JUDGMENT Prasun Kumar Deb, J. This appeal has been preferred by the above named defendants-appellants against the judgment and decree passed by Sri Loknath Prasad, the then 5th Additional Judicial Commissioner, Ranchi, in Title Appeal no.60/18 of 1977/1982, affirming the judgment and decree dated 23.2.1977 passed by Sri Mohan Krishna Verma, 5th Additional Subordinate Judge, Ranchi, in Title suit no. 15/18 of 1974/1975. 2. Respondent nos. 1 to 4 and respondent no.5, Bhatu Pahan, who is dead, instituted the above mentioned Title suit before the Sub-Judge, Ranchi, in respect of the lands of Khata nos. 211 and 212 of village Chhipra, P.S. Ratu, against the appellants and the other respondents in representative capacity under Order I rule VIII of the Civil Procedure Code. 3. It is the case of the plaintiffs-respondents that the post of Pahan is hereditary and not elective and this post is held by one of the members of Pahankhunt i.e. the plaintiffs and defendants no.10 and the defendants and other villagers have no right to disturb the peaceful possession of the plaintiffs and defendant no.10 in respect of the lands in suit. The prayer for permanent injunction was also there restraining the defendants from disturbing the possession of the plaintiffs and defendant no.1 and their family members who represent the Pahan khunt over the suit land. As per the plaintiffs, one Temba Pahan had three sons, namely, Marua Pahan, Karma Pahan and Leria Pahan. Marua Pahan had three sons, namely, Jitua Pahan, Deba Pahan and Ladhu Pahan. Plaintiff no.3 is the son of Jitu Pahan and plaintiff nos. 1 and 2 are the sons of Ladhu Pahan. The line of Karma Pahan became extinct and Leria Pahan had two sons, namely, Bhatu Pahan (Plaintiff no.5) and Pate Pahan (defendant no.10). Marua Pahan had three sons, namely, Jitua Pahan, Deba Pahan and Ladhu Pahan. Plaintiff no.3 is the son of Jitu Pahan and plaintiff nos. 1 and 2 are the sons of Ladhu Pahan. The line of Karma Pahan became extinct and Leria Pahan had two sons, namely, Bhatu Pahan (Plaintiff no.5) and Pate Pahan (defendant no.10). The pahania lands is the suit lands and the same remained in possession since time immemorial to the family members of Pahan khunt and the plaintiffs alongwith defendant no.10 had hereditary right over the land and the •post of Pahan was subject to change after three years or sometimes thereafter amongst the member of the Pahan khunt and when the plaintiffs and defendant no.10 belonged to Pahan khunt, they had got hereditary right over the suit lands only Pahan elected from amongst pahan khunt has the right to enjoy the properties in which other villagers can have no right, but the defendants were trying to create obstruction in the peaceful -enjoyment of the Pahan khunt belonging to the plaintiffs and hence the suit was filed. On earlier occasion, there was a proceeding under Section 145 Cr.P.C. in which the possession of the plaintiffs have been confirmed by the Executive Magistrate. There was also a criminal case against some persons for reaping away paddy from the Pahan lands. One of the plaintiffs filed a criminal case and the persons who had reaped Paddy had been convicted under Sections 379 and 380 of the Indian Penal Code. 4. The suit was contested by the defendant nos. 1 to 9. It was admitted in the written statement that the land in suit is a Pahanai land meant for the use and occupation of the Pahan who discharged the duties of village priest and do Bhut puja on behalf of the aboriginal community, but the post of Pahan is always subject to change triennially i.e. after three years by the process of "Soop Chalan" winnowing box and whoever is elected as Pahan by the said method has only right to do the duty of Pahan and to cultivate and use the usufruct of Pahanai lands for the purpose of doing Bhut Puja for the betterment of the community. According to the defendants, any member of Mundari Uraon community can be elected as Pahan. According to the defendants, any member of Mundari Uraon community can be elected as Pahan. According to the defendants, the defendant no.1, Bandhana Munda, who is appellant no.1 in this appeal, was elected as Pahan and he was in possession of Pahan lands and the plaintiff is, practically, creating trouble in the village and wants to make the office of Pahan hereditary. 5. In the court below following issues were framed : (i) Has the plaintiff any cause of action for the suit? (ii) Is the suit maintainable? (iii) Is the post of Pahan in village Chippra hereditary amongst the members of Pahan khunt and do the plaintiffs and defendant no. 10 belong to Pahan khunt? (iv) Is the defendant no.1 holding the post of Pahan of that village and is he in possession of the suit properties? (v) Are the plaintiffs entitled to a decree as claimed for? (vi) Are the plaintiffs entitled to any other relief? 6. In the court below while deciding the above issues after considering the evidence on record, held that the Pahanai lands are hereditary and the plaintiffs are entitled to possess/enjoy the lands as being of the Pahan khunt and, as such, the suit was decreed against the defendants. In the appeal, being filed by the present appellants, the judgment of the lower court was confirmed by independent scrutiny of the evidence on record and on the admission being made from the side of the witnesses of the defendants that as per village custom, a person of Pahanai khunt may be elected as Pahan, but such election is confined to the Pahan khunt and not spread over amongst the whole community in the village and in that sense, it was held by the learned First Appellate Court that although the Pahanship is not hereditary but the same is elective from amongst the Pahanai khunt and the defendant no.1 being the outsider can never be elected as Pahan and hence the suit decreed by the learned court below was confirmed, although not on hereditary basis but on elective basis of Pahanai lands but amongst the Pahanai khunt alone. 7. 7. While admitting this Second Appeal, following question of law was framed: "Whether a property said to be heritable can be attached to an office and inherited by the persons so elected; and whether by proving that the last holder of the property held it by custom in this regard shall be deemed to have been proved." In my view, the above point formulated for the purpose of admitting the Second Appeal is suffering from lack of clarity and it must have been in the form as follows : "Whether the Pahanai land can beheld by the family members of the Pahan khunt as hereditary as per hereditary custom or the same can be said to be attached to the office of Pahan who is elected triennially amongst the whole village community." 8. The following positions and theories as raised in the suit are admitted: (i) That the genealogy given from the side of the plaintifs is admitted by the defendants. (ii) That the plaintiffs alongwith the defendant no.10 belonged to the Pahan khunt. (iii) That the post of Pahan is elective and not hereditary one, but the dispute is whether such election is confined to the Pahan community alone or it is open amongst the whole Mundari Oraon community in the village. (iv) That the election is made as per the procedure of Soop Chalan/winnowing box. 9. The arguments placed before me by the learned counsel for both the parties is that the learned Sub-Judge committed error of law in holding that the Pahanai lands are hereditary and, as such, the plaintiffs alongwith defendant no.10 are entitled to enjoy the usufruct of the lands in question. But according to Mr. S.K. Laik, appearing for and on behalf of the defendants-appellants, learned first Appellate Court although held that the post of Pahan is not hereditary in the village Chhipra and the same is elective one, yet he committed error of law when he held that the same election is confined to the Pahanai family alone rather it was open to the whole Mundari Oraon community in the village. On the other hand, Mr. B.K.Dubey, appearing for and on behalf of the respondents by referring to the Survey Report of Mr. On the other hand, Mr. B.K.Dubey, appearing for and on behalf of the respondents by referring to the Survey Report of Mr. Taylor and the observations made by Rai Bahadur Sarat Chandra Roy, who is considered to be an authority on the customs and heritages which prevailed amongst the tribals in Chotanagpur area, submitted that the post of Pahan although elective one, the same is confined to the Pahanai khunt and not open to the whole community in the village. 10. In such sort of suits, the records of rights prepared play a very vital role which may give hinges or inferences as to customs prevailing. The admitted position in the present case is that the Pahans are the persons in the tribal villages who performs Bhut Puja and offer sacrifice for the betterment and religious sanctity of the village community and these Pahans are being allotted with some lands which are being possessed and enjoyed by the Pahan and usufruct of the same are being utilised for the purpose of the religious performances and such lands are being bestowed by the village community to the Pahan. 11. In the survey report of 1927-1935 in the Chota Nagpur area (mainly Ranchi), Mr. Taylor observed that Bhuinhari lands have got different categories and those are being categorised in the Bhuinhari survey long back. The Bhuinhari lands are classified in the following manners :- (i) Bhuinhari, the cultivation of the original clearers of the village. (ii) Bhuinhari Mahatoi, the official cultivation of the mahto. (iii) Bhuinhari mundai, the official cultivation of the village munda. (iv) Bhuinhari Pahanai, the official cultivation of the pahan or village priest. (v) Bhuinhari panbhara, lands given for the service of carrying water at the village sacrifices. (vi) Bhuinhari Dulikatari lands the income of which (vii) Bhuinhari bhutkheta is devoted to religious purpose in village” 12. In the present case, we are concerned with the no.(iv) category of the Bhuinhari Pahanai holdings. Bhuinhari records of right were prepared, as is revealed, from the survey report prepared by Mr. Taylor. It was observed by Mr. Taylor in his report in the following terms : "Bhuinhari Pahanai lands :- The Bhuinhari pahanai lands are the holdings of the pahan or religious head of the village who is responsible for its spiritual welfare in just the same way as the munda, where he still exists, is for its temporal relations. Taylor. It was observed by Mr. Taylor in his report in the following terms : "Bhuinhari Pahanai lands :- The Bhuinhari pahanai lands are the holdings of the pahan or religious head of the village who is responsible for its spiritual welfare in just the same way as the munda, where he still exists, is for its temporal relations. The pahan, like the munda, is the servant of the village community as a whole. In areas mainly occupied by mundaris the pahanship is held for life and is hereditary; in the areas mainly occupied by Oraons and other non-Mundari aboriginals the Pahan is elected at regular periods (almost invariably every three years) from amongst the members of the Pahan khunt in the village by the whole village community. The method of election to the pahanship varies. Near about Ranchi itself the commonest method is to blind fold a boy from the village and place a winnowing fan full of chaff in his hands. On his shaking this the chaff floats away on the wind and the first member of the Pahan khunt into whose house the chaff is blown becomes Pahan. In other areas, for instance, near Lohardaga and in Barwe, a method called the pai renga or pai goti system is followed. A number of gourds, each inscribed with the name of a candidate for the Pahanship, are set up on the ground. Selected persons then throw stones at these gourds and that person is elected Pahan whose gourd is first knocked over." 13. Thus, it appears from the survey report of Mr. Taylor that pahanai lands except in the villages occupied by Mundaris being hereditary, the same is being transferred to Pahans whenever one is elected by the process of Soop Chalan or winnowing box and process of such election has been described in details in the report. Entry in Bhuinhari pahanai lands in the records has been explained in the following manner by Mr. Taylor:- "Entry of Bhuinhari pahanai lands have been entered in the records in the present settlement in the same way as the Bhuinhari lands described above. Entry in Bhuinhari pahanai lands in the records has been explained in the following manner by Mr. Taylor:- "Entry of Bhuinhari pahanai lands have been entered in the records in the present settlement in the same way as the Bhuinhari lands described above. They are also subject to the same restrictions as regards transfer and entires of transfers have been made in the present settlement records in the same way as for Bhuinhari lands; except that since there must always be a Pahan, Pahanai lands can never lose their status and pass into the 'landlords' hands. Where Pahanai lands were actually found in the possession of the landlord or of any other persons settled therein by him, that possession were merely entered, with a note that it was forcible, in the remarks column of the Pahan's own khata. Pahanai lands can not be sold in any auction sale for arrears of rent, as they are service lands and the Pahan is entitled to remain in possession as long as he performs the service." (All these extracts of Taylor's report are taken from the book called "Manual of Chotanagpur Tenancy land" of Rajpal & Co.) 14. Thus, it appears from the above report that Bhuinhari pahanai lands were being recorded in Bhuinhari survey records and the devolution of the property are also being mentioned in the remarks column. In the present case, as it appears from the records and the observations made by the learned First Appellate Court, that C.S. Khewat no.10 was recorded in the name of Temba Pahan and from this C.S. Khewat no. 9/1,9/2 etc. have been carved out and in the remarks column, it was mentioned specifically that the pahanai lands are grant given to Pahan for Bhut puja for welfare of aboriginals community of the village and Pahans are subject to change, but it remains confined within Pahan khunt meaning thereby that the Pahans are changed from time to time, but only the members of pahan khunt are eligible to hold this office as per the custom of the village. So, from such entry in the khewat, it supports the case of the plaintiffs-respondents that the lands belonged to the pahan khunt and the same is being changed from pahan to pahan as and when such elections are being made but the same would remain within the pahan khunt alone. So, from such entry in the khewat, it supports the case of the plaintiffs-respondents that the lands belonged to the pahan khunt and the same is being changed from pahan to pahan as and when such elections are being made but the same would remain within the pahan khunt alone. Thus, although the plaintiffs originally claimed that the pahanai lands were hereditary but it could be found that it was not hereditary but it depends upon the election of pahan, but the pahan should be elected from within Pahan khunt. From the evidence of P.W.9, D.W.4, D.W.6 and D.W.10, it could be established that the plaintiffs and the defendant no.10 were from the Pahan khunt and defendant no.1 or the other defendants are not from the Pahan khunt. In that view of the matter, even if the Pahanship at village Chippra, where the suit land is situated, is held to be not hereditary and elective, then also the Pahanship elected from within the Pahan khunt i.e. from within the plaintiffs and defendant no.10, and such lands can be held by the Pahan khunt family alone and not by the outsiders. Moreover, the defendant no.1, although an aboriginal is not of the same community as that of the plaintiffs and so his election, as claimed by him, as Pahan has got no legal footing. 