2025:JHHC:33979 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 68 of 2005 1. Chandra Mohan Mahato, son of Late Chamtu Mahato, Resident of village- Pondaketa, Police Station-Kuchai, P.O. Galudih, via- Amda, District-Singhbhum (west) Now District-Seraikella- Kharsawan. (Deleted and substituted v.o.d. 06.06.2022) 1.a Bipati Devi, aged about 72 years. 1.b Dilip Kumar Singh, aged about 57 years. 1.c Anil Kumar Singh, aged about 54 years. 1.d Sunil Kumar Singh, aged about 51 years. 1.e Raja Rajranjan Kumar Singh, aged about 45 years. 1.f Manila Devi, aged about 40 years, daughter of late Chandra Mohan Mahato and wife of Sri Umesh Kumar Mahato, resident of Adityapur, Kalpanapuri, P.O. and P.S. Adityapur, District- Seraikella-Kharsawan 1.g Munu Devi aged about 52 years 1.h Sanni Dewal Mahato aged about 33 years 1.i Sawan Kumar Mahato, aged about 26 years 1.j Sunita Mahato, aged about 31 years daughter of late Ashok Kumar Singh and wife of Suresh Kumar Mahato, resident of Village- Barakankra, P.O. and P.S. Seraikella, District- Seraikella-Kharsawan 1.k Sujata Mahato aged about 30 years daughter of Late Ashok Kumar Singh and wife of Sri Kapildeo Mahato, resident of village Turian, P.O. Kadampur via Amda, P.S. Kharsawan, District-Seraikella-Kharsawan. Nos. 7 widow, Nos. 8 and 9 sons and 10 and 11 daughter of late Ashok Kumar Singh, predeceased son of late Chandra Mohan Mahato died on 29.07.2020. Nos. 1 to 5, 7 to 9 all resident of village- Pondakata, P.S. Kuchai, P.O. Gopidih, via-Amda, District-Seraikella- Kharsawan. 1.l Hemanta Kumar Mahato, aged about 27 years son of late Shivnath Mahato, resident of Dhatkidih, Chakradharpur, P.O. Chakradharpur, P.S. Chakradharpur, District- West Singhbhum. 1.m Laxmi Mahatani, aged about 32 years daughter of late Rajrani Devi and wife of Sri Kashinath Mahato, resident of 97, Dhatkidih, Ward No. 14, P.O. Chakradharpur, P.S. Chakradharpur, District-West Singhbhum. 1.n Saraswati Mahtani, aged about 26 years daughter of late Rajrani Devi and wife of Sri Anil Kumar Mahato. No.12 son and Nos.13 and 14 daughter’s of late Rajrani Devi, predeceased daughter of sole appellant late Chandra Mohan Mahato. Nos.1 to 5, 7 to 9 and 14 all resident of village- Pondakata, P.O. Gopidih, via-Amda, Police Station Kuchai, District Seraikella-Kharsawan … … Plaintiffs/Respondents/Appellants Versus 2025:JHHC:33979 2 1. Sukhram Oraon (Deleted and substituted v.o.d. 29.03.2010) (a) (i) Gosa Devi (ii) Minor son Nityanand Kujur (iii) Minor daughter Puti Kujur No.(i) widow, nos.(ii) son and (iii) daughter of late Sukhram Oraon, minors are under the guardianship of Smt. Gosa Devi, mother and natural guardian. All resident of village Sarnpur, P.O. Sini, P.S. Sini, District – Saraikella Kharswan (iv) Dasma Oraon, wife of not known to the petitioner resident of Sarkhandih, P.O. Raidih, P.S. Kharswan, District – Saraikella Kharswan (v) Maloti Oraon, wife of not known to the petitioner resident of village – Gomdadih, P.O. Padampur, P.S. Kharswan, District – Saraikella Kharswan. Nos. (iv) and (v) both daughter of late Sukhram Oraon from his first wife (Predeceased) 1. (b) Rashid Oraon, 1 (c) Akshay Oraon 1 (d) Nilmadhav Oraon All sons of late Gurua Oraon resident of village – Pondakata, P.S. Kuchai, P.O. Galudih via – Amda, District – Saraikella Kharsawan … …. Defendant No.1/Appellant/Respondent 2. Deputy Commissioner, Singhbhum (west) at Chaibasa, P.O. Chaibasa, District – Singhbhum (west) now District – Saraikella/Kharsawan. … … Defendant No.2/Respondent No.2/Respondent --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Sachi Nandan Das, Advocate : Mr. Om Prakash Singh, Advocate For the Respondents : Mr. R.C.P. Sah, Advocate For the State : Mr. Sanjay Kumar Tiwari, SC I : Mr. Krishna Kumar Bhatt, AC to SC I --- 24/13.11.2025 This appeal has been filed against the judgment and decree dated 16.02.2005 (decree signed on 24.02.2005) passed in Title Appeal No. 06 of 1995 by learned 1st Additional District Judge at Seraikella whereby the judgment and decree dated 12.01.1995 (decree signed on 21.01.1995) passed in Title Suit No. 12 of 1991 by learned Munsiff, Seraikella has been reversed. 2. The suit was filed for the following:- a) Declaration that the defendant No.1 has acquired no right, title, interest and possession over the schedule “A” suit land on the basis of settlement made with him on 30.06.1975. The 2025:JHHC:33979 3 settlement is illegal, void ab-initio, and does not confer any title. b) Declaration of plaintiff’s title and confirmation of possession over the suit land declaring that the settlement of the suit land with him made in Settlement Case No. 35 of 1970-71 is legal, just and proper. c) Recovery of possession of the suit land if the plaintiff would be found out of possession. d) Cost of the suit, and e) Other relief or reliefs opened to the plaintiff in the eye of law and equity. 