Full Judgment Text
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PETITIONER:
RAMESH BEJOY SHARMA AND ORS.
Vs.
RESPONDENT:
PASHUPATI RAI AND ORS.
DATE OF JUDGMENT17/07/1979
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
SARKARIA, RANJIT SINGH
CITATION:
1979 AIR 1769 1980 SCR (1) 6
1979 SCC (4) 27
CITATOR INFO :
RF 1991 SC 663 (11)
ACT:
Bihar Land Reforms Act, 1950-S. 6(1)-Scope of-Khas
possession-Meaning of-Possession and khas possession-
Distinction.
Respondents tenants at will in possession of land-
Landlord-Intermediary, if could be said to be in khas
possession of the land and entitled to evict the tenant-at-
will without notice-Rights of tenant-at-will and landlord-
Discussed.
Contention available to one of the parties not pressed
before the High Court-If could be agitated before Supreme
Court.
HEADNOTE:
In a suit filed against the respondents (defendants),
for recovery of possession of the suit lands, the appellants
(plaintiffs) alleged that the suit lands were the
proprietor’s private lands and were in their actual
cultivating possession from time immemorial. The trial court
dismissed the suit. Eventually, the High Court held that the
defendants or their ancestors had not acquired any ryoti
interest with right of occupancy; nor were they tenure-
holders but were mere tenants-at-will; and that the suit was
not maintainable because even a tenant-at-will could not be
ejected without being given notice to quit. Thereupon the
appellants gave notice to the defendants. In the meantime,
by virtue of a notification issued under s. 3 of the Bihar
Land Reforms Act 1950, the estate had vested in the State by
reason of which the plaintiff was not entitled to evict the
defendants.
On the question whether the plaintiff had a right to
file a suit for possession after the vesting of the estate
in the State, the trial court held that since the plaintiff
had a right to take possession, the land could be deemed to
be in his khas possession and, therefore, he would be
entitled to evict the defendants notwithstanding the vesting
of the estate in the State.
In appeal the High Court dismissed the plaintiff’s suit
on the ground that the right to take possession did not
constitute khas possession within the meaning of s. 6(1)(b)
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of the Act.
In appeal to this Court it was contended on behalf of
the appellant that khas possession within the meaning of s.
6 comprehends the right to take possession and so the
appellant was entitled to evict the respondents.
Dismissing the appeal,
^
HELD: (a) A combined reading of the definition of khas
possession under s. 2(k) and ss. 3, 4 and 6 of the Act shows
that the land in possession of a tenant-at-will cannot be
said to be in khas possession of the intermediary for the
purpose of s. 6. [19D]
(b) A tenant-at-will is not holding possession on
behalf of the landlord but he has a vestige of title to it
and holds on his own behalf and can set up his possession
against the landlord till the formality prescribed by law is
undertaken
7
by the landlord and he is evicted by due process of law. If
a notice of a certain duration is necessary expiring with a
certain event such as the end of the agricultural year, till
the end of the agricultural year the tenant, notwithstanding
the fact that he is a tenant-at-will and under a notice to
quit will be able to hold on to his possession and keep the
landlord at bay. [17H]
In the instant case, in the suit between the same
parties to the present litigations, the High Court held that
the defendants were tenants-at-will of agricultural land,
that they were holding from year to year and that they could
be evicted not only after termination of their tenancy by a
notice to quit but such notice must expire with the
agricultural year. The notice to be issued to the tenant-at-
will has to be a notice terminating the tenancy which must
expire with the end of the agricultural year. In Bihar the
agricultural year expires in September. Therefore, once it
is concluded inter-parties that even a tenant-at-will of an
agricultural land is entitled to notice in consonance with
justice and reason the tenant-at-will cannot be thrown out
at any period during the year but the notice must expire
with the end of the agricultural year.
Sudhir Kumar Majumdar & Ors. v. Dhirendra Nath Biswas &
Anr., A.I.R. 1957 Cal. 625, not approved.
(c) A tenanat-at-will is someone other than the
landlord. When he cultivates land used for agriculture, the
agricultural operations cannot be said to be cultivation of
the landlord himself. When a tenant-at-will carries on
agricultural operations, he does them on his own and merely
pays rent to the landlord. The landlord does not pay the
tenant-at-will for the agricultural operations nor for the
stock employed by the tenant-at-will. Keeping in view the
definition of ’khas possession’, cultivation of land by the
tenant-at-will could not be said to be cultivation by the
landlord, by himself or by his servants or by hired
labourers. In such a situation the landlord cannot be said
to be in ’khas possession’ of the land in possession of the
tenant-at-will. [18A-G]
(d) The term ’possession’ used in s. 6 is qualified by
the adjective ’khas’ which means actual possession and is
used in contra-distinction to the word ’constructive’
possession. The term ’khas’ possession, is used in a statute
for ushering agrarian reforms and, therefore, the purpose
and object behind the legislation must inform the
interpretative process. The interpretation must tilt in
favour of the actual cultivator, the tiller of the soil. [20
B-C]
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2. When a notification under s. 3 was issued the
respondents tenant-at-will were under a notice to quit which
was to expire on September 24, 1953. Therefore, till
September 24, 1953 the respondents tenants-at-will were in
actual and physical possession of the land and till that
date could hold against the intermediary landlord. It may be
that when the notice to quit dated January 5, 1953 was
served the intermediary landlord might have the right to
take possession but till September 24, 1953 when notice
would expire, the respondents were in actual possession and
till then they could thwart any attempt of intermediary
landlord to take actual possession. Therefore, on the date
of the vesting i.e. April 12, 1953 the intermediary was not
in ’khas possession’ within the meaning of s. 6(1) and when
on that day his estate vested in the State thereafter he was
not entitled to recover possession. After the vesting of the
estate in the State, which event had occurred prior to the
institution of the suit, he could not maintain an action for
eviction as he had no more subsisting interest in the
estate, his interest having vested in the State.
