JUDGMENT
Vishnudeo Narayan, J.
1. This appeal at the instance of the plaintiffs-appellant has been preferred against the impugned judgment and decree of reversal dated 23.12.1989 and 6.1.1990 respectively passed in Title Appeal No. 117 of 1988 by Shri Manohar Lal Visa, 2nd Additional District Judge, Giridih whereby and whereunder the appeal was allowed and the judgment of the trial Court passed in Title Suit No. 38 of 1985 was set aside and the suit was dismissed.
2. The plaintiff-appellant have filed the said title suit for a declaration that the suit and detailed in the Schedule of the plaint is their raiyati land in which they have their right, title and interest and for recovery of possession evicting the defendants-respondent therefrom. The suit land is 4.06 acres consisting of several plots appertaining to Khata No. 1 Village-Kharna, Police Station-Gomia, District-Giridih.
3. The case of the plaintiffs-appellant (hereinafter referred to as the plaintiff), in brief, is that the suit land was the self-acquired property of Aghanua Mahto, son of Amrita Mahto, recorded in the survey records of right and said Aghanua Mahto died few years after survey operation leaving behind his four sons, Bhagi Mahto, Churo Mahto, Bhadra Mahto and Chattu Mahto and all this four sons jointly inherited the suit land as the members of the joint Hindu Mitakshara family and came in cultivating possession over the same and paid rent to the ex-landlord and got rent receipts. All the four sons of Aghanua Mahto died in the sate of jointness and plaintiff No. 1 Tulo Mahto is the son of Churo Mahto deceased, plaintiff Nos. 2, 3, and 4 are the sons of Bhadra Mahto deceased, plaintiff No. 11 Mangar Mahto is the son of Chattu Mahto deceased and plaintiff Nos. 5, 6 and 7 are the sons of Manger Mahto aforesaid, plaintiff Nos. 8, 9 and 10 are the descendants of Bhagi Mahto deceased aforesaid. It is alleged that the descendants of Aghanua Mahto shifted to Village-Pejuwa in the year 1965 to look after their properties which had been acquired by their ancestor and prior to that plaintiff Nos. 1 and 10 were looking after the properties at Village-Pejuwa. The further case of the plaintiffs is that the defendants-respondent are the relatives of Aghanua Mahto aforesaid being the brother-in-law of the plaintiff, resident of Village-Kharna and they used to look after the suit land at the instance and permission of Aghanua Mahto and they used to maintain themselves from the usufruct of the suit land and they also used to give the part of usufruct to Aghanua Mahto and their descendants. It is alleged that on death of their father, Lalman Mahto, the defendant-respondent continued to cultivate and manage that suit land with the permission of plaintiff Tulo Mahto, Indra Ram Mahto and Manger Mahto and they used the usufruct for their maintenance and used to pay rent of the suit land and the remaining usufruct of the suit land was given to the plaintiffs, who used to sheer between them. It is alleged that the defendants- respondent due to their sheer dishonestly have executed a sale deed dated 11.1.1984 in respect of the suit land in favour of their respective wives and on getting information in respect thereof, the plaintiffs made protest and filed Miscellaneous Eviction Case No. 47 of 1984 before the Circle Officer, Gomia which was disposed of in favour of the plaintiffs and the record of the said case was forwarded to the Deputy Collector, Land Reforms which gave rise to Miscellaneous Case No. 2 of 1985 and recommendation made by the Circle officer was set aside and the plaintiffs were directed to get their title declared by the competent Civil Court in respect of the suit land. Lastly, it has been alleged that the defendant-respondent have neither right, title and interest in the suit land nor possession over the same and inspite of demands made by the plaintiffs to hand over the suit land and house to them, the defendants have evaded to do so and hence, the necessity for the suit.
