JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Sidhartha Roy, learned counsel appearing for the appellants and Mr. Vishal Kumar Tiwari, learned counsel appearing for the respondents. 2. The present second appeal has been filed being aggrieved and dissatisfied with the judgment dated 31.05.2012 and the decree dated 14.06.2012, passed in Title Appeal No. 09 of 2010, by the learned Principal District Judge, Jamtara, whereby the appeal has been dismissed and the judgment dated 05.10.2010 and decree dated 24.10.2010, passed by learned Sub-Judge-I, Jamtara, in Title Suit No. 42 of 1993 has been affirmed. 3. The appellants instituted the suit for declaration of their right, title and interest over the properties prescribed in Schedule-A, B and C of the plaint and further for declaration that the defendants first party and second party have absolutely no right over the land in suit and also for recovery of possession of properties and confirmation of possession besides other reliefs and cost of the suit. 4. The learned trial court, in Title Suit No. 42 of 1993, after appreciating the evidences i.e. oral as well as documentary, by the judgment dated 05.10.2010 has dismissed the said title suit. Aggrieved with that, appellants herein, filed the Title Appeal No. 09 of 2010, which was also dismissed by the learned appellate court by judgment dated 31.05.2012. Aggrieved by that, the present second appeal was filed. 5. The suit was instituted alleging therein that the parties to the suit are Hindus and governed by Dayabhaga School of Hindu Law. the properties in suit described in Schedule-A, B and C were recorded in the last Gantzers survey settlement in the exclusive name of Nagendrawala Dasi widow of late Ashutosh Dey. The said properties in the previous settlement i.e. in mcpherson settlement were recorded in the name of Ashutosh Dev S/o Mahan Dev. Mahan Dey was also used to be called Mahanand Dev. Mahan Dev had a paternal uncle named Madhu Dey. The said Madhu Dey had no issue and Mahanand Dey used to look after him. In consideration Madhu Dey by a registered deed of hibbanama (gift deed) dated 25.2.1880 transferred all his properties and all earthly belongings to Mahanand Dev. After death of Madhu Dev. Mahanand Dey continued to possess all those lands which he got from Madhu Dey. Mahanand Dey had three sons namely Gowardhan Dev, Ashutosh Dev and Shankar Dev. In consideration Madhu Dey by a registered deed of hibbanama (gift deed) dated 25.2.1880 transferred all his properties and all earthly belongings to Mahanand Dev. After death of Madhu Dev. Mahanand Dey continued to possess all those lands which he got from Madhu Dey. Mahanand Dey had three sons namely Gowardhan Dev, Ashutosh Dev and Shankar Dev. Ashutosh Dey used to live separate from MahanandDey. On the eve of mcpherson settlement, Mahanand Dey gave some of his properties to Ashutosh Dev in Khatiyan no. 1 of mouza Deoli which was exclusively recorded in the name of Ashutosh Dey. The remaining properties were recorded in the name of Mahan Dey. Ashutosh Dey was in exclusive possession of the said properties and he died before the last survey settlement i.e. Gantzer's settlement without any issue, but leaving his widow Nagendrawala Dasi and her name was recorded in the Gantzers settlement. Nagendrawala Dasi was in possession of the properties till her death and she died in Ashar 1360 B.S. corresponding to July 1953 without any issue. After her death. Narendra Nath Dey and Shankar Dey succeeded her properties. Shankar Dey died in Shrawan 1363 B.S. corresponding to August 1956 in unmarried stage where upon, Narendra Nath Dey succeeded to the interest of the Shankar Dey in all the properties and became the exclusive owner of all the properties in suit besides the properties, he inherited from his grand-father Mahanand alias Mahan Dev. Narendra Nath Dey died in Bhadra 1371 B.S. corresponding to September 1964 leaving behind the plaintiffs as his only heirs and successors. The plaintiffs are in possession of schedule B and C of the properties and are still in possession of the same. So far as the schedule A properties is concerned, the plaintiffs were in possession of the same till 28.5.1993, but the defendants 1st party dispossessed the plaintiffs from the said properties on 29.5.1993 as the end of March, 1993. The defendants st party made preparation for forcibly constructing a house on the land of schedule A. the plaintiffs Chatur Kanai Dey for himself and for his brothers filed an application in the court of SDM, Jamtara U/S 144 Cr.P.C. for restraining the defendants 1st party from going upon the schedule A land. The said application was registered as Criminal Misc Case No. 166 of 1993 and a proceeding us 144 Cr.P.C. was drawn up. The said application was registered as Criminal Misc Case No. 166 of 1993 and a proceeding us 144 Cr.P.C. was drawn up. The plaintiffs filed a show cause in the said case. The defendants 1st party who were 2nd parties in the said case filed show cause on all sorts