15. Mr. S.K. Laik, appearing for and on behalf of the defendants-appellants has referred to a judgment of this Court in Letters Patent Appeal No. 71 of 1930 wherein it was held that Pahan of a village has to be triennially elected as it is an office having elective character and the observations in that judgment is that "It is prima facie difficult to see how much a Pahan can have a hereditary right to the office". By referring to the observations made by Mr. Rai Bahadur Sarat Chandra Roy at page 9 of his book "Uraon Religion and Customs", 1928, it was held that the entry has been made against Pahanai lands indiscriminately in respect of all villages in the Bhuinhari registers prepared under Bengal Act II of 1869. That well-known author suggests that the only justification for the entry is the fact that even in villages where the Pahanship is hereditary, election may become necessary when the family of Pahan becomes extinct or is converted to Christianity or some other religion such as Tanaism. That well-known author suggests that the only justification for the entry is the fact that even in villages where the Pahanship is hereditary, election may become necessary when the family of Pahan becomes extinct or is converted to Christianity or some other religion such as Tanaism. But Rai Bahadur Sarat Chandra Roy has not himself anywhere maintained that the Pahanship is generally hereditary. At page 112 of his book "On the Oraon of Chotanagpur, 1915", he says that "in most Oraon villages a Pahan is selected triennially by the magic sup or winnowing basket." By referring such observations in that judgment, Mr. Laik tried to impress upon this Court that Pahanai lands can not be hereditary as claimed by the plaintiffs and even if the same to be considered as elective, the same election should be spread over to the whole villagers and not within the Pahan khunt alone. But after considering the report of Mr. Taylor and the observations of Rai Bahadur Sarat Chandra Roy in his book "The Oraons of Chotanagpur" at page 69, wherein it was observed in the following manner : "Ordinarily the Pahan always belongs to the Pahan khunt but in a few villages owing to the Pahan khunt being very small, Bhuinhars of other Khunts, too, have been known to be elected Pahan but always by the supernatural method of Soop Chalan." I find in the present case, there is no evidence to the effect that the Pahan khunt at village Chippra had became extinct or that the family became very small or where there was no possibility of election of Pahan amongst the khunt itself. 15. From all these observations, we can come to the following conclusion : (i) that the post of Pahan is generally elective and in that view, Pahanai lands remain to be transferred to the next Pahan who is being elected triennially. (ii) that in some villages, on customs, Pahanship is hereditary. (iii) that when the Pahan khunt becomes extinct or developed to other religion, then and then only, it remains to the other aboriginals in the village to elect a Pahan. 16. (ii) that in some villages, on customs, Pahanship is hereditary. (iii) that when the Pahan khunt becomes extinct or developed to other religion, then and then only, it remains to the other aboriginals in the village to elect a Pahan. 16. Although, in the present case, the plaintiffs claimed the lands being Pahanai lands as hereditary, but in course of evidence, it was contended that although the land was Pahanai land, the same remained within the possession of the plaintiffs as Pahanship was always being elected in between the khunt itself. There is no evidence to the effect that because of the reasons of extinction of the Pahan khunt being too small or the Pahan khunt had devolved in any other religion, the Pahanship became open to elect amongst other aboriginal in the village community. In that view of the matter, defendant no.1 i.e. appellant no.1 could not legally be elected as Pahan at village Chipra. Moreover, in the judgment in the Letters Patent Appeal, it was observed by the Division Bench specifically that entries in registers prepared under the Chota Nagpur Tenures Act, 1869, regarding Pahanai lands are conclusive of all matters recorded therein regarding nature of tenure, appointment or election of holders of Pahanai land and other things. I have already mentioned that in the present suit land, the records of rights clearly discloses that the land belonged to Pahan and the said Pahan is to be elected from within the Pahan khunt alone. So, there is no scope on the basis of that entry, which is conclusive proof as per the judgment itself to treat the defendant no. 1/appellant no.1 to be elected as Pahan who is amongst the other aboriginals in the village having the members of Pahan khunt. It is also clear from the evidence and other documents filed in the case that the land in question always remained in possession of the plaintiffs-khunt and in the earlier 145 Cr.P.C. proceeding, possession was declared in favour of the plaintiff and in a paddy cutting case filed by one of the plaintiffs, the accused persons have been convicted which also conclusively proves in support of the entry in the Pahanai registers that the land remained in possession and enjoyment of the Pahan khunt i.e. the plaintiffs and defendant no.10 from whom Pahans are being elected time to time. 17. 17. Thus, I find that the learned First Appellate Court had rightly decided the case by confirming the judgment of the original court although on different reasonings. The plaintiffs are entitled alongwith the defendant no.10 to retain the land within their khunt but it must be made clear that they should elect Pahan in the village triennially from amongst the khunt so that there remains no scope to challenge the character of the nature of the land in question in furture. 18. The Second Appeal is, thus, rejected having no force in it, but considering the facts and circumstances of the case, no cost is awarded to either of the parties.