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2006 DIGILAW 973 (PAT)

Muneshwar Singh v. Most Girija Devi @ Jogiya Devi

2006-10-31

SYED MD.MAHFOOZ ALAM

body2006
Judgment Syed Md.Mahfooz Alam, J. 1. This Second Appeal has been preferred against the judgment and decree passed by Sri S.S. Das, learned District Judge, Siwan, on 29th April, 1988, in Title Appeal No. 125 of 1986 reversing the judgment and decree passed on 20th September, 1986, by Sri Arun Prabhat, learned IInd Additional Munsif, Siwan, in Title Suit No. 243 of 1966/48 of 1986, whereby the learned Munsif had dismissed the suit of the plaintiff-respondent. 2. The case of the plaintiff-respondent, in brief, is that one Bhanwar Bind had two sons, namely, Goga Bind and Dhondha Bind. Nand Lal, Palatu and Dashrath Bind were sons of Goga Bind. Palatu Bind and Dashrath Bind died issueless. Nand Lal Bind had a son, namely, Rajpati Bind. His name was recorded in the record of rights (Khatiyan). Another son of Bhanwar Bind, namely, Dhondha Bind had two sons, namely, Sakti Bind and Ugram Bind. Ugram Bind died issueless. Sakti Bind had three sons, namely, Jokhan Bind, Tokhan Bind and Mangaru Bind. Jokhan Bind died before revisional survey. Managru had a son, namely, Girdhari Bind, who settled in Assam prior to revisional survey having no connection in village Khulsa as such the entire properties left by Dhondha Bind were inherited by Tokhan Bind. Plaintiff is the son of Tokhan Bind. The two branches of Goga Bind and Dhondha Bind were separate since before the cadestral survey. This is also mentioned in the records of cadestral survey and revisional survey. From the genealogical table, as described above, it is clear that Rajpati Bind was the uncle of the plaintiff, who died shortly after revisional survey leaving no male or female issue and, so, the plaintiffs father being the sole heir of Rajpati Bind inherited the entire properties left by Rajpati. Thereafter, the father of the plaintiff also died leaving behind him the plaintiff as his sole heir and therefore the entire properties of the two branches came in possession of the plaintiff and since that time the plaintiff has been coming in possession of the properties in dispute. The plaintiff was exercising the acts of possession over the properties and planted orchard thereon but the defendants-appellants, who are the descendants of ex-landlord, started interfering with the possession of the plaintiff and, hence, necessity of filing of the suit arose. 3. The plaintiff was exercising the acts of possession over the properties and planted orchard thereon but the defendants-appellants, who are the descendants of ex-landlord, started interfering with the possession of the plaintiff and, hence, necessity of filing of the suit arose. 3. The case of the defendants-appellants, in brief, is that the suit as framed is not maintainable and the plaintiff has got no cause of action or right to sue. The genealogy, as appended in the plaint, is forged and fabricated and by doing so the plaintiff has tried to connect himself with the family of Goga Bind. The defendants have asserted that Bhanwar Bind had only one son, namely, Goga Bind and Dhondha, Bind had no connection with Bhanwar Bind. They were not from one family which fact finds support from Khatiyan which was prepared separately. Rajpati Bind was not related to the plaintiff. He died issueless about 2-3 years after the revisional survey and his properties were taken in possession by the ancestors of the defendants as they were the landlords and since then the lands of Rajpati Bind were coming in possession of the ancestors of the defendants. Subsequently they settled homestead lands of Rajpati to another tenant. The plaintiff never came in possession of the properties of Rajpati Bind. It is also incorrect that after the death of Tokhan Bind the plaintiff came in possession of the properties left by Tokhan Bind. S.P. No. 1575, 625, 1992 appertaining to Khata No. 223 and S.P. No. 1750/2559 appertaining to Khata No. 224 were recorded in Khatiyan in the name of Tokhan Bind but as S.P. Nos. 1575 and 1992 were strile lands and, so, Tokhan Bind surrendered those lands and retained only S.P. No. 625 after getting the rent reduced. Plaintiff is in possession of only S.P. No. 625 after the death of Tokhan Bind. S.P. No. 1750/2559 was the Batai land of Tokhan Bind. The said land was flood affected land and, so, after some time of revisional survey Tokhan Bind surrendered that land and since then the defendants and their ancestors have been coming in possession of the entire S.P. No. 1750/2559. Adjacent south to this land is S.P. No. 1750 of the defendants and the defendants have amalgamated this land with his own land which are in cultivating possession of the defendants. Adjacent south to this land is S.P. No. 1750 of the defendants and the defendants have amalgamated this land with his own land which are in cultivating possession of the defendants. In the east of S.P. No. 1992, S.P. No. 1986 is situated which belongs to the defendants. Both the