suit land. Plaintiffs therefore instituted the instant suit for a declaration in the following terms: (a) that defendant nos. 1 to 4 have no right, title or interest over the suit lands; further declaration that entry in the name of Charan Mandal showing share of 20 Annas, is erroneous and not binding on the plaintiffs (b) that plaintiffs and proforma defendants have full title over the suit land and they have ½ share each over it. The schedule of the suit land describes it as falling in Mouza Hundarpathardih, P. S. Nimdih, Rev. ThanaChandil, Thana No. 291, Khata No. 56. Sub plots numbering 68 in total, comprising an area of 22.15 acres. 5. Defendant nos. 1 to 4 contested the suit in question on its maintainability. They asserted that it was barred under Section 34 of the Specific Reliefs Act, as plaintiffs have not sought relief of recovery of possession on payment of requisite courtfees on proper valuation of the suit property. The market value of the suit property is not less than 50 lakhs. Suit is barred by limitation, multifariousness and also on the principle of estoppel, waiver and acquiescence. Description of the suit property is vague and indefinite, plaintiffs have concealed material facts and not come clean before the Court. The Genealogy furnished by them is incorrect and incomplete. The defendants furnished their own 4 Genealogy at the foot of the written statement. 6. According to them, one Nafar Mandal, common ancestor died long ago leaving two sons, namely, Bhairab and Hriday. Bhairab died leaving two sons, namely, Mukund and Suchand. Mukund died thereafter leaving two sons, namely, Akshay and Bolai. Akshay died leaving proforma defendant nos. 5 & 6; the sons of Bolai Mandal are the plaintiffs. Suchand died leaving two daughters namely, Menoka and Sanaka, who are now dead leaving their respective heirs as mentioned in Genealogical table, schedule A to the written statement, who are also answering party in the suit. Hriday Mandal died leaving three sons, namely, Madhu Mandal, Jadu and Nanda. Madhu died leaving behind his son namely, Charan. Defendant nos. 1 to 4 are sons of Charan. Nanda died leaving three sons, namely, Fagu, Dukhu and Bhushan. Bhushan is alive. Fagu died leaving his son namely Motilal who is now dead; Dukhu died leaving a daughter, namely, Sundra; Jadu left a son, namely, Lalit. 7. According to defendants, all the above persons have got interest in the suit property and have not been impleaded as defendants and proforma defendants. The suit, therefore, cannot proceed in the present form. 8. The defendants contested the claim of the plaintiffs that Mukund Mandal alone had taken Raiyati settlement of the suit property from the landlord in the year 1988. However, they accepted that there was no survey settlement operation. According to the defendants, Bhairab and Hriday continued in jointness and therefore, their sons also continued to remain in joint as coparceners. Therefore, Mukund, Suchand and sons of Hriday Mandal i.e., cousin brother, acquired properties with joint family funds. As Mukund was the senior most male member in the family, the document was procured in his name. The property however was acquired for the benefits of all coparceners. They contested that Mukund Mandal alone used to possess the suit property and that his heirs are only the rightful successor over the suit property. They 5 also refuted the plaintiffs’ claim of ½ share along with the proforma respondents each over the suit property. They refuted the assertion that Mukund Mandal, out of compassion on his death bed, had allowed Madhu Mandal to construct a small house on the small piece of land of the suit property. They also refuted the assertion of permissive possession of Madhu and his son Charan and thereafter the answering defendants over a portion of the suit property. According to them, they are in possession of the suit property in their own right, as there was no partition of the suit property by metes and bounds amongst descendants, Mukunda, Suchand, Madhu, Nanda and Jadu. 9. Proper relief for the plaintiffs is to seek partition through a regular suit. They however contended that entries in the Revisional Survey Record of Rights relating to share of the properties, is not correctly depicted. The suit is therefore based on false and frivolous ground. They also refuted the alleged cause of action. According to them, plaintiffs have since the time of their father being in full knowledge of the entries in the R. S Records of Rights, never objected to it. Plaintiffs therefore are not entitled to seek any declaration as sought for. Such a declaration long after final publication of the Record of Rights is untenable and barred by limitation and also under the provisions of Tenancy Law. They also contended that as per the assertion of the plaintiff of their possession to their full knowledge of the plaintiffs and their predecessors in a hostile manner for more than 12 years, dependents have acquired an indefeasible and perfect title by adverse possession and prescription. Plaintiffs are stopped from questioning the same. They further indicated that Bolai Mandal and Hriday Mandal had left sufficient landed property as joint nucleus for acquisition by the joint family. Therefore, by the registered Patta dated 10th February, 1888, property was acquired in the name of Mukund Mandal and Mukund and Suchand had ½ share and sons of Hriday i.e., Madhu, Nanda and Jadu had the rest ½ share, which they possessed it jointly amongst them. Mukund represented the senior branch while Madhu 6 and his brothers represented the junior branch in the family, but their share was correctly mentioned in the Cadestral Record of Rights. They further stated that out of the aforesaid properties prior to the preparation of C. S Record of Rights, some portion was mortgaged by Mukund and Madhu jointly in favour of Dukhu Mandal by a registered mortgage deed dated 23rd March, 1908 to meet joint family expenses. Such mortgage was duly redeemed by them from joint family funds. During the time of Revisional Settlement Operation, name of sons of Akshay, Bolai and Madhu were recorded as names of Mukund and Madhu had appeared in the Cadestral Survey Record of Rights and R.S Khatiyan was prepared in their names only and their possession was duly noted under R.S Khatiyan No. 56. Such Record of Rights was prepared in the full knowledge of the plaintiffs and they are bound by it. The suit properties have not been partitioned by metes and bounds under co sharers and they are paying rent still jointly. They further contended that one registered Bantanama deed was executed on 29th March, 1941 between Akshya Mandal and Bolai Mandal being the first party and Charan Mandal, Dukhu, Tudu Bhushan and Jadu being second party. It has been admitted therein that the suit property was purchased from the fund of joint family properties in the name of Mukund Mandal. Another registered deed of agreement was executed by Akshya Mandal, Bolai, Madhu and Jadu in favour of Kinu Mandal on 12th April, 1919, by which, they jointly gave up some properties of the suit land in favour of Kinu. They had jointly admitted the suit properties as of the parties. As such, plaintiffs had accepted the suit properties being the joint properties of Mukund Mandal, Madhu Mandal and others and are stopped from challenging it. They further contended that another Title (Partition) Suit no. 28/94 has been instituted in respect of the landed properties involved in the present suit along with other landed properties which is sub judice. Based on these assertions, they pleaded that the suit is liable to be dismissed with cost. 10. Learned trial court framed the following issues on the basis 7 of pleadings of the parties: 1. Is the suit as framed maintainable? 2. Have the plaintiffs got any valid cause of action for the suit? 3. Is the suit barred by estoppel, waiver, and acquiescence? 4. Is the suit bad for multifariousness? 5. Is the suit bad for nonjoinder of necessary parties? 6. Is the suit barred by proviso to S. 34 of the Specific Relief Act? 7. Have the plaintiffs got subsisting title to the suit land? 8. Whether the Record of Rights with respect to the suit land in correct? 9. Whether Mukund Mandal exclusively acquired the suit land by registered patta on 10.2. 88 or as a Karta of the family consisting of his self and Madu Mandal and his brother? 10. Whether defendants 1 to 4 the descendants of Madhu Mandal are in permissive possession on the suit land? 11. Are the plaintiffs entitled to a decree as claimed for? 12. To what other relief or reliefs any the plaintiffs are entitled to get? 11. According to counsel for the appellants, Issue nos. 9 and 10 are the core issues which have been decided together by learned trial court, however on erroneous appreciation of material pleadings and evidence adduced by the parties. 12. Plaintiffs adduced five witnesses. P.W. 1, Gurupado Singh, who is descendant of Bharmar Singh, Ex landlord. P.W. 2, Shyampado Kumar, a formal witness, who has proved rent receipt as Ext.1 to 1/K. P.W. 3, grandson of Bharmar Singh, Exlandlord. P.W.4, Khetro Mohan Mandal. P.W. 5, Mochi Ram Mandalplaintiff no. 1. Defendants examined five witnesses. D.W.1 Gangadhar Singh. D.W2, Milan Singh. D.W 3, Yudisthir Mandal. D.W.4, Soni Shankar Ray. D.W5, Alok Chakarvarty. 13. Plaintiffs exhibited rent receipts as Ext. 1 to 1/K and certified copy of Patta as Ext.2. Defendant exhibited the following documents. Ext. A to A/4 rent receipts; Ext.B sale deed dated 17th April, 1919; Ext.C, partition deed dated 29th March, 1941; Ext. D/ 1 certified copy of Khatiyan; Ext.E certified copy of mortgage deed no. 1588. 14. Upon consideration of the evidence of the parties, learned trial court decided Issue nos. 9 and 10 against the plaintiffs, holding that suit lands are the joint family properties of the parties and were 8 not exclusively acquired by Mukund Mandal. The plaintiffs have failed to prove that Mukund Mandal had exclusively taken settlement of the suit land. It was further held that possession of defendant nos. 1 to 4 over the suit land, is not permissive. These two issues were decided in favour of defendant nos. 1 to 4 and against the plaintiffs and defendant nos. 5 to 6. 15. Learned counsel for the appellants has seriously disputed the findings rendered by the learned trial court on common Issue nos. 9 and 10 inter alia on the following grounds: (i) that the registered Patta of 1888 executed in the name of Madhu Mandal is a document more than 30 years old. Since it has been produced from the proper custody of the plaintiffs, there is a presumption that the signature and every other para of the documents which purports to be in the handwriting of any particular person, was duly executed and attested by the persons by whom it purports to be executed and attested. Execution of the registered Patta of 1888 is admitted by the respondent also; (ii) Learned counsel has referred to the case of Hero Vinoth (Minor) vs. Seshammal reported in (2006) 5 SCC 545, paragraph 24 thereof, which lays down the principles relating to construction of a document. It is submitted that findings rendered by learned trial court on an erroneous construction of the document adduced by the defendants is unsustainable on facts and in law. (iii) the learned trial court has completely misdirected it on the basis of the documents adduced by defendant nos. 1 to 4 being the registered agreement dated 17th April, 1919 as Ext.B, Bantanama of the year 1941 as Ext.C and mortgage deed of the year 1908 as Ext.E, to infer the finding of jointness between the plaintiffs, heirs of Mukund Mandal and the contesting defendants, heirs of Madhu Mandal. The suit properties comprising 22.5 acres of the land, do not fall amongst the joint properties owned and possessed by and between the plaintiffs and defendants. Even the defendant nos. 1 to 4 have doubted the entries made in the revisional survey khatiyan as Ext.D/1. Lands covered as Ext.C 9 dated 29th March, 1941 and Bantanama deed are the subject matter of Title Suit no. 28 of 1994 between the same parties. Ext. E being the mortgage deed of the year 1908 related to C.S Khata No. 52 and not Khata no. 56 under which the present suit land falls, finding of jointness based thereupon is therefore erroneous. The entire findings of the learned trial court based upon the Exhibits B, C and E and also entries made in the R.S Khatiyan, which plaintiffs have themselves challenged in the suit, cannot sustain. 16. The findings in relation to Issue nos. 9 and 10 are therefore wrongly recorded against the plaintiffs and in favour of contesting defendants. He further submits that the suit is a declaratory suit. Incorrect entries made in the Record of Rights are susceptible to challenge in a suit by the aggrieved persons whenever cause of action arises. Learned counsel for the appellants has placed reliance on the judgment of Patna High Court in the case of Karunamoy Dutta and others Vs. State of Bihar and others reported in 1983 BLT (Rep) 90, paragraphs 8,9,10 and 11 thereof in support of the submission that Section 258 of Chhotanagpur Tenancy Act is no bar to a suit for declaration of title and that the prayer for correction of Record of Rights would be merely ancillary or incidentally. Cause of action arose when the defendant nos. 1 to 4 proclaimed before the villagers in the previous year in the month of Baisakh that they owned and possessed 1/3rd share in the suit land. 17. Reliance has also been placed on the judgment rendered by learned Full Bench of Patna High Court in the case of Paritosh Maity and Etc. Vs. Ghasiram Maity reported in 1987 PLJR 354; 1988 BLJR 34; 1987 BBCJ 201. It is submitted that the limitation provided under Section 258 of the Chhotanagpur Tenancy Act, 1908, does not oust the jurisdiction of civil court as the cause of action may arise after final publication of Record of Rights, though connected with the entry in the Record of Rights. 18. Reliance has been placed on the judgment rendered by 10 Hon’ble Supreme Court in the case of Ranganayakamma and another vs. K. S. Prakash (Dead) BYLRS and others reported in (2008) 15 SCC 673, para 38 thereof in respect of a registered document more than 30 years old and the provisions of Section 90 of the Evidence Act. Reliance has also been placed on a judgment rendered by Patna High Court in the case of Citizens Council Jamshedpur Vs. State reported in AIR 1999 Patna 1 to submit that the learned trial court should not be fully persuaded by the errors in the pleading generally drafted in muffasil towns while adjudicating valuable right, title and interest over the suit property. Learned counsel for the appellants has however ventured to question the finding of learned trial court on other incidental issues, as according to them, if the findings on Issue nos. 9 and 10 are reversed, plaintiffs would be entitled to declaration of their right, title and interest over the suit land and further, that the entry in the name of Charan Mandal showing 20 Annas share in the R.S Record of Rights is erroneous. 19. According to learned counsel for the appellants, plaintiffs have sought only a declaration and do not allege lack of possession over the suit land, consequential relief of recovery of possession was not required to be prayed for. Therefore, the findings in relation to Issue no. 6 are also erroneous in the eye of law, so far it relates to the suit being bad under the proviso to section 34 of the Specific Reliefs Act. 20. Learned counsel for the appellants have therefore prayed that the suit be decreed in their favour, the impugned judgment and decree be set aside and the appeal be allowed.
