JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. Heard the learned counsel for the appellant. 2. This Second appeal has been filed against the judgement dated 28.04.2008 (decree dated 11.05.2018) passed in Civil (Title) Appeal No.29 of 2008 whereby the appeal has been dismissed. The trial court judgement has been passed by judgement dated 27.05.2008 (decree dated 07.06.2008) in Title Suit No.18 of 2006 whereby the suit was dismissed. Consequently, the plaintiff is the appellant before this Court. 3. The learned counsel for the appellant, while assailing both the judgements, has submitted that the trial court as well as the 1 st appellate court, have held that the suit was barred by limitation. He has submitted that the sale deeds were challenged as soon as the plaintiff had knowledge about the sale deeds and the plaintiff came to know about the sale deed for the first time on 06.01.2003 and then he filed Title Suit No.40 of 2004 and the said suit was withdrawn and ultimately the present suit bearing Title Suit No.18 of 2006 was filed. He submits that liberty was granted to file the fresh suit. 4. The learned counsel has submitted that the material date is the date of knowledge of the sale deeds and this aspect of the matter has not been properly considered while holding that the suit challenging the sale deeds was barred by limitation. The learned counsel has further submitted that even if the challenge to the sale deeds is held to be barred by limitation, then also the defendants could not have sold the property in excess of their share and this aspect of the matter has also not been properly considered. 5. After hearing the learned counsel for the appellant, this Court finds that Title Suit No.18 of 2006 was filed by the plaintiff against the contesting defendant nos.1 to 3 seeking cancellation of sale deed no.7168 dated 10.10.1977, sale deed no.7759 dated 07.11.1977 and sale deed no.7760 dated 07.11.1977, which were executed in favour of the defendant nos.1 to 3. 6. After hearing the learned counsel for the appellant, this Court finds that Title Suit No.18 of 2006 was filed by the plaintiff against the contesting defendant nos.1 to 3 seeking cancellation of sale deed no.7168 dated 10.10.1977, sale deed no.7759 dated 07.11.1977 and sale deed no.7760 dated 07.11.1977, which were executed in favour of the defendant nos.1 to 3. 6. The case of the plaintiff was that the manager of Ram Garh ward estate settled the land in CS Khata No.1/14, plot no.388, 156 and 115 area 5.32 acres in the name of Dodi Gope, son of Mohar Gope and Niro Gope, son of Dilo Gope by way of hukumnama dated 03.09.1935 and they came in possession of the property and their name was entered in jamabandi register of Hazaribagh estate. After abolition of jamindari, the government also confirmed their possession and rent receipts were issued in their name. It was the further case that during the survey, new plot numbers were carved out but it was wrongly recorded in RS record of rights in the name of Niro Gope and Dilo Gope one ansh and Lekho, Rupan, Babu and Dharam one ansh. It was their case that the entry in records of rights was not within the knowledge of the descendants of Dodi and Dilo Gope. However, the descendants of Dodi and Niro Gope came in joint cultivating possession over the land of old khata no.1/49 and new khata no.32. Further case of the plaintiff was that plaintiff Lakhan Gope was the karta of joint family of deceased Mohar Gope and the defendants had filed a Case No.95/03 under Section 144 Cr.P.C in the court of SDM, Koderma in which notice was issued and then the plaintiff (Lakhan Gope) for the first time came to know about the fact that- a. Niro Gope had executed a sale deed no.7168 dated 10.10.1977 in favour of Bhagwat Thakur and others for 1.04 acres of land of khata no.32 b. Lekho, Babun and Dharam had executed sale deed no.7759 for about 0.19 decimal of plot no.686 khata no.32 in favour of Bhagwat Thakur and others c. Lekho, Babun and Dharam executed sale deed no.7760 with respect to plot no.663 area 0.30 decimal in plot no.590 area 29 decimal and plot no.599 area 29 decimal total 0.85 decimal in favour of Dharam Hazam. 7. 7. It was the case of the plaintiff that Niro Gope had expired in 1972 therefore there was no question of executing sale deed no.7168 dated 10.10.1977 in favour of Bhagwat and Raghunath Thakur. It was the further case of the plaintiff that the vendors of the sale deeds had no right to sell the joint family property in favour of the defendants and that the sale deeds were never acted upon till the date of the filing of the suit and the deeds are void, inoperative, forged and fabricated and the defendants have no right, title and interest and possession over the purchased land arising out of the sale deeds. As per the plaintiff, the cause of action arose when they obtained the certified copy of the sale deeds on 06.01.2003 and 02.08.2004. 