4. The case of the defendants-respondent (hereinafter referred to as defendants), inter alia, is that the plaintiffs are not at all in any way related with Aghanua Mahto, the recorded tenant of Khata No. 1 of Village-Kharna and they have no right, title, interest in and possession over the suit land at any point of time and they have also no locus standi to file this suit. It is alleged that Aghanua Mahto, the recorded tenant of Khata No. 1 of Village-Kharna died in the year 1918 and he was unmarried having no issue and on his death, the landlord resumed the suit land and came in possession over the same as his Bakast land. Aghanua Mahto had no legal heirs and as such the case of his heirs shifting to Village-Pejuwa is a myth and this Aghanua Mahto, the recorded tenant of Khata No. 1 had no land in Village-Pejuwa. Lalman Mahto, the father of the defendant Nos. 1 and 2 was not at all related with Aghanua Mahto and he was not his brother-in-law as alleged though Lalman Mahto aforesaid had sometimes cultivated the suit land on behalf of Aghanua Mahto, who was maintaining himself from the usufruct of the said land and it is false to say that the remaining usufruct was shared by the heirs of Aghanua Mahto, since Aghanua Mahto was unmarried and issueless. Further case of the defendants is that the landlord settled the suit land with Lalman Mahto and confirmed the settlement by grant of hukumnama dated Magh 15 Sambat 1985 and also granted rent receipt, and since then, Lalman Mahto remained in cultivating possession of the suit land exercising his right as raiyat openly and adversely to the knowledge of all including the plaintiffs for more than statutory period and thus, he has perfected his right, title by adverse possession and, even assuming though not admitting that the plaintiffs are the heirs and legal representatives of Aghanua Mahto, they have lost their right, if any, as per the law of limitation. Said Lalman Mahto died leaving behind his two sons i.e. defendant Nos. 1 and 2, who inherited him and came in possession over the suit land and defendant No. 1 has constructed three houses on Plot No. 74 about 20 years ago and he is living there along with his family and these defendants have been mutated in the Serista of the landlord and thereafter he was recognized as the tenant by the State and he paid rent to them and got rent receipts, it is false to say that Lalman Mahto or his sons i.e. the defendants have ever cultivated the suit land with the permission of the plaintiffs and have ever delivered any usufruct of the suit land to them. The defendant as per their right have executed the sale deed in favour of their respective waives in respect of the suit land.
5. In view of the pleadings of the parties, the learned trial Court had framed the following issues for adjudication–
(i) Is the suit as framed maintainable?
(ii) Is the suit land properly valued?
(iii) Is the suit land barred by the law of limitation and adverse possession?
(iv) Are the plaintiffs, the heirs and legal representatives of Aghanua Mahto, the recorded tenant of Khata No. 1?
(v) Is the sale deed dated 1.11.1984 executed by defendant Nos. 1 and 2 in favour of defendant Nos. 3 and 4 legal and valid?
(vi) Ar the plaintiffs entitled to get the reliefs as claimed?
(vii) Have the plaintiffs valid cause of action for the suit?
6. In view of the evidence oral and documentary on the record, the learned trial Court while deciding issue No. (iv) has held that the plaintiffs are the heirs and legal representatives of Aghanua Mahto, the recorded tenant of Khata No. 1 and Aghanua Mahto of Village-Pejuwa and of Kharna is one and the same person and said Aghanua Mahto had his land in village-Pejuwa also. While deciding issue Nos. (iii) and (v), the learned trial Court has held that the defendant Nos. 1 and 2 had no right, title and interest in the suit land and their possession over the same was unlawful and the sale deed executed by them in favour of their respective wives is illegal and invalid. In view of the findings aforesaid, the learned trial Court declared the right, title and interest in the suit property in favour of the plaintiffs and decreed the suit.
7. Being aggrieved by the judgment of the trial Court, the defendants preferred Title Appeal No. 117 of 1988. On reappraisal and re-appreciation of the evidence on the record, the learned appellate Court below has held that Aghanua Mahto of Village Pejuwa and Aghanua Mahto of Village-Kharna are different persons and the plaintiffs are not the heirs of Aghanua Mahto of Village-Kharna. It has also been held that the plaintiffs have not been able to prove that the defendants are in possession of the suit land with their permission as well the fact that they were the heirs of Aghanua Mahto, the recorded tenant of the suit land and thus, the finding of the learned trial Court declaring the title and possession of the plaintiffs over the suit land cannot be sustained. In view of the finding aforesaid, the learned appellate Court below has allowed the appeal setting aside the judgment of the trial Court and dismissed the suit of the plaintiffs.
