APPEAL FROM APPELLATE DECREE NO.15 OF 1988 *** Against the judgment and decree dated 07.09.1987 passed by Sri Mohan Krishna Verma 1st Addl. District Judge, Begusarai in M.T.A.No.44 of 1974/ 14 of 1987 reversing the judgment and decree dated 22.08.1974 passed by Sri Raghuraj Singh, Munsif 2nd Begusarai in T.S. No. 38 of 1962. *** 1. Rambhaban Rai son of late Singheshwsar Rai 2. Indu Shekhar Rai son of late Singheshwar Rai 3. Daimun Kumari @ Daimani Kumari daughter of late Singheshwar Rai, All residents of village Pasopur, P.S. Bachhawara, District- Begusarai. ….. Plaintiffs- Respondents- Appellants 1st Set 4. Ganga Rai 5. Ramphal Rai 6. Chandra Shekhar Rai, all sons of late Jhari Rai, Nos.4-6 residents of village- Pasopur, P.S. Bachhawara, District- Begusarai. …. Defendants-Respondents- Appellants 2nd Set Versus 1. Ram Sakhi Debi wife of late Siriphal Rai 2. Fauzdar Rai 3. Muna Rai 4. Jhuna Rai 5. Sanjay Kumar Rai 6. Manju Devi 7. Nirmala Devi, Nos.2-7 sons and daughters of late Siriphal Rai @ Siriphal Lal Rai Nos.1-7 residents of village-Pasopur,P.S.Bachhwara, District-Begusarai. …. Defendant 1st party- Appellants-Respondents For the appellants : M/S Sukumar Sinha, Sr. Advocate and Abinash Kumar, Advocate. For the respondents : M/S Devendra Prasad Sharma and Kamta Prasad Rai, Advocates. *** P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain, J. This second appeal has been filed by the appellants against the judgment and decree of the learned court of appeal below by which the judgment and decree of the learned trial court was set aside and the claim/suit of the plaintiffs was dismissed. 2. The matter arises out of Title Suit No. 38 of 1962 which was filed by appellants 1st set for declaration of their title over the suit properties, detailed in Schedule-A of the plaint, recovery of its possession, permanent injunction and other ancillary reliefs. The said Schedule-A lands include several 2 plots totally measuring 1 bigha, 17 katha and 13 dhurs situated in village Pasopur, Pargana Nayipur, P.S. Bachhwara, Thana No.27 in the district of Munger (now Begusarai). The plaintiffs appended following genealogical table at the foot of the plaint :- Pahalwan Rai Durga Rai Genor Rai Khusi Rai Mirkhu Bhukhan Ram Nath Pradeep Dahu Buchan X = Murta =Sitalman X Jhari Doman Parmeshwar Singheshwar Ram Charan X (Pl-2) (Pl-1) = Imda Ganga Rampal Chandra Shekhar (D-4) (D-5) (D-6) 3. The claim of the plaintiffs was that the suit property originally belonged to Pahalwan Rai who left behind three sons, Durga, Genor and Khusi, out of whom Genor’s heirs are plaintiffs and Durga’s heirs are defendants 3rd party. It is also claimed that third brother Khusi left behind two sons, Dahu and Buchan out of whom Dahu was issueless whereas Buchan had a son only named Ram Charan who was also issueless and all three of them died prior to the cadestral survey operation leaving behind their respective widows out of whom, Murta widow of Dahu and Sitalman widow of Buchan, were recorded in the cadestral survey whereas Imda widow of Ram Charan did not inherit because Ram Charan died in the life time of his father and uncle. 4. It was also submitted by the plaintiffs that although Imda had no title over the suit property but she executed two sale deeds dated 06.02.1938 and 06.01.1943 in favour of predecessors in interest of defendant first party, namely, Shri Siriph Lal Rai, hence Genor filed Title Suit No. 23 of 1944 ( 15/46) against the said Siriph Lal Rai ( defendant first party) for declaration of title, setting aside the said sale deeds and other ancillary reliefs. The heirs of Durga 3 also appeared in that suit and supported the claim of the plaintiffs and the said suit was decreed by the trial court vide judgment and decree dated 12.06.1947 ( Ext. 9) against which defendant first party filed Title Appeal No. 204 of 1946 which was allowed by the learned lower appellate court vide judgment and decree dated 09.06.1947 ( Ext. 9-A). Against the judgment and decree passed in title appeal the plaintiffs filed S.A. No. 1837 of 1947 which was allowed by this Court on 02.09.1949 ( Ext. 9-B) declaring the title of the heirs of Genor and Durga as reversioners but found them to be entitled to possession only after the death of Imda who was found to be holding the suit property as widow’s estate which was subject to restrictions on alienation . It was also held that two sale deeds executed by Imda would not bind the reversioners after death of Imda. The said judgment and decree of S.A. No. 1837 of 1947 was never challenged by anyone and thus it attained finality. 5. The plaintiffs also claimed that Imda died issueless on 11.11.1950 (Ext. 10), whereafter the heirs of Genor and Durga ( plaintiffs and defendants 3rd party) came in possession of the suit land as reversioners but they were dispossessed from the said land on 05.02.1962 by defendant first party on the basis of order passed in a proceeding under section 145 of the Code of Criminal Procedure ( Ext. I), whereafter the plaintiffs filed the instant Title Suit No. 38 of 1962 on 08.05.1962. The claim of the plaintiffs (appellants 1st Set), who are the heirs of Genor, was fully supported by defendant 3rd party (appellants 2nd set), who are the heirs of Durga. 6. The suit was contested only by defendant 1st party, namely, Siriph Lal Rai (predecessor of respondents), claiming that after the death of Dahu, Murta, Buchan, Sitalman and Ram Charan only Imda was left among the heirs of Khusi , hence she inherited the entire property of Khusi as absolute owner and in that capacity she sold the same to Geeta Rai and Harku Rai by registered deed dated 06.02.1938 and 06.01.1943 ( Exts. B and B-1) whereafter Geeta Rai relinquished his claim in favour of Harku Rai, predecessor of defendant 1st party, who became absolute owner in possession of the entire 5 bigha, 14 katha, 8 dhur 4 of land including the suit land which has been inherited by defendant 1st party. It was also claimed by defendant 1st party that Imda died in the year 1949 and not on 11.11.1950 as claimed by the plaintiffs and hence the suit was barred by law of limitation having been filed after 12 years of the death of Imda. 7. On the basis of the claim of the parties the learned trial court framed the following issues for deciding the suit :- (i) Is the suit maintainable, as framed? (ii) Have the plaintiffs any cause of action or right to sue? (iii) Is the suit barred by res judicata, estoppel and acquiescence? (iv) Is the suit barred by limitation? (v) Had Mostt. Imda Kumari died on 11.11.1950? (vi) Is the genealogical table appended at the foot of the plaint correct? (vii) Are the plaintiffs next reversioners of Ramcharan Rai last male holder of the lands in dispute? (viii) Are the plaintiffs entitled to recover possession of the lands in dispute? (ix) Are the plaintiffs entitled to the reliefs prayed? 8. On the said issues, evidence were led by the parties and after considering the pleadings and the evidence adduced on behalf of both the parties, the learned Munsif-2, Begusarai vide his judgment and decree dated 22.08.1974 decreed the suit on contest with cost after arriving at the following findings :- (a) Plaintiffs are reversioners- title holders. (b) Sale deeds Exts. B and B/1 executed by Imda was valid only till her life time. (c) Imda died on 11.11.1950 and hence the suit was filed within 12 years of her death. (d) Defendant 1st party is in possession on the basis of the sale deeds Exts. B and B/1 executed by Imda. (e) Plaintiffs having right and title over the suit property are entitled to recovery of possession. 9. Against the aforesaid judgment of the learned trial court defendant 1st party filed Title Appeal No. 44 of 1974 which was dismissed on contest with cost by the learned Subordinate Judge-III, Begusarai by his judgment and decree dated 26.08.1978. 10. Against abovementioned judgment and decree of the learned court of appeal below defendant 1st party filed S.A. No. 702 of 1978 which was allowed by this court vide judgment dated 21.07.1986 and the matter was 5 remanded back to the learned court of appeal below for fresh disposal on the basis of materials on record, including the original death register which was called for by this court and was sent to the learned court of appeal below under the seal and cover. 11. Thereafter the aforesaid Title Appeal No. 44 of 1974 (14 of 1987) was restarted and the learned court below after considering the claims of the respective parties formulated the following points for deciding the title appeal afresh:- (i) Whether most. Imda Kumari died on 11.11.1950 as alleged by the plaintiffs or in the year 1949 as alleged by the defendant? (ii) Whether the plaintiffs are entitled for declaration of title and recovery of possession or the defendant has acquired title by adverse possession. 12. After considering the pleadings and evidence of the parties on the aforesaid points the learned 1st Additional District Judge, Begusarai allowed the title appeal on contest with cost by judgment and decree dated 07.09.1987 after arriving at the following findings :- (a) Imda died in 1949 and more than 12 years thereafter suit was filed in the year 1962 . (b) The suit is barred by law of limitation. (c) Plaintiffs were definitely held by the Hon’ble High Court as reversioners of Imda Kumari. (d) Since the plaintiffs did not file the suit within the period of limitation they are not entitled to recovery of possession over the suit land and have no cause of action. (e) The suit is not maintainable and the plaintiffs are not entitled to the reliefs as prayed for. (f) The judgment and decree of the learned trial court is set aside and the suit is dismissed. 13. Against the aforesaid judgment and decree of the learned lower appellate court the plaintiffs and defendant 3rd party jointly filed the instant second appeal on 12.01.1988, which was admitted by this Court on 22.01.1989 stating that “the points for consideration involved in this appeal are enumerated in paragraphs 1 and 6 of the substantial questions of law contained in the memo of 6 appeal itself”. Following are paragraphs 1 and 6 of the memorandum of second appeal : (i) Whether the lower appellate court was right in law in not holding that Imda Kumari died on 11.11.1950, when the defendant did not prove any death register nor actual date of death in support of their claim? (ii) Whether the plaintiffs are entitled to the exclusion of the period in which property remained attached under section 146 of the Code of Criminal Procedure in counting the period of limitation? 14. The instant second appeal was finally heard in 2001 and was allowed by a Bench of this Court by judgment dated 18.10.2001, setting aside the judgment and decree of the lower appellate court and affirming the judgment and decree of the trial court. 15. The said judgment of this Court was challenged by the respondents before the Hon’ble Apex Court in S.L.P.(C) No. 5990 of 2002 (Civil Appeal No. 5044 of 2005) on the ground that the law is well settled that the High Court can exercise its jurisdiction under section 100 of the Code of Civil Procedure in second appeal only on the basis of substantial questions of law framed at the time of admitting the appeal but in the instant case neither any substantial question of law was framed by the High Court nor the second appeal was finally decided on the basis of such duly framed substantial question of law. The Hon’ble Supreme Court by its judgment dated 12.08.2005 allowed the civil appeal, set aside the aforementioned judgment of this Court dated 18.10.2001 and remitted back the matter to this Court with the following directions: “Accordingly, we allow this appeal, set aside the impugned judgment and remit the matter back to the High Court. The High Court shall first frame the substantial question(s) of law, if any, in exercise of its jurisdiction under clause (4) of Section 100 of the Code of Civil Procedure and then decide the same in accordance with law. In case no substantial question(s) of law arises then the court shall proceed with the matter in accordance with law.” 16. Thereafter the said second appeal was mentioned by the parties on 02.09.2008 for being heard at an early date and hence in view of the order of the Hon’ble Apex Court and as prayed by learned counsel for the parties, 7 the instant second appeal was immediately directed to be listed under the heading “for hearing” on 15th of September, 2008 as the first case, subject to part heard cases. On the basis of the initial arguments on behalf of the parties the following points were formulated as substantial questions of law for deciding the second appeal :- (i) Whether the plaintiffs having proved the death of Imda on 11.11.1950 by both oral and documentary evidence and the trial court relying upon the said evidence having decreed the suit, the learned court of appeal below was justified in reversing the judgment and decree of the trial court, failing to appreciate that the defendants could not bring on record any death register or any other document to show the actual date of death of Imda in 1949 in support of their claim? (ii) Whether the period during which the suit property remained attached under section 146 of the Code of Criminal Procedure, is legally to be excluded while counting the period of limitation for filing the suit? 17. On the said questions both parties were heard at length and their arguments continued for several weeks and only after completion of their arguments the judgment was reserved in the instant case. 18. From the arguments of the parties, it transpires that now there is no dispute with regard to the above mentioned genealogy. Although earlier the defendants claimed that the entire suit property of the branch of Kushi devolved