plots were amalgamated by the defendants. Further case of the defendants is that adjacent to Plot No. 1575 is Plot No. 1574 of the defendants over which there is a pond and the ancestors of the defendants after taking possession of Plot No. 1575 amalgamated some portion of Plot No. 1575 comprising an area of 1 katha 14 dhurs with the pond and the remaining portion of Plot No. 1575 remained in cultivating possession of the ancestors of the defendants. Further case is that after the death of Rajpati Bind the ancestors of the defendants took possession of the lands of Khata No. 236 Plot No. 1092 belonging to Rajpati Bind and thereafter they settled the lands of Plot No. 1092 with Ramdhin Gond, who constructed house over the same and at present his son Ram Briksh Gond and others are residing. Regarding Plot No. 1067 of Tokhan Bind it has been stated that the defendants exchanged the said plot from 18 dhurs of his Plot No. 1147 and after exchange the defendants constructed their Lavatory over the said plot and Tokhan Bind constructed his house over plot 1147. Further case of the defendants is that to the west of Khesra No. 1387 there is Khesra No. 1388 which was acquired by the ancestor of the defendants through Badlain from one Brahmdeo Singh and thereafter Babu Jugal Singh, the ancestor of the defendants, amalgamated both the Khesra and then converted it into orchard. Further case of the defendants is that it is incorrect that the plaintiff or his ancestor used to pay the rent of the suit property except of plot No. 625 and it is also not correct that the ancestors of the defendants who were landlords with respect to the suit property were in the habit of not granting rent receipts to the tenants and the fact is that in the year 1959-60 and 1961-62 Babu Jugal Singh got the rent of the lands of Khata Nos. 228, 223 and 224 determined in his name but thereafter the plaintiff tried to get his name mutated with respect to the suit land but on raising objection, he failed in his attempt. However, there is possibility that the plaintiff might have obtained some rent receipts after bringing the Gram Sewak in his collusion; but the plaintiff cannot take advantage of those receipts. Further case is that the defendants and their ancestors have been coming in possession of the suit land and they have acquired title by way of adverse possession. 4. From perusal of the judgment of the trial court it appears that before the trial court as many as ten issues were framed for consideration on the basis of the pleadings of both the parties. The issues were as follows : 1. Is the suit as framed maintainable ? 2. Has the plaintiff got any cause of action for the suit ? 3. Is the suit barred by law of limitation ? 4. Have the defendants perfected their title by adverse possession over S.P. Nos. 1575, 1750/2559, 1387 and 2462 ? 5. Is the story of surrender and relinquishment of some of the suit plots by Tokhan Bind in favour of ex-landlord, correct ? 6. Is the genealogy showing Goga Bind; as the son of Bhanwar Bind, correct ? 7. Has the plaintiff got title over the suit lands ? 8. Is the plaintiff in possession of the suit lands or is he entitled for recovery of possession of the suit lands ? 9. Is the plaintiff entitled to the decree as claimed ? 10. To what relief or reliefs, if any, is the plaintiff entitled ? 5. From perusal of the judgment of the trial court it appears that the trial court has discussed issues Nos. 3, 4, 5, 6, 7 and 8 together and came to the conclusion that the plaintiff has failed to prove that Goga Bind and Dhondha Bind were full brothers and so, the plaintiff failed to prove that he has got any concern with the property of Rajpati Bind i.e. plot Nos. 1387 and 2462. The trial court has further held that the defendants have proved by their evidence that the suit lands standing in the name of Tokhan Bind were surrendered by the ancestor of the plaintiff and the defendants are in possession of the same since then. 1387 and 2462. The trial court has further held that the defendants have proved by their evidence that the suit lands standing in the name of Tokhan Bind were surrendered by the ancestor of the plaintiff and the defendants are in possession of the same since then. The trial court has further held that the defendants are in possession of the suit land for more than 12 years and by way of adverse possession, the defendants have perfected their title and so, the suit is barred by law of limitation. It appears that on the basis of the above findings, the trial court dismissed the suit of the plaintiff. Against the said judgment of the trial court, the plaintiff preferred appeal which was numbered as Title Appeal 125 of 1986. The said appeal was finally heard by Sri S.S. Das, the then District Judge, Siwan who delivered his judgment on 19th April, 1988 and reversed the findings of the trial court and decreed the suit of the plaintiff. Against the said judgment of reversal, this second appeal has been filed. 