2025: JHHC:16879 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 591 of 2017 1. Deobrat Ram, S/o Late Narayan Lal Sahu, resident of village – Redma, P.O. & P.S. – Daltonganj, District – Palamau 2. Dilip Sharma @ Dilip Kumar Sharma 3. Pramod Sharma 4. Vinod Sharma 5. Ajit Sharma 6. Amit Sharma All sons of Late Dhasrath Sharma, and 2 to 6 are residents of village – Sahpur, P.O. – Sahpur, P.S. – Chainpur, District - Palamau … … Appellants/Appellants/Defendants Versus 1. Nand Kishore Tiwari 2. Nawal Kishore Tiwari, both sons of Rajmani Tiwari, resident of village – Tali, P.O. & P.S. – Chainpur, District – Palamau 3. Santosh Paswan, S/o Ramchandra Manjhi, resident of village & P.O. – Sahpur, P.S. – Chainpur, District – Palamau … … Respondents/Respondents/Plaintiffs 4. Dukhan Sao, S/o Late Rambriksha Sao, resident of village Ramgarh, P.O. – Ramgarh, P.S. Chainpur, District - Palamau… … Performa Respondent/Appellant/defendant --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Arvind Kr. Lall, Advocate : Mr. Shivam Lath, Advocate : Ms. D. Arati Kumari, Advocate : Mr. Shivam Singh Kashyap, Advocate For the Respondents : Mr. A.K. Sahani, Advocate : Ms. Trishna Sagar, Advocate --- 13/24.06.2025 Heard the learned counsels appearing on behalf of the parties. 2. This appeal has been filed against the judgment dated 31.08.2017 (decree signed on 08.09.2017) passed by learned District Judge No.II, Palamau at Daltonganj in Title Appeal No.30 of 2009 affirming the judgment dated 04.06.2009 (decree signed on 15.06.2009) passed by learned Sub-ordinate Judge I, Palamau at Daltonganj in Title Suit No. 33 of 1998. 3. The suit was decreed and the defendants are the appellants before this Court. The defendant no. 1 and the legal heirs of defendant No. 4 are the appellants before this Court. The defendant no. 2 and 2025: JHHC:16879 2 defendant no. 3 have not joined as appellants and accordingly, they have been made proforma respondent/respondent in this case. 4. This appeal was admitted for final hearing vide order dated 05.11.2019 on the following substantial question of law: “Whether Ext.10 i.e. Malikana Khatiyan which was prepared in the year 1938 and in view of Section 34 of the Specific Relief Act, the suit itself was barred under law or not?” 5. Considering the substantial question of law, the entire case revolves around Exhibit - 10, which is Malikana Khatiyan and was prepared in the year 1938. During the course of arguments, it transpired that this is an admitted document on record, and even the defendants had placed the same on record as Exhibit - C. 6. The suit was filed by the plaintiffs, seeking declaration of their right, title, interest over the schedule of property in the plaint and also for confirmation of possession. A prayer was also made seeking a decree for perpetual injunction against the defendants from disturbing or obstructing the enjoyment of the suit land by the plaintiffs. The schedule of the property to the plaint is as under: Particulars of land in suit situated at village Shahpur, P.S. Chainpur Pargana and District Palamau. Khata no. Plot no. Area Boundary 304 1013/1705/ 1765 1706/1766 0.16 acre 0.16 acre North – Land of Shiv Mandir South – House of Mahesh Pd. Jaiswal East – Pucca road West – Land of Nasoom Mian Total 0.26 acre 7. The learned counsel for the appellants has submitted that the defendants had also filed a counterclaim in the suit, and since no written statement was filed in the counterclaim, the suit ought to have been dismissed. He has also submitted that ad valorem court fees were also paid with respect to the counterclaim. He has relied upon the 2025: JHHC:16879 3 judgment passed by the Hon’ble Supreme Court reported in 2015 (1) JCR 23 (SC) (Rajni Rani v. Khairati Lal) paragraph - 12. The learned counsel for the appellants has submitted that these aspects of the matter have not been considered by both the courts. 8. So far as the substantial question of law is concerned, the learned counsel submits that the entire suit property belonged to Shiv Mandir, which was given to Shiv Mandir by way of Samarpan Nama, and the plaintiffs were only the manager of the Shiv Temple and the property, and therefore, by no stretch of imagination, the properties involved in this case could be said to be the individual property of the plaintiffs. The learned counsel submits that a manager of the temple acts as a sewayat and has no independent right, title, interest, and possession over such property. Therefore, both the courts have erred in holding that the property belonged to the plaintiffs. 9. The learned counsel has also submitted that there have been numerous litigations before the revenue authorities in connection with mutation etc. and the order passed by the learned Commissioner attained finality. He has submitted that even as per the Exhibit – 10, the suit property was recorded in the name of the temple and the plaintiffs/their predecessor was only shown as the manager. He has further submitted that after the death of the sewayat namely Fakir Chandra Pathak in the year 1940, the property was sold by his wife through registered sale deed dated 12.07.1973 and subsequently a portion of the property was further sold through two sale deeds to the plaintiffs on 18.12.1990. He submits that the plaintiffs did not acquire any right, title, interest over the property as the initial vendor of the property namely wife of Fakir Chandra Pathak, had no right, title, interest or possession with respect to the suit property which belonged to the Shiv Mandir. He submits that the sewayat/manager of Shiv Mandir was at best having permissive possession of the suit property and after his death, his wife could not have transferred the suit property to the plaintiffs. The learned counsel has also submitted that the suit was barred under Section 34 of the Specific Relief Act. However, this issue was not properly decided by either the Trial Court 2025: JHHC:16879 4 or the First Appellate Court. He has placed Section 34 of the Specific Relief Act and submitted that the suit as framed was itself not maintainable. 