JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. 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 against the respondents.

3. This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred against the judgment and decree dated 31.03.2010 passed by learned Additional District Judge, F.T.C. (I), Garhwa in Title Appeal No. 09 of 2006 whereby and where under the learned Additional District Judge, F.T.C. (I), Garhwa in the judgment of concurrence, has dismissed the appeal and confirmed the judgment and decree passed by the Sub-Judge II, Garhwa in Title Suit No. 33 of 1986 dated 02.03.2006.

4. The case of the plaintiffs in brief is that Bakhori Jolaha was recorded as occupancy raiyat of the suit land during the settlement operation in the year 1917-18. Bakhori Jolaha had two sons and one daughter and the plaintiff and the proforma defendant No. 21 are the descendants of Bakhori Jolaha. It is the further case of the plaintiffs that on the death of Bakhori Jolaha, the suit land devolved upon them as per the shares under the Muslim Law. It is also the case of the plaintiffs that in the year 1974-75, the State of Bihar acquired 8 decimals of land of Plot No. 639 of the plaintiffs vide Case No. 08 of 1974-75 and compensation has been paid to the plaintiffs by recognizing the right, title and possession of the plaintiffs over the suit land and there is no objection by the defendants against such payment of compensation to the plaintiffs and acquisition of land by the Government. The plaintiff Nos. 1 to 3 filed a petition before the Circle Officer, Garhwa vide Case No. 16 of 84-85 for opening of demand of the suit land in their favour but the same was rejected by the Circle Officer, Garhwa. A connected appeal was filed before the D.C.L.R. but the same was also rejected upon objection being made by one Raj Kishore Lal whose sons are the original defendant Nos. 2, 3 and 4. The plaintiffs denied the surrender of land by them or their ancestors. The plaintiffs filed the suit with the following reliefs:

(A) That the plaintiffs together are the occupancy raiyats of the suit land having 3/5th share therein and that the defendants 1 to 10 have no right, title and interest therein. Further any transaction by late Raj Kishore Lal in favour of defendants 6 to 20 is void having no legal consequence and not binding upon the plaintiffs.

(B) The plaintiffs’ possession in respect of the suit land be confirmed. In alternate if it is necessary for the plaintiffs to get recovery of possession in respect of the suit land, the Court be pleased to grant them the relief of obtaining delivery of possession through process of the Court.

5. The defendant Nos. 2 to 5 challenged the maintainability of the suit on various technical grounds and pleaded that the rent for the lands of Khata No. 112 fell in arrears of rent for the years 1936 to 1940 and the ancestors of the plaintiff being not in a position either to cultivate the land themselves or to clear off the arrears of rent to the landlord, orally surrendered the same to Akhauri Jagdeo Sahay the head and karta of the joint Hindu family consisting of himself and his brothers and as a token of surrender handed over the original parcha (record of rights) which was issued to their father during survey and settlement operation. Subsequently, they executed a Yadastnama of the said surrender on 03.06.1940. The defendants further pleaded that since the surrender neither the plaintiffs nor the defendant Nos. 21 and 22 or anybody in the line of the two sons of the recorded tenants ever came in possession of any part of the lands of Khata No. 112 in question. The defendants further pleaded that only 0.23 acres of plot No. 639 was acquired in the year 1974-75 and not 0.08 acres as claimed by the plaintiffs vide Case No. 8/74-75 and the compensation of the entire 0.23 acres of land was given to