JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard Mr. Manjul Prasad, learned senior counsel assisted by Mr. Baban Prasad, learned counsel for the appellants and Mr. Sudhir Kumar Sharma, learned counsel assisted by Mr. Shashi Shekhar Dwivedi, learned counsel for the respondents. 2. The instant second appeal has been preferred against the judgment of reversal dated 11.07.2003 and decree signed on 22.07.2003 passed by learned Additional District Judge, Fast Track Court, Seraikella-Kharswan in Title Appeal No. 5/1996, whereby and whereunder, the appeal has been allowed and the judgment dated 18.01.1996 and decree signed on 05.02.1996 passed by learned Subordinate Judge-II, Seraikella in Title Suit No. 47/1988 has been set aside. FACTUAL MATRIX 3. The factual matrix giving rise to this second appeal is that the plaintiffs / respondents have instituted a title suit bearing Title Suit No. 47 of 1988 seeking relief for declaration of their right, title and interest over the property described in Schedule-A of the plaint and also for recovery of khas possession thereof after ejecting the defendants from the suit land along with cost of the suit. The case of the plaintiffs is that the suit Schedule-A land stands recorded in the name of one Raghu Kumhar, son of Gopal Ram in survey settlement operation which have been finally published on 05.02.1964. In the remarks column of the said Khatian, against Plot No. 2692 of Khata No. 325, the name of one Ganga Ram has been shown as sikmi dakhaldar. Similarly, against the rest plots of the said Khata, the name of one Radha Kumhar had been entered as sikmi dakhaldar. The said Ganga Ram is the father of Radha Nath Kumhar. It is further alleged that the father of the plaintiffs Raghu Kumhar entrusted the suit land to look after the cultivation work on remuneration basis, which was fixed as half of the yield. The said Ganga Ram used to deliver half of the total yield only of the suit land to Raghu Kumhar during his life time and after his death, son of Ganga Ram namely, Radha Nath Kumhar approached the plaintiffs’ father and, on his request, the said system of cultivation and share continued as usual on the basis of half share of annual yield of the suit property. It is further alleged that Radha Nath Kumhar died near about 9-10 years ago, leaving behind his four sons namely, Manoranjan Kumhar, Premchand Kumhar, Kalu Ram Kumhar and Jhiman Ram Kumhar, who approached the plaintiffs for cultivation on above terms and conditions and also started giving half yield to the plaintiffs, but in the year 1987, when the defendants, who are sons and grandsons of Radha Nath Kumhar did not paid the half yield to the plaintiffs and on demand of the plaintiffs, they refused to pay anything in kind or cash and started claiming title over the suit property, casting clouds over the title and right of the plaintiffs over the suit property. Hence, the suit. 4. On the other hand, the case of defendants, as per their written statement, is that they have denied the right, title and interest of the plaintiffs. It was also denied that Raghu Kumhar was the recorded raiyat and the survey record of right is not correct, wherein it has shown that land is raiyati land of Raghu Kumhar and the suit land is raiyati land of Ganga Ram Kumhar and he was possessing the land in his own right. The defendants have also denied that they were never sikmi dakhaldars or bataidars of the plaintiffs at any point of time. Therefore, no cause of action for the suit arises in favour of plaintiffs. 5. The trial court, on the basis of pleadings of the parties, has settled following issues for adjudication:- I. Is the suit, as framed, maintainable? II. Have the plaintiffs cause of action for the suit? III. Is the suit barred under Section 34 of SPECIFIC RELIEF ACT or under the provisions of C.N.T. Act? IV. Is the suit barred under Article 65 of Limitation Act? V. Whether any Notice U/S 106 of the T.P. Act was necessary to be served on the defendants before filing of this suit ? VI. Is the suit bad for non-joinder of necessary party? VII. Is the suit under-valued and has ad valorem court fee been paid? VIII. Have the defendants perfected right, title and interest in the suit property by adverse possession? IX. Whether the defendants are and their forefathers were Sikmidar of the suit land in question and can they be evicted? X. To what relief or reliefs the plaintiffs are entitled? 6. Is the suit under-valued and has ad valorem court fee been paid? VIII. Have the defendants perfected right, title and interest in the suit property by adverse possession? IX. Whether the defendants are and their forefathers were Sikmidar of the suit land in question and can they be evicted? X. To what relief or reliefs the plaintiffs are entitled? 6. The learned trial court has decided almost all the issues against the plaintiffs and dismissed the suit on wrong assumption that the sikmi kashtkar / under raiyat is a lessee and as per provisions of Section 46(1)(a) of the C.N.T. Act, no lease can be created beyond five years. It was also found that the suit is barred by the provisions of Section 34 of the SPECIFIC RELIEF ACT inasmuch as the plaintiffs has not claimed any relief for declaration that in the Khatian, the status of Radha Nath Kumhar recorded as sikmi dakhaldar as wrong entry and not binding to the plaintiffs. It was also held that no notice under Section 106 of the Transfer of Properties Act was given by the plaintiffs to the defendants. 7. The trial court with respect to the vital issue nos. VIII & IX has held that since the defendants are in continuous possession over the suit land since the time of their forefathers, who have perfected their right, title and interest over the suit land through adverse possession. Therefore, the suit of the plaintiffs was dismissed on contest with cost. 8. The plaintiffs have filed Title Appeal No. 5 of 1996. The appellate court formulated sole point for determination i.e. What is the nature of possession of the defendants over the suit land against which the plaintiff has demanded recovery of possession after ejecting them? 9. The learned appellate court re-appreciated the oral as well as documentary evidence adduced during trial of the case and arrived at different finding that Exhibit-1 and 1/A relied upon by the plaintiffs shows that rent was being paid by the plaintiffs for the disputed land No rent receipt has been filed by the defendants. Exhibit-2 (Khatian) also shows that in ownership column, the name of Raghu Kumhar is there, whereas the name of Ganga Ram and Radha Nath Kumhar are mentioned in remarks column as Sikmidar. The above documents are unrebutted by the defendants by adducing any other documents. Exhibit-2 (Khatian) also shows that in ownership column, the name of Raghu Kumhar is there, whereas the name of Ganga Ram and Radha Nath Kumhar are mentioned in remarks column as Sikmidar. The above documents are unrebutted by the defendants by adducing any other documents. It was further observed that the burden of proving the adverse possession is on the defendants. They have examined only oral witnesses claiming to be possessing the suit land since 70-75 years. For first 30 years Ganga Ram Kumhar was in possession and after him, his son Radha Nath Kumhar was in possession for 20-25 years and after his death, present defendants came in possession of the suit land since last 20-22 years. It was admitted that the suit was filed in 1988 and his father Radha Nath Kumhar has died in the year 1978- 79. Thereafter, the present defendants’ possession comes around 9-10 years ago. The defendants have also denied cultivation of land as adh-bataidar. The defendants have also admitted that the settlement entries during survey settlement operation was never objected nor they requested to Settlement Officer to enter their names in the ownership column. All the defendant witnesses have failed to prove as to how and in what capacity they have come in possession of the suit property. The revenue record shows the ownership of ancestors of plaintiffs and in remarks column ancestors of defendants have been shown as sikmi dakhaldar. There is no legal necessity to get declaration to remove the names of sikmi dakhaldar mentioned in the record of right by the plaintiffs. It was also held that the interest of an under raiyat with occupancy status is not heritable under the law though it may be heritable by custom. The defendants are not claiming themselves to be sikmi dakhaldar as against the entry in the survey record of rights. Therefore, the status of defendants is nothing more than that of a trespasser, who are liable to be ejected from the suit property. 10. On the basis of discussion of evidence, the learned appellate court set aside the judgment and decree of dismissal of suit of the plaintiffs and reversed the finding of the learned trial court with sound reasoning and allowed the appeal, decreeing the suit of the plaintiffs. 11. 10. On the basis of discussion of evidence, the learned appellate court set aside the judgment and decree of dismissal of suit of the plaintiffs and reversed the finding of the learned trial court with sound reasoning and allowed the appeal, decreeing the suit of the plaintiffs. 11. This second appeal has been admitted for hearing on the following substantial question of law:- “Whether in view of the specific pleading of Bataidar since the time of grandfather of the defendants, against the entry of record of right by the plaintiffs, the learned Court of appeal below erred in making out a third case of trespassers and erred in reversing all the main issues ?” 12. Learned counsel for the appellants pressing the aforesaid substantial question of law has vehemently argued that the learned trial court has very wisely and aptly hold that the suit is barred by provisions of Section 34 of the SPECIFIC RELIEF ACT as well as Section 46(1)(a) of the C.N.T. Act and Section 106 of the Transfer of Property Act, which has been ignored by the learned first appellate court without assigning any valid reasons. 