) 1. Mithu Mian, aged about 65 years, son of late Bhinu Mian, 2 v. 1. Md. Yakub, 2. Sayeed Ahmad, 3. Md. Rafique, 4. Md. Samsul Haque 5
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.190 of 2019 ------ (Against the judgment dated 29.03.2019 passed by learned District Judge-I, Jamtara in Civil Appeal No.06 of 2017) 1. Mithu Mian, aged about 65 years, son of late Bhinu Mian, 2. Aso Mian, aged about 61 years, son of late Chirri Mian, ------ Both residents of village Bhagabandh, P.O. & P.S. Narayanpur, Sub-Division Jamtara, District- Jamtara .... .... …. Defendants/Appellants/Appellants. Versus 1. Md. Yakub, 2. Sayeed Ahmad, 3. Md. Rafique, 4. Md. Samsul Haque 5. Md. Jamaluddin 6. Md. Alimuddin, All sons of late Fazalu Mian, all resident of village Bhagabandh, P.O./P.S. Narayanpur, Sub-division & District- Jamtara 7. Khadija Bibi 8. Amina Khatoon 9. Nasima Khatoon, all daughters of late Fazalu Mian 10. Deleted vide order dated 22.09.2017 .... .... …. Plaintiffs/Respondents 1st Party/Respondents 10. Titu Mian, Son of late Bhinu Mian, 11. Kuresha Bibi, widow of late Astul Mian, 12. Safaul Ansari, 13. Vakil Ansari, 14. Saddam Ansari, 15. Jamal Ansari, all sons of late Astul Mian, All residents of village Bhagabandh, P.O. & P.S. Narayanpur, 1 S.A. No.190 of 2019 District- Jamtara 16. Saibun Bibi, daughter of late Astul Mian and wife of Jamiruddin Mian, resident of village Badgunda, Tola Kurwaldaha, P.O. Taratar, P.S. Taratanr, District- Giridih. 17. Taijun Khatun, daughter of late Astul Mian and wife of Subhan Ansari resident of village Badgunda, Tola Durapahari, P.O. & P.S. Taratanr, District- Giridih 18. Jaigun Bibi, daughter of late Astul Mian and wife of Faruk Ansari, resident of village Nawadih, P.O. Sitalpur, P.S. Karmatar, District- Jamtara. 19. Minor Sajeda Khatoon, daughter of late Astul Mian 20. Minor Rajeda Khatoon, daughter of late Astul Mian Both represented through their mother and natural guardian Kuresha Bibi, Both residents of village Bhagabandh, P.O. + P.S. Narayanpur and District- Jamtara 21. Yunus Mian 22. Hanif Mian 23. Rahim @ Hazi Mian All sons of Late Baksu Mian 24. Kayum Mian, son of late Imabali Mian 25. Paran Mian 26. Rahman Mian All sons of late Nawarali @ Niwajali Mian 27. (a) Sabiran Bibi, W/o Late Suleman Mian, (b) Semun Bibi, daughter of Late Suleman Mian, w/o Halim Mian, Both residents of village- Narodih, P.O.- Glokhala, P.S.- Narayanpur, District- Jamtara. (c) Jamruddin Ansari, son of Late Suleman Mian, Resident of Kundalika Dah Batbundah, P.O. & P.S.- Taratar, District- Giridih, 2 S.A. No.190 of 2019 (d) Sojina Bibi, daughter of Late Suleman Mian, wife of Sahban Ansari, Resident of Narodih, P.O.- Gothala, P.S.- Narayani Pur, District- Jamtara
Legal Reasoning
(e) Rogina Khatoon, daughter of Late Suleman Mian, wife of Firoz Ansari, Resident of Bashavih, P.O.- Phuljharia, P.S.- Ahilapur, District- Giridih. (f) Matijan Khatun, daughter of Late Suleman Mian, wife of Dildar Ansari, Resident of Batbunda, P.O. & P.S.- Taratar, District- Giridih. (g) Makaraddin Ansari, son of Late Suleman Mian, wife of Dildar Ansari, Resident of Kundalukidih, P.O. & P.S.- Taratar, District- Giridih, (h) Rakubh Ansari, son of Late Suleman Mian, wife of Dildar Ansari, Resident of Kundalukidih, P.O. & P.S.- Taratar, District- Giridih, 28. Sakiran Khatoon, wife of late Islam Mian 29. Sakir Ansari, son of late Islam Mian 30. Sanaul Ansari 31. Anaul Ansari Both sons of late Islam Mian 32. Tanbun Khatoon, 33. Jaiboon Khatoon, 34. Hazra Khatoon, All daughters of late Islam Mian, All residents of village Bhagabandh, P.O. & P.S.- Narayanpur, Sub-division Jamtara, District- Jamtara. 35. Sultan Ansari, 36. Naimuddin Ansari, 37. Md. Moin Ansari, 38. Md. Samsuddin Ansari, All sons of late Kulsum Bibi and late Banaruddin Mian, 3 S.A. No.190 of 2019 All resident of village Chandadih (Lakhanpur), P.O. Sabanpur, P.S. Narayanpur, Sub-division and District- Jamtara. 39. Sakhina Bibi, wife of Rahman Mian, daughter of late Kulsum Bibi, resident of village Dhosia, P.O. Dhosia, Mahabani, P.S. Gobindpur, District- Dhanbad. 40. Jamala Bibi, wife of Asiruddin Mian, daughter of late Kulsum Bibi, resident of village Kalha Dabar, P.O. Barwa, P.S. Gobindpur, District- Dhanbad .... .... …. Defendants/Performa Respondents /Proforma Respondents For the Appellants For the Respondents ------
Legal Reasoning
