JUDGMENT : 1. Heard Mr. Sachi Nandan Das, learned counsel appearing for the appellants and Mr. P.K. Mukhopadhyay assisted by Mr. S.K. Murtty, learned counsel appearing for the respondents. 2. This Second Appeal has been filed against the judgment dated 03.05.1986 and decree dated 15.05.1986 passed in Title Appeal No. 35/1975/75/1985 by 3rd Additional District and Sessions Judge, Dumka. 3. The case of the plaintiffs in short is that the parties are Santhal and in matter of inheritance, they are governed by their own customary law. It is said that Jote no. 46 of Mouza Raniganj stand recorded in the names of Sundar Murmu, S/o Dula Murmu, Kunwar Murmu and Kandan Murmu, S/o Karan Murmu and Keshav Murmu, S/o Arjun Murmu in the last settlement and the tenants were recorded in separate dakhal kiari over some plots as shown in the remarks column of the parcha. The land mentioned in schedule-A stand recorded in separate dakhal kiari of Sundar Murmu, who died leaving behind no issue. According to the plaintiffs, the common ancestor was one Fagu Murmu, who died leaving behind Dula, Karan and Arjun. Sundar Murmu was the son of Dula and defendants' ancestor are the sons of Karan Murmu and the plaintiffs' ancestor are sons of Arjun Murmu. Sundar Murmu died and Kandan and Kunwar, sons of Karan predeceased Sundar and as Sundar died leaving behind Keshav Murmu, his first cousin Keshav succeeded to the estate including the land in suit left by Sundar in preference to the descendants of Kandan and Kanwar. After the death of Keshav, Rasik Murmu succeeded to the estate and came in possession over the same. Sundar Murmu's brother Fagu died leaving behind a daughter Chabi Manjhian and on Sundar's death the said Chabi Manjhian was maintained by Keshav and thereafter by Rasik so long she was alive. It is further said that Rasik Murmu was in peaceful possession but in 1967, the defendants made a false station diary entry at Jamtara Police Station and a proceeding under Section 144 Cr.P.C. was started. In that proceeding, rule issued against the plaintiff was vacated, but it was made absolute against the present defendants. In the same year, the plaintiff grew paddy and it was ripe for harvest. The defendants formed a group and was making preparation to harvest the paddy by force. In that proceeding, rule issued against the plaintiff was vacated, but it was made absolute against the present defendants. In the same year, the plaintiff grew paddy and it was ripe for harvest. The defendants formed a group and was making preparation to harvest the paddy by force. A proceeding under Section 145 Cr.P.C. was started and the Magistrate referred the matter to the civil court under Section 146 Cr.P.C. The court could not appreciate the case and opined that the defendants of this case were in possession. The further case of the plaintiffs is that if the court held that the defendants have also succeeded jointly with the farther of the plaintiffs as co-sharer, the plaintiffs are entitled to a moiety share over the same, whereas, the defendants jointly would be entitled to other half. 4. Against the above allegations, the defendants had filed a written statement stating therein that the plaintiffs have got no cause of action and the suit is barred by limitation. They admit that the land in suit stand recorded exclusively in the name of Sundar Murmu in the last survey settlement. According to the defendants, one Dula Murmu was the common ancestor who died leaving behind Fagu Murmu and Nimu Murmu as his two sons. Fagu Murmu's sons were Dula and Karan. Dula had two sons Fagu and Sundar. Karan died leaving behind two sons Kandan and Kunwar and the defendants are the heirs of Kandan and Kunwar. Nimu Murmu died leaving behind his son Arjun and Arjun's son was Keshav and Keshav's son was Rasik. According to the defendants, they are the nearest agnates of Sundar Murmu and being the nearest agnates Kunwar and Kandan succeeded the property of Sundar after his death. According to the defendants, the genealogy, given by the plaintiffs showing that Arjun was the son of Fagu, is not correct. Further case of the defendants was that Sundar Murmu's eldest brother Fagu Murmu predeceased him leaving behind his widow Nuni Manjhian and a daughter Chabi Manjhian. Sundar married Nuni Manjhian in Sangha and maintained Chabi Manjhian. The defendants ancestors maintained Chabi Manjhian and the defendants also maintained till her deaths. Further case of the defendants was that Sundar Murmu's eldest brother Fagu Murmu predeceased him leaving behind his widow Nuni Manjhian and a daughter Chabi Manjhian. Sundar married Nuni Manjhian in Sangha and maintained Chabi Manjhian. The defendants ancestors maintained Chabi Manjhian and the defendants also maintained till her deaths. It is false to say that Kunwar and Kandan predeceased Sundar and in fact Keshav Murmu, father of Rasik, predeceased Sundar and Keshav is not the nearest agnate and, therefore, no question of succeeding the interest of Sundar does arise. The defendants paid rent and Rasik never cultivated the land of Sundar. In fact, Rasik wanted to harvest the paddy grown by the defendants, which resulted a proceeding under Section 145 Cr.P.C. and the civil court in Section 146 Cr.P.C. proceeding rightly decided the defendants possession over the suit land as the plaintiffs are not the nearest agnates. There is no question of partition as they have no right to claim the land of Sundar Murmu. It is said that the defendants have perfect title over the suit land by possessing for more than 12 years. 