JUDGMENT By Court - Heard Shri V. Shivnath, Sr. Advocate, assisted by Mr. Arvind Kumar Choudhary, Ms. Ranjana Mukherjee, Advocates, on behalf of the appellants and Shri V.K. Prasad, S.C. (L & C), assisted by Mr. Rajni Kant, J.C., on behalf of the Respondent- State. 2. The instant Second Appeal arises out of judgment and decree dated 03.02.2009 and 11.02.2009 respectively passed by 1st Addl. District Judge, Deoghar in Title Appeal No. 35 of 2006 reversing the judgment and decree dated 22.06.2006 and 05.07.2006 respectively passed by SubJudge II, Deoghar, in Title Suit No. 17 of 1990/40 of 1992. 3. The Second Appeal was admitted on 08.08.2011 on the following two substantial questions of law: Whether the lower appellate court has committed serious errors of law in reversing the finding of trial court on Issue No. 5 without discussing the evidences, only on the basis of assumption and conjecture? Whether the order of escheat passed by the Deputy Commissioner, Deoghar is wholly without jurisdiction? 4. The plaintiffs-appellants, Nageshwar Prasad Sultania and Binod Kumar Sultania preferred the title suit for declaration that Kalpana Basu died intestate and issueless, the suit property devolved upon the heirs of her husband who were vendors of the plaintiffs and that the suit property never vested in the State and cannot be declared to be escheated in the State. 5. Facts of the case in brief are as follows : One Shashi Bhushan Basu made an absolute gift of the entire land and house known as “Basu Lodge” to his wife Sarla Sundari Basu by registered Deed of Gift dated 27.03.1930 which was accepted by her and, thus, became the absolute owner. She got her name mutated in the office of the Landlord of Kunda Estate. Subsequent thereto, Sarla Sundari Basu continued to be in possession of suit property and died sometimes in the year 1954. On her death, the property came in possession of Subodh Chandra Basu by virtue of a registered 'Will' dated 13.10.1955 and was given exclusive possession. Name of Subodh Chandra Basu was duly mutated in the office of the Circle Officer, Deoghar, pursuant to an order dated 16.10.1955 passed in Mutation Case No. 1 of 195455 and accordingly name was entered into Register II being the Tenant's Ledger. 6. Name of Subodh Chandra Basu was duly mutated in the office of the Circle Officer, Deoghar, pursuant to an order dated 16.10.1955 passed in Mutation Case No. 1 of 195455 and accordingly name was entered into Register II being the Tenant's Ledger. 6. Throughout his life, Subodh Chandra Basu continued to be in peaceful possession of suit property as absolute owner and died issueless on 27.10.1971 at VillageKunda, leaving behind Kalpana Basu as heir. She continued to be in possession till her lifetime as sole and absolute owner and name of Kalpana Basu was also mutated vide order dated 26.10.1972 in Mutation Case No. 212 of 197172 by the office of Circle Officer, Deoghar. Smt. Kalpana Basu was all along in peaceful possession of the suit property and her name was also recorded in Register II as its owner. 7. She payed rent for the period 198687. Kalpana Basu died issueless at VillageKunda in “Basu Lodge”. Upon her death, the suit property was inherited by heirs of her husbandSubodh Chandra Basu, namely, Anand Chandra Basu, Sudhir Chandra Basu and Suniti Chandra Basu as provided under Section 15(i)(b) of Hindu Succession Act, 1956. Submission is that the family was governed by the provisions of Hindu Succession Act, 1956. 8. The genealogy of the descendants of Shashi Bhushan is as under : Shashi Bhushan [Sarla Sundari Basu (Widow)] Sarat Anand Sudhir Suniti Subodh (Pre-deceased) (Def.9) =W-Rajani =Wife-Kalpana Basu (Def. 15) Nalini Ranjan Basu X (Pre-deceased) X Ashish Anju Manju (Def.16) (Def.17) (Def.18) Ranjit Indrajit Achintya Dulari Dipti (Def.10) (Def.11) (Def.12) (Def.13) (Def.14) 9. Aforesaid three brothers Anand Chandra Basu, Sudhir Chandra Basu and Suniti Chandra Basu became full and absolute owner of the suit property being brothers of late Subodh Chandra Basu and after the death of Kalpana Basu. 10. On the demise of Kalpana Basu, one Sheomaya Bhattacharjee of Bawanbigha informed about the death of Kalpana Basu. On receiving such information of the death of Kalpana Basu, Deoghar Police had visited the Basu Lodge and prepared an inventory on 31st July, 1986 of all the movable property left by Kalpana Basu at “Basu Lodge” in presence of the witnesses including Gardener Lakshman Mahto, who was an employee of Subodh Chandra Basu and his wife Kalpana Basu. After the death of Kalpana Basu, three heirs from Kolkata performed Shradh of Kalpana Basu who came from Kolkata to Pundag. After the death of Kalpana Basu, three heirs from Kolkata performed Shradh of Kalpana Basu who came from Kolkata to Pundag. They approached the local police and the police after being satisfied about the lawful owners of the suit property handed over the key of Basu Lodge to Sudhir Chandra Basu who along with others i.e. Anand Chandra Basu and Suniti Chandra Basu took peaceful possession of the suit premises. The eldest brother