JUDGMENT : 1. The Second Appeal has been preferred by the defendants/respondents/appellants before this Court assailing the judgment dated 18.01.2017 and decree signed on 30.01.2017 passed by learned District Judge-III, Rajmahal in Title Appeal No.11 of 2013, whereby the learned appellate court has dismissed the appeal and affirmed the judgment dated 26.04.2013 and decree signed on 06.05.2013 passed by learned Senior Civil Judge-II, Sahibganj in Title Suit No. 70 of 2007. 2. The defendants / respondents are the appellants before this Court, as the learned appellate court though has confirmed judgment passed by learned trial court dismissing the suit, but certain findings recorded by the learned trial court in favour of the defendants/ respondents in a form of relief has been declared nullity on the ground that the defendants / respondents / appellants were not plaintiffs in suit in hand and there was no counter claim, therefore, finding given in a form of relief to the defendants without counter claim has been declared nullity as the same has not been based upon proper appreciation of facts and law. Being aggrieved of the same, the defendants/respondents/appellants have preferred this Appeal. 3. The plaintiffs/appellants (respondents herein) preferred Title Suit against the defendants/respondents/appellants for declaration that the raiyats of mauja Bhimpara including plaintiffs and defendants have rights to use, the pond for irrigation purpose, situated over the suit land, described in the schedule of the plaint, bearing Plot no. 286, area about 06 bighas and 07 khatas and 01 dhur within the Mauza-Bhimpara, P.S.-Barharwa, District-Sahibganj, for declaration that the suit land-cum-pond cannot be settled in favour of any one, hence the defendants are not the exclusive owners of the suit land and for any other relief or reliefs to which the plaintiffs may be found entitled and for cost of the suit. 4. The plaintiffs / appellants / respondents has stated that the suit land consisting of pond, described in the schedule of the Plaint, has been recorded as “Anawadi Khata”, belonging to Government during last survey and settlement operation and name of the raiyat has not been mentioned in khatiyan as the owner of the same but during the last survey and settlement operation in the village inquiry paper, the pond has been recorded in common use of raiyats for irrigation purpose. The raiyats of Mauja -Bhimpara are using the pond for irrigation purpose since the time immemorial. 5. The raiyats of Mauja -Bhimpara are using the pond for irrigation purpose since the time immemorial. 5. The defendants / respondents / appellants claimed themselves to be the purchasers of the suit land-cum-pond and illegally asserted their title over it. The plaintiffs / appellants / respondents have also asserted that under the provisions of Santhal Paraganas Tenancy (Supplementary) Provisions Act, 1949, a pond cannot be settled to anyone and the defendants / respondents / appellants have no title or possession over the suit land. The defendants being the raiyats of Mauja -Bhimpara having their agricultural land adjacent to it or in the vicinity of suit land, they have a right to irrigation from the pond as the defendants being the raiyats of Mauja Bhimpara too have similar right of irrigation in common, but the defendants cannot claim themselves as the exclusive owners of the suit land. 6. The further case of the plaintiffs is that suit is being filed in representative capacity by the plaintiffs/appellants/respondents for the safe guard of their interest as well as for the safe guard of the interest of the raiyats of mauja Bhimpara. The cause of action of the suit arose on 01.09.2007, when the defendants asserted their title and tried to take over the possession over the suit land. 7. The case of the defendants is that pursuant to the notice, they appeared and filed their written statement, challenging the maintainability of the suit in the present form and also barred by law of limitation, waiver, estoppels and acquiescence. The suit is barred under Section 35 of the Bihar Land Reforms Act, 1950, which came into force on 25th September, 1950 vide notification no.5067 L.R. dated 24th September, 1950, after vesting of estate of intermediary. The State of Bihar stepped into the shoe of intermediary. 8. The further case of the defendants is that Gair Majrua land means uncultivated land, which is divided into two types one is Gair Majrua Aam, in the Khatian shown tanks, village road and another is Gair Majura Khas in the Khatian shown all other waste and uncultivated land not in specific possession of any other than that land lord. 9. The further case of the defendants that uncultivated land was in the possession of landlord and landlord had power to settle, such land before vesting of the estate. 