JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard Mr. Amar Kumar Sinha, learned counsel for the appellants/plaintiffs and Mr. Rahul Kumar Gupta, learned counsel for respondent no. 1/defendant.

2. This second appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 14.08.2000 (decree signed on 22.08.2000) passed by the learned Additional Judicial Commissioner, Lohardaga dismissing Title Appeal No. 96/B of 1990/3 of 1994 and confirming the judgment and decree dated 09.08.1990 passed by the learned Sub-Judge-II, Lohardaga in Title Suit No. 138 of 1986.

3. The appellants/plaintiffs instituted Title Suit No. 138 of 1986 for declaration of the right, title and interest of Ramdhani Sahu, plaintiff no. 1 with respect to the properties in suit and also for a decree for recovery of possession of the same and for putting him in separate khas possession of the same. The suit was on contest dismissed by the learned trial court vide judgment dated 09.08.1990. Aggrieved with that judgment, the appellants/plaintiffs filed Title Appeal No. 96B of 1990/3 of 1994 and vide judgment dated 14.08.2000, the learned appellate court has dismissed the title appeal and affirmed the judgment of the learned trial court. Aggrieved with that judgment, the appellants/plaintiffs have filed the present second appeal.

4. This second appeal was admitted vide order dated 08.06.2001 on the substantial question of law “Whether in view of the finding recorded by the courts below that defendants were in possession at least from the year 1978, the present suit having been filed in 1986, was barred by time?”

5. The appellants/plaintiffs have instituted the title suit alleging therein that the land of R.S. Khata No. 170, R.S. Plot no. 1817 area 6.31 decimals situated at village Bagru, P.S. Lohardaga, District Ranchi now Lohardaga have been recorded in the revisional survey record of rights as Gairmajarua malik of the then landlord Maharaja Uday Pratap Nath Sahdeo of Chotanagpur Raj. The then landlord Maharaja Uday Pratap Nath Sahdeo orally settled the 7.02 decimals of land out of plot no. 1824 and the entire plot no. 1817 of Khata no. 170 of the said village to Gouri Charan Sahu father of the plaintiff no. 1, which was confirmed by grant of rent receipt coupled with the delivery of possession in the year 1950. Gouri Charan Sahu was in exclusive possession of the aforesaid land and remained in possession so long he was alive and after his death his three sons, namely, Ramdhani Sahu, Sheo Nandan Sahu and Ram Kumar Sahu jointly inherited the properties left by him including the suit land. It was further alleged that there was a partition between the plaintiff/appellant no. 1 and his brother, namely, Sheo Nandan Sahu and Ram Kumar Sahu by virtue of registered deed 21.08.1972 in which lands measuring 6.00 acres out of plot no. 1817 of Khata no. 170 of village Bagru were allotted to the share of plaintiff no. 1 who came into separate exclusive possession of the same. The plaintiff no. 1 is regularly paying rent to the State of Bihar with respect to the suit land. It was also alleged that the defendant no. 1 wanted to erect structure over 0.10 decimal of land out of the said plot, as a result of which a proceeding under Section 144 Cr. P.C. was started between the plaintiff no. 2 and defendant no. 1 vide case no. 18/1978. The said proceeding was later on converted into a proceeding under Section 145 Cr. P.C. The learned S.D.O. without considering the case of the plaintiffs erroneously passed an ex parte order on 17.09.1981. In the said proceeding, the defendant no. 1 in his written statement falsely alleged that he was permitted by ex-landlord in the year 1943 to construct a kacha house and he constructed house and is living there since then. As a matter of fact the defendant no. 1 never came into possession of any portion of plot no. 1817 nor he constructed any structure over the same. The house was constructed by Gouri Charan Sahu in the year 1950. The orde