HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 247 of 2002 v. Harkhu Oraon (Dead ) 1(i). Sawdi Oraoin 1(ii). Soma Tirkey 1(iii). Sahrai

plaintiff no 6 and Birsa oraon plaintiff no.7. Landa son of Sakalu is the plaintiff no 8 and Sakalu the plaintiff no.9 is the son of late Kandru oraon. The another branch chanda oraon died leaving behind his son Goyon. Goyon oraon died leaving behind his son Chanda Oraon & Chanda died leaving behind his widow Mukhta Orain. Mukta Orain also died issueless in due course of time. It is stated in the plaint that Mukta Orain widow of Chanda Oraon was in possession of the land belonging to her husband ’s share namely Chanda Oraon and she was allowed to enjoy the said property by way of maintenance. Under the customary law of Oraon community prevalent in Chhotanagpur region and elsewhere the Oraon females are not entitled to inherit the property left by their husband but they are entitled to utilise the usufruct of the land of their husband’s share without any let or hinderance from other agnetic relations of her husband. The name of Mukta Orain was recorded in cadestral survey record of rights as her husband died long long ago without any male issue. The said Mukta Orain widow of Chanda Oraon died some time in the year 1934 leaving behind no children hence the plaintiffs and the defendants no 2 and 3 inherited the property which originally belonged to the husband of the recorded tenant Mukta Orain and since the death of Mukta Orain the plaintiffs alongwith the defendant no 2 and 3 entered into the land in their own right and title and are exercising all acts of possession over the suit land. The lands described in schedule B annexed to the plaint are originally belonged to Chanda Oraon, one of the ancestrals of the plaintiffs and the said property was being managed by Mukta Orain after the death of her husband. It is further stated in the plaint that the defendant no.1 has got no right, title interest and possession over the 4 suit land described in schedule B’ annexed to the plaint. It is also the case of the plaintiffs that during the recent survey operation the plaintiffs appeared before the survey authorities for recording their names in place of Mukta Orain but they stunned to know that in place of name of Mukta Orain, the name of Yakub Oraon stood recorded in the revisional survey record of rights and the defendant no 1 Simon Oraon produced the certified copy of record of rights before the survey authorities in respect of the suit land. The plaintiffs for the first time came to know in the revisional survey record of right the name of Yakub Oraon father of the defendant no 1 stands recorded over the suit land. The survey authorities did not entertain the objection of the plaintiffs for recording their names in place of Yakub Oraon father of the defendant no.1. The revisional survey record of rights recorded in the name of Yakub Oraon is erroneous and it confers no title to the defendant no 1 over the suit land and it is necessary to declare that revisional survey record of rights recorded in the name of Yakub Oraon father of the defendant no 1 is erroneous and wrong in respect of the suit land. The plaintiff and the defendants no 2 and 3 have or had no knowledge about the incorrect entry recorded in the name of Yakub Oraon in respect of the suit land. The claim of the defendant no. 1 asserting his right title and interest over the suit land is incorrect, baseless, wrong and not based on real state of affairs. The cause of action for the suit arose when the survey authorities refused to record the names of the plaintiffs and the defendant no 2 and 3 over the suit land in revisional survey record of rights of village Kudarkho, P. S. Bero Dist Ranchi for the first time in the month of October 1993 and subsequently on 3.9.1993 when the survey authorities refused to record the names of the plaintiffs as owners of the properties in suit. With their assertions the plaintiffs have filed this suit for declaration of their right, title interest and possession over the suit land described and detailed in schedule B annexed to the plaint and for further declaration that the revisional 5 survey record of rights standing in the name of Yakub oraon is not binding on the plaintiffs and the said entry is wrong. The plaintiffs have also sought alternative relief for recovery of possession for cost of the suit and for other reliefs. The defendant no 2 has filed a formal written statement adopting the averments made in the plaint.

4. The defendant no. 1 is contesting the suit by filing written statement alleging interalia that the suit is not maintainable in its present form. The suit is barred by law of limitation, adverse possession, waiver, acquiescence and estoppel. The suit is bad for nonjoinder and misjoinder of parties. The suit is hit under section 34 of the Specific Relief Act. The suit is under valued and no proper court fee has been filed. The case of the defendant no. 1, in brief, is that the name of Yakub Oraon father of the defendant no.1 has not been wrongly recorded in the revisional survey record of rights rather the name of Yakub Oraon father of this defendant was correctly recorded in the revisional survey record of right. The revisional survey authorities after finding possession of the father of this defendant recorded his name in revisional survey record of rights in respect of the suit land as raiyat. After the preparation of revisional record of right, Yakub Oraon father of this defendant went out side the village in search of livelihood. He could not pay the rent of the suit land and the rent became due. The ex-landlord Maharaj Sri Pratap Udainath Sahdeo filed rent suit which was numbered and register as Rent Suit Case no 1419 of 1937-38 against Yakub Oraon. The ex-landlord obtained a decree against Yakub Oraon on 15.6.1937. The notices of sale were issued against Yakub Oraon. Sale notices were served on the judgment debtor Yakub Oraon. The suit land was sold in auction and one Alphonse Kujur purchased the disputed land on payment of consideration money to the tune of Rs. 1200-/- on 13.12. 1937. The sale was confirmed on 17.1.1938 and it was prepared, sealed and signed on