: Mr. Rahul Kr. Gupta, Advocate Mr. Surya Prakash, Advocate Mr. Rakesh Kr. Singh, Advocate Mr. Swati Sigh, Advocate : Mr. Ashutosh Pd. Joshi, Advocate Mr. Shashank Shekhar, Advocate Mr. Ram Prawesh Prajapati, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2. This Second Appeal, filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of concurrence dated 29.03.2019 passed by learned District Judge-I, Jamtara in Civil Appeal No.06 of 2017 whereby and where under the learned first appellate court after finding that there is no illegality in the judgment impugned before it, passed by the learned Civil Judge (Sr. Division)-II, Jamtara in Original Suit No.31 of 2003 dated 25.01.2017, dismissed the appeal. 3. The brief facts of the case is that the ancestor of the respondents of this second appeal namely Fazalu Mian- who was the original plaintiff, filed 4 S.A. No.190 of 2019 Original Suit No.31 of 2003 in the court of Civil Judge (Senior Division), Jamtara with a prayer for declaration of his right, title and interest and possession over the suit land, with adjudication that the plaintiff has acquired indefeasible title by way of adverse possession by possessing the suit land since 1936, as per Sanglinama-Surrender-cum-Deed of Family Settlement dated 15th day of Baisakh, 1343 B.S. (Bikram Samwat) corresponding to April, 1936, confirmation of possession or in alternative recovery of possession, injunction, cost of the suit and other reliefs. 4. The case of the original plaintiff in brief is that the suit land was recorded in the name of Nemdar Mian who died in the year 1935 leaving behind his two sons namely Sannu Mian and Bannu Mian. Sannu Mian died issueless. The entire property devolved upon Bannu Mian. The first wife of Bannu Mian died in the year 1935. At that time, Bannu Mian did not have any issue from his first wife. Kashiran Bibi is the second wife of Bannu Mian. At the time of his marriage with Kashiran Bibi, Bannu Mian executed a deed of Sanglinama-cum- Family Settlement for inheritance of his properties and Bannu Mian surrendered his entire property in favour of the plaintiff- who is the son of Kashiran Bibi from an earlier marriage, before Kashiran Bibi marrying Bannu Mian. After the death of Bannu Mian, Kashiran Bibi and the plaintiff remained in the house of Bannu Mian and continued in possession over the same. In course of peaceful possession, the plaintiff got the suit land mutated in his name. Kashiran Bibi did not beget any issue from Bannu Mian. Kashiran Bibi died in the year 1987 and the plaintiff continued his peaceful possession over the suit land. The plaintiff acquired his title by possessing the suit land continuously as of his right, in open assertion of all the Raiyats of Mouja 5 S.A. No.190 of 2019 Bhagabandh since the date of surrender by Bannu Mian in 1936. After the death of Kashiran Bibi, some of the defendants filed R.E. Case No.13 of 1987-88 in the court of S.D.O. Jamtara for eviction of the plaintiff from the suit land. In his show-cause, the plaintiff contended that earlier also, the defendants instituted R.E. Case No.16 of 1975-76 but the same was dismissed by the S.D.O. Jamtara vide order dated 29.03.1976 and as no appeal or revision was preferred against the said order, the said order will operate as res judicata. The S.D.O. Jamtara has no jurisdiction to pass eviction order. The S.D.O. Jamtara passed order for eviction of the plaintiff in R.E. Case No.13 of 1987-88 dated 31.08.1988. The plaintiff filed an appeal in the court of Deputy Commissioner, Dumka vide Revenue Misc. Appeal No.118 of 1988-89. The Deputy Commissioner, Jamtara vide his order dated 27.08.2003 illegally dismissed the appeal. The plaintiff is still in peaceful possession of the suit land but as the defendants being emboldened by the said order of eviction passed by the S.D.O Jamtra which was confirmed by the Deputy Commissioner, Jamtara, may create any trouble and apprehending the same, the plaintiff filed the suit for the prayers as already indicated above. 