Anand Chandra Basu aged about 86 years fell ill. Suniti Chandra Basu was handicapped. The three brothers returned to Kolkata, when they were not able to look after and proper management of the suit property and, thus, decided to sell the same. 11. The plaintiffs approached them and offered highest price of the suit property. The plaintiffs on payment of full consideration amount, three Registered Sale Deeds were executed by the three brothers respectively. Sudhir Charndra Basu executed the Registered Deed vide Sale Deed No. 2700 of 1987 in respect of 1/3rd share. Anand Chandra Basu similarly sold his 1/3rd share to the plaintiff-Binod Chandra Sultania by registered Sale Deed No. 2791 of 1987 executed by him at Kolkata on 12.03.1987. Similarly, Suniti Chandra Basu sold his entire 1/3rd share in favour of Smt. Narwada Devi by registered Sale Deed No. 3061 of 1987 dated 20.03.1987. Sudhir Chandra Basu on his behalf and on behalf of other brothers informed the Deputy Commissioner, Deoghar about the aforesaid transfers in favour of the plaintiffs supported by an affidavit dated 05.04.1987 which was received in the office of the Deputy Commissioner, Deoghar, on the same day. The GardenerLakshman Mahto being defendant No. 7 was creating trouble. But, subsequently he had sworn an affidavit on 02.12.1986 admitting his status as a servant of Subodh Chandra Basu and his widow Kalpana Basu and also the ownership of Sudhir Chandra Basu and his two brothers. Subsequent to execution of the sale deeds, the plaintiffs came in possession of the entire Basu Lodge and a ceremony of Grih Pravesh was performed on 01.05.1987. At the time of Grih Pravesh, defendant No. 9Sudhir Chandra Basu also came to participate at the Grih Pravesh ceremony. Subsequent to execution of the sale deeds, the plaintiffs came in possession of the entire Basu Lodge and a ceremony of Grih Pravesh was performed on 01.05.1987. At the time of Grih Pravesh, defendant No. 9Sudhir Chandra Basu also came to participate at the Grih Pravesh ceremony. It was also stated that defendant No. 7Lakshman Mahto under the influence of land grabbers and in collusion with the police lodged a false case being Deoghar P.S. Case No. 79 of 1987 under Sections 147/148/109/342/454/389/323/366/ 320/41 of the Indian Penal Code and Sections 25A/26/27 of the Arms Act against the plaintiff Nos. 1 and 2 of Criminal trespass into Basu Lodge. The plaintiff No. 1 had also instituted Deoghar P.S. Case No. 74 of 1987 against defendant No. 7 and others for the theft of bamboos from Basu Lodge. 12. The Deputy Commissioner, Deoghar, passed an order on 24.09.1987 declaring the suit property to be escheated in Cr. Misc. No. 8 of 1987 registered in the court of Deputy Commissioner, on the assumption that Kalpana Basu died heirless. The plaintiffs aggrieved by the order passed by the Deputy Commissioner on 24.09.1987 moved Patna High Court in C.W.J.C. No. 4620 of 1987, but the same was permitted to be withdrawn on 27.11.1987 with a direction that the plaintiffs may seek appropriate relief before the Member, Board of Revenue under Section 8 of Regulation XIX of Case No. 18 of 2010. The High Court has further ordered for maintenance of status quo. 13. Learned counsel alleges that with a view to frustrate the aforesaid interim order, the Deputy Commissioner passed an antedated order dated 12.10.1987 allotting the suit property for the official residence of Civil Surgeon, Deoghar and consequent thereon, the Civil Surgeon, Deoghar has taken possession of the same. This was done at the instigation of defendant No. 6. The defendant No. 7 also instituted a civil suit claiming to be guardian of one minor Tappu Mahato (Tapan Kumar) who claims to have been adopted by Smt. Kalpana Basu, this was registered as Title Suit No. 60 of 1987. The Member, Board of Revenue, however, did not pass any order and the plaintiffs were advised to file another writ application bearing C.W.J.C. No. 3554 of 1989 against the order of dismissal by Board of Revenue. The Member, Board of Revenue, however, did not pass any order and the plaintiffs were advised to file another writ application bearing C.W.J.C. No. 3554 of 1989 against the order of dismissal by Board of Revenue. The High Court, however, did not interfere with the order of Member, Board of Revenue on the ground of taking a decision from the civil court, as the Writ Petition was not appropriate forum for deciding the disputed question of title and possession. The said order of High Court passed in C.W.J.C. No. 3554 of 1989(R) was challenged by the petitioner in Apex Court, but the same was also dismissed. 14. The plaintiffs thereafter, after serving notice under Section 80 C.P.C. on 06.11.1989 instituted the instant suit for the reliefs, as aforesaid. 