The court upheld that specific statutory provisions prevail over customary rights when the latter cannot be established, affirming the first appellate court's findings on title and possession.

JUDGMENT :

(Anil Kumar Choudhary, J.)

Heard the learned counsel for the appellant.

2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of reversal dated 04.07.2012 passed by learned Principal District Judge, Bokaro in Title Appeal No.10 of 2006 whereby and where under the learned first appellate court has set aside the judgment and decree of dismissal of the suit passed by the learned trial court being the Munsif, Bokaro in Title Suit No.06 of 1998 dated 07.03.2006 and decreed the suit of the plaintiff filed with a prayer for declaration of the title over the property described in Schedule 3 of the plaint and for confirmation of the possession over the same and permanent injunction restraining the principal defendants from interfering with the possession of the plaintiff over the property described in Schedule 3.

3. The brief fact of the case is that the plaintiff filed Title Suit No.06 of 1998 in the court of Munsif, Bokaro with the aforesaid relief. The case of the plaintiff in brief is that Sudu Mahatha and his two brothers namely Teju and Banmali were recorded raiyats of Cadastral Survey Khatiyan No.23. Banmali died unmarried and Teju died issueless and Sudu Mahatha became the sole owner of the property described in Cadastral Survey Khatiyan No.23. Sudu Mahatha died leaving behind his two sons namely Satish Sharma being the plaintiff No.1 and Motilal Sharma being the proforma defendant No.4. Korfa Khatiyan was prepared in the name of two sons of Gopal Rajwar namely Sagar Rajwar and Nagar Rajwar. After the death of Sagar Rajwar, his brother Nagar Rajwar left the possession of Korfa tenancy in favour of the raiyat and thus, Sudu Mahatha came in Khas possession of the property described in Schedule- 1. The plaintiff No.1 by registered sale-deed dated 08.02.1980 sold away half of the properties of C.S. Plot Nos.1790, 1791 and 1792 to the defendant No.3. The plaintiff No.1 and proforma defendant No.4 by registered sale-deed jointly sold half of the properties bearing C.S. Plot Nos.1790, 1791 and 1792 to Gendia Rajwarin- wife of defendant No.2 and Yudhishtir Rajwar- son of defendant No.1. The plaintiff sold away the entire property of C.S. Plot No.2396 to one Lakhu Gorain who after purchase, sold away 0.8 acres of property out of C.S. Plot No.2396 to the plaintiffs for valuable consideration vide sale-deed dated 20.10.1989 and the same is the suit property described in Schedule 3 of the plaint. The further case of the plaintiff is that the plaintiff is in the peaceful possession of the property. The defendant Nos.1 and 2 in collusion with others and in order to lay a claim over the property of Korfa Khatiyan No.33, executed and registered a deed of indenture dated 20.01.1959 in favour of Government of Bihar for establishing a school but the Government of Bihar did not attempt to take possession over the suit land. The indenture was collusive and inoperative and illegal transaction. As the defendants attempted to create disturbance, the plaintiff filed the suit.

4. The defendant Nos.1 to 3 in their joint written-statement challenged the maintainability of the suit on various technical grounds. They denied the claim of surrender of the suit land by Nagar Rajwar to the Raiyat. The defendants claimed having full right of hereditary as well as transferable right of an occupancy raiyat. The defendants pleaded that the sale-deed executed by the plaintiff Nos.1 and 2 are collusive and sham transactions.

5. On the basis of the rival pleadings of the parties, the learned trial court framed the following ten issues:-

(I) Is the suit as framed maintainable?

(II) Have the plaintiffs cause of action to sue?

(III) Is the suit barred by law of limitation, principle of waiver, estoppel and acquiescence?

(IV) Is the suit barred by Section 34 of the Specific Relief Act?

(V) Is the suit bad for misjoinder or non-joinder of parties?

(VI) Has the suit been properly valued?

(VII) Ar