8
Surajnath Ahir & Ors. v. Prithinath Singh & Ors. [1963]
3 SCR 290; Ram Ran Bijai Singh & Ors. v. Behari Singh alias
Bagandha Singh [1964] 3 SCR 363; Gurucharan Singh v. Kamla
Singh & Ors. [1976] 1 SCR 739 at 752-753; and Sonawati &
Ors. v. Sri Ram & Anr. [1968] 1 SCR 617; referred to.
3. The contention of the appellant that if his
application under Order 41 rule 27 C.P.C. to lead additional
evidence were allowed it would establish that the land was
already settled with the intermediary by the State and that
there fore it was no more open to the respondents to contend
that the intermediary was not entitled to the settlement of
the land in his favour has no force. The rejection of the
application is justified because if the evidence was allowed
to be admitted on record at this stage it might put the
respondents at a disadvantage. If the plaintiff (appellant)
had obtained some settlement of land on the basis of a
decree of the trial Court or the first appellate Court which
became interlocutory in view of the appeal preferred to the
High Court and then to this Court, it is not open to the
plaintiff to take any advantage of such settlement. [22C-F]
4. If a contention which was available to a party had
been abandoned in the High Court, it cannot be reagitated
before this Court.
Jayarama Reddy & Anr. v. Revenue Divisional Officer &
Land Acquisition Officer, Kurnool [1979] 3 SCR 599 referred
to.
5. If a court fixes time to do a certain thing, the
Court always retains the power to extend the time. [23E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 368 of
1969.
Appeal by Special Leave from the Judgment and Order
dated 10-7-1968 of the Patna High Court in Appeal from
Appellate Decree No. 343 of 1964.
Sarjoo Prasad, D. N. Mukherjee and S. N. Misra for the
Appellant.
L. N. Sinha and D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by
DESAI, J.-The chequered history of the litigation
culminating in this appeal by special leave by the original
plaintiff spreads over a period of 70 years with no end in
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sight. To ascertain and dispose of the point raised in this
appeal willy nilly the history of the litigation, as briefly
as one can humanly try, will have to be set out.
One Tikait Fateh Narain Singh was the holder of an
estate comprising Taluka Chakai within the revenue limits of
which the lands involved in this litigation are situated. On
the death of Tikait Fateh Narain Singh the estate devolved
on his widow Mussamat Durga Kumari, she having widow’s
interest as per the prevalent Hindu law at the relevant
time. Mst. Durga Kumari sold the entire estate includ-
9
ing Taluka Chakai to Maharaja of Gidhaur. After her death
one Tikait Chandi Prasad claiming to be the next reversioner
of Tikait Fateh Narain Singh brought an action on 15th May,
1907 being Title Suit No. 86/1908 against the Maharaja of
Gidhaur for setting aside the alienation on the ground that
the alienation was made by a widow having life estate and
being without legal necessity, it was not binding on the
reversioner. This litigation culminated in a decree in
favour of Tikait Chandi Prasad by the Privy Council on 2nd
November, 1915. However, Tikait Chandi Prasad had succeeded
in obtaining possession of Taluka Chakai somewhere in 1911
before the Privy Council finally ruled in his favour.
Soon after commencing the suit hereinbefore mentioned,
Tikait Chandi Prasad felt stringency of funds necessary for
fighting the litigation and he mortgaged the proprietary
interest in the estate which he was claiming as reversioner,
with one Mr. Chrestian for Rs. 30,000/- Even after the
decision of the Privy Council in his favour, Tikait Chandi
Prasad failed to discharge the mortgage with the result that
Mr. Chrestian brought Title Suit No. 150/21 to recover the
mortgage dues. This suit ended in a final decree on 17th
November, 1923. Mr. Chrestian took out execution of the
final decree in Execution Petition No. 207/25 and at the
Court auction Mr. Chrestian himself purchased the
proprietary interest in Chakai Taluka on 16th June, 1931 and
then took delivery of the estate through the Court in 1934.
Before Mr. Chrestian commenced his action in Title Suit
No. 150/21, one Pitamber Rai, the ancestor of the defendants
(present respondents) had filed a Money Suit No. 22/1919
against Tikait Chandi Prasad for recovering dues from him
and this suit ended in a money decree. Execution Case No.
22/21 was commenced by Pitamber Rai for sale of the lands
involved in the present appeal and he himself purchased the
same at a Court auction along with some other lands included
in Khata Nos. 140 and 146. After the sale was confirmed
Pitamber Rai obtained delivery of possession on 10th
October, 1924. A petition by judgment debtor Tikait Chandi
Prasad for setting aside Court sale under Order 21, Rule 90,
Code of Civil Procedure, did not meet with success.
On 18th April, 1943 Mr. Chrestian sold his proprietary
interest in Chakai Taluka to Rai Bahadur S. K. Sahana, the
plaintiff in the present litigation and he claimed to have
obtained possession of the lands purchased by him.
The plaintiff filed Title Suit No. 15/46 against the
respondents defendants for recovery of possession of the
suit lands alleging that
10
the suit lands were proprietor’s private lands and were in
actual cultivating possession of Tikaits from time
immemmorial. Alternatively it was the plaintiff’s case that
even if it be held that Tikait Chandi Prasad had occupancy
ryoti rights over the suit lands, the same had merged with
his proprietary rights and, therefore, the character of the
land would be bakast lands of the proprietor and the
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defendants respondents would have no vestige of title for
continuing in possession and they would be trespassers. This
suit was dismissed by the trial Court and the first appeal
by the plaintiff to the High Court failed. What is
historically relevant for the present litigation is that the
High Court held in its judgment dated 23rd September, 1952
in First Appeal No. 355/47 that the defendants (present
respondents) or their ancestors had not acquired any ryoti
interest with right of occupancy nor they had the status of
tenure holders and they were mere tenants-at-will by virtue
of rent receipt granted by Mr. Chrestian. Having so
ascertained the character of possession of the respondents
in respect of the suit lands, the High Court further
proceeded to hold that the suit of the plaintiff was not
maintainable because even tenant-at-will cannot be ejected
without determining the tenancy in accordance with law. In
other words, they were entitled to notice and no such notice
was shown to have been served. Thus ended the first round of
litigation started by the purchaser against the present
respondents.
Taking cue from the judgment of the High Court, the
plaintiff served notice to quit on the defendants and
commenced an action in ejectment in Title Suit No. 60/53.
During the pendency of the suit the plaintiff died and his
legal representatives were substituted and they continued
the suit. The defendants contested the suit, inter alia, on
the ground that on the issue of a notification dated 12th
April, 1953 published in the Government Gazette dated 14th
May, 1953 under s. 3 of the Bihar Land Reforms Act, 1950,
(’Act’ for short), the estate of the plaintiff had vested in
the State and, therefore, the plaintiff was not entitled to
evict the defendants. The trial Court negatived the
contention of the defendants holding that they were not
occupancy tenants of the suit lands as alleged by them but
they were mere tenants-at-will as held by the High Court in
the earlier round of litigation and their tenancy having
been properly terminated by a notice to quit, the plaintiff
was held entitled to a decree for possession. Issue No. 3
framed by the trial Court was whether the plaintiff had a
right to file the suit for possession after vesting of the
estate in the State ? The trial Court held that as the
plaintiff had a right to take possession the land could be
deemed to be in his khas possession within the meaning of s.
6(1)(b) of the Act, and, therefore, plaintiff would be
entitled to evict the defendants, the inter-
11
vening vesting of the estate in the State would not abrogate
plaintiff’s right to possession which accrued to him prior
to the date of issue of the notification under s. 3.
Defendants (present respondents) preferred Title Appeal
No. 17/60 which was dismissed as the appellate Court
substantially agreed with the findings of the trial Court.
Defendants preferred Second Appeal No. 343 of 1964 to the
High Court of Patna. The learned single Judge of the High
Court was of the opinion that even if the defendants were in
possession of the suit lands as tenants-at-will on the date
of vesting of the estate, their possession of the suit land
would not enure for the benefit of the intermediary
(plaintiff) within the meaning of s. 6 of the Act. The High
Court was also of the opinion that the right to take
possession does not constitute khas possession within the
meaning of s. 6(1)(b) of the Act. In accordance with these
findings the High Court held that since the issue of
notification under s. 3 the estate of the plaintiff vested
in the State and the plaintiff, therefore, cannot seek, to
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evict the defendants. The High Court accordingly allowed the
appeal of the defendants and dismissed the plaintiff’s suit
for possession. Hence the present appeal by the plaintiff.
Before the principal and the only contention canvassed
on behalf of the appellants is examined in this case a brief
reference to the relevant provisions of the Act would
illumine the contours of the controversy.
The Act, as its long title shows, was enacted to
provide for the transference to the State of the interests
of proprietors and tenure-holders in land etc. and to
provide for matters ancillary and incidental to such
transference. Section 3 provided for passing and becoming
vested in the State, the estate or tenures of a proprietor
or a tenure-holder on the issuance of a notification.