8. As is apparent from the trial court judgement, defendant nos.4 to 10 were proforma defendants, who had filed their written statement admitting the case of the plaintiffs. The contesting defendants were defendant nos.1 to 3, who filed their written statement stating that the suit was not maintainable and the plaintiffs did not have any valid cause of action and the suit was also barred by limitation and adverse possession. It was also bad for non-joinder and mis-joinder of the necessary party because the recorded tenant Bhupat Gope, Lato Gope and Bandhan Gope or their descendants were not made party in the suit. It was also asserted that the recorded tenant, Niro Gope also died leaving behind his two sons Jhaman Gope and Nanhu Gope and a daughter Parwa Devi but all the descendants of Niro Gope were not made party in the suit. Likewise, the recorded tenant Rupan Gope died leaving behind his widow, but she was also not made party. Thus, all the descendants of the recorded tenants were necessary party in the suit. 9. It was also asserted by the defendants that initially the Title Suit No.40 of 2004 was filed against the same defendants with respect to the same property and the same cause of action and for the same relief and the suit was withdrawn by the plaintiff without any permission to file fresh suit and therefore the suit was hit by Order II Rule 2 CPC. 10. 10. The defendants denied the fact that there was unity of title and of possession between the descendants of Niro Gope and Dodi Gope with respect to the land of khata no.32 and also asserted that the statement of the plaintiff is self-contradictory with respect to pleading in Title Suit No.40 of 2004. It was also asserted that the plaintiff in his pleading in Title Suit No.40 of 2004 stated that Dilo Gope and Dodi Gope had partitioned the land of the suit khata no.1/49 in the lifetime by metes and bounds and each got ½ and ½ share in each plot but in this suit, the plaintiff has made self-contradictory statement and stated that there was unity of title and possession with respect to the suit land amongst the descendants of Dilo Gope and Dodi Gope. 11. It was also asserted by the defendants that the suit land was partitioned by metes and bounds and exclusive possession was granted and ultimately the sale deeds were executed and the purchaser were put in possession of the property and they were in peaceful continuous possession and the property was also mutated in their name and they were paying rent to the State government within the knowledge of the plaintiffs. The defendants also claimed adverse and hostile possession from the date of execution of the sale deed no.7760 dated 07.11.1977. It was asserted that the sale deed was executed and registered within the full knowledge of the plaintiffs and their ancestors and the plaintiffs and the proforma defendant nos.4 to 6 have no right and possession over the suit lands. Reliance was also placed on the recital of the sale deed. 12. The defendants denied the fact that Niro Gope died in the year 1972 but they asserted that he died in the year 1985 and he had executed the sale deed no.2617 dated 26.02.1982 with respect to khata no.31 area 1.58 acres in favour of sons of plaintiff no.1 of Title Suit No.40 of 2004 namely Jhaman Mahto and the sons of Jhaman Mahto also came in possession of the purchased land which falsifies the statement of the plaintiff that Niro Gope died in the year 1973 before execution of the sale deed no.7168 dated 10.10.1977. 13. 13. It was also asserted by the defendants that after partition, the plaintiffs also came in exclusive possession of their share and they also sold the property vide registered sale deed no.3485 dated 12.02.1975 in favour of Samri Devi and Prema Devi and they were put in possession of the property. They have also mutated the property in their name and have been paying rent regularly to the State. The plaintiffs did not make the aforesaid purchasers namely Samri Devi and Prema Devi parties in this suit. The defendants further referred to another sale deed no.7759 dated 07.11.1977 and again asserted that the sale deed was executed after full knowledge of the plaintiffs and mutation was also done. 14. The defendants denied the existence of joint family. They also denied that the plaintiffs had no knowledge about the sale deeds in question and that they came to know about the sale deeds for the first time in a proceeding under Section 144 Cr.P.C. They further stated that the sale deeds were valid and acted upon and they were in possession of the property. The suit was barred by limitation. 