IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.325 of 1999 1. Durga Prasad Mandal 2. Dinesh Prasad Mandal Both sons of Late Dhanu Mandal resident of village Saharu, P.S. Hathuri District. Samastipur Defendant- Respondent- Appellants Versus 1. Jagdish Mandal 2. Baiju Mandal Both son of Late Uchit Mandal resident of village Saharu, P.S. Hathuri District. Samastipur Plaintiffs- Appellants- Respondents ---------------- For the appellants: Mr Raghib Ahsan, Sr.Advocate Mr Anisur Rahman, Advocate For the respondents: Ms Sushmita Mishra, Advocate Mr Krishna Wallabh Sharma, Advocate ----------- 11 20.04.2009 I.A. No. 2008 of 2009 has been filed on 31.03.2009 on behalf of the appellants for condoning the delay in the filing of the second appeal. Learned counsel for the appellants submits that against the judgment and decree of the court of appeal below dated 23.02.1999 instant second appeal has been filed on 16.08.1999 although period of limitation expired earlier.From the averments made by the learned counsel for the appellants and the reasons stated in the interlocutory application, it appears that genuine reason has been shown which prevented learned counsel for the appellants from filing the instant second appeal earlier. Accordingly, this interlocutory application is allowed and delay in filing the appeal is condoned. 2. Heard learned counsel for the parties. 3. This second appeal has been filed by the defendants- respondents-appellants against the judgment and decree of learned court of appeal below, namely, Special Survey Judge, Samastipur. 4. The matter arises out of Settlement Suit no.21273 - 2 - of 1984 which was filed under section 106 of the Bihar Tenancy Act for correction of the survey entry with regard to R.S. Plot nos. 25 and 41 under khata no. 104 situated in Mouza Saharu Police Station Rosera in the District of Samastipur. 5. The said suit was dismissed on contest by the learned Assistant Settlement Officer, Rosera vide his judgment and decree dated 12.10.1996. Against the aforesaid judgment and decree of the learned Assistant Settlement Officer, plaintiffs filed Survey Appeal no.60 of 1996 which was allowed by the learned Survey Judge, Samastipur vide his judgment and decree dated 23.02.1999 setting aside the judgment and decree of the learned Assistant Settlement Officer and directing that the survey entry in respect of the suit plot be corrected in favour of the plaintiffs. 6. From the arguments of the parties as well as from the materials on record including the impugned judgments and decree of the learned courts below, it appears that the plaintiffs in their plaint had claimed that the plots in question namely R.S. Plot nos. 25 and 41 were entirely settled with them by the authorities after vesting of Zamindari in the State of Bihar and after settlement they got the rent of the entire area of the plots fixed in Rent Fixation case no. 90 of 1957-58 and since then they are paying rent to the State of Bihar and are in continuous possession of the said suit. Although the plaintiffs could not substantiate their aforesaid claim by any oral or documentary evidence but in the written statement filed by the sole original defendant the said statement of the plaintiffs with regard to the settlement, rent fixation and payment - 3 - of rent were not denied and further more the detail of the aforesaid two Revisional survey plots and their Cadestral survey plot out of which they were carved out were given . In furtherance thereof the said defendant had stated that he was in possession of the suit land from 1934 and had throughout been in possession and had acquired title by way of adverse possession. The defendant could not substantiate his said claim by any oral or documentary evidence. 7. In the said circumstances, the learned court of appeal below passed its impugned judgment and decree on the ground that the claim of settlement, rent fixation and payment of rent raised by the plaintiffs having not been denied by the defendants, stand admitted and proved. So far question of adverse possession is concerned, the learned court of appeal below held that the defendants had failed to prove their claim by any material whatsoever and in any view of the matter the question of acquisition of title by way of adverse possession as well as specific question of title with respect to the suit property can not be investigated in such a proceeding under the Bihar Tenancy Act and the said question can only be decided in a regular suit for title and possession. 8. In the said circumstance, this Court does not find any illegality in the impugned judgment and decree of the learned court of appeal below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. - 4 - 9. However this order as well as judgments and decree of the learned courts below will not stand in the way of the defendants in filing a regular suit for title and possession if they so want which has to be decided in accordance with law. (S.N.Hussain,J) shahid