IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.3 of 2006 1. Shyam Yadava alias Shyam Prasad Yadav 2. Sikandar Yadav alias Sikandar Prasad Yadav Both sons of late Chhatu Yadav. Both resident of village Sonudih Gangati, P.S. Jagdishpur, District Bhagalpur………..Petitioners. Versus 1. Huro Manjhe, son of late Siri Manjhi 2. Smt. Shakuntla Debi,wife of Jagdish Yadav, Both resident of village Sonudih Tola Gangati, P.S. Jagdishpur, District Bhagalpur 3. Sidheshwar Prasad Singh, son of late Bharath Lal Mandal 4. Pradip Kumar Singh 5. Arbind Kumar Singh 6. Pramod Kumar Singh 4 to 6 are son of late Nageshwar 7. Prashant Kumar Singh, son of late Nageshwar Mandal, All are resident of village Arya Tola-Sabour,P.S. Sabdour, District Bhagalpur. 8. Kamleshwari Prasad Singh 9. Mahendra Prasad Singh 10. Surendra Prasad Singh 11. Yogendra Prasad Singh 8 to 11 are son of late Lakhan Lal Mandal, All resident of village Arya Tola-Sabour,P.S. Sabdour, District Bhagalpur. 12. Most. Ghauli Debi, widow of late Kritya Nand Mandal 13. Balram Mandal 14. Gopal Mandal Both son of late Kritya Nand Mandal 15. Matuki Mandal @ Mahru Mandal, son of Kalanand Mandal All resident of village Sonudih Gangati, P.S. Jagdishpur, District Bhagalpur ……… Respondents. ________ For the Appellants: M/s D. K. Pandey and Mrigendra Kumar,Advocates. For the Respondents : None.. ----------- 04/ 20.10.2008 Heard learned counsel for the appellants. This second appeal has been filed by the defendant- appellant-appellants challenging the judgment and decree of both learned courts below. The matter arises out of Title Suit No.122 of 1987 (76 of - 2 - 1994), which was filed by the plaintiff-respondents first party for adjudication that plaintiff no.1 was the real owner of 78 decimals of the suit land, whereas, plaintiff no.2 is the real owner of 1.53 acres of the suit land and they had 16 annas right, title and interest over the suit land mentioned in the schedule of the plaint as the vendors of the plaintiffs had also 16 annas right, title and interest therein and hence sale-deeds executed by them in favour of the plaintiffs were valid. The said suit was decreed on contest with cost by the learned Subordinate Judge-V, Bhagalpur, vide judgment and decree dated 20.09.1995. The said judgment and decree of the trial court was challenged by the defendant-appellants in Title Appeal No.101 of 1995, which was dismissed on contest without cost by the learned Additional District Judge-VII, Bhagalpur, vide his judgment and decree dated 23.09.2005. The aforesaid judgments and decree of the learned courts below have been challenged in the instant second appeal. Both the learned courts below have specifically found that the plot in question, namely new plot no.994 was carved out from old plots no. 1880 and 1881, which belonged to the vendors of the plaintiffs, whereas, new plots no. 38, 40, 41 and 54 were carved out from the plots of defendants first party. It was also found that the plaintiffs have specifically claimed that new plot no.994 was carved out from old plots no.1880 and 1881, whereas, defendants first party nowhere pleaded as to from which old plot the said new plot no.994 was carved out. It was also found that the Chak was completed in the - 3 - year 1964 and the new khatiyan was published in the year 1964 and, thereafter, the new plots came into existence. The defendants have relied upon the documents of much subsequent period, which also could not show that new plot no.994 was carved out from any plot other than old plots no.1880 and 1881. In the said circumstances, the learned courts below rightly came to the conclusion that the plaintiffs were able to prove that new plot no.994 was carved out from old plots no.1880 and 1881, which belonged to their vendors, whereas, the defendants failed to prove that new plot no.994 was carved out from the old plots belonging to them. The learned courts below have specifically found from the pleadings and evidence that the cause of action for the plaintiffs for filing the suit did not arise in the year 1964 or any date thereafter rather the cause of action arose in the year 1987 when the plaintiffs were threatened by the defendants with ouster. Furthermore, the learned courts below have also found that the final publication of the records of right in the year 1964 does not bar the suit filed in the year 1987 for the aforesaid reliefs and hence the suit was not barred either by the provisions of the Consolidation Act or by the provisions of the Limitation Act. So far defendants’ claim that the suit was barred by the provisions of the Specific Relief Act as the plaintiffs did not seek any relief for confirmation of possession or recovery of possession was concerned, the learned courts below relying upon a decision of this court in case of Mangni Nath Tiesary & Ors. Vs. Phul Mohammad - 4 - Dhobi & Ors., reported in A.I.R. 1985 Patna 338, held that if the plaintiff is in possession of the suit land, the suit for declaration of title is maintainable under section 42 of the Specific Relief Act and consequently relief with regard to possession was not necessary. In the said circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved for consideration in this second appeal, which is, accordingly, dismissed, at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )