IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.164 of 2007 1. Smt. Dhinowati, wife of Toka Lal Mandal 2. Aghori Lal Mandal @ Aghori Mandal son of Toka Lal Mandal 3. Chand Prasad Mandal son of Toka Lal Mandal 4. Rajendra Prasad Mandal @ Rajendra Mandal son of Toka Lal Mandal, All residents of Bibiganj, P.S.Terhagachh,. District Kishanganj. …..Defendants 2nd party-Respondents 2nd Party- Appellants. Versus 1. The State of Bihar through the Collector, Kishanganj, at,P.O.,P.S. and District Kishanganj. 2. The Circle Officer (C.O.),Terhagachh,District Kishanganj. ….Defendants 1st party-Respondents 1st party- Respondents 1st Set. 3. Most. Sanjo Devi widow of Sri Lal Saha 4. Pradeep Kumar Saha 5. Ranjeet Kumar Saha 4 and 5 both sons of Late Sri Lal Saha 6. Rambha Devi 7. Parwati Devi 8. Sukho Devi 9. Rita Devi all daughters of late Sri Lal Saha 10.Shanti Devi widow of Late Sangla Yadav 11.Amit Kumar Yadav 12.Dharam Kumar Yadav, both sons of Late Sangla Yadav 13.Asha Devi wife of late Sangla Yadav. 14.Somni Devi widow of late Fakir Chand Saha 15.Manoj Kumar son of late Fakir Chand Saha 16.Mahanand Saha son of Late Fakir Chand Saha 17.Sarwan Kumar Saha son of Late Fakir Chand Saha No.16 and 17 minors represented through their mother and natural guardian Somni Devi, respondent no.14. 18.Tilo Devi daughter of late Fakirchand Saha 19.Dharm Lal Saha son of Late Chhutaharu Saha 20.Basudeo Prasad Saha son of Late Chhataharu Saha 21.Purnima Devi 22.Bilhani Devi 23.Lila Dev, daughters and legal heirs of late Chhutaharu Lal Saha. Respondents no.3 to 23 residents of Bibiganj, P.S. Terhagachh, District Kishanganj. …….Plaintiffs-Appellants-Respondents 2nd set. For the appellants : M/s Arun Kumar Ambastha and Devendra Prasad Sharma, Advocates. For the State : Mr. Sanat Kumar Mishra, A.C. to G.A.-2 For respondents 2nd set : Mr. Raghib Ahsan, Sr. Advocate with Khalid Ahsan, Advocate. 2 ----------- 10/ 08.10.2009 Heard learned counsel for the appellants, learned counsel for the State of Bihar and its authorities respondents 1st set as well as learned counsel for the private respondents 2nd set. 2. I.A. No.5773 of 2009 has been filed on behalf of the appellants for deleting the name of appellant no.1 Smt. Dhinowati, who is said to have died on 27.11.1999 leaving behind three sons as her heirs and legal representatives, who are already on record as appellant nos. 2 to 4. In the said circumstances the said interlocutory application is allowed, let the name of appellant no.1 be expunged. 3. This second appeal has been filed by defendant 2nd party-respondent 2nd party-appellants challenging judgment and decree dated 25.06.2007 by which the learned Additional District Judge-cum-Fast Track Court No.V, Kishanganj, allowed Title Appeal No.60 of 1998 and set aside judgment and decree dated 11.06.1998 by which the learned Munsif-I, Kishanganj, dismissed Title Suit No.36 of 1995. 4. The aforesaid title suit was filed by the plaintiffs- appellants-respondents 2nd set for declaration of their raiyati title over the suit land and also for declaration that settlement made by defendant 1st party (State of Bihar and its authorities) in favour of defendant 2nd parties (private defendants-appellants in the instant second appeal), was fraudulent, collusive and was fit to be annulled. The said suit was contested by only defendant 1st party, 3 namely State of Bihar and its authorities whereas defendant 2nd party (appellants in the instant second appeal) did not contest even after valid service of notice and finally vide judgment and decree dated 11.06.1998 the learned Munsif-I, Kishanganj dismissed the suit. 5. Against the aforesaid judgment and decree of the trial court the plaintiffs filed Title Appeal No.60 of 1998 in which defendants 1st party who were respondents appeared and contested and after considering the matter in detail including the pleadings and evidence of the parties the learned Additional District Judge- cum-Fast Track Court-V, Kishanganj, allowed the appeal on contest, set aside the judgment and decree of the learned trial court and allowed the claim of the plaintiffs. The instant second appeal has been filed by defendant 2nd party challenging the judgment and decree of the learned court of appeal below. 6. It is not in dispute that the property originally belonged to the predecessor of the plaintiffs and the defendants had claimed that the said property was subject matter of the ceiling case in which it was surrendered as surplus by the plaintiffs and only thereafter it was settled by defendants 1st party, namely the State of Bihar and its authorities in favour of defendant 2nd party (appellants) but none of the two sets of the defendants could produce any document before the court to show that the suit property was ever subject matter of any ceiling proceeding or it was ever surrendered as surplus by the plaintiffs voluntarily. 7. In the said circumstances, the pleadings of the 4 defendants were not supported by any evidence, hence the learned court of appeal below was quite justified in holding that it was settled principle of law that contesting parties either plaintiffs or defendants must prove their case by cogent evidence and if no evidence was adduced in support of the claim, the pleadings will not be taken in consideration and will not be relied and hence the reliance of the trial court on the pleadings of the defendants not based upon any evidence was absolutely bad in law. The learned court of appeal below had also rightly come to the conclusion that the rent receipts (Exts.1 series) granted in favour of the plaintiffs were wrongly discarded by the trial court, they cannot be brushed aside only because the plot numbers were absent failing to appreciate that there was no rebuttal by pleadings or evidence to the said rent receipts. 8. The learned court of appeal below had also specifically found that on the appointed date i.e. 09.09.1970 neither Birju Sah nor Bangowati and Fateh Lal were lawful owners of the land in issue as they had already sold the suit property to plaintiff nos.1 and 2 and ancestors of plaintiff nos.3 to 12 by virtue of registered sale deeds dated 23.12.1959, 17.06.1961 and 10.02.1967 and thus the said transferors had no right to surrender the suit land in the ceiling proceeding instituted about a decade thereafter and hence the settlement made by the State of Bihar in favour of defendant 2nd party was rightly held to be improper, illegal and vesting no right or title on the alleged settlees. Furthermore, in the absence of any notice to the 5 transferees who had purchased much before the appointed date there was no occasion for declaring their land as surplus of their transferors, nor any such notification was produced in the instant case. The learned court of appeal below had rightly come to the conclusion that Toka Mandal was not recorded sikmi raiyat of sikmi khata no.133 under kaimi khata no.135, hence there was no question of applicability of section 22 of the Ceiling Act also. 9. In the aforesaid facts and circumstances this court does not find any illegality in the impugned judgment and decree of the learned court of appeal below, nor does it find any substantial question of law involved in the instant second appeal. Accordingly, this second appeal is dismissed. harish/ ( S. N. Hussain, J. )