10. The learned counsel for the appellants has submitted that Exhibit - 10 has to be seen with Exhibit – 5 which is certified copy of the order sheet of Miscellaneous Case No.107 of 1976-1977 which is based on the report of Circle Inspector. He submits that the said order sheet reveals that Khata No.304 was carved out from Khata No.227 and since the Samarpan Nama (Exhibit – D) pertained to Khata No.227, Khata No. 304 was also covered under it. The learned counsel has also submitted that the boundary of the property is not mentioned in Exhibit - 10. 11. The learned counsel appearing on behalf of the respondents- plaintiffs has opposed the prayer and submitted that on bare perusal of Exhibit – 10, the entire status of the land becomes clear. He has submitted that Exhibit - 10 includes, inter alia, two Khata nos.304 and 275. So far as Khata no. 275 is concerned, the entry is in the name of Shiv Mandir, where the Pujari is shown as Fakir Chandra Pathak and the plaintiffs are not at all concerned with the properties under Khata no.275, which is not even the suit property. He submits that the suit property belongs to Khata no.304 and the description of property under Khata no.304 as mentioned in Exhibit - 10 is the same as the suit property described in the schedule to the plaint and the entry in Exhibit - 10 with respect to Khata no.304 has been shown to be the individual property of Fakir Chandra Pathak. He submits that there is no mention of Shiv Mandir in connection with Khata no.304, and therefore, after the death of Fakir Chandra Pathak, his wife had full right to transfer the property by virtue of registered sale deed, and therefore, all the subsequent sale deeds, including the sale deed executed in favour of the plaintiffs, which were Exhibit - 2 and 2/A were valid. The learned counsel submits that at no point of time the said sale deeds were challenged and even the sale deed of the vendor of the plaintiffs was never challenged. He has also submitted that the possession of the suit property with the plaintiffs stood confirmed by 2025: JHHC:16879 5 virtue of the fact that the defendants claimed that the plaintiffs have encroached upon the suit property. 12. He submits that both the courts, after scrutinizing the materials on record, particularly Exhibit - 10, have recorded a finding that the suit property under Khata No. 304 is different from the property under Khata No. 275, and ultimately held that since the suit property is different from the land which was given through Samarpan Nama to Pujari Fakir Chand Pathak, the suit was decreed in favour of the plaintiffs. There are concurrent findings of facts recorded by both the courts, and the Exhibit - 10 has been rightly appreciated by both the courts, and therefore the substantial question of law is fit to be answered in favour of the respondents and against the appellants. 13. The learned counsel has also submitted that so far as the plea regarding Section 34 of the Specific Relief Act is concerned, the appellants have not advanced any argument as to how the suit was barred under Section 34 of the Specific Relief Act. He has also placed Section 34 and submitted that the suit was maintainable. He has further submitted that there have been proceedings under Sections 144 and 145, disputes before the revenue authorities, and a counterclaim denying the title of the plaintiffs, and therefore there cannot be any doubt that the suit was maintainable in the form it was filed. 14. After hearing the learned counsels for the parties, this Court finds that the specific case of the plaintiffs was that the suit land belonged to Fakir Chandra Pathak and was the khas mahal property total measuring 6.78 acres and it was settled in the year 1940 and it was also mutated as Khas Mahal vide Mutation Case No.59 of 1940- 41 and Fakir Chandra Pathak continued to pay rent. He died in the year 1971 leaving behind his widow, who transferred the suit property through registered deed dated 12.07.1973 to one Brahmdeo Mishra, who became the sole owner of the property and continued to pay rent. He also died leaving behind his widow and four sons and subsequently one of the sons namely Kamleshwar Mishra, sold his share to Shiv Pyari Devi. 2025: JHHC:16879 6 15. The further case of the plaintiffs is that legal heirs and successors of Brahmdeo Mishra, as well as Shiv Pyari Devi, transferred the suit land to the plaintiffs through two registered sale deeds on 18.12.1990 and the plaintiffs duly acquired possession of the same constructed boundary wall and a small house. The name of the plaintiffs was also mutated and they were paying rent and there has also been a demarcation of the property being in Demarcation Case No.90 of 1995-1996. It was further case of the plaintiffs that the defendants started creating problems and consequently a proceeding under Section 144 Cr.P.C was initiated at the instance of defendant no.2 wherein they took a plea that the property belonged to Shiv Mandir. It was the case of the plaintiffs that the property of Shiv Mandir was situated to North of the suit land. 16. During verification of Anchal record, the plaintiffs found that demand was opened in the name of defendant no.1 which was subsequently cancelled on protest. The plaintiffs had requested the defendants not to put construction over the suit property but the defendants continued to create trouble. It was further their case that the cause of action arose when the defendants committed disturbance in the enjoyment of the suit property by the plaintiffs and the plaintiffs tried to make amicable settlement and last such date was 31.03.1997. The defendants contested the suit and the defendant nos.1 and 2 filed separate written statement and defendant no.4 also filed a separate written statement. Defendant no.3 adopted the written statement of defendant nos.1 and 2. The contention of the defendants was that the suit was barred by limitation and was also barred under the provisions of Section 34 of the Specific Relief Act. It was also asserted that the suit was barred on account of non-joinder of necessary parties in as much as Khas Mahal Officer, State of Bihar and Shiv Mandir and Lord Shiva were not made parties to the proceedings. 