3. The suit was decreed on contest and the learned 1st appellate court has allowed the appeal and dismissed the suit. Consequently, the plaintiff is the appellant before this Court. 4. This appeal has been admitted for final hearing vide order dated 23.06.2009 on the following substantial question of law:- “Whether the learned lower appellate court has correctly met with the reasonings of the trial court while reversing the findings of the trial court?” 5. The suit land of Khata No. 167, Plot No. 1149, measuring an area of 2.08 decimals of Mouza- Pondakata, P.S. Kuchai, the then District- Singhbhum (West) presently Seraikella-Kharsawan was admittedly a part and parcel of land recorded as Anabad Bihar Sarkar by Exhibit 4 to 4/A. 6. It was the case of the plaintiff that the plaintiff had applied for settlement of land before Sub Divisional Officer who in turn settled the suit land by order dated 16.08.1970 in Settlement Case No. 35 of 1970-71 which was followed by issuance of settlement parwana in the name of the plaintiff, which was the suit property. The plaintiff has reclaimed the land and remained in possession of the same and paid rent to the State of Bihar. 7. It was further case of the plaintiff that defendant No.1 had managed to take settlement of the said property from the then Circle Officer, Kuchai on 30.06.1975, who issued Settlement Parwana in his name. It was also alleged that there was no publication of any ‘Istehar’ calling for objection and there was no enquiry and hence the plaintiff 2025:JHHC:33979 4 could not file objection before the authority and defendant No.1 managed to obtain the settlement illegally on 30.06.1975. 8. The further case of the plaintiff was that the plaintiff came to know about the settlement in favour of defendant No.1 in the month of May, 1979 when defendant no.1 gave out to the village that he had taken settlement of the suit land from the Government of Bihar. Coming to know about the aforesaid fact, the plaintiff made an enquiry in the office and filed a petition in the court of the L.R.D.C for cancellation of the settlement of suit land with defendant No.1 as it was already settled in favour of the plaintiff in Settlement Case No. 35 of 1970-71. 9. Pursuant thereto, the L.R.D.C called for a report from the Anchal Adhikari and Anachal Adhikari got the matter enquired through the Circle Inspector and submitted report on 23.07.1979 stating that the suit land has already been settled with the plaintiff in Settlement Case No. 35 of 1970-71 and the plaintiff was in possession of the same. It has also stated in the report that defendant No.1 got settlement of another plot bearing plot No.1174 measuring 2.00 decimals of Khata No.167 of Mouza Pondakata in 1970-71. 10. The grievance of the plaintiff was that in spite of aforesaid report, no action was taken to annul the settlement of defendant No.1 and on the basis of illegal settlement, defendant No.1 wanted to take possession of the suit land from the plaintiff in 1981. This led to institute a proceeding under Section 144 Cr.P.C vide Miscellaneous Case No.174 of 1981 which was converted into a proceeding under Section 145 Cr.P.C. and ultimately the possession of defendant No.1 was declared. It was asserted by the plaintiff that the declaration made on 13.02.1983 in the proceeding under Section 145 of Cr.P.C. was upon wrong appreciation of facts and law. 11. Against the order, the plaintiff had filed a Criminal Revision being Cr. Rev. No. 100 of 1983 and the revision was dismissed on 08.06.1990 and ultimately a Cr. Misc. No. 2384 of 1990 (R) was filed before this Court under Section 482 of Cr.P.C. and the same was rejected on 24.10.1990 with an observation that the plaintiff has got 2025:JHHC:33979 5 remedy by way of filing Civil Suit for declaration of his right and title over the suit land, if he so likes. Consequently, the plaintiff filed the suit on 25.03.1991. 12. A written statement was filed on behalf of defendant No.1 asserting that the plaintiff had no cause of action. It was further asserted that no settlement was made in favour of the plaintiff with respect to the suit property, much less any Settlement Case No. 35 of 1970-71 by order dated 16.08.1970 and no Settlement Parwana was issued with respect to the suit property and if there was any Parwana, it was false and fabricated. 13. It was asserted that the suit land was settled in favour of the defendant by issuing settlement Parwana and that the defendant was in possession of the suit property and was regularly paying rent to the State. It was also asserted that the defendant reclaimed the property and was growing crop. 14. The statement of the plaintiff that there was no publication of Istahar or enquiry while issuing settlement parwana in favour of the defendant was denied. It was also asserted that the L.R.D.C did not annul the settlement of the suit land with the defendant No.1 and he had right over the property. It was denied that defendant wanted to take possession of the suit property from the plaintiff in the year 1981 and it was also asserted that the possession of defendant No.1 was rightly declared by the Executive Magistrate in the proceeding under Section 145 Cr.P.C. and the revision against the same was also rightly dismissed and further the High Court also had rejected the petition filed by the plaintiff. The defendant claimed that the defendant was in possession since taking the settlement of the suit land in Settlement Case No.03 of 1975-76 and in the proceeding under Section 145 Cr.P.C. he was found in possession. 15. So far as the State represented through Deputy Commissioner is concerned, no written statement was filed. 16. The learned trial court framed the following issued for consideration: - 2025:JHHC:33979 6 I. Is the suit maintainable in its present form or for the relief claimed? II. Has the plaintiff any cause of action? III. Is the suit barred by waiver, estoppel and acquiescence? IV. Is the suit barred under the Specific Relief Act? V. Is the suit barred by limitation and adverse possession? VI. Whether the land of Khata No. 167 of Plot No. 1174 was settled with the defendant No.1 in the year 1970? VII. Is it a fact that any settlement made in favour of the plaintiff with respect to the suit land in any case No.35 of 1970-71? VIII. Is it a fact that plaintiff was put in possession over the settled land by any government official? IX. Is it fact that the suit land was settled with the defendant vide settlement case No.3 of 1976 and settlement Parwana was issued and the defendant was put in possession over the settled land? Judgement of trial court 17. The issue No. (II) & (V) regarding cause of action, limitation and adverse possession were taken up together by the learned trial court at the first instance from paragraph 5 onwards. 18. The learned trial court considered the argument of the plaintiff that the suit will be governed by Article 65 of the Limitation Act and the period of limitation would be 12 years. The learned trial court recorded that the plaintiff came to know about the settlement in favour the defendant for the first time in May, 1979 and the cause of action as disclosed in the plaint was that it arose on 15.03.1983 when the Executive Magistrate passed the order under Section 145 Cr.P.C declaring the possession of the defendant No.1 over the suit property and thereafter, there has been subsequent proceedings and ultimately the Criminal Revision was dismissed. Further, the cause of action was in the month of January, 1991 when the defendant No.1 made an attempt to dispossess the plaintiff from the suit land and the suit was filed on 25.03.1991. 19. The learned trial court ultimately held that the real invasion on the interest of the plaintiff arose when plaintiff learnt about the settlement in favour of the defendant No.1 in the month of January, 1991 when the defendant made an attempt to dispossess the plaintiff. 2025:JHHC:33979 7 The court calculated the limitation from the month of May, 1979 and also January, 1991 and since the suit was filed on 25.03.1991 it was held that the suit was filed within limitation by referring the Article 65 of the Limitation Act. 20. The learned trial court also recorded that the threat of invasion upon the right of the plaintiff over the suit property was the cause of action. 21. Issue No. (III) and (IV) were not pressed. 22. Issue No. (VI), (VII), (VIII) and (IX) were taken up together by the learned trial court. The learned trial court considered the oral and documentary evidence adduced on behalf of the parties. The learned trial court considered that before the L.R.D.C., Seraikella a petition for cancellation of settlement of defendant No.1 was filed and the report was called for from the Anchal Adhikari and report was submitted stating that the suit land was already settled with the plaintiff and that the plaintiff was in possession of the property and no steps were taken for cancellation. The learned trial court recorded that the defendant No.1 also has settlement of another property bearing Plot No.1174. The learned trial court recorded that the defendant No.1 was not a landless person as he already had a property settled in his name and ultimately recorded that the plaintiff has proved the settlement parwana. The plaintiff himself was examined as P.W.7. 