IMPORTANT POINTS
(1) If a written statement is not filed, Order 8 Rule 10 CPC does not postulate a Judgment to be pronounced and decree passed automatically.
(2) Second Appeal – High Court cannot entertain a second appeal under Section 100 of Civil Procedure Code unless a substantial question of law is involved.

JUDGMENT (CAV)

This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred against the Judgment dated 25.09.2018 and Decree 04.10.2018 passed by Additional District Judge-VIII, Gaya in Title Appeal No. 14 of 2017 (09 of 2008) dismissing the appeal and affirming the Judgment dated 12.12.2007 and decree dated 20.12.2007 passed by Munsif – IIIrd, Gaya in Title Suit No. 8 of 1997, whereby and whereunder the suit was dismissed on contest.

2. The appellants were the plaintiffs in the Trial Court who had filed the suit, inter alia, for declaration of right, title and interest of plaintiffs over the suit land (detailed in Schedule- 1 of the plaint) and for confirmation of possession over the same.

3. The case of the plaintiffs/ appellants is that C.S. Khata No. 47 having C.S. Plot No. 195 finds recorded in the name of one Marchhu Gope and C.S. Khata No. 85 having C.S. plot No. 196 finds recorded as ‘Gair Mazarua Thikedar’ in C.S. record of rights and in possession of the Bishwanath Narain Singh. Marchhu Gope surrendered his raiyati interest in the land to the landlord Bishwanath Narain Singh of Sahbajpur estate. The further case of plaintiffs is that the said Bishwanath Narain Singh settled both the suit plots in favour of the brother of the plaintiffs namely, Khirodhar Gope and possession was also delivered to him on 11.12.1948 and a memorandum of the transaction/ settlement was also issued as hukumnama. The name of the settlee was entered into sherishta of Ex-landlord and rent receipts were also issued to the settlee for the payment of rent. After sometime both the plots were amalgamated by the settlee into a block and settlee also cultivated the land so settled. The settlee-Khirodhar Gope died unmarried and issueless leaving behind his brothers, the plaintiffs, who succeeded to the suit land and continued cultivation. During the revisional survey C.S. plots No. 195, 196 were converted into R.S. plot No. 359 admeasuring an area of 89 decimal and finds recorded under R.S. Khata No. 162 but wrongly in the name of ‘Bihar Sarkar’; and it also recorded in the last column as ‘Purani Parti’.

4. The plaintiffs claimed that they remained in continuous cultivating possession of the suit land and they even have perfected the title by adverse possession. The cause of action arose on 11.10.1996 when the plaintiffs went to pay the rent then revenue employee disclosed to the plaintiffs of wrong entry of the suit land in revisional record of rights, and refused to grant the receipt and threatened the plaintiffs to dispossess from the suit land. The defendants not filed written statement despite appearance, hence, the hearing of the suit proceeded ex parte against the defendant under Order 8 Rule 10 CPC.

5. The Trial Court on analysis of evidence given finding that there is nothing on the record to show as to when and how the recorded Raiyat (Marchhu Gope) relinquished his raiyat right over only one plot no.-195 and when the ex-landlord resumed possession. With respect to plot no. 196, it is stated that from exhibit-8 it is not clear as to how the alleged landlord Kumar Bishwanath Narayan Singh was thikedar of the said land. So the very source of derivation of title by Khirodhar Gope is vague and confused one. Furthermore, if the said ex- landlord had settled the land, then he would have submitted the return in the name of settlee and on that basis Jamabandi/demand would have been opened in his name but the same has not come on the record.

6. The R.S. Khatiyan stands recorded in the name of State of Bihar and there is presumption of correctness with regard to entry in Khatian subject to rebuttal but here in the suit R.S. Khatian published in year 1978 is remained unrebutted. The suit was filed in year 1997 i.e. 19 years after publication of the khatian and thus hopelessly barred by law of limitation. Accordingly, the Trial Court found the suit not maintainable and the plaintiff have got no cause of action for the suit and t