Full Judgment Text
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PETITIONER:
BHUBANESHWAR PRASAD NARAIN SINGH & ORS.
Vs.
RESPONDENT:
SIDHESWAR MUKHERJEE & ORS.
DATE OF JUDGMENT02/02/1971
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
RAY, A.N.
CITATION:
1971 AIR 2251 1971 SCR (3) 646
CITATOR INFO :
RF 1991 SC 663 (11)
ACT:
Bihar Land Reforms Act, 1950, s. 6-Scope of-Effect on co-
sharer’s possession.
HEADNOTE:
In a suit for partition of bakash land a preliminary decree
was passed. The defendants-appellants, claiming to be in
actual possession of the bakasht land, filed a petition
contending that the consequence of s. 6. of the Bihar Land
Reforms Act, 1950 (which came into force in the meanwhile)
was to put an end to the proprietor’s possession of the
bakasht land by causing them to vest in the State and
simultaneously creating a tenancy in favour of the person in
khas possession thereof, and therefore, no final decree
could be passed. The trial court accepted the contention
and dismissed the plaintiff’s application for passing final
decree. In appeal, the High Court set aside the order.
In appeal to this Court,
HELD : Even if the appellants were in actual khas possession
within the meaning of s. 2(k) of the Act, it must be held
that the plaintiff respondent, who was a co-sharer, was in
constructive possession through the appellants, as, under
the law, possession of one co-sharer is possession of all
co-shares. The appellants did not claim to be trespassers
on the property neither did they claim any title to the
lands adversely to the respondent. The deeming provision of
s. 6 must, therefore, enure for the benefit of all, who in
the eye of land) would be regarded as in actual possession.
Therefore, the respondent had not lost his share in the
bakasht lands and had a right to his share in them, though
not as tenure-holder or proprietor, but as a raiyat under
the provisions of the Act. [645 E-G]
P. L. Reddy v. L. L. Reddy, [1957] S.C.R. 195, 202,
followed.
Surajnath Ahir v. Prithitnath Singh, [1963] 3 S.C.R. 290,
Ram Ran Baijal Singh v. Behari Singh alias Bagandha Singh,
[1964] 3 S.C.R. 363, S. P. Shah v., B. N. Singh, [1969] 3
S.C.R. 908 and Mahant Sukhdeo Das v. Kashi Prasad, Tewari
JUDGMENT:
referred to.
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&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2588 of 1966.
Appeal from the judgment and decree dated January 14, 1964
of the Patna High Court in First Appeal No. 572 of 1958.
D. Goburdhun and R. Goburdhun, for the appellants.
A. N. Sinha and P. K. Mukherjee, for respondent No. 1.
640
The Judgment of the Court was delivered by
Mitter, J. The only question involved in this appeal is,
whether the direction of the High Court that the partition
suit launched in 1943 should be allowed to proceed in view
of the provisions of s. 6 of the Bihar Land Reforms Act,
1950 which came into force on 25th September, 1950, is
correct.
The suit had a chequered career. It was instituted against
a number of persons the main relief asked for being
partition of four annas Milkiat interest in Touzi No. 702,
Tappa Haveli, Pargana Maheshi, District Champaran, Bihar.
The Subordinate Judge of Motihari made a preliminary decree
for partition declaring the first respondent’s share in the
property as claimed by him. The High Court in appeal
modified the decree reducing the plaintiff’s share to Rs.
0-1-4 interest only. In further appeal to these Court the
trial court’s preliminary decree was upheld on 5th ,October
1953. In the meanwhile the Bihar Land Reforms Act of 1950
effecting far-reaching changes in the incidents of land
tenure and land holdings had been passed. The first
appellant made an application to the trial court in June
1958 prayina that the proceedings for final decree be
treated as having abated in view of the vesting of all
estates in land in the State of Bihar. This was accepted by
the Subordinate Judge by an order dated July 12, 1958. The
High Court allowed the appeal with the direction above
mentioned which the appellants now seek to have set. aside.