15. Following issues were framed by the learned trial court: 1) Whether the suit is maintainable? 2) Whether the Pf. has valid cause of action for this suit? 3) Whether the suit is barred by the principle of waiver, estoppel and acquisence? 4) Whether the suit is barred by law of limitation and adverse possession? 5) Whether the suit is barred U/O-II, Rule- 2 CPC? 6) Whether the family of Dodi and Dilo Gope was joint possession over the suit land descrined in Sch-'A' of the plaint at the time of executior of sale deeds No.-7168 dt- 10.10.1977, sale deed No.-7760 dt-7.11.1977 and sale deed No.-7759 dt-7.11.1977? 7) Whether the sale deed No.-7168 dt-10.10.1977, sale deed No.-7760 dt-7.11.1977 and sale deed No.-7759 dt.- 7.11.1977 are liable to be cancelled? 8) Whether the sale deed No.-7168 dt. 10.10.1977, sale deed No.-7760 dt.-7.11.1977 and sale deed No.-7759 dt.-7.11.1977 are valid and genuine and Dfs. are in possession over the suit land from the date of execution of sale deeds with the knowledge of Pf. and their ancestor and wholeworld and they also perfected their right, title, over the suit land on the basis of adverse possession? 9) Whether the possessions of suit land have not been delivered to Dfs. are in possession over the suit land from the date of execution of sale deeds with the knowledge of Pf. and their ancestor and wholeworld and they also perfected their right, title, over the suit land on the basis of adverse possession? 9) Whether the possessions of suit land have not been delivered to Dfs. till now and suit land is in still continuous possession of Pf.? 10) Whether the plaintiff is entitled the cost of suit against contesting Df. No.-1 to 3? 11) Whether any other relief or reliefs, the plaintiffs is entitled too? 16. Both the parties adduced oral and documentary evidence. 17. The learned trial court considered the issue no.4 vide paragraph 9 as to Whether the suit is barred by law of limitation and adverse possession, and after considering the material on record, including the various mutation orders and also the fact that the plaintiffs had pleaded in earlier Title Suit No.40 of 2004 that the suit property was partitioned by metes and bounds in between the recorded raiyats Niro Gope and Dodi during their lifetime and in the present suit, the plaintiff had taken a contradictory stand that the suit property was jointly held and that the plaintiffs had full knowledge about the sale deeds under challenge and the suit was barred by limitation and it was also held that the contesting defendants were in possession of the suit property by virtue of the impugned sale deeds right from the date of their execution. The learned trial court ultimately recorded their finding in paragraph 9 as follows: “9.… On the above discussion, I find that it is admitted fact that suit property was acquired by Niro Gope S/o Dilo Gope and Dodi Gope, S/o Mohar Gope jointly. It is also admitted fact that old khata no.-1/49 converted in new khata no.-32 and old plot no.-388 is converted in new 18 plots area-3.02 acres. It is also pleaded by Pf. in T.S.-40/04 that the father of Niro Gope namely Dilo Gope and Dodi Gope cutting the bush and shrub over the suit land, then, it was settled in the name of Dodi Gope s/o Mohar Gope and Niro Gope s/o Dilo Gope. It presumes that at the time of acquisition of suit land, the family of Dilo Gop and Dodi Gope was joint. The Pf. It presumes that at the time of acquisition of suit land, the family of Dilo Gop and Dodi Gope was joint. The Pf. himself stated in his pleadings in T.S -40/04 that Dilo Gope and Dodi Gope partitioned the suit land half and half in his life time. But in this suit Pf. contradict his version and pleaded that family of Pf. and parforma Df. is still joint and suit land is also still joint. So, Pf. is stopped to contradict his version previously stated in his pleadings of TS No.40/04 u/s 115 of Evidence Act. The recital of sale deeds filed by the Dfs. also proved this fact that partition was made by way of family arrangement in between the ancestor of Pf. and proforma Df. about suit property. The khatiyan of R.S. proved this fact that the record of right was prepared in the name of decendants of Dodi Gope and Dilo Gope, but in place of half share in suit property, the share of decendants