23. The learned trial court considered the oral evidences and has recorded that there was much weight in the argument of the plaintiff. The witnesses of the defendant were from different village and they cannot be competent witnesses in connection with settlement. The plaintiff witnesses were belonging to the village where the suit property was situated. The defendant No.1 had also taken settlement of some portion of Plot No.1174 area 2.00 decimal in the year 1970 from the State of Bihar. 24. While considering Exhibit-1, the learned trial court recorded the submission of the plaintiff that there were seal and signature of the authority who had issued the Parwana. Exhibit-X to X/2 and Exhibit-1 2025:JHHC:33979 8 showed that parwana was issued to several persons and no seal was given on Exhibit X to X/2. But Exhibit-1 showed that there were seal and signature of officer who issued the parwana. 25. The learned trial court recorded that the Exhibit-1 was proved by P.W. 2 and P.W.7. It was submitted by the learned counsel for the defendant that Exhibit-1 parwana was issued by B.D.O. and the same was not issued by the Circle Officer. P.W.7 had stated that B.D.O Chiranjiv Jha was also the in-charge of the Circle Office Kuchai in the year 1970 and B.D.O. was also doing the work of Circle Officer and there was no separate seal of the Circle Officer. The learned trial court referred to Exhibit-2 which showed that parwana was issued to the plaintiff in the year 1970 and genuineness of patta was not challenged by the defendant No.1 and the parwana issued in favour of the plaintiff was earlier from the defendant. The learned trial court recorded that it was well proved that Parwana (Exhibit-1) issued in Case No. 35 of 1970-71 was by lawful authority. The learned trial court recorded that except defendant witness No.7, the other defendant witnesses were not belonging to the village where the suit property was situated. The learned trial court also considered that the plaintiff witnesses belonged to the same village where the suit land was situated and they have got land near the suit land. These witnesses had supported the case of the plaintiff and ultimately held that the parwana issued to the plaintiff dated 05.09.1970 in Settlement Case No. 35 of 1970-71 was proved by Exhibit-1, Exhibit-2 and also by oral evidence and held that the plaintiff was entitled for his right and title and that defendant No.1 had not acquired any right, title and interest over the suit land by means of the settlement dated 30.06.1975 as the suit land was settled with the plaintiff earlier in Settlement Case No. 35 of 1970-71. There has been no cancellation of the settlement which was made in favour of the plaintiff. The learned trial court thereafter recorded that on the perusal of Exhibit-E and E/1 it transpired that the defendant was in possession over the suit land but the defendant No.1 had got no locus standi to remain in possession and they did not have any right, title and interest over the suit property and ultimately the learned trial court decided the 2025:JHHC:33979 9 issue Nos. (VI), (VII), (VIII) and (IX) in favour of the plaintiff and against the defendant and declared the settlement in favour of the plaintiff as valid and settlement in favour of the defendant is illegal. The suit was decreed with cost with a decree of recovery of possession in favour of the plaintiff. Judgement of 1st appellate court 26. So far as the learned 1st appellate court is concerned, the same issues were taken up for consideration. 27. While considering the point of limitation and cause of action, the learned 1st appellate court has decided the same vide paragraph 17 and was of the view that the suit was covered by Article 58 of the Limitation Act, 1963 and therefore, the period of limitation would be three years from the date of right to sue first accrues and the learned 1st appellate court also observed that it was admitted fact that the right to sue to the plaintiff accrues either in 1979 or 25.05.1980 and when computed on this premise, the suit ought to have been filed by the end of 1983, but the suit was filed on 25.03.1991 and therefore, the suit was barred by limitation. 28. With respect to issue No.(VI), which was relating to settlement of Khata No. 167, plot No. 1174 in favour of defendant No.1 in the year 1970, the learned 1st appellate court was of the view that this issue was not required to be framed as the same appears not to have been denied by the defendant and therefore, the learned 1st appellate court was of the view that there could not be any difference of opinion from the one given by the learned trial court vide paragraphs 17 and 21 of the judgment. Meaning thereby the settlement of another property, i.e., kahta No. 167 plot No. 1174 in favour of defendant No.1 in the year 1970, which was not the suit property, stood admitted fact in the records. 