6. From perusal of the record of this second appeal it appears that on 16.11.1992 at the time of admission of this appeal, altogether three substantial questions of law were framed to be considered in this case but during argument it was pointed that the substantial questions of law, as framed, are really the substantial questions of facts and as such, the substantial questions of law as formulated on 16.11.1992 were recast and following substantial questions of law were formulated on 3.3.2006 for consideration in this appeal : (1) Whether the judgment of the first appellate court is perverse and vitiated as the court has not considered the material evidence - oral and documentary evidence particularly of the plaintiff (P.W.11) and P.W.12 on the point of Register II filed on behalf of the plaintiff ? (2) Whether the suit was filed within the period of limitation particularly under Article III of Schedule III of B.T. Act and that whether the plaintiffs have established their possession within 12 years of the filing of the suit ? (2) Whether the suit was filed within the period of limitation particularly under Article III of Schedule III of B.T. Act and that whether the plaintiffs have established their possession within 12 years of the filing of the suit ? Substantial Question of Law No. I 7 It has been argued by the learned Advocate of the respondents that under Sec. 100 of the Code of Civil Procedure, (hereinafter called as "C.P.C"), the second appeal cannot be entertained unless the court is satisfied that some substantial questions of law are involved in the case. He further submitted that this Court is not empowered to reverse the judgment of the first appellate court which is the final court of fact after re-appreciation of the evidence of the parties as the same is not permissible u/s. 100 of the C.P.C. The learned Advocate of the respondents has further submitted that even if this Court is of the opinion that another view is also possible on re-appreciation of the evidence of the parties, the same is also not permissible unless this Court comes to the conclusion that the finding of the first appellate court is perverse i.e. based on no evidence. In support of his argument, learned Advocate of the respondents has relied upon the following decisions : (1) - ; (2) - ; (3) 2002 (2) PLJR 250 ; (4) - ; and (5) 1988 (2) All PLR 425. 8. It appears that in all the decisions referred above, the scope of sec. 100 of the Code of Civil Procedure and jurisdiction of this Court in deciding the second appeal have been discussed and there appears similarity in the views of the Judges that in second appeal this Court is not empowered to interfere with the findings of the first appellate court unless this Court comes to the conclusion that the findings of the first appellate court are perverse i.e. based on incorrect appreciation of the evidence of the parties. I would like to quote some paragraphs from the decision reported in - and aragraphs 24, 25 and 26 of the decision reported in (Thiagarajan and Ors. appellants V/s. Sri Venugopalaswamy B. Koil and Ors., respondents) are quoted below : 24. I would like to quote some paragraphs from the decision reported in - and aragraphs 24, 25 and 26 of the decision reported in (Thiagarajan and Ors. appellants V/s. Sri Venugopalaswamy B. Koil and Ors., respondents) are quoted below : 24. In the present case, the lower appellate Court fairly appreciated the evidence and arrived at a conclusion that the appellants suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate Court was based on no material. 25. To say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intentment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible. 26. We, therefore, hold that the High Court has exceeded its jurisdiction in interfering with the findings of the final Court of fact. 9. In the case of Kondiba Dagadu Kadam V/s. Savitribai Sopan Gujar and Ors. ,the following observations have been made by the Apex Court which is relevant in this case : The right of appeal is neither a natural or an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in (sic) section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The Second Appeal can not be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous can not be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact. 10. The Second Appeal can not be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous can not be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact. 10. Thus, from the decisions cited above it is clear that this Court while exercising its power u/s. 100 of the Code of Civil Procedure, court is not empowered to take a different view from that of lower appellate court if the lower appellate court had fairly appreciated the evidence available on record and it cannot be said that the view was based on no material. In other words, if the lower appellate court has not properly and fairly appreciated the evidence of the parties or the view of the lower appellate court is perverse, i.e. based on no material then this Court is legally entitled to interfere with the findings of the lower appellate court. Reliance