of Dodi Gope was recorded as 1/3rd share, but it was not objected by the Pf. within 12 years after preparation of record of rights. Pf. stated in his pleadings that he and his ancestors has no any knowledge of him about the entry of Revenue record of rights but he did not disclose that when he got the knowledge about the entry of RS. It makes the presumption against the Pf. that he and his ancestor have full knowledge about the entry of record of rights and that entry was not challenged by him within 12 years from the publication of R.S. survey. So, after lapse of 12 years the challenging the entry of R.S. record of right is barred by law of limitation. Pf. unable to file rent receipt after the year 1960 about the share of Dodi Gope in suit property in the name of descendant of Dodi Gope after abolition of Jamindari. He also not pleaded in his pleading that when rent receipt was not issued about the suit property for half share of Dodi Gope, then, why he did not make any objection before prescribed authority for issuing the rent receipt about his half share in the name of descendant of Dodi Gope. It makes presumption that Pf. He also not pleaded in his pleading that when rent receipt was not issued about the suit property for half share of Dodi Gope, then, why he did not make any objection before prescribed authority for issuing the rent receipt about his half share in the name of descendant of Dodi Gope. It makes presumption that Pf. admitted the entry of R.S. survey and possession of descendants of Dilo Gope and Shiva Gope over the suit land. According to the recorded share of descendants of Dilo, Shiva and Dodi Gope in R.S. record. It is also proved fact that Niro Gope died after the year 1982 because one sale deed was executed by Niro Gope in the name of Laldhari and Hutash mahato S/O Jhaman Mahto. said Jhaman was one of the Pf. along with this Pf. in T.S.-40/04. I also found that mutation of suit property was done in favour of Df in the year 1977-78. But Pf. did not make any objection in Mutation case and also not filed any appeal against mutation order about suit property. The continuous rent receipt about suit property after purchasing the same by the contesting Df. and oral evidence of Df. proved the possession of contesting Df. over suit property. I also find that Pf. has full knowledge about the sale deed of Df, but he did not file any suit for cancellation the same within 3 years from its execution and I also find that Df. are in continuous possession over the suit land within the knowledge of Pf. and his ancestor from the execution of sale deed. So, contesting Df. perfected his right, title over the suit land on the basis of adverse possession also. So, I find and held that the suit is barred by law of limitation and adverse possession. so, this issue is decided against the plaintiff.” 18. The learned trial court ultimately decided issue no. 4 against the plaintiffs and held that the plaintiff had full knowledge with regard to the sale deeds of the defendants, but he did not file any suit for cancellation within 3 years of its execution. The court also recorded that the defendants had been in continuous possession of the suit land since the execution of the sale deeds, with the knowledge of the plaintiffs and their ancestors, from the date of such execution. The court also recorded that the defendants had been in continuous possession of the suit land since the execution of the sale deeds, with the knowledge of the plaintiffs and their ancestors, from the date of such execution. The learned trial court held that the suit was barred by limitation and also by adverse possession. While considering issue no.6, reference was made to the discussion at the time of deciding issue no.4 and it was held that at the time of execution of the Sale Deed Nos.7168, 7759 and 7760, the suit land was already partitioned between the ancestor of the plaintiffs and it was not in joint possession of the family of the plaintiff and the proforma defendants. While considering the issue nos.7 and 8 also, a reference was made to the discussion while deciding issue no.4 and it was held that the aforesaid three sale deeds are valid and genuine. It was further held that the defendants were in possession of the suit land pursuant to the execution of the sale deeds in their favour, with the knowledge of the plaintiffs, their ancestor, and the whole world and that the defendants had perfected their right and title over the suit land through adverse possession, and therefore, the sale deeds were not liable to be cancelled. Issue no.9 was also decided by