Section 4 provides for the consequences of vesting of the
tenure or an estate, one such consequence being that on
issue of a notification under s. 3 the estate or tenure
including the interests of the proprietor or tenure-holder
not only in land but in building or part of a building used
for various purposes set out therein shall 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. One such specific
provision saving the interest of the proprietor, relied upon
by the plaintiff is s. 6, the relevant portion of which
reads as under:
"6. Certain other lands in ’khas’ possession of
intermediaries to be retained by them on payment of
rent as
12
’raiyates’ having occupancy rights-(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, referred to in
Sec. 116 of the Bihar Tenancy Act, 1885
(8 of 1885),
(ii) landlord’s 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 Sec. 43 of
the Chota Nagpur Tenancy Act, 1908 (Ben.
Act 6 of 1908).
(b) lands used for agricultural or horticultural
purposes and held in the direct possession of
a temporary lease 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) land 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 subject to the provisions of Sec. 7A and 7B
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 occupancy rights in respect
of such lands subject to the payment of such fair
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and equitable rent as may be determined by the
Collector in the prescribed manner".
There is no dispute that a notification dated 12th
April, 1953 as contemplated by s. 3 was published in the
Government Gazette dated 14th May, 1953. On the issue of the
notification under s. 3 the consequences as envisaged by s.
4(1) ensued, namely, the estate of the plaintiff vested in
the State.
Mr. Sarjoo Prasad, learned counsel who appeared for the
appellant plaintiff, contended that the land involved in
this appeal was used for agricultural purposes and was in
khas possession of the plaintiff who was an intermediary on
the date of vesting as understood in clause (b) of sub-s.
(1) of s. 6 and, therefore, by the operation of
13
s. 6 the land stood settled by the State with the plaintiff
who was an intermediary and he would be entitled to retain
possession and consequently the plaintiff would be entitled
to a decree for possession. Section 6 is an exception to s.
4. A notification under s. 3 would have the effect of
vesting the estate or tenure of a proprietor or a tenure-
holder in the State. Consequently an estate or tenure
including all interests of the proprietor or tenure-holder
as set out in s. 4 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 the estate or tenure other
than the interest expressly saved by or under the Act and
according to the plaintiff his interest was expressly saved
as his case is covered by s. 6(1).
Section 6(1) provides that all lands used for
agricultural or horticultural purposes which were in khas
possession of an intermediary on the date of vesting shall
be deemed to be settled by the State with the intermediary
and he shall be entitled to retain possession thereof and
hold the same as a raiyat under the State having occupancy
rights in respect of such lands subject to certain
conditions specified in the section.
According to the plaintiff he was in khas possession
(as the word is understood in the Act) of the suit lands
used for agricultural purpose on the date of vesting and,
therefore, under s. 6 the lands are deemed to be settled by
the State with him as intermediary and, therefore he is
entitled to retain possession thereof. The expression ’khas
possession’ is defined in s. 2(k) as under:
"2. Definitions. In this Act, unless there is
anything repugnant in the subject or context-
(k) ’khas possession’ used with reference to the
possession of a proprietor or tenure-holder of any land
used for agricultural or horticultural purposes means
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;
Explanation-"Land used for horticultural purposes"
means lands used for the purpose of growing fruits,
flowers or vegetables".
The contention is that as the respondents were tenants-
at-will of the suit land as held by the High Court in the
former litigation inter
14
partes, the plaintiff could evict them at his sweet will
and, therefore, the plaintiff could be said to be in khas
possession of the suit land within the meaning of the
expression as understood in the Act and the plaintiff is
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entitled to evict the defendants. It was said that the
tenant-at-will has no certain or sure estate in the land
which can be asserted against the landlord of such tenant-
at-will and, therefore, the landlord can be said to be in
khas possession of the land even if it be in actual
possession of the tenant-at-will. Woodfall on "Landlord and
Tenant", 27th Edn., Vol. I, p. 279, says:
"A tenancy at will is where lands or tenements are
let by one man to another, to hold at the will of the
lessor; in this case the lessee is called tenant at
will, because he has no certain or sure estate for the
lessor may put him out at any time he pleases. Either
party may at any time determine a strict tenancy at
will, although expressed to be held at the will of the
lessor only, and the landlord may determine it by a
demand of possession or otherwise without a previous
formal notice".
At p. 30 it is observed that a tenant-at-will cannot
demise, for that would amount to a determination of his
estate at will; but a purported demise, with possession
thereunder, will create a tenancy by estoppel as between him
and his lessee, and will be good as against himself.
It was said that if such be the position of a tenant-
at-will, the case would fall within the latter part of the
definition of khas possession which provides that if
landlord is cultivating such land himself with his own stock
or by his own servants or by hired labour or with hired
stock, such cultivation would constitute khas possession of
the landlord. An identical expression is used in s. 6(1)(b)
which provides that lands used for agricultural or
horticultural purposes and held in direct possession of a
temporary lease 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 would be deemed to be in
khas possession of the intermediary. It was, therefore, said
that there is no marked or noticeable difference between a
tenant-at-will who can be evicted by mere demand of
possession and cannot resist the demand for possession, and
a hired servant or a hired labourer or a man made to work by
hired stock. It was said that if in latter case the statute
considers the land to be in khas possession of proprietor a
fortiori, in the former case as well it must be treated in
khas possession of intermediary or proprietor. Mr. Sarjoo
Prasad said that khas possession within the meaning of s. 6
comprehends within its ambit the right
15
to take possession. In other words, it was said that if on
the date of vesting in respect of land used for agricultural
purpose the intermediary had a right to take possession from
a person who could not resist an action for possession, for
the purpose of s. 6 the intermediary would be deemed to be
in khas possession of the land. The substantial point,
therefore, which needs examination is: What constitutes khas
possession within the meaning of s. 6 ? That necessitates
examination of the position of a tenant-at-will vis-a-vis
landlord, and even if it is held that a tenant-at-will has
no sure estate or interest in the lease which can be set up
against his landlord, whether his actual possession enures
for the benefit of the landlord who should be said to be in
khas possession through his tenant-at-will for the purpose
of s. 6(1). The question is whether khas possession within
the meaning of the expression in the Act and especially s. 6
thereof, takes within its sweep the right to take possession
without any hindrance.
The proposition canvassed on behalf of the plaintiff
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may be first examined on principle. If a tenant-at-will
actually cultivating agricultural land could be evicted by
the landlord by merely demanding possession from him, does
it imply that for all purposes the landlord himself is in
possession? This stands negatived by a decision inter
partes. In the former suit filed by the plaintiff for
possession the High Court after holding that the defendants
were tenants at, will, declined to pass a decree for
eviction holding that even tenant-at-will is entitled to a
reasonable notice and in the absence of notice the plaintiff
would not be entitled to a decree for actual possession. The
High Court has thus recognised some right in the tenant-at-
will which can be set up against the landlord who seeks to
evict him. The judgment of the High Court in the former
litigation concluded as under:
"For all the reasons which I have given I am
forced to the conclusion that the interest of the Roys
(respondents here in) in the suit property is that of
tenants-at-will holding from year to year, whose
tenancy can only be terminated by due notice".
(Reuben, J.)
The other learned member of the Bench concluded as under:
"I, therefore, agree with my Lord the Chief
Justice that the defendants could not be evicted from
the disputed lands in the absence of a due notice to
quit ending with the expiry of an agricultural year".
The decision of the High Court is not open to question
at the instance of the plaintiff. The position concluded
against the plaintiff
16
is that the defendants were tenants-at-will of agricultural
land and they were holding from year to year and, therefore,
they could be evicted not only after termination of their
tenancy by a notice to quit but such notice must expire with
the agricultural year. Even if it be held that s. 106 of the
Transfer of Property Act is not attracted, this being an
agricultural lease, the fact remains that in respect of
agricultural lease the notice to quit must expire with the
end of agricultural year. It would not be correct to say
that some reasonable notice would be sufficient to terminate
the tenancy. The notice has to be one terminating the
tenancy and the notice must expire with the end of the
agricultural year. It is not in dispute that the
agricultural year in Bihar ends, depending upon the custom
in the area, around September. This becomes clear from the
fact that the plaintiff has averred in the plaint that a
notice dated 15th January 1953 terminating the tenancy of
the defendants and calling upon them to surrender possession
was served upon them and they were called upon to handover
possession by 1st Aswin, 1361 F.S. corresponding to 24th
September, 1963. Once it is concluded inter partes that even
a tenant-at-will of an agricultural land is entitled to
notice in consonance with justice and reason, he cannot be
thrown out at any period during the year but the notice must
expire with the end of the agricultural year. Any other
approach would be unfair to the tenant-at-will. If he is
left at the sweet mercy of the landlord he can be thrown out
just after he puts in all his labour and the crop is ready
for harvesting. A tenant under a lease of land used for
agriculture would be entitled to a notice expiring with the
end of agricultural year so that he may not be evicted after
the crop is ready for harvesting and may not be exposed to
unfair treatment at the hands of the landlord.
Thus, even if it is held that a tenant-at-will has no
sure interest or estate, yet he is entitled to notice and he
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cannot be evicted without notice the duration of which would
be dependant upon the nature of the lease. In the case of an
agricultural lease, the notice must expire with the end of
agricultural year. As a corollary it must follow that a
tenant-at-will can hold out against his landlord if he is
sought to be evicted without due process of law which would
imply notice terminating tenancy, and can continue to remain
in possession against the landlord till the termination of
the lease by a proper legal notice. In Halsbury’s Laws of
England, 3rd Edn., Vol. 23, p. 507, it is stated as under:
"A tenancy at will is determinable by either party
on his expressly or impliedly intimating to the other
his wish that the tenancy should be at an end. Until
the intimation is
17
thus given the tenant is lawfully in possession, and
accordingly the landlord cannot recover the premises in
an action for recovery of land without a previous
demand of possession or other determination of the
tenancy".
An attempt was made inviting us to re-examine the
position of a tenant-at-will vis-a-vis the landlord urging
that no particular notice of any particular duration is
necessary for evicting a tenant-at-will. It was said that a
tenant-at-will has no certain or sure estate for the lessor
may put him out at any time he pleases (see quotation from
Woodfall extracted above). Reference was also made to Sudhir
Kumar Majumdar & Ors. v. Dhirendra Nath Biswas & Anr.(1)
wherein a learned single Judge of the Calcutta High Court
held that the service of a formal notice to quit is not
necessary for the termination of the tenancy-at-will. We
find it difficult to subscribe to this view. Apart from the
fact that in the former litigation inter partes which
concluded the earlier suit brought by the present appellant,
being dismissed on the only ground that the respondents who
were tenants-at-will could not be evicted as their tenancy
was not terminated by a notice to quit expiring with end of
agricultural year, we have already extracted above an
observation from Halsbury’s Laws of England which also
supports the view that notice terminating tenancy of a
tenant-at-will is pre-requisite before he can be evicted. A
tenant-at-will is nonetheless a tenant. The concept of
tenancy-at-will has reference to duration and interest in
the land of which the tenant is a tenant-at-will. He is not
at the sweet will and mercy of the landlord. The Division
Bench which disposed of the appeal inter partes on the
earlier occasion, after examining a large number of
authorities came to the conclusion that a tenancy-at-will
has to be determined by a reasonable notice to quit and we
are in agreement with the view of the High Court and we are
not persuaded to agree with the opinion expressed by the
learned single Judge of the Calcutta High Court. The view
taken by the Division Bench of Patna High Court in F.A. No.
355 of 1947 between the parties to the present proceeding
that a tenant-at-will of agricultural land cannot be evicted
without a notice terminating the tenancy expiring with the
end of agricultural year commends to us as laying down
correct law.
It can thus demonstrably be established that a tenant-
at-will is not holding possession on behalf of landlord but
he has a vestige of title to it and holds on his own behalf
and can set up his possession against the landlord till
formality prescribed by law is undertaken by the land-
18
lord and he is evicted by due process of law. If a notice of
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a certain duration is necessary expiring with a certain
event such as end of the agricultural year, till the end of
the agricultural year the tenant, notwithstanding the fact
that he is a tenant-at-will and under a notice to quit, will
be able to hold on to his possession and keep the landlord
at bay.
If such be the position of the landlord vis-a-vis his
tenant-at-will, could the landlord be said to be in khas
possession of the land when the tenant-at-will is in actual
possession and holds out against the landlord and questions
his right to be put in possession till a procedure
prescribed by law is followed by the landlord? In this very
case the landlord in his earlier litigation for obtaining
actual possession from the tenant-at-will failed to obtain a
decree against the tenant-at-will because the landlord had
not followed the procedure prescribed by law, viz., a notice
to quit and determination of the lease. Could possession of
such a tenant-at-will be said to be the possession on behalf
of the landlord for the purpose of s. 6(1)?
A tenant-at-will is some one other than the landlord.
If a tenant-at-will is cultivating land used for
agriculture, the agricultural operation carried on by the
tenant cannot be said to be cultivation of the landlord
himself, nor the stock of the tenant-at-will can be said to
be a stock of the landlord, nor the tenant-at-will can be
said to be servant of the landlord or hired labourer, or the
stock of the tenant-at-will can be said to be the hired
stock of the landlord. When a servant or hired labourer is
engaged or stock is hired the landlord has to pay such
servant or hired labourer or for the hired stock. When a
tenant-at-will is carrying on agricultural operations he
does it on his own and merely pays rent to the landlord. The
landlord does not pay the tenant-at-will for the
agricultural operations nor for the stock employed by the
tenant-at-will. There is a marked, noticeable and
understandable difference between a tenant-at-will vis-a-vis
the landlord and a servant or hired labourer employed by the
landlord. Therefore, keeping in view the definition of the
expression ’khas possession’ in s.2(k), a cultivation of
land by tenant-at-will could not be said to be cultivation
by the landlord by himself or by his servants or by hired
labourer. Accordingly, in such a situation the landlord
could not be said to be in khas possession of the land in
possession of the tenant-at-will who is in a position to
hold out against the landlord unless his lease is determined
in the manner prescribed by law.
Mr. Sarjoo Prasad, however, urged that the case would
be covered by s. 6(1) (b). The requirements for attracting
s. 6(1) (b) are in pari materia with the definition of khas
possession save and except that
19
if the land is held in direct possession of a temporary
lessee of an estate or tenure and is cultivated by such
lessee with his own stock or by his own servants or by hired
stock or hired labour it shall be deemed to be in khas
possession of the intermediary. Section 6(1) (b) envisages a
temporary lease of an estate or tenure by the intermediary
and if such lessee is personally cultivating the land
included in the estate or tenure then the land would be
deemed to be in khas possession of the intermediary. A
tenant-at-will is not a temporary lessee of an estate or
tenure. An estate or tenure is a certain kind of interest in
land. It is such an element of interest in land which is
described as estate or tenure and temporary lease of such an
estate or tenure is envisaged by s. 6(1) (b). Such being not
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the case here, s. 6(1) (b) would not be attracted.
