JUDGMENT V. Nath, J. – Heard the parties. 2. This second appeal has been filed by the plaintiffs against the judgment and decree of affirmance, assailing the judgment and decree dated 31.01.2002 passed in T.S.No.21/91 by District Judge, Gopalganj affirming the judgment and decree dated 30.03.1991 passed by Munsif, Gopalganj in T.S. No. 234/1996. 3. The plaintiffs filed the suit for declaration of their title and possession and in the alternative for recovery of possession in respect to the suit land fully described in the schedule of the plaint. 4. Bereft of unnecessary details, the case of the plaintiffs is that the suit land originally belonged to Ram Lagan Mishra, Saral Mishra and Bujhawan Mishra in whose name the recent survey khatian has also been prepared. Bishundeo Mishra, S/o Ram Lagan Mishra, after the death of his father, had gifted his property to Lautan Mishra, the father of the plaintiffs and put him in possession. The descendants of Saral Mishra also sold their share in the suit property to the plaintiffs by executing sale deeds. It has been asserted by the plaintiff that in this way that the plaintiffs have acquired complete title over the suit property. It is the further case of the plaintiffs that the defendants who have no concern with the suit property have been staking their false claim over the same and interfering with the possession of the plaintiff which led to the filing of the suit with aforesaid reliefs: 5. The defendants resisted the claim of the plaintiff and have denied the execution of the gift deed by Bishundeo Mishra in favour of the plaintiffs and have also denied that the plaintiffs had come in possession on that basis over the suit land. The alienations of their shares by the descendants of Saral Mishra have also been denied and it has been asserted that the defendants have got title and possession over the suit land. It is the case of the defendants that the original title holders namely Ramgulam Mishra, Saral Mishra and Bujhawan Mishra had sold the suit land to Bansidhar Mishra, ancestor of the defendants, by Sada sale deed dated 15.05.1920 for consideration money of Rs. 95/- and put the purchaser in possession of the same. After the purchase the ancestor of the defendants amalgamated the suit land of plot no. 95/- and put the purchaser in possession of the same. After the purchase the ancestor of the defendants amalgamated the suit land of plot no. 668 with his adjacent land in plot no.667,669 and 670 and in this way the suit land in plot no. 668 had lost its separate identity. The defendants have also claimed to have acquired title by adverse possession over the suit land by remaining in possession over the same adversely to the knowledge of the plaintiff for several 12 years. 6. On the basis of the rival contentions of the parties, issues were framed in the suit which included the issue of validity of the gift deed and sale deeds of the plaintiffs as well as the purchase by the defendants on the basis of sada Bainama dated 15.05.1920. The trial court took notice of the fact that the plaintiffs had failed to produce either original or certified copy of the deed of gift claimed by them as basis for acquisition of the share of Ram Lagan Mishra in the suit land and had also failed to furnish satisfactory explanation for non-production of that document and thus had disbelieved the case of the plaintiffs on the basis of the gift deed. Further after considering the documentary and oral evidence as led by the parties the trial court also held that the plaintiffs had failed to prove the validity of the sale deeds which were the basis of their claim over the share of Saral Mishra in the suit land. In addition the trial court also came to the conclusion that the plaintiffs were not in possession over the suit land as claimed by them and in view of this finding the trial court declined to investigate the case of acquisition of title by adverse possession as claimed by the contesting defendants. The suit was dismissed in view of these findings. 7. The plaintiffs filed T.A. No. 21/91 against the aforesaid judgment and decree and the appellate court by judgment and decree dated 09.02.1993 allowed the appeal and reversed the judgment and decree under appeal. However, in S.A. No. 103/93 this Court by judgment and order dated 23.09.1994 set aside the judgment and decree of the lower appellate court and remanded the appeal back to the appellate court for disposal in accordance with law after hearing the parties afresh. 8. However, in S.A. No. 103/93 this Court by judgment and order dated 23.09.1994 set aside the judgment and decree of the lower appellate court and remanded the appeal back to the appellate court for disposal in accordance with law after hearing the parties afresh. 8. After the remand the appellate court heard the appeal afresh and by the impugned judgment and decree has dismissed the appeal and confirmed the judgment and decree of the trial court. Being aggrieved by the same the plaintiffs have filed the present second appeal. 9. This second appeal has been admitted for hearing by order dated 24.06.2003 by this Court and the following substantial questions of law have been framed at the time of admission of this appeal:- (i)whether the courts below committed error in discarding the documents of the plaintiffs on wrong presumption and assumption of law? (ii) whether the courts below committed error even if the gift deed is said to have been not proved by the plaintiffs, then also the plaintiff’s claim on other grounds cannot be discarded in toto? (iii)whether the courts below committed error in discarding the sale deeds in favour of the plaintiffs with reasons which are not legal and valid? (iv) any other substantial question of law that may be framed at the time of hearing of the appeal? 10. The learned counsel appearing on behalf of the appellants has submitted that the plaintiffs had filed a petition under Order 41 Rule 27 C.P.C. before the appellate court below producing the certified copy of the gift deed and prayed for taking the said document in evidence but by order dated 02.09.1996 the appellate court below wrongly rejected the petition and refused to take the certified copy of the deed of gift as evidence. It has been urged that the order refusing to take additional evidence is clearly erroneous and had been passed on wrong interpretation of the scope of Order 41 Rule 27 C.P.C. It has been contended that the plaintiffs could obtain the deed of gift only on 03.02.1996 and immediately thereafter they filed the petition for adducing the same in evidence. The learned counsel has further argued that this deed of gift was an essential document for coming to the just conclusion in the case and refusal to take the same in evidence by the appellate court has prejudiced the case of the plaintiffs. 11. The learned counsel has further argued that this deed of gift was an essential document for coming to the just conclusion in the case and refusal to take the same in evidence by the appellate court has prejudiced the case of the plaintiffs. 11. Rebutting this submission on behalf of the appellants, the learned senior counsel has firstly pointed out that the certified copy of the deed of gift had been produced before the court after much and undue delay and that too at the stage after the remand of the matter back by this Court in second appeal. It has been further pointed out by referring to the impugned judgment that it has been the consistent case of the plaintiffs, as disclosed from his deposition, that he was in possession of the deed of gift earlier but got knowledge of the fact that it had been misplaced before he made his deposition in the suit and further thereafter he had taken the plea that the copy of the same in the registry office had also been destroyed by white ants. As such it is the contention of the learned counsel that production of the certified copy of the gift deed at such a belated stage is clearly an afterthought and exercise of due diligence on the part of the plaintiffs is explicitly lacking. The learned counsel has also contended that against the order dated 02.09.1996 rejecting their prayer under Order 41 Rule 27 C.P.C. the plaintiffs filed C.R. No. 2137/96 before this Court but the same, after hearing the parties, was dismissed by order dated 11.01.99 of this Court and on this basis it has been urged that the validity of the order dated 02.09.96 now cannot be reopened and challenged in this appeal. Referring to the memo of appeal, it has been submitted that the appellants have not taken the invalidity of the order dated 02.09.96 as one of their grounds for assailing the impugned judgment and decree and even at the stage of admission itself this issue does not appear to have been pressed. 12. Referring to the memo of appeal, it has been submitted that the appellants have not taken the invalidity of the order dated 02.09.96 as one of their grounds for assailing the impugned judgment and decree and even at the stage of admission itself this issue does not appear to have been pressed. 12. From the impugned judgments and decree of both the courts below it is manifest that the plaintiffs have based their title over the property of the share of Ram Lagan Mishra on the basis of the deed of gift dated 07.03.1949 said to have been executed by Bishundeo Mishra, S/o Ram Lagan Mishra in favour of the father of the plaintiffs but the said gift deed either in original or by way of certified copy have not been brought on record. During the course of his deposition the plaintiff no.1 examined as P.W.7 has made the statement that the certified copy of the deed could not be obtained as it has been destroyed by white ants. After the dismissal of the suit the plaintiffs preferred appeal but in the appellate court also no attempt was made to bring the gift deed on record. It is only after the remand of the appeal before the appellate court for hearing afresh by the High Court in second appeal, the plaintiffs filed the petition under Order 41 Rule 27 C.P.C. for adducing the certified copy of the gift deed as additional evidence. By order dated 02.09.96 the appellate court rejected the prayer for the plaintiffs for adducing additional evidence and thereafter the Civil Revision No. 2137/96 was filed before this Court by the plaintiffs but the same had also been dismissed by order dated 14.05.1999. In these circumstances the plaintiffs in this second appeal cannot be allowed to assail the order dated 02.09.96 passed by the appellate court below rejecting their prayer under Order 41 Rule 27 C.P.C. and renew their prayer for