10. 9. The further case of the defendants that uncultivated land was in the possession of landlord and landlord had power to settle, such land before vesting of the estate. 10. The defendants has admitted, that suit land during survey settlement was recorded in the Anabadi Khata but denies that land of Anabadi Khata (uncultivated land) was the land of landlord. The defendants has stated that Government land was recorded as Kaisae hind and the suit property was not recorded as ‘Khaisare-hind’. The village enquiry paper was prepared much later of survey settlement, which has no evidentiary value in the eye of law, the suit property was never used by raiyats for irrigation purpose nor the raiyats of Bhimpara. Many of the raiyats filed petition against Naduddin Sk. before L.R.D.C., Sahibganj, on the basis of which, a Case No.2 of 1971-72 was instituted under Section 4(9) of the Act and L.R.D.C. passed order on 05.07.1974, but the said order was not assailed by any of the raiyats till date. Thus, raiyats waived their rights and suit is barred as under Section 35 of the Land Reforms Act, 1950. The suit plot was recorded as Anabadi Khata and the property was of the then landlord Manindra Nath Choudhary, who had power to settle Gair Marjua land in favour of any raiyats. 11. On the basis of the pleading of the parties, the learned trial court has framed as many as six issues:- (i) Is the suit maintainable in its present form? (ii) Whether the suit is barred by the limitation? (iii) Whether the suit pond is the property of the Government? (iv) Whether the raiyat of mauza Bhimpara including plaintiffs and defendants have the right to use the suit pond? (v) Whether plaintiffs are exclusive owner of the suit land? (vi) To what relief or reliefs plaintiff is entitled for? 12. In order to prove its case, the plaintiffs have examined four witnesses, P.W.-1 Lakhi Prasad Saha, P.W.-2 Abhimanu Rajak, P.W.-3 Lakhi Prasad Saha and P.W.-4 Ram Lal Rajak. 13. In addition to that plaintiffs have exhibited two documents: Exhibit-1 : Certified copy of village inquiry paper of Mauza – Bhimpara. Exhibit-2 : Certified copy of khatian of Mauza – Bhimpara, Jamabandi No.270. 14. The defendants have also examined four witnesses, D.W.-1 Piyarul Sheikh, D.W.-2 Md. Murtaja, D.W.-3 Manarul Sheikh and D.W.4 Isak Sheikh. 15. 13. In addition to that plaintiffs have exhibited two documents: Exhibit-1 : Certified copy of village inquiry paper of Mauza – Bhimpara. Exhibit-2 : Certified copy of khatian of Mauza – Bhimpara, Jamabandi No.270. 14. The defendants have also examined four witnesses, D.W.-1 Piyarul Sheikh, D.W.-2 Md. Murtaja, D.W.-3 Manarul Sheikh and D.W.4 Isak Sheikh. 15. Apart from the above, the defendants have also exhibited certain documents: Exhibit-A : Registered sale deed No.3452 dated 24.05.1985 Exhibit-A/1 : Registered sale deed No.1047 dated 01.04.2003 Exhibit-A/2 : Registered sale deed No.1048 dated 01.04.2003. Exhibit-B : Rent receipt bearing No.2136161 of Mauza Bhimpara Jamabandi No. 270. Exhibit-C : Certified copy of order dated 05.07.1974 of learned Court of DCLR, Sahibganj passed in Case No.4(G)/1971-72. 16. The learned Trial Court has elaborately discussed the evidence on record and decided Issue Nos. II and III together and held that the mutation order passed in favour of the defendants / respondents / appellants has not been assailed by the parties, as such, suit is barred under Section 35 of the Land Reforms Act and further hold that pond belongs to Najuddin Sheikh and their legal heirs as the same was settled by the ex-landlord before vesting of zamindari and the same was mutated and thus the land does not belong to the State. The trial court decided Issue Nos. I & VI against the plaintiffs. 17. The plaintiffs preferred appeal before the first appellate Court assailing the judgment and decree passed by the learned trial court, on various grounds including the grounds, that the learned court below wrongly held that the alleged tank is not the property of the State, rather it is property of Najuddin Sheikh as he was settled with the tank and got his name mutated. The entire transaction as claimed by defendants/respondents/appellants on the basis of settlement by ex-landlord to Najuddin Sheikh and so called alleged sale deed in favour of defendants/respondents/appellants are absolutely invalid and void and cannot be affected to and due to this, respondents could not produce a chit of paper with respect to the alleged settlement of pond to Najuddin Sheikh. 18. 