The bone of contention between the parties is the extensive
"bakasht’ lands in the aforesaid Mouza. The appellants
contend that under s. 6 (1) of the Act all these lands
vested in the State and came to be held by the persons in
"khas possession" thereof as raiyats under the State. To
appreciate the plea it is necessary to make a brief
reference to some of the provisions of the Act.
As is well known the object of the Act was to cause
transference to the State of the interest of proprietors and
tenure-holders in land as also of the mortgagees and lessees
of such interests including interests in trees, forests,
fisheries, jalkars, ferries, hats, bazars, mines and
minerals and to provide for certain consequences following
there-from and connected therewith. S. 3 of the Act
,enabled the State Government to declare by notification
that the estates or tenures of a proprietor or tenure-holder
specified therein ’would pass to and become vested in the
State. The consequences ,of such vesting are set-forth in
s. 4. Under cl. (a) :
"Such estate or tenure including the interests
of the proprietor or tenure-holder in any
building or part of a building comprised in
such estate or tenure and used
641
primarily as office or cutchery for the
collection of rent of such estate or tenure,
and his interest in trees, forests, fisheries,
jalkars, sairati interest as also his interest
in all sub-soil including any rights in mines
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and minerals whether discovered or
undiscovered, or whether being worked or not,
inclusive of such rights of a lessee of mines
and minerals, comprised in such estate or
tenure (other than the interests of raiyats or
under-raiyats) shall, with effect from the
date of vesting, vest absolutely in the State
free from all encumbrances and such proprietor
or tenure-holder shall cease to have any
interest in such estate or tenure, other than
the interests expressly saved by or under the
provisions of the Act."
S. 6 of the Act provides for such saving and the relevant
portion thereof runs as follows
"(1) On and from the date of vesting all lands
used for agricultural or horticultural
purposes, which were in khas possession of an
intermediary on the date of such vesting,
including-
(a) (i) proprietor’s private lands let out
under a lease for a term of years or under a
lease from year to year................
(ii) landlords privileged lands let out under
a registered lease for a term exceeding one
year or under ,a lease, written or oral, for,
a period of one year or less, referred to in
section 43 of the Chota Nagpur Tenancy Act,
1908,
(b) lands used for agricultural or
horticultural purposes and held in the direct
possession of a temporary lessee of an estate
or tenure and cultivated by himself with his
own stock or by his own servants or by hired
labour or with hired stock, and
(c) lands used for agricultural or
horticultural purposes forming’ the subject
matter of a subsisting mortgage on the
redemption of which the intermediary is
entitled to recover khas possession thereof;
shall............. be deemed to be settled by
the State with such intermediary and he shall
be entitled to retain possession thereof and
hold them as a raiyat under the State having
occupying rights in respect of such lands
subject to the payment of such fair and equit-
able rent as may be determined by the
Collector in the prescribed manner.
642
The broad proposition which was advanced before the High
Court and rejected by it and reiterated before us is that
the consequence of s. 6, was to put an end to the character
of the possession of the bakasht lands to the malik by
causing them to vest in the State and simultaneously
creating a tenancy in favour of the person in khas
possession thereof. There is no dispute that bakasht lands
fall under categories (b) and (c). We are not here
concerned with category (c) and have quoted it to appreciate
some decisions relied on where there are references to that
category.
This question has engaged the attention of the Patna High
Court more than once and it would appear that the views
expressed in different cases have not been uniform. So far
as the said High Court is concerned the point was settled by
a decision of the Full Bench in Mahanth Sukhdeo Das. v.
Kashi Prasad Tewari and Shrideo Misra v. Ramsewak Singh(1).
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The main questions before the Full Bench were whether on the
vesting of an estate which was mortgaged at the material
time the bakash lands therein which are deemed to be settled
with the ex-proprietor in khas possession would form
substituted security for the purpose of the mortgage, and
whether a co-sharer proprietor not in actual possession of
such lands had Any claim thereto on the basis of his
constructive possession. The High Court answered both the
above in the affirmative.
One of the earliest cases in which this Court had to
interpret s. 6 of the Act was that of Surajnath Ahir v.
Prithinath Singh (2 ) . There the question which engaged the
attention of this Court was whether the appellants who had
originally gone into possession on the strength of a
mortgage lost their right to continue in possession even if
they claimed to be trespassers after the redemption of their
mortgage by reason of the estate vesting in the State on the
passing of the Act. Although the case is not directly in
point, it bears upon the identical provisions of law which
have to be applied to the facts of the case before us. The
facts in that case were that the appellants had entered into
possession of kasht lands of the mortgagors on the strength
of a mortgage deed. The mortgagors thereafter executed
another mortgage with respect to their milkiat (proprietary)
interest in favour of certain persons. The plaintiff
respondents bought the milkiat rights together with "kasht"
lands from the mortgagors and entered into possession of the
milkiat property and subsequently redeemed the mortgage
deeds in 1943. The appellants however did not make over
possessions of the lands in dispute even after the
redemption of the mortgage. It was held by this Court that
the respondents could not take advantage of section 6 (1)
(c) of the Act as no mortgage subsisted on the date of
vesting and the mere fact that the proprietor had a
subsisting
(1) I.L.R. 37 Patna 918.
(2) [1963]-3 S.C.R. 290
643
title to possession over certain land on the date of vesting
could,’ not amount to that land being treated as under his
"khas possession" for the purposes of the Act. Referring to
the definition of "Khas possession" in s. 2(k) of the Act as
meaning
"the possession of such proprietor or tenure-
holder by cultivating such land or carrying on
horticultural operations thereon himself with
his own stock or by his own servants or by
hired labour or with hired stock".
it was held that in order that the respondents could take
advantage of the provision of s. 6 (1 ) (c) of the Act they
had to, establish a subsisting mortgage on the date of
vesting which was inclusive, of the land subject to their
right of redemption. On the question of possession of the
lands it was observed
"On the date of vesting, the appellants were
not in possession as mortgagees. The
mortgages had been redeemed in 1943.
Thereafter, the possession of the appellants
was not as mortgagees.It may be as
trespassers or in any other capacity.The
land in suit, therefore, did not come within
cl.(c) of s. 6 of the Act."
Rejecting the construction put on the expression ’khas
possession by the High Court in Brijnandan Singh v. Jamuna
Prasad(1) it was said :
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" The mere fact that a proprietor has a
subsisting title to possession over certain
land on the date of vesting would not make
that land under his ’khas possession’."
The Full Bench decision of the Patna High Court, came up for
consideration by this Court in Ram Ran Bijai Singh v. Behari
Singh alias Bagandha Singh(2). There the appellants before
this, Court were the plaintiffs who had filed a suit for a
declaration that a certain plot of land was their zeraiti
land and that the persons impleaded as the defendants 1st
and 2nd parties had no right or title thereto and for
recovery of possession of the said land by dispossessing
them therefrom. It was argued that in view of the
concurrent findings of the courts below that the lands were
the zeraiti lands of the plaintiffs they would not vest in
the State because of the saving in s. 6 of the Act and the
appellant should be deemed to have been in khas possession
of the land under s. 6 (1) (c). The respondents
contended that it was not a case of a mortgagee
remaining in possession after payment of the debt without
anything more but of tenants who claimed to remain in
possession by asserting a title which was as much against
the mortgagors as against the mortgagees. Reference was
made in the
(1) A.I.P. 1958 Patna 580. (2) [1964] 3 S.C.R. 363.
(3) I.L.R.37Pat. 918.
644
course of arguments to the Full Bench decision in Sukhdeo
Das’s case(3) and it was submitted that a mortgagee
continuing in possession of the mortgaged property after
payment of the :mortgage amount must hold the same on behalf
of the mortgagor and in trust for him. Counsel further
relied on certain observations in the judgment of the Full
Bench in aid of his proposition and submitted on the basis
thereof that even the possession of a trespasser who had not
perfected his title by adverse possession for the requisite
period of time under the Limitation Act should be considered
as in khas possession of the true owner. Turning down this
submission it was observed by this Court (p. 378) :
"We consider that this equation of the right
to possession with ’khas possession’ is not
justified by principle or authority. Besides
this is also inconsistent with the reasoning
of the Full Bench by which constructive pos-
session is treated as within the concept of
khas possession."
The Court went on to add that
"The possession of the contesting defendants
in the present case was in their own right and
adverse to the plaintiffs, even on the case
with which the appellants themselves came to
court."
Noting the statement of the plaintiffs in their plaint that
the mortgagees had fulfilled their obligations and the
obstruction to possession was put forward only ’by persons
who claimed occupancy rights this Court concluded that, in
the circumstances of the case, it was not possible for the
appellants to contend that these tenants (defendants 1st and
2nd parties) were in possession of the property on behalf of
the mortgagor or by virtue of any right through the
mortgagor. The case is not therefore an authority for the
proposition that a co-sharer’s constructive possession is to
be ignored under s. 6 (1) (c) of the Act.
Counsel for the appellants also referred us to a recent
decision of this Court in S. P. Shah v. B. N. Singh(1) in
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aid of his contention that the true effect of s. 6 of the
Act was to create a new right ,of tenancy in favour of the
person in khas possession and consequently even if the
plaintiff in the partition suit had a right to ask for
demarcation of his Rs. 0-4-0 share of the bakasht lands
before the passing of the Land Reforms Act, he could not
pursue his claim by a prayer that he be considered a tenant
along with those who were in actual khas possession.
In our view the above decision is no authority for this
broad proposition. In that case the appellants who were
mortgagees of an estate including bakasht lands and other
lands filed a suit on
(1) [1969] 3 S C.R. 908.
64 5
their mortgage and tried to follow up the preliminary decree
which was obtained before the Act came into force by a
petition for passing a final decree. One of the questions
before this Court was whether the mortgage decree had become
unexecutable in view of the provisions of the Act. It was
held that the net effect of ss. 3, 4 and 6 was that although
on the vesting of the, lands in the State a settlement was
deemed to be effected with the person in khas possession in
law, there were two different transactions and the deemed
settlement was in effect a separate transaction creating new
rights. The Court came to the conclusion that the only
remedy open to the decree-holders wag that provided in
Chapter IV of the Act i.e. a claim under s. 14 before the
Claims Officer for determining the amount of debt legally
and justly payable to each creditor in respect of his claim.
The Court was there dealing with the rights of the mortgage
creditors after the Act had come into force. Chapter IV of
the Act made special provisions for dealing with the rights
of secured creditors and s. 4 (1) (d) expressly provided for
the abatement of all suits and proceedings for the recovery
of any money through proceedings which might be pending on
the date of vesting arising out of securities created by
mortgage or a charge on an estate or tenure. Here however
we are not dealing with the claims of mortgagees under
Chapter IV. In this case we have to consider whether the
appellants had laid a claim which a co-sharer could not put
forward except by pleading ouster or any other independent
ground. Even if they were in actual khas possession within
the meaning of s. 2 (k) of the Act it must be held that the
plaintiff who was a co-sharer was in constructive possession
through the appellants as "under the law possession of one
co-sharer is possession of all the co-sharers". We see no
reason to hold that the observations of this Court to the
above effect in P. L. Reddy v. L. L. Reddy(1) are not
applicable to the case before us. The appellants do not
claim to be trespassers on the property neither did they
claim any title to the lands adversely to the plaintiff
respondent. The deeming provision of s. 6 must therefore
enure for the benefit of all who in the eye of law would be
regarded as in actual possession. It follows that the
plaintiff had not lost his share in the bakasht lands and
had a right to them though not as tenure-holder or
proprietor but certainly as a raiyat under the provisions of
the Land Reforms Act.’ The appeal must therefore be
dismissed with costs.
V.P.S. Appeal dismissed.
(1) [1957] S.C.R. 195, 202.
646