JUDGMENT AND ORDER : By the judgment and decree, dated 26.05.2015/09.06.2015, passed, by learned 1st Additional District Judge, Khagaria, in Title Appeal No. 09 of 2011, the judgment and decree, dated 22.02.2011/09.03.2011, passed by learned Additional Munsif, Khagaria, in Title Suit No. 51 of 2003, has been reversed. 2. The present second appeal is against the said judgment and decree, dated 26.05.2015/09.06.2015, passed by the appellate court below, in Title Appeal No. 09 of 2011. 3. The suit was filed by the plaintiffs, who are respondents 1st set herein, mainly against the defendants 1st party, for declaration of their title and recovery of possession over the suit land, under Khesra No. 498, Khata No. 297, ad-measuring 12 dhurs, along with the mesne profit arising out of the suit land. 4. Briefly narrated the case of the plaintiffs, as set out in the plaint, was that they and the defendants 2nd party/respondents 2nd party herein are descendants of the common ancestor, Late Jagroop Mandal, who had their ancestral homestead house, close to the National Highway. For the purpose of expansion of the National Highway, the Government acquired their homestead house for which they were duly compensated. Consequent upon acquisition of their homestead land, they had become landless and, therefore, in order to construct residential house, the plaintiffs and the father of defendants 2nd party, jointly, purchased 12 kathas of land through a registered sale deed, dated 03.01.1963, duly described in Schedule-I of the plaint. The purchasers came in possession over the purchased lands and perfected their right, title and interest, and got their names mutated and jamabandi created. A boundary wall was subsequently raised around the land, so purchased, and the plaintiffs and the defendants 2nd party constructed their residential houses, according to their convenience. Some portion of the land has remained vacant for the purpose, such as, lawn, garden, etc. In course of time, the boundary wall got depleted and in the year 1998, the defendants 1st Party, who was situated in the southern boundary, tried to encroach towards their northern portion and illegally started claiming title over the same. Since the said defendants 1st party were adamant to encroach upon the suit land, the plaintiffs and the defendants 2nd party filed a petition for demarcation before the Additional District Magistrate, Khagaria, for their 12 kathas purchased land. Since the said defendants 1st party were adamant to encroach upon the suit land, the plaintiffs and the defendants 2nd party filed a petition for demarcation before the Additional District Magistrate, Khagaria, for their 12 kathas purchased land. Accordingly, on receipt of report of the Circle Officer, Khagaria under the orders of the Additional District Magistrate, Mutation Case No. 41 of 1999 was initiated. The defendants 1st party, however, did not appear in the mutation proceedings. The Anchal Amin, on enquiry, found encroachment in the southern portion of the land of the plaintiffs and the defendants 2nd party in the south portion of about 7132 sq. kari; equivalent to 1 katha and 12 dhurs and 91 sq. kari, in southern portion to the suit land, which is Schedule-II land by defendant no. 2, namely, Om Prakash Rajak. 5. Accordingly, after measurement, the Anchal Amin submitted his report to the Additional District Magistrate, Khagaria, with the description that the defendant no. 1 had encroached 1 katha 12 dhurs and defendant no. 2, 91 sq. kari, which was part and parcel of the land of Schedule-I. The appellant/defendant no. 1 is a member of Schedule Caste. He filed a petition before the Additional District Magistrate, Khagaria, and the Circle Officer, Gogari, for granting purcha in his favour, under the provisions of Bihar Privileged Persons Homestead Tenancy Act, 1947. A case was accordingly started as Purcha Case No. 01 of 1999-2000, in which report of the Karamchari and the Circle Inspector was called for and submitted. It appears that on the said application, purcha was issued in favour of the appellant/defendants 1st party. The plaintiffs moved before the Revenue authorities for cancellation of the said purcha, which was registered as Cancellation Case No. 01 of 2000-01. The District Magistrate, Khagaria, by an order, dated 16.01.2000, passed in Cancellation Case No. 01 of 2000-01, cancelled the purcha issued in favour of defendants 1st Party. In view of the order of the District Magistrate, Khagaria, cancelling the purcha, the defendants 1st Party partly gave up possession over the encroached land, which thereafter came in possession of the plaintiffs and the defendants 2nd party. Despite subsequent proceedings, under Section 144 of the Code of Criminal Procedure, 1973, decided in favour of the plaintiffs, the defendants 1st Party continued with the encroachment over portion of the land measuring 12 dhurs. Despite subsequent proceedings, under Section 144 of the Code of Criminal Procedure, 1973, decided in favour of the plaintiffs, the defendants 1st Party continued with the encroachment over portion of the land measuring 12 dhurs. It appears from the records that heirs of Asarfi Mandal of the plaintiffs’ joint family were not ready to join the plaintiffs and accordingly they were impleaded as defendants in the suit, as defendants 2nd Party. It was further case of the plaintiffs that subsequently, the Sub Divisional Magistrate, Gogari, had rescinded the proceedings, under Section 144 of the Code of Criminal Procedure, 1973, vide order, dated 02.09.2003, because of which, the defendants 1st Party became embolden and they flatly refused to vacate the suit property, which compelled the plaintiffs to file the suit. 6. The defendants 1st Party filed their joint written statement, asserting that the defendant no. 1 possessed the suit land of 1 katha 12 dhurs over which the defendant no. 1/appellant had his residential house since the time of the ex-landlord. They disputed the plaintiffs’ claim of possession over the suit property and also asserted that they were privileged persons and were residing over the suit land with the consent of the ex-landlord since before purchase of the same by the plaintiffs’ family. They admitted, however, that the Anchal Amin had earlier granted purcha in their favour, which was subsequently cancelled. 7. Based on the rival pleadings, the Trial Court, including the issue of limitation, framed altogether 8 (eight) issues, as under:- “(1) Is the suit maintainable? (2) Whether the suit is hit by law of limitation, principle of estoppel, waiver and acquiescence? (3) Has the plaintiff got cause of action? (4) Whether the plaintiffs have perfect right and title over the suit property? (5) Whether the possession of the defendant over the suit property is legal, valid or they have illegally encroached the suit property? (6) Is the defendant first party able to get a decree of adverse possession? (7) Is the purcha granted by C.O. in favour of the defendants first party is illegal? (8) Whether the plaintiffs are entitled for any other relief?” 8. The parties adduced their evidence at the trial, both oral and documentary. On analysis and appraisal of the evidence, so adduced, learned Trial Court, on the question of limitation, held that no such question arose, which was merely formal in nature. (8) Whether the plaintiffs are entitled for any other relief?” 8. The parties adduced their evidence at the trial, both oral and documentary. On analysis and appraisal of the evidence, so adduced, learned Trial Court, on the question of limitation, held that no such question arose, which was merely formal in nature. The Trial Court, thereafter, took up Issue No. 5, i.e. whether the possession of the defendants 1st party over the suit property was legal and valid or they had illegally encroached upon the suit property and decided the issue against the plaintiffs and in favour of the defendants 1st Party (the appellants herein). 9. Based on a report of the survey knowing pleader commission, the Trial Court held that house of the defendant no. 1/appellant was already there before purchase of the suit property by the joint family of the plaintiffs and the defendants 2nd Party. The Trial Court, taking up Issue No. 6, of adverse possession, recorded that the contesting defendants were not entitled to get any such declaration since they had not claimed such right nor raised any counter claim in their written statement. However, he decided the said issue also against the plaintiffs. The Trial Court, thereafter, took up Issue No. 4, i.e. whether the plaintiffs had perfected their right, title and interest over the suit property. The Trial Court decided the said issue against the plaintiffs. For deciding the said issue against the plaintiffs, the Trial Court took note of the pleadings in the plaint that the old houses of the defendants 1st Party were situated inside the southern boundary and south-eastern boundary. The Trial Court recorded further that it was not clear from the averments of the plaintiffs that the suit land was part and parcel of their share, particularly, when the defendants 2nd Party were not concerned about the suit land. On the question of grant of purcha, while dealing with Issue No. 7, the learned Trial Court refused to discuss the same on the ground that plaintiffs had not sought for any relief nor adduced any documentary or oral witness. 10. The Trial Court, after having decided the issues, as above, decided Issue Nos. 1, 3 and 8 also against the plaintiffs. The plaintiffs thereafter preferred appeal, giving rise to Title Appeal No.09 of 2011, which came to be registered in the file of learned 1st Additional District Judge, Khagaria. 10. The Trial Court, after having decided the issues, as above, decided Issue Nos. 1, 3 and 8 also against the plaintiffs. The plaintiffs thereafter preferred appeal, giving rise to Title Appeal No.09 of 2011, which came to be registered in the file of learned 1st Additional District Judge, Khagaria. After having noticed the pleadings of the parties and evidence adduced at the trial and the judgment and decree of the learned Trial Court, the 1st appellate court formulated following three points for consideration:- (i) Whether the plaintiffs/appellants having right and title over the suit property mentioned in Schedule-II at the foot of the plaint? (ii) Whether the claim of the plaintiffs/appellants is barred by law of limitation? (iii) Whether the plaintiffs/appellants are entitled to a decree for recovery of possession with respect to the suit property? 