17. So far as the merits of the case is concerned, it was asserted that plot no.1013/1705/1765 area 16 decimals and plot no.1706/1766 area 10 decimals besides other portion of land of defendant no.1 was never owned and possessed by Fakir Chandra Pathak and the said property 2025: JHHC:16879 7 was owned and possessed by Shiv Ji over which the possession of Fakir Chandra Pathak was that of Pujari, an agent of Shivji, and the property was never settled by Khas Mahal Officer to Fakir Chandra Pathak. It was their further case that a petition dated 07.01.1999 was filed before the court under Order VI Rule 5 of CPC directing the plaintiffs to disclose the settlement case number, manner of settlement, date of authority of settlement with Fakir Chandra Pathak but instead of disclosing required particulars, the plaintiffs filed a rejoinder and the particulars were not brought on record. It was further case that Mutation Case No.59 of 1940-1941 was a result of fraud played by Fakir Chandra Pathak and that mutation is neither a document of title nor of possession. It was their case that Fakir Chandra Pathak paid rent but not as a tenant but on behalf of the deity Shivji and since he was the custodian of the records of the property, he might have tampered with or forged the documents. It was their further case that even in the year 1938, the government had reduced the rent in favour of the deity Shivji and the property was settled with Shivji much before 1940 and it was asserted that it was not clear as to how the property could be settled with Fakir Chandra Pathak in the year 1940. 18. It was the case of the defendants that Fakir Chandra Pathak was in permissive possession as Pujari on behalf of Shivji. The case of the defendants was that since Fakir Chandra Pathak did not have any title over the property and he was only in permissive possession; his wife had no right to execute any sale deed and consequently the sale deed dated 12.07.1973 was a void document and without consideration and therefore Brahmdeo Mishra did not acquire any right, title, interest and possession over the property and therefore the subsequent sale deeds were also void. It was the case that the plaintiffs never came in possession and they did not acquire any title by way of purchase. It was further case of the defendants that the plaintiffs had illegally encroached upon 26 decimals of land of Shivji by erecting boundary in the north and one incomplete room. On 17.03.1996, a proceeding was initiated under Section 144 Cr.P.C and the matter went up to the 2025: JHHC:16879 8 court of Commissioner in Revenue Appeal No.30 of 1996. The defendants asserted that they had no idea about the mutation proceedings in favour of the plaintiffs as proper procedure and on the spot, inquiry was not done and consequently the rent receipts are bogus, forged and fabricated, and any order of demarcation is a table work. The map shown by Anchal amin is also collusive and the Anchal office gave various reports in favour of the plaintiffs in collusion with the plaintiffs. 19. It was asserted that the plaintiffs claim of opening khata in survey was rejected under Section 83 of the Chota Nagpur Tenancy Act and khata was still existing in the name of Shivji and defendant no.1. It was asserted that as a matter of fact the suit land was part and parcel of 53 decimals of land of Shivji. The plaintiffs, with ill motive, have cunningly shown wrong boundary to grab the land and consequently the defendant nos.1 and 2 had also prayed dismissal of the suit and filed a counterclaim under Order VIII Rule 6 A of CPC. 20. The case of the defendants as per counterclaim was that the land of plot no.1013 under original khata no.227 was full of jungle jhari. The ancestors of defendant no.2 namely Bisheshwar Sao built a Shiv temple in the village and the Mandir was public temple. In order to maintain the Shiv Mandir, Bisheshwar Sao appointed Fakir Chandra Pathak as Pujari and so long as Bisheshwar Sao was alive, he remained as sewayat. He died leaving behind his two sons Raghuni Sao and Ram Lakhan Sao, who started maintaining the Shiv Mandir. It was further case that they reclaimed 20 decimals of land in plot no.1013 of Khata no.227 which was settled by the Khas Mahal authorities and in the year 1922, Raghuni Sao and his brother again made korkar of 33 decimals of land on the said plot 1013 and remained in possession for a long time. By virtue of occupancy of the aforesaid property of 20 decimals and 33 decimals, they acquired occupancy tenancy right over 33 decimals of land and Raghuni Sao taking consent of his brother Ram Lakhan Sao gave 53 decimals of land to Shivji for maintenance of the temple. It was their further case that Raghuni Sao got the name entered in Maliki khatian of village 2025: JHHC:16879 9 Sahpur in the name of Shivji in 1927-1928 with specific boundary maintained by Khas Mahal, who re-designated the plot no.1013/1705 for area 33 decimals and plot no.1013/1706 for area 20 decimals under Khata No.275 with specific boundary. In the year 1938, rent receipt was also issued. The entry in the Maliki khatian mentioned Fakir Chandra Pathak as pujari. Later on, the two brothers made samarpannama in the year 1934-1935 and handed over the same to pujari Fakir Chandra Pathak. It has been mentioned that till 1938, the deed of samarpannama comprising plot no.1013/1705 and 1013/1706 was not registered and therefore the younger brother got it registered in favour of Shivji on 06.10.1939 and confirmed the earlier samarpannama and donated some other land of his share and pujari Fakir Chandra Pathak accepted the same on behalf of the deity. 