18. The plaintiffs/appellants/respondents has further assailed the impugned judgment passed by the learned trial court on the ground that alleged tank cannot be settled to anybody as per local laws, as Khatian Jamabandi No.270 also speaks that alleged tank is recorded as “Anabadi tank” which is to say “State Government” and the village inquiry paper (Exhibit-1) also speaks about the use of pond by raiyats. The order of L.R.D.C. was collusive, illegal without jurisdiction and absolutely void and cannot be binding upon the plaintiffs / appellants / respondents as the defendants / respondents / appellants cannot claim title on the basis of mutation order and subsequent issuance of rent receipt. 19. The learned appellate court considered all the six issues framed by the learned trial court again and took up those issues and discussed the entire issues in detail and affirmed the dismissal of the suit passed by learned trial court and also the error committed by learned trial court in giving a wrong finding that the suit land does not belong to the Government as there is document of settlement in favour of Najuddin Sheikh. 20. The order dated 05.04.1974 passed by learned L.R.D.C., Sahibganj in Case No.4(G)1971-72 cannot be the basis to declare that the suit land consisting of pond does not belong to the Government as learned court below has not considered that no order can be passed against any parties in its absence. In the present suit, State Government has not been arrayed as party, though State is the necessary party as Exhibit-2 certified copy of Khatian of Mauza – Bhimpara, Jamabandi No.270 clearly shows that suit land belongs to Government and recorded as Anabadi Khata. The learned appellate court has also considered the letter No. A/CM-46/69-344R, dated 14/15-1-69 issued by the then Additional Secretary Revenue & Land Reforms Department to all District Officers, policy regarding the settlement of Gairmazarua Aam land is that : "Gairmazarua Am lands are those lands over which the community has rghts; ordinarily, such land is not settled as this would involve extinguishment of public rights, and there by cause inconvenience to public. Government have settled some Gairmazarua Am lands with individual and institutions with the advice of the Law Department on the ground that the character of the land had changed; it had ceased to be of public use; the settlement of the land did not cause any inconvenience to the publc; and the people of the locality had no objection to the settlement Before the vesting of Zamindari, Zamindars were not empowered to settle these lands. As there is no legal bar to the settlement of Gairmazarua Am lands which have lost their character, and as such are no longer in public use, it is proposed to settle such lands with individuals or institutions on approval of Government. However, no proposal for settlement of Gairmazarua Am lands should be entertained where the same is used by the public for common benefit and the settlement is likely to cause inconvenience to the community.” 21. Learned appellate court has also placed reliance upon a judgment passed by Hon'ble Patna High Court in the case of Satrudhan Sahani and Others Vs. State of Bihar and Others reported in 1990 (2) PLJR page-832 where the Hon'ble Court has held that: “administrative instructions/ circulars issued by the State Government relating to grant of licence or lease of the properties of State these are expected to be followed and obeyed.” 22. The Appellate Court has affirmed the dismissal of the suit passed by the learned trial court on appreciation of fact and also law. Under Order-I Rule 8 CPC, a suit may be brought or defended in representative capacity by one or more of such persons for the benefit of, all persons so interested but with permission of the Court. The plaintiffs has not obtained leave of the Court under Order-1 Rule 8, CPC and relied upon judgment passed by Hon'ble Madras High Court in the case of Assistant Commissioner, H.R. & C.E., Salem V. N.K.S.F. Mudaliar, reported in AIR 1987 Mad 187 , wherein Hon'ble Court has held that: "a person cannot advance the claims of a group of persons or community without adopting the procedure under Order 1, Rule 8, C.P.C., if the relief is prayed for only on the basis of the rights of the community as such. A distinction has to be maintained between cases where individual putforward a right which he has acquired as a member of a community and cases where a right of the community is putforward in the suit. It is aiso held that if it is the former, the individual is not debarred from maintaining the suit in his own right in respect of a wrong done to him even though the act complained of may also be injurious to some other persons having the same right and if it is the latter, the procedure under Order 1, Rule 8, C.P.C. has to be followed and without doing so, no relief could be granted to the individual concerned." 23. The plaintiffs have failed to adopt the mandatory procedure as prescribed under Order-1 Rule 8 CPC as they did not serve notice to any of the raiyats of their village and also did not obtain any leave to file representative suit before Court, thus affirmed the judgment passed by learned trial court. The learned appellate court has further held, that declaration made in favour of defendants/respondents/appellants by the learned trial court is not based on proper appreciation of law and facts. 24. Learned senior counsel for the appellants, Mr. Manjul Prasad, assisted by Mr. Alok Lal has assailed the impugned judgment and decree on behalf of defendants / respondents / appellants on the ground that the learned appellate court has wrongly considered the Government Circular as contained in Letter No. A/CM-46/69-344R dated 14/15.01.1969 issued by the then Additional Secretary, Revenue & Land Reforms Department to all District Officers, regarding policy of settlement of Gairmazaruua Aam Land without giving any opportunity of rebuttal. 25. Learned senior counsel has further submitted that the judgment and decree passed by learned appellate court, taking away the right given in favour of the defendants by the learned trial court without compliance of Order XLI Rule 31 of the C.P.C. by framing point of determination, is fit to be set aside and the matter may be remitted as the learned lower appellate court has affirmed the judgment and decree passed by the learned trial court dismissing the suit in the present form as not maintainable. 26. Heard, learned senior counsel for the appellants and perused the materials brought on record. 26. Heard, learned senior counsel for the appellants and perused the materials brought on record. Both the courts below have given concurrent finding with regard to the maintainability of the suit which is also not assailed before this Court, as such, considering the concurrent finding of both the court below, no substantial question of law is formulated in the present second appeal on that point. 27. So far the right given by the learned trial court declaring title in favour of the defendants / respondents / appellants as the pond belongs to Najuddin Sheikh on the basis of order passed by L.R.D.C. with regard to mutation is concerned, the learned appellate court has reversed the same after proper discussion and appreciation of material, as no counter claim has been put forward by defendant and without any document on record, such as settlement paper by the Zamindar or the confirmation of settlement from the record i.e. returns filed by Zamindar at the time of vesting of estate. The learned trial court has declared the title in favour of the defendants / respondents / appellants without any evidence, only on the basis of mutation order passed by the L.R.D.C. and subsequent rent receipt thereof. 28. Law is very clear that order of mutation cannot create a title in favour of the person though such person can claim title on the basis of such document by way of adverse possession. The adverse possession has to be proved as per principles laid down in the case of S.M. Karim @ Tamanna Sabeb Vs. Mht. Bibi Sakina reported in AIR 1964 SC 1254 . In the present case, the defendants / respondents / appellants have never preferred a cross-suit or counter claim by impleading the State of Bihar (Jharkhand), but even then without any document regarding settlement, the trial court has erred in declaring the title of the defendants over the pond recorded in certified copy of Khata of Mouza-Bhimpara, Jamabandi No. 270 as Anabadi Khata and also in contravention of the Village Inquiry Paper of Mouza – Bhimpara, which has been brought on record as Exhibit-1. This Court also affirms the finding recorded by the learned appellate court declaring the observation made by the learned trial court with regard to ownership of pond in favour of defendants as unsustainable and liable to be set aside. 29. This Court also affirms the finding recorded by the learned appellate court declaring the observation made by the learned trial court with regard to ownership of pond in favour of defendants as unsustainable and liable to be set aside. 29. So far the issue raised by learned senior counsel, that learned appellate court has considered the Government Letter No. A/CM-46/69-344R dated 14/15.01.1969 issued by Additional Secretary, Revenue & Land Reforms Department, addressed to all District Officers regarding settlement of Gairmajaruua Aam Land without giving any opportunity to the defendants / respondents / appellants to controvert the same, is not acceptable to this Court as the learned First Appellate Court has ample power under Order XLI Rule 27 (b) CPC to look into additional evidence and the said letter of the Government is a public document under Section 74 of the Indian Evidence Act and as such, the learned appellate court has rightly considered the same. Thus, the point raised by learned senior counsel is hereby negated. 