of false allegation. In the said show cause. The defendants 1st party made a false allegation that Madhu Dev took an adoption of Ashutosh Dey in the year 1898, Shankar Dey was born blind and on the death of Nagendrawala Dasi. Her properties devolved upon Gour Dey, Nitai Dey and Phani Dey. They also filed a Xerox copy of alleged certified copy of deed of adoption. The plaintiffs submitted that as a matter of fact, Madhu Dey never adopted Ashutosh Dey. Madhu Dey by a deed gifted all his properties to Mahanand Dey long before the date of execution of the alleged deed of adoption. Further Shankar Dey was not born blind, but due to some trouble in his eyes, he subsequently became blind at the age of about 18 years. The said criminal misc. case no. 166/93 was dropped by the Executive Magistrate by his order dated 28.5.93 and directed the aggrieved party to seek redress in civil court. Since the defendant 1st party threatened that they would not allow the plaintiffs to possess any portion of the properties in suit. 6. The defendant 1st party appeared and filed their written statement wherein besides the legal pleas, it has been submitted therein that the genealogical table given in the plaint are untrue and wrong. The story of Mahanand Dey's Nursing of Madhu Dey and the deed of gift etc. are all concocted and in any case, these have no relevance to the facts of the present suit. Besides the properties of Madhusudan Dey being non transferable Jamabandi lands. No gift was permissible under Section 27 of Regulation (iii) of 1872. Since Ashutosh Dey had already inherited the properties from his adoptive father Madhusudan Dey alias Madhu Dey alias Mahan Dey and he was in possession of the same and as such, these were recorded in his name in the Mcpherson settlement. No gift was permissible under Section 27 of Regulation (iii) of 1872. Since Ashutosh Dey had already inherited the properties from his adoptive father Madhusudan Dey alias Madhu Dey alias Mahan Dey and he was in possession of the same and as such, these were recorded in his name in the Mcpherson settlement. The actual facts are that Madhusudan @ Madhu @ Mahan Dey had adopted Ashutosh Dey, natural son of Mahanand Dey on or about 21st May, 1898 A.D. in accordance with law and he also executed a deed of adoption in his favour which was duly registered as deed no. 47 of 1898. Ashutosh Dey lived with his adoptive father and on the death of his adoptive father, he succeeded to the properties left by him and was recorded during Mepherson Allanson settlement of 1898-1910. Ashutosh Dey died after the Mcpherson settlement living his widow Nagendrawala Dasi as his next heir but meanwhile, the great grand-father of plaintiff Mahanand Dey dis-possessed Nagendrawala forcibly from the suit properties, whereupon she filed a title suit no. 2/1913 in the court of Subordinate Judge, Jamtara against Mahanand Dey and others for recovery of the property as well as for declaration that Ashutosh Dey was the adopted son of Madhusudan Dev. Mahanand Dey contested the suit and took a plea that adoption of Ashutosh Dey by Madhusudan Dey was invalid and never took place, but his plea was negativated by the court and by judgment dt. 5.1.1916. The learned Subordinate Judge decreed the suit in favour of Nagendrawala with a clear finding that Ashutosh Dey was the adopted son of Madhusudan Dey. Mahanand Dey did not challenge the said judgment in any higher court and it became final and conclusive. The plaintiffs are the successor in interest of Mahanand Dey and the said judgment is binding upon them. The plaintiffs are fully aware of all the above facts but they have deliberately suppressed them in order to mislead the court. Similarly, they have again raised the issue of congenital blindness of Shankar Dey with a mala-fide motive, although, the matter was finally concluded by a civil court in its judgment dated 28.4.1945 in title suit no. 22/1944 in which, the defendants predecessor Akrur Dey was the plaintiff and the plaintiff's father Narendra Dey and grand uncle Shankar Dey himself were defendants. 22/1944 in which, the defendants predecessor Akrur Dey was the plaintiff and the plaintiff's father Narendra Dey and grand uncle Shankar Dey himself were defendants. The court held that Shankar Dey was excluded from inheritance due to blindness. The said judgment was challenged in appellate court being title appeal no. 7/1945. By order dt. 28.9.1946 the appellate court dismissed the appeal and upheld the judgment of the learned trial court. It was further contended that on the death of Nagendra Wala sons of Akrur namely Phani, Nitai and Gour inherited the suit properties as her only legal heirs and they came in possession of the same. The descendants of Mahanand Dev were not the legal heirs of Nagendrawala Dasi. Since, Gowardhan and Shankar were no more, the brothers of Nagendrawala's husband Ashutosh and besides the same, Gowardhan had predeceased Nagendrawala and Shankar was excluded from inheritance. It is only Akrur's son who inherited the properties as heirs of Madhusudan Dey. The plaintiffs or any of the predecessor in interest have never possessed any of the suit properties at any point of time. The residential houses and other structures of defendants are standing on schedule A suit land since shortly after the death of Nagendrawala Dasi. The defendants Phani, Nitai and Gour Hari had constructed their respective houses on the eastern part of the suit plot no. 2947. When the defendant no. 3 was constructing pucca house in place of the old mud built house, the plaintiffs started the false 144 Cr.P.C. proceeding to stop the construction with a mala fide intention but could not succeed and the house was constructed. The plaintiff's have no lawful right over any of the suit properties. The suit is false frivolous and is fit to be dismissed with cost. The substituted defendant SandhayaDey, Shital Dey and Sulekha Dey substituted in place of original defendant no. 1 Nitai Dey and they adopted the W.S of defendant 1st party. 7. The defendant 2nd party defendant Nos. 7, 8 and 9 in their separate W.S besides legal pleas, it has been submitted there in that actually Nagendrawala Dasi was the daughter of Haripad Das who became widow. There was a rent execution case bearing No. 283 of 1913 of the court of SDO. Jamtara and thereafter. Rev. Misc. Case No. 781/1913-14 of the court of Deputy Commissioner. 7, 8 and 9 in their separate W.S besides legal pleas, it has been submitted there in that actually Nagendrawala Dasi was the daughter of Haripad Das who became widow. There was a rent execution case bearing No. 283 of 1913 of the court of SDO. Jamtara and thereafter. Rev. Misc. Case No. 781/1913-14 of the court of Deputy Commissioner. Santhal Pargana and in the said proceedings after the eviction of the jot. It was settled with Nagendrawala Dasi and the entire decreetal dues was paid by Haripad Das. father of the Nagendrawala Dasi, It was the personal or self acquired property of Nagendrawala Dasi owned from her father as “Streedhan” and as such, it is recorded in her name during the last survey settlement. It is the desire as well as sweet will of Haripad Das, father of Nagendrawala Dasi that the land has to be recorded in the name of Nagendrawala Dasi showing her to the widow of Ashutosh Dey. Nagendrawala Dasi has got no plough cattle and as such, her properties were cultivated and possessed by her father Haripad Das and brothers of Nagendrawala Dasi. Gour Chandra Das and Abhilash Das and these defendants are sons of Gourchandra Das and Abhilash Das. After the death of Nagendrawala Dasi, the defendant 1st party have started a proceeding u/s 144 Cr.P.C. which was registered as criminal Misc. Case No. 84 of 1953 of the court of SDO, Jamtara, in which, the rule was made absolute against the 1st party of the proceeding. Thereafter, defendant 1st party has preferred revision in which, also the Additional Deputy Commissioner was pleased to held the order of learned lower court was correct and the revision was dismissed. On the death of Nagendrawala Dasi these defendants have succeeded the properties as her sole heirs according to the provisions of Dayabhaga School of Old Hindu Law and they are continuing possession over the same as its absolute owner. It is the plaintiffs and defendants 1st party who have collusively filed the suit to grab the properties of these defendants. 8. Mr. Sidhartha Roy, learned counsel appearing for the appellants submits that the learned courts failed to appreciate the Hibanama (Gift Deed) Exhibit-11, which was executed in favour of Mahan @ Mahanand Dey, son of Sudarshan Dey in the year 1880. 8. Mr. Sidhartha Roy, learned counsel appearing for the appellants submits that the learned courts failed to appreciate the Hibanama (Gift Deed) Exhibit-11, which was executed in favour of Mahan @ Mahanand Dey, son of Sudarshan Dey in the year 1880. He submits that the learned courts have committed serious error in holding that the deed of adoption is subsequent to the deed of Hibanama and the same is not sustainable in the eyes of law. He further submits that the correct genealogy has not been appropriately considered by the learned trial court as well as learned appellate court. He further submits that the incorrect genealogy, produced before the learned trial court has been considered and the correct genealogy prepared by the appellants have not been appreciated by the learned courts. Learned counsel further submits that the learned courts have further failed to appreciate the adoption deed No. 47/1898, which has no legal value. Learned counsel further submits that the issue has not been framed with regard to adoption deed. 9. On the aforesaid grounds, learned counsel appearing for the appellants submits that there are perversity of findings in the learned trial court as well as learned appellate court judgment, that’s why, this second appeal is fit to be admitted on the substantial question of law. 10. Mr. Vishal Kumar Tiwari, learned counsel appearing for the respondents submits that the learned trial court as well as learned appellate court have appreciated the evidences i.e. oral as well as documentary and thereafter have come to the conclusion that the appellants have not been able to demonstrate how they are entitled for the property in question. He further submits that earlier a proceeding with regard to the suit property, which was decided in Title Suit No. 02 of 1913 and Title Suit No. 22 of 1944 respectively. He further submits that the learned trial court has considered the aforesaid two judgments and specific finding is there regarding to res-judicata. 