29. So far as issue Nos. (VII), (VIII) and (IX) are concerned, the same were taken up from paragraph 6 onwards of the 1st appellate court judgment. The reliance on Exhibit-1 by the plaintiff was specifically considered by the learned 1st appellate court vide paragraph 8. The learned 1st appellate court was of the view that the 2025:JHHC:33979 10 plaintiff claimed settlement by parawna (Exhibit-1) dated 16.08.1970 and the evidence of P.W.2 was to be analyzed who had proved the document. P.W.2 had deposed that Exhibit-1 bears writing of Mohan Soy clerk and bears the signature of Chiranjiv Jha and has stated that Chiranjiv Jha was B.D.O and was in-charge of the Circle Office. The learned 1st appellate court has considered the evidence of P.W.7, the plaintiff himself, who has stated that the Paravana did not contain the signature of the officer concerned and there was only stamp of the office. The learned 1st appellate court ultimately recorded that the court did not find the signature of the issuing authority i.e. Circle Officer though a faint seal is affixed thereto. The learned 1st appellate court discarded the evidence of P.W.2 vide paragraph 9 by stating that he was only 13 years of age at the relevant point of time and he could not have recognized and identified the signature of the B.D.O, Chiranjiv Jha or the writing of the clerk Mohan Soy on the settlement parwana dated 16.08.1970 nor he was an eye witness to that nor he could be said to be eye witness to that nor he was a government servant in the office. The learned 1st appellate court also recorded that the clerk Mohan Soy was still surviving and he could have been called upon by P.W.7 (the plaintiff) to throw light on the sanctity of the settlement parwana i.e. Exhbit-1. 30. The learned 1st appellate court thereafter discussed the findings of the learned trial court and observed that the learned trial court was of the view that P.W.2 had proved the settlement parwana, but no reasoning has been assigned and observed that the evidence of P.W. 2 was wrongly relied upon by the learned trial court. It was also observed that the defendant had specifically denied the issuance of settlement with respect to the suit property in favour of the plaintiff by stating that no ‘Istehar’ or publication of any kind was made prior to settlement in Settlement Case No. 35 of 1970-71 which led to settlement in favour of the plaintiff on 16.08.1970 by settlement parwana (Exhibit-1). 31. The learned 1st appellate court referred to Section 101 of Evidence Act to say that the burden of proving a fact rest on the party 2025:JHHC:33979 11 who asserts it. The learned 1st appellate court ultimately recorded that the plaintiff has not been able to prove the parwana settlement in his favour and has not been proved the settlement proceeding initiated in his favour through official records. The learned 1st appellate court held that on such premise the property cannot be said to have settled in favour of the plaintiff. As the plaintiff has failed to discharge his burden of proving his best claim and on the basis of evidence of P.W.7, the said document cannot be said to be a genuine one. 32. The learned 1st appellate court thereafter considered the evidence of P.W. 4 and P.W. 7, and recorded that the Anchal report, being a public report, was admitted by both the parties and was marked Exhibit 3 and was a public document. The court also recorded that a perusal of exhibit 3 would make it clear that the plaintiff had filed a grievance and complaint before the Anchal Adhikari and pursuant thereto the Anchal Adhikari, Kuchai submitted his report stating the fact that the disputed plot had once been settled with the plaintiff in the Settlement Case No.35 of 1970-71, which was however, later in the year 1975, was settled in favour of the defendant. 33. The court recorded a finding that exhibit 3 leaves no room of doubt that land was subsequently settled with the defendant. The court further recorded that there was no whisper of any kind of fraud on behalf of the plaintiff that the defendant had played any misrepresentation in getting the subsequent settlement of suit land in his favour vide “Exhibit B” and further recorded that “Exhibit B” contained the writing of clerk Madan Mohan Prasad and signature of Anchal Adhikari, Abdhesh Kumar Singh. 34. The learned court was of the view that there was a specific finding of the learned trial court vide page 22 of the judgement that the earlier settlement of the plaintiff vide exhibit 1 being prior in time shall prevail but the 1st appellate court was of the view that such finding cannot be sustained in view of the principles laid down in the judgement reported in (1978) SC 556 that in case of conflict between old and new record of rights, the later entry will be presumed to be correct unless shown to be wrong. 