30. So far issue raised by learned senior counsel that the judgment of the learned appellate court is liable to be set aside in view of non-compliance of order XLI Rule 31 of C.P.C., this Court has gone through the entire judgment passed by learned appellate court. It is true that the point for determination has been formulated, but on the other hand, the learned appellate court has discussed the entire issues framed by the learned trial court in detail from paragraph no. 14 to 17 on the basis of the evidence brought on record afresh. After thorough discussion, the finding recorded by the learned trial court has been affirmed and on that score, the judgment of the learned appellate court cannot be set aside as entire discussion has been made. This Court has taken note of judgment passed by learned Apex Court in the case of G. Amlorpavam & Others Vs. R.C. Diocese of Madurai and Others reported in (2006) 3 SCC 224 . Para-8, 9, 10 & 11 of the aforesaid judgment are re-produced below. 8. Order 41 Rule 31 CPC reads as follows: “31. This Court has taken note of judgment passed by learned Apex Court in the case of G. Amlorpavam & Others Vs. R.C. Diocese of Madurai and Others reported in (2006) 3 SCC 224 . Para-8, 9, 10 & 11 of the aforesaid judgment are re-produced below. 8. Order 41 Rule 31 CPC reads as follows: “31. Contents, date and signature of judgment.—The judgment of the appellate court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC. 10. At this juncture it would be relevant to note what this Court said in Girja Nandini Devi v. Bijendra Narain Choudhury [ (1967) 1 SCR 93 : AIR 1967 SC 1124 ] . In AIR para 12 it was noted as follows: (SCR p. 101 F-G) “It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice.” 11. The view was reiterated in Santosh Hazari v. Purushottam Tiwari [ (2001) 3 SCC 179 ] . In para 15 it was held with reference to Girja Nandini Devi case [ (1967) 1 SCR 93 : AIR 1967 SC 1124 ] as follows: (SCC pp. 188-89) “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. 188-89) “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. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (see Girja Nandini Devi v. Bijendra Narain Choudhury [ (1967) 1 SCR 93 : AIR 1967 SC 1124 ] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. 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. 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. 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. (See Madhusudan Das v. Narayanibai [ (1983) 1 SCC 35 : AIR 1983 SC 114 ] .) The rule is—and it is nothing more than a rule of practice —that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad v. Jwaleshwari Pratap Narain Singh [ 1950 SCR 781 : AIR 1951 SC 120 ] .) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.” 31. Considering the above facts and pronouncement of the judgment passed by learned Apex Court, substantial question of law is to be formulated for admitting appeal, but there is no substantial question of law involved in this appeal, as there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases, weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifested by the perusal of the judgment of the lower appellate court by reappreciating all the issues afresh, it would be a valid judgment even though it does not contain the points for determination. The judgment of the appellate court represents its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The appellate court agreeing with the view of trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice. 32. Under the aforesaid circumstances, both the courts below have concurrently dismissed the suit /appeal of the plaintiffs, as such, this Court is not interfering with the same. 33. So far observation which has been given by the learned trial court in favour of the defendants / respondents / appellants, the same has been set aside by the learned appellate court, against which, this Second Appeal has been preferred by the defendants / respondents / appellants. For the aforesaid reasons, as discussed above, this Court concurs with the findings of the learned appellate court and the observation given by the learned trial court in favour of the defendants / respondents / appellants has rightly been declared nullity by learned appellate court and this Court affirms the judgment passed by learned appellate court. Accordingly, this Second Appeal is dismissed.