adducing the certified copy of the gift deed by way of additional evidence. Once having challenged the order unsuccessfully in revisional jurisdiction before this Court, the same order will not be open to attack in subsequent appeal before this Court. Once having challenged the order unsuccessfully in revisional jurisdiction before this Court, the same order will not be open to attack in subsequent appeal before this Court. It has not been submitted on behalf of the plaintiffs that any liberty had been granted to them by this while dismissing their revision application, to assail the order under revision in appeal and as such the plaintiffs also cannot be allowed to take aid of Section 105 of the Code of Civil Procedure. This aspect of law has been fully considered by a Bench of this Court in Sita Sah Vs. Ram Jatan Prasad(1998(3)PLJR 227) where their Lordships have held as follows:- “…As a result of the merger, the orders that remained are the orders of the High Court which may be challenged under Section 105 of the Code of Civil Procedure before a superior court by way of appeal. So far as this Court is concerned, the orders passed earlier in exercise of revisional jurisdiction cannot be assailed in appeal filed against final decree passed in the suit because this Court cannot entertain an appeal against its own order passed in revisional jurisdiction… 13. Further the plaintiffs as appellants in this appeal have also not raised any ground in the memo of appeal questioning the validity of the order dated 02.09.1996. In similar circumstances, the observations of the Apex Court in Soni Dineshbahi Manilal Vs. Jagjivan Mulchand Chokshi(2008(3)PLJR SC 337) may be apt to be referred: “…It may be true that any order passed can be questioned in the grounds taken in the appeal against the final orders, but such interlocutory orders are required to be challenged. Nothing has been shown before us that such interlocutory orders and particularly those which are referred to hereinbefore had specifically been challenged in the memorandum of appeal… If a revision has been filed which is a part of the appellate jurisdiction, although stricto sensu , doctrine of merger may not apply but Section 105 of the Code of Civil Procedure also would not apply in such cases. Each of those orders attained finality…” 14. In view of the aforesaid facts and the principles of law the plaintiff- appellants cannot be allowed to question the validity of the order dated 02.09.96 passed by the appellate court below rejecting their prayer to bring the certified copy of the gift deed dated 07.05.1949 as additional evidence. 15. Each of those orders attained finality…” 14. In view of the aforesaid facts and the principles of law the plaintiff- appellants cannot be allowed to question the validity of the order dated 02.09.96 passed by the appellate court below rejecting their prayer to bring the certified copy of the gift deed dated 07.05.1949 as additional evidence. 15. The next contention on behalf of the plaintiffs is that the sale deeds executed in their favour by the descendants of Saral Mishra have been wrongly discarded by the courts below. It has been submitted that those sale deeds are valid in all respects and execution of the same have been also proved by the scribes of those sale deeds who have been examined as witnesses in the suit. From the impugned judgments, it is apparent that the trial court has considered the sale deeds marked as Ext.2 series and has found that the executants (vendors) of those sale deeds have not been examined as witnesses and the mode of payment of consideration money as mentioned in those sale deeds and as disclosed by plaintiff no.1(P.W.7) is materially different. It has also found that the area mentioned in one sale deed is much more than the suit land and after appreciating the evidence adduced by the parties it has come to the conclusion that those transactions are not bona fide. The appellate court below also re-appraised the evidence in this regard and has concurred with the findings of the trial court. It is the submission on behalf of the appellant that P.W.4 and P.W.6 are the scribes of the sale deeds at Ext 2 series and they have been examined as witnesses and have supported the execution of those sale deeds and as such the courts below should have accepted that the execution of those sale deeds have been sufficiently proved. The reliance has also been placed upon a Bench decision of Madras High Court in Kamkshi Ammal Vs. Raja laxmi (AIR 1995 Madras 415) in support of the contention that the examination of scribe of the document would be sufficient for proving the document. Rebutting the aforesaid submission it has been urged on behalf of the respondent that P.W.4 and P.W.6 have nowhere stated that besides being scribes of the documents they had also put their signature on the same by way of attesting witness. Rebutting the aforesaid submission it has been urged on behalf of the respondent that P.W.4 and P.W.6 have nowhere stated that besides being scribes of the documents they had also put their signature on the same by way of attesting witness. By placing the portion of the depositions of both P.Ws. 4 and 5, where they have accepted that they have put their signature on the documents in the capacity of scribe, and further by placing