21. Thus, the case of the defendants was that the property was given in the name of deity much earlier although the deed was registered in favour of the Shivji only on 06.10.1939. The further case of the defendants was that plot no.1013/1705 and 1013/1706 were re- designated as plot no.1013/1705/1765 and 1013/1706/1766 but the area remained the same and the khata was re-numbered as khata no.304. It was asserted that by the defendant no.1 that there was some vacant portion of khata no.227, plot no.1013 touching road eastern side of the land of Shivji, out of which 15 decimals of land were settled with defendant no.1 vide Settlement Case No.VIII/14 of 1964- 1965, with boundary: North and South - partikadim, West - parti in possession of Shiv Mandir and East - Sahpur-Chainpur. 22. It was the case of the defendant no.1 that he was the son of political sufferer and he was in possession of the property and the plaintiffs started creating trouble from 01.04.1998. The vendors of the plaintiffs had fought for cancellation of demand of the defendant no.1 but they had lost and the order of the Commissioner in Revenue Appeal No.39 of 1996 dated 28.02.1998 attained finality. The defendants also asserted that during the pendency of the case, the Circle Officer, Chainpur under court’s order had measured the land 2025: JHHC:16879 10 and had found the land separate. The defendants also admitted that there were proceedings under Section 144 Cr.P.C between the parties. 23. The specific case of the defendants was that the Mutation Case No.59 of 1940-41 was a result of fraud played by Fakir Chandra Pathak and Fakir Chandra Pathak had claimed that he had purchased the property of Khata no.304 through sale deed executed by Ram Lakhan Sao on 06.10.1939 for Rs.100 and got his name mutated in Maliki Khatian with plot re-designated as 1013/1705/1765 and 1013/1706/1766 without specific boundary. Fakir Chandra Pathak had also tried to get mutation for the whole 53 decimals of land donated to Shivji but could not succeed. It was also asserted that an order dated 01.03.1945 was drawn to correct the illegal entries in Mutation Case No.59 of 1940-41 but no corresponding correction was made in the Maliki khatian. The counterclaim as filed by the defendants had prayed for the following reliefs: “14. (A) It be declared that the lands given in schedule ‘A’ of the written statement – cum – counter claim is occupancy tenancy lands of Shri Sheoji and the lands mentioned in schedule ‘C’ of the Written statement is the occupancy tenancy land of defendant no.1. (B) The plaintiffs have illegally encroached upon the lands of Schedule ‘A’ shown in yellow colour and lands of schedule ‘C’ shown in red colour in the Map annexed to Written Statement cum counter claim. (C ) The plaintiffs be directed to remove encroachment within specified time given by the court failing which the same may be removed through the process of Court. (D) Permanent injunction may be granted in favour of the defendants restraining the plaintiffs. (E ) All costs of Suit. (F) Any other relief or reliefs which may be deemed fit to defendants.” 24. Admittedly, no written statement was filed to the counter-claim. The Schedule A, B and C properties as mentioned in the written statement-cum-counter claim are as follows: “Schedule – A 2025: JHHC:16879 11 Description of lands of Sheoji encroached by plaintiffs shown in yellow colour on sketch map. Khata No. Plot No. Area A.D. Boundary 304 1013/1705/1765 0.15 (N: Land of Sheo 1706/1766 0.10 Mandir S; Encroach land of Sheoji by Mahesh and House of Mahesh Pd. Jaiswal and Chamaru Sao E: Land of Deft. No.1 W: Land of Masoom Mian Schedule – B Description of land of Sheoji encroached by Mahesh Pd. Jaiswal set up by plaintiffs shown in Blue colour. Khata No. Plot No. Area Boundary 304 1013/1705/1765 0.01 E: Land of Road side and 1706/1766 deft. No.1 W: Chamaru Sao’s boundary wall N: Sheoji land encroached by plaintiff S: House of Mahesh Pd. Jaiswal Schedule – C Description of land of Deft. No.1 encroached by plaintiff shown in red colour. Khata No. Plot No. Area Boundary 227 1013 0.06 E: land of Deft. No.1 touching road W: land of Sheoji N: Land of Deft. No.1 S: Parti land of Road” 2025: JHHC:16879 12 25. The learned trial court framed the following issues for consideration: “16 (I) Is the suit as framed maintainable? (II) Have plaintiffs got valid cause of action for the suit? (III)Is the suit barred by law of limitation, waiver, estoppel and acquiescence and 34 of Specific Relief Act? (IV) Have the plaintiffs got valid right, title and possession over the suit land? (V) Whether suit suffers from non-joinder of necessary parties in as much as Khas Mahal Officer the State of Bihar and Lord Shiva? (VI) Whether Fakirchand Pathak obtained the suit land through settlement by the Khas Mahal Officer, Palamau in the year 1940? (VII) Whether the suit land alongwith other land has been given by Raghuni Sao and Ram Lakhan Sao to Sheojee by Samarpannama or to Pujari Fakir Chand? (VIII) Whether the lands given by Raghuni Sao and Ram Lakhan Sao is the suit land or another piece of land along-with other land? (IX) Whether deed of Settlement executed by Ram Lakhan Sao in favour of Fakirchand Pathak dated 6.10.39 can restrict right not transfer the land given in the same? (X) Whether plaintiffs are entitled for the decree as claimed? (XI) Whether defendent No.1 village Sahpur got valid right title and possession over the land are 15 decimals covered under Khata 227, Plot No.1013 touching Sahpur Chainpur road in eastern side of lands of Malki Khatian vide settlement Case No. VIII of 1964-65? (XII) Whether counter claim of the defendant No.1 is maintainable? (XIII) Whether plaintiffs have encroached 6 decimals of land of defendant No.1? (XIV)Whether Mahesh Prasad Jaiswal set up by plaintiffs has encroached 1 decimal land of Khata 304, Plot No. 1013/1705/1765 and 1013/1706/1766? 2025: JHHC:16879 13 (XV) Whether defendant No.1 is entitled for declaration of occupancy land mentioned in Schedule 'C' land of Khata 227, Plot 1013 area 6 decimals? (XVI) Whether defendant No.1 is entitled for any others relief or reliefs?” 