1. This appeal has been filed against the judgment dated 29.09.2018 (decree dated 12.10.2018) passed by learned Principal District Judge, Khunti in Civil Appeal No. 01 of 2018 whereby the appeal has been dismissed. The trial court’s judgment is dated 21.11.2017 (decree dated 01.12.2017) passed by learned Civil Judge, Senior Division-1st Khunti, in Original Title Suit No. 05 of 2011 by which the suit has been dismissed.

2. Plaintiffs have lost in both the courts, but a substantial question of law arises for consideration in this case.

3. The learned counsel has submitted that the plaintiffs are claiming the property by virtue of registered sale deed dated 05.02.1986 from the legal heirs of the recorded tenant and at the time of filing of Jamindari returns and assessment of rent in Assessment Case No. 51 of 1955-56 and in form-M, the recorded tenant were found in possession of the property and rent was assessed in their name who continued in possession and sold the property to the plaintiffs and also delivered possession by virtue of registered sale deed dated 05.02.1986.

4. The learned counsel submits that the defendants were claiming the property by virtue of auction sale which had taken place way back in the year 1941 and they are the purchasers of the property by virtue of registered sale deed executed by the auction purchaser of the property. The registered sale deed is dated 14.12.1944.

5. He submits that it is not in dispute that the registered sale deed dated 05.02.1986 of the plaintiffs and the registered sale deed dated 14.12.1944 of the defendants were in relation to the same property.

6. The learned counsel has referred to the findings of the learned 1st appellate court which is concurrent finding that adverse inference has been drawn against the plaintiffs on account of non-production of the original sale deed as the plaintiffs have produced only the certified copy of registered sale deed dated 05.02.1986.

7. The learned counsel has referred to the judgment passed by the Hon’ble Supreme Court reported in 2023 SCC Online SC 1183 (Appaiya versus Andimuthu alias Thangapandi and Others) dated 20th September, 2023 and has referred to paragraph 30 of the said judgment to submit that as per Section 65(e) of the Evidence Act, when the original of a document is a public document within the meaning of Section 74, secondary evidence relating to original i.e. as to its existence, condition or contents may be given by producing its certified copy. The learned counsel submits that it has been held by referring to Section 77 and 79 of the Evidence Act that Section 77 provides for the production of certified copy of the public document as secondary evidence in proof of contents of its original and as per Section 79 there is presumption as to the genuineness of certified copies and a document of such nature has been held to be admissible in evidence. He submits that the provision of Section 57(5) of the Registration Act has also been taken into consideration wherein it has been provided that certified copy given under Section 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document. It has also been held that certified copy issued thereunder is not a copy of the original document, but is a copy of the registration entry which itself is a copy of the original and is a public document under Section 74(2) of the Evidence Act and sub section (5) of section 57 makes it admissible in evidence for proving the contents of its original.

8. The learned counsel submits that non-production of original sale deed dated 05.02.1976 was not fatal to the case, rather the same was admissible in evidence and the learned courts have misdirected themselves by taking adverse inference on account of non-production of original sale deed dated 05.02.1976.

9. The learned counsel has also submitted that reliance has also been placed on the deed of cancellation and he submits that a registered document cannot be cancelled by the Registration Office by execution of deed of cancellation, it can only be annulled through a competent court of civil jurisdiction.

Case of the plaintiffs

10. The plaintiffs filed the suit seeking relief that the court be pleased to declare the right, title and interest of the plaintiffs over the suit property described in the schedule of the plaint and possession of the suit land in favour of the plaintiffs be confirmed. Alternatively it was prayed that if the plaintiffs are found dispossessed during the pendency of the suit, a decree be passed for recovery of possession and the plaintiffs be put in khas possession of the suit property.

11. It is the specific case of the plaintiffs that the land under Khata no. 76, plot no. 363 and other plots, total area 6 acres 35 decimals including 3 acres 75 decimals (the suit land) under plot no. 363 of village Erenda within Khunti Police Station was recorded in the revisional survey records of rights in the name of Lohuran Dhobi and Gor Dhobi, sons of Chhurkata Dhobi and the recorded raiyats hold and possess the lands of Khata no. 76 in their occupancy right as an exclusive owner.