11. On these grounds, learned counsel appearing for the respondents submits that there is no illegality in the judgments of the learned trial court as well as learned appellate court and in that view of the matter, no substantial question is involved and it is fit to be dismissed. 12. 11. On these grounds, learned counsel appearing for the respondents submits that there is no illegality in the judgments of the learned trial court as well as learned appellate court and in that view of the matter, no substantial question is involved and it is fit to be dismissed. 12. In view of the above submissions of learned counsel appearing for the parties, the court has gone through the judgments of learned trial court as well as learned appellate court and finds that there were seven issues have been framed by the learned trial court and issue No. 3 is with regard to limitation, principle of estoppels, acquisance and waiver, issue No. 4 is whether the suit is barred by res-judicata, issue No. 5 is whether the genealogical table given in the plaint is correct of that given in the written statement of defendant first party is correct or not and issue No. 6 is that the plaintiffs are entitled to decree declaring their right, title and interest and continuation of possession over the suit properties and in alternative for recovery of possession of the suit properties including schedule-A land of the plaint. 13. All the above issues have been taken together by the learned trial court. The learned trial court has considered the evidence of D.W.-5 Fani Bhushan Dey, who is also one of the defendant of the suit, who has stated in this evidence that the plaintiffs has filed a false case. He has further stated that the Madhusudan Dey and Sudarshan Dey were own brothers. Madhusudan Dey also denotes as Madhu Day and Mahan Dey. There were six sons of Sudardhan Dey namely Mahanand, Mritunjay, Dhananjay, Akrur, Bisheshawar and Nilmani. There were three sons of Mahanand namely Gowardhan, Ashutosh and Shankar. Madhusudan Dey was issuless. On 21.05.1898, he adopted Ashutosh, who was his grandson vide registered deed No. 47 of 1898, thereafter Ashutosh resides with Madhusudan as his adopted son and after the death of Madhusudan, he became the owner of his property. In Mcpherson Settlement, the name of Ashutosh was recorded. After death of Ashutosh Dey, his wife Nagendrawala Dasi possessed the property, but the own father of Ashutosh namely Mahanand Dey dispossessed the Nagendrawala from the property and also challenged the adoption of Ashutosh. In Mcpherson Settlement, the name of Ashutosh was recorded. After death of Ashutosh Dey, his wife Nagendrawala Dasi possessed the property, but the own father of Ashutosh namely Mahanand Dey dispossessed the Nagendrawala from the property and also challenged the adoption of Ashutosh. Nagendrawal Dasi filed a Title Suit No. 2 of 1913 against the Mahanand Dey and others wherein, the then Sub-Judge declared that the Ashutosh Dey was adopted son of Madhusudan @ Madhu Dey and the Nagendrawala was the legal heir of Ashutosh Dey, pursuant to that Nagendrawala possessed the suit property and her name was recorded in the Gantzer Settlement. This witness has further stated that he has heard the above facts from his father Akrur Dey and he also saw the documents. This witness has stated in para-13 that the father of the plaintiffs Narendra Dey and their uncle Shankar Dey claimed the property of Dhananay, for which, the father defendants namely Akrur Dey filed a title suit No. 22 of 1944 against them wherein the court ordered that Shankar Dey was born blind and both of them have no right over the said property. Against the said order, Narendra Dey and Shankar Dey filed an appeal, but the appeal was also dismissed. After the death of Nagendrawala defendants being her only legal heirs possessed her property. The defendants constructed several houses on disputed plot No. 2947 and subsequently, reconstructed and remodeled the same to renovate the house. The plaintiffs filed a case under Section 144 Cr.P.C. but after spot inspection, the possession of defendants were found. This witness has further stated that they paid the revenue of the disputed property. He has asserted that in the plaint and the genealogical table given by the plaintiffs are wrong. D.W.