5. On the basis of above pleadings, the trial court framed 7 issues to decide the suit and after discussing the issues decreed the suit on contest in favour of the plaintiffs and held that Arjun-Karan and Dula are own brothers and their descendants are co-owners so far property of Sunder is concerned. The plaintiffs have definitely a title over Sundar’s property, but it is doubtful whether plaintiffs can claim the entire property as claimed by them. It appears from Ext.-B that all the lands of Schedule-A have been recorded in the dakhal kiari of Sundar. Most of the lands possessed by him as Pradhan and the plaintiffs should get half and the defendants should get half i.e. Kandan and Kunwar's branch should get half jointly. Considering the facts and circumstances of the case, the suit was accordingly decreed. Aggrieved with this judgment, the defendants filed an appeal being Title Appeal No. 35/1975-75/1985, which was decided by the 3rd Additional District & Sessions Judge, Dumka vide judgment dated 03.05.1986 and the appellate court came to the finding that the respondents have failed to discharge the onus of proof and that is why the judgment of the trial court and the decree was set aside and the appeal was allowed by the appellate court. Aggrieved with this judgment, this Second Appeal has been filed. 6. While admitting this Second Appeal, following two substantial questions of law were framed: (i) Whether the lower appellate court has committed an error of record in observing “The learned Subordinate Judge has discussed the oral evidence adduced by both the parties, but he has held that the P.Ws. and D.W. Do not give any light on the point of pedegree as they are not the witnesses direct on facts. Hence he has discarded their evidence u/s 50 of the Evidence Act.” In view of trial court finding in paragraph no.13 to the effect “It is true that the evidence of some of the P.Ws. has the same defect but on the whole the evidence of P.Ws. is superior to that of D.Ws. Moreover D.W.2 admits that Arjun was the uncle of her father.”? (ii) Whether the decision of the appellate court is based on the entire evidence on record as to the correctness of the genealogy? 7. With regard to first substantial question of law, Mr. Das learned counsel appearing for the appellants submits that the trial court considered the evidence of D.W.2, who is the daughter of Kandan. D.W.2 has stated that Arjun was the uncle of her father. The plaintiff case was that Dula, Karan and Arjun were three brothers and thus Arjun was the uncle of Kandan. D.W.2 has not categorically stated that Arjun was distantly related. He further submits that the trial court has rightly invoked Section 50 of the Indian Evidence Act, 1872 and rightly given opinion as to relationship between one person to another. He further submits that neither Ext.B and oral evidence of D.W.2 were disbelieved by the court of appeal below nor the evidence of D.W.2 was tested by the court of appeal below in the context of Section 50 of the Indian Evidence Act, 1872. The appellate court clearly relied upon Ext.-C which is the order of criminal case related to declaration of possession. He further submits that it is not the decision on title nor binding upon civil court while deciding civil suit. He further submits that the possession of any one heir/agnate of Sundar as revisioners, presumption of possession of all co-sharer are presumed through him and the trial court rightly entered into alternative prayer of partition. He further submits that it is not the decision on title nor binding upon civil court while deciding civil suit. He further submits that the possession of any one heir/agnate of Sundar as revisioners, presumption of possession of all co-sharer are presumed through him and the trial court rightly entered into alternative prayer of partition. He further submits that the appellate court came to conclusion that there is no specific finding that Arjun is son of Nimu. He further submits that in absence of any specific finding to that effect, the judgment of the appellate court is illegal and fit to be set aside and the judgment of trial court is fit to be restored. He also submits that finding in paragraph 13 of the trial court judgment is self speaking and rightly invoked Section 50 of the Indian Evidence Act. 8. So far as second substantial question of law framed while admitting this appeal is concerned, Mr. Das submits that the appellate court has not considered entire evidence on record and genealogy in right perspective. He further submits that one on the basis of one document, namely survey settlement record, which the defendants/appellants agreed to produce before the court and the same was not produced and on that basis onus was shifted to the plaintiffs/respondents. He further submits that non-consideration of Ext.2 and Ext.D which are survey settlement record of the right, which show that they are recorded tenants and that is why they belong to same village. The appellate court has not considered entire evidence on record in its right perspective and genealogy. He further submits that so far as Section 50 of the Indian Evidence Act, 1872 is concerned, that has been rightly invoked by the court below. To substantiate his arguments, Mr. Das has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Dolgobinda Paricha v. Nimai Charan Misra and others , reported in AIR 1959 SC 914 . Paragraph 6 of the said judgment is quoted herein below: “Under S. 50, when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The essential requirements of the section are: (1) there must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossipor of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. The “belief” or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. Section 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship.” 10. He further submits that this judgment was followed in the case of Bant Singh and another v. Niranjan Singh (Dead) by LRS.and another, reported in (2008) 4 SCC 75 . Paragraphs 26 to 29 of the aforesaid judgment are quoted herein below: “26. Interpreting Section 50 of the Evidence Act, this Court held: “6. … On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the section. The two illustrations appended to the section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are — (1) there must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the ‘belief’ or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved.” It was furthermore held: “7. … If we remember that the offered item of evidence under Section 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. It appears to us that that portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60. This, in our opinion, is the true interrelation between Section 50 and Section 60 of the Evidence Act.” 27. Applying the aforementioned tests in regard to the evidence of Janardan Misra and Dharanidhar Misra, the two witnesses who were examined to prove the relationship between Ahalya and Malabati, it was opined: “9. The first question which we must consider is if Janardan Misra and Dharanidhar Misra had special means of knowing the disputed relationship. Janardan Misra was aged about 62 in 1946, and he was related to the family of Baidyanath Misra. Kashi Nath Misra was his grandfather and was a brother of Baidyanath Misra. Obviously, therefore Janardan Misra had special means of knowing the disputed relationship, being related to Baidyanath and therefore to Haripriya, who was the second wife of Lokenath. He said in his evidence that he knew Lokenath Parichha, had seen his first wife Satyabhama and remembered the marriage of Haripriya with Lokenath Parichha. Obviously, therefore, he fulfilled the condition of special knowledge. He further said that he attended the marriage of Malabati, daughter of Lokenath, when Lokenath was living. That marriage took place in the house of Lokenath. He also said that he was present when the first two daughters of Malabati were married and also at the time of the upanayan ceremonies of Plaintiffs 1 and 2. According to the witness, Shyam Sundar Pujari, a son of a sister of Lokenath, acted as a maternal uncle at the time of the marriage of the eldest daughter of Malabati and Dayasagar Misra carried Radhika, second daughter of Malabati, at the time of her marriage.” 28. According to the witness, Shyam Sundar Pujari, a son of a sister of Lokenath, acted as a maternal uncle at the time of the marriage of the eldest daughter of Malabati and Dayasagar Misra carried Radhika, second daughter of Malabati, at the time of her marriage.” 28. Applying the same tests, we have no doubt that the evidence of DW 1 and DW 2 are admissible in evidence being in conformity with the provisions of Section 50 of the Evidence Act. It will bear repetition to state that the High Court, for the reasons best known to it, did not advert to the depositions of the witnesses examined on behalf of the appellants at all. The High Court could have interfered with the finding of fact in a second appeal provided it applied the right tests, but it failed to do so. 29. The submission of Mr Manoj Swarup, learned counsel for the respondent that this Court should enter into the question as to whether the suit property was an ancestral property or not, in our opinion, cannot be accepted. No substantial question of law in that behalf was raised. Out of the three substantial questions of law, as referred to hereinbefore, only the first two questions related to application of Section 50 of the Evidence Act. The third question formulated was not a substantial question of law at all.” He further submits that the appellate court has not decided the appeal with regard to procedure in deciding the appeal while referring the judgment of the trial court. He relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Laxmibai (Dead) through LRS. and another v. Bhagwantbuva (Dead) through LRS. and others, reported in (2013) 4 SCC 97 . Paragraphs 44, 45 and 46 of the aforesaid judgment are quoted herein below: “44. In Jagdish Singh v. Madhuri Devi this Court held: “35. … ‘8. and another v. Bhagwantbuva (Dead) through LRS. and others, reported in (2013) 4 SCC 97 . Paragraphs 44, 45 and 46 of the aforesaid judgment are quoted herein below: “44. In Jagdish Singh v. Madhuri Devi this Court held: “35. … ‘8. … When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies.’ 37. … When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law. 45. Similarly, in Santosh Hazari v. Purushottam Tiwari this Court observed: “15. … The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. … While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact.” 46. There is no prohibition in law for the appellate court to reappreciate the evidence where compelling and substantial reasons exist. The findings can also be reversed in case convincing material has been unnecessarily and unjustifiably stood eliminated from consideration. However, the evidence is to be viewed collectively. The statement of a witness must be read as a whole as reliance on a mere line in a statement of a witness is not permissible. The judgment of a court can be tested on the “touchstone of dispassionate judicial scrutiny based on a complete and comprehensive appreciation of all views of the case, as well as on the quality and credibility of the evidence brought on record”. The judgment must not be clouded by the facts of the case.” 11. Mr. Das, learned counsel appearing for the appellants further submits that the law laid down by the Hon'ble Supreme Court in the case of Laxmibai (supra) has not been followed by the appellate court while deciding the appeal. 