1. The substantial question of law involved, formulated and to be answered in the plaintiffs' second appeal is as under: -

“Whether on the facts and in the circumstances of the case, when it was not disputed that the suit lands mentioned in the Schedule A & B were recorded in the name of the appellants/plaintiffs, the Courts below were justified in non-suiting the plaintiffs?”

(Parties hereinafter will be referred as per their status shown in the plaint before the trial Court.)

2. The plaintiff filed a suit for declaration of title and for recovery of possession stating inter alia that defendants No.1 to 3 have encroached and taken possession of the lands shown in red ink in the map annexed with the plaint i.e. Schedule A & B and as such, he is entitled for declaration of title and possession, as he is the title holder of the suit land and defendants No.1 to 3 have encroached upon the said land.

3. Defendants No.1 to 3 filed their written statement before the trial Court stating inter alia that though the suit land is registered in the name of the plaintiff, but during the lifetime of their ancestors, the suit land has been partitioned and is in possession of the defendants, partition is 100 years prior and the defendants' house and courtyard/kitchen garden were constructed on the said land and as such, the suit is liable to be dismissed.

4. The trial Court after considering oral and documentary evidence on record, came to a specific conclusion that the parties are related to each other and partition has already been effected before the parties as they are in possession as per the partition and since the order of the Naib Tahsildar has not been declared null and void, therefore, the plaintiff is not entitled for declaration of title and recovery of possession.

5. On appeal being preferred by the plaintiff/appellant herein, the first appellate Court affirmed the judgment & decree of the trial Court and clearly held that though the suit land is ancestral land of the parties in which partition has already been effected between the parties and defendants No.1 to 3 are in possession of the suit house after constructing house, kitchen garden and khalihan; partition took place prior to 50 years of the date of institution of suit; and also held that as per the demarcation report Ex.P-1, defendants No.1 to 3 are in possession and merely on the basis of mutation entries it cannot be held that the plaintiff is title holder of the suit land. Questioning that judgment & decree, second appeal under Section 100 of the CPC has been filed in which substantial question of law has already been formulated and set-out in the opening paragraph of the judgment.

6. Mr. Roop Naik, learned counsel for the appellants/LRs of the plaintiff, would submit that admittedly, the plaintiff's name is recorded in the revenue records, which has not been disputed by defendants No.1 to 3, therefore, both the Courts below are absolutely unjustified in dismissing the suit holding that there is prior partition and defendants No.1 to 3 are in possession as per prior partition allegedly affected between the parties and as such, on the basis of revenue records, decree ought to have been granted by both the Courts below.

7. None appeared for defendants No.1 to 3, though served.

8. Mr. Arun Sao, learned Deputy Advocate General and Mr. Adhiraj Surana, learned Deputy Govt. Advocate appeared for the State/respondent No.4.

9. I have heard learned counsel for the parties and considered the rival submissions and went through the record with utmost circumspection.

10. The plaintiff filed suit for declaration of title and recovery of possession on the ground that he is the title holder and defendants No.1 to 3 have encroached, rather they have encroached upon the land owned by the plaintiff which he got on partition, therefore, he is entitled for decree of title and recovery of possession. Both the Courts below after appreciating the documentary evidence and considering the oral evi