Analysis of s. 6 read with ss. 3 and 4 along with the
definition of expression ’khas possession’ in s. 2(k) of the
Act would on principle unquestionably show that the land in
possession of a tenant-at-will cannot be said to be in khas
possession of the intermediary for the purpose of s. 6.
It was, however, contended by Mr. Sarjoo Prasad that
khas possession in s. 6(1) takes within its sweep right to
take possession. This position is no more res integra and is
concluded by two decisions of this Court. In Surajnath Ahir
& Ors. v. Prithinath Singh & Ors.,(1) it was contended that
the expression ’khas possession’ in s. 6(1) includes the
subsisting title of possession as well. Negativing this
contention this Court held as under:
"Reliance was placed by the High Court on the case
reported as Brijnandan Singh v. Jamuna Prasad (AIR 1958
Pat. 589) for the construction put on the expression
’khas possession’ to include subsisting title to
possession as well, and therefore for holding that any
proprietor, whose right to get khas possession of the
land is not barred by any provision of law, will have a
right to recover possession and that the State of Bihar
shall treat him as a raiyat with occupancy right and
not as a trespasser. We do not agree with this view
when the definition of ’khas possession’ means the
possession of a proprietor or tenure-holder either by
cultivating such land himself with his own stock or by
his own servants or by hired labour or with hired
stock. 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’.
20
This view was re-asserted in Ram Ran Bijai Singh & Ors.
v. Behari Singh alias Bagandha Singh(1) wherein this Court
held that this equation of right to possession as khas
possession is not justified on principle or authority.
The word used in s. 6 is not ’possession’ but it is
qualified by the adjective ’khas possession’ its equivalent
being ’actual possession’ as the word is understood in
contra-distinction to the word ’constructive possession’.
Frankly speaking, the law has still not provided clear and
unambiguous definition of the jurisprudential concept of
possession. Number of angular approaches to the problem of
possession can be referred to with confidence. Here we are
concerned with what is called ’khas possession’ in a statute
for ushering agrarian reforms and, therefore, the purpose
and object behind the legislation must inform the
interpretative process. The interpretation must tilt in
favour of the actual cultivator, the tiller of the soil.
Dealing with this expression, this Court in Gurucharan Singh
v. Kamla Singh & Ors.,(1) has observed as under:
"There are, therefore, three requisites of
possession. First, there must be actual or potential
physical control. Secondly, physical control is not
possession, unless accompanied by intention; hence, if
a thing is put into the hand of a sleeping person, he
has not possession of it. Thirdly, the possibility and
intention must be visible or evidence (sic) by external
signs, for if the thing shows no signs of being under
the control of anyone, it is not possessed;..! In the
end of all, however, the meaning of ’possession’ must
depend on the context (ibid p. 153). May be, in certain
situations, possession may cover right to possess. It
is thus clear that in Anglo-American jurisprudence
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also, possession is actual possession and in a limited
set of cases, may include constructive possession, but
when there is a bare right to possess bereft of any
domination or factum of control, it will be a strange
legal travesty to assert that an owner is in possession
merely because he has a right to possess when a rival,
in the teeth of owner’s opposition, is actually holding
dominion and control over the land adversely, openly
and continuously".
After thus observing this Court approved the ratio
extracted above in Surajnath Ahir’s case (supra) as also the
ratio in Ram Ran Bijai Singh’s case. (supra)
21
It was, however, said that in both these cases the
Court overlooked the fact that on redemption of a mortgage
the mortgagee is bound to deliver possession of the
mortgaged property to the mortgagor. In both these cases the
question was whether the tenant inducted by the mortgagee in
possession who had no right to continue in possession beyond
the redemption of the mortgage could be said to be holding
possession on behalf of the mortgagor as the mortgagor had a
right to evict him and the tenant had no right to continue
in possession against the mortgagor. It is true that
ordinarily a mortgagee in possession is under a duty to
surrender possession to the mortgagor on redemption of the
mortgage. A tenant inducted by the mortgagee, unless he is
protected by some other law, could be evicted by the
mortgagor on redemption of the mortgage. The mortgagor may
thus have a right to claim possession but once it is held
that the right to recover possession cannot be equated with
khas possession within the meaning of the expression used in
the Act it would have made no difference in the ultimate
decision of the Court even if the Court’s attention was
drawn to the fact that on redemption the mortgagee is bound
to deliver possession to the mortgagor.
