Akhil Mandal Vs Basudev Mandal

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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F.A. No. 188 of 2018

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1. Akhil Mandal (deceased, substituted vide order dated 21.09.2022)

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1(a) Mahabir Mandal, aged about 58 years, S/o Late Akhil Mandal

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1(b) Anil Mandal, aged about 53 years, son of late Akhil Mandal, 1(c) Nalin Mandal, aged about 52 years, son of late Akhil Mandal, 1(d) Karan Mandal, aged about 45 years, son of late Akhil Mandal,

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2. Bhikhari Mandal (deceased, substituted vide order dated 21.09.2022)

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2(a) Sanjeet Mandal, aged about 46 years, son of late Bhikhari Mandal,

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2(b) Sujet Mandal, aged about 39 years, son of late Bhikhari Mandal All resident of Bhurkuli, P.O. Bhurkuli, Panchayet- Gobindpur, Saraikella-Kharsawan, District-Saraikella-Kharsawan

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… … Plaintiffs/ Appellants

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Versus

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Basudev Mandal

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Ajodhya Mandal

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Niranjan Mandal

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Sl. Nos. 1 to 3 all sons of late Bhimsen Mandal, resident of village Bhurkuli, P.O. & P.S. Saraikella, Dist. Saraikella-Kharsawan

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Ram Mandal, son of late Basista Mandal, resident of village Bhurkuli, P.O. & P.S. Seraikella, Dist. Saraikella-Kharsawan.

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Mihir Devi, w/o. late Nirmal Mandal,

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Manmatho Mandal, s/o late Nirmal Mandal, both residents of Bhurkuli, P.O. & P.S. Seraikella, Dist. Seraikella-Kharsawan.

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Jayshree Mandal, D/o late Nirmal Mandal and W/o Nunu Mandal

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Kanaklata Mandal, D/o late Nirmal Mandal and W/o Panchanan Mandal

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Sl. No. 7 to 8 residents of Padampur, P.S. Kharsawan, P.O. Padampur, Dist. Saraikella-Kharsawan

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Pinki Mandal, D/o late Nirmal Mandal and W/o Chitrasen Mandal, resident of Gangudih, P.O. and P.S. Kharsawan, Dist. SaraikellaKharsawan.

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Santosh Mandal, son of late Kailash Mandal

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Umakant Mandal, son of Amulya Mandal

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Runa Mandal, son of Amulya Mandal

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Sl. Nos. 10 to 12 residents of Bhurkuli, P.O. and P.S. Seraikella, Dist. Seraikella-Kharsawan.

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Purna Chandra Sahu, s/o. Kalicharan Sahu, r/o. village Dholadih, P.O.

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and P.S. Rajnagar, Dist. Seraikella-Kharsawan

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Matangini Mandal, w/o. late Basistha Mandal, r/o. village Bhurkuli, P.O. and P.S. Seraikella, Dist. Seraikella-Kharsawan.

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Droupadi Mandal, D/o Late Basistha Mandal and W/o Sudhangshu Mandal, Resident of village Gangudih, P.O. & P.S. Kharsawan, District Seraikella-Kharsawan

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Indubati Mandal, D/o Late Kailash Mandal and W/o Sri Bibhisan Mandal, Resident of village Padampur, P.S. Kharsawan, Padampur Telisahi, Dist. Saraikella-Kharsawan

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Deboki Mandal, D/o Late Kailash Mandal and W/o Sri Balram Mandal, Resident of village Dhadkidih Mahilimurap, P.S. Kharsawan, P.O. Burudih, Dist. Saraikella-Kharsawan

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Purnomi Mandal, D/o Late Kailash Mandal and W/o Sri Sonu Mandal resident of village Saraikella, P.O. & P.S. Seraikella, District SeraikellaKharsawan

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Atangini Mandal, W/o Late Amulya Mandal

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Rekha Mandal, D/o Late Amulya Mandal.

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Both resident of village Bhurkuli, P.O. & P.S. Seraikella, District Seraikella-Kharsawan at present residing at Seraikela Town, Birsa Chowk, P.O. and P.S. Seraikella, Dist. Seraikella-Kharsawan

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Irabati Mandal, D/o Late Bhimsen Mandal and W/o Shib Sankar Mandal, Resident of village Dalaikela, P.S. Kharsawan, P.O. Padampur, Dist. Ske-Kharsawan ………… Defendants/ Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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---

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For the Appellants : Mr. Sudhir Kumar Sharma, Advocate For respondent no.17 : None For the other Respondents : Mr. R.C.P. Sah, Advocate

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Lastly heard on 30.01.2025

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31/ 18.03.2025 This First appeal has been filed against the judgment dated 19.12.2017 (decree signed on 04.01.2018) passed by the learned Civil Judge (Sr. Division)-I, Seraikella-Kharsawan in Original Suit No. 31 of 2012, whereby the suit has been dismissed.

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2. The Suit was filed for the following reliefs:

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(a) For declaration of right, title and interest of the plaintiffs over the Schedule ‘A’ land after holding that the revisional survey entry in respect of the suit land is wrong and erroneous.

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(b) for confirmation of possession of the plaintiff over the suit land.

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(c) for a permanent injunction restraining the defendants from interfering with the possession of the plaintiffs over the suit land.

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(d) for cost of the suit.

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(e) for any other relief or reliefs to which the plaintiffs are deemed entitled under the law and equity.

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The suit land was described under Schedule ‘A’ which is quoted herein below for the sake of brevity:

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Schedule ‘A’

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Mouza-Bhurkuli, Thana No. 275, Anchal Seraikella, Khata No. 94,

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R.S. Plot No. 391, Area-AO-32 Dec., R.S. Plot No. 395, Area AO. 40 Dec. Total Area AO. 72 Dec. Corresponding to C.S. Plot No.

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193, Area B-0-12-0 Dhur 194, area B-0-15-18 Dhur recorded under C.S. Khata No. 61 of Mouza Bhurkuli.

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3. Background of the proceedings (the earlier suit and the present suit including filing of written statements in both the

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suits).

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a. The suit was initially filed on 20.12.2011 before Civil Judge (Junior Division)-I numbered as O.S/T.S. No. 22 of 2011. The plaintiffs claimed right, title and interest with respect of the suit property being the descendants of Balbhadra Mandal in whose name the suit property was recorded as ‘chakran’ during the cadastral survey of 1925-27 (Abdul Settlement). Initially there were only 8 defendants in the suit who were representing the legal heirs and successors of Bhimsen Mandal and Kailash Mandal who were shown in possession of the suit property in the revisional survey entry of the year 1961 who claimed right , title , interest and possession on the basis of unregistered Prajali Patta dated 20.03.1954. A written statement was filed by the defendant no. 1 to 8 in O.S/T.S No. 22 of 2011 stating that a portion of the suit land was sold by registered deed dated

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12.11.2011 by defendant no. 1 to 3, 5 and 6 and consequently, the purchaser was made defendant no.9 who also filed written statement in earlier suit being O.S/T.S No. 22 of 2011.

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b. In said earlier suit, an objection was raised in connection with valuation of the suit property and after hearing the parties the plaint was returned on 07.06.2012 for want of pecuniary jurisdiction and for presentation before the competent Court.

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c. The plaint was then presented before the learned Trial Court on 17.07.2012 and was numbered as O.S/T. S No. 31 of 2012, admitted on 14.09.12 and summons were issued to the defendants.

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d. The defendant no. 1 to 8 appeared on 12.04.2013 and prayed for time to file written statement and thereafter on repeated occasions time was granted but neither any written statement was filed on behalf of defendant no. 1 to 8 nor any prayer was made to take the written statement filed in the earlier suit being O.S/T.S No. 22 of 2011 to be the written statement in the present suit. Consequently, the present suit proceeded without there being any written statement on behalf of the defendant no 1to 8.

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e. The defendant no.9 appeared and prayed that his written statement filed in the earlier suit be taken as the written statement in the present suit and his prayer was allowed vide order dated 23.09.2013 and consequently, the records of earlier suit O.S/T.S No. 22 of 2011 was called for.

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f. In the present suit defendant no. 10 to 16 were added and they filed their separate written statement. Later on, defendant no.17 was added and defendant no.5 was substituted. Defendant no.17 and substituted defendant of defendant no.5 filed a separate written statement.

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g. In the impugned judgement, the learned Trial Court has recorded that there are three sets of written statement in this suit

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and this Court has also found from the records received and the order-sheet of the learned Trial Court that there are three sets of written statement in this case, they are: -

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Written statement of defendant no.9

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Written statement of defendant no. 10 to 16

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Written statement of defendant no. 17 and 5(a) to 5(d)

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4. The plaint

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i. During the cadastral survey of 1925-27, commonly known as Abdul Settlement carried out by the then Estate of SeraikellaKharsawan the suit land was recorded in the name of Balbhadra Mandal, father of the original plaintiffs who died around 60 years prior to filing of the suit leaving behind his widow Tarubala and two minor sons, the plaintiffs. On death of Balbhadra Mandal his entire interest was inherited by the plaintiffs through their mother and the plaintiffs continued to be in possession of the suit land through inheritance.

