IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.85 of 2009 1. Jhoran Mahton, Son of Late Chhattu Mahton. 2. Sri Ram Bilas Mahton. 3. Sri Subodh Mahton. 2 and 3 are sons of Jhoran Mahton. 4.Pavitri Devi, W/o Late Vidya Mahton. 5. Uma Kant Mahton. 6.Sanjay Prasad. 5 and 6 are sons of Late Vidya Mahton. All residents of village Maharna, Polise Station- Dharahara, District- Munger. 7.Smt. Indu Devi, D/o Late Vidya Mahton, W/o Himanshu Prasad Singh, R/o Village- Dindayalpur, P.O.& P.S.- Shahkund, District- Bhagalpur. ---Plaintiff/Appellants/Appellants. Versus 1.Shiv Nandan Mahton@Shiban Mahton. 2.Sri Pappu Mahton. 3.Sri Narain Mahton. 4.Kamleshwari Mahton. 5.Upendra Mahton. All Sons of Late Mahabir Mahton. 6.Umesh Mahton. 7.Surendra Mahton. 8.Dinesh Mahton. 6 to 8 are sons of Sri Shiban Mahton. 9.Sri Mahesh Mahton, Son of Sri Paddu Mahton. 10.Sri Rakesh Mahton @ Bablu Mahton. 11.Sri Sanjay Mahton @ Dablu Mahton. 2 12.Sri Rajiv Kumar. 10 to 12 are sons of Sri Narain Mahton. 13.Sri Manoj Mahton. 14.Sri Pintu Mahton. 13 and 14 are sons of Kamleshwari Mahton. 15.Sri Subhash Mahton. 16.Sri Manish Mahton. Minor Sons of Sri Kamleshwari Mahton under natural guardianship of their father Sri Kamleshwari Mahton. 17.Sri Vivakar Mahton ,Son of Sri Upendra Mahton. All residents of village-Maharna, Police Station- Dharahra, District- Munger. Defendants Ist Party/Respondents Ist Party/Respondents Ist Party. 18.Smt. Sunaina Devi, D/o Late Hari Mahton,W/o Sri Brahmdeo Mahton, R/o of Village- Khanpur, P.S.- Surajgarha, District- Lakhisarai. 19.Smt. Shobha Devi, D/o Late Hari Mahton, W/o Sri Arbind Mahton, R/o Village and P.O.-Bahadurpur, Police Station and District-Bhagalopur. 20.Smt. Daropadi D/o Late Hari Mahton, W/o Subhash Prasad Singh, R/o Village- Daulatpur, Police Station-Sultanganj, P.O. Khanpurmal, District-Bhagalpur. 21.Smt. Amita Devi, D/o Late Hari Mahton, W/o Sri Ajit Prasad Singh, R/o Village- Gidhaur, Police Station and P.O. Shambhuganj, District- Banka. 22.Jawahar Mahton, S/o Late Vidya Mahton. 23.Sona Devi, W/of Late Hari Mahton. 3 22 and 23 resident of village-Maharna, Police Station-Darahara, District- Munger. ----Defendant 2nd Party/Respondent 2nd party/Respondent 2nd Set. ----------- 6. 09.08.2011 Heard the learned counsel appearing on behalf of the appellants and the learned counsel appearing on behalf of the respondents. This second appeal has been filed against the judgment and decree dated 22.12.2008 passed by Additional District Judge, Fast Track Court No.VII, Munger in Sub Judge Title Appeal No. 25 of 2007 affirming the judgment and decree dated 27.06.2007 passed in Title Suit No. 94 of 2002 by Sub Judge I, Civil Court, Munger. The plaintiffs have filed the suit for declaration of title and recovery of possession over the suit land mentioned in the schedule of the plaint. The plaintiffs have stated in the plaint that the ancestor of the plaintiffs was Gani Mahton who had two sons namely Bihari Mahton and Muso Mahton. Muso Mahton had a son Chattu Mahton who had left behind two sons namely Baldeo Mahton and Jhoran Mahton. Baldeo Mahton left 4 behind two sons Hari Mahton and Vidya Mahton. Jhoran Mahton had two sons namely Ram Bilash Mahto and Subodh Mahton. In this suit Jhoran Mahton, his two sons, widow of Vidya Mahton and his sons and daughters are plaintiffs with daughter and widow of Hari Mahton and eldest son of Vidya Mahton as defendant Second Party. Differing from this genealogy the defendants Ist Set have asserted that Paro Mahto had two sons Bihari Mahton and Ram Mahton. Bihari Mahton had three sons Bhattan Mahton, Sukali Mahton and Amrit Mahton who died issueless. Ram Mahto died leaving behind a son Mahavir Mahton whose five sons are defendant First Party in the suit. The basis of the claim of the plaintiffs over the suit plots are the two sale deeds, the first of which is dated 10.05.1943 