2025:JHHC:33979 12 35. The court further recorded that the genuineness of settlement entries of Exhibit B in favour of the defendant was not attacked by the plaintiff on the ground of any fraud or forgery. The point of possession was also decided in favour of the defendant. 36. The learned 1st appellate court recorded that from the analysis of evidence, it was established by preponderance of proof that although the plaintiff was previously settled with the possession of the suit land of plot no.1149 vide exhibit 1 settlement Parwana dated 16.08.1970 in settlement case no.35 of 1970-71 and yet he lost his right, title and interest over the suit land because of the subsequent settlement of the suit land vide settlement Parwana dated 30.06.1975 in Settlement Case No.3 of 1976 that remained unchallenged, un- attacked on any ground of fraud, collusion, deceit etc. and ultimately, the three issues i.e. issue nos.7, 8 and 9 were decided against the plaintiff/respondent and the Title Appeal was allowed. Arguments of the appellants. 37. The learned counsel for the appellants while assailing the judgement passed by the learned 1st appellate court with reference to the substantial question of law involved in this case has submitted that the learned 1st appellate court has miserably erred in law by holding that the suit was to be governed by Article 58 of the Limitation Act, and therefore, the suit was barred by limitation, without meeting the reasons cited by the learned trial court to hold that the suit is governed by Section 65 of the Indian Evidence Act. The learned counsel has submitted that Article 58 of the Limitation Act is not attracted in the present case as the plaint was not only seeking any declaration but was also with an alternative relief of recovery of possession on the basis of title, and therefore, Article 65 was clearly attracted. 38. The learned counsel has further submitted that the 1st appellate court has also wrongly set aside the finding of the learned trial court with respect to the legality and validity of Exhibit 1 and has not met with the reasons cited by the learned trial court. Arguments of the contesting respondents. 2025:JHHC:33979 13 39. The learned counsel appearing on behalf of the contesting respondents has submitted that the judgement passed by the learned 1st appellate court is well discussed. He has in particular referred to the findings recorded in paragraph 8 to 16. 40. The learned counsel for the State has referred to the judgement passed by Hon’ble Supreme Court reported in (1999) 4 SCC 350 (Arumugham (dead) by lrs. And others Vs. Sundarambal and Anr.) paragraph 14, to submit that in second appeal, the judgement passed by the learned 1st appellate court cannot be interfered on the ground that the 1st appellate court had not come to close grips with the reasoning of the trial court. However, he has submitted that the substantial question of law as framed vide order dated 23.06.2009 is certainly required to be answered. Findings of this Court 41. After hearing the learned counsels for the parties and upon going through the pleadings as mentioned above, this Court finds that the plaintiff claimed settlement with respect to the suit property by virtue of order of settlement dated 16.08.1970 in Settlement Case No.35 of 1970-71 (exhibit-1) passed by the order of Sub-Divisional Officer and the settlement was issued by Anchal Padadhikri in the name of the plaintiff. This fact was denied by the defendants in their written statement vide paragraph 8 and the defendants denied the very issuance of settlement in favour of the plaintiff. 42. The plaintiff further in the plaint has specifically assailed the issuance of settlement in favour of the defendants vide exhibit B dated 30.06.1975 as the property was already settled in favour of the plaintiff vide exhibit-1 dated 16.08.1970 and it was asserted that defendant no.1 had managed to take settlement of the suit plot from the then Anchal Adhikari of Kuchai on 30.06.1975 and also that prior to issuance of such settlement, there was no publication or ‘Istehar’ calling for objection. Hence, the plaintiff could not file any objection to the issuance of settlement in favour of the defendants. 2025:JHHC:33979 14 43. The plaintiff sought relief seeking a declaration that defendant no.1 has not acquired any right, title or interest and possession with respect to suit land on the basis of settlement dated 30.06.1975 and the settlement was illegal, void ab initio and does not confer any title on him and also sought a declaration of plaintiff’s title and confirmation of possession over the suit land declaring that the settlement of suit land made in Settlement Case No.35 of 1971 was valid and also sought a relief of recovery of possession of the suit land if the plaintiff was found dispossessed. 