can be placed upon in the decision of the Apex Court given in the case of Manicka Poosali (D) and Ors. V/s. Anjalai Ammal and Ors. 2005 (2) BBCJ-IV 421. Para-17 of the decision is relevant in the case which is as follows : This judgment was followed by this Court in Civil Appeal No. 2292 of 1999 (Govindaraju V/s. Mariamman -. In Govindarajus case (supra) it has been held that the High Court while exercising its powers under Section 100 of the Code of Civil Procedure on reappreciation of the evidence cannot set aside the findings of the fact recorded by the first appellate court unless the High Court comes to the conclusion that the findings recorded by the first appellate court were perverse i.e. based on misreading of evidence or based on no evidence. 11. Thus, from the decisions cited above, it is apparent that this Court can interfere with the findings of the first appellate court only when it is found that the finding of the first appellate court which is the final court of fact is perverse and when there exists some substantial question of law, therefore, in the following paragraphs I would like to see - whether the findings of the first appellate court are perverse. 12. 12. In the suit there are some admitted facts which are as follows : According to the plaint, Rajpati Bind and Tokhan Bind were the recorded tenants of the suit land. According to the plaintiff, plaintiff Sheodeni Bind being the son of Tokhan Bind and nephew of Rajpati Bind, who died issueless, inherited the suit property and came in possession thereof but as per the evidence of the plaintiff, who has been examined as P.W.11 in this case, for the last 4 years he is not in possession of the suit land (vide para-13 of his deposition). Another admitted fact is that the name of the plaintiff does not stand recorded and he is not paying rent of the suit land rather the names of the defendants stand recorded with respect to the suit land and the defendants are paying the rent of the suit land (vide para-24 of the deposition of P.W.11). It is also admitted fact that the ancestors of the defendants were the landlord of the suit land and at the time of vesting of Zaminidari they did not mention the name of the plaintiff showing raiyat on the suit land in jamabandi (vide para-10 of the deposition of P.W.11). Thus, from the averments made by the plaintiff in the plaint as well as from his deposition, the facts which emerge are as follows: (i) Although the plaintiff claimed that he inherited the property left by Rajpati Bind and Tokhan Bind, his ancestors, but admittedly on the date of his evidence, he was not in possession of the suit land and according to his statement, about four years back from the date of recording of his evidence, he was dispossessed by the defendants from the suit land. (ii) At the time of vesting of Zaminidari, the ancestors of the defendants, who were landlords of the suit land, did not file jamabandi return showing the plaintiff as raiyat over the suit land. It appears from perusal of the judgment of the first appellate court that the first appellate court ignored these two important points and without considering this fact that when the ex-landlord had not filed jamabandi return showing raiyat with respect to the suit land then how the name of the plaintiff was shown in Register II (Exts. 2, 2/A, 2/B, and 2/C) with respect to the suit land. 2, 2/A, 2/B, and 2/C) with respect to the suit land. I am of the view that the learned first appellate court has been misled by certain entries in Exts. 2, 2/A, 2/B and 2/C. I have gone through the entries of Exts. 2, 2/A, 2/B and 2/C from which it appears that for certain period the plaintiff had paid the rent of the suit land regarding which entry has been made in register II but these exhibits do not indicate that on the basis of jamabandi return filed by the ex-landlord, Register II was prepared in the name of the plaintiff with respect to the suit land. Since it has been admitted by the plaintiff in the plaint that the ancestors of the defendants who were ex-landlords did not file jamabandi in the name of the plaintiff with respect to the suit land, as such it cannot be held that on the basis of filing of the jamabandi by the ex-landlord, Register II was opened in the name of the plaintiff with respect to the suit land. Since Ext.2 series are doubtful piece of evidence, as such no reliance can be placed upon the rent receipts filed by the plaintiffs (Ext.1 series) in support of the fact that he was paying rent of the suit property to the State of Bihar. 