26. The learned trial court considered the oral and documentary evidence on record and decided all the issues. Issue nos. I, II, III, V and X were taken up and decided together: “29. All these Issues are taken together. From the discussions made above the suit as framed is maintainable. The plaintiffs have got valid cause of action for the suit. The suit is not barred by law of limitation, waiver, estoppel and acquiescence and 34 of Specific Relief Act and does not suffer from non-joinder of Khas Mahal Officer and Lord Shiva. The plaintiffs have valid right, title and possession over the suit land and entitled from a decree as claimed.” 27. So far as the counter-claim of defendants no.1 is concerned, which was issue no.XII, the same was rejected vide paragraph 19 - 21. The learned trial court recorded that it was doubtful as to which portion of the land was given to defendant no.1 and to what extent and what was the exact date of delivery of the possession. The learned court held that there was no documentary proof for valid settlement in favour of the defendant no.1 and Sri Deobrat Ram had no valid right, title, interest and possession over the land area 15 decimals plot no.1013 khata no.227 and the issue was decided against the defendant no.1 and in favour of the plaintiffs. 28. So far as issue no.VI is concerned, the same was decided vide paragraph 23. The learned court recorded that Exhibit - 10 which is the Maliki khatian was also produced by the defendants as Exhibit - C and from perusal of the Exhibit - 10, it appeared that the mutation was done by the Khas Mahal Officer in the name of only Fakir Chandra Pathak with respect to khata no.304 giving the plot no. as 1013/1705 /1765 and 1013/1706/1766 in place of khata no.275. 2025: JHHC:16879 14 29. The learned court while referring to the Exhibit - C observed that similar fact was mentioned but in Mutation Case No.334/44-45 land of plot no.1013/1705 area 17 decimals 1013/1706 area 10 decimals only was mutated in the name of Shivji through Fakir Chandra Pathak relating to land of khata no.275. The learned court held that there are two separate mutations with Fakir Chandra Pathak got 17 decimals of plot no.1013/1705 area 17 decimals and plot no.1013/1706 area 10 decimals total 27 decimals as pujari and land of plot no.1013/1705/1765 area 16 decimals and plot no.1013/1706/1766 area 10 decimals total 26 decimals in his own capacity and not a pujari of Shivji. The learned court ultimately held that the suit land which was relating to khata no.304 was obtained by Fakir Chandra himself through settlement by khas Mahal officer and not as pujari or sewayat and therefore it was his self-acquired property. 30. While deciding issue no.VII and VIII, the learned court after considering the materials has rejected the case of the defendants that the entries in Maliki khatian was not corrected by observing that the khatian was more than 60 years old and other documents did not prove the contention of the defendants. 31. The learned court ultimately recorded that from the documentary evidence, it was clear that the suit land is separate land acquired by Fakir Chandra Pathak and the land given by Ram Lakhan Sao or Raghuni Sao by samarpannama to pujari Fakir Chandra Pathak is separate piece of land and decided the issues in favour of the plaintiffs. 32. While deciding issue no. IX, the learned court held that the deed of settlement executed by Ram Lakan Sao in favour of Fakir Chandra Pathak dated 06.10.1939 in which plot no.1013/1705/1765 and 1013/1706/1766 is mentioned as Maliki khatian (Exhibit - 10) shows that the said plot number was given in Mutation Case No.59 of 1940-41 then how the same could be mentioned in Exhibit – D (dated 06.10.1939). 33. The learned court also recorded that the defendants had not brought any case to declare the sale deed Exhibit – 2 and 2/A as null 2025: JHHC:16879 15 and void and the defendants had knowledge about the deed so the claim of the defendants was time barred and the settlement deed could not restrict right not to transfer the land given in the schedule of the plaint. The learned court further decided issue no.IV and observed that the possession of the plaintiffs was undisputed and that the plaintiffs had also perfected their title by efflux of time and adverse possession. 34. So far as the learned 1st appellate court is concerned, the points for determination were recorded in paragraph 13 as follows: - “(I) Whether the suit land of Khata no. 304, Plot No.1013/1705/1765 area 16 decimal and Plot No.1013/1706/1766 area 10 decimal, total area 26 decimals was exclusively settled to Fakir Chand Pathak and the same was mutated in his favour in Mutation Case no.59/40-41 by the Khas Mahal Authority or not? (II) Whether the suit land along with other 27 decimal land of Khata no.275 Plot no.1013/1705 area 33 decimal and Plot No.1013/1706 area 20 decimal total area 53 decimal was settled with Raghuni Sao and Ram Lakhan Sao s/o Bisheshwar Sao vide Settlement Case no. VIII/137 of 1927-28 or not? (III) Whether the aforesaid Raguni Sao and his brother Ram Lakan Sao handed over their entire settled land of 0.53 acres of Khata no 275 to the temple of Lord Shiva by appointing one Fakir Chand Pathak as a Pujari of that Temple through the deed of settlement in his favour vide deed of settlement no 2082 dated 06.10.1939 or not? (IV) Whether the land mentioned in schedule A of written statement cum counter claim of the defendants are exclusive land of temple of lord Shiva or the same was exclusive land of aforesaid Fakir Chand Pathak ? (V) Whether the wife of Fakirchand Pathak namely Surajmani Kuer was entitled to execute the Sale deed no.7126 dated 12.07.1997 in favour of one Brahmdeo Mishra or not? 2025: JHHC:16879 16 (VI) Whether the land of Khata no.227, Plot No.1013 area 0.15 acre was legally settled with defendant no 1 Deobrat Ram vide Settlement Case no. VIII/14 of 1964-65 by the competent authority and there by the defendant no 1 acquired occupancy tenancy right over his settled land or not and whether out of that 15 decimal of land, 0.6 Acres of lands have been encroached by the plaintiffs or not? (VII) Whether the