A suit for declaration of title and confirmation of possession, where the correction of the record of rights is merely incidental, is not barred by Sec.258 of the Chotanagpur Tenancy Act, 1908.

Uday Sinha, J.

1. This is an appeal by the plaintiffs against a judgment of affirmance.

2. The plaintiffs filed suit for declaration of title and confirmation of possession as also for declaration that survey entry in regard to the lands in suit was incorrect. The lands in suit originally formed part of plot 2 within khata 25 in village Genrua within Patawala police station in the district of Singhbhum. This was a large plot measuring more than 100 bighas. Revisional survey in regard to these lands took place in 1964. In that survey old plot 2 was split into several parts, Three of them were plots 9, 10 and 1042. The plaintifft claim (sic)title and possession over 3.60 acres in plot 9, 0.10 acre in plot 10 and 3.80 acres in plot 1042. The total of the lands in suit is 7.50 acres. The boundaries of the lands in suit as mentioned in the plaint are as follows:

North: Tisco land

South : Land of Sahdeb Das and others.

East : Pahar (Bihar Sarkar Forest Department),

West : Tisco land.

3. The case of the plaintiffs is that Mahendra Nath Das, the ex-landlord settled 15 bighas of land out of plot 2 with Sudbamoy Dutta and Dhrubmoy Dutta in 1342 B.S. which is equivalent to 1939. After taking settlement, the plaintiffs entered into possession. While being in possession, the plaintiffs claimed to have extended their cultivation and acquired possession over 7 bighas more of plot No. 2 besides 15 bighas settled with them. According to the plaintiffs, they were not given any notice in regard to the survey settlement which took place in 1964 in the district, in that survey, the plots in dispute were recorded as Unabad Mali Bihar Sarkar. The plaintiffs assertion is that they did not know about it but in January, 1969 the Karmachari started interfering with their possession. Hence, the suit was filed in April, 1970.

4. The real contesting defendant in the suit was the State of Bihar ; others were pro forma defendants Shibram Dutta, who was settlee of the lands along with Dhrubmoy Dutta, disclaimed all interests in the suit lands.

5. Upon these pleadings, the parties went to suit. The trial court found that the suit was barred by the provision of Sec.258 of the Chotanagpur Tenancy Act, 1908 (hereinafter to be referred to as the Act). The trial court also found that the plaintiffs had proved their story of settlement. It, however did not accept the claim of the plaintiff to have converted the land to their use as cultivable and the lands still remained Patri. Needless to say, the trial court rejected the story of Korkar in respect of 7 bighas of land as set up by the plaintiffs. The trial court rejected the stand of the State the suit was barred in terms of Article 113 of the Limitation Act, l963 (hereinafter to be called the new Limitation Act). Upon those findings, the trial court dismissed the suit with costs.

6. On appeal, the lower appellate court also held that the suit was barred in terms of Sec.258 of the Act. The lower appellate court also, in agreement with the trial court, found that the lands had not been appropriately defined and, therefore the plaintiffs could not be granted any relief. The lower appellate court, however, did a little better than the trial court and held that the plaintiffs had failed to prove the story of settlement of 15 bighas of land. Needless to say, it also held that the story of reclamation of land measuring 7 bighas out of the suit land was not acceptable. The lower appellate court thus dismissed the appeal.

7. Being aggrieved by the judgment and decree of the learned Additional Subordinate Judge, Jamshedpur, on appeal the appellants moved this Court by the present appeal. At the time of admission, the following substantial questions of law were framed:

1. Whether the courts below were justified in dismissing the suit on the ground that the description of the suit properties was vague; and

2. Whether, upon the facts and circumstances of this case, the suit was barred under Sec.258 of the Chotanagpur T