IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.146 of 2008 1. The State of Bihar through the Collector, Kishunganj 2. The Circle Officer, Terhagachh, Dist. Kishanganj Defendants Ist party- Respondents Ist party- Appellants Versus 1. Most Sanjo Devi w/o Sri Lal Saha 2. Pradeep Kumar Saha 3. Ranjeet Kumar Saha 4. Rambha Devi 5. Parwati Devi 6. Sukho Devi 7. Rita Devi All D/o late Lal Saha 8. Shanti Devi w/o Late Sangla Yadav 9. Amit Kumar Yadav 10. Dharam Kumar Yadav both S/o Late Sangla Yadav 11. Asha Devi w/o of late Sangla Yadav 12. Somni Devi w/o of late Fakir Chand Saha 13. Manoj Kumar 14. Mahanand Saha 15. Sarwan Kumar Saha All s/o of late Fakir Chand Saha 16. Tilo Devi 17. Dharm Lal Saha 18. Basudeo Prasad Saha 19. Purnima Devi 20. Bilhani Devi 21. Lila Devi All d/o W/o Chhutaharu Lal Saha All resident of Village Bibiganj PS Terhagachh, Dist. Kishanganj Plaintiffs- Appellants-Respondents Ist party 22. Smt Dhinowati W/o Toka Lal Mandal 23. Aghori Lal Mandal 24. Chand Prasad Mandal 25. Rajendra Prasad Mandal All sons of Toka Lal Mandal All resident of Village Bibiganj PS Terhagachh, Dist. Kishanganj Defendants 2nd party-Respondents 2nd party- Respondents 2nd party ----------------------- For the appellants: Mr Anil Kumar Jha, Advocate Mr Udai Bhan Singh, Advocate For the respondents Ist set : None For the respondents 2nd set: Mr Najmul Hoda, Advocate ------------------- 05/ 01.02.2010 Heard learned counsel for the appellants, namely, the State of Bihar and its authority and also heard learned counsel for private respondents 2nd set, both of whom were defendants in the title - 2 - suit out of which this second appeal has arisen. 2. This second appeal has been filed by the State of Bihar and its authority(defendants Ist party-respondents Ist party- appellants) challenging the judgments and decree dated 25.06.2007 by which the Additional District Judge-cum- Fast Track Court no. V, Kishunganj allowed Title Appeal no.60 of 1998 filed by the plaintiffs for setting aside the judgment and decree dated 11.06.1998 by which the learned Munsif I, Kishunganj dismissed the Title Suit no. 36 of 1995. 3. The plaintiffs-appellants-respondents Ist set had filed the aforesaid Title Suit no.36 of 1995 for declaration of their title over the suit land and also for declaration that the settlement made by the State of Bihar in favour of private persons namely, defendants 2nd party–respondents 2nd set–respondents 2nd set was fraudulent, collusive and fit to be annulled. The said suit was dismissed on contest by the learned Munsif I, Kishunganj vide his judgment and decree dated 11.06.1998. 4. The judgment and decree of the learned trial court was challenged by the plaintiffs in Title Appeal no.60 of 1998 which was allowed by the learned Additional District Judge-cum- Fast Track Court no. V, Kishunganj, vide his judgment and decree dated 25.06.2007 and the judgment and decree of the learned trial court was set aside and the suit of the plaintiffs was decreed. 5. Against the aforesaid judgment and decree of the learned court of appeal below, both sets of the defendants filed separate second appeal, as private respondents 2nd party filed S.A. No. 164 of - 3 - 2007 and the State of Bihar and its authority filed instant Second Appeal no. 146 of 2008. Out of them S.A. no. 164 of 2007 was dismissed by a reasoned order dated 08.10.2009 passed by this court and the other second appeal bearing S.A. no. 146 of 2008 is now under consideration of this court. 6. Although admittedly the suit property belonged to the predecessor of the plaintiffs but the defendants claimed that the suit property was the subject matter of a ceiling case in which the suit property was surrendered as surplus of the plaintiffs and was ultimately settled by the State of Bihar and its authority (defendant Ist party) in favour of defendant 2nd party. However, none of the two sets of defendants could produce any document to show that the suit property was subject matter of any ceiling proceeding or was ever surrendered by the plaintiffs or their predecessor and in absence of any such evidence the learned court of appeal below, realizing the settled principle of law, held that such pleadings not supported by any evidence can not be taken into consideration and that the trial court had wrongly relied on such baseless pleadings not proved by the defendants whereas the plaintiffs were able to prove their claim on the basis of title and rent receipts (exhibits 1 series) granted in their favour. 7. It was well pleaded and proved by the plaintiffs that Birju Sah, Bangowati and Fatah Lal who were lawful owners of the land in question had already sold the suit property to plaintiff nos.1 and 2 and predecessor of plaintiff nos. 3 to 12 vide registered sale deed dated 23.12.1959, 17.06.1961 and 10.02.1967 which was much prior to the - 4 - appointed date i.e. 09.09.1970 and hence the said transferors had no right to surrender the suit land in any ceiling proceeding instituted much more than a decade thereafter nor any such proceeding or surrender had been proved by the defendants. Hence it is quite apparent that the State of Bihar and its authority (defendants Ist party) had no right at all to settle the said property to defendants 2nd party specially in absence of any notice to the said transferees. 8. The appellants have raised the question of applicability of sections 22 and 43 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 but when Toka Mandal was not even recorded as Sikmi raiyat of Sikmi khata no. 133 under Kaimi khata no.135 there was no occasion for applicability of section 22 of the said Act. So far section 43 of the said Act is concerned, it provides that save and except as provided in the Act, no civil court shall have jurisdiction to settle, decide and deal with any question which is by or under this Act required to be settled, decided or dealt with by the Board of Revenue, the Appellate authority or the Collector and no order of Board of revenue, the appellate authority or the Collector made under the said Act shall be questioned in any court. The aforesaid section will not be applicable in the facts and circumstances of this case as the suit was mainly for declaration of the title of the plaintiffs on the basis of their purchase by virtue of registered deeds and also for possession and hence the civil court had full jurisdiction to try the aforesaid suit on the basis of the pleadings of the plaintiffs specially when such issue can not be legally decided by the authority mentioned - 5 - above. Furthermore, the question of collusion and fraud was also raised in the suit which was to be decided by the civil court only and hence the learned court of appeal below was quite justified in deciding the said point in favour of the plaintiffs relying upon several decisions of this court mentioned therein. 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, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) shahid