13. It is the specific case of the plaintiff in the plaint that he has been coming in possession of the suit property since the time of his ancestor. However, in his evidence he has admitted this fact that during the pendency of the suit, he was dispossessed by the defendants and this dispossession took place about four years ago since the date of recording of his evidence in court, but it appears that the plaintiff has not sought any amendment in the plaint regarding his dispossession from the suit land during the pendency of suit. Let me see - whether the statement of the plaintiff (P.W.11) that about 4 years ago he was dispossessed from the suit land is believable. At para-23 of his deposition, plaintiff Sheodeni Bind (P.W.11) has categorically stated that about four years back he was dispossessed from the suit property by the defendants. Let me see - whether the statement of the plaintiff (P.W.11) that about 4 years ago he was dispossessed from the suit land is believable. At para-23 of his deposition, plaintiff Sheodeni Bind (P.W.11) has categorically stated that about four years back he was dispossessed from the suit property by the defendants. At para-87 of his cross-examination, he has deposed that at present the suit lands are in possession of all the three defendants and they are cultivating the disputed land for the last four years. At para-88 of his deposition, he has deposed that the defendants had dispossessed him from all the lands in one day. At para-89 he has deposed that about 4 years ago he had gone over the land comprising 15 kathas for the purpose of fishing but he was driven away by the defendants. At para-90 he has deposed that as he was driven away by the defendants and was not allowed to fish in the pond, he became afraid and since that date he never went to the disputed plot. The above statement of the plaintiff establishes beyond doubt that his possession over the suit land was imaginary and not real one. His conduct shows that he was never in possession of the suit land and that is why he neither gave any resistance to the defendants nor he went to any authority for taking help so that he might not be dispossessed from the suit land. Thus, paragraphs 87, 88, 89 and 90 of the deposition of the plaintiff establish beyond doubt that the plaintiff was never in possession of the suit land. This goes to establish that the finding of the first appellate court that before dispossession the plaintiff was in possession of the suit land, is not correct and is not based on sound reasoning and material available on record. 14. Let me see - whether there is sufficient material on record to come to the conclusion that the defendants have been coming in possession of the suit land. According to the case of the defendants, it is not disputed that the suit property belonged to Rajpati Bind and Tokhan Bind. According to the written statement of the defendants, Rajpati Bind died issueless about 2-3 years after the revisional survey and his properties were taken in possession by the ancestors of the defendants, who were ex-landlord. According to the case of the defendants, it is not disputed that the suit property belonged to Rajpati Bind and Tokhan Bind. According to the written statement of the defendants, Rajpati Bind died issueless about 2-3 years after the revisional survey and his properties were taken in possession by the ancestors of the defendants, who were ex-landlord. Regarding Plot No. 1575 and plot 1992 of Khata No. 223 and Plot No. 1750/2559 of khata No. 224 it is said that they were recorded in the name of Tokhan Bind but Tokhan Bind surrendered the lands to the ex-landlord who were plaintiffs ancestors. They took possession of those lands. According to the written statement as well as the evidence of the defendants, the ancestors of the defendants amalgamated the suit plots with their own plots after surrender. There is specific case of the defendants that adjacent south of plot 1750, portion of Plot No. 1750 belonging to the defendants lies and the defendants have amalgamated both the plots which are in their cultivating possession. It is also specific case of the defendants that in the east of plot 1992, S.P.No. 1986 of the defendants lies and the defendants have amalgamated both the plots. There is further case of the defendants that adjacent to Plot No. 1575, Plot No. 1574 of the defendants lies and Plot No. 1574 is a pond. It is their case that after surrender of Plot No. 1575 by the recorded tenant the defendants ancestors amalgamated 1 katha 14 dhurs of the said plot with the pond standing on Plot No. 1574. Then there is case that after surrender of Plot No. 1167 the defendants amalgamated the lands of the said plot with their homestead land, surrounded it with boundary and constructed latrine over a portion of the said land. There is further case of the defendants that in lieu of lands of Plot No. 1167, the ancestors of the defendants gave 18 dhurs of Khesra No. 1947 to Tokhan Bind on which Tokhan Bind constructed his house and presently, the house of the plaintiff is standing over the said plot. It is also the case of the defendants that towards west of Plot No. 1387, Plot No. 1388 of the defendants lies and the ancestors of the defendants amalgamated both plots and thereafter grew orchard over the same which has been coming in possession of the defendants. It is also the case of the defendants that towards west of Plot No. 1387, Plot No. 1388 of the defendants lies and the ancestors of the defendants amalgamated both plots and thereafter grew orchard over the same