15. The trial court framed a number of issues. The trial court decreed the suit holding that if female Hindu, who is a full owner of the property dies intestate and leaves behind any heir belonging to the category of either Section 15(1) or 15(2) of the Hindu Succession Act, the property cannot be escheated. The positive finding was recorded by the trial court that since the heirs such as brothers of late Subodh Chandra Basu, husband of Kalpana Basu, were alive and, therefore, property devolved by survivorship and could not be escheated with mere fact that time when Kalpana Basu died, there was no one living with her and present to perform her last rites. This by itself is not sufficient to hold that there are no heirs or survivors to the deceased. The State went up in appeal, vide Appeal No. 35 of 2006. The lower appellate court held that the property did not devolve upon Subodh Chandra Basu on the basis of the Will executed by Salra Sundari Basu in absence of probate and, therefore, Kalpana Basu has no claim whatsoever and, thus, Kalpana died issueless without any heir from her husband's side entitled to succeed the property. Shashi Bhushan Basu executed a Deed of Gift in favour of his wife, who accepted the gift and thereafter the property lost the status of a joint family property. The lower appellate court allowed the appeal on this ground alone that the Will was not probated and Subodh Chandra Basu will also not inherited the property since Shashi Bhushan Basu has executed a Gift Deed in favour of his wife exclusively. The lower appellate court allowed the appeal on this ground alone that the Will was not probated and Subodh Chandra Basu will also not inherited the property since Shashi Bhushan Basu has executed a Gift Deed in favour of his wife exclusively. 16. The lower appellate court did not specifically dealt with the question of Section 15(1) and 15(2) of the Hindu Succession Act. Kalpana Basu died intestate and issueless. It was not disputed that there were other three brothers and, therefore, the property could not be escheated. 17. Learned counsel Shri V. Shivnath, has placed reliance on a decision of the Apex Court in the case of State of Punjab Vs. Balwant Singh & Ors. and Chand Singh & Ors. Vs. Balwant Singh & Anr., AIR 1991 S.C. 2301 . Para14 of the said decision is quoted below : “Section 29, in our opinion, shall not operate in favour of the State if there is any other heir of the intestate. Indeed, Section 29 itself indicates that there must be failure of heirs. 'Failure' of heirs means the total absence of heirs to the intestate. It is important to remember that female Hindu being the full owner of the property becomes a fresh stock of descent. If she leaves behind any heir either under subsection (1) or under subsection (2) of Section 15, her property cannot be escheated.” 18. Certain other decisions have also been relied upon by the learned counsel. State of Bihar & Ors. Vs. Sri Radha Krishna Singh & Ors., AIR 1983 S.C. 684 and Shree Alakh Narayan Darad & Ors. Vs. The State of Bihar & Ors., 1995 (2) PLJR 375. 19. Shri V.K. Prasad, S.C. (L & C) has argued that Section 100(5) C.P.C. provides that respondents have a right to argue that the substantial question framed does not arise in the present facts and circumstances, therefore, he has laid emphasis that the question of law formulated and raised in the instant appeal does not exist. He has tried to highlight the decision of the D.C., Deoghar, in Cri. Misc. Case No. 8 of 1987 dated 24.09.1987 and also that this decision was upheld by the Apex Court. 20. The next objection is that in a Second Appeal, the finding of fact cannot be assailed while exercising jurisdiction under Section 100 C.P.C. by the High Court. He has tried to highlight the decision of the D.C., Deoghar, in Cri. Misc. Case No. 8 of 1987 dated 24.09.1987 and also that this decision was upheld by the Apex Court. 20. The next objection is that in a Second Appeal, the finding of fact cannot be assailed while exercising jurisdiction under Section 100 C.P.C. by the High Court. Learned State counsel has placed a certain extract of the lower appellate court judgment, but there is no such finding of fact that Subodh Chandra Basu has no brothers and, thus, Kalpana died without there being any heirs under Section 15(1) and 15(2) of the Hindu Succession Act. 21. I am in agreement with the arguments of Shri V. Shivnath that the lower appellate court has neither specifically dealt with the legal question decided by the trial court nor set aside those findings, leave aside giving reasons, there are certain factual aspects which was also liable to be examined by the lower appellate court which cannot be done in the instant Second Appeal. 22. In view of what has been stated above, I set aside the judgment and decree dated 03.02.2009 and 11.02.2009 respectively passed by 1st Addl. District Judge, Deoghar in Title Appeal No. 35 of 2006 and remand the matter at the stage of first appeal to decide afresh on the legal and factual questions after affording opportunity of hearing to the parties. It is made clear that parties will not be allowed to lead fresh evidence at the appeal stage. The case shall be decided within a period of three months from the date a certified copy of this order is produced. 23. Office is directed to remand the record to the lower appellate court within a period of three weeks. There shall be no order as to cost.