Reliance was, however, placed on Sonawati & Ors. v. Sri
Ram & Anr.,(1) where in the context of the U.P. Zamindari
Abolition & Land Reforms Act, 1951, and U.P. Land Reforms
(Supplementary) Act, 1952, this Court examined the
connotation of the expression ’cultivatory possession’ and
held that a trespasser who has no right to be in possession
by merely entering the land by force cannot be said to be in
cultivatory possession within the meaning of the aforesaid
law. An observation in the context of a different scheme of
law would not assist in analysing the concept of ’khas
possession’ in the Act. Further, a tenant-at-will enters
possession with consent of landlord and till his tenancy is
determined, he is in lawful possession and cannot be styled
as a trespasser.
It thus becomes crystal clear that on 12th April, 1953
when the notification under s. 3 was issued the respondents
tenants-at-will were under a notice to quit which would
expire on 24th September 1953. Therefore, till 24th
September, 1953 the respondents tenants-at-will were in
actual and physical possession of the land and till that
date could hold against the intermediary landlord. It may be
that when the notice to quit dated 15th January, 1953 was
served the intermediary landlord may have a right to take
possession but till 24th September, 1953 when notice would
expire the respondents were in actual
22
possession and till then they could thwart any attempt of
intermediary landlord to take actual possession. Therefore,
on the date of the vesting i.e. 12th April, 1953 the
intermediary was not in khas possessions within the meaning
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of s. 6(1) and when on that day his estate vested in the
State he was not entitled to recover possession. After the
vesting of the estate in the State which event had occurred
prior to the institution of the suit he could not maintain
an action for eviction as he had no more subsisting interest
in the estate, his interest having vested in the State.
Mr. Sarjoo Prasad contended that an application under
Order 41, Rule 27, Code of Civil Procedure, was given
seeking permission to lead additional evidence which, if
permitted, would tend to establish that the land was already
settled with the plaintiff intermediary by the State as
envisaged by s. 6 and, therefore it is no more open to the
respondents to contend that the plaintiff intermediary was
not entitled to the settlement of the land in his favour.
Mr. Lal Narain Sinha, learned counsel for the respondents
countered this submission by saying that on the strength of
decree of the trial Court such an order is obtained but the
Court at this stage need not look into it because this Court
should consider the rival contentions of the parties
according to the facts and law as were available on the date
of the suit. Obviously, if the plaintiff appellant has
obtained some settlement of land on the basis of a decree of
the trial Court or the first appellate Court which became
interlocutory in view of the appeal preferred to the High
Court and then to this Court, it is not open to the
plaintiff to take any advantage of such a settlement. If
this evidence is allowed to be admitted on record at this
stage it might put the respondents at a disadvantage. Nor
can the validity of that settlement be determined in this
suit. Therefore, the rejection of this application is
justified. The appellants may seek relief in respect of the
so-called settlement in their favour as advised.
The last contention was that the appeal as a whole of
the respondents should have been dismissed by the High Court
in view of non compliance with the order made by the High
Court on 8th March, 1967. Entry 11 in the order sheet of
Second Appeal 343/64 shows that three day’s time was granted
by the Court to take steps for fresh service of notice of
appeal on respondents 2, 4 and 8-11 failing which the Court
directed that the appeal shall stand dismissed without
further reference to Bench. This order appears to have been
made because the respondents who were appellants before the
High Court appear not to have made energetic efforts to make
the appeal ready by completing the service. The next entry
serial No. 12 dated 10th
23
August, 1967 reads that seven day’s final time was allowed
to take steps to take out fresh notice as per the earlier
order. This entry is signed by the Deputy Registrar. Entry
13 in sequence dated 19th August, 1967 reads that as order
No. 12 which was final had not been carried out the matter
be placed before the Bench for orders. Entry 14 dated 23rd
August 1967 signed by the same learned Judge who had made
order entry 11 directs acceptance of talbana (process fee)
and C (costs), if filed in the course of the day. That order
appears to have been carried out except with regard to
respondents 11 and 4. Again the Deputy Registrar granted
seven day’s time. On 12th December 1967 the Registrar made
the order that the matter should be placed before the Bench.
There are some subsequent orders which are not very
relevant. Mr. Sarjoo Prasad urged that the order at entry 11
directed that if the direction therein made was not carried
out the appeal would stand dismissed without further
reference to the Bench and that the subsequent entry shows
that the direction was not carried out, and it was urged
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that the appeal stood dismissed and, therefore, the appeal
no more survived for consideration on merits. We find no
merit in this contention, firstly, because this contention
was not taken before the High Court though it was available
to the present appellants who were respondents before the
High Court. The contention could be said to have been
abandoned and once it is abandoned it cannot be re-agitated
before this Court vide decision of this Court in Jayarama
Reddy & Anr. v. Revenue Divisional Officer & Land
Acquisition Officer, Kurnool.(1) Apart from this, if the
Court fixes time for doing a certain thing, the Court always
retains the power to extend the time and the same learned
judge of the High Court who made order at entry 11 extended
the time as per order at entry 14. Therefore, it cannot be
said that the appeal stood dismissed.
Accordingly, there is no merit in this appeal and it
fails and is dismissed with costs.
P.B.R. Appeal dismissed.
24