12. It is the case of the plaintiffs that at the time of vesting of zamindari under the Bihar Lands Reforms Act, 1950, the said recorded tenants were found in khas possession over the lands of khata no. 76 and rent was fixed vide Rent Assessment Case No. 61 of 1955-56 and Form-M was issued in their names. It is their further case that in due course of time, the recorded tenant Lohuran Dhobi, Gor Dhobi and Ghansi Dhobi amicably partitioned the said land of khata no. 76 and other khatas and they were separated amongst themselves in mess and property and R.S. Plot no. 363 measuring an area of 3 acres 75 decimals and other plots of khata no. 76 of the said village was exclusively allotted to Lohuran Dhobi S/o Chhurkata Dhobi.

13. It is their further case that Lohuran Dhobi, Gor Dhobi and Ghasi Dhobi died one after another leaving behind their legal heirs and successors as mentioned in the genealogical table;

                  Lohuran Dhobi died leaving behind two sons, namely, Budhnath Baitha and Sodho Baitha;

                  Budhnath Baitha died leaving behind Krishna Baitha, Rungta Baitha and Lugun Baitha as legal heirs whereas Sodho Baitha died issueless;

                  Gor Dhobi died leaving behind Jagdhari Baitha; and Ghasi Dhobi died leaving behind his legal heir Ranjit Baitha.

14. It is the further case of the plaintiffs that Budhnath Baitha and Sodho Baitha, both sons of Lohran Dhobi, in order to met legal necessity, sold and transferred 3 acres 75 decimals land of R.S. Plot No. 363 khata No. 76 to the plaintiffs by virtue of registered sale deed dated 05.02.1986 upon payment of valuable consideration and put the plaintiffs in khas possession of suit land. After purchase of the suit land, the plaintiffs came in peaceful possession over the same and acquired right, title, interest and possession over area 3 acres 75 decimals of land being its rightful owner.

15. It is their further case that the plaintiffs converted the purchase lands into Korkar 18 Kiyari for cultivation of rice and have still been in cultivating possession over the suit land, but all of a sudden, the plaintiffs came to know that the father of defendant nos. 2 to 4, namely, Budhnath Baitha filed an application before Sub-Divisional Magistrate, Khunti under Section 145 of Cr.P.C. and in course of hearing of the said proceedings, the defendant no. 1 was made a 3rd party in Case No. 762 of 1987 and the learned court without going deep into the matter and without appreciating the documentary evidence and the witnesses held the possession of defendant no. 1 over the suit land vide order dated 30.11.1996, against which the plaintiffs preferred Criminal Revision No. 32/1997 (R) before the Hon’ble High Court which was dismissed vide order dated 30.07.2003.

16. The plaintiffs claimed that they have been still in uninterrupted possession of the suit land and the possession is still continuing even after passing of the order by the learned Executing Magistrate as well as the Hon’ble High Court and that the defendants did not have any concern with the suit land and they never made any claim on the basis of the order passed by the learned Executive Magistrate, but recently at the instigation of some vested interested persons, the defendants had started propagating that they have got right, title and possession over the suit land.

17. The cause of action for the suit arose on 30.11.1996 when the order was passed by the learned Executive Magistrate and also on 30.07.2003, when the order was passed by the Hon’ble High court and lastly on 15.03.2011 when the false claim over the suit land was made by the defendants.

Case of the defendants

18. The defendant no. 1 Ashok Bhagat filed his written statement through his power of attorney holder Arun Bhagat stating therein that the suit as framed is not maintainable and the plaintiffs’ suit is false, frivolous and vexatious and as such it is liable to be dismissed without compensatory cost. The plaintiffs have got no cause of action to file the suit and the suit is barred by law of limitation, adverse possession and also barred under Section 34 of the Specific Relief Act and the same is also bad for non-joinder and mis-joinder of the necessary parties. The plaintiffs have got no right, title, interest and possession over the suit property which exclusively belonged to the defendant no. 1.

