JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 22.05.2009 passed by learned Additional District Judge, Fast Track Court, Rajmahal, in Title Appeal No. 24 of 2007 by which in the judgment of reversal, the learned first appellate court has allowed the appeal and set aside the judgment and decree passed by the trial court being the Court of Sub-Judge II, Rajmahal in Title Suit No. 41 of 2001.

3. The case of the plaintiffs in brief is that the plaintiffs are the heirs and successors of Huka Tudu son of Raska Tudu. They also admitted that Poma Tudu is the daughter of recorded tenant-Huka Tudu. The further case of the plaintiff is that Poma Tudu was given in marriage with Sufal Soren in ordinary form of marriage. The daughter of Poma Tudu namely Mongli Soren was also given in marriage in ordinary form of marriage. Out of the two marriages of Mongli Soren, her first marriage was with Singrai Murmu and after his death she married with Bolai Murmu whom she married by way of “Lapang Marriage.” The plaintiff contended that in the last settlement before filing the suit, vide M.P. Case No. 140 of 1995, the suit land was illegally recorded in the name of defendant being the heir and successor of the recorded tenant-Huka Tudu. The defendant claimed title over the suit land on the basis of the order passed by the Assistant Settlement Officer (A.S.O.) in M.P. Case No. 140 of 1995. It is further the case of the plaintiffs that the defendant obtained the said order from the Assistant Settlement Officer in M.P. Case No. 140 of 1995 fraudulently. Hence, the same is null and void under Section 44 of the Indian Evidence Act. The plaintiffs prayed for the following reliefs:

(i) It be declared that the plaintiffs are the rightful owner and heir of Late Huka Tudu and defendant/first party is not the heir of Late Huka Tudu.

(ii) A decree of permanent injunction restraining the defendant/first party from claiming himself as lawful heir in the property of Late Huka Tudu.

(iii) Confirmation of possession of the plaintiffs over the suit land and if the court finds that the defendant/first party is in possession or the defendant/first party comes in possession of the suit land then the possession of the same through court.

4. Perusal of the record reveals that after notice, the defendants appeared in the suit on 20.05.2002 but neither did immediately file the written statement nor prayed for time to file the written statement. On 13.06.2002, the suit was fixed for filing the written statement of the defendants but as the defendants did not file the written statement till 13.11.2002, hence, the defendants were debarred from filing the written statement but subsequently on 12.05.2004, the defendants filed the written statement but as the same was not moved, the written statement was kept in the record. The defendants were allowed to cross-examine the witnesses of the plaintiffs and from the cross-examination of the witnesses by the defendants, the claim of the defendants appeared to be that of Poma Tudu was the sister of the recorded tenant-Huka Tudu son of Lachhu Tudu. Poma Tudu married Sufal Soren in ‘Gharjamai’ form of marriage and thereafter she was blessed with two daughters namely Bihia Soren and Mongli Soren. Mongli Soren was married with Bolai Murmu and blessed with Shyam Murmu who is the defendant/first party in the suit.

5. In support of their case, the plaintiffs proved the documents which were marked Ext.1 to 4/d. Ext.4/b is the ‘purcha’ relating to the suit property which was earlier in the name of Huka Tudu son of Lacchu Tudu but in the same, the name of Huka Tudu son of Lachhu Tudu has been score cut and the name of Huka Tudu son of Raska Tudu has been mentioned who is the father of the plaintiffs. Ext.3 is the Genealogical Certificate issued by the Circle Officer, Taljhari to the effect that the father of the plainti