making reference to the discussion made by considering issue no.4 and it was held that the suit land was in possession of the defendants and the possession was delivered in favour of the contesting defendants from the date of execution of the sale deeds. Issue No. 3 was also decided with reference to the discussion made while deciding Issue No. 4. It was held that the plaintiffs’ suit was barred by limitation and therefore it was presumed that the plaintiffs had waived their right to challenge the sale deeds within the prescribed period under law. Accordingly, the suit was held to be barred by principles of waiver, estoppel, and acquiescence. While deciding issue nos.1 and 2 , the learned trial court referred to the findings regarding Issue Nos.3 to 9 and held that the suit was not maintainable and the plaintiff had no valid cause of action. Accordingly, the suit was held to be barred by principles of waiver, estoppel, and acquiescence. While deciding issue nos.1 and 2 , the learned trial court referred to the findings regarding Issue Nos.3 to 9 and held that the suit was not maintainable and the plaintiff had no valid cause of action. Issue no.10 was decided by referring to the decision in Issue Nos.1 to 9 and it was held that the plaintiff was not entitled to the cost of the suit from the contesting defendant nos.1 to 3. While deciding issue no.11, it was held that the plaintiff was not entitled to any relief. However, while deciding issue no.5 , it was held that the suit was not barred under Order II Rule 2 of Code of Civil Procedure as the earlier Title Suit No.40 of 2004 was withdrawn with a liberty to file a fresh suit. Accordingly, issue no.5 was decided against the defendants. Thus, all the issues, except the issue no.5, were decided against the plaintiff and in favour of the contesting defendants. 19. The learned 1 st appellate court framed the points for determination in paragraph 13 as follows: I. Is the suit barred by law of limitation? II. Whether the sale-deed no.7168 dt. 10.10.1977, sale- deed no.7759 & 7760 dated 7.11.1977 can be cancelled declared null & void and whether the vendor of property mentioned in these sale-deeds are not competent authority to sell the property? III. Whether the sale-deeds in question are acted upon or not? IV. Whether the judgment and decree passed by learned trial court requires any interference?” 20. The learned 1 st appellate court has also considered all the materials on record and recorded concurrent findings. The court gave concurrent finding, inter alia, on the point of limitation and also on the point of previous partition. With respect to previous partition, the learned 1 st appellate court after discussing the materials on record in details concluded in paragraph 19 that it is settled principle of law that under the Hindu Law governed by Mitaxra, a joint family carries a presumption of jointness and it is also well known that the person who sets up the plea of partition must prove the same and that a partition amongst the co-parceners takes place when they in unequivocal terms declare their intention to separate. It has been further observed that it is well known that although separate mess, separate residence, separate cultivation of the properties by themselves may not be conclusive proof of partition, but taking into consideration the cumulative effect thereof, the same may lead to an interference of partition. The learned 1 st appellate court held that from perusal of recital of Ext. B and other sale deeds, it was quite clear that Niro Gope has disclosed his intention to separate from other co-parceners and the recitals of the deeds and also oral evidences have been considered in subsequent paragraphs of the judgement. The plea that Niro Gope had expired in the year 1972 before execution of the sale deed no. 7168 dated 10.11.1977 was also rejected by considering the materials on record. In page no.27 of the judgement, the following findings were ultimately recorded after considering the materials on record: - “Therefore, Considering the above facts and circumstances, after going through the entire material available on record and discussions made above, I come to the conclusion and hold that the plaintiff has completely failed to prove his pleading. The defendants/respondents have successfully proved that sale-deed in question are acted upon and these respondents are coming in peaceful possession over the suit land after pruchasing from rightful owner. Accordingly, these point is decided against the plaintiff/appellant.” 