8. The plaintiffs preferred this appeal before this Court and while admitting the appeal this Court vide order dated 5.2.1991 has formulated the substantial question of law which runs thus :–
“Whether the learned Court of appeal below erred in law in reversing the judgment and decree passed by the trial Court without meeting its reasonings.”
9. Assailing the impugned judgment it has been submitted by the learned counsel for the plaintiffs that Aghanua Mahto was the recorded tenant of Khata No. 1 of Village-Kharna, to which the suit land appertains to and said Aghanua Mahto has right, title and interest in the suit land and the plaintiffs are the descendant of said Aghanua Mahto and it thus becomes clear that the plaintiffs had right, title and interest in the suit land. It has further been submitted that the defendants and prior to them, their father were cultivating the suit land as per the permission of the plaintiffs and prior to that of their predecessor-in-interest and a permissive possession cannot be construed as adverse possession. It has also been submitted that the alleged hukumnama is a forged and fabricated document purposely brought into existence by the defendant and the said hukumnama has also not been proved by legal evidence on the record. It has also been submitted that Aghanua Mahto of Village-Kharna and Aghanua Mahto of Village-Pejuwa are one and the same person and he is predecessor in interest of the plaintiffs and the learned appellate Court below did not at all meet the reasonings of the learned trial Court in reversing its judgment and the impugned judgment of the appellate Court below suffers from illegality and is perverse due to the non-consideration of the evidence brought on the record on behalf of the plaintiffs and thus, the impugned judgment is unsustainable.
10. In contra, it has been submitted by the learned counsel for the defendants that the learned appellate Court below in the impugned judgment has met the reasonings as adverted by the trial Court while reversing its judgment and on re-appreciation and reappraisal of the evidence coupled with the admission of PW 6, the learned appellate Court below had come to the specific finding that Aghanua Mahto of Village Kharna and Aghanua Mahto of Village-Pejuwa are two distinct persons and the plaintiffs are not the descendants of Aghanua Mahto of Village-Kharna and thus, there is no illegality in the finding of the learned appellate Court below. It has also been submitted that there is no substantial question of law at all involved in this case and it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact being the first appellate Court. It has also been submitted that the learned appellate Court below has been satisfactory reasons based on materials on the record for reversing the finding of the trial Court and in a case wherefrom a given set of facts and circumstances two inferences are possible one drawn by the lower appellate Court is binding on the Court in the second appellate Court is binding on the High Court in the second appeal and adopting any other approach is not permissible. Lastly, it has been submitted that Aghanua Mahto of Village-Kharna was unmarried and issueless and on his death in the year 1918, the landlord resumed the suit land and thereafter the suit land was settled with the father of the defendants by virtue of hukumnama (Ext. C) followed by rent receipts and since then, the father of the defendants and thereafter these defendants are in continuous cultivating possession of the suit land perfecting their title by adverse possession and viewed thus, there is no illegality in the impugned judgment.
11. It will admit of no doubt that the land appertains to Khata No. 1 of Village-Kharna recorded in the name of Aghanua Mahto, son of Amrita Mahto in the cadastral survey records of right (Ext. 2) and the suit land was initially in permissive possession of Lalman Mahto, the father of the defendants during the lifetime of Aghanua Mahto. The case of the defendants is that after the death of Aghanua Mahto, he got the settlement of the suit land by hukumnama from the then landlord followed by rent receipts and came in possession thereon as of their rights and continued in possession over the same since then. The hukumnama is Ext. C and it is dated Magh Sudi 15 Sambat 1985. Ext. 1 is the survey records of Village-Pejuwa. Khata No. 50 of Village-Pejuwa stands recorded in the name of Bhagi Mahto, Churwa Mahto, Bhadra Mahto and Chattuwa Mahto, all sons of Aghanua Mahto. It, therefore, becomes crystal clear that the plaintiffs are the descendants of Bhagi Mahto, Churu Mahto, Bhadra Mahto and Chattu Mahto, who are the sons of Aghanua Mahto. Now the pertinent question is as to whether Aghanua Mahto, son of Amrita Mahto, the recorded tenant of Khata No. 1 of Village-Kharna and Aghanua Mahto, the father of the recorded tenants of Khata No. 50 of Village- Pejuwa are one and the same person or not. Both the Courts below have given contrary findings in respect thereof. It is the settled proposition of law that the plaintiff has to prove his case by cogent legal evidence and has to stand on his own leg. The plaintiffs cannot taken benefit of the weakness of the case of the defendant. It is equally pertinent to mention here that the plaintiffs are not possessed of any document in respect of the suit land and their claims are based on survey entry in respect of the suit land as contained in Ext. 2 i.e. the cadastral survey records of right, it is for the plaintiffs in this case to prove the fact that they are descendants of Aghanua Mahto, the recorded tenant of Khata No. 1 of Village-Kharna. Section 50 of the Indian Evidence Act is relevant which runs thus :
“When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact :
xx xx xx xx xx xx xx" In the case of Dolgobinda Paricha v. Nimai Charan Misra and Ors., AIR 1959 SC 914 the Apex Court has observed which runs thus ;--
“It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are–(1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or beliee, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the “belief or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved.”