5. In his written-statement, the defendant No.1 challenged the maintainability of the suit on various technical grounds. This defendant further pleaded that the plaintiff has no concern with the suit property or the properties of Bannu Mian nor has he ever possessed the same. The mutation in the name of the plaintiff is the result of a fraud practiced upon the court but the same cannot confer any title upon the plaintiff in respect of the suit land. The plaintiff was never recognized as the son of Bannu Mian and the plaintiff cannot be the son of Bannu Mian as per Muslim Law. 6 S.A. No.190 of 2019 6. The defendant Nos.2 to 11 in their joint written-statement also challenged the maintainability of the suit on various technical grounds. These defendants asserted that with a malafide motive, the original plaintiff claims to be the son of Bannu Mian. They further pleaded that earlier in Title Suit No.28 of 1963 of the court of Sub Deputy Collector, Jamtara, the original plaintiff- Fazalu Mian was shown as the son of Konka Mian and in that suit, the original plaintiff- Fazalu Mian never claimed that he is the adopted son of Bannu Mian. The defendant Nos.2 to 11 were not parties to Raiyati Eviction Case No.66 of 1975- 76. 7. In their joint written-statement, the defendant Nos.14 to 19 also challenged the maintainability of the suit on various technical grounds. 8. On the basis of rival pleadings of the parties, the learned trial court settled the following six issues:- Is the suit as framed maintainable? (i) (ii) Whether there is any cause of action to the plaintiff to file the suit? (iii) Whether the plaintiff has right, title and interest on the suit land? (iv) Whether the suit is barred by resjudicata? (v) (vi) Whether the Defendant Nos. 14 to 19 are heirs and successors of For what relief or relieves, the plaintiff is entitled to? recorded tenant of the suit lands? 9. During the pendency of the suit, the original plaintiff has died and his legal heirs have been arrayed as plaintiff Nos.1 to 10. 10. In support of their case, the plaintiff altogether examined five witnesses and proved the documents which have been marked Ext. 1 to 7 while the defendants examined eight witnesses and they also proved the documents which were marked Ext. A to Ext. O/1. 7 S.A. No.190 of 2019 11. The learned trial court first took up issue Nos. (iii) and (iv) together and after considering the evidence in the record, came to the conclusion that the Sanglinama which has been marked as Ext. 4, is not a genuine document and on the basis of the said Sanglinama right, title and interest cannot be declared. The learned trial court then considered that the plaintiff could not prove their adverse possession as per Regulation-III of 1972 and the claim of adverse possession is not proved by the plaintiff but went on to hold that as per Mohammedan Law, the original plaintiff has succeeded to all the properties as residuary and decided the issue No.(iii) in favour of the plaintiff and right, title and declared interest of the plaintiff over the suit land, but the issue No.(iv) was declared in the negative. 12. The learned trial court next took up issue Nos.(i), (ii) and (iv) together and after considering the materials available in the record came to the conclusion that the suit, as framed and filed, is maintainable, there is cause of
Decision
action for the suit and disposed of the issue Nos.(i), (ii) and (iv) as not pressed. 13. Lastly, the learned trial court took up issue No.(v) and held that the suit is decreed on contest without cost and the right, title and interest in the suit property is declared in favour of the plaintiff but prayer of injunction was not allowed. 14. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Civil Appeal No.06 of 2017 in the court of learned Principal District Judge, Jamtara which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment as already indicated above. 8 S.A. No.190 of 2019 15. The learned first appellate court on the basis of the materials available in the record and the submissions made before it, formulated the following two points for determination: - “A. Whether the learned lower court has rightly held that on the death of Banu Mian, his widow Kashiran Bibi has succeeded his entire estate i.e. …th as sharer and (cid:190)th by return u/s 66 of Hanifi Law of Inheritance? B. Whether the learned lower court has committed grave error by not framing the issue that defendants/appellants are the residuaries of Banu Mian and whether learned lower court was justified in decreeing the suit of plaintiffs, which calls for any interference?” 16. The learned first appellate court took up the point for determination No. A and B together and after making independent appreciation of the evidence in the record, came to the conclusion that the original plaintiff- Fazalu Mian being the only son of Kashiran Bibi as per Mohammedan Law, has inherited and succeeded all her properties as residuary and went on to hold that the learned trial court has rightly held that the widow of Bannu Mian has succeeded …th share and (cid:190)th share of Bannu Mian by principle of return under Section 66 of Hanifi Law of inheritance, she succeeded the entire properties of Nemdar Mian and the original plaintiff- Fazalu Mian was son of Kashiran Bibi, hence, he inherited the entire properties of his mother and therefore, the learned trial court decided the suit in favour of the plaintiff rightly and dismissed the appeal. 17. This Second Appeal was admitted vide order dated 07.08.2023 on the following substantial questions of law:- (i)Whether both the courts below have committed perversity by declaring the right, title and interest of the plaintiff on the ground of succession which is not the case of the plaintiff made in the plaint rather the plaintiff prayed for title on the basis of adverse possession? 9 S.A. No.190 of 2019 (ii)Whether both the courts below committed a grave illegality by ignoring Section 63 of Santhal Parganas Tenancy (Supplementary Provision) Act, 1949 by ignoring the order of eviction passed by the S.D.O. and Deputy Commissioner in R.E. Case No. 16 of 1975-76 and R.M.A. No. 51 of 2001-02 respectively? 18. Learned counsel for the appellants relies upon the judgment of the Hon’ble Supreme Court of India in the case of Bachhaj Nahar vs. Nilima Mandal & Another reported in (2008) 17 SCC 491 paragraph-10 of which reads as under:- “10. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are: (i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject-matter of an issue, cannot be decided by the court. (ii) A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint. (iii) A factual issue cannot be raised or considered for the first time in a second appeal.” (Emphasis supplied) and submits that it being a settled principle of law that a court cannot make out a case not pleaded and the court should confine its decision to the questions raised in the pleadings and though it was never pleaded by the plaintiff in the suit that the original plaintiff has acquired right, title and interest by way of inheritance rather it is all along the case of the plaintiff that he continued in possession of the suit land only, both the courts below have committed grave illegality by making out a third case; which was neither the case of the plaintiff nor that of the defendants; that the plaintiff has inherited 10 S.A. No.190 of 2019 the property of Bannu Mian. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside, on this score alone. 19. So far as the second substantial question of law is concerned, learned counsel for the appellants submits that Section 63 of the Santhal Parganas Tenancy Act which reads as under:- 63. Bar to suits. - No suit shall be entertained in any court to vary, modify or set aside, either directly or indirectly, any order of the Deputy Commissioner in any application which is cognizable by the Deputy Commissioner under this Act and every such order shall, subject to the provisions of this Act relating to appeal and revision, be final : Provided that nothing contained in this section shall bar the jurisdiction of a Civil Court in matters in which it had jurisdiction immediately before the commencement of this Act. and submits that the Section 63 of the Santhal Parganas Tenancy Act prohibits a title suit to be brought for avoiding the order of Deputy Commissioner. 20. It is next submitted that the undisputed fact remains that the plaintiff was directed to be evicted from the suit land by the order of the S.D.O., Jamtara in R.E. Case No.13 of 1987-88 and the same has been upheld by the Deputy Commissioner, Jamtara in R.M.A. No.51 of 2001-02. It is next submitted that there was a forum for revision for the plaintiff to challenge the order of the Deputy Commissioner in terms of Section 59 of the S.P.T. (Supplementary Provisions) Act, 1949 but instead of availing that statutory revision, the plaintiff having filed the suit for the sole purpose of avoiding the order passed by the Deputy Commissioner, Jamtara in R.M.A. No.51 of 2001-02 the same, makes the suit not maintainable in view of the bar contained in 11 S.A. No.190 of 2019 Section 63 of the S.P.T. (Supplementary Provisions) Act, 1949 which bars a suit to avoid the order passed by the Deputy Commissioner in terms of the provisions of the S.P.T. (Supplementary Provisions) Act, 1949. Hence, it is submitted that on this score also, the suit of the plaintiff ought to have been dismissed as not maintainable; instead of the same being decreed as was erroneously made by both the courts below. 