44. As per the plaintiff, the cause of action arose on 15.03.1983 when the Executive Magistrate in a proceeding under Section 145 Cr.P.C. passed in Misc. Case No.174 of 1981 vide order dated 13.02.1983 declared the possession of defendant no.1 and the said order was confirmed in Cr. Rev. No.100 of 1983 vide order dated 08.06.1990 and ultimately in Cr. Misc. No.2384 of 1990 (R ) and finally in the month of January 1991 when defendant no.1 made an attempt to dispossess the plaintiff from the suit land. 45. Considering the aforesaid facts and circumstances and the nature of relief sought for by the plaintiff, this Court finds that the suit was not a simple suit for declaration of the settlement dated 30.06.1975 (exhibit-B) made in favour of the defendant as null and void but the plaintiff claimed independent title on the basis of previous settlement dated 16.08.1970 (exhibit-1) and also claimed recovery of possession if found dispossessed. The plaintiff claimed title on the basis of settlement order passed in Settlement Case No.35 of 1971 and filed the suit when defendant no.1 threatened to dispossess the plaintiff and the plaintiff was found not to be in possession in a proceeding under Section 145 Cr.P.C and the possession of the defendants was declared. In the suit, not only the title, but also the possession was under dispute. In such circumstances, the suit will not be governed by Article 58 of the Limitation Act but will be governed by Article 65 of the Limitation Act. 46. This Court finds that the learned trial court while considering the point of limitation and the cause of action while deciding issue 2025:JHHC:33979 15 nos.2 and 5 has considered these aspects of the matter and ultimately held that the suit will be governed by Article 65 of the Limitation Act. 47. The learned 1st appellate court, while referring to Article 58 of the Limitation Act and holding that the suit was barred by limitation, failed to consider that the suit was not a mere suit for declaration that the settlement dated 30.06.1975 (exhibit-B) in favour of the defendant no.1 was null and void but the plaintiff claimed title by virtue of settlement dated 16.08.1970 (exhibit-1) and sought a relief of recovery of possession based on his title. This Court finds that the learned 1st appellate court has erred in law in applying Article 58 of the Limitation Act to the suit and has erred in holding that the suit was barred by limitation. The learned 1st appellate court while dealing with the point of limitation and holding that the suit is governed by Article 58 of the Limitation Act has not met with the reasons cited by the learned trial court holding that the suit was guided by Article 65 of the Limitation Act. 48. So far as the merits of the case is concerned, this Court finds that the rival dispute between the parties revolved around claim of the plaintiff that the property was settled in favour of the plaintiff vide settlement dated 16.08.1970 (exhibit-1) in Settlement Case No.35 of 1970-71 and the rival claim of the defendants was on the basis of settlement dated 30.06.1975 (exhibit-B) in Settlement Case No.3 of 1975-76. 49. The learned trial court duly considered the materials on record including Exhibits 1 and 3. Exhibit 1 being the settlement in favour of the plaintiff and Exhibit 3 was the letter containing a report of Anchal Adhikari that a settlement was made in favour of the plaintiff vide settlement dated 16.08.1970 (exhibit-1) in Settlement Case No.35 of 1970-71. The trial court also considered the oral evidence and ultimately came to a finding that settlement was made in favour of the plaintiff and the settlement of defendant no.1 was at a latter point of time, and therefore, held the settlement of plaintiff was valid. The trial court also recorded that the plaintiff was dispossessed from the property as the possession was declared in favour of the defendants 2025:JHHC:33979 16 and consequently directed for recovery of possession in favour of the plaintiff. 