JUDGMENT :

1. Appellants are the Plaintiffs who have preferred the instant appeal against the judgment and decree passed in Title Appeal No. 17/2009 affirming the judgment and decree of dismissal of Title Suit No. 15/1994.

2. The plaintiffs filed the suit for declaration of rights, title and possession of the land pertaining to Plot No. 35 under Khata No.2 and land of Plot Nos. 43 and 45 under Khata No. 16 of village-Cheriahan which was recorded as Gairmazarua Malik land during last cadastral survey.

3. The claim of title by the plaintiff over the suit land is founded on the plea that Most. Dhanwanti Kunwar W/O of Late Dinesh Pathak got the suit land reclaimed by her sons. The rent was assessed by the C.O. Manjhiaon and was realised from the date of vesting. Most. Dhanwanti Kunwar died leaving behind the plaintiffs and daughter Bacho Devi who relinquished her interest in favour of plaintiffs and they came in possession of all the properties. The plaintiffs applied for mutation which was allowed in Mutation Case No. 568/88-89. The Jamabandi ran up to 1993 when the Additional Collector, Garhwa cancelled the demand on the petition filed by Uma Shankar Pathak and his brother in Misc. Case No. 90/88-89. Plot No. 44 under Khata No. 1 was Bakasht Land of the ex-proprietor Bhaiya Rudra Pratap Deo and after his death his son succeeded to the estate who by registered sale Deed No. 2070 dated 01.04.59 transferred the land to the plaintiff. Plot Nos. 45 & 44 have been amalgamated with Plot No. 281 of village Bakoia. The name of Most. Dhanwanti Kunwar was mutated by Mutation Case No. 280/59-60. The wrong demand that was created in favour of Rajeshwar Choubey earlier was corrected in the name of Dhanwanti Kunwar which has been annulled by A.C., Garhwa. Resultantly, C.O., Manjhaion has wrongly struck of the name of plaintiff with respect to the Plot No. 44 which was not the order of defendant no.2.

4. The case of the defendants that Bhaiya Raj Kishore Deowas, Khewatdar No. 1 of village-Cheriyan, Khewatdar No. 2/1 and 2/2 where Bhagyat Ram and Thakur Ram Pathak of village-Bakoia having part 8 annas each. Bhaiya Raj Kishore Deo had nothing to do with the suit land the averment of reclamation of land by Most. Dhanwanti Kunwar has been denied. Circle Officer had no jurisdiction to asses rent of Gairmazarua Malik land in favour of anybody beyond June, 1996 at as it had been withdrawn by the Govt. Notification dated 16.06.1966. The Zamabandi of plaintiffs was found illegal, baseless, unwarranted, bogus and cancelled in Misc. Case No. 90/89-90. The Defendants are the heirs and descendants of ex-landlord of Khewat No.2/2 and they were and are in possession of the suit land. No khata was opened in the name of the plaintiff. Plot No. 44 never belonged to the ex-proprietor of Nagar Utari so they are not bound by any sale deed alleged to have been executed in favour of Dhanwantri Kunwar. Title Suit No.5/94 filed by the plaintiff against these defendants was also rejected under Order 7 Rule 11 C.P.C. This fact has been suppressed by the plaintiff.

5. On the basis of the pleadings of the parties the following material issues were framed:

(i) Have the plaintiffs got valid cause of action for the suit?

(ii) Have the plaintiffs right title and possession over the suit land?

(iii) Is the suit barred under Sections 91 and 258 of C.N.T. Act?

(iv) Is the Additional Collector competent to cancel the Jamabandi running for the more than 20 years?

6. On the material issue whether the plaintiff has right, title and possession over the suit land and the Additional Collector was competent to cancel Jamabandi, the trial court recorded the finding of fact that the Circle Officer had no jurisdiction after 1966 to assess rent of Gairmazarua Malik land in view of the State Notification dated 16.06.1966 vide E –E/Lagan-iv-4012/66-5028 in supersession of the earlier Govt. Notification of 11.06.1959. No rent receipt in pursuant to Sale Deed No. 959 (Exhibit-2) relating to Plo