21. Learned counsel for the respondents on the other hand relies upon the judgment of the Hon’ble Orissa High Court in the case of Managobinda & Others vs. Brajabandhu Misra reported in AIR 1986 Orissa 281 and submits that therein the Hon’ble Orissa High Court has held in paragraph-10 of the said judgment that when the question relates to the title of both the parties and evidence has been led about it and both the parties are aware of the same, the mere technicality that the issue was not expressed in the pleadings is of formal nature and should not be allowed to preclude the court from granting the relief. 22. It is next submitted that the court can mould the relief and though in this suit, the plaintiff has prayed for declaration of right, title and interest with adjudication that the plaintiff has acquired indefeasible title by way of adverse possession, that did not preclude the learned trial court to the relief, which the plaintiff was otherwise entitled in law. Hence, it is submitted that no perversity has been committed by both the courts below in declaring the right, title and interest of plaintiff on the ground of succession, as the plaintiff also pleaded that he is the son of Bannu Mian and also filed documents to that effect. Hence, it is submitted that the first substantial question of law be answered in the negative. 12 S.A. No.190 of 2019 23. So far as the second substantial question of law is concerned, learned counsel for the respondents relies upon the judgment of the Hon’ble Patna High Court in the case of Tarini Marandi & Others vs. Lakshmi Mahto & Others reported in 1998 3 BLJR 1662 paragraph-9 of which reads as under:- “9. From perusal of Section 63 of the Santhal Parganas Tenancy Act (Supplementary Provisions) Act, 1949 it is clear that this section bars the institution of suits which seek to vary, modify or set aside an order passed by the Deputy Commissioner in exercise of his revenue jurisdiction under the Act. It is, therefore, clear that a suit does not seek to vary, modify or set aside the order of the Deputy Commissioner or to avoid such order, the civil court has jurisdiction to entertain suit. By implication it follows further that where an order of the Deputy Commissioner is in excess of the Jurisdiction or without jurisdiction then it can certainly be challenged in a suit and the civil court has jurisdiction to entertain the suit. In the case of M.P. Electricity Board v, Vijay Timber Co. (1997) 1 SCC 68, the Apex Court held that the exclusion of jurisdiction of civil court cannot be readily inferred and the normal rule is that civil courts have Jurisdiction to try all suits of a civil nature except those of which cognizance by them is either expressly or impliedly excluded. In the case of Vankamamidi Venkata Subba Rao V/s. Chatlapalli Seetharamaratna Rranganayakamma -- the Apex Court considered the scope of Section 9 of the Code of Civil Procedure Cand held as under: Under Sec. 9 CPC, the Courts shall subject to the provisions contained therein, have jurisdiction to try all suits of civil nature excepting suits cognizance of which is either expressly of impliedly barred. When a legal right is infringed, a suit would lie unless there is a bar against entertainment of such civil suit and the civil courts would take cognizance of it. Therefore, the normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. The rule of construction being that every presumption would be made in favour of the existence of a right and remedy in a democratic set up governed by rule of law and jurisdiction of the civil courts generally construe the provisions strictly when jurisdiction of the civil courts is claimed to be excluded. However, in the development of civil adjudication of civil disputes, due to pendency of adjudication and abnormal delay at hierarchical stages, statutes intervene and provide alternative mode of resolution of disputes with less expensive but expeditious disposal. It is settled legal position that if a tribunal with limited jurisdiction cannot assume jurisdiction and decide 13 S.A. No.190 of 2019 for itself the dispute conclusively, in such a situation, it is the court that is required to decide whether the tribunal with