21. The point of limitation was decided vide paragraph 30 onwards and after considering the materials on record in details, it has been held that the suit was hopelessly barred by limitation and there was no cause of action to file the suit. The extracts of some of the findings of the learned 1 st appellate court on the point of limitation based on appreciation of materials on record are as under: - “34. So far cancellation of sale-deeds is concerned, the plaintiff has pleaded that he has no knowledge about the sale-deeds. He got knowledge about the sale-deeds in question first time on 6.1.2003 and then he filed the suit. From perusal of sale-deeds in question it appears that sale- deeds had been executed by the ancestor of plaintiff. Not only this but defendant no.4, 5 and father of defendant no.6, 7, 8 had executed the sale-deeds in favour of defendant no.1 to 3. From perusal of sale-deeds in question it appears that sale- deeds had been executed by the ancestor of plaintiff. Not only this but defendant no.4, 5 and father of defendant no.6, 7, 8 had executed the sale-deeds in favour of defendant no.1 to 3. They have full knowledge about the sale-deed but they did not take any step to cancel the same rather the plaintiff and PW-2 had filed a T.S. No. 40/2004 which was ultimately withdrawn and in this suit PW-2 has been appeared before the court as witness. Some of the executant of sale-deeds are alive and some of the executants were also alive at the time of hearing the suit before the lower court but they did not appear in the witness box. 35. So far oral evidence is concerned, PW-1 (Plaintiff) has stated that he got knowledge first time on 25.9.2003 about the execution of sale-deeds in favour of defendant no.1 to 3. But other witnesses have not stated even a single word in support of the pleading or evidence given by PW-1 specially regarding cause of action, but the plaintiff has not produced other recorded raiyet before the court for his deposition which also creates a doubt on the pleading of plaintiff. Therefore, on this score the suit is also hopelessly barred by law of limitation. …………………………………………………………. Admittedly, the deeds in question have been executed in the year 1977 and the suit has been filed in the year 2006 with a prayer to declare null and void. Therefore, the suit is also hopelessly barred by law of limitation and plaintiff has no valid cause of action for the suit. The cause of action mentioned in the plaint appears to be imaginary, false and concocted and only with a view to bring the suit within prescribed period of limitation. 41. The plaintiff has not produced any document to prove that he has filed the suit within 12 years from final publication of minor survey record of right i.e. 31.12.1966. This suit has been filed by the plaintiff before the learned trial court on 27.3.2006 after 39 years from the years of final publication of revisional record of rights. Therefore. the suit is also hopelessly barred by law of limitation in view of the Judgment passed by our Hon'ble Court, in Dwarika Sonar (Supra) and Jiteshwar Yadav (Supra). 42. This suit has been filed by the plaintiff before the learned trial court on 27.3.2006 after 39 years from the years of final publication of revisional record of rights. Therefore. the suit is also hopelessly barred by law of limitation in view of the Judgment passed by our Hon'ble Court, in Dwarika Sonar (Supra) and Jiteshwar Yadav (Supra). 42. Sec.58 of Limitation Act clearly prescribed the three years limitation to obtain any other declaration from when the right to sue first accrue. But the plaintiffs have not filed this suit within three years. Considering the above facts and circumstances and discussions made above, coupled with relevant point by the Hon'ble Court, I come to the conclusion and hold that the suit is hopelessly barred by law of limitation and the learned trial court has rightly held that the suit is barred by law of limitation and rightly decided issue no.4 against the plaintiffs. Accordingly, the point for consideration no. I is hereby decided against the appellant/plaintiff.” 22. This Court finds that there are concurrent findings recorded by both the courts after considering the materials on record on merits, and further the suit was also held to be hopelessly barred by limitation. The findings are findings on facts and no perversity as such has been pointed out by the learned counsel for the appellants. As no substantial question of law is involved, this second appeal is hereby dismissed. 23. Pending interlocutory application, if any, is dismissed as not pressed. 24. 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