The learned trial Court has relied upon Ext. 3 which is the report of the Circle Inspector of Gomia, Circle Office in Case No, 47 of 1984 filed by the plaintiffs regarding the mutation of defendant Nos. 3 and 4 pursuance to the sale deed dated 11.1.1984 executed by defendant Nos. 1 and 2 in their favour in respect of the suit land in which the genealogy showing the plaintiffs as the descendants of Aghanua Mahto has been disclosed for coming to the finding that the plaintiffs are the heirs of Aghanua Mahto, the recorded tenant of Khata No. 1. The report of the Circle Inspector is dated 20.12.1984. The learned appellate Court below has stated in the impugned judgment that the said observation of the trial Court is not legal because that when the trial Court had framed a separate issue to decide whether the plaintiff are the heirs of the recorded tenants it should have given an independents-finding and should not have based the same on the report aforesaid which has not been legally proved in this case. It is relevant to mention here that there is no document on the record evidencing the fact of the existence of relationship between the plaintiffs as the heirs of Aghanua Mahto, the recorded tenant of Khata No, 1 of Village-Kharna prior to the controversy, which arose on 11.1.1984. The report is subsequently to the controversy, which has arisen between the parties regarding the relationship between the plaintiffs and Aghanua Mahto aforesaid as his descendants. Section 32 of the Indian Evidence Act is relevant in this connection which postulates that the statement relating to the existence of any relationship between the persons as to whose relationship the person making the statement had special means of knowledge and when the statement was made before the question in dispute was raised is admissible in evidence. Ext. 3 has seen the light of the day after the dispute has arisen between and thus, it is not a relevant document to decide the controversy between the parties and the learned appellate Court below has rightly did not rely upon Ext. 3 though for different reasons. On the basis of the evidence of PWs 1, 3, 4, 5 and 7 read with the evidence of PW 2, the plaintiff, and his wife PW 6, the trial Court has come to the finding regarding the existence of relationship between the plaintiffs on the one hand and Aghanua Mahto, the recorded tenant of Khata No. 1 on the other hand, as claimed by the plaintiffs. The appellant Court below has also scanned their evidence in the impugned judgment and adverted a contrary finding in respect thereof and for that he assigned reasons for that. It is true that within the ambit of Section 100 of the Code of Civil Procedure, this Court should not reappraise the evidence. However, on critical analysis of the evidence brought on the record by the plaintiffs on the touchstone of the ratio of the case of Dolgobinda Paricha (supra) in the light of the substantial question of law as formulated stated above I do not see any illegality in the finding recorded by the appellate Court below. For the sake of clarity, I refer some of the relevant evidence brought on the record on behalf of the plaintiffs. PW 1 is aged about 80 years and is resident of Village-Kharna. His sister stands wedded to Bhadra Mahto, the son of Aghanua Mahto. This Bhadra Mahto is the recorded tenant of Khata No. 50 of Village-Pejuwa. His evidence is that said Aghanua Mahto had four sons and said Aghanua Mahto has land recorded in his name in Village-Kharna, but in paragraph 8 of his evidence he has categorically deposed that he does not know as to whether Aghanua Mahto of Village-Kharna was married or not and he was also not on visiting terms with Aghanua Mahto aforesaid. PW 7 Sukar Mahto is aged about 45 years. His sister is married with Jugal Mahto, the son of Bhagi Mahto and plaintiff No. 8 is his sister. He has deposed that Aghanua Mahto of Village-Kharna and of Village-Pejuwa are one and same person and said Aghanua Mahto had land in both the villages. PW 7 is a resident of a different village. He has deposed that Aghanua Mahto had no brother whereas PW 6 Ugani Devi, who is the wife of plaintiff No. 1 Tulo Mahto and