plaintiffs have acquired valid right, title and possession over the suit land on the basis of the of Sale deed no 13743 & 13744 dated 18.12.1990, executed by Udeshwar Mishra and others in their favour and thereby they entitled for decree of permanent injunction or not?” 35. The learned first appellate court while deciding the point of determination no.VI observed vide paragraph 29 of the judgement that the learned trial court had rightly decided the issue no.XII against the defendant no.1 by holding that there was no documentary proof of valid settlement in favour of the defendant no.1 and Deobrat Ram had got no valid right, title and possession of land bearing plot no.1013 Khata no.227 area 15 decimals and also recorded that the land of defendant no.1 as described in Schedule - C of his counterclaim was not encroached by the plaintiffs. The other issues i.e. question nos.I, II, III, IV, V and VII were decided together vide paragraph 30 onwards. The learned first appellate court has considered the documents including Exhibit - 10 and in paragraph 32 held as under: “32 Heard the rival submissions made by the learned counsels of both the sides and perused the pleadings of both parties as well as oral and documentary evidence led by them during the course of trial and having gone through the entire evidence either oral and documentary adduced by the parties as well as findings given by the learned Court below in his impugned Judgment, I find that if the plaintiff is able to establish the fact that the land of Lord Shiva and land of Fakir Chand Pathak are different then this Court has got no option but to upheld the findings of the learned Court below and if the defendans have 2025: JHHC:16879 17 succeeded to establish his pleadings either in his written statement or in his counter claim by his oral and documentary evidence that the suit land, which has been purchased by the plaintiffs from the purchaser of wife of Fakir Chand Pathak was the same land, which was donated to Lord Shiva by Raguni Sao and Ram Lakhan Sao then this Court has got no option but to set aside the impugned Judgment and hence the main crux of this appeal is to be decided whether the suit land bearing Khata no.304, plot no 1013/1705/1765 area 0.16 acre and Plot No. 1706/1766 area 0.10 acre, total 0.26 acre of village Shahpur, P.S. Chainpur, District-Palamau as described by the defendant no.1 & 2 in schedule-A & B of their counter claim are land of Lord Shiva or whether the same was self acquired property of one Fakir Chand Pathak as held by the learned Court below in his impugned Judgment ? In this context, firstly I want to mention here that both parties have filed basis of their claim as mentioned by them either in their plaint or in their counter Claim and the same has been marked as Exi-10 as well as Ext-C as both Ext 10 and Ext C are same and similar document. Having gone through the Ext- 10 (Maliki Khatian of Khata no 275 running in the name of Raghuni Sao and Khata no 304 running in the name of Pandit Fakir Chand Pathk) it appears that Maliki Khatian was prepared by the Khas Mahal Authority for the land of Khata no.275 Plot No.1013/1705 area 17 decimal and 1013/1706 area 10 decimal total 27 decimal in the year 1927-28 in the name of one Raghuni Sao s/o Bisheshwar Sao of village Shahpur and the same was mutated vide Mutation Case no. 384/44-45 in favour of Sri Shivji through Fakir Chand Pathak Pujari. It is the case of the defendant no.1 & 2 as pleaded by them either in their written statement or in their counter claim that total 53 decimal land was made Korkar in Plot No.1013 of Khata no.227 and the said land was donated to Lord Shiva by Raguni Sao but none of the parties especially defendant no. 2, who is grandson of Raghuni 2025: JHHC:16879 18 Sao has filed any Chit of paper, which shows that total 53 decimal land of Plot No.1013 of Khata No 227 was settled by Khas Mahal Authority with Raghuni Sao as a while on perusal of Ext-10 it only appeared that total 27 decimal land was settled with Raghuni Sao and the same was mutated in favour of Shri Shivji thorugh Fakir Chand Pathak. It has not been mentioned in maliki Khatiyan that khata no 275 was re degenerated by the Khas Mahal authorities from old Khata No 227. Same and similar document has been brought by the defendant no.1, which has been marked as Ext-C but having gone through Ext-C, I find that in 2nd Col. of the aforesaid Maliki Khatian "Raguni Sao s/o Bisheshwar Sao resident of village Shahpur through Bajaria Fakir Chand Pathak, Pujari resident of Shahpur" has been mentioned in which "Through" has been added in different ink, which shows that some manipulation has been made by the defendants after obtaining its certified copy. In this context, I want to peruse the testimony of D.W 3 namely, Sushil Tiwary, who is Revenue staff of office of C.O, Chainpur and he has produced the original Maliki Khatian in the light of the direction issued by the learned lower Court with respect to Khata no. 304, Plot No.1013/1706/1765 and 1706/1766 and on his formal identification the same has been marked as Ext- 1. Thereafter, the same was substituted with its certified copy. Having gone through the Ext-10 it appears further that a separate Maliki Khatian was prepared in the name of Fakir Chand Pathak son Pandit Ram Gulam Pathak of village Shahpur, P.S. Daltonganj in the year 1940-41 and the same was mutated in favour of Fakir Chand Pathak vide Mutation Case no.59/40-41, which is itself evidence of exclusive ownership of the said Fakir Chand Pathak as, separate Maliki Khatian was prepared in his name although in Col. 15 of Maliki Khatian of Raguni Sao and Malike Khatian of Fakir Chand Pathak It has been mentioned that the land was deducted and new Khata No. 304 was created vide order dated 04.02.1931 of Khas Mahal 2025: JHHC:16879 19 Officers, Palamau and case no. VIII/1039 of 1929-30 has also been entered in this Column. D.W-3 Shushil Tiwary is an employee of the office of C.O. Chainpur and he has deposed in para-5 to 9 of his cross examination that it is