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PETITIONER: KAVIRAJ BASUDEVANAND

       Vs.

RESPONDENT: MAHANT HARIHAR GIR (DEAD) & ORS.

DATE OF JUDGMENT01/08/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH

CITATION:  1974 AIR 1991            1975 SCR  (1) 590  1974 SCC  (2) 514

ACT: Bihar Land Reforms Act, 1950, ss. 9, 10 and 12--Scope of.

HEADNOTE: The   appellant’s   predecessor,    who  was  one   of   the intermediaries   of  certain  villages  filed  a  suit   for partition  and a preliminary decree was passed therein.   In 1950,  the  Bihar Land Reforms Act came into force  and  all these  villages  vested in the State.  The  parties  entered into  a compromise but the State was not a party to  it.   A final  decree was passed by the trial court in terms of  the compromise.   In appeal, the High Court set aside the  final decree on the ground that the suit had become infructuous as the  plaintiff  had  no  right in  law  to  the  properties, including  the mines, which were the subject matter  of  the suit,  as they had all vested in the State; and  that,  from the  date of vesting, the original title of  the  proprietor completely vanished and a new title had come into existence. In appeal to this Court, HELD : (1) The judgment of the High Court should be modified to the extent that there will be a final decree in favour of the appellant in respect of bakhast and zirat lands  subject to  laws regarding ceiling on lands in force in  the  State. [596 A-D] Bhubaneshwar v. Sideshwar [1971] 3 S. C. R. 639, followed. (2)The High Court was in error in holding that the benefit of  s. 9 of the Bihar Land Reforms Act is not  available  to persons  jