Khatim Reza, J.—This Second Appeal has been filed by the plaintiffs against the judgment and decree dated 31.05.1989 passed by Second Additional District Judge, Saharasa in Title Appeal no. 01 of 1977 dismissing the appeal and confirming the judgment and decree dated 29.11.1976 passed by Subordinate Judge, Saharsa in Title Suit no. 34 of 1973.

2. On 21.11.1989, following substantial questions of law were formulated while admitting this Appeal:—

(I) Whether the findings of the court below that the entire area of Plot Nos. 1281, 1282 and 1158 has vested in the State of Bihar by virtue of the proceeding under Section 4(h) of the Bihar Land Reforms Act is sustainable even if the entire order passed in the proceeding under Section 4(h) of the B.L.R. Act is accepted to be correct?

(II) Whether the courts below has misdirected itself in holding that even though the plaitinffs were not a party to the proceeding u/s 4(h) of the B.L.R. Act the same is still binding upon them?

(III) Whether the findings of the court below is based on the errors of record and nonconsideration of the material evidence both oral and documentary?

(IV) Whether the finding of the court below that the entire land of Plot Nos. 1281, 1282 and 1158 has vested in the State of Bihar is sustainable and admittedly the major portion of the aforesaid plots are horticulture or cultivable land being in possession of the landlord ever since vested and has remained in possession all through of the plaintiffs since 1958?

(V) Whether the courts below should have drawn adverse inference for non-production of material documents which was in exclusive possession of the defendants and had a direct bearing in the case and on that count the finding of the courts below is erroneous, perverse and illegal?

3. The plaintiff/appellants filed the aforesaid suit praying for declaration of title and possession of the plaintiffs over the suit land measuring 6 Bigha 7 Katha 19 Dhur, and further prayed for confirmation of possession and declaration that they are the occupancy Raiyats of these lands and the State of Bihar be directed to fix fare rent for the same, and further the State of Bihar is sought to be restrained permanently from the disturbing the possession of the plaintiffs.

4. Plaintiffs’ case is that they are the original resident of village Chandail, P.S. Supaul, District Saharasa, but they shifted to village Bakaur where the suit lands are situated. It is further claimed that there was a Kosi river devastation at village Chandail in July-August 1954, and on account of Kosi devastation, the ancestral land and residential house of the plaintiffs at village Chandail had washed away, damaged and submerged under the flood water, as a result of which, the plaintiffs shifted to village Bakaur in September, 1954, which was east to the original place of residence. They have rehabilitated themselves temporarily by constructing thatched house and sheds on Plot Nos. 1281 and 1282 appertaining to Khata no. 149. They set up their orchard, cattle-shed in those plots and also on Plot no. 1158 of the same Khata. Subsequently, the plaintiffs constructed their pucca building with tiled roofs in place of thatched house and sheds.

5. In the beginning paragraphs of the plaint, the plaintiffs claimed to have settled Gairmajarua Malik lands without any permission from anybody. In the subsequent paragraphs, it is stated that those lands along with Bakasht lands bearing Plot Nos. 1152, 1153, 1154, 1155, 1156, 1157 and 1159 of Khata no. 1 were settled with one Sri Harbansh Narain Singh orally as early as 14.09.1944 as Raiyat by Sri Chetmani Singh, ex-landlord. It is said that the landlord submitted his Return under Jamabandi no. 249 with regard to the said plots in the name of Sri Harbansh Narain Singh. It is claimed by the plaintiffs that the plaintiffs began to cultivate the Bakasht Land and also portion of Gairmajarua land bearing Plot Nos. 1281, 1282 and 1158, and they were in possession over the total area of