true that "Through" has not been mentioned below the Plot No.1013/1705 of Ext-1 (Original Maliki Khatiyan), as a while "Through" has been mentioned in Ext-C, which has been filed earlier in this case and no any initial has been made on it. It has further been deposed by him that Plot No.1706/1766 has been mentioned in original Khatian, which has been marked as Ext-I as a while in true copy of Khatian, which has been filed by the defendant and has been marked as Ext-C, Plot No. 1706/1716 has been mentioned and as such, there is difference between original Khatian and its certified copy. Lastly, it has been deposed by him that Ext-10 is same and similar copy of original Khatian of Khata no.275 and Khata no.304 and thus having gone through the entire testimony of D.W-3 it appears that that even some manipulation has been committed by the defendants side, while obtaining the certified copy of Maliki Khatian of Khata No. 275 and 304 by taking the employee of C.O. Office In his collusion. On perusal of Ext-10 it further appears that the same has been obtained on 14.10.71 and Ext-C has been obtained by the defendants side on 28.01.77 and there is vital difference in both the certified copies and employee of C.O. Chainpur has fully supported the manipulation committed in Ext-C and hence I have no hesitation in holding that the defendants have not come before the court of law with clean hand and any how they have tried to get decree from the court in their favour.” 36. The learned 1st appellate court has ultimately recorded in paragraph 37 and held that the suit land of Khata no.304 plot no. 1013/1704/1765 area 16 decimals and plot no.1013/1706/1766 area 10 decimals total 26 decimals was exclusively settled to Fakir Chandra Pathak and the same was legally mutated in his favour of mutation case no.59 of 1940-41 by Khas Mahal authority. It was further held 2025: JHHC:16879 20 that 17 decimals of land of plot no. 1013/1705 and 10 decimals of land of plot no.1013/1706 of khata no.275 of village Sahpur was settled with Raghuni Sao, son of Bisheshwar Sao vide Settlement Case No.VIII/137 of 1927-28 separately and only the said 27 decimals of land was donated to the temple of lord shiva by the descendants of Bisheshwar Sao which was mutated in the name of Sri Shivji represented through Fakir Chandra Pathak pujari. It was also held that the land mentioned in schedule A of the written statement cum counterclaim of defendants was the exclusive land of Fakir Chandra Pathak and the land of Schedule B of written statement cum counter claim of the defendants was not encroached by one Mahesh Prasad Jaiswal and consequently it was held that the sale deeds were rightly executed. The operative portion of the judgement of the learned first appellate court is quoted as under: “37-On the basis of discussion made here-in-above, I have no hesitation in holding that the suit land of Khata no. 304, Plot No.1013/1705/1765 area 16 decimal and Plot No. 1013/1706/1766 area 10 decimal, total area 26 decimals was exclusively settled to Fakir Chand Pathak and the same was legally mutated in his favour in Mutation Case no.59/40-41 by the Khas Mahal Authority. It is also held that 17 decimal land of plot no 1013/1705 and 10 decimals land of Plot no 1013/1706 of Khata no. 275 of village Shahpur was settled with Raghuni Sao s/o Bisheshwar Sao vide Settlement Case no. VIII/137 of 1927- 28 separately and only the said 27 decimals land was donated to the temple of Lord Shiva by the descendants of Bisheshar Sao, which was mutated in favour of Shree Shiv Jee through Fakir Chand Pathak Pujari. It is also held that the land mentioned in schedule A of written statement cum counter claim of the defendants was exclusive land of aforesaid Fakir Chand Pathak and land of schedule B of written statement cum counter claim of the defendants has not been encroached by one Mahesh Prasad Jaishwal as none of the parties have adduced convincing evidence about it. It is further held that the wife of Fakirchand 2025: JHHC:16879 21 Pathak namely Surajmani Kuer was entitled to execute the Sale deed no.7126 dated 12.07.1997 in favour of one Brahmdeo Mishra and being purchasers of the aforesaid Brahamdo Mishra, the plaintiffs have acquired valid right, title and possession over the suit land on the basis of the of Sale deed no 13743 & 13744 dated 18.12.1990, executed by Udeshwar Mishra and others in their favour. It is further held that the defendant no 1 has not acquired occupancy tenancy right over the land of Khata no.227, Plot No.1013, area 0.15 of village Shahpur as the same has not been legally settled with him vide Settlement Case no. VIII/14 of 1964-65 by the competent authority and out of that 15 decimal of land, 0.6 Acres of lands have not been encroached by the plaintiffs. 38-Considering the facts and circumstances of this case, pleadings of the both sides, oral and documentary evidence adduced by the plaintiffs during the course of trial and the findings given by the Hon'ble Apex Court in the aforesaid decisions, I have no hesitation in holding that the learned lower Court has rightly appreciated the relevant provisions of Law and the evidence adduced by the plaintiffs during the course of trial and has rightly come to the conclusion that that there is no documentary proof of valid settlement in favour of defendant no.1 and thus Sri Deobrat Ram, defendant no 1 has got no valid right, title and possession over the land of Khata no.227, Plot No.1013 area 15 decimal and Mahesh Prasad Jaishwal has not encroached 01 decimal land of plot no 1013/1705/1765 & 1013/1706/1766 of Khata no 304. It has also been rightly held that suit land was obtained by Fakir Chand Pathak himself through settlement by Khas Mahal officer Palamau not as Pujari/Shebait and the same was his self acquired property and the said land is separate from the land given by Ramlakhan Sao or Raghuni Sao by deed of Samarparnama to him as Pujari of temple of Sheo Jee. 2025: JHHC:16879 22 39- It is, therefore, ordered that the impugned Judgment dated 04.06.2009 and, its