21. Learned counsel for the contesting defendants/respondents has strongly opposed the submission of learned counsel for the appellants. Apart from reiterating the findings of learned trial court on the core Issue nos. 9 and 10 and other Issues such as Issue nos. 6, 7, 8 as also findings in relation to the cause of action arose under Issue nos. 1 and 2, he has vehemently submitted that the suit is 11 otherwise also barred in view of the provisions of Section 34 of Specific Reliefs Act, as no consequential relief of recovery of possession has been made when plaintiffs have accepted possession of the contesting defendants over the suit land. The possession over the suit land is on the basis of their own title and the assertion that the suit land under khata no. 56 were acquired for the joint family property by the proceeds of joint family income, though in the name of Mukund Mandal as he was the elder branch in the family, the learned trial has rightly declined the relief while dismissing the suit on contest. Learned counsel has supported the findings rendered by learned trial court in relation to Genealogy provided by the contesting defendants as correct. 22. I have considered the submission of learned counsel for the parties and have gone through the impugned judgment and the relevant pleadings and material evidence placed during the course of submission made by learned counsel for the parties. 23. Issue nos. 9 and 10 are the core issues, as also submitted by learned counsel for the appellants, the answer to which would largely determine the fate of the suit itself. The appellants have not been able to dislodge the findings rendered by learned trial court on the correctness of Genealogy furnished by contesting defendants as compared to the plaintiff. The findings on the Genealogy traced the common ancestor of both the parties as one Nafar Mandal, who died leaving behind two sons, Bhairab and Hirday. Plaintiffs and proforma respondents are shown to be the descendant of Akshay and Bolai, sons of Bhairab. On the other hand, contesting defendants derived their descendance from the tree of Hirday Mandal through his son Madhu Mandal and grandson Charan Mandal. The finding of learned trial court on the correctness of Genealogy furnished by the contesting respondents goes to show that other parties such as descendants of daughters of Suchand Mandal (brother of Mukund) have not been impleaded in the suit while the plaintiffs and proforma respondents deriving their inheritance through two sons of Mukund Mandal, Akshay and 12 Bolai have claimed ½ share each in the suit property. On the other hand, other heirs deriving descendance from the other two sons of Hirday Mandal, Jadu and Nanda (apart from Madhu Mandal) are also not impleaded as party in the suit. Appellants have placed strong reliance on the registered Patta of the year 1888 as being the source of title of the plaintiffs and proforma respondents from their ancestors Mukund Mandal, who had taken Raiyati settlement of suit lands from the landlord through the said registered Patta. A presumption has been drawn under the provisions of Section 90 of the Evidence Act in respect of the said document Ext.2, relying upon the judgments rendered by Hon’ble Supreme Court in the case of Ranganayakamma and another vs. K. S. Prakash (Dead) BYLRS and others reported in (2008) 15 SCC 673 and in the case of Vishwanath Bapurao Sabale vs. Shalinibai Nagappa Sabale and others reported in (2009)12 SCC 101. However, it is also well settled that presumption under Section 90 of the Evidence Act in respect of 30 years' old document coming from proper custody relates to the signature, execution and attestation of a document i.e to its genuineness, but it does not give rise to presumption of correctness of every statement contained in it. That the contents of the document are true or it had been acted upon, have to be proved like any other fact. The opinion of the Apex Court at para 85.3 in the case of Union of India vs. Ibrahim Uddin and another reported in (2012) 8 SCC 148 in this regard is being quoted hereunder. “Para 85.3: The alleged partition in the year 1819 among the ancestors of Respondent 1plaintiff even if had taken place, cannot be a proof of title of Respondent 1plaintiff over the suit property as the pedigree has not been proved. Presumption under Section 90 of the Evidence Act in respect of 30 years' old document coming from proper from proper custody relates to the signature, execution and attestation of a document i.e to its genuineness, but it does not give rise to presumption of correctness of every statement contained in it. That the contents of the document are true or it had been acted upon, have to be proved like any other fact. More so, in case the will is ignored, there is nothing on record to show as to how Respondent 1 plaintiff could claim the title.” 