19. It is the specific case of the defendant no. 1 that the lands under khata no. 76 in the revisional survey record of rights of village Erenda within Khunti Police Station, Thana No. 240 was recorded in the records of right as Kaimi Adhbatai in the names of Lohuran Dhobi and Gor Dhobi, sons of Chhourkata Dhobi. The lands of khata no. 76 comes under khewat no. 14 stands recorded in the name of Adhilya Kunwar who for realization of arrears of rent instituted a Rent Execution Suit No. 468 RI- 1940-41 against Lohuran Dhobi and others and said suit is decreed in favour of the Ahilya Kunwar and after execution of the said decree, all the lands including 3.75 acres of land in plot no. 363 khata no. 76, khewat no. 14 of the said village was auction sold and the same was purchased by Ahilya Kunwar on 26.08.1944 and accordingly delivery of possession was given to Ahilya Kunwar through the process of the court. Thereafter, the said Ahilya Kunwar, the landlord of the village and auction purchaser became absolute owner of the lands of khata no. 76 and she remained in peaceful possession throughout till 14.12.1944 when she executed a registered sale deed being deed no. 641 dated 14.12.1944 for consideration and transferred the lands khata no. 76 including the land measuring an area 3.75 acres in plot no. 363 which is the suit land in favour of Ashok Kumar Bhagat, defendant no. 1 and possession was conferred to defendant no. 1 and thereafter this defendant has still been coming in uninterrupted possession of the suit lands.

20. The defendant no. 1 had asserted in his written statement that the nature of the suit land recorded as Kaimi Adhbatai and it was in execution auction sold in favour of Ahilya Kunwar and sale certificate was prepared and signed by SDO, Khunti and delivery of possession of all the lands of khata no. 76 including the one involved in this suit was given to Ahilya Kunwar on 26.08.1944 through the process of the Court. It was their further case that Lohurun Dhobi and others suppressing the real facts applied before the Circle Officer for commutation of rent in respect of Khata no. 76 and two other khatas and managed to obtain the order in their favour. But on objection raised by the defendant no. 1, the Circle Officer, Khunti, after hearing the said Commutation case, set-aside the ex- parte order and cancelled the rent schedule issued in favour of Lohuran Dhobi and others and allowed the commutation of rent of khata no. 76 in favour of defendant no. 1 as per order dated 20.05.1957. The defendant no. 1 stated that the alleged Form-M said to have been issued in the names of Lohuran Dhobi and others has got no legal value.

21. The defendant no. 1 further asserted in his written statement that the said Lohuran Dhobi and others did not have any legal authority to get the land of khata no. 76 and others amicably partitioned since those khatas including khata no. 76 had already been action sold. It is also absolutely false and ridiculous to say that the lands of khata no. 76, plot no. 363 area 3.75 acres was allotted to Lahuran Dhobi and he became the absolute owner of these lands. The alleged sale deed executed in favour of the plaintiffs is forged and fraudulent and was registered by a shrewd Karmachari Bal Kishore Mahto in favour of his wife Chandramani Devi and another by prevailing upon Budhnath Baitha and another to go for illegal and invalid transaction which is ab-initio null and void as the alleged vendors had no right sell. The alleged sale deed dated 05.02.1986 of khata no. 76, plot no. 363 is illegal, invalid and inoperative without consideration and not binding upon this defendant. The land in suit is being held and possessed continuously by the defendant no. 1 since 1944 to the knowledge of all the concerned. The plaintiffs never came in possession of the suit land and it is false and frivolous on the part of the plaintiffs to claim peaceful possession and acquisition of the right, title and interest over the suit land.

22. The defendant no. 1 had further stated that Budhnath Baitha had no right to execute the sale deed dated 05.02.1986 in favour of the plaintiffs which got registered fraudulently and under undue influence and misrepresentation of real facts and when Budhnath Baitha came to know about the real facts, he filed a case under Section 145 Cr.P.C. before the Executive Magistrate, Khunti in which defendant no. 1 was also added as 3rd party since his interest was very much involved in the property and ultimately the proceeding under Section 145 Cr.P.C. was decided in favour of defendant no. 1. The defendant no. 1 further stated that the plaintiffs also preferred Criminal Revision No. 32/1997 before the Hon’ble High Court against the order of Executive Magistrate, Ranchi, which was ultimately dismissed and thereafter the plaintiffs filed the present suit without any cogent ground and cause of action.

23. On the basis of pleadings of both the parties, the learned trial court framed the following issues for considerations: -

                  “(i) Is the suit as framed maintainable in its present form?

                  (ii) Have the plaintiffs got valid cause of action for the suit?

                  (iii) Is the suit barred by law of limitation and adverse possession?

                  (iv) Whether the suit is undervalued and the court fee paid is insufficient?

                  (v) Whether the suit is barred under Section 34 of the Specific Relief Act?

                  (vi) Whether the plaintiffs have got right, title, interest and possession over the suit land?

                  (vii) To what relief and reliefs the plaintiff is found entitled to?”

24. The trial court after considering the materials on record held that the defendant was in possession of the property since 1944 by virtue of registered sale deed dated 14.12.1944 from the auction purchaser of the property namely Smt. Ahilya Kuwar. The trial court also observed that the plaintiffs had taken a plea before the Executive Magistrate that instead of selling of 01 acre, 3.75 acres was mentioned in the sale deed for which no consideration was paid. The court held that the plaintiffs could not prove their right, title, interest and possession with respect to the suit property on the basis of their sale deed and their sale deed was null and void and found that there was no cause of action for the plaintiffs to file the case and the case itself was not maintainable and ultimately dismissed the suit.

25. The findings of the learned 1st appellate court in paragraph 17 onwards is quoted as under: -

                  “17. The learned counsel of the defendant-respondent in course of his argument also stressed the need that the plaintiff- appellants have not been coming in possession over the suit land for the last several 12 years and therefore the suit is badly hit by the principal of adverse possession, and it was also argued that the suit is also badly hit u/s 34 of Specific Relief Act because plaintiff has not sought adequate relief in the plaint and under this circumstances the plaintiff suit will collapse. I have perused the entire case record, evidences oral and documentary available and on perusal of record it transpires that plaintiffs-appellants are definitely not in possession over the suit land for the last several 12 years ever since the sale deed was executed in the year 1944 and from the order of learned Executive Magistrate in proceeding u/s 145 Cr.P.C the order was passed in year 1995 and therefore the plaintiff out to have sought the relief for declaration of title and for recovery of possession but mere look of relief portion it shows that plaintiff has sought declaration of title and confirmation of possession and alternatively recovery of possession in case the plaintiffs are found to be dispossessed. Section 34 of Specific Relief Act says that if plaintiffs are entitled to seek more reliefs and if it omits to do so under these circumstances no relief shall be granted to the plaintiff.

                  18. If for argument shake as per the contention of the plaintiff if it is taken into consideration that plaintiffs were not dispossessed at the time of filing of the suit in the year 2011 and therefore he has simply sought relief for declaration of title and confirmation of possession over the suit land under this circumstance the suit must have been filed in and around 2006- 07 because the order of the Hon'ble Jharkhand High Court was passed in the year 2003 dismissing the plea of plaintiffs- appellant and therefore the period of limitation would be within three years from the date or order to file the suit to get his title declared and to confirm his possession but the suit has been filed after the lapse of 8 years in the year 2011 and therefore the suit is barred by the law of limitation. If for the argument shake it is presumed that plaintiff-appellant was dispossessed much earlier before filing of the suit then the specific date of dispossessions should have been pleaded in the plaint that on which date he was dispossessed and on which date his title became hostile to his adversary but nothing has been mentioned either in the plaint or it has come from the mouth of oral witnesses adduced on behalf of the plaint. The plaintiff Chandramani Devi has been examined in this case as PW-1 who specifically deposed at para-7 of cross-examination that she is not paying rent to the state for the last several years right from beginning of proceeding between the parties. She further deposed at para-9 that she cannot say whether the suit land was purchased by Ahilya Kunwar in auction and she also cannot say that whether Ahilya Kunwar transferred the suit land in favour of Ashok Bhagat in the year 1944. It also goes to show that the plaintiff have no any knowledge regarding the existence of suit land right from the beginning at the same time she is also not denying the execution of sale deed made by Ahilya Kunwar in favour of Ashok Kumar Bhagat. At para-2 of her cross-examination PW-1 Chandra Mani Devi further deposed that she cannot say against whom she has filed this suit and who are the parties. Out of the two plaintiffs-appellants only PW-1 Chandramani Devi has been examined in the trial court and therefore the testimony of PW-1 remains significant in order to prove her title and possession over the suit land. It is also important to note that the plaintiff-appellant at the time of filing of the suit has not sought any relief regarding cancellation of sale deed alleged to have been executed by Ahilya Kunwar in favour of defendant No.1 Ashok Kumar Bhagat in the year 1944. This sale deed is also related to the suit land under Khata No.76 plot No.363 area 3.74 acre and if the alleged sale deed dated 14-12-1944 Ext-A executed by Ahilya Kunwar in favour of Ashok Kumar Bhagat is hereby allowed to remain in existence it will definitely cast cloud on the title of the plaintiff-appellant because alleged sale deed dated 14-12-1944 is much older than that of alleged sale deed dated 05-02-1986 executed in favour of plaintiff appellant but no such relief has been sought by the plaintiff in plaint under this circumstances the relief sought by the plaintiff in the plaint shall be deemed to be inadequate and half-hearted and plaintiff-appellants shall not been entitled to get any relief under this circumstances. None filing of registered instrument that is sale deed dated 05-02-1986 which is the basis of the title of the plaintiff without assigning any cogent reason and explanation has also proved fatal to adjudicate the title and possession in favour of the plaintiffs-appellants at the trial court.

                  19. The learned trial court while dismissing the suit of plaintiff has rightly come to this conclusion that the plaintiff-appellants have not acquired right, title, interest and possession over the suit lands on the basis of alleged registered sale deed said to have been executed by Budhnath Baitha and Sodho Baitha in favour of Chandramani Devi and Smt. Saroj Devi and alleged sale deed dated 05-02-1986 never saw the light of the day and it always remained inoperative, invalid and it was never accompanied with delivery of possession. The learned trial court has also rightly observed that the relief sought by the plaintiff in the plaint was in adequate and on that basis the suit was dismissed by the trial court. The order of Hon'ble High Court in Criminal Revision No.32/1997 dated 30-07-2003 Ext-4 and Ext-D also clearly says that the possession of defendant- respondent in respect to the suit lands area 3.75 acres was adjudges after making actual physical verification at the spot since Budhnath Baitha lost interest in case No.468/1987, the Executive Magistrate Khunti in a proceeding u/s 145 Cr.P.C. also found the possession of defendant respondent over the suit lands and the rent receipts issued in his favour Ext-C also goes to show that the name of defendant was entered in the Serista of State of Bihar and only thereafter Register-II was prepared and rent receipt was issued. The sale deed executed in favour of defendant respondent by Ahilya Kunwar is of the year 1944 and therefore the question of genuineness cannot be placed under any doubt or suspicion since the document is 30 years old and comes within the purview of section 90 of Evidence Act. The plaintiff-appellant has miserably failed to prove their subsisting title and possession over the suit land ever since they alleged to have purchased the same in the year 1986. The very basis of the title i.e. original registered sale deed is also not available on the record nor any reason was assigned for none filing of the same.

                  20. In the facts and circumstances of the case and after having gone through the entire case record and the materials, the evidences oral or documentary available on the record and the impugned judgment dated 21-11-2017 of Original Suit No.05/2011. I am of the considered view that this Civil Appeal filed by the plaintiff-appellant is devoid of any merit and the same is liable to be dismissed on contest without cost ”

26. The learned 1st appellate court, after going through the oral and documentary evidences on record, recorded that out of seven issues framed by the learned trial court, issue nos. 3 and 6 are supposed to be the most important issues to adjudicate the appeal properly. The discussions have been made from paragraph 14 of the appellate court’s judgement with respect to the oral and documentary evidences and at the end of the discussion it has also been, interalia, observed that none filing of registered instrument, that is, sale deed dated 05-02-1986, which is the basis of the title of the plaintiffs, without assigning any cogent reason and explanation has also proved fatal to adjudicate the title and possession in favour of the plaintiffs-appellants at the trial court. The certified copy of the sale deed was filed but the original was not filed. However, the discussions reveal that the judgement has not been based on such an observation. The judgement has been passed upon due consideration of the materials on record including the registered sale deed dated 15.12.1944 and the court also found that the plaintiffs were not in possession of the suit property.

27. This Court finds that the learned court has discussed all the materials on record and decided the title in favour of the defendant primarily on the basis of registered sale deed of the year 1944 and found that the plaintiffs have failed to prove their right, title, interest and possession with respect to the suit property. This Court finds that no substantial question of law is involved in this case.

28. Accordingly, this second appeal is dismissed.

29. Pending I.A., if any, is closed.

30. Let a copy of this order be communicated to the court concerned through ‘e-mail/FAX’.