IN THE HIGH COUR T OF JUDICATURE AT PATNA SA No.251 of 2009 Rajdeo Dusadh, Son of Late Budhu Dushadh, Resident of Village Tole Gunjan Bigha, P.O.- Amilauna, District- Aurangabad. ---Defendant/Respondent/Appellant. Versus 1.Surajdeo Singh , Son of Ganga Yadav. 2.Most. Dulari Devi, Widow of Rajdeo Singh. 3.Binod Singh, Son of Rajdeo Singh. 4.Jai Prakash Singh, Son of Rajdeo Singh. 5.Kundan Singh, Son of Rajdeo Singh. 6.Ramdeo Singh, Son of Ganga Yadav. 7.Shyamdeo Singh, Son of Ganga Yadav. 8. Hari Shankar Singh, Son of Ganga Yadav. 9.Hardip Singh, Son of Ganga Yadav. 10.Ram Narayan Singh, Son of Late Jagadeo Singh. 11.Padarath Singh, Son of Late Jagadeo Singh. 12.Ramjee Singh, Son of Late Jagadeo Singh. 13.Ramashraya Singh, Son of Late Jagadeo Singh. 14.Bhim Singh, Son of Late Jagadeo Singh. All Residents of Village- Amilauna, P.O.-Obra, District- Aurangabad(Bihar). -------Plaintiffs/Appellants/Respondents. 15.The State of Bihar through Collector, Aurangabad, P.S. and District-Aurangabad. 16.The Commissioner, Magadh Division, at P.S. and District-Gaya. 17.The Anchal Adhikari, Obra, P.S. Obra, District- Aurangabad. ----Defendants/Respondents/Respondents. 2 ---------- 7. 29.08.2011 Heard the learned counsel appearing on behalf of the appellant in support of this appeal. This appeal has been filed against the judgment and decree dated 18.03.2009 passed by Additional District Judge, Fast Track Court No. I, Aurangabad setting aside the judgment and decree dated 24.02.2006 passed by Sub Judge II, Aurangabad in Title Suit No. 80/86/91/94. The plaintiffs have filed the suit for declaration that there was no proceeding under Section 4(H) of Bihar Land Reforms Act against Sita Ram Yadav(predecessor of the plaintiff) and order of the Commissioner, Magadh Division in Case No. 133/1981 dated 10.03.1984 is not binding on the plaintiffs and after these declarations the plaintiffs have sought for declaration of their title over the suit land. Bereft of details, the plaintiffs have claimed the suit land on the basis of settlement from the ex-landlord on 15.06.1944 and have claimed possession of the suit land on that basis. The plaintiffs have also stated that they sold part of the settled land and rehabilitated several Harizans over other parts. The plaintiff has averred that the necessity for the suit arose when the Commissioner, Magadh Division allowed the revision application filed by defendant no.4 on the ground that 3 defendant no.4 had got the settlement from the ex-landlord. The defendant no.4 by filing written statement has claimed the settlement in his favour by the ex-landlord in the year 1935 and has further asserted that the settlement as claimed by the plaintiffs in their favour has been annulled in a proceeding under Section 4(H) of Bihar Land Reforms Act and the Commissioner, Magadh Division had passed order against the plaintiffs on this basis. After hearing the parties and considering the evidence led by the parties the trial court has come to the finding that the plaintiffs have title and possession over the suit land. The trial court has also taken notice of the return (declaration) filed by the ex-landlord at the time of vesting of Zamindari in the name of the plaintiff with regard to the suit land. The trial court has also found in its judgment that no paper has been filed to substantiate existence of a proceeding under Section 4(H) of the Bihar Land Reforms Act against the plaintiffs. However, the suit was dismissed for want of cause of action and bar of Section 35and 4(H) of the Bihar Land Reforms Act, 1950. The appeal was filed against the judgment and decree by the plaintiffs where the appellate court keeping in 4 view the rival contentions of the parties examined the evidence on record and has come to the finding that no evidence with regard to the existence of a proceeding under Section 4(H) of Bihar Land Reforms Act against the plaintiffs has been brought on record by the defendants who has raised this allegation and upon whom the burden lies. It has been also concluded that the order dated 10.05.1984 passed by the Commissioner, Magadh Division in Case No. 133/81 affirming the recommendation of settlement in favour of the defendant Rajdeo Dusadh by Deputy Collector, Land Reforms is based on no evidence and against the fact and law and not binding upon the plaintiff and the order passed by the Additional Collector in Appeal No. 77/80-81 and 43/81-83 is valid and legal order. Concurring with the finding of title and possession of the plaintiff over the suit land, the appellate court allowed the appeal, decreed the suit for the relief of declaration of title and possession over the suit land only but denied the relief for declaration with regard to absence of 4(H) proceeding against the predecessor of the plaintiff. The learned counsel appearing on behalf of the appellant in support of this appeal has contended that the appellate court has itself held that the absence of a 5 documentary evidence in support of the existence of proceeding under Section 4(H) of Bihar Land Reforms Act could not mean that no such proceeding existed, and as such the finding ought to have been recorded that the settlement in favour of the plaintiff had been annulled under Section 4(H) of the Bihar Land Reforms Act and the order of Commissioner, Magadh Division dated 10.05.1984 was a valid order. It has been further submitted that no appeal or cross-appeal was preferred by the defendant no.4 only because simultaneous with the finding of title and possession of the plaintiff over the suit land, there was also a finding recorded by the trial court with regard to the settlement of land in favour of the defendant no.1. The learned counsel has thus submitted that substantial questions of law are involved in this appeal to be decided. After perusing the judgments and decree and considering the submissions it appears that core defence of the defendants is the issue of there-being a proceeding under Section 4(H) of Bihar Land Reforms Act annulling the settlement of the plaintiff but they have squarely failed to corroborate and establish this assertion by bringing on record any evidence of the proceeding under Section 4(H) of Bihar 6 Land Reforms Act. The burden of proof clearly was upon the defendants and therefore the failure in discharge of this burden has rightly led the appellate court to make observation regarding absence of such proceeding but simultaneously no relief in this regard has been allowed to the plaintiff also. Further no appeal or cross-appeal was filed by the defendant no.4 against the finding of title and possession of the plaintiff over the suit land by the trial court which shows that defendant no.4 has accepted the settlement of the suit land with the plaintiff. Moreover the order of the Ceiling Case No.250/73-74(Ext.5) shows that the said proceeding had been initiated against the predecessor of the plaintiff for the suit land and a portion of the suit land had also been declared surplus. The rent receipts, the order passed in consolidation proceeding, the sale deeds executed by the predecessor of the plaintiffs are the documentary evidence which have been relied upon by the appellate court to uphold the title and possession of the plaintiffs over the suit land. The issue of non-consideration or misappreciation of material evidence by the courts below has not been raised by the appellant in this appeal. For the foregoing reasons, there is no infirmity in 7 the judgment of the appellate court below. No substantial question of law arises for consideration in this appeal, which is, accordingly, dismissed. Nitesh (V. Nath, J.)