JUDGMENT
Das, J.
1. This is a second appeal by defendants 2, 3, 6 and heirs of defendant 5 from the decision of the learned Additional Subordinate Judge of Darbhanga, dated 31st March 1948, reversing in part the judgment and decree of the learned Munsif of Madhubani, dated 26th May 1947, in a suit for a declaration of title and possession of 1 bigha, 12 kathas and 1 1/2 dhurs of land forming part of two plots 10630 and 10631, and of plot no. 6661 in its entirety. The case of the plaintiffs-respondents was that they bad purchased the lauds from two persons Faturi Jha and Bulan Jha, defendants 9 and 10 in the auction. The sale-deed in favour of the plaintiffs-respondents was dated 18th of November 1943. There were three persons named Ramji Jha, Nanda Jha and Durgadut Jha, Durgadut died issuelees. Ramji had two sons, Markande Jha and Chiranjib Jha. Nanda had a son called Lambodar Jha. Admittedly, Lambodar Jha separated from Markande Jha and Chiranjib Jha. The case of the plaintiffs-respondents was that there was a partition between Markande and Chiranjib also, and as a result of such partition, the three plots in question fell to the share of Chiranjib Jha. The plaintiffs-respondents alleged that they had purchased two thirds share from Faturi Jha and Bulan Jha, grandson and son respectively of Chiranjib Jha. Defendant 7 was the widow of Chiranjib Jha, and defendant 8 was the widow of another son of Chiranjib called Kulanand Jha. The main contest was by defendants 1st party. There were two sets amongst defendants 1st party. One set consisted of defendants 1 and 4, and the other set of defendants 3, 3, 5 and 6. The present appellants represent the second set. On behalf of these defendants, the plea taken was that the disputed plots were the joint property of Markande Jha and Chiranjib Jha. It was alleged that Markande and Chiranjib were members of a joint family, and Markande was the karta. Markande executed two registered sale-deeds, one on 6th January 1892, and the other on 16th January 1892 The Courts below concurrently found that the sale-deed of 8th January 1892, related to plot No. 10631, and the other sale-deed of 16th January 1892, related to plots 10630 and 6661. The defendants first party who relied on these two sale-deeds, said that Markande as karta of the family having sold the lands to the defendants, the plaintiffs-respondents had acquired no title by reason of the sale-deed in their favour executed on 18th November 1943.
2. The learned Munsif, who dealt with the suit in the first instance, held that Markande and Chiranjib were members of a joint family who owned and were in possession of the disputed plots, and Markande was the karta of the joint family. He further held that the defendants had acquired good title by the two sale-deeds of 1892, both of which were valid and operative. He held that the defendants were in possession since 1892. On these findings, the suit was dismissed. The learned Subordinate Judge affirmed the finding of the learned Munsif on the question of Markande and Chiranjib being members of a joint family of which Markande was the karta. He held, however, that only one of the sale deeds, namely, that executed on 8th January 1892, was valid and operative. He held that the other sale-deed dated 16th January 1892, was not valid or operative. He further found that the vendors of the plaintiffs respondents and co-sharers were in possession of the disputed plots on the day on which the sale-deed in favour of the plaintiffs, respondents was executed. On these findings, he gave a decree for joint possession to the plaintiffs respondents with regard to the two plots covered by the sale-deed of 16th January 1892.
3. Learned counsel for the appellants has taken three substantial points before me. Firstly, he has contended that the learned Subordinate Judge did not consider how the plaintiffs respondents acquired any title by a purchase from two members of the family when other members of the joint family had not joined; nor did he come to any finding that the persons, who executed the sale-deed in favour of the plaintiffs-respondents, were acting on behalf of the others either as the karta of the family or otherwise. It appears that the learned Subordinate Judge merely found that
the sale deed in favour of the plaintiffs respondents was for consideration. Earlier he had affirmed the finding of the learned Munsif that Markande and Chiranjib were members of a joint family who owned and possessed the disputed plots. Markande left sons. Chiranjib also left heirs other than those who transferred to the plaintiffs-respondents. If all these persons constituted a joint family under the Mitakshara law, no one member would have any specified share in the property. The question how the plaintiffs respondents acquired any title by a purchase from two members of the family only has to be considered and decided. It is not known whether those two members, who sold to the plaintiffs respondents, were junior members in the family or not. If they were junior members, they would not be competent to sell any part of the joint family property, and the purchaser would acquire no title by a purchase from junior members. These questions have to be considered and decided in connection with the title of the plaintiffs respondents. The learned Subordinate Judge has not considered these questions.