13 24. The plaintiffs have not been able to prove the contents of the document as being true or having been acted upon, like any other fact to be proved in course of trial. On the contrary P.W.3 Krishna in crossexamination states that the settlement of the land was made with the joint family of Mukund Mandal. He is the descendant of Bhramar Singh. P.W.1 who is said to be the grandson of Bhramar Singh had stated that he has not even seen Bhramar Singh and does not know when he died. He had also not seen Mukund Mandal nor knows how many brothers and sisters were there. He claims to have known Mandhu Mandal but does not know his relation with Mukund. This witness cannot be relied upon for proof of these facts. This failure on the part of the plaintiffs is more confounded in the light of the specific stand of the defendants that Bhairab and Hirday sons of Nafar Mandal continued in jointness and their sons also continued to remain in joint as coparceners. As per the submission of learned counsel for defendants , the defendants on their part have also sought partition of the instant suit property apart from other properties in Partition Suit no. 28/94 which is said to be still pending before the competent court of civil jurisdiction. They have also pleaded that Mukund, Suchand and sons of Hriday Mandal i.e., cousin brothers, acquired properties with joint family funds as Bhairab and Hirday their ancestors, had left sufficient landed properties as joint nucleus for acquisition by the joint family. Since Mukund was the senior most male member of the family, the document was procured in his name. 25. One may usefully refer to the settled proposition in law in this regard. There is no presumption of a property being joint family property only on account of existence of a joint hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self 14 acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. The expression of opinion in this regard by the Apex Court in the case of Makhan Singh vs. Kulwant Singh reported in (2007) 10 SCC 602 at para8 of the report is quoted hereinbelow. “Para8 The query was answered in para 18 in the following terms: (SCC p. 317) 18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. 26. The contesting defendants have not only placed the correct Genealogy of the properties, as per which Bhairab and Hirday son of Nafar Mandal continued to remain in jointness, they have also adduced other contemporaneous document such as Ext.B mortgage deed dated 23rd March, 1908 which shows that certain properties (not being the suit property) were mortgaged jointly by Mukund and Madhu in favour of Dhuku Mandal to meet joint family expenses and were duly redeemed from joint family funds. Ext.C is a Bantannama deed of the year 1941 which relate with plots unrelated with the suit property. Reference has been made to the deed of Bantanama between Akshya Maldal and Bolai Mandal being the first party and Charan Mandal and others being the second party in support of their contention that the joint properties had not been partitioned by metes and bounds between the co sharers. Ext.D and D/1 being the Cadestral Survey Khatiyan and Revisional Survey Khatian of 1964 both show entries in the name of Mukund Mandal and Madhu Mandal. The entries of 1964 even in the revisional survey Khatiyan, though assailed in the instant suit in the year 1999 on the basis of the alleged cause of action, do show that there would be a presumption of the property being joint. The plaintiffs apart from relying upon Ext.2 dated 10th February 1888 15 have adduced no material evidence to prove the fact that Mukund Mandal had acquired the suit property through the registered Patta dated 10th February, 1988 through his own fund and not out of joint family nucleus. The plaintiffs have therefore miserably failed to discharge the onus of proof in support of their case that the suit property was exclusively acquired by Mukund Mandal. The plea of the respondent that the same were acquired in the name of Mukund Mandal as a Karta of the family out of joint family nucleus being in jointness from their common ancestors Bhairav and Hirday (sons of Nafar Mandal) therefore do lend enough credence to their case on the test of preponderance of probabilities. The findings of learned trial court in respect of Issue nos. 9 and 10 therefore are unassailable. 27. Learned counsel for the appellant has been unsuccessful in questioning these findings simply on the assertion that the Exts. B, C and E referred to in the impugned judgment do not relate to the plots comprising the suit properties. He has however not been able to satisfy that in the wake of the documentary evidences including entries made in the cadestral survey record and revisional survey record long back and the correct genealogy furnished by the defendants before learned trial court, the onus to establish that the property in question was purchased by Mukund Mandal exclusively through his own funds were not at all established. 