decree sealed and signed on dated 10.06.2009, passed by Sri Chandra Bhushan Singh, the then Learned Subordinate Judge-1, Palamau at Daltonganj in Title Suit No. 33 of 1998, which is under challenge, is hereby upheld by holding that Sri Deobrat Ram, defendant no 1 has got no valid right, title and possession over the land of Khata no.227, Plot No.1013 area 15 decimal and Mahesh Prasad Jaishwal has not encroached 01 decimal land of plot no 1013/1705/1765 & 1013/1706/1766 of Khata no 304. It is further held that the suit land was obtained by Fakir Chand Pathak himself through settlement by Khas Mahal officer Palamau not as Pujari Shebait and the same was his self acquired property and the said land is separate from the land given by Ramlakhan Sau or Raghuni Sao by deed of Samarparnama to him as Pujari of temple of Sheo Jee as such the plaintiffs have valid right, title and possession over their purchased land of total 0.26 acres land of plot no 1013/1705/1765 & 1013/1706/1766 of Khata no 304 of village Shahpur. Accordingly, present appeal is dismissed on contest without cost.” 37. So far as the arguments of the appellants in connection with the counterclaim is concerned, this Court finds that no substantial question of law has been framed by this Court relating to counter- claim. Otherwise also the argument of the appellants that in absence of written statement, the suit itself was fit to be dismissed has been made on the basis of the judgement passed by the Hon’ble Supreme Court reported in 2015 1 JCR 23 (SC) (Rajni Rani v. Khairati Lal) and special reference has been made to paragraph 12 thereof. This Court finds that as per paragraph 12 of the judgment, it has been held that counterclaim preferred by the defendants is in the name of cross-suit and even if the suit is dismissed, the counter claim shall remain alive for adjudication and for that purpose, the defendants are required to pay the requisite court fees. It has also been held that the plaintiffs are obliged to file a written statement and in case there is default the court 2025: JHHC:16879 23 can pronounce the judgement against the plaintiffs in relation to the counterclaim put forth by the defendants as it has an independent status. Nowhere it has been held that if no written statement is filed to the counterclaim, then the suit is required to be dismissed. Rather the counterclaim itself is required to be decided as a separate suit and even if the suit is dismissed, the counterclaim is required to be adjudicated. This Court finds that the learned trial court has adjudicated the counter claim and recorded finding. The concurrent finding has been recorded by the learned first appellate court also and no substantial question of law having been framed in connection with counter-claim, this Court is not inclined to pronounce any further on the merit of the counter-claim. 38. So far as the substantial question of law involved in this case is concerned, this Court has gone through Exhibit - 10 i.e. Maliki khatian which is said to be prepared in the year 1938. The said Exhibit - 10 reveals that so far as properties involved in khata no.275 is concerned, the same was recorded in the name of the temple Shivji through Fakir Chandra Pathak the pujari and there is another khata no.304 which stood recorded in the name of Fakir Chandra Pathak in his individual capacity which does not show that it was being recorded in the name of the temple nor did it show that it was being recorded in name of Fakir Chandra Pathak in the capacity of Pujari of the Shiv Mandir. It has been pointed out by the learned counsel for the appellants that in Khata no.275, the plot number is 1013/1705 and 1013/1706 and in khata no.304 also the plot no. is 1013/1705/1765 and 1706/1766. 39. This Court is of the view that merely because there is some similarity with respect to plot number, the same has no bearing in the matter in view of the fact that khata no.275 and khata no.304 are separately recorded and there is nothing on record to show that what was the total area under one or the other plot numbers mentioned in Exhibit - 10. 40. This Court finds that both the courts have given concurrent finding holding that the plaintiffs were claiming property in khata no.304 and not in khata no.275 and upon perusal of Exhibit – 10, this 2025: JHHC:16879 24 Court finds that there is separate entry in the name of Fakir Chandra Pathak in his individual capacity under khata no.304, and therefore, the separate entry made in the name of Fakir Chandra Pathak under khata no.304 cannot be intermingled with the separate entry made under khata no.275 in the name of the temple Shivji showing Fakir Chandra Pathak as the pujari. 41. This Court also finds that at no point of time, the sale deed executed by the widow of Fakir Chandra Pathak with respect to the suit property and also the subsequent sale deeds were challenged by the temple Shivji or by any other person in order to represent the cause of the temple. Admittedly, the plaintiffs are in possession of the suit property. 42. In view of the aforesaid facts and circumstances, this Court has no doubt that both the courts have rightly scrutinized the material on record including Exhibit - 10 to arrive at finding of fact and hold that the plaintiffs had right, title, interest and possession over the suit property covered by khata no.304 as mentioned in the schedule to the plaint. 43. So far as the argument of the appellants with respect to the Section 34 of the Specific Relief Act is concerned, this Court finds that the suit was not barred by Section 34 of Specific Relief Act and the plaintiffs had proper cause of action when the defendants threatened the right, title of the plaintiffs and there have also been multiple litigations in connection with the property including proceeding under Section 144 of Cr.P.C. 44. Accordingly, the substantial question of law is decided against the appellants and in favour of the respondents-plaintiffs. 45. Consequently, this appeal is hereby dismissed. (Anubha Rawat Choudhary, J.) Saurav/