13. It is further submitted that the learned appellate court has miserably failed to appreciate the possession of the defendants / appellants by remaining in possession since time of their forefathers i.e. 70-75 years. As per Village Custom, Sikmidar right is heritable one. Therefore, the appellants have got status of permanent occupancy raiyat, which has not been considered by the first appellate court. 14. It is further submitted that as regards nature of possession of the appellants, the learned first appellate court has set up a third case, which was not pleaded by either party that the defendants are trespassers over the suit land. 15. On the other hand, refuting the aforesaid contentions raised on behalf of the appellants, learned counsel for the respondents has submitted that the learned first appellate court has very wisely and aptly appreciated the documentary evidence adduced by the plaintiffs, who are owner of the suit property which is an admitted fact. The basis of claim of title of respondents is only that their forefathers were recorded as sikmi dakhaldar in the remark column of records of right. The defendants never approached before the competent authority to correct entries and showing their status as an absolute owner on the basis of permanent occupancy rights. 16. The basis of claim of title of respondents is only that their forefathers were recorded as sikmi dakhaldar in the remark column of records of right. The defendants never approached before the competent authority to correct entries and showing their status as an absolute owner on the basis of permanent occupancy rights. 16. It is further submitted that the right of Sikmidar extinguishes upon his death. It is apparent from evidence on record that at first Raghu Nath Kumhar was Sikmidar under the recorded raiyat, his son Ganga Ram Kumhar also remained in same status, who died in the year 1978-79. No custom has been proved by defendants / appellants regarding heritable right of Sikmidar through customs prevailing in the locality. 17. Learned counsel for the respondents has placed reliance upon the reported judgment in the case of Johan Uraon (Ekka) & Another Vs. Sitaram Sao (Bhagat) reported in AIR 1964 Patna 31 , wherein it has been held that :- “It is well settled that the interest of an under- raiyat (dar raiyati interest) with occupancy status is not heritable under the law though it may be heritable by custom. Where, in a suit for eviction the defence was that the defendants had acquired permanent occupancy rights in the disputed lands from their father who had acquired those rights by prescription, and both the Courts below concurrently held that the custom of heritability was not established, the status of the defendants was nothing more than that of a trespasser and they were liable to be ejected.” 18. Learned counsel for the respondents has further placed reliance upon the reported judgment of Hon’ble Apex Court in the case of Roop Singh (dead) through Lrs. Vs. Ram Singh (dead) through Lrs. , reported in (2000) 3 SCC 708 , wherein doctrine of adverse possession has been entertained and it was held that permissive possession for long does not convert to adverse possession – Claimant by cogent and convincing evidence must show hostile animus and possession adverse to the knowledge of real owner. 19. In the instant case, the essential ingredients for claiming adverse possession has not been proved by defendants and rightly been held by the first appellate court. Hence, this appeal has not no merits and fit to be dismissed. 20. 19. In the instant case, the essential ingredients for claiming adverse possession has not been proved by defendants and rightly been held by the first appellate court. Hence, this appeal has not no merits and fit to be dismissed. 20. I have gone through the impugned judgment passed by the learned trial court as well as first appellate court in the light of submissions raised on behalf of both the parties. The substantial question of law formulated in this case appears to be absurd and against the documentary evidence filed by the plaintiffs / respondents. The admitted position in this case is that the defendants’ forefather i.e. father and grandfather were sikmi dakhaldar over the suit land and the plaintiffs are descendants of recorded raiyat of the Survey Settlement Khatiyan (Exhibit-2) and regularly paying rent to the Government. 21. It is settled law that the dar raiyat interest is not heritable unless repugnant to the prevailing customs is proved. Therefore, continuance of the possession of appellants / defendants is nothing more than of a trespasser as has been held in the case of Johan Uraon (Ekka) & Another (Supra) and relied upon by first appellate court. 22. In view of aforesaid discussions and reasons, I do not find any merit in the argument advanced by learned counsel for the appellants regarding bar of suit under Section 46(1)(a) of the C.N.T. Act or under Section 34 of the SPECIFIC RELIEF ACT or Section 106 of the Transfer of Property Act, which are not applicable at all. 23. In view of the above discussions, I do not find any merit in this appeal, which stands dismissed. 24. Pending I.A., if any, stands disposed of. 25. Let a copy of this judgment along with trial courts record be sent back to the court concerned for information and needful.