28. Cadestral survey khatiyan was finally published in 1911 and Khata no. 52 relates to the suit land. Plaintiffs were silent about the possession of these defendants on the suit land at the time of its entry in the C.S.Khatiyan. Entry no. 56 is in relation to the suit land in R.S.Khatiyan, both these documents were filed by the defendants. C.S. Khata no. 52 has been jointly recorded in the names of Madhu Mandal and Mukund Mandal. The names of defendants' father along with descendants of Mukund have been jointly recorded without any objection by the plaintiffs in R.S. Khata no. 56 in 1964. Plaintiffs have instituted the suit 30 years thereafter. They have failed to show that they had no knowledge of R.S. Khatiyan entry 16 till 1993. The rent receipts produced by the defendants would also show that they were not strangers to the family of Madhu Mandal. Learned Trial Court has clearly found that the plaintiffs have not adduced any evidence as to what was the source of income of Mukund Mandal when the suit lands were acquired in 1888. Since the members of the family of joint family were in joint possession of these lands, the onus lied on the plaintiffs to show that suit lands were acquired exclusively out of income of Mukund Mandal in his name. The plaintiffs have on their part also accepted continuous possession over the suit land by contesting defendants though claiming it to be permissive. Such continuous possession even as per the case of the plaintiffs has continued since lifetime of Mukund Mandal son of Nafar Mandal. Learned Trial Court has clearly held that no other documents have been filed by the plaintiffs to substantiate their claim of title and interest over the suit lands. The plaintiffs have not even stated that Mukund was separate from Bhairab and Hriday rather according to their case Bhairab and Hriday were full brothers. The contesting defendants draw their lines of succession through Hirday Mandal, Madhu Mandal and Charan Mandal. The mortgage deed of 1908 related to certain lands of C.S. Khata no. 52 which were mortgaged and redeemed by Madhu Mandal and Mukund Mandal being the members of the joint family. It also cannot be lost sight that plaintiffs have not sought relief against the cadestral survey entry nor they have questioned it. 29. There is no quarrel about the proposition of law laid down by Patna High Court in the case of Karunamoy Dutta and others Vs. State of Bihar and others reported in 1983 BLT (Rep) 90 and in the case of Paritosh Maity and Etc. Vs. Ghasiram Maity reported in 1987 PLJR 354 that the limitation provided under Section 258 of Chhotanagpur Tenancy Act, 1908 does not oust the jurisdiction of Civil Court if a cause of action arises even after final publication of Record of Rights. However, the plaintiffs cannot rely upon the ratio rendered by the aforesaid judgments as they have in the first place failed to support the main plea as framed under Issue no. 2 read 17 with Issue no. 9 that Mukund Mandal and their ancestors had exclusively acquired the suit land by registered Patta on 10th February, 1988. They have failed to discharge the onus that the suit property was exclusively acquired by Mukund Mandal after the defendant had succeeded in discharging their onus relating to jointness of the suit property. They have also not sought any relief for recovery of possession pursuant to the declaration. In the background of the case discussed above, the findings of learned court that the suit is barred under Section 34 of the Specific Relief Act is proper. 30. The contention of learned counsel for the appellant that such consequential relief was not required on the strength of their case that the defendants were only in permissive possession over the suit land, is not worthy of acceptance. Whether the defendants were in permissive possession of the suit land and plaintiffs had right, title and ownership over the suit property were issues framed for adjudication in the instant suit on the basis of the rival pleadings of the parties. A prayer for mere declaration of title without any prayer for consequential relief of recovery possession was clearly in teeth of the provisions of Section 34 of Specific Relief Act. Reliance may be placed upon the judgment of the Hon’ble Supreme Court in the case of Meharchand Das Vrs. Lal Babu Siddique and others reported in (2007) 14 SCC 253, para 12 thereof is quoted herein under: “Para 12: The High Court, in our opinion, committed a manifest error in not relying upon the decision of this Court in Vinay Krishna. The said decision categorically lays down the law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable”. Reliance may also be placed upon a judgment of the Hon’ble Apex Court in the case of Vinay Krishna Vrs. Keshav Chandra and another reported in 1993 Supp (3) SCC 129.
31. Upon consideration of the relevant material evidence and the submissions advanced by the parties including the judgments cited 18 above, I do not find any error in the findings of learned trial court which deserves to be interfered with in appellate jurisdiction. Consequentially, the judgment and decree of learned trial court is affirmed. Accordingly, the instant appeal is dismissed. Decree accordingly. (Aparesh Kumar Singh,J) Jharkhand High Court, Ranchi Dated 23 / 11 /2017 Jk/AFR