12. Per contra, Mr. P.K. Mukhopadhya, learned counsel appearing on behalf of the respondents submits that there is no illegality in the appellate order. He further submits that this case is entirely based upon genealogy of the parties and the plaintiff has produced wrong facts and there is nothing on record to show that the plaintiff's ancestor was the son of Fagu Murmu. He further submits that the appellate court rightly came to the conclusion that Ext.-C is a valuable document in absence of any concrete documentary and oral evidence adduced by the plaintiffs-respondents. He further submits that D.W. has fully supported the case of the respondents. He submits that D.W.2 has not admitted in her evidence that the plaintiff has no right to claim property of Sundar. He further submits that there is no illegality in the judgment of the appellate court. 13. So far as first substantial question of law is concerned: 14. He submits that D.W.2 has not admitted in her evidence that the plaintiff has no right to claim property of Sundar. He further submits that there is no illegality in the judgment of the appellate court. 13. So far as first substantial question of law is concerned: 14. This Court finds that the defendants have examined 9 witnesses adduced on behalf of them. D.Ws. 2, 3, 4 and 9 were witnesses on the point of genealogy. The defendants relied too much on the evidence of D.W.2, who stated that Arjun's father name was Nimu and in between 1898 to 1907 at the time of Mcpherson survey Arjun was definitely dead as his son was recorded in the survey. She has also stated she had seen Nimu who died when she was only 5 to 6 years. She has also stated that she is the daughter of Kandan and she had seen Arjun who was the uncle of her father. The plaintiff's case was that Dula, Karan and Arjun were three brothers and thus Arjun was the uncle of Kandan. She has not stated categorically that Arjun was distantly related. The trial court discussed that D.W.2 is more attached to the defendants and definitely she is an interested witness. D.W.3 has stated that Fagu's brother was Nimu and Arjun was the son of Nimu. D.W.4 has stated that Nimu's son was Arjun. D.W.9 has stated about genealogy, but he did not say from whom he learnt about Nimu who died long ago from his birth. The trial court came to the finding that the evidence of some of the P.Ws. have some defect, but on the whole the evidence of P.Ws. is superior to that of D.Ws. Moreover, D.W.2 admitts that Arjun was the uncle of her father. On plain reading of Section 50 of the Indian Evidence Act, 1872, it is quite clear that it deals with the relevance on particular fact when the court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship, of any person who has special means of knowledge on the subject of that relationship. On this relevant fact, this Court finds that in view of the judgment in the case of Dolgobinda (supra), the trial court rightly came to the finding in paragraph 13 of the judgment and that is why it is not required to be interfered by this Court and, accordingly, first question of law is answered. So far as second substantial question of law is concerned: 15. The appellate court only considered the judgment of criminal court under Section 145 Cr.P.C. i.e. Ext.-C and came to the finding that the defendants were in possession. It is not the decision on title nor binding upon civil court while deciding civil suit. The appellate court was bound to consider the facts of declaration on its own merit and has to come by way of well reasoned order, which has not been done by the appellate court. There is no prohibition in law for the appellate court to re-appreciate the evidence, where compelling and substantial reasons exist and without re-appreciating the evidence, the appellate court reversed the finding of the trial court. Thus, this Court comes to a conclusion that the judgment of the appellate court was not based on entire evidence available on record as to the correctness of the genealogy and, thus, second substantial question of law is answered accordingly. 16. In view of the above discussions and conclusion on substantial questions of law, the judgment dated 03.05.1986 and decree dated 15.05.1986 passed in Title Appeal No. 35/1975/75/1985 by 3rd Additional District and Sessions Judge, Dumka cannot survive and, accordingly, it is set aside. The judgment dated 30.04.1975 passed in Title Suit No. 35 of 1970/115 of 1972 by 2nd Additional Subordinate Judge, Deoghar at Camp Jamtara is restored. 17. In view of the aforesaid manner, facts and judicial pronouncements, this Second Appeal stands allowed. 18. Pending interlocutory application, if any, stands disposed of. 19. Office is directed to send back lower court records along with judgment of this Court to the court below, forthwith.