the full sister of defendant has deposed that Aghanua Mahto had four brothers and all his brothers were joint with him till he died in Village-Pejuwa. PW 6 in para 8 of her evidence his specifically deposed that there was one Aghanua Mahto in Village-Kharna, who lived throughout his life in Village-Kharna where he has died. She has further deposed that said Aghanua Mahto was the father of Churo Mahto, her father-in-law. Her evidence is hearsay in respect thereof. The survey records of right show that the plaintiffs are the descendants of Aghanua Mahto of Village- Pejuwa. There is no document on the record brought by the plaintiffs from their custody to show that the plaintiffs are the descendants of Aghanua Mahto of Village-Kharna and at any point of Lime prior to the suit they had exercised right in relation to the suit land as well as their possession over the same. The evidence of PW 2 in paras 24 and 25 of his testimony is equally relevant in this connection. Therefore, all these four relative witnesses do not appear to have any means of specific knowledge about the fact that plaintiffs are the descendants of Aghanua Mahto, the recorded tenant of Khata No. 1 of Village- Kharna. The evidence of PW 6 appearing in para 8 aforesaid lends support to the case of the defendants that Aghanua Mahto of Village-Kharna and Aghanua Mahto of Village-Pejuwa are definitely not the one and the same person. Other witnesses of the plaintiffs have definitely no specific means of knowledge regarding the fact of the relationship of Aghanua Mahto of Village-Kharna with the plaintiffs as claimed by them. The learned appellate Court below has assigned cogent reasons in the impugned judgment for reversing the finding of the trial Court in respect thereof. Admittedly, the defendants are in cultivating possession of the suit land and the case of the plaintiffs that the defendants are in permissive possession of the suit and the usufruct of the suit land is divided between the parties is not established by legal evidence on the record.
In view of the finding of the learned appellate Court below that the plaintiffs are not the descendants of Aghanua Mahto, the recorded tenant of Khata No. 1 of Village-Kharna, question of the defendants being in permissive possession of the suit land at the instance of the plaintiffs does not arise at all. Ext. A, Ext A/1 and Ext. A/2 are the rent receipts of the ex-landlord in the name of Lalman Mahto, the father of the defendants in respect of the land of Khata No. 1. Ext C is the hukumnama executed by the then landlord in favour of Lalman Mahto aforesaid and it is of Sambat 1985. Ext. A/6 is the rent receipts granted by the State in respect of the suit land in favour of Lalman Matho. The existence of rent receipts i.e. Ext. A/7 and A/8 having interpolation therein cannot form the basis to question the possession of the defendant over the suit land in the facts and circumstances of this case. The learned appellate Court below after proper consideration of the evidence on the record has rightly come to the conclusion that the plaintiffs have not been able to prove that the defendants are in permissive possession of the suit land. The learned appellate Court below has assigned satisfactory reasons based on the materials on the record for reversing the finding of the trial Court. I do not find that the conclusions drawn by the lower appellate Court are erroneous being contrary to the mandatory provisions of law applicable or its settled proposition on the basis of the pronouncement made by the Apex Court or is based upon inadmissible evidence or arrived at without evidence and this Court cannot substitute its opinion for the opinion of the first appellate Court being the last Court of fact. It can also not be said that the impugned judgment is erroneous or perverse. I, therefore, see no substance in the contention of the learned counsel for the plaintiff. Thus, there is no illegality in the impugned judgment.
12. There is no merit in this appeal and its Tails. The impugned judgment is hereby affirmed. The appeal is dismissed. There shall be no order as to costs in the facts and circumstances of this case.