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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