claimed to have been executed by Jagdish Mahton and the second sale deed is dated 05.01.1948 claimed to have been executed by Mostt. Baso Devi. However the defendants have specifically asserted that Jagdish Mahto, the alleged vendor of the plaintiffs had no concern or relation with the family of Bhattan Mahton and he had never been allotted any portion of the suit plot and had no right to execute the sale deed in favour of the 5 plaintiffs and further the alleged sale deed executed by Mostt. Baso Devi is also not a valid document. From perusal of the judgments of the courts below, it appears that specific issue with regard to plaintiffs’ right, title, interest and possession over the suit property was framed alongwith the issue with regard to the genealogical table as given by the plaintiffs. The learned Sub Judge has discussed the documentary evidence as well as the oral evidence of the parties in detail and came to the finding that the plaintiffs have failed to prove their right, title, interest and possession over the suit land. From the judgment of the learned appellate court below also it is clear that it has considered the pleadings and evidence of the parties and thereafter has recorded the finding on each issue against the plaintiffs. The learned appellate court below after discussing the evidence on record and by relying upon the Khatiyans (Ext. G and G/1) and the deposition of D.W.5 has further recorded the finding that the genealogical table given in the plaint is not correct and complete. On the basis of these findings, the learned appellate court below dismissed the appeal of the plaintiffs/appellants and concurred with the findings 6 recorded in the suit. The learned counsel appearing on behalf of the appellants has firstly submitted that there has been misappreciation of Ext. 4 and 4(B) by both the courts below which has led to the finding adverse to the plaintiffs on the issue of genealogy. Secondly, he has submitted that the plaintiffs have specifically raised the plea of adverse possession in the plaint and have claimed title on that basis also but both the courts below have not framed any issue of adverse possession and therefore, the judgments of both the courts below are vitiated. A perusal of the impugned judgments of both the courts below shows that the survey khatiyan produced by the plaintiffs as Ext. 4 to 4(B) have been fully considered by the courts alongwith Ext. G to G/1 which are survey khatiyans produced on behalf of the defendants. After taking into consideration, the other evidence on record also both the courts below have refused to rely upon Ext. 4 to 4(B) and preferred Ext. G to G/1 and have recorded the finding that the genealogical table as given by the plaintiffs is not correct. This concurrent findings of 7 fact is binding in this second appeal and cannot be reopened on the basis of the submission of the appellant that there had been misappreciation of evidence and another view should have been taken. Secondly both the courts below have further concurrently found on the basis of evidence on the record that the plaintiffs are not in possession of the suit land. As such the contention of the learned counsel for the appellants regarding prejudice having been caused due to non-framing of issue with regard to adverse possession appears to be misconceived. Moreover the plaintiffs have all through been emphatic regarding their legal and valid title over the suit land and as such the simultaneous but inconsistent plea of adverse possession could not be available to them in view of the principles as explained by the apex court in the decision reported in 2004(3)PLJR(SC)245. In view of the discussions made above, there does not appear to be any substantial questions of law involved for consideration in this Second Appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)