upon Imda wife of Late Ram Charan Rai as the sole heir and absolute owner which was rejected by both the learned courts below on the basis of the judgment dated 02.09.1949 (Ext.9/B) passed by this court in S.A. No. 1837 of 1947 declaring that the said property did not devolve upon Imda as an heir, rather she held it as a widow estate for lifetime maintenance subject to restrictions on alienation and the real inheritors were the heirs of Durga and Genor who would be entitled to possession only after the death of Imda and that the two sale deeds executed by Imda in favour of defendants-respondents would not bind the reversioners after the death of Imda. This finding of the lower courts has not been challenged by the respondents and hence like the aforesaid judgment in S.A. No. 1837 of 1947 the judgments of the learned courts below in the instant matter also have attained finality. However, the learned court of appeal below vide its 8 impugned judgment and decree although held that the plaintiffs were reversioners and title holders but at the same time held that since defendant 1st party remained in possession of the suit premises on the basis of sale deeds executed by Imda who died in the year 1949, hence the title suit which was filed in the year 1962 was beyond twelve years of the death of Imda and as such was barred by law of limitation and the plaintiffs were not entitled to recovery of possession. In the said circumstances, the above mentioned two questions were raised by the plaintiffs in the instant second appeal. 19. So far the first question is concerned, it is an admitted fact that Title Suit No. 38 of 1962 was filed by the plaintiffs (appellants in this court) on 08.05.1962 and the question in dispute is with respect to the date of death of Imda who according to the plaintiffs had died on 11.11.1950 but according to the contesting defendant 1st party she died in the month of Kartik 1357 Fasali which is equal to November, 1949. 20. In support of their claim the plaintiffs produced a certified copy of death register Ext.10 showing that Indira Kumari widow of Ram Charan Rai died on 11.11.1950 in village Malipur and the informant was Gulzar Mian, whereas the contesting defendants brought on record another certified copy of death register Ext.9 showing that Indira Kumari widow of Ram Chandra Rai died on 11.11.1950 at village Malipur and the informant was Gaffur Mian. Although the date of death and the name of village as well as the date of registration (16.01.1951) in both the certified copies of death register of Malipur were the same but the name of the husbands and the informants were different in both the exhibits. Although the admitted case of the parties was that the name of the deceased was Imda but in both the certificates her name was shown as Indira Kumari and hence in the earlier S.A. No.702 of 1978 this court called for the original death register from the authorities concerned and after examining the same it was found that entry no.27 was registered on 16.01.1951 at the instance of the informant Gulzar Mian showing 11.11.1950 as date of death of Indira Kumari widow of Ram Chandra Rai of village Malipur. This entry in the original death 9 register has been reproduced in the judgment of this court dated 21.07.1986 passed in S.A. No. 702 of 1978. 21. In the said circumstances the original death register clearly proved that both the certified copies of death register namely Ext.10 and Ext.J filed by the plaintiffs and defendant 1st party contained mistakes as in Ext.10 produced by the plaintiffs the name of the husband was not correct, whereas in Ext.J produced by defendant 1st party the name of the informant was wrong. However, the original death register clearly proved that one Gulzar Mian informed on 16.01.1951 about the death of the lady on 11.11.1950 at village Malipur. Now the question was who was that lady and what was the name of her husband? On the said issue the plaintiffs adduced PW.8 and PW.15 (plaintiff himself) in the trial court who stated that Imda Kumari died on 11.11.1950 and the death register (Ext.10) filed by them was with respect to the said Imda. Furthermore, after remand of the case from this court the plaintiffs adduced several witnesses before the learned court of appeal below including PWs.17, 18 and 19 clearly stating that Imda/Indira Kumari was the same person who died at village Malipur on 11.11.1950. 