-2 Thakur Raut also supported the case of defendant first party in his evidence and he stated that he cultivate ten bighas land of Majhabahal and Patharkanali on Batai since last forty years and give the shares to Fani and Nitai. He further stated that he heard from the father and grand father of Nitai that the said land was belonging to Nagendrawala Dasi and in para-7, he has stated that the said land never possessed by Chatur Kanai Dey and his father. He has further stated that he has no documentary proof of cultivation. 14. He further stated that he heard from the father and grand father of Nitai that the said land was belonging to Nagendrawala Dasi and in para-7, he has stated that the said land never possessed by Chatur Kanai Dey and his father. He has further stated that he has no documentary proof of cultivation. 14. Defendant second party examined seven witnesses, out of which, defendant No. 7 of defendant second party has stated in his evidence that the suit land recorded in the name of Nagendrawala Dasi, who was daughter of Haripad Das. Nagendrawala was child widow and she used to reside with her father. This witness has further stated that due to non-payment of revenue, eviction suit has been filed wherein the father of Nagendrawala paid the entire dues. Since the dues were paid by Haripad Das, therefore, the property recorded in the name of Nagendrawala Dasi as her own land and the land was cultivated by Haripad Das. 15. The learned trial court has observed that Nagendrawala never inherited the properties from her father, as evident from the parcha. She inherited the property of her husband Ashutosh Dey. Moreover, one of the defendant of defendant 2nd party namely D.W.-13 Gopal Chandra Das who was the son of Gour Chandra Das has clearly stated in para-15 of his evidence that the suit property is belonging to in-laws of Nagendrawala and in course of Gantzer Survey settlement the name of Nagendrawala was recorded in the khatiyan, but her brother Gour Haridas tried to obtain some lands of Nagendrawala on a false plea of kurta. The father of contesting defendant namely Akrur Chandra Dey claiming to be reversioner of Nagendrawala objected to such transfer, whereupon, a case was registered in the court of settlement officer bearing transfer list No. 1 of 1932. The settlement officer (who was a civil court under the Regulation-III of 1872) held in his order dated 15.08.1932 [Exhibit-J] that Ashutosh Dey was the adopted son of Madhu Dev and that no transfer of land of Ashutosh Dey by Nagendrawala was permissible under the law and the Gour Hari Das was warned by the settlement officer not to try to grab land of Nagendrawala. The decisions of 1905 (Exhibit-E), 1913 (Exhibit-D) and 1932 (Exhibit-J) established that Ashutosh Dey was the adopted son of Madhu Dey @ Madhusudan Dey and since the right to challenge of such adoption by plaintiffs predecessor was negated by the competent civil court vide Exhibit-E, therefore law of res-judicata clearly applied in the present case. The learned court rightly held that considering Section 11 of the CPC, the res-judicata will apply. 16. Learned trial court has also considered Exhibit-1 series and Exhibit-6 and some notice of Indian Oil Corporation Exhibit-7 and Exhibit-12 have been filed in order to show the possession of the plaintiffs over the suit properties and also on behalf of the plaintiffs. The C.C. of one Hibanama (gift deed) has been filed by one Mahanand Dey, son of Sudarshan Dey, but on perusal of the recital of the said deed, learned court has held that it is clearly evident that Exhibit-11 was not a deed of gift, moreover, the properties of Madhusudan Dey being nontransferable jamabandi lands, thus, no gift was permissible under the provisions of Santhal Pargana Regulation-III of 1872. Contrary to which, the adoption of Ashutosh Dey by Madhusudan Dey was clearly established by the court of law and the decision of the said judgment Exhibit-D is binding upon the plaintiffs and after that the learned trial court has dismissed the suit. 17. In that view of the matter, the argument, advanced by Mr. Sidhartha Roy, learned counsel appearing for the appellants are not tenable and those are entirely on the facts and two courts, who are the masters of facts and they have concluded of like that. Further the learned appellate court has re-examined the finding of the learned trial court in Title Appeal No. 09 of 2010 and has incorporated the point and after discussing the evidence, i.e. oral as well as documentary and dismissed the appeal. 18. There were concurrent findings of the learned trial court as well as first learned appellate court and the said findings of the of both the courts are upon appreciation of the entire evidence available on record and therefore unless concurrent findings recorded by the courts were found to be perverse, same is not required to be interfered by the High Court in exercise of powers under Section 100 of the CPC. 19. 19. No illegality is involved and also no substantial question of law is there, in that view of the matter, this appeal is dismissed.