22.7.1938 Parwana for delivery of possessions was issued on 13.8.1938 and on 6

22.09.1938 possession was delivered to the auctiner purchaser Alphanso Kujur. The auction purchaser Alphanso Kujur was a name lender and Benamidar of co- operative society of mission, Ranchi hence he executed a release deed in favour of the said society. The auction purchaser relinquished his all right, title and interest in respect of the suit properties in favour of Chhotanagapur catholic co- operative credit society and catholic co-operative credit society came in possession over the suit land. The catholic co-operative credit society executed a registered deed of sale dated 6.7.1978 for consideration in favour of Yakub Oraon in respect of 9.06 acres of land. The purchaser Yakub Oraon got his name mutated over the purchased land and started making payment of rent to the state of Bihar. The purchaser Yakub Oraon came in possession over the purchased (and started cultivating and growing in the said land.) The chotanagpur catholic co-operative credit society also executed another registered sale deed dated 6.7.78 in favour of sant Anna convent Dighia in respect of 2.42 decimals of land. Sant Anna convent Dighia through its sister sant Francisca came in possession over the purchased land. sant anna convent Dighia got its name mutated in the office of state of Bihar and started making payment of rent The said institution came in cultivating possession over the purchased land. It is stated in the written statement that due to clerical mistake all the lands were executed in favour of Yakub Oraon but the same was corrected by a deed of rectification bearing deed no 7216 dated 18.8.1982.

5. It would appear from the discussion made above that the defendant no. 1 has right, title interest and possession over the portion of the suit land on the basis of revisional survey record of rights as well as on the basis of the registered sale deed executed by chotanagpur catholic credit society in favour of the father of defendant no. 1 by virtue of the registered sale deed and rectification deed of sale. The defendant no.1 is paying rent since the execution of sale deed in favour of his father. The revisional survey 7 record of right recorded in the name of father of this defendant is legal and according to the provisions of law. Neither the plaintiffs nor the defendant no 2 and 3 have got any concern with the suit land. They have no right, titled, interest and possession over the suit land. The defendant no.1 has been coming in possession over the purchased land prior to the cadestral survey and also after the cadestral survey. The land was sold in auction and the said land was purchased by chotanagpur catholic credit society in auction. The chhotanagpur catholic credit society executed a registered sale deed in favour of father of this defendant and since then the defendant no. 1 has been coming in possession over his purchased land. The plaintiffs and the defendant no.2 and 3 are not entitled to any relief or reliefs as prayed for. The defendant no. 1 has prayed for dismissal of the suit with cost.

6. The defendant no.5 Shanti Mani Saloni Tirkey is also contesting the suit by filing written statement. She has adopted the written statement of the defendant no.1 The case of the defendant no5, in brief, is that Yakub Oraon was recorded as raiyat in revisional survey record of rights. The suit was sold in auction as Yakub Oraon the recorded tenant could pay rent to the land lord hence the land lord filed a rent case against him. The ex-land lord obtained a rent decree against the recorded tenant. The suit land was sold in auction and Alphonse Kujur purchased the suit land in auction as auction purchaser in rent suit case no 1419 of 1937-38 Alphonse Kujur was name lender and benamidar of Chhotanagpur catholic co-operative credit society hence he executed a release deed in favour of the aforesaid society. The chhotanagpur catholic mission co-operative society through its director J. Backert S. J. of Ranchi registered a sale deed dated 25.3.1964 in favour of St/. Anna’s convent Dighi through it incharge sister Francisca and her successor in office for consideration of Rs. 2500-/- in respect of the portion of the suit properties After the purchaser St Anna convent through its incharge sister Francisco come in 8 possession over the purchased land and got its name mutated in the office of state of Bihar and started making payment of rent. Sister Franciska was transferred to some other mission and in place of her the defendant no.5 sister Shanti Mani Saloni took over charge of st. Anna’s convent Dighia and come in possession of the purchased land. Sister Anna Francisca was getting the land cultivated through the labourers. The defendant no.5 sister Shantimani Saloni also gets the land cultivated by the labourers and she has absolute right, title and interest and possession over the part of the disputed land. During the recent survey operation the survey authorities found the possession of Anne’s convent Dighia and accordingly the banda purcha was prepared in the name of St. Anna’s Dighia, The plaintiffs and the defendant no2 and 3 have no concern what so ever with the disputed land. The defendant no 5 has prayed for dismissal of the suit with cost.

7. The defendant no 6 Ishaque Tirkey is contesting the suit by filing written statement. This defendant has adopted the written statement filed by the defendant no.1 the case of this defendant in brief is that the revisional survey was rightly and correctly recorded in the name of Yakub Oraon father of the defendant no.1 the disputed land was sold in auction by the order of rent suit Deputy collector vide his order dated 2.9.1938 in rent suit case no 1419 of 1937-1938 Maharaja Chhotanagpur vs Yakub Oraon. one Alphonse Kujur was an agent of Chhotanagpur catholic mission co-operative credit society Purulia road, Ranchi and the sale was purchased in his name vide sale certificate dated

12.9.1938 in rent suit case no 1419 of 1937-38 the defendant no.5 Ishaque Tirkey and his brother late Puran Pd. Tirkey purchased portions of the suit land by virtue of a registered dale deed dated 6.7.1978 executed by the then director Revd. A. Van examis. J. of Ranchi for consideration of Rs. 2,000/- after purchase the defendant no 5 Ishaque Tirkey got his name mutated in the office of state of Bihar and since then he is making payment of rent. The defendant 9 no 6 Ishaque Tirkey has acquired absolute right, title, interest and possession over his purchased land and the plaintiffs and defendant no.2 and 3 have absolutely got no right, title, interest and possession over the suit land. This defendant has prayed for dismissal of the suit with cost.

8. This second appeal was admitted on 08.10.2004 on the following substantial question of law:- “Whether the lower appellate court has reversed the judgment and decree of the trial court on conjectures and presumptions ignoring the reasons recorded by the trial court?

9. By order dated 07.11.2022 further following substantial question of law were formulated by this Court: “(i) Whether the impugned judgment and decree passed by the first appellate court is liable to be set aside, having been passed in favour of a dead person being the appellant no. 6(a)-Binay Oraon ? (ii). Whether the finding recorded by the first appellate court that Ext.E which is the order passed in the Rent Suit is set aside amounts to perversity, in view of the principle of law settled by the Hon’ble Supreme Court of India, in the case of Union of India V. Ibrahim Uddin and Another, reported in (2012) 8 SCC 148 ?

10. Mr. Shashank Shekhar, learned counsel for the appellants with regard to law points formulated submits that the learned Sub-Judge has rightly dismissed the suit considering the documents which were exhibited before the Court. He submits that however learned appellate Court without appreciating the documents which were on record has reversed the finding of the learned trial court which is perverse. He submits that the learned appellate court even granted the relief which was not prayed in the suit and even decree passed in rent suit in the year, 1937 has been set aside by the learned appellate court. He draws the attention of the Court to the plaint of the plaintiffs and submits that 10 there is no relief of setting aside the rent suit decree. He submits that it is well settled that if relief is not there that cannot be allowed by the court and to buttress this argument he relied in the case of “Union of India Vs. Ibrahim Uddin and Another (2012) 8 SCC 148. He refers to para 77 of the said judgment which is quoted hereinbelow:- “77. This Court while dealing with an issue in Kalyan Singh Chouhan v. C.P. Joshi [(2011) 11 SCC 786 : (2011) 4 SCC (Civ) 656 : AIR 2011 SC 1127] , after placing reliance on a very large number of its earlier judgments including Trojan & Co. v. Nagappa Chettiar [AIR 1953 SC 235] , Om Prakash Gupta v. Ranbir B. Goyal [(2002) 2 SCC 256 : AIR 2002 SC 665] , Ishwar Dutt v. Collector (LA) [(2005) 7 SCC 190 : AIR 2005 SC 3165] and State of Maharashtra v. Hindustan Construction Co. Ltd. [(2010) 4 SCC 518 : (2010) 2 SCC (Civ) 207 : AIR 2010 SC 1299] , held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in the absence of the pleadings in that respect. No party can be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon.”

11. Learned counsel for the appellants further submits that identical was the situation which was considered by the Hon’ble Supreme Court in the case of “Mrs. Akella Lalitha V. Sri Konda Hanumantha Rao and Another” AIR 2022 SC 3544 He refers to paras 16, 17 and 19 of the said judgment which is quoted hereinbelow:- “16.In the case of Messrs. Trojan and Co. Ltd. v. Rm.N.N. Nagappa Chettiar2, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:- "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case." 17.In the case of Bharat Amratlal Kothari and Anr. v. Dosukhan Samadkhan Sindhi and Ors.3held: "Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner." 19.Before parting with this subject, to obviate any uncertainty it is reiterated that the mother being the only natural guardian of the child has the right to decide the surname of the child. She also has the right to give the child in adoption. The Court may have the power to intervene but only when a prayer specific to that effect is made and such prayer must be centered on the premise that child’s interest is the primary consideration and it outweighs all other considerations. With the above observations the directions of the High Court so far as the surname of the child is concerned are set aside.

12. He further submits that the land in question was purchased 11 through four registered sale deeds which were marked as A, A/1, A/2 and A/3. He submits that when the registered sale deeds were there and the said documents atleast bears the some sanctity. He submits that this aspect of the matter was considered by the Hon’ble Patna High Court in the case of “Ramjanam Dubey and Ors. Vs. Ramjag Dubey and Ors” 1992 (2) PLJR 45. He refers to para 138 of the said judgment which is quoted hereinbelow:- “138. It is now well known that transactions effected by reason of a registered document have some sanctity. A document if questioned, on the ground that a transaction made thereafter was a sham, coercive or fictitious one and thereby no title passed on to the transferee, the said facts are required to be pleaded and proved.”

13. He further submits that the learned appellate court without appreciating the documents only on the oral evidence reversed the findings of the learned trial court which is not in accordance with law. He submits that in absence of carefully construed the document the appellate court has passed the judgment which is against the mandate of law and to buttress this argument he relied in the case of “V.S. Nagaraja Shetty and Others. V. M.N. Krishna and others” 1996 AIHC 2904. He refers to para 8 of the said judgment which is quoted hereinbelow:- “8.The plaintiff has in his deposition justified his leaving the family house in 1948 on the ground that it became essential since there were too many family quarrels and since he desired to start some business on his own. He states that his late father fully supported this line of action and being the elder son, that he gave him some amounts of money personally. jewellery belonging to him and his wife and few other items set out in Ex. D-1 which was nothing more than what a father would give to his son when he was starting his new home and his independent business. He contended that there was no intention on his part to separate from the joint family nor had he done so and that consequently, he was entitled to claim his share from the joint family properties. He has also contended that what he received. was only a portion of what he would normally have been entitled to had a regular partition taken place. As far as the document Ex. D-1 is concerned, it is his case that it was only a recording arrangement. The oral evidence of the plaintiff will have to be read as being subsidiary to the document Ex. D-1 because it is well settled law that documentary evidence in situations such as this will prevail over oral evidence. Moreover, the other party to the document namely the deceased father is no longer available to give evidence before the Court. There is no ambiguity with regard to the recitals in the document. It sets out very clearly that the plaintiff desires to reside separately and to do business separately. It also records that the father had agreed to this and that he was making provision though what transpired at that time not only for 12 present times but also for the future. The preamble also records that it is from joint family assets and earnings that the apportionment is being done. Thereafter, through clause (1) there is a distinct share that is apportioned, valued and given to the plaintiff in the shop. In Clause (2) there is even an apportionment of the loan outstanding. As farvas clause (3) is concerned, there is a detailed description of all the gold jewellery which is over 11 tolas that came to the share of the plaintiff. Clause (4) records that silver items of the value of 108 tolas has been given to the plaintiff and Cl. (5) records that copper utensils that were 98 seers have been given to him. Cl. (6) refers to certain other miscellaneous issues and Ex. D-2 is a detailed inventory of the various items. This document will have to be carefully construed. To my mind, if it was just a question of giving the plaintiff some money and a few household items to start his life and business, there would not have been such a formal procedure and there would not have) been such a precise and accounting procedure that had resulted in definite items being apportioned and handed over to the plaintiff. The division has gone all the way down right upto the jewels, silver, copper utensils, assets, liabilities etc, and in these circumstances, to my mind the only irresistible conclusion was that the plaintiff told his father that he desires" to separate completely from the family that he expressed his intention to put an end to his being a member of the joint family, that he asked for his share, that his share was care- fully ascertained and that it was given to him. Tio my mind, this was fully understandable because the father had remarried and the second wife had three children and it was quite obvious since he was getting on in years that, ho desired to make a final settlement with the oldest son who was virtually leaving the house- hold in order to avoid any complications, so that the rest of the properties could be left to the wife and the remaining children. The joint family status may have continued with the father and the rest of the family but it is clear that it closed to exist as far as the present plaintiff is concerned. That he physically went to stay separately and started his own business is admitted and there is nothing on record to show that he continued his association with the family thereafter. Under these circum- stances, if one were to apply the various tests that the law prescribes, the facts would very clearly and conclusively establish that the plaintiff did sever himself from the joint family on 21-6-1948 and that the transaction which took place was a partition in law.”

14. He submits it is further well settled that oral evidence cannot override the inference available from the documentary evidence and he refers to judgment of the Hon’ble Supreme Court in the case of “Lallan Singh & Ors. V. State of Bihar 1969 PLJR 71A. He further submits that in the khatiyan the name of Yakub Oraon was mentioned in the year, 1935 wherein suit was filed in the year, 1993. He submits that entry in the khatiyan is required to be questioned within 12 years however in the case in hand the entry was questioned after 58 years and to buttress this argument he relied in the case of “Dwarika Sonar & Ors. V. Most. Bilguli and Ors.” (2003 (2) JLJR 708. He refers to para 16, 17, 18 and 19 of the said judgment which is quoted hereinbelow:- “16. From perusal of the aforesaid provision it is clear that a special 13 and additional remedy has been provided by way of filing a suit before the Revenue Officer within three months from the date of certificate of the final publication of the record of rights. In the instant case the plaintiff filed the suit for the following reliefs. (a) That plaintiffs title over the suit land be declared (b) That it be declared that the revisional entry of the name of the de- fendant no.1 in respect of the suit lands Khata no. 686 is wrong and erroneous. (c) That the cost of the suit be awarded to the plaintiff (d) That any relief or reliefs to which the plaintiff be found in title be given to him. 17. In the body of the plaint the plain- tiff has pleaded that defendant was allowed to remain in possession of the suit land much before the revisional survey settle- ment l.e. in 1960. Admittedly in the year 1966 the revisional survey record of right was finally published in the name of the defendant in respect of the suit plot. The instant suit has been filed in the year 1984 l.e. 18 years after the final publication of record of right. In view of these admitted facts can it be held that there is no period of limitation for filing a suit for declaration that the entries made in the revenue record of right is wrong or for declaration of title and recovery of possession. 18. Under the general law of limitation the maximum limitation for instituting a suit for declaration of title and recovery of pos- session is 12 years from the date when the possession of the defendant becomes ad- verse to the plaintiff as provided under Article 65 of the Limitation Act 1963. 19. Admittedly the revisional survey record of right in respect of the suit prop- erty was finally published in the name of the defendant in the year 1966. It is not the case of the plaintiff that he was not aware or he had no knowledge about the publica- tion of record of right in the name of the defendant, rather it is the specific case of the plaintiff that the record of right was published in the year 1966 in the name of the defendant. The instant suit has been filed after 18 years i.e. in 1984. In my considered opinion therefore, such a suit is barred by limitation. I have no hesitation in holding that the maximum period of limita- tion for filing a suit for declaration of title: and recovery of possession and for chal- lenging the entry made in the survey record of right will be 12 years from the date of final publication of record of right. The court of appeal below, therefore, committed grave error of law in holding that the suit is not barred by limitation.”