50. So far as the learned 1st appellate court is concerned, the evidence of P.W. 2, who proved exhibit-1 was discarded by stating he could not have been a competent witness as at the relevant point of time he was minor. The court also recorded that the plaintiff had not brought any official record of the proceedings and held that the plaintiff had failed to discharge the burden of proving his claim. However, at the same time, the 1st appellate court referred to Exhibit 3, the report of the Circle Officer, which was an admitted document on record and also a public document as recorded by the learned 1st appellate court, which stated that the property was settled in favour of the plaintiff vide exhibit-1 and it was subsequently settled in favour of the defendant no.1 vide Exhibit B. The report of the Circle Officer at exhibit 3 was neither disbelieved nor discarded by the learned 1st appellate court. However, the learned 1st appellate court relied upon exhibit-B (the settlement in favour of the defendant no.1) only because it was in latter point in time by observing that entries in record of rights which are latter in point of time would prevail over the entries which are prior in point of time. The learned court was of the view that the learned trial court had wrongly held Exhibit 1 valid being prior in point of time and held that the subsequent entry in record of right will weigh more as compared to the old entry. 51. The 1st appellate court observed that the settlement made in favour of the defendant no.1 vide exhibit-B was not challenged by the plaintiff. However, from perusal of the plaint and also the judgement it is apparent that the plaintiff had asserted that Exhibit B was issued without issuing the ‘Istehar’ and therefore, the plaintiff could not raise any objection with respect to issuance of settlement in favour of defendant no.1. However, the 1st appellate court simply observed that exhibit B was not attacked by the plaintiff on ground of any fraud or forgery. Further, the plaintiff had specifically challenged the settlement made in favour of the defendant through exhibit B dated 2025:JHHC:33979 17 30.06.1975 as null and void and does not confer any title upon the defendant. 52. This Court is of the view that the aforesaid approach of the learned 1st appellate court is ex-facie perverse. The parties were claiming settlement through due process of law and were not claiming any right arising out of entries in record of rights. The plaintiff was claiming title by virtue of Settlement Case No.35 of 1970-71, while the defendant was claiming settlement by virtue of Settlement Case No.3 of 1975-76. Settlement documents were issued in favour of each one of them, and Exhibit 3, which has been duly considered and is an undisputed document itself reflected that the settlement was issued in favour of the plaintiff prior in point of time to that of defendant no.1. The report of the Circle Officer was an admitted document on record that the property was settled in favour of the plaintiff earlier in point of time which was the reason for the learned trial court to decree the suit. 53. The judgement passed by the learned 1st appellate court, while holding that the settlement in favour of the defendant was valid, not only suffers from misreading of the plaint and the written statement but also suffers from failure to consider the reasons given by the learned trial court in holding that the settlement in favour of the plaintiff was valid and also prior in point of time. 54. In view of the aforesaid discussions, this Court is of the considered view that the trial court had given sound reasons to hold that the suit was governed by Article 65 of the Limitation Act and not by Article 58 and has also given sound reasons to hold that the plaintiff would have the title as the settlement in favour of the plaintiff was prior in point of time and the report of the Circle Officer (exhibit- 3) which is an undisputed document on record also revealed that the settlement in favour of the plaintiff was prior in point of time. However, the learned 1st appellate court has wrongly held that the suit is governed by Article 58 of the Limitation Act and hence barred by limitation and has also wrongly held that the plaintiff could not prove the settlement in his favour and that the latter entry in record of rights 2025:JHHC:33979 18 would prevail over the previous entry. This case has nothing to do with the entries in record of rights but it is a case where the plaintiff and the defendant were claiming their title by virtue of settlement. The plaintiff was claiming settlement vide order dated dated 16.08.1970 passed in Settlement Case No.35 of 1970-71 and the defendant was claiming settlement vide order dated 30.06.1975 in Settlement Case No.3 of 1975-76. 55. The learned 1st appellate court has not met with the reasons assigned by the learned trial court, and further the reasons cited by the learned 1st appellate court to set-aside the judgement of the trial court and dismiss the suit, are perverse and cannot be sustained in law. 56. The substantial question of law is accordingly answered in favour of the appellants. Consequently, the judgement passed by the learned 1st appellate court is hereby set aside. 57. This appeal is allowed. (Anubha Rawat Choudhary, J.) 13.11.2025. Saurav/ Uploaded on 24.02.2026