IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.65 of 2008 ----------- 1. Satya Narain Giri, son of late Ram Sagar Giri, resident of village Tarwara, Pargana-Bara, P.O. Tarwara, P.S. Gautam Budh Nagar, District Siwan 2. Jai Narain Giri, son of late Ram Sagar Giri, resident of village Tarwara, Pargana-Bara, P.O. Tarwara, P.S. Gautam Budh Nagar, District Siwan 3. Sri Bhagwan Giri, son of Ram Janam Giri, resident of village Tarwara, Pargana-Bara, P.O. Tarwara, P.S. Gautam Budh Nagar, District Siwan 4. Sri Keshun Giri @ Bishun Giri, son of Ram Janam Giri, resident of village Tarwara, Pargana-Bara, P.O. Tarwara, P.S. Gautam Budh Nagar, District Siwan ….Defendants-appellants-appellants versus 1. Satya Narain Sah, son of late Ram Awtar Sah 2. (a) Ram Bachan Sah, son of late Dwarika Sah (b) Ram Lakhan Sah, son of late Dwarika Sah All resident of village Tarwara, Pargana-Bara, P.O. Tarwara, P.S. Gautam Budh Nagar, District Siwan (c) Kanti Devi , daughter of late Dwarika Sah and wife of Rajesh Sah, At + P.O. Karanpura, P.S. G.B. Nagar, District Siwan. …….Plaintiffs-respondents-respondents. ------- For the appellants : Mr. Manan Ahmad Khan, Advocate and Mr. Shambhu Prasad, Advocate. For Respondent no.1 : Mr. Chandra Kant, Advocate. For remaining respondents: None. ------- 11/ 01.12.2009 Heard learned counsel for the appellants and learned counsel for respondent no.1. 2. This second appeal has been filed by the defendants-appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 98 of 1993, which was filed by the plaintiffs-respondents-respondents for declaration of their title and recovery of possession of the suit land. The said suit was decreed on contest by the learned Additional Munsif-IV, Siwan, vide his judgment and decree dated 2 10.01.2001. 4. The said judgment and decree of the trial court was challenged by the defendants in Title Appeal No. 10 of 2000, which was dismissed on contest by the learned Additional District Judge-cum-Fast Track Court-1, Siwan, vide his judgment and decree dated 10.12.2007. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Although learned counsel for the appellants vehemently challenges the aforesaid judgments and decree of the learned courts below but it is quite apparent from the aforesaid judgments and decree that the learned courts below, after fully considering the pleadings and evidence of the parties as well as the specific provisions of law, came to the conclusion that the plaintiffs had full title over the suit land, whereas, the defendants had failed to prove their right, title or interest in the suit property by any reliable evidence whatsoever. 6. So far question of limitation and adverse possession is concerned, the learned courts below found that the plaintiffs had earlier filed an eviction suit against the defendants, which was dismissed as relationship of landlord and tenant could not be established and the eviction appeal filed by the plaintiffs against the decree in the eviction suit was also dismissed, whereafter the instant suit was filed for declaration of title and recovery of possession. Hence, the learned courts below rightly came to the conclusion that in the instant case the case of permissive 3 possession was pleaded and proved and hence there was no question of any relationship of landlord and tenant, nor there can be any question of adverse possession of the defendants. Furthermore in the aforesaid facts and circumstances the decision in the earlier suit, which was only on the ground of relationship of landlord and tenant can also not act as res judicata for the instant suit as the cause of action in both the suits were absolutely different and hence provision of Order II. Rule 2 of the Code of Civil Procedure will not be applicable. 7. So far question raised by the appellants with regard to non-examination of the plaintiffs as witnesses and absence of scientific measurement of the suit land, which was done in the eviction suit is concerned, it is quite apparent that although the plaintiffs had not been examined but their pleadings were fully proved by the son of a plaintiff, who had deposed as one of the plaintiffs’ witnesses. So far question of scientific measurement is concerned, the defendants-appellants having not pressed before the courts below for scientific measurement of the suit land, they cannot be allowed to take such a point at this stage. 8. 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 in the instant 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. ) 4