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ii. The cause of action arose on 12^th November 2011 when the defendants No. 1 to 3 ,5 and 6 threatened that since the suit land has been recorded in the name of their father during the last Revisional Survey, they were going to sell the suit property and took measurement of the land through Amin.

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iii. Consequently, the plaintiffs made search and found that in final publication of survey record in the year 1964 the suit land was recorded in the name of Bhimsen Mandal and Kailash Mandal in R.S. Khata No. 94 of Mouza Bhurkuli.

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iv. It was the specific case of the plaintiffs that such recording in survey records was incorrect as neither Balbhadra Mandal nor the plaintiffs ever made any transfer of the suit land in favour of Bhimsen Mandal and Kailash Mandal nor those persons were ever in possession of the suit property.

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v. The original defendant no. 1 to 8 were the legal heirs and successors of Bhimsen Mandal and Kailash Mandal. Defendant

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nos. 1 to 4 were descendants of Bhimsen Mandal and defendants no. 5 to 8 were the descendants of Kailash Mandal. vi. It was claimed by the defendant no.9 that he was the purchaser of a portion of the suit property from defendant nos. 1, 2, 3, 5 and 6 by registered sale deed no. 6833 dated 12.11.2011.

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vii. It was also stated in the plaint that the plaintiffs were minor at the relevant point of time and therefore, they did not have any knowledge about such entry made in the record of right. It was further case that erroneous settlement entry together with the attempt of the defendants to dispossess the plaintiffs has cast a cloud over the right, title and interest of the plaintiffs and consequently, it became necessary for them to institute a suit and accordingly the suit was filed for the aforesaid reliefs.

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5. Written statements.

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A. No written statement was filed in the present suit by the defendant no. 1 to 8 as mentioned above.

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B. A written statement dated 29.08.2016 was filed on behalf of the substituted defendant Nos. 5 to 5(d) and 17 who stated that there was no cause of action, the suit was barred by limitation, barred by specific relief act, estoppel, waiver, acquiescence and it was stated that they would adopt the written statement filed by original defendant nos. 1 to 8.

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C. The suit land belonged to their predecessor Bhimsen Mandal and Kailash Mandal and the same was duly recorded in the revisional survey of 1961 and proper rent was assessed by the state government through the circle office; there was a pond on the suit land where the defendants’ predecessor caught fish and tube wells were sunk in both the plots which was used to lift drinking water and the suit land was in their possession since last 56 years. It is observed by this court that if taken from the date of filing of the written statement the date of possession as claimed by the defendants would be from 1960.

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D. Written statement dated 21.01.2016 was filed by the defendant no. 10 to 16 on the similar lines and also stating that the suit land was not properly described.

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E. As per the written statement of defendant no. 9 [who adopted the written statement filed in the earlier suit], the defendant no. 1 to 3, 5 and 6 and their co-sharers had transferred 7.50 decimal in Plot No. 395(A) of Khata No. 94 which was a portion of the suit land in favour of Puranchandra Sahu (defendant no.9) vide sale deed no. 6833 dated 12.11.2011 ; it was admitted that the suit land was recorded as Chakran land during survey of 1925-27. It was asserted that the plaintiffs had ample knowledge of the revisional survey record of 1961 and that they had no title and possession over the suit land and the defendants no. 1 to 8 had inherited the suit land from their predecessors in whose name entry was made in revisional survey record of 1961 and were paying rent to the state government.

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F. The suit land was stated to be Chakran land (service land ) and hence not inheritable by the plaintiffs and the defendants no. 1 to 8 were said to be rightful owners of the suit property on the basis of Prajali Patta (unregistered) of the year 1954 said to have been executed by the mother of the plaintiffs on her behalf and on behalf of her minor sons (the plaintiffs ) in favour of predecessor in interest of the defendant no. 1 to 8 with the approval of landlord Raja of Saraikella . The defendant no.9 also claimed to be in possession of the portion of the suit land on the strength of the aforesaid sale deed sale deed no. 6833 dated 12.11.2011. The defendant No. 9 denied the cause of action stated in the plaint.

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6. Issues before the learned Trial Court.

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(I) Is the suit maintainable in its present form or for the reliefs as claimed?

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(II) Whether the plaintiffs have got valid cause of

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action for this suit?

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(III) Whether the suit is barred by waiver, estoppel, limitation and acquiescence?

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(IV) Whether the suit is bad for non-joinder of the necessary parties?

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(V) Whether the plaintiffs have valid right, title, interest and possession over the suit land?

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(VI) Whether the entry in revisional survey record of right in respect of suit land is wrong erroneous?

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(VII) Whether the plaintiffs are entitled to get any relief, if yes, what extent?

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7. Three witnesses have been examined on behalf of the plaintiffs to prove their case. P.W.1 claimed to be a resident of village Bhurkuli and also claimed to have full knowledge of the suit properties; P.W.2 is a resident of Kita also claimed knowledge of entire facts of the suit land; P.W.3 is Akhil Mandal, the plaintiff himself. Apart from oral evidences, the following exhibits have been identified on behalf of the plaintiffs.

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Ext. 1 is C.C. Of the khatiyan no. 61, dated 10.12.1927 i.e. record of rights and finally published under the authority of ruling chief of Seraikella on 10 December,1927 Abdul Survey report wherein the land has been recorded in the name of Balabhadra Mandal as Chakrana land.

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Ext. 1/1 is the record of rights of khatiyan no. 94 as recorded in R.S. survey framed under section 83(2) C.N.T Act on 19th December 1961 wherein the same land has been recorded in the name of Bhimsen Mandal and Kailash Mandal S/o late Jaldhar Mandal under rayati rights.

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It is the entry made in exhibit 1/1 which is under challenge in this case.

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On the other hand, four witnesses have been examined on behalf of the defendants. D.W.1 of village Bhurkuli has claimed regarding the knowledge of each and every affairs of the suit land and its inheritance; DW.2 has stated regarding the inheritance of the defendants and right, title and interest over the suit land; D.W.3 Basudev Mandal is the main defendant no.1 in the suit and D.W.4 is Sharat Chandra Mandal, a formal witness, and he has identified the

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rent receipts dated 12.12.96, 02.02.93 and 19.11.2011 whichever have been marked Exts. A/1 to A/3. Ext. A is unregistered prajali patta of the year 1954.

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8. Findings of the learned Trial Court.

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(a) All the issues were decided against the plaintiffs and the suit was held to be barred by limitation by stating that the cause of action arose in the year 1961 when the entry in the record of rights were made in favour of the ancestors of the original defendant no. 1 to 8 and the suit was filed in the year 2012.

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(b) So far as the issue no.4 is concerned, the learned Trial Court recorded that no evidence was led and no arguments were advanced in this regard by either parties and hence this issue was disposed of accordingly.

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(c) As far as Issue no.1 and 2 are concerned, the learned Trial Court recorded that since the main issue has been answered against the plaintiffs and the basis of the claim of the plaintiffs is the record of rights in the Abdul survey settlement wherein the name of Balabhadra Mandal was recorded, but the nature of the land has been recorded as Chakran land, it has been held that while deciding the main issue that the chakran land is related with the right only in lieu of service till the service is continued and since after the death of Balbhadra Mandal no one of the plaintiffs were in the service of King hence the Chakaran land was restored in favour of the then king and chakran was a permissive right till the service tenure and chakran right is not inheritable right. Hence, the suit was held to be not maintainable in present form and the plaintiffs were held not entitled for relief as claimed. It has also been held that the plaintiffs had filed this suit by claiming their right, title and interest over the suit land without having any rayati rights over the suit land and if there was any cause of action it could have arisen in the year 1961 when the property was recorded in the

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record of rights in the name of father of the defendants but such opportunity was not availed by the plaintiffs.

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(d) So far as the Issue no. 7 is concerned, all the issues having been decided against the plaintiffs, the plaintiffs were held not entitled to get any relief as claimed and issue is no. 7 was also answered against the plaintiffs.

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(e) The core issues on merits were issue no. 3,5 and 6 which were taken up together by the learned Trial Court and were also decided against the plaintiffs- appellants.

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The issue no. 3, 5 and 6 were taken up together by the Trial Court and held as under: -

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From perusal of the record and materials available on record is apparent that presently the suit land is recorded in the name of defendants and since 1954 to 2012 it was never challenged by the plaintiffs or their predecessors and the plea of plaintiffs regarding the lack of knowledge of record of rights is not tenable in the eye of law and according to the Limitation Act, the plaintiffs have every opportunity to challenge the entry in the records of rights if they were aggrieved with the said entry in the record of right.

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So far as the right of inheritance of the plaintiffs is concerned it is clear from the record that the property was given to the father of the plaintiffs by the then king of Seraikella in lieu of service and after the death of Balbhadra Mandal they did not render their services to the king. Meaning of raiyat has been stipulated in Section 6 of The Chhotanagpur Tenancy Act

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Nature of "Naukarana land” has been explained in Lalu Munda @Lalu Munda vs State of Bihar 2004(1) JCR 458 Jhr and it has been laid down by Hon'ble court "Land given by ex-landlord to his servants in lieu of services. Possession of servant is permissive possession such possession cannot be termed as possession of raiyat.” In view of above discussion plaintiffs have no right to inherit the property as detailed in suit land and hence they are not entitled to claim right, title and interest over the suit land. Apart from it no any petition has been filed within the period of limitation by the plaintiffs within prescribed period for the correction in the entries of record of rights nor filed any suit for right title and interest over any competent court within the

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prescribed period i.e. 12 years from the record of rights and Hence the suit is hopelessly barred by the limitation also and Since the plaintiffs have no right, title and interest over the suit land and they did not challenge the entry in record of rights in the revisional survey.

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9. According to the plaintiffs , in the year 1927 when the Abdul survey was conducted and the suit land was recorded in the name of their ancestor and after his death it was inherited by them as minors but in the survey of 1961 the property was recorded in the name of ancestors of defendants in Record of rights. It is further claimed that they were minors at the time of RS. survey of 1961 and they could not oppose it and the matter was not in their knowledge and in the year 2011 the defendants came over the suit land and they started the measurement then plaintiffs came to know that the suit land has been recorded in the name of the father of the defendants and they will sale away the same. The plaintiffs have examined 3 witnesses and one of the plaintiffs himself stated on oath before the court regarding these facts. P.W.3 Akhil Mandal has stated on oath before the court that at present he is 72 years old and at the time of R.S survey he was not major so he could not anticipate the act of the government and after the knowledge of the fact they filed this suit before this court. The learned counsel for the defendants submitted before the court that R.S. survey was conducted in 1961 and the plaintiffs have brought this suit in the year 2011 in the court of Munsif Seraikella and after 50 years and during this period they did not challenge the entry made in record of rights which is beyond 12 years of limitation. He further argued that it is settled principle of law that current survey record will prevalent over the previous survey specifically when the basis of current survey is prajali patta which can be used of collateral as well. He further argued that in the relief column the plaintiffs have not sought for any relief to declare the registered sale deed no. 6833 dated 12.11.2011 executed by the defendant in favour of the defendant no. 9 null and void as well as no relief sought to cancel prajali patta and current survey record if exercised on the basis of rayati interest and title and all these facts go to establish that the suit is barred by Specific Relief Act as well as the provisions of estoppel and waiver . I have gone through the materials available on record and the provisions in this regard. On perusal of pleadings and evidences both oral and documentary of respective parties it is apparent from the record

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that in the year 1961 there was R.S. survey wherein the name of Bhimsen Mandal and Jaldhar Mandal was recorded in the record of rights and the defendants have claimed their right, title and interest on these score.

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The learned counsel for the plaintiff has placed their reliance in 2008 SCCR, 99 where in Section 8 of the Specific Relief Act, 1953, has been discussed and it was laid down that a revenue record is not a document of title and merely raise presumption in regard to the possession. Although, the plaintiffs have claimed that they are in possession but in the case decided by the Hon'ble Court upon which the plaintiffs have placed their reliance shows that the plaintiffs have admitted the possession of defendants over the suit land and presumption goes in favour of the defendants so far the possession is concerned. Admittedly, the names of ancestors of defendants was recorded into the record of rights in the year 1961 and this suit was filed in the year 2011. Apart from it, the basis and claim regarding the title over the suit land of the plaintiff is itself under dispute and on the basis of Chakran land one cannot claim title over the suit land and on this score the claim of plaintiffs are not admissible as already discussed above Apart from it, Section 83 of CNT Act stipulates procedure of publication, amendment and final publication of record of rights which is as under:

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(1) When a draft record of rights has been prepared under this Chapter, the Revenue Officer shall publish the draft in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein, or to any omissions therefrom, during the period of publication.

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(2) When such objections have been considered and disposed of in the prescribed manner, the Revenue Officer shall finally frame the record, and shall cause it to be finally published in the prescribed manner, and the publication shall be conclusive evidence that the record has been duly made under this Chapter. (3) Separate draft or final records may be published under subsection (1) or sub-Section (2) for different local areas, estates, tenures or part thereof.

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Section 84 of C.N.T Act deals with the provisions regarding the presumption as to final publication and correctness of record of rights. According to this section, in any suit or other proceedings in which a record of rights prepared and published under this Chapter or duly certified copy thereof or extract therefrom is

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produced, such record of rights shall be presumed to have been finally published unless such publication is expressly denied and a certificate, signed by the revenue officer, or by the D.C. Of any district in which its local area, estate or tenure or part thereof to which the record of rights relates is wholly or partly situate, stating that the record of rights has been finally published, under this chapter shall be conclusive evidence of such publication. Its sub-section 3 deals that every entry in a record of rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved. by evidence, to be incorrect. In Chand Mahato -V- State of Bihar. 1989 BBCJ, it has been laid down by the Hon'ble Court that presumption regarding the correctness in the record of rights, burden of proof lies on the person who is challenging the correctness. It is also settled principle of law that any entry made in the record of rights can be challenged before the authorities within 12 years of final publication. In this case, it is apparent from the record that final publication made in the year 1961 and this suit has been filed in the year 2011 after 50 years and no any petition was filed by the plaintiffs for correctness in the entry. Considering the discussions made in foregoing paragraphs, the court is of the considered opinion that the suit is hopelessly barred by limitation, waiver, estoppel and acquiescence and accordingly issue no.3,5 and 6 are answered against the plaintiffs.”

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Arguments of the appellants

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9. A reference has been made to Seraikella and Kharswan (Laws) Act, 1951 (Bihar Act, XLI of 1951) which is an act by which the Chotanagpur Tenancy Act, 1908 has been applied to Sub-division of Saraikella-Kharsawan of the District of Singbhum to the extent mentioned in the said Act. He has particularly referred to the schedule Cl. No. 8 and submits that Section 77 of the Chotanagpur Tenancy Act, 1908 has been made applicable with the proviso as follows:-

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“provided that any area comprised within the sub-division of Saraikella-Kharsawan of the district Singhbhum, the incidents of such tenor or holding shall continue to be regulated in accordance with the provisions of law in force immediately before the commencement of SaraikellaKharsawan (Laws) Act, 1951 ”.

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10. It is submitted that the perusal of the said Act of 1951 reveals

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that record of rights of Saraikella Act No. 1 of 1935 and record of right Act of Kharsawan were repealed and it was also provided therein that the record of rights including the record of right in respect of rights and duties of village Headmen prepared and the Pattas granted under any of the said enactment and enforced in the sub-division of Saraikella-Kharsawan immediately before the commencement of the of the Act shall be deemed to be the record of rights including records in respect of the rights and duties of village Headmen prepared and published in Pattas granted under Chapter-XI, XII, XIII and XIV of the Chotanagpur Tenancy Act, 1908 as applied by the aforesaid Act of 1951 to Saraikella-Kharsawan in so far as records of rights and pattas are not inconsistent with the provisions of the said Act. 11. The learned counsel has referred to Section-6 of the provisions of Bihar Land Reforms Act,1950 to submit that certain other lands in Khas possession of intermediaries were to be retained by them on payment of rent as raiyats having occupancy right. He has in particular referred to the proviso to sub-section-1 to submit that it has been provided that nothing contained under sub-section-1 shall entitle an intermediary to retain possession of any Naukarana Land or any land recorded as chaukidari chakran or goraiti jagir or mafigoraiti in the record of right as already accrued to a raiyat before the date of vesting. He has submitted that on the basis of the proviso to Section 6(1) of Bihar Land Reforms Act, 1950, the chakran land in SaraikellaKharsawan acquires the status of raiyati lands and therefore, it devolved upon the descendants of chakran i.e. father of the original plaintiffs, Balbhadra Mandal.

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12. The learned counsel submits that in view of the aforesaid provisions of the Act, 1951 by which certain provisions of Chotanagpur Tenancy Act, 1908 were made applicable to SaraikellaKharsawan with modification read with Section 6 of the Bihar Land Reforms Act,1950 the right of the plaintiffs stands established.

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13. The learned counsel has also submitted that reference to the

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provisions of the aforesaid Acts can be taken into consideration as the First Appellate Court is not only the final Court of Fact but is also the final Court of Law and it was not in dispute that the suit property involved in the present case falls in Saraikella.

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14. The learned counsel for the appellants has submitted that the land belonged to the landlord namely Maharaja Udit Narayan Singhdeo and his son was Aditya Pratap Singhdeo in the record of rights of 1927 (Ext. 1) which stood recorded in the name of Balbhadra Mandal (Belagan-Chakran) which was essentially a service tenure. The suit was filed in the year 2012. It was the specific case of the plaintiffs that Balbhadra Mandal expired about 60 years back and this fact stood admitted in the written statement and if it is counted from 2012, it is apparent that Balbhadra Mandal expired after coming into force of the Bihar Land Reforms Act. He submits that Bihar Land Reforms Act came into force on 25.09.1950. He has submitted that no specific date of death of Balbhadra Mandal has been placed on record by either parties.

¶156

15. He has also submitted that Prajali Patta dated 20.03.1954 (Ext. A) ,which is the basis of claim of the defendants, is an unregistered document and as per the defendants it was executed by widow of Balbhadra Mandal on behalf of herself and her minor children and with the consent of the landlord, Aditya Pratap Singhdeo. The learned counsel has submitted that in the year 1954, the Zamindari was already abolished and therefore, there was no question of execution of any Patta much less Prajali Patta , an unregistered document by the consent of the King of Seraikella. He has submitted that by no stretch of imagination the said Prajali Patta can be said to have conferred any right, title or interest upon the defendants.

¶157

16. The learned counsel has again referred to the provisions of Section-6 of the Bihar Land Reforms Act and has submitted that it stood amended in the year 1954. The original provisions as well as the amended provisions were subject matter of consideration in the

¶158

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judgment reported in the case of Ganga Halkhore Vs. Rajnandan Prasad Singh & Ors. , reported in 1987 BLJ 777 . According to the said judgment the Naukran who was in possession of the property acquired the status of raiyat. Naukran was in possession of the property as service tenure and acquired the status of raiyat as the Zamindar could not have been said to in possession of the property upon vesting.

¶161

17. The learned counsel submits that the status of chakran is similar to that of naukaran and is also included in the proviso to subsection 1 of Section 6 by virtue of the proviso introduced in the Bihar Land Reforms Act in the year 1954, which was subject matter of consideration in the said judgment.

¶162

18. The learned counsel submits that in the present case the property was still in possession of the chakran and therefore, the chakran acquired the status of raiyat and his descendants continued to be in possession of the property. He submits that no right, title and interest could have been transferred by Sada Patta alleged to have been executed by wife of Balbhadra Mandal in the year 1954 on behalf of herself and her children and with the consent of the king. The learned counsel has also submitted that Section 77 of the Chotanagpur Tenancy Act, 1908 as applicable to Seraikella saves the service tenure and no material has been brought on record by either parties with regard to the any custom contrary to the provisions of Section 77 of Chota Nagpur Tenancy Act,1908 as made applicable to Seraikella.

¶163

19. He submits that even as per the provisions of Section 77 of Chota Nagpur Tenancy Act,1908, the right of ‘chakran’ (service tenure) are protected and therefore, Section 77 of Chota Nagpur Tenancy Act,1908 and also proviso to Section 6(1) saves the right of ‘chakran’ (service tenure) and the property did not revert back to the king/Zamindar upon abolition of Zamindari and implementation of Bihar Land Reforms Act,1950. He submits that Sadda Patta (Prajali

¶164

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Patta) cannot be a document of title.

¶167

20. He has also submitted that so far as possession of the defendants are concerned, they have themselves admitted in their deposition that the plaintiffs were in possession of the property or they had no knowledge about the possession. He has also submitted that the Trial Court has decided the possession in favour of the defendants merely on the basis of certain rent receipts which were issued much later i.e. in the year 1995. The learned counsel submits that the plaintiff had not only prayed for declaration of their right, title and interest but also claim for confirmation of possession but the learned Trial Court did not appreciate the evidences on record properly and upon true appreciation of the evidences it would transpires that the plaintiffs are in possession of the property.

¶168

21. It has been submitted that the point of limitation has been wrongly decided against the plaintiffs.

¶169

22. He has submitted that under the aforesaid circumstances, this appeal be allowed and the suit be decreed in terms of the relief as prayed by the appellants.

¶170

23. The learned counsel for the appellants has also relied upon the following judgments: -

¶171

a) 1987 (Full Bench) Paritosh Maity & Ors. – vsGhasiram Maity & Ors.

¶172

b) 1976 (2) SCC 152 (Gurucharan Singh – vs- Kamla Singh & Ors.

¶173

c) AIR (2019) SC 804 (Ravinder Kaur Grewal – vs- Mnjit Kauri)

¶174

d) (2010) 2 SCC 194 (Dayal Singh vs. Gurdev Singh)

¶175

The arguments of the respondents.

¶176

24. It has been submitted that the sole point for determination in this case is- Whether Appellants have got Right, Title and Interest

¶177

over the suit land?

¶178

25. Title Suit No. 31/2012 was filed for declaration of Right, Title, Interest and confirmation of possession of the plaintiffs over the schedule "A" land and also for a permanent injunction after holding

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that revisional survey entry in respect of the suit land is wrong and erroneous. The total suit land was 72 decimals and the defendants have transferred 7.50 decimals of land in Plot No. 395, Khata No. 94 in favour of defendant No. 9 for consideration of Rs. 3.30 Lakh by registered sale deed No. 6833 dated 12/11/2011 because defendants were in possession but this sale deed has not been challenged by plaintiffs. It is submitted that therefore, the plaintiffs have got no Raiyati right and issue No. 3, 5 and 6 was rightly decided against plaintiff/appellants by detailed discussions of the materials on record. It is submitted that the defendants got the title on the strength of Prajali Patta issued by mother of original plaintiffs with the approval of King of Seraikella and rent receipts have been also been filed on behalf of the defendants-Exts. A/1 to A/3. From perusal of entire documents, the following facts are on record: -

¶182

a. The ancestor of plaintiffs namely Balbhadra Mandal was rendering service to the then King of Seraikella Estate for which the suit land was given which was recorded as Chakran land in his name in Abdul Survey settlement of 1927.

¶183

b. In revisional survey under section 83(2) of C.N.T. Act the land has been recorded in the name of ancestors of the defendants.

¶184

c. The rent has been fixed by the Government for which the defendants are paying rent to the Government till date.

¶185

d. The plaintiffs have never challenged the record of rights prior to filing of the suit before any Authority nor filed any application for fixation of rent, since 1954 to 2012.

¶186

e. The claim of defendants over the suit land by which they got the inheritance right, title and interest is a Prajali Patta issued by mother of plaintiffs with approval of the then King of Seraikella Estate. Prajali Patta was executed on 20/03/1954.

¶187

26. It has been submitted that right over the Chakran Land is applicable till the service rendered and after the death of Balbhadra Mandal the service rendered to the King was stopped so plaintiffs are

¶188

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¶190

not entitled to inherit as it was provided in lieu of service so it was permissive possession of Balbhadra Mandal till his life time after that it went back to King of Seraikella. No rent was paid by plaintiffs so there is no rent receipt filed by them. It was admitted by all PWs, that they have got no knowledge of Khata number, plot number. Naukrana land has been explained in the case of Lalu Munda @ Lalu Munda Vs State of Bihar 2004 (1) JCR 458 wherein it has been laid down that land given by Ex-land lord to his servant in lieu of service is permissive possession and such possession cannot be termed as possession of raiyat. It is submitted that the plaintiffs have no right to inherit Chakran land so plaintiff have got no right, title and interest over the suit property and the appeal is fit to be dismissed.

¶191

Points for determination

¶192

A. Whether the plaintiffs have valid right, title, interest and possession over the suit land?

¶193

B. Whether the entry in revisional survey record of right in respect of suit land is wrong erroneous?

¶194

C. Whether any relief can be granted to the plaintiffs on account of the fact that the plaintiffs never challenged the registered sale deed No. 6833 dated 12/11/2011 said to be relating to sale of a portion of the suit property in favour of the defendant no.9?

¶195

D. Whether the Title Suit No. 31/2012 is barred by the limitation?

¶196

Findings of this court.

¶197

27. This Court has gone through the materials on record and after hearing the learned counsels for the parties finds that the learned trial court while deciding issue no. 3,5 and 6 has rightly recorded some of the facts based on materials on record, as follows: -

¶198

“ From perusal of the entire documents and evidences laid by both parties the following facts are on the record.

¶199

(i) the ancestor of plaintiffs namely Balbhadra Mandal was rendering service to the then king of Seraikella state for

¶200

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which the suit land was given which was recorded as Chakran land in his name in Abdul survey of 1927, (ii) in revisional survey under section 83(2) C.N.T. Act the land has been recorded in the name of the ancestors of the defendants,

¶203

(iii) the rent has been fixed by the government for which the defendants are paying rent to the government till date, (iv) the plaintiffs have never challenged the record of rights prior to filing of this suit before any authority nor filed any application for fixation of rent and,

¶204

(v) the claim of defendants over the suit land by which they got the inheritance right, title and interest is a prajali Patta issued by mother of the plaintiffs with approval of the then king of Seraikella State.

¶205

28. The aforesaid facts are admitted. Basis of the claim of defendants is unregistered Prajali patta of the of the year 1954. It is not in dispute that Saraikella was under the king of Saraikella State and was a princely state and not under the zamindari system which governed the other parts of the State of Bihar directly under the British Raj. Admittedly, the princely state of Seraikella merged with the State of Bihar after independence and admittedly, Chakran was "Service Tenure". It is not in dispute that as per Ext. 1 [C.C. of Khatiyan No. 61 dated 10.12.1927 (Abdul Settlement)] Maharaja Udit Narayan Singhdeo had given suit land to Balbhadra Mandal, as Chakran and the original plaintiffs were the sons of Balbhadra Mandal.

¶206

29. The entire story of merger of princely state of Sareikella with union of India and with the state of Bihar is apparent from the judgement passed by the Hon’ble Supreme Court in State of Seraikella v. Union of India, 1951 SCC 288 where a suit was filed on 15-1-1950 [prior to coming into force of the constitution of India], under the original jurisdiction of the Federal Court. The suit, inter alia, challenged the various instruments relating to accession of the

¶207

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princely State of Sareikella to the Union of India and the orders issued thereafter including “the States Merger (Governors’ Provinces) Order of 1949” dated 27-7-1949 as a result of which the State of Serikella merged in the Province of Bihar. Ultimately, the Hon’ble Supreme Court held that under the Constitution, these States do not exist at all. Assuming that these States are still in existence notionally, they have at any rate, ceased to be States of the kind which could maintain a suit under section 204 of the Government of India Act and the commencement of the Constitution none of these States is an acceding State which may continue a suit filed under Section 204. The suits must, therefore be regarded as having abated by reason of the elimination of the plaintiff States as States or acceding States just as an ordinary suit would abate on the death of plaintiff. It has been held that the suit could not be continued. The judgement, interalia, reveals certain facts as under: -

¶210

a. the State of Seraikella was a State in Orissa and its Ruler was Raja Aditya Pratap Singh Deo;

¶211

b. on 16-8-1947, the State acceded to the Dominion of India by virtue of an Instrument of Accession executed by its Ruler and accepted by the Governor General of India under Section 6 of the Government of India Act, 1935;

¶212

c. Under the Indian Independence Act, 1947, the Dominion of India was set up and that under the Government of India Act, 1935, as adapted, it provided that an Indian State may accede to the Dominion of India by an Instrument of Accession;

¶213

d. on 15-12-1947, an agreement is alleged to have been entered into between the Governor General of India and the Ruler of the plaintiff State. By that document the Raja acceded to the Dominion Government full and exclusive authority, jurisdiction and powers for

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and in relation to the governance of the State and agreed to transfer the administration of the State to the Dominion Government on 1-1-1948. Article 2 of the agreement contained a provision for the Privy Purse of the Raja and it is contended by the plaintiff that when the Raja signed the document the figure in this clause had been left blank; Article 3 provided that the Raja would be entitled to the full ownership, use and enjoyment of all private properties belonging to him on the date of the agreement and that by 1-11948, the Raja will furnish to the Dominion Government an inventory of all immovable properties, securities and cash held by him as such private property and under Article 4, the personal privileges enjoyed by the Raja and the members of his family mentioned therein had to continue.

¶217

e. On 24-12-1947, an Act to provide for the exercise of certain extra-provincial jurisdiction of the Central Government Act 47 of 1947 was passed. A notification under Section 4 of that Act was thereafter issued by the Central Government delegating, under Section 3, the powers contained in that Act to the Province of Orissa.

¶218

f. On 18-5-1948, that notification was cancelled and the powers in respect of the two specified States including the plaintiff State were delegated to the Province of Bihar.

¶219

g. On 18-5-1948 the Government of Bihar passed an order called “The Seraikella and Kharaswan States Order” providing for the administration of the two States.

¶220

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h. On 27-7-1949, the Governor General of India promulgated an order called “the States Merger (Governors’ Provinces) Order of 1949”. The result of that was that the State of Seraikella merged in the Province of Bihar.

¶223

30. Thus, there can be no doubt that the State of Seraikella finally merged in the Province of Bihar on 27.07.1949 and returns etc. with respect to the personal properties of the king of Sereikella were to be filed much earlier. After merger of princely state of Seraikella with the State of Bihar, the Bihar Land Reforms Act, 1950 came into force on 25^th of November, 1950. This court is of the considered view that King of the princely state of Seraikella , Maharaja Aditya Pratap Singhdeo, had no authority to approve or give Prajali Patta dated 20.03.1954 (Ext. A) , which is the sole basis of claim of suit land by the defendants. Further admittedly, Prajali Patta dated 20.03.1954 (Ext. A) is an unregistered document and it was not followed by issuance of any rent receipt by the King or even by the State of Bihar. The earliest document claiming possession of the predecessors of the defendants is the record of rights of the year 1961 which as per the case of the defendants was prepared on the basis of unregistered Prajali Patta dated 20.03.1954 (Ext. A) that too under the approval of King of princely state of Seraikella who had already lost his authority due to merger of princely state of Seraikella with the state of Bihar.

¶224

31. In this regard, it is important to note that the defendant nos. 1 to 8 did not file written statement in the suit. However, the defendant no. 1 was examined as a witness D,W. 3 wherein he admitted that as per the record of rights, the land was recorded as Chakran land in favour of ancestors of the plaintiffs vide record of right of the year 1927 (exhibit-1) . During his cross examination, he has stated that he had no idea that the king of Seraikella merged with India in the year 1947 and that the King had lost his rights. During his cross examination he has also stated that rent receipts were issued by the King of Seraikella and

¶225

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they were paying rent to the King but confirmed that the same were not filed in the Court. He has stated in the cross examination that after the issuance of Prajali Patta dated 20.03.1954 (Ext. A) rent was paid to the contractor but he had not filed those rent receipts in the court. He has denied that on 20.03.1954, on the date of issuance of alleged Prajali Patta, the king had no right to issue such Patta as his right was already extinguished.

¶228

32. In view of the aforesaid discussions based on various provisions of law, there is no doubt that Seiraikella was a princely state under a king and had merged with India and then with the State of Bihar but no specific date of merger has been placed on record by the parties. However, the history of merger of princely state of Seraikella has been narrated in the aforesaid judgement of the Hon’ble Supreme which are based on enactments and instruments and can be considered. D.W. 3 (the defendant no. 1) was cross examined on the point of merger of Seraikella with India in the year 1947 which he denied having no knowledge. Further, the Seraikella and Kharsawan (Laws) Act, 1951 which was a Bihar Act XLI of 1951 also reveals that in the year 1951 the State of Bihar was having jurisdiction over the territories of the princely State of Seraikella by which the Choto Nagpur Tenancy Act, 1908 was extended to Seraikella , interalia, with modification of Section 77.

¶229

33. The provisions of Chota Nagpur Tenancy Act, 1908 were made applicable to Division of Seraikella and Kharsawan of the district of Singhbhum in the year 1951 subject to the modifications and exceptions specified in the Schedule annexed to this Act.

¶230

34. Further Section 77 of the Chota Nagpur Tenancy Act,1908 was made applicable to Seraikella Kharsawan by the Seraikella and Kharsawan (Laws) Act, 1951 by the state of Bihar with modifications and exceptions and added a proviso to Section 77 which provided that in any area comprised within the subdivision of the Seraikella and Kharsawan of the District of Singhbhum, the incident of such tenure

¶231

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or holding shall continue to be regulated in accordance with the provisions of any law enforced immediately before the commencement of Seraikella and Kharsawan (Laws) Act, 1951. Thus Section 77 of the Chotanagpur Tenancy Act as it applies to the Saraikella and Kharsawan (Laws) Act, 1951 would read as under:-

¶234

77. Saving as to service tenures and holdings- Except in so far as the [State] Government may otherwise direct by notification, nothing in this Act shall affect any incident of a Ghatwali or other service tenure or holding.

¶235

Provided that in any area comprised within the subdivision of Seraikela and Kharsawan of the district of Singhbhum, the incidents of such tenure or holding shall continue to be regulated in accordance with the provisions of any law in force immediately before the commencement of the Seraikela and Kharsawan (Laws) Act, 1951 .

¶236

35. Thus, the incidents of service tenure or holding has been continued to be regulated in accordance with the provisions of any law in force immediately before the commencement of the Seraikella and Kharsawan (Laws) Act, 1951.

¶237

36. Section 6 of the Bihar Land Reforms Act, 1950 as amended vide Act 20 of 1954 is quoted as under:-

¶238

6. Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights. - (1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of [an intermediary] on the date of such vesting, including.-

¶239

(a) (i) proprietor's private land let out under a lease for a term of years or under a lease, from year to year, referred to in Section 116 of the Bihar Tenancy Act, 1885 (8 of 1885), (ii) landlord's, privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less; referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908),

¶240

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(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and

¶243

(c) lands used for agricultural or horticultural purposes forming the subject-matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof;

¶244

shall, subject to the provisions of Sections 7A and 7B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner:

¶245

Provided that nothing contained in this sub-section shall entitle an intermediary to retain possession of any naukarana land or any land recorded as chaukidari chakran or goraiti jagir or mafigoraiti in the record of right has already accrued to a raiyat before the date of vesting.

¶246

Explanation. - For the purposes of this sub-section, 'naukarana land' means land as a grant burdened with service in lieu of rent or held simply in lieu of wages for services to be rendered.

¶247

(2) If the claim of an intermediary as to khas possession over the lands referred to in sub-section (1) or as to the extent of such lands is disputed by any person prior to the determination of rent of such lands under the said subsection the Collector shall, on application, make such inquiry into the matter as he deems fit and pass such order as may appear to be just and proper:

¶248

Provided that the Collector in making such inquiry shall give due weight to the circumstances under which the area in which such lands were situated was declared to be a disturbed area under the Police Act, 1861, after the first day of November, 1946.

¶249

37. The insertion of proviso to Section 6(1) of Bihar Land Reforms Act, 1950 was subject matter of consideration in the judgement reported in 1987 BLJ 777 (Ganga Halkhore versus Rajnandan

¶250

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Prasad Narain Singh and others) while considering naukarana land which has similar import as that of chakran land and it has been observed that the proviso has brought in new elements and a question arose, whether the land given as a grant burdened with service in lieu of rent shall also be excluded from the operation of section 6 of the Bihar Land Reforms Act or not and it has been held that the proviso will have retrospective effect from the date of vesting. In the present case, the King of Seraikella had lost the land in favour of the occupancy Raiyats, namely, the defendant (naukarana land holder) on the date of the vesting. The paragraphs relevant for the purposes of this case are as under:-

¶253

5 Change in the statute has brought in new elements and a question has naturally arisen, whether a Khidmati Jagir, that is to say, the land given as a grant burdened with service in lieu of rent or held simply in lieu of wages for service to be rendered shall also be excluded from the operation of section 6 of the Bihar Land Reforms Act or not.

¶254

8 The general rule of interpretation is that a legislation must be considered as addressed to the future and not to the past and a retrospective operation will not be given to a statute which interferes with antecedent rights unless such be the unequivocal and inflexible import of the terms and the manifest intention of the legislature. But a law introduced to remove ambiguity of to affirm intention for which the law was made must receive a meaning which shall make it operative and not render it futile and inoperative. The introduction of the words, any Naukarana land with the explanation in the Act, only affirm the intention of the legislature that the lands in the possession of the servant burdened with service in lieu of rent or held simply in lieu of wages for services to be rendered in respect of which occupancy right had already accrued before the date of vesting, are to be excluded from the operation of section 6 (1) of the Act. It has to apply on the date the land vested and Khas possession of the intermediary was claimed and thus retrospectively. 9 …………………The amendment denied to the plaintiffs the rights of a Raiyat upon the land held by the

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defendants as Naukarana which is also described as Khidmati Jagir. That being the position in law on the date of the vesting, the plaintiffs had lost the land in favour of the occupancy Raiyats, namely, the defendant……..

¶258

38. Thus, it has been held that in case of naukarana land (service land) , the holder of land as service land on the date of vesting acquires the status of occupancy raiyat. As discussed above, naukarana land (service land) and Chakran land (service land) are similarly placed and are covered by the proviso to section 6(1) of the Bihar Land Reforms Act, 1950 as amended in the year 1954 and made effective from the date of vesting in terms of the aforesaid Judgement of Ganga Halkhore (supra) .

¶259

39. Having held as aforesaid, it has to be examined as to whether the right of the plaintiffs, being the descendants of the chakran Balbhadra Mandal is an inheritable right or not and this would depend upon the fact as to whether Balbhadra Mandal had the status of Raiyat and whether his service land was saved pursuant to merger of princely state of Sareikella with the state of Bihar in the year 1949 and also the provisions of Bihar Land Reforms Act, 1950 as applicable.

¶260

40. It is not in dispute that the suit land was recorded in the name of Balbhadra Mandal under Khata No. 61 at village Bhurkuli as Chakran land (exhibit-1) and Balbhadra Mandal ( the father of the original plaintiffs) had chakran rights in lieu of rendering service to the king of Seraikella. Prior to survey in the year 1927 (Abdul Settlement) Balbhadra Mandal used to render service to the then Maharaja Udit Narayan Singhdeo and it was recorded in Survey Report (Abdul Settlement) as Chakran "Service Tenure".

¶261

41. It was the case of the plaintiffs that after death of Balbhadra Mandal, who died 60 years before filing of the suit, the plaintiffs inherited the suit property and were in possession of the same. It was their further case that on 12.11.2011 they came to know for the first time about wrong entry in the survey record of rights of 1961((exhibit-

¶262

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1/1) when the concerned defendants came for measurement of land and threatened that they would sell the property on the strength of entry made in the record of rights of 1961. On the other hand it was the case of the defendants, in short , that after death of Balbhadra Mandal his widow Taru Mandalani, on behalf herself and her minor sons Akhil Mandal and Bhikhari Mandal (the original plaintiffs) executed a Prajali Patta dated 20.03.1954 (exhibit-A) duly approved and sanctioned by the King of Seraikella , namely, Raja Aditya Pratap Singhdeo in favour of Bhimsen Mandal and Kailash Mandal [the predecessors of the defendant no.1 to 8] with respect to the suit property and Bhimsen Mandal and Kailash Mandal got possession. It was their further case that the predecessor of the defendant no. 1 to 8 became raiyat of the suit land after abolition of jamindari under Bihar Land Reforms Act, 1950 and possessed the same in their own right. It was their further case that thereafter Revisional Survey under the Chotanagpur Tenancy Act,1908 was carried-out which started in the year 1958 and final record was published in 1961 and the suit property was shown in the name of Bhimsen Mandal and Kailash Mandal, the predecessor of original defendants no. 1 to 8. It was also asserted that the plaintiffs had ample knowledge about the survey recordings but they never agitated their grievance. In support of their possession the defendants also produced 3 rent receipts of the year 2.2.1993, 12.12.1996 and 19.11.2011 as exhibit no. A/1 to A/3. No rent receipts were produced by the plaintiffs and no rent receipts prior to 2.2.1993 were produced by the defendants and no order of mutation/opening of jamabandi were produced by the defendants. It was the specific case of the defendants that entry in survey record of rights of the year 1961 was made pursuant to possession and Prajali Patta dated 20.03.1954 (exhibit-A) .

¶265

42. Although no specific date of death of the Balbhadra Mandal (father of the original plaintiffs) has been given but it has been specifically stated in the plaint that he died 60 years prior to the filing

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of the plaint and this fact is not in dispute. Accordingly, it is not in dispute that Balbhadra Mandal died after the king lost his rights due to merger in terms of various instruments right from 1947 till the issuance of “the States Merger (Governors’ Provinces) Order of 1949” on 27-7-1949 and certainly after the enactment of Bihar Land Reforms Act, 1950 and had expired prior to amendment of Bihar Land Reforms Act, 1950 vide Act 20 of 1954. On the date of vesting the possession of the suit land was with the Chakran, Balbhadra Mandal (father of the original plaintiffs) .

¶269

43. After enactment of Bihar Land Reforms Act, 1950, Balbhadra Mandal, who was Chakran under the King of Saraikella became a raiyat by virtue of fiction of law contained in proviso 6(1)(c) and its explanation of Bihar Land Reforms Act, 1950 and suit land being a Service Tenure remained with Balbhadra Mandal and after his death devolved upon his wife Taru Mandalain and her minor sons by way of inheritance. The defendant no. 1, who was examined as D.W-3 has clearly stated in paragraph 7 of his cross examination that it is true to say that after death of Balbhadra Mandal, his widow and two sons (the original plaintiffs) remained in possession by way of inheritance.

¶270

44. In the aforesaid circumstances, the King of Sereikella, Maharaja Aditya Narayan Singhdeo, had no right to approve/give Prajali Patta dated 20.03.1954. Further, it is an unregistered document, which is the sole basis of the defendants to claim their right over the suit land. As per the claim of the defendants the entry in record of rights in the year 1961 was made, interalia, on the basis of Prajali Patta dated 20.03.1954 (Ext. A) and also possession. As stated above, the D.W-3 has clearly admitted in paragraph 7 of his cross examination that it was correct to say that after death of Balbhadra Mandal, his widow and two sons (the original plaintiffs) remained in possession by way of inheritance. In view of the aforesaid findings, the findings of the learned Trial Court that the right of Balbhadra Mandal , the predecessor in interest of the plaintiffs , extinguished

¶271

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upon his death as he was holding a Chrakan (service tenure) is perverse and it cannot be sustained in the eyes of law. The judgement relied upon by the respondents Ladu Munda @ Ludu Munda and Anr. V. State of Bihar and Others reported in 2004(1) JCR 458 (Jhr.) is clearly distinguishable . In the said judgment in a writ petition challenging the order of the Deputy Commissioner in connection with restoration of land under Chota Nagpur Tenancy Act , 1908 , the father of the writ petitioners was in possession of the land in question without any rent (belagan) and he was given the land in lieu of services rendered by him and in the khatiyan the land was given in recognition of the services rendered i.e. ‘Naukarana’. It was held that the word ‘ Naukarana’ land cannot be termed to be possession of a raiyat, it merely suggested permissive possession and such possession of a servant cannot be allowed to be substituted and cannot be allowed to take a shape of a raiyati land. It was held that all that was meant is that ‘Naukar’ was given possession of the land for a certain period of time without taking any rent from him and that is why even in the Khatiyan the word Belagan was used. The father of the petitioners had left the services of the land lord Babu Hari Har Singh in the year 1940 thereafter the ex-land lord was in possession as a bakast land and thereafter in the year 1942, the land was settled by registered Kabuliyat in favour of the respondent no. 4 of the said case and father of the petitioners had expired in the year 1942 without any issue. All this happened prior to vesting under Bihar Land Reforms Act, 1950. In the aforesaid background it was held that it was evident that the land lord being in possession at the time of vesting, permissive possession could have been allowed to be converted into raiyati right and therefore this court held that provisions of Chota Nagpur Tenancy Act seeking restoration of land could not be applied to the facts and circumstances of the case.

¶274

45. This Court is of the considered view that the said judgment of Ladu Munda(supra) does not apply to the facts and circumstances of

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the present case in view of a clear finding recorded therein that prior to vesting of land under the Bihar Land Reforms Act,1950, the father of the writ petitioners had left the services of the ex-land lord in the year 1940 and the ex-landlord came in possession of the property as his Bakast land and in the year 1942 the land was settled by Registered Kabuliyat in favour of respondent no. 4. In the present case, Balbhadra Mandal (the Chakran) was alive on the date of vesting of princely state of Seraikella and upon his death his wife and children came in possession of the suit property and acquired the status of raiyat as discussed above in view of the judgement of Ganga Halkhore (supra). Thus, the sole judgement relied upon by the respondents Ladu Munda (supra) and also by the learned Trial Court does not help the respondents.

¶278

46. The learned Trial Court has recorded a finding that the suit land was recorded in the name of the defendants and since 1954 to 2012 it was never challenged by the plaintiffs or their predecessor in interest and the plea of the plaintiffs regarding lack of knowledge of record of rights is not tenable in the eyes of law. Such finding is perverse. This court finds that the it was nobody’s case that the name of defendants were recorded in the record of rights since 1954, rather the defendants have claimed title over the suit land on the basis of un-registered Prajali Patta of the year 1954 and the name of ancestors of the defendants appeared in the year 1961 in the record of rights. Thus, finding of the learned court that the land was recorded in the name of the defendants since 1954 is perverse. Neither there is any such material nor it was the case of the defendants that their name in the record of rights was entered in the year 1954 nor there is any material to support such finding.

¶279

47. The learned Trial Court also recorded that so far as right of inheritance of the plaintiffs is concerned, it was clear that the property was given by the father of the plaintiffs by the then King of Seraikella in lieu of service and after the death of their father (Balbhandra

¶280

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Mandal) they did not render service to the king and thereafter the learned Court referred to the judgment passed by this Court in the case of Lalu Munda (supra) and observed that it has been held by the court that the land given by King of Seraikella to his servants in lieu of service and such possession is permissive possession and cannot be termed as possession of Raiyat. Thereafter the learned Court held that the suit was barred by limitation as the plaintiffs did not challenge entry in the record of rights in the year 1961 for a period of 12 years. Such findings are also erroneous as the consequence of merger of princely state of Sareikella with the State of Bihar and vesting under Bihar Land Reforms Act, 1950 and the chakran Balbhadra Mandal died after vesting and possession was continued by the successors and that the king had no right to settle or endorse and transfer by unregistered Prajali Patta, executed way back on 20.03.1954 by the widow and minor sons of chakran Balbhadra Mandal in favour of the ancestors of the of the defendant no. 1 to 8 and to the predecessor in interest of the defendants.

¶283

48. In the judgement passed by full bench of Patna High Court (Ranchi Bench) reported in AIR 1987 Pat 167 (FB) [Paritosh Maity versus Ghasiram Maity] it has been held that a civil suit for declaration of title and confirmation of possession and, interalia, challenging the entries in the revenue record would still be maintainable even after the insertion of clause (ee) in section 87(1), Chota Nagpur Tenancy Act, 1908.

¶284

49. So far as possession is concerned, the witnesses of the plaintiffs have fully supported the case of the plaintiffs and the finding of the learned trial court with respect to possession is primarily based on presumption of correctness of entry in the record of rights in the year 1961 and issuance of rent receipt. The presumption with regards to correctness of the entry in record of rights in the survey record of 1961 with regards to possession stood rebutted as the very basis of such entry as asserted by the defendants was the unregistered Prajali

¶285

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Patta, executed way back on 20.03.1954 which was admittedly neither followed by issuance of any rent receipt by the king of princely state of Seraikella nor by the state of Bihar. The D.W- 3 (defendant no.1) claimed in his evidence that rent receipt was issued by the king but has not produced any such rent receipt. No rent receipt could have been issued by the king as the princely state of Seraikella had merged with the state of Bihar in the year 1949 and Bihar Land Reforms Act had come into force on 25th September, 1950. Issuance of 1^st rent receipt in the year 1993 is of no consequence as the same is neither preceded by any order of assessment of rent under Bihar Land Reforms Act, 1950 nor preceded by an order of mutation and is based on entry in record of rights in the year 1961 which in turn is based on unregistered Prajali Patta, executed way back on 20.03.1954. The unregistered Prajali Patta, executed way back on 20.03.1954 is inadmissible and also illegal which confers no right, title, interest and possession over the property to the predecessor in interest of the defendant no.1 to 8. The findings of the Learned Trial Court on possession are perverse, as the unregistered Prajali Patta, executed way back on 20.03. 1954 was not followed by any rent receipt by the king of princely state of Seraikella or by the state and the earliest rent receipts as exhibited are rent receipts (Ext. A/1 to A/3) of year 1993, 1996 and 2011. Learned Trial Court failed to notice the evidence of defence witnesses particularly D.W- 3 (defendant no.1) who has admitted the continued possession of the plaintiffs by way of inheritance after death of Chakran Balbhadra Mandal during his cross-examination and there is nothing on record to show that original defendant no. 1 to 8 or their predecessors in interest came in possession of the suit property pursuant to unregistered Prajali Patta dated 20.03.1954. Further the learned Trial Court also failed to notice that defendant no.1 to 8 had not filed their written statement though defendant no. 1 deposed as D.W-3. Further, entry in the record of rights in the year 1961 was stated to be on the basis of unregistered

¶288

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Prajali Patta dated 20.03.1954 which is of no consequence as the same is inadmissible in evidence and also that the right of the king to settle land was already lost much prior to 20.03.1954. It is also important to note that it is not the case of the defendants that after death of Chakran Balbhadra Mandal the suit property was resumed taken over by the king or was surrendered by the widow and children of Chakran Balbhadra Mandal to the king so as to settle the same with any other person. Rather, the case of the defendants is that after death of Chakran Balbhadra Mandal the widow and children of Chakran Balbhadra Mandal had no right, title and interest over the suit property and on the other hand the defendants claim that the widow and children of Chakran Balbhadra Mandal executed unregistered Prajali Patta, on 20.03. 1954 with the consent of the then king but there is no evidence that the widow and children of Chakran Balbhadra Mandal also handed over possession to the predecessor in interest of the defendant no. 1 to 8 pursuant to unregistered Prajali Patta dated 20.03.1954.

¶291

50. In the judgement reported in (1976) 2 SCC 152 (supra) dealing with Bihar Land Reforms Act, 1950 and the meaning of possession and khas possession held that the possession correctly understood means effective, physical control or occupation and khas possession means actual cultivator possession. It has also been held that the possession of a trespasser, by no stretch of imagination, can be deemed to khas possession or even constructive possession of the owner. There is nothing on record to show as to how Bhimsen Mandal and Kailash Mandal came in possession of the suit property and certainly, they cannot claim right, title and possession on the basis of aforesaid unregistered Prajali Patta dated 20.03.1954 (Ext. A) as on 20.03.1954 neither the king had the Authority to settle the land through Prajali Patta nor such unregistered Prajali Patta was followed by issuance of any rent receipt issued either by the King or by the State and the entry in record of rights in the year 1961 was made, inter

¶292

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alia, on the basis of unregistered Prajali Patta dated 20.03.1954 (Ext. A). In such circumstances, Prajali Patta cannot be relied upon by the defendants even to claim possession of the property. Further, the plaintiffs are not even claiming recover of possession of the suit property, they are claiming on confirmation of possession. The defendant no.1 has been examined as D.W-3 and he has stated in para 6 that entry in survey record of rights in 1961 was made, interalia, on the basis of Prajali Patta dated 20.03.1954 (Ext. A). Since, the Prajali Patta dated 20.03.1954 (Ext. A) has been held to have no value in the eyes of law, any entry made in the survey record of rights in the year 1961 cannot be sustained in the eyes of law. The entry in record of rights in the year 1961, which only has a presumption of correctness when it comes to possession , having been made primarily on the basis of Prajali Patta dated 20.03.1954 (Ext. A), is an erroneous entry and cannot be sustained in the eyes of law. It is important to note that the earliest rent receipt brought on record by the defendants is of the year 1993. No other document has been brought on record by the defendants showing possession from the date of execution of unregistered document so called Prajali Patta dated 20.03.1954 (Ext. A) or even in the year 1961. The finding of the learned Trial Court that the predecessor in interest of the original defendant no. 1 to 8 were in possession of suit land since 1954 or were in possession even since 1961 is perverse and cannot be sustained in law.

¶295

51. This court ultimately finds that the unregistered Prajali Patta dated 20th March, 1954 (Ext. A) executed by the widow of chakran Balbhandra mandal namely, Taru Mandalain, on behalf of herself and minor sons in favour of predecessors of defendants, which bears signature of king, Raja Aditya Pratap Singhdeo of princely state of Seraikella has no sanctity in law and on the basis of same the original defendant no. 1 to 8 or their successors can not claim any right, title , interest and possession over the suit property.

¶296

The summary of the aforesaid findings are as under:-

¶297

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a. the unregistered Prajali Patta dated 20th March, 1954 (Ext. A) executed by the widow Taru Mandalain, on behalf of herself and minor sons in favour of predecessors of defendants, which bears signature of Raja Aditya Pratap Singhdeo of Seraikella has no sanctity in law and on the basis of same no right, whatsoever accrued in favour of the defendants;

¶300

b. Raja Aditya Pratap Singhdeo of Seraikella had no authority to approve Prajali Patta dated 20th March, 1954 (Ext. A), after merger with the state of Bihar and after enactment of Bihar Land Reforms Act (enacted on 25th September, 1950) right from the date of vesting;

¶301

c. Balbhadra Mandal and after his death Taru Mandalain and her minor sons acquired status of Raiyat, by virtue of proviso and explanation contained in 6(1)(c) of Bihar Land Reforms Act, 1950;

¶302

d. the plaintiffs are entitled to protection contained in section 77 of Chota Nagpur Tenancy Act,1908 as made applicable with modification, by virtue of Seraikella Kharsawan (Laws) Act, 1951, whereby "Service Tenure" has been saved.

¶303

e. Revisional Survey Entry in Records of Right in the name of Bhimsen Mandal and Kailash Mandal in the year 1961 on the basis of Prajali Patta (Ext.A) are erroneous and wrong and cannot divest right, title, interest and possession of the plaintiffs;

¶304

f. Unregistered Prajali Patta dated 20.03.1954 (Ext. A) having not been followed by issuance of rent receipt, either by the king or by the state of Jharkhand, has no evidentiary value either for title or for possession as claimed by the defendants.

¶305

g. Unregistered prajali patta dated 20/03/1954 was not followed by any rent receipt either by the ex- land lord

¶306

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or by the state and the rent receipts (Ext. A/1 to A/3) of year 1993, 1996 and 2011 do not show continuity of possession since 1954 though, the defendants claim right , title and possession of suit land by virtue of unregistered Prajali Patta, executed way back on 20.03. 1954. The findings of the Learned Trial Court on possession of the defendants since 1954 is perverse.

¶309

h. Finding of the Learned Trial Court on possession is perverse, as it failed to notice that Balbhadra Mandal (chakran- holding service land ) died after vesting and acquired the status of raiyat under Bihar Land Reforms Act, 1950 as explained above and such right devolved upon his descendants (plaintiffs) who continued to be in possession as raiyat.

¶310

52. In view of the aforesaid findings, it is held that the plaintiffs have valid right, title, interest and possession over the suit land and the entry in revisional survey record of right of the year 1961 in respect of suit land is wrong and erroneous. The point of determination no. (A) and (B) are accordingly decided in favour of the appellants and against the respondents.

¶311

Point of determination no.(C) - no challenge to the registered sale deed no. 6833 dated 12.11.2011

¶312

53. From perusal of the entire records of the case, this Court finds that it was the case of the concerned defendants who filed their written statement that the Defendant No.9 had purchased a portion of the suit property through registered sale deed no. 6833 dated 12.11.2011 and that the defendant no 9 was in possession of such property but neither the sale deed has been exhibited nor any evidence regarding mutation or possession in his favour has been adduced by the defendants nor the defendant no.9 has deposed as a witness before the court and in fact the learned trial court has also not recorded any finding with respect to Sale Deed No. 6833 dated 12.11.2011. In absence of Sale Deed No. 6833 dated 12.11.2011 , the sale of the portion of the suit property

¶313

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itself is not proved and it cannot be ascertained as to who had sold the property to whom and which property was sold. Thus, the defendants have not proved through cogent evidence about the sale of the portion of the suit property to the defendant no.9 and therefore the plaintiffs having not challenged the Sale Deed No. 6833 dated 12.11.2011 has no bearing in this case. Accordingly, point of determination no. (C) is decided in favour of the plaintiffs (appellants) and against the defendants.

¶316

Point of determination no. (D) - limitation

¶317

54. The learned Trial Court has framed the issue of limitation under Issue No.3 and has considered the same recording that presently the suit land is recorded in the name of the defendants and since 1954 to 2012, it was never challenged by the plaintiffs or their predecessors and on that ground, the plea of the plaintiffs regarding lack of knowledge of record-of-rights was rejected. This court finds that it was never the case of either parties that the name of predecessors of the plaintiffs was entered in the record of rights in the year 1954, rather the specific case of both the parties was that it was entered in the year 1961 in R.S. Survey record of rights and the plaintiffs denied knowledge of such entry till 12.11.2011. As per the plaint of Title Suit No. 31/2012, the plaintiffs have claimed that the cause of action for the suit arose on 12.11.2011 at Village- Bhurkuli, P.S.- Seraikella, when the defendant nos. 1 to 3, 5 and 6 threatened that since the suit land has been recorded in the name of their father, they will sell away the same. It was also asserted that the plaintiffs were merely boys of tender age and had no knowledge of any survey settlement. The Plaintiff No.1 Akhil Mandal has examined himself as PW-3 and he has specifically stated at Para-9 and 10 of cross examination that the plaintiffs had no knowledge about the wrong entry of the disputed land in the name of Bhimsen Mandal and Kailash Mandal during the survey settlement and that they came to know about the wrong entry on 12.11.2011,

¶318

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when the defendants forcibly started measurement of the land through Amin.

¶321

55. It has been held by the Hon'ble Supreme Court in judgment reported in (2010) 2 SCC 194 (Daya Singh -Vs-Gurudeo Singh) that mere adverse entry in the revenue records cannot give rise to a cause of action until there is an accrual of right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right . In Daya Singh (supra) the question involved was relating to the question of limitation and the only question decided was whether the mere existence of an adverse entry in the revenue records had given rise to the cause of action as contemplated under Article 58 or had it accrued when the right was infringed or threatened to be infringed. Part III of the Schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. Reference was made to numerous decisions. In AIR 1930 PC 270 the Privy Council observed as follows:

¶322

“… There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.”

¶323

A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa [AIR 1961 SC 808] in which this Court observed:

¶324

“ 7 . … The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.”

¶325

It was observed by the Hon’ble Supreme Court that in C. Mohammad Yunus [AIR 1961 SC 808] that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is

¶326

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infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue records cannot give rise to cause of action. In the said case it was held that mere existence of a wrong entry in the revenue records does not, in law, give rise to a cause of action within the meaning of Article 58 of the Act. The finding on facts dealing with the cause of action is quoted as under:-

¶329

“16. Keeping these principles in mind, let us consider the admitted facts of the case. In Para 16 of the plaint, it has been clearly averred that the right to sue accrued when such right was infringed by the defendants about a week back when the plaintiffs had for the first time come to know about the wrong entries in the record-of-rights and when the defendants had refused to admit the claim of the plaintiffs. Admittedly, the suit was filed on 21-8-1990. According to the averments made by the plaintiffs in their plaint, as noted hereinabove, if this statement is accepted, the question of holding that the suit was barred by limitation could not arise at all. Accordingly, we are of the view that the right to sue accrued when a clear and unequivocal threat to infringe that right by the defendants when they refused to admit the claim of the appellants i.e. only seven days before filing of the suit. Therefore, we are of the view that within three years from the date of infringement as noted in Para 16 of the plaint, the suit was filed. Therefore, the suit which was filed for declaration on 21-8-1990, in our view, cannot be held to be barred by limitation.”

¶330

56. In the light of the aforesaid judgement Daya Singh (supra) , this Court is of the considered view that the cause of action for the suit would arise from the date of knowledge of the plaintiffs that the suit land was recorded in the name of the father of defendant nos. 1 to 3, 5 and 6 and the defendant nos. 1 to 3, 5 and 6 were trying to sell away the same, and such date is 12.11.2011 as claimed by the plaintiffs in the plaint and substantiated through oral evidence. It is important to note that even the defendants claimed that a portion of the suit land was sold vide sale deed dated 12.11.2011 though no such deed has been exhibited. No

¶331

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cogent and reliable evidence has been adduced by the defendants to show that the plaintiffs had prior knowledge of the entry in the record of rights.

¶334

57. This Court finds that the learned trial Court, while considering the point of limitation, has recorded that the suit was filed after 50 years of the final publication of record-of-rights made in the year 1961 and no petition was filed by the plaintiffs for correcting the entry made in record-of-rights and on that basis the learned Trial Court held that the suit was hopelessly barred by limitation, waiver, estoppel and acquiescence while deciding issue nos. 3, 5 and 6 against the plaintiffs and in faovur of the defendants. This Court is of the considered view that the learned trial Court has completely ignored the specific case of the plaintiffs supported by evidence of the plaintiffs and also well proved that they had no knowledge about the entry made in the record-of-rights in R.S. Survey of 1961 and they came to know about it for the first time only on 12.11.2011 as stated above.

¶335

58. Thus, on appreciation of the materials on record this court finds that the cause of action to file the suit raising grievance of wrong entry in the record of rights arose on 12.11.2011 when the defendants came for measurement and the plaintiffs came to know for the first time about the wrong entry in the survey record of rights.

¶336

59. This court is of the considered view that the suit was well within the period of limitation, as contained in Article 58 of the Limitation Act and finding in this regard by the Learned Trial Court is perverse.

¶337

60. Consequently, the point of determination no. (D) is also decided in favour of the plaintiffs (appellants) and against the defendants.

¶338

61. Having decided all the point of determination in favour of the appellants (plaintiffs) and against the defendants, the impugned judgement and decree is set-aside and the suit is decreed by holding right, title, interest and possession of the plaintiffs over the suit

¶339

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property and the defendants are restrained from disturbing the possession of the plaintiffs.

¶342

62. Pending interlocutory application, if any, is dismissed as not pressed.

¶343

63. This appeal is allowed.

¶344

64. Let this judgement be communicated to the court concerned through FAX/e-mail.