JUDGMENT :

Heard the learned counsel for the appellants.

2. No one turns up on behalf of the respondents in spite of repeated calls. Hence, this appeal is heard and disposed of ex-parte.

3. This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree of the reversal dated 27.03.2006 passed by Additional District Judge-I, Rajmahal, in Title Appeal No.24 of 1992 by which the learned first appellate court dismissed the appeal and decreed the suit of the plaintiffs filed with the prayer for:- (a) decree declaring the title of the plaintiff over the suit land; (b) possession of the suit land through court and mesne profit of Rs.500/- and future main profit and cost of the suit.

4. The brief fact of the case is that the appellants before this Court were the original defendants first party and the respondents herein are the original plaintiffs and the plaintiffs and defendants first party are Santhals and they are governed by customary law in matter of succession and inheritance. The Deputy Commissioner, Sahibganj is the defendant second party of the suit. It is admitted case of both the plaintiffs and defendants that Dhani Maghiyan (also known as Dhani Marandi) of whom the plaintiffs are the descendants and Mati Maghiyan (Mati Marandi) of whom the defendants are the descendants were two sisters being the daughters of Narayan Murmu. It is the case of the plaintiffs that the suit land belongs to them through their ancestor Dhani Maghiyan whereas the land of the ancestors of the defendants namely Mati Maghiyan was recorded separately under Jamabandi No. 23. It is further the case of the plaintiffs that the defendants illegally claimed the suit land for which R.E. Case No.20/1989-90 was filed in the court of Sub-Divisional Officer, Sahibganj. The Circle Officer, Taljhari accepted the case of the plaintiffs and recommended for eviction of the defendants- first party from the suit land but the Sub-Divisional Officer, Sahibganj in his order dated 10.09.1990 held that since the title of the suit land is involved in the matter and as such the matter may be decided in a separate suit. The plaintiffs claimed that they have been paying up-to-date rent to the Land Revenue Department in respect of the suit land and having rent receipts and their names have been entered in the settlement operation which was going on under Jamabandi No.23. Hence, the plaintiffs filed the said suit.

5. The case of the defendants on the other hand is that the plaintiffs have lost their title over the suit land for having no possession over the suit land for more than 40 years.

6. On the basis of the rival pleadings, the learned trial court framed the following seven issues:-

(1). Is the suit as framed maintainable?

(2). Has the plaintiff got any cause of action for the suit??

(3). Has this court got jurisdiction to hear the suit if so does section 63 of the S.P.T. Act not hit it?

(4). Has the defendant not acquired title by adverse possession?

(5). Is the custom of Taben Jom among Santhals not prevalent in the matter of gift to his sister by Santhal recorded tenant?

(6). Is the plaintiff rightful owner of the suit land and entitled to get a decree as prayed for?

(7). To what relief or reliefs the plaintiff is entitled to get?

7. Since the defendants undertook the plea of adverse possession, so the defendants began to adduce the evidence. From the side of the defendants, six witnesses were examined. The certified copy of Khatiyan (record of rights) of Jambandi No.23 was proved and marked exhibit from both the sides. From the side of the plaintiffs the Khatiyan (record of rights) was marked Ext. 1 and from the side of the defendants the Khatiyan (record of rights) was marked Ext. A. The plaintiffs also examined one witness. The Khatiyan (record of rights) which has been marked Ext. 1 shows that Jambandi No.23 stands recorded in the name of ancestors of the plaintiffs.

8. The learned trial court took up issue Nos. 4 and 5 toge