which has been coming in possession of the defendants. The above case of the defendants is fully established from the evidence of the Pleader Commissioner (P.W.20) as well as his report (Ext.D). From perusal of the report of the Pleader Commissioner it appears that on 13.5.1976 he had made local inspection as per the writ issued by the Court of Ist Additional Munsif, Siwan and on inspection he had found the following features on the spot. (i) There was no common Bandar (ridge) in between plot 2559 and 1750 and both the plots were found amalgamated at the spot. (ii) There was no common ditch in between Plot No. 1992 and 1986 and both the plots were found amalgamated in one block and were found ploughed together. (iii) Adjacent to Plot No. 1574 there was a Pokhara which was full of water. The western portion of Plot No. 1575 to the extent of 115 links N/S x 50 links East/West was lying fallow and contiguous east to it was the existing Bhinda to the extent of 115 links N/S x 35 links E/W and the extreme eastern portion of Plot No. 1575 to the extent of 115 links N/S x 5 links E/W in the southern side and 15 links in the northern side was found under the Pokhara. (iv) The residential house of the defendants was found standing over Plot No. 1166. The said plot was found amalgamated along with Plot No. 1167 over which the latrine of the defendants was standing. The latrine was found covering an area of 40 links east to west x 20 links north to south, out of which 15 links was found over Plot No. 1167. The said plot was also found compounded by brick wall along with Plot No. 1166 of the defendants. (v) Plot Nos. 1387 and 1388 were found amalgamated over which orchard was found. (vi) Newly constructed house of the plaintiff was found standing over Plot No. 1147 15. The said plot was also found compounded by brick wall along with Plot No. 1166 of the defendants. (v) Plot Nos. 1387 and 1388 were found amalgamated over which orchard was found. (vi) Newly constructed house of the plaintiff was found standing over Plot No. 1147 15. Thus, from the evidence of the Pleader Commissioner (P.W.20) as well as his report (Ext.D), the case of the defendants that they have been coming in possession of the suit land stands well proved. There is absolutely no reason to disbelieve the report of the Pleader Commissioner which was prepared after scientific measurement of the suit land and only on the basis of the statement of the plaintiff (P.W.11) that about four years back he was dispossessed by the defendants, this unimpeachable evidence regarding possession of the defendants over the suit land cannot be disbelieved. I am, therefore, of the view that the learned first appellate court has failed to properly appreciate the evidence of both the parties with respect to the possession over the suit land. 16. With regard to the title of the suit land, I find that the case of the plaintiff is that he had inherited the suit land from his father as well as his uncle Rajpati Bind who was issueless. The defendants have disputed the claim of the plaintiff that the plaintiff was in any manner related to Rajpati Bind but I do not feel any necessity to find out as to whether the finding of the trial court was correct in this regard or of the first appellate court because of the fact that the specific case of the defendants is that after the death of Rajpati Bind, their ancestors who were landlords of the suit property took possession of the entire suit property standing in the name of Rajpati Bind. If the defendants succeed in proving that after the death of Rajpati Bind the ancestors of the defendants had taken possession of the property standing in the name of Rajpati Bind then in that case no question arises as to whether the plaintiff is the aganate of Rajpati Bind or not or whether he inherited the property left by Rajpati Bind. I am of the view that the defendants by way of oral as well as documentary evidence have succeeded in proving that after the death of Rajpati, their ancestors had taken possession of the property belonging to Rajpati Bind and they are in possession of the said property. Regarding the property left by Tokhan Bind, the father of the plaintiff, it is the case of the defendants that the said Tokhan Bind had surrendered the lands belonging to him long ago and since thereafter the ancestors of the defendants were in possession of the suit land. This case of the defendants also stands well proved from the oral as well as documentary also evidence available on record. 