11. The 1st appellate court took up point nos. 1 and 3 together and considered the admitted fact that the defendant 1st party had applied for issuance of purcha over 1 katha 12 dhurs, which was granted and subsequently cancelled, which fact was admitted in evidence by the defendant no. 1/appellant in his cross-examination. Subsequently, he (the appellant) had applied for grant of purcha of 12 dhurs, which was granted by the Circle Officer. After having concluded that the plaintiffs were able to prove their title over 12 kathas of land and, therefore, entitled to recovery of possession, held that in the absence of any case of adverse possession by the defendant 1st party, the appellants were entitled to a decree of declaration of title and recovery of possession over the Schedule-II lands. 12. Mr. Om Prakash Pandey, learned Counsel, appearing on behalf of the appellant, assailing the impugned judgment of the 1st appellate court, has submitted that the evidence at the Trial Court consistently showed that the house of the defendant 1st party was since before the purchase of land by the plaintiffs and defendant 2nd party and, therefore, there was no question of encroachment over the said land. He has contended that the 1st appellate court has reversed the findings of the Trial Court without appreciating the evidence on record in correct perspective and ignoring relevant materials on record and, therefore, the findings recorded by the 1st appellate court being perverse, the present second appeal involves substantial questions of law. He has contended that the 1st appellate court has reversed the findings of the Trial Court without appreciating the evidence on record in correct perspective and ignoring relevant materials on record and, therefore, the findings recorded by the 1st appellate court being perverse, the present second appeal involves substantial questions of law. According to him, following are the substantial questions of law, which the present second appeal involves:- “1. Whether the learned lower appellate court has committed serious error of law in reversing the judgment and decree of the trial court on wrong and erroneous appreciation of evidence on record? 2. Whether in view of admitted case of the plaintiff that there has been a separation and partition between the plaintiffs and defendants 2nd set and they have constructed separate houses, they can claim relief of recovery of possession of suit lands without there being any pleading, relief or evidence that the same was allotted to them and were in exclusive possession therefore? 3. Whether the learned lower appellate court has jurisdiction to give a finding that the defendant-appellate is a trespasser, in view of purcha granted by competent authority under the provisions of Bihar Privileged Persons Homestead Tenancy Act? 4. Whether the plaintiffs-respondents are entitled for a declaration of title and recovery of possession, without proving the fact that on what date they were actually disposed and the defendant-appellant constructed his houses over the suit land? 5. Whether the judgment and decree of the learned lower appellate court, perverse and not sustainable in law? 6. Whether the judgment and decree of learned lower appellate court is sustainable in law and on facts?” 13. I have perused the judgment of the Trial Court and the 1st appellate court and the findings recorded therein. I have considered the basis for findings recorded by the courts below. It appears that there was no dispute over the factum of purchase of 12 kathas of land by the plaintiffs’ joint family through the sale deed, dated 03.01.1963, which has been described as Schedule-I property. There is finding of fact recorded by the 1st appellate court that the said 12 dhurs of land, which is the suit property, described in Schedule-II, is part of Schedule-I property, ad-measuring 12 kathas. There is finding of fact recorded by the 1st appellate court that the said 12 dhurs of land, which is the suit property, described in Schedule-II, is part of Schedule-I property, ad-measuring 12 kathas. The appellant had attempted to establish their title over the suit property on the basis that the defendants 1st party were residing there since much before the purchase of the Schedule-I property by the plaintiffs. They also tried to establish their right over the suit property on the ground of purcha issued by the Circle Officer, initially in respect of 1 katha 12 dhurs, which was subsequently cancelled by the District Magistrate, Khagaria. From what has emerged from the findings recorded by the courts below, it is evident that that the defendants claimed their title in respect of the suit property on the ground of settlement under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947. 14. It is apparent that the defendant 1st party, who were earlier continuing in possession of 1 katha 12 dhurs, had subsequently released 1 katha of land from their possession and had again applied for issuance of purcha in respect of 12 dhurs, which was granted by the Circle Officer. Once, the plaintiffs were able to establish their title over 12 kathas of land, which included 12 dhurs occupied by the defendant no. 1/appellant, I do not find any reason to interfere with the findings recorded by the 1st appellate court. The 1st appellate court has taken into consideration the entire evidence on record, both oral and documentary, before returning the findings. The findings of the 1st appellate court, in no way, can be said to be perverse, as the findings cannot be described to be contrary to the evidence or without any evidence. The substantial questions of law, as suggested by learned counsel representing the appellant, in my view, do not arise in the present facts and circumstances of the case. 15. In view of the above, this appeal does not deserve admission and is accordingly dismissed.