assumed jurisdiction has jurisdiction and decided the dispute within its limits. correctly limited In the case of D.R. Chawla Ors. V/s. Municipal Corporation of Delhi (1993) 3 S.C. C 162, the Apex Court held that where a statute purports to curb and curtail the pre-existing common law right and purports to Oust the jurisdiction of the court so far remedy against the order passed under such statute is concerned then in such cases, the courts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the person aggrieved may agitate his grievance.” and submits that therein the court has held that where the order of the Deputy Commissioner is in excess of the jurisdiction or without jurisdiction, then it can certainly be challenged in a suit and the civil court has the jurisdiction to entertain the suit. 24. It is next submitted that as the R.E. Case No.13 of 1987-88 was barred by res judicata as the self-same prayer was already rejected by the same forum in R.E. Case No.16 of 1975-76, so, the dismissal of R.M.A. No.51 of 2001-02 was without jurisdiction, hence, the suit was maintainable and has rightly been decreed. It is therefore submitted that the second substantial question of law be also answered in the negative and this Second Appeal, being without any merit, be dismissed. 25. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, so far as the first substantial question of law as to “whether both the courts below have committed perversity by declaring the right, title and interest of the plaintiff on the ground of succession which is not the case of the plaintiff made in the plaint rather the plaintiff prayed for title on the basis of adverse possession” is concerned, it is a settled 14 S.A. No.190 of 2019 principle of law that the court cannot make out a third case, not pleaded by either of the parties and that the parties should not be allowed to lead evidence which is not in accordance with their pleadings. 26. Now, coming to the facts of the case, this Court after carefully going through the plaint of this suit filed by the original plaintiff, is of the considered view that there is absolutely no pleading of the plaintiff that the original plaintiff inherited the suit property from Bannu Mian, rather it is all along the case of the defendants that since the death of Nemdar Mian in the year 1935, from 1936 onwards, the plaintiff has been in continuous possession of the suit land on his own right in open assertion of all the Raiyats of Mouza Bhagabandh since the date of surrender of the said land by Bannu Mian in 1936. It is a settled principle of law that possession howsoever long cannot confer title. As the plaintiff has nowhere pleaded that he succeeded to the property of Bannu Mian nor has pleaded that he has acquired right, title and interest by way of inheritance from Bannu Mian. Since, both the courts below came to the finding that Sanglinama which has been marked as Ext. 4, is not a genuine document upon which the right, title and interest of the plaintiff can be declared and also the finding that in view of Santhal Parganas Tenancy Act, the plaintiff failed to prove adverse possession, the suit ought to have been dismissed but the finding of the courts below that on the principles of return under Section 66 of the Hanifi Law of Inheritance the right, title and interest of the plaintiff in the suit property is declared, even though the same was not the case of the plaintiff certainly amounts to making out a third case; which is not pleaded by the parties and which was prohibited in law, hence, the same is the perversity committed by both the courts below. Therefore, the first substantial 15 S.A. No.190 of 2019 question of law is answered in the affirmative by holding that both the courts below have committed perversity by declaring right, title and interest of the plaintiff on the ground of succession which is not the case of the plaintiff made in the plaint, rather as the plaintiff prayed for the title on the basis of adverse possession. 