17. Admittedly, the lands of four khatas are in dispute i.e. khata Nos. 223, 224, 228 and 236. Khata Nos. 223, 224 and 236 stand recorded in the name of Tokhan Bind whereas khata No. 228 stands recorded in the name of Rajpati Bind. It is the specific case of the defendants that after the death of Rajpati Bind who died issueless, his ancestors who were landlords of khata No. 228, took possession of the lands of khata No. 228 belonging to Rajpati Bind and made the lands as their Bakast land. Regarding khata Nos. 223, 224 and 236, there is specific case of the defendants that Tokhan Bind surrendered the lands of those khatas to the ancestors of the defendants who were landlords and since thereafter the ancestors of the defendants made the lands as Bakast land. In support of this averment, the defendants have brought on record several documentary evidence. Ext.B is jamabandi return submitted by ex-landlord Babu Jugal Prasad, the ancestor of the defendants which shows that the ex-landlord had submitted return with respect to the lands of khata Nos. 223, 224 and 228 showing the land as Bakast land. Plot Nos. 1992, 1575, 1387, 2462 and 2559 which are in dispute also find mentioned in the said document. Likewise, Ext.C which is also return submitted by Babu Jugal Prasad shows that in the said return also lands of khata Nos. 223, 224, 228 and 236 were shown as Bakast land of the ex-landlord. Plot Nos. 1992, 1575, 1387, 2462 and 2559 which are in dispute also find mentioned in the said document. Likewise, Ext.C which is also return submitted by Babu Jugal Prasad shows that in the said return also lands of khata Nos. 223, 224, 228 and 236 were shown as Bakast land of the ex-landlord. Admittedly, the ancestors of the defendants were the ex-landlord of the disputed khata and the lands of disputed khata could have become Bakast land of the ex-landlord only in case the lands were surrendered by the recorded tenants or the same were taken back by the ex-landlord. Thus, Exts. B and C conclusively prove that the lands of disputed khata were Bakast land of the ancestors of the defendants who were ex-landlord of the disputed khata and that is why they submitted jamabandi return with respect to the disputed khata showing the lands of the disputed khata as their Bakast land. These documents coupled with the report of the Pleader Commissioner (Ext.D) fully prove the story of surrender of the lands of the disputed khata by Tokhan Bind in favour of the ancestor of the defendants who were ex-landlord of those khatas. The above evidence also proves that after the death of Rajpati Bind, the plaintiff did not inherit his property rather all the properties left by Rajpati Bind were taken in possession by the ex-landlord. 18. It has been argued by the learned Advocate of the respondents that according to Sub-sec. (2) of sec. 86 of the Bihar Tenancy Act, it is mandatory for the raiyat to give notice to the landlord for surrender of his raiyati land but the defendants have not brought any such notice on record which can prove this fact that Tokhan Bind had really surrendered his raiyati lands to the ex-landlord. It appears that at paragraph 9 of its judgment, the first appellate court has also held that the defendants have neither pleaded nor produced any documentary evidence on record that the recorded tenants have given any notice to the ex-landlord for surrender of the lands. Likewise, the first appellate court has also held that as per the provision of sec. 87(2) of the B.T. Act, the defendants have failed to prove that they had given any notice to the Collector in the prescribed form for entering into the lands of Rajpati Bind. Likewise, the first appellate court has also held that as per the provision of sec. 87(2) of the B.T. Act, the defendants have failed to prove that they had given any notice to the Collector in the prescribed form for entering into the lands of Rajpati Bind. I think that this argument of the learned Advocate of the respondents as well as the view of the learned first appellate court in this regard is misconceived as the present suit is not between the recorded tenants and the landlord and as such, both the provisions of the Bihar Tenancy Act are not applicable in the suit. 19. Thus, on the basis of the discussions made above, I have come to the conclusion that the judgment of the first appellate court is perverse as the court has not considered the material evidence both - oral and documentary on record and failed to properly scrutinise the evidence of the plaintiff (P.W.11) as well as the entry of Register II which has been brought on record on behalf of the plaintiff and accordingly, this substantial question of law is decided. Substantial Question of Law No. II 20. It appears that this substantial question of law has been wrongly framed as provision of B.T. Act does not apply for deciding the question of limitation. Under the circumstances, I do not feel any necessity to give any finding on this substantial question of law which appears to be wrongly framed and which is not at all relevant with the facts and the points involved in the suit. 21. In the result, I find merit in this second appeal and accordingly, this appeal is hereby allowed. The judgment and decree passed by the first appellate, court on 29.4.1988 in Title Appeal No. 125 of 1986 are set aside and the judgment and decree of the learned 2nd Additional Munsif, Siwan dated 20.9.1986 passed in Title Suit No. 243 of 1966/48 of 1986 are restored and upheld. Accordingly, the suit of the plaintiff-respondent is hereby dismissed. However, there will be no order as to costs.