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PETITIONER: BRIGHU NATH SAHAY SINGH AND ORS.

       Vs.

RESPONDENT: MD. KHALILUR RAHMAN AND ORS.

DATE OF JUDGMENT04/09/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 SCC  (5) 687        JT 1995 (9)   601  1995 SCALE  (5)356

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Substitution allowed.              To.      This appeal  by special  leave arises from the judgment and decree  dated November  7, 1983  of the Patna High Court made in  A.A.D. No.  132 of  1973.  The  appellants  claimed themselves to be the proprietors of the land of 4 Bighas, 15 Kathas 10  Dhurs of  an old  Tauzi No.  1298 [New  Tauzi No. 8655] situate  in Saraunja  village in District Begusarai in Bihar. Their  plea was  that they  had title  to and were in possession of the said land and that the respondents have no right to  the possession  of the  said land. The Trial Court decreed the  suit for  possession holding  that they had the title. On appeal, it was confirmed but in the second appeal, the High  Court reversed  the same  holding that  after  the Bihar Land Reforms Act, 1950 [for short, ’the Act’] had come into force  on September  25, 1950,  the appellants  had  no title to the property and, consequently, they cannot recover possession  from  the  respondents.  Thus,  this  appeal  by special leave.      Pursuant to the notice issued by this Court on December 8, 1994, Shri B.B. Singh, learned counsel for the State, has placed before  us  the  notification  issued  by  the  State Government acquiring the lands in question by publication of the notification  under Section 4 of the Act in the Gazette. Consequently, it  is clear  that the  lands in question have been vested  in the  State free  from all  encumbrances  but subject to  the provision  of the  Act from  the date of the notification, viz., January 26, 1955.      The question  thus arises  whether the  appellants  can claim title  to the  property and recover possession thereof from the  contesting respondents.  The effect of the vesting under the  Act was  considered by this Court in Labanya Bala (Smt.) vs.  State of Bihar Patna Secretariat, Patna and Anr. [(1994) Supp.  3 SCC  725]. It was held that by operation of

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Section 4 such estates or tenures including the interests of the proprietor in such an estate or tenure and his interests in trees  forests, fisheries  etc,  and  all  other  sairati interests as  also his  interest  in  all  sub-soil,  rights including any  rights in  mines and  minerals etc other than the interests  of the  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 Section  6  of  the  Act  which provides that  "on and  from the  date of vesting, all lands used for  agriculture or horticulture purposes which were in khas possession  of an  intermediary on  the  date  of  such vesting, including  land used  for agriculture  and held  in 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... shall, subject  to the provisions of Sections 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall  be entitled  to retain possession thereof and hold them a  raiyat under  the State  having occupancy  rights in respect of  such lands  subject to  the payment of such fair and equitable  rent as may be determined by the Collector in the prescribed manner."      Khas possession  has been defined under Section 2(k) of the Act which reads as under:      "Khas possession"  with reference to the      possession of  a proprietor  of any land      used for  agricultural or  horticultural      purposes means  the possession  of  such      proprietor   or    tenure   holder    by      cultivating such  lands or  carrying  on      horticultural operations thereon himself      with  his   own  stock  or  by  his  own      servants by  hired labour  or with hired      stock."      A reading  of Section 2(k) with Sections 4 and 6 of the Act, clearly envisages that the intermediary must, as on the date of  vesting, be  in possession  of the  land  used  for agricultural purpose  or horticulture  purpose as  a  tenure holder by  cultivating such land or carrying on horticulture operations thereon  by himself  with his own stock or by his own servants or by hired labour or with hired stock.      In view  of the  findings recorded  by the courts below that the  respondents have  been in  self cultivation of the land, the  appellants cannot  claim any  rights as they were not in  khas possession  of the  lands vested  in the  State under s.4 of the Act. Therefore, the appellants cannot claim to be  in Khas  possession of  the lands  in question.  As a consequence, they  cannot claim  any rights in the land. The rights of  the appellants,  if  any,  on  the  date  of  the vesting, i.e.,  January 26,  1955, shall  cease in  them and shall stand  vested in  the State free from all encumbrances subject to  the rights,  if  any,  held  by  the  contesting respondents that  would be  decided by  the Government in an appropriate form.      The appeal is accordingly dismissed but without costs.