27. So far as the second substantial question of law as to “whether both the courts below committed a grave illegality by ignoring Section 63 of Santhal Praganas Tenancy (Supplementary Provision) Act, 1949 by ignoring the order of eviction passed by the S.D.O. and Deputy Commissioner in R.E. Case No. 16 of 1975-76 and R.M.A. No. 51 of 2001-02 respectively” is concerned, it is pertinent to mention here that it is the admitted case of the plaintiff that the plaintiff voluntarily submitted to the jurisdiction of the Deputy Commissioner by filing R.M.A. No.51 of 2001-02 but having availed the forum of appeal voluntarily but having lost the same; it is not open for the plaintiff to contend that the Deputy Commissioner was not having the jurisdiction to pass the order in R.M.A. No.51 of 2001-02 more so when such plea was not taken in the plaint. It is needless to mention that in the plaint there is no assertion that the Deputy Commissioner was not having the jurisdiction to entertain R.M.A. No.51 of 2001-02 and in this respect, it is appropriate to refer to the judgment of the Hon’ble Supreme Court of India in the case of Kedar Shashikant Deshpande & Others vs. Bhor Municipal Council & Others reported in (2011) 2 SCC 654 paragraph-29 of which reads as under:- “29. It is well settled that if a person has submitted to the jurisdiction of the authority, he cannot challenge the proceedings, on the ground of lack of jurisdiction of the said authority in further appellate proceedings. Had this plea, been raised before the the respondents would have got the Additional Collector, 16 S.A. No.190 of 2019 opportunity to place on record notification issued under the provisions of the Maharashtra Land Revenue Code, 1966 to establish that the Additional Collector was delegated the powers of the Collector and was competent to decide the disqualification petition.” (Emphasis supplied) 28. As has been reiterated by the Hon’ble Patna High Court in the case of Tarini Marandi & Others vs. Lakshmi Mahto & Other (supra), Section 63 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, prohibits any suit inter alia to avoid any order of the Deputy Commissioner and in this case, the order of the Deputy Commissioner is for eviction of the plaintiff from the suit land passed in R.M.A. No.51 of 2001-02. It is needless to mention here that there is a provision for revision against the order passed by the Deputy Commissioner in R.M.A. No.51 of 2001-02 but in the absence of any exceptions where suit can be filed despite Section 63 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, like the Deputy Commissioner was without jurisdiction, as contended by the learned counsel for the respondents, this Court has no hesitation in holding that both the courts below have committed a grave illegality by ignoring the provisions of Section 63 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 as the suit being essentially to avoid the order passed by the Deputy Commissioner, Jamtara in R.M.A. No.51 of 2001-02 which was passed in exercise of power under Section 57 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949; the same is barred by section 63 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. So, the second substantial question of law “whether both the courts below committed a grave illegality by ignoring Section 63 of Santhal Praganas Tenancy (Supplementary Provision) Act, 1949 by ignoring the 17 S.A. No.190 of 2019 order of eviction passed by the S.D.O. and Deputy Commissioner in R.E. Case No. 16 of 1975-76 and R.M.A. No. 51 of 2001-02 respectively” is also answered in the affirmative. 29. In view of answer to both the substantial questions of law, this Court is of the considered view that the judgment and decree passed by the trial court being the learned Civil Judge (Sr. Division)-II, Jamtara in Original Suit No.31 of 2003 dated 25.01.2017 and the judgment and decree passed by the learned first appellate court being the learned District Judge-I, Jamtara in Civil Appeal No.06 of 2017 dated 29.03.2019, being not sustainable in law are set aside and the Original Suit No.31 of 2003 is dismissed being not maintainable, in view of the bar under Section 63 of Santhal Praganas Tenancy (Supplementary Provision) Act, 1949 because of the finding of both the courts below that Sanglinama which has been marked as Ext. 4, is not a genuine one and on the basis of the same right, title and interest of the plaintiff cannot be declared and as the plaintiff has failed to prove his perfection of title by way of adverse possession. 30. In the result, this Second Appeal is allowed on contest but under the circumstances without any cost. 31. Let a copy of this judgment along with the lower court records be sent to the courts concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 19th of December, 2024 AFR/ Animesh 18 S.A. No.190 of 2019