22. However, defendant 1st party did not produce any witness after the remand but in the trial court before the remand they had produced DWs.12, 14, 15, 16, 17, 18 and 20 on the said point, out of whom DW.20 was defendant no.1 himself. DW.12 admitted that Imda, who was the vendor of the defendant had her Naihar at village Malipur and that there was a criminal case against him in which original plaintiff no.1 used to do Pairvi as Moharir. DW.14 was of village Malipur and while deposing in the year 1974 he stated that the lady whom he did not know personally had died twenty four years back. His name was Gaffur and he claimed that he was the informer of the death of the lady but his said statement contradicted the entries of Ext.J itself. DW.15 failed to give the date and month of the death of the lady and only said that it was 1357 Fasali. He also knew no one of the family. So far DW.16 was concerned, his statement was in utter confusion regarding the name of the lady who had died as to whether she 10 was actually called Imda, Inda, Indra or Indira and as to whether her husbands’name was actually Ram Chandra Rai or Ram Charan Rai. DWs.17 and 18 were the witnesses and identifier of the sale deed executed by Imda Kumari in favour of defendant 1st party and they admitted that Pradeep Rai, father of original plaintiff nos.1 and 2 had filed criminal cases against them. However, DW.18 stated that wife of Ram Charan Rai was Indira Kumari and not Imda Kumari, who died at Malipur. 23. In these circumstances the contradictory and confusing evidence of the defendants could not validly disprove the claim of the plaintiffs which was proved by clear depositions of their witnesses. Now the question arises as to whether Indira Kumari was the same lady shown as Imda Kumari, the vendor of defendant 1st party and that Ram Chandra Rai as shown in the original death register was the same as Ram Charan Rai son of Buchan Rai. The said confusion has arisen merely on the account of the fact that in the plaint drafted in English the plaintiffs described the lady as Imda Kumari and at some places Inda Kumari and her husband’s name was described as Ram Charan Rai. The defendants also in their written statement drafted in Hindi referred to this lady inconsistently sometimes as Imda Kumari, sometimes as Inda Kumari and sometimes as Indira Kumari. The claim of the plaintiffs fully supported by their witness was that on the death of her husband Imda Kumari had shifted at her Naihar at Malipur and she died there on 11.11.1950. This fact could not be validly controverted by the defendants’ evidence and hence there was every chance that Imda, the vendor of defendant 1st party had died in village Malipur. The judgment dated 02.09.1949 passed by this court in S.A. No.1837 of 1947 clearly showed that the vendor of defendant 1st party was alive till then and the defendants completely failed to prove by their evidence either oral or documentary that their vendor died thereafter in the year 1949 itself as no date or month of death of their vendor was either mentioned in their pleadings nor stated in their evidence. 24. So far the confusion with regard to the name of the lady being Imda, Inda, Indra or Indira as well as the name of her husband Ram Charan 11 Rai or Ram Chandra Rai is concerned, from the entire oral evidence on record as stated above it transpires that the name of the lady who was the vendor of the suit property was spelt in Hindi and in English by both the parties differently at various stages clearly because there was not much difference in the said names and it depended on how the village people, who were rustic and illiterate and were prone to commit such mistakes regarding a particular name, pronounced their names variously on account of their rusticity and illiteracy due to which Indra had been wrongly called Imda, Inda or Indira and Ram Chandra had been wrongly called Ram Charan Rai. Furthermore, due to long lapse of time after the death of the lady and her husband it transpires that their names were pronounced and spelt differently by various people at various times and various stages, but one thing has been clearly proved that the vendor of contesting defendant 1st party had her Naihar at village Malipur where she lived after the death of her husband and the defendants had miserably failed to show that the said lady who died in village Malipur was different from the lady who was the vendor of the said defendants. Furthermore, the defendants had tried to build up a case that their vendor died in village Pasopur but they could not bring on record any death register or certificate of any authority of Pasopur to prove their case and hence they miserably failed to prove their claim. 25. In view of contradicting oral evidence led by