4. Secondly, it is contended that the findings of the learned Subordinate Judge with regard to the possession of the plaintiffs-respondents or their vendors is not based on any evidence in the record. The learned Subordinate Judge, it appears, has rejected the oral evidence as to possession of both parties as unsatisfactory. He has referred to some documents which the present-appellants produced to show their possession, such as rent receipts granted in the name of Markande. He has not referred to any documentary evidence on the side of the respondents which would show that the respondents came in possession in 1943, or that their predecessors-in-interest were in possession before 1943. The learned Subordinate Judge seems to have arrived at the finding of possession merely on the presumption that possession follows title. The finding is really based on no evidence, and cannot be accepted as binding in second appeal.
5. Thirdly, it is contended that with regard to the sale-deed of 16th January 1892, the learn, ed Subordinate Judge has committed an error of record, and hag further misdirected himself with regard to the presumption arising out of an entry made in the record-of-rights. In the record-of-rights with regard to plots 10630 and 6661, there is a note in the remarks column to the effect that a suit, numbered 172/106 dated 3rd April 1903, was brought in respect of these two plots by a plaintiff on the strength of a kebala, and the suit) was dismissed. The name of the plaintiff is not mentioned. The date of the sale-deed is not given. The learned Subordinate Judge thought that this entry in the record-of-rights had a statutory presumption of correctness under Section 103B (3), Bihar Tenancy Act. He further held that the plaintiff referred to in the entry meant Biseswar Jha, the transferee under the sale-deed of 16th January 1892. In my opinion, the learned Subordinate Judge was wrong in thinking that there was any statutory presumption of accuracy attaching to that particular entry in the remarks column. The entry about a suit in the Civil Court is not one of the particulars required to be entered under Section 102, Bihar Tenancy Act. In my opinion, the entry was not an authorised entry, and does not carry with it any statutory presumption of accuracy under Section 103B, Bihar Tenancy Act; nor was it an entry made under Section 107 (2) of the said Act. Furthermore, the entry by itself does not show who had unsuccessfully brought the suit regarding those two plots on the strength of a sale-deed. The learned Subordinate Judge said that Janak Jha, a nephew of Biseswar Jha, who had been examined on behalf of the appellants, did not say that Biseswar Jha had not brought any such suit as was referred to in the remarks column of the record-of-rights. From this failure to make a denial, as the learned Subordinate Judge puts it, he concluded that Biseswar Jha was the plaintiff. Learned counsel for the appellants has drawn my attention to the evidence of Janak Jha, D. W. 6. In the examination in chief, this witness had stated very clearly that Biseswar Jha had never filed any case in respect of the disputed lands. The learned Subordinate Judge therefore, committed an error of record when he said that Janak Jha had not denied the entry in the remarks column of the record of rights. This error of record vitiates, to a large extent, the finding of the learned Subordinate Judge. Therefore, the finding of the learned Subordinate Judge with regard to the validity of the sale-deed of 16th January 1892, is vitiated on two substantial grounds: firstly, erroneously thinking that there is a statutory presumption of accuracy attaching to the particular entry in the remarks column of the record of rights; and secondly by committing the error of record mentioned above. That finding cannot, therefore, be accepted as binding in second appeal.
6. The result, therefore, is that the appeal is allowed, the decision of the learned Subordinate Judge is set aside and the case must now go back on remand to the learned Subordinate Judge for a fresh consideration of the evidence and a decision in accordance with law in the light of the observations made above. Coats of this appeal will abide the result of the fresh decision.