15. He further submits the claim on land by plaintiffs/respondents is being made on the basis of cathedral survey wherein the land RS survey was already conducted and in the RS Survey the right, title and possession of Yakub Oraon was found. He submits that once such a situation is there the later survey will prevail and to buttress this argument he relied in the case of “Raja Durga Singh Vs. Tholu and Others” AIR 1963 SC 361. He refers to para 8 of the said judgment which is quoted hereinbelow:- “8.Now we will come to the second point because the argument is that on the finding of the learned District Judge the respondents are tenants and therefore, their ejectment cannot be ordered by a Civil Court. As already stated the appellant challenged the finding of the Judicial Commissioner on the point on the ground that he had no jurisdiction to reverse the finding of the District Court because it was a finding of fact on the question. There is no doubt our mind that the learned Judicial Commissioner was in error in reversing the finding of fact of the District Judge particularly so because the finding of the 14 District Judge is based upon a consideration of entries in the record of rights from the year 1936 onward showing that the lands were the khudkhast lands of the appellant and were in his possession. The learned Judicial Commissioner has omitted to bear in mind the provisions of S. 44 of the Act which give a presumptive value to the entries in revenue records. It was argued before us that there are prior entries which are in conflict with those on which the learned District Judge has relied. It is sufficient to say that where there is such a conflict, it is the later entry which must prevail. Indeed from the language of S. 44 itself it follows that where new entry is substituted for an old one it is the new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry. In Deity Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC 57 this Court held that finding of fact arrived at by the District Judge on the consideration of all evidence, oral and documentary, adduced by the parties, cannot be set aside in second appeal. The question here is whether the respondents are the tenant of the appellant. Though for determining the question documentary evidence fell to be considered the finding on the question is less a finding of fact than may have been the case if the evidence to be considered was merely oral. As was pointed out by this Court in that case as well as recently in Chunilal v. Metha and Sons Ltd. Bombay v. Century Spinning Manufacturing Co. Ltd., Bombay C. A. No. 417 of 1957 D/- 5-3-1962: (AIR 1962 SC 1314), an issue of law does not arise merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents have to be construed. Of course here, as we have already pointed out, the High Court has ignored the presumption arising from certain documentary evidence and, therefore, there is an additional reason vitiating its finding.”

16. By way of relying the aforesaid judgment he submits that the Hon’ble Supreme Court has held that where there is such a conflict it is later entry which must prevail. He further submits that against the dead person, the appellate order has been decreed which is a nullity in view of judgment of the Hon’ble Supreme Court in the case of “Gurnam Singh (Dead) Vs. Gurbachan Kaur (Dead) (2017) 13 SCC 414” and refers to para 15, 21 and 23 of the said judgment which is quoted hereinbelow:- “15. The question, therefore, is whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons? In our considered opinion, it is a nullity. The reasons are not far to seek. 21. It is a fundamental principle of law laid down by this Court in Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] that a decree passed by the court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree-holder. The reason is that the defect of this nature affects the very authority of the court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a court for or against a dead person is a “nullity” (see N. Jayaram Reddy v. LAO [N. Jayaram Reddy v. LAO, (1979) 3 SCC 578] , Ashok Transport Agency v. Awadhesh Kumar [Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567] and Amba Bai v. Gopal [Amba Bai v. Gopal, (2001) 5 SCC 570] ). 23. In the light of the foregoing discussion, we allow the appeal and set aside the impugned judgment/decree.” 15

17. He further submits that the learned appellate court has not given the proper reasoning in reversing the judgement of the learned trial court and he has not adhered the provisions made under Order 41 Rule 31 C.P.C. He submits that when such compliance is not there the order passed by the learned appellate court is perverse and to buttress this argument he relied in the case of “Vinod Kumar Vs. Gangadhar” 2015 (1) PLJR 79 (SC). He refers to para 12 of the said judgment which is quoted hereinbelow:- “12. As far back in 1969, the learned Judge-V.R. Krishna lyer, J. (as His Lord- ship then was the Judge of Kerala High Court) while deciding the first appeal un- der Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned Judge held as under- "1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff’s title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evi- dence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation....." (Emphasis supplied).”

18. On the basis of above submissions and placing the aforesaid judgments, he submits that law points formulated by this Court may kindly be answered in favour of the appellants.

19. On the other hand Mr. P.P.N. Roy, learned senior counsel for the respondents draws the attention of the Court to page 16 of the appellate court judgment and submits that the learned appellate court has held that contesting respondents have not approached the Court with clean hands and the learned appellate court has held that it was the admitted case of the parties that entry with respect to suit land sustaining in the name of Mukta Orain in the record of rights of the cathedral survey have been shifted to revisional records of rights in the name of Yakub Oraon. He submits that there is no explanation as to 16 how the name of Yakub Oraon figured in the RS Khatiyan and in view of that the learned appellate court has rightly passed the judgment reversing the judement of the learned trial court. He refers to the said judgment and submits that Yakub Oraon has already left for his heavenly abode in the year, 1937 and rent suit was of the year, 1937-38. He submits that in view of that learned appellate court has rightly held that Rent Suit No. 1419 of 1937-38 was not expected to be contested by the dead person and ex parte decree passed against the dead person was out and out nullity. He further submits that the learned appellate court has considered the sale deeds Exhibit A and A/1 and found that sale deed was fabricated as Yakub Oraon was not alive. He further submits that the plaintiffs/respondents were not having knowledge of such transfer and when they went to examine the records of right in 1993 they came to know about the said transfer and that is why the suit was instituted in the year, 1993. He submits that if the prayer of setting aside of the rent suit decree was not there the learned appellate court reversed that decree also that part of the judgement can be modified by this Court. He further submits that there are parameters of the proceeding of second appeal under section 100 of the C.P.C. He submits that the appellate court is final court of the facts and the facts cannot be re-appreciated by the High Court sitting in the second appeal and to buttress this argument he relied in the case of “Satya Gupta”V. Brijesh Kumar” (1998) 6 SCC 423. He refers to para 16 of the said judgment which is quoted hereinbelow:- “16. At the outset, we would like to point out that the findings on facts by the lower appellate court as a final court of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the lower appellate court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible.”

20. On the same line he further relied in the case of “Kondiba 17 Dagadu Kadam V. Savitribai Sopan Gujar” AIR 1999 SC 2213. He refers to para 6 of the said judgment which is quoted hereinbelow:- “6. If the question of law termed as substantial question stands already decided by a larger bench. of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between. the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second ap peal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has as- sumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate Court-is-shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramakrishna Govind Morey, AIR 1976 SC 830: (1976 Lab IC 575) held that whether trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference.”

21. He further submits that if the question of law termed as substantial question already decided by and the larger Bench and law point is not pleaded, the High Court is not required to interfere with the second appeal. He relied in the case of “Mst. Sugani V. Rameshwar Das & Anr.” AIR 2006 SC 2172. He refers to para 27 of the said judgment which is quoted hereinbelow:- “27.If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law.Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law.But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law.Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal.This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976 (1) SCC 803) held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.”

22. He further submits that Yakub Oraon has already died as has been found by the learned appellate court and in view of that the rent suit decree was a nullity. He relied in the case of “ Mahadeo Thakur & Others V. Faljit Mahto and Others” (2019) 4 JLJR 36. He refers to para 40 of the said judgment which is quoted herein below:- 18 “40. As has been discussed hereinabove in detail that after the death of the sole plaintiff if the Yudgment has been passed in favour of a death person, is not a nullity but a decree passed against a death person can be construed as nullity as has been held by Hon’ble Madras High Court in the judgment rendered in the case of Abdul Azeez Sahib v. Chanabagiammal (supra), therefore, the same has to be set aside by taking appropriate proceeding like appeal, revision or review and when the appeal has been filed against the aforesaid judgment/decree then the question would be that whether the legal representative of the sole plaintiff (deceased) can be said to be a party for their impleadment, as would appear from the provision of Order 1 Rule 10(2) of CPC that the same can be invoked only to cases where any proceedings are pending before the court.

23. He submits that once the nullity is there the entire case is required to be abated as has been held by the Hon’ble Supreme Court in the case of “Delhi Development Authority Vs. Diwan Chand Anand and others” 2022 SC Online SC 855. He refers to para 42 and 43 of the said judgment which is quoted hereinbelow:- “42 In any case what would have been the consequences of not bringing the legal representatives of some of the respondent-defendants who died during the pendency of the appeal and whether the right to sue survives against the original plaintiffs and/or surviving respondent-defendants was to be considered by the High Court, which the High Court failed to consider in the instant case. 43. In view of the above discussion and for the reason stated above both these appeals succeed. The impugned judgment and order passed by the High Court dated 9-7-2007 [DDA v. Union of India, 2007 SCC OnLine Del 2079] dismissing the appeal as a whole as having abated for not bringing the legal representatives of some of the respondents/original defendants who died during the pendency of the appeal is hereby set aside. The High Court to consider the appeal now in accordance with law and on its own merits and in light of the observations made hereinabove, more particularly, the High Court shall have to consider and hold an enquiry, whether, on the death of some of the respondents in the appeal (defendants in suit) the right to sue against the remaining respondents — original plaintiffs/the remaining original defendants would survive or not including the fact that the estate is being represented by surviving original plaintiffs/heirs of the original plaintiffs/surviving defendants having a bearing on the enquiry to be held.”

24. He submits that in view of above finding of the learned appellate court the decree in the rent suit is a nullity. On the basis of above arguments, Mr. P.P.N. learned senior counsel submits that the law points formulated by this Court may kindly be answered in favour of the plaintiffs/respondents. He submits that the plaintiffs/respondents are not party in the rent suit that is why the decree is not binding upon them.

25. By way of reply, Mr. Shashank Shekhar, learned counsel for the appellants submits that it has been admitted by the respondents/plaintiffs that 19 so far prayer for setting aside decree of rent suit it was submitted by the learned senior counsel for the respondents/plaintiffs that in absence of relief that part of the judgment may be set aside. He submits that if such argument is being advanced there cannot be two conflicting right, title and interest and this aspect is required to be considered in light of Section 34 of Specific Relief Act and to refers this proposition he refers to the case of Ibrahim Uddin (supra) wherein para 55, 56 and 57 of the said judement the Hon’ble Supreme has held as under:- “55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. 56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60 : AIR 1972 SC 2685] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 (hereinafter called “the Specific Relief Act”) and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129 : AIR 1993 SC 957] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [(2011) 4 SCC 567 : (2011) 2 SCC (Civ) 366] .) 57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.”

26. By way of referring Exhibit-C which is khatiyan he submits that the name of Yakub Oraon was recorded in the year, 1935 and initially it was not challenged and in view of that the filing of suit in the year, 1993 itself is abuse of process.

27. So far as dead Yakub Oraon is concerned, he submits that the appellants were the purchaser of the land from the seller and they are not aware about Yakub Oraon.