the portion of the cross examination of P.W. 4 and 6 where they have stated they have no personal knowledge regarding the contents of the sale deeds, it has been submitted that those persons cannot be taken to be attesting witnesses of the sale deeds. In the decision of Kamakshi Ammal (supra) relied upon on behalf of the appellant their Lordships have held that the scribe of document can also be an attesting witness thereof if he has signed the document with required animus to attest. But in the present case in view of the acceptance by P.W. 4 & 6 that they have put their signature on the document as scribe and had no personal knowledge of the contents of the deed, the necessary animus to attest is clearly lacking. As such the scribes (P.W.4 & P.W.6) cannot be accepted as attesting witnesses of those documents. Besides, the learned counsel appearing on behalf of the respondents has also pointed out that in Ext.2 which is the sale deed executed by Taluk Raj Devi(one of the descendants of Saral Mishra) an area of 4 katha 11 dhur of plot no. 668 has been shown to have been sold and similarly in Ext.2B & 2C(the sale deeds executed by other descendants of Saral Mishra) the same area i.e. 4 katha 11 dhur of plot no. 668 has been mentioned as subject matter of sale whereas in Ext.2A, also the sale deed by one of the descendants of Saral Mishra, the area of plot no.668 which has been sold is 8 katha 10 dhur. From the perusal of the sale deeds at Ext.2 series also the above contention on behalf of the respondents appears to be correct. From the perusal of the sale deeds at Ext.2 series also the above contention on behalf of the respondents appears to be correct. There is no explanation on behalf of the appellant regarding the fact that when admittedly the total area of plot no.668, as apparent from Survey khatian (Ext.7/A) is 4 katha 11 dhur then how one of the descendants of a co-sharer who had only 1/3rd share in that plot could have validly sold the entire 4 katha 10 dhur. In view of these facts and circumstances there appears to be no perversity in the concurrent findings of both the courts below discarding the sale deeds at Ext. 2 series as suspicious and not bona fide transactions. 16. It is also the submission on behalf of the appellant that they are the descendants of Bujhawan Mishra one of the recorded Raiyats of plot no.668 and as such by inheritance they have got 1/3rd share in the suit property. In this regard the submission on behalf of the respondent is that no genealogical table has been given in the plaint and no such assertion of title on this basis has been made in the plaint and as such it has been rightly held by the courts below that they cannot make out a third case. From the perusal of the averments made in the plaint it is clear that the plaintiffs have not made specific assertion of their title on the basis of inheritance but nonetheless after relying upon the gift deed and the sale deeds in their favour by two other co-sharers the plaintiffs have asserted to have acquired title over the entire suit land. The defendants have, however, claimed to have acquired title over the suit land by purchase from the three admitted co-sharers itself by means of a sada sale deed dated 15.05.1920 for Rs. 95/- only and have claimed themselves to be in possession over the suit property since then. On the basis of evidence led by the parties as discussed in the impugned judgments, both the courts below have concurrently found that the defendants are in possession over the suit property and the plaintiffs have failed to establish their possession over the same. 95/- only and have claimed themselves to be in possession over the suit property since then. On the basis of evidence led by the parties as discussed in the impugned judgments, both the courts below have concurrently found that the defendants are in possession over the suit property and the plaintiffs have failed to establish their possession over the same. In view of the findings that the alienations made by the two other co-sharers of their shares in favour of the plaintiffs were not valid and in absence of the necessary pleading regarding the specification of the inherited shares of the plaintiffs in the suit land, it is difficult to grant the decree in favour of the plaintiffs with regard to only his share alone particularly when the defendants have been found to be in possession over the entire suit land. This becomes more difficult in view of the assertion by the defendant in the written statement that after the purchase in the year 1920 the suit plot no.668 had been amalgamated with other adjacent plots of the defendant and had lost its identity on the spot. Thus it is held that even after accepting the case of the plaintiffs having title in part of the suit land by inheritance, no relief can be granted to the plaintiffs, in absence of necessary and required pleadings and also in view of the nature of the reliefs sought in the plaint. 17. In view of the discussions and reasons mentioned above the substantial questions of law raised in this appeal are answered accordingly against the plaintiffs. Consequently, it is held that this appeal has no merit and it is, accordingly, dismissed. However, in the facts and circumstances of the case the parties shall bear their own cost.