28. In view of above submissions of the learned counsel for the parties the Court has gone through the judgments of the learned trial court as well as appellate court including learned courts record. The learned trial court has considered and came to the finding that the respondents/plaintiffs were 20 required to prove title and possession for 12 years from the date of dispossession and found that it is admitted fact that Khata No. 700 of village Kudarkho was recorded in the name of Mukta Orain in the cadastral survey record of rights. Ext. 2 and 2/A are certified copies of Khatiyan of Khata No. 70 of the cadastral survey and the learned Sub-Judge found that khata no. 70 is recorded in the name of Mukta Orain. The said Mukta Orain died in the year, 1934 without leaving any issue and it was pleaded that the plaintiffs being agnates inherited and succeeded the suit properties. The cadastral survey entry and the revisioinal survey entry in the record of rights is conflicting and just opposite to each other. Ext.-C the certified copy of khatiyan of khata no. 6 of the cadastral survey stands recorded in the name of Yakub Oraon, the father of the defendant no.1 of village Khdarkho. In the revisional survey the nature of land has been shown as Kaimi. In cadastral survey record of rights the name of the land lord has been recorded as Kali Shankar Sahay but in the revisional survey record of rights the name of Maharaja Pratap Udai Nath Sahdeo has been recorded as land lord and based on that the learned court found that there are conflict with the cadastral survey record of rights and revisional survey records of right and the plaintiffs have not been able prove that inconsistency and the learned court held when such conflict is there later will prevail. The materials on record of the year 1937 shows that the ex- landlord Maharaja Pratap Udai Nath Sahdeo brought a recent suit against Yakub Oraon father of the defendant no. 1 and obtained a decree against him and the lands of khata no. 6 were sold in auction in arrear of rent and one Alphonse Kujur the name tender and Benamidar of Chhotangapur Catholic Co- operative Credit Society purchased the said land of khata no. 6. The purchaser Alphonse Kujur executed a release deed in favour of Chhotangapur Catholic Co-operative Credit Society and the said Chhotangapur Catholic Co-operative Credit Society registered sale deeds in favour of Simon Khess, the defendant 21 no.1 and defendant no.6. The defendant nos. 1, 5 and 6 got their names mutated in the office of State of Bihar and they were making payments and considering all these aspects the learned trial court has been pleased to dismiss the suit by judgment dated 14.02.1996

29. The learned appellate court in absence of any documentary evidence of the plaintiff/respondent denied the sale deed and has been pleased to reverse the findings of the learned trial court on the ground that plaintiffs/respondent was not knowing about the entry of name of Yakub Oraon in the khatiyan and Exhibit-A and A/1 was not accepted on the ground that in the written statement of respondent no.1 Yakub Oraon was not alive on the date of execution of those sale deeds. The learned appellate court has been also pleased to set aside the rent suit decree in absence of relief sought for which is of the year 1937-38.

30. It is an admitted position that Khata No. 700 of village Kudarkho was recorded in the name of Mukta Orain in the cadastral survey record of rights. Ext. 2 and 2/A are certified copies of Khatiyan of Khata No. 70 of the cadastral survey in which the name of Mukhta Orain was recorded. Exhibit C is the certified copy of khatiyan of Khata No. 6 of the cadastral survey which stands recorded in the name of Yakub Oraon, the father of the defendant no1 of village Kudarkho and in the revisional survey the land has been shown as Kaimi. In cadastral survey record of rights the name of the land lord has been recorded as Kali Shankar Sahay but in the revisional survey record of rights the name of Maharaja Pratap Udai Nath Sahdeo has been recorded as land lord and the plaintiffs/respondents have not been able to prove and establish how the inconsistency arises between the cadastral record of rights and revisional record of rights and if such a contradiction was there it is rightly submitted by the learned counsel for the appellants that later survey will prevail as has been held by the Hon’ble Supreme Court in the case of Raja Durga Singh (supra). 22

31. The defendant noi.1 was claiming title on the suit land on the basis of entry recorded in the revisional survey records of right and further cadastral survey, revisional survey and recent survey took place in the year, 1908, 1934- 35 and 1992-93 respectively. The ex-landlord Maharaja Pratap Udai Nath Sahdeo brought the recent suit against Yakub Oraon, father of the defendant no.1 and obtained a decree against him. The lands of khata no. 6 were sold in auction in arrear of rent and one Alphanso Kujur the name tender and Benamidar of Chhotanagpur Catholic Co-operative Credit Society purchased the said land. Further the said Alphanso Kujur executed a release deed in favour of Chhotanagpur Catholic Co-operative Credit Society and the said society executed registered sale deeds in favour of Simon Khess, the defendant no.1, St. Anna’s convent Dighia and Puran Pd. Tirkey and Ishque Tirkey-defendant no.6. After purchase, the defendant nos. 1, 5 and 6 got their name mutated in the office of State of Bihar and they were making payments of the disputed land.

32. In view of that and considering the further parchas prepared in the name of employee of the Church the learned trial court found that the title interest and possession of defendant nos. 1, 5 and 6 was proved. There was not a single rent receipt granted by the ex-land lord in favour of the ancestors of the plaintiffs/respondents and even they have not taken any step to get their names recorded in revisional survey operation which took place in the year, 1934-35. Khata No. 6 has been recorded in the name of Yakub Oraon, father of defendant no.1 after vesting of estate into the State of Bihar the plaintiffs did not care to get their names mutated in the office of State of Bihar. The claim was made by the plaintiffs/respondents that they were in possession of the suit land since 1934 however not even a single rent receipt was produced before the Court and considering this aspect of the matter the learned Sub-Judge rightly found about non proving of the right, title and interest by the plaintiffs/respondents. 23

33. It is further well settled that for such right 12 years the relief is required to be sought as has been held by this Court in the case of “Dwarika Sonar(supra) and considering all these aspects of the matter the learned Sub-Judge found that the plaintiffs/respondents have not proved their right, title and interest as not even a single paper was filed before the learned Sub- Judge and if that situation was there the case of the appellants are fully covered in the light of “Raja Durga Singh” (supra) and “Dwarika Sonar(supra).

34. The sale deed is on the record that is documentary evidence that is having some sanctity and in view of that the learned Sub-Judge rightly held that the plaintiffs/respondents have not title on the suit land described in schedule B of the plaint and the two of the judgments relied by the learned counsel for the appellants on this score in the case of“Raja Durga Singh” (supra) and “Dwarika Sonar(supra) are helping the appellants.

35. Exhibit E suggests that the father of defendant no.1 defaulted in making payment of rent in respect of the suit land the ex-land lord filed a rent suit case against the recorded tenant Yakub Oraon. It further suggests that Yakub Oraon was in possession of the suit land and when he failed to pay rent, the ex-land lord filed rent suit case no. 1419 of 1937-1938 against Yakub Oraon and the said suit land was sold in auction and purchased by one Alphonse Kujur who was name tender and benamidar of Chhotanagpur Catholic Co-operative Credit Society, Purulia Road, Ranchi. The said Alphonse Kujur later on executed a release deed in favour of Chhotanagpur Catholic Co-operative Credit Society and the defendant nos. 1, 5 and 6 have brought on record the registered sale deeds which was marked as Exhibit-A, A/1, A/2 and A/3 executed by Chhotanagpur Catholic Co-operative Credit Society in their favour in respect of the suit land for proving their right, title and possession. The rent 24 receipts have been brought on record which is B series and the appellants have also brought on record D-series that is the Banda Purchas issued in the names to prove and establish that even the recent survey operation the employees of the survey fund their possession and accordingly banda purchas were issued.

36. The learned appellate court has reversed the finding of the learned trial court only on the basis of interpreting the documents on its own way and it appears that there is no compliance of Order 41 Rule 31 of CPC and if that is a fact the appellate court order will not sustain.

37. In the argument, Mr. P.P.N. Roy, learned senior counsel for the plaintiffs/respondents has admitted that if the prayer is not there that part of judgment of the learned appellate court whereby he has been pleased to set aside the rent suit decree prayed that can be said aside. In view of that it is an admitted position that there was no relief for setting aside the decree in the rent suit and inspite of that the learned appellate court had set aside the decree which dehors the rule. Even the argument of the learned senior counsel the plaintiffs/respondents with regard plaintiffs/respondents were not knowing about the possession of the land recording of the name of Yakub Oraon is accepted that cannot be a ground of reversing the judgment of the learned trial court which is well discussed judgment. Further it is well settled that a person who is sleeping and all of a sudden seeking relief after 58 years, cannot be allowed. The argument of Mr. P.P. N. Roy, learned senior counsel with regard to death of Yakub Oraon at the time of rent receipt is not tenable reversing the written statement of the learned Sub-Judge as the suit lands were purchased by the appellants on the auction sale and it has not been proved whether Yakub Oraon at that time was dead or not because the said rent suit was brought by the ex-land lord against Yakub Oraon as he was not filing rent and in absence of any prayer of setting 25 aside the rent suit decree the learned appellate court has set aside that decree also which is perverse and not in accordance with law.

38. In the judgment relied by Mr. P.P. N. Roy, learned senior counsel for the respondents in the case of Satya Gupta (supra) the fact was otherwise. In that case the High Court reversed the conclusion of the facts on the ground that in view of the second possible proof the facts of the appellate court was reversed, that is well settled proposition of law that when facts finding court are correct in the second appeal the re-appreciation of evidence is not required.

39. In the case in hand, the appellate court only considering the second view of the aspect reversed the finding of the learned trial court wherein the learned trial court judgment is based on the interpretation of document that is why the judmgents relied by Mr. P.P.N. Roy, learned senior counsel is not helping the respondent.

40. On the same line, the learned senior counsel has also relied in the case of Kondiba Dagadu Kadam (supra) that is not in dispute and if the first appellate court has decided the facts in judicial manner that cannot be a subject matter of the second appeal however, at the same time if the substantial question of law is framed in the second appeal that is required to be answered by this court and in view of that judgment of Mr. P.P. N. Roy in the case of Kondiba Dagadu Kadam (supra) is not helping the respondents.

41. If the substantial question of law is decided by the higher court that cannot be a subject matter of a decision by the High Court and that is the law in the judgment of the “Mst. Sugani”(supra) relied by the learned senior counsel for the plaintiffs/respondents.

42. The judgments relied by Mr. P.P.N. Roy in the cases of Mahadeo Thakur(supra) and Delhi Development Authority (supra) are not helping the plaintiffs/respondents as the death of Yakub was not proved 26 wherein rent suit decree was decreed in favour of the ex-land lord Maharaja Pratap Udai Nath Sahdeo and the said land was purchased in auction sale which was subsequently transferred in the name of appellant’s wife Exhibit-A series in view of the said judgments are not helping respondents/plaintiffs.

43. In view of above facts, reasons and analysis the law points formulated by this Court are answered in favour of the appellants to the effect that the learned court has reversed the decree of the trial court on conjectures and presumption.

44. The Exhibit-E it is order passed in the rent suit and that was set aside by the appellate court in absence of any prayer and the judgment passed in favour of the dead person is a nullity that is well settled and it has not been denied that the first appellate court has passed order in favour of a dead person namely, Binay Oraon. If such a situation is there the judgements relied by learned senior counsel for the respondents in the case of Mahadeo Thakur (supra) is helping the appellants and accordingly that law point is also answered in favour of the appellants. How this judgment is not helping the respondents/plaintiffs has already been discussed hereinabove.

45. In view of above facts, this second appeal succeeds. The judgment and decree of the learned appellate court dated 19.08.2022 are set aside. The judgement dated 14.02.1996 and decree dated 27.02.1996 passed by the learned Sub-Judge-VII, Ranchi in Title Suit No. 242 of 1993 is affirmed and the said judgment and decree are restored.

46. This second appeal stands allowed and disposed of. Pending, I.A., if any, stands disposed of.

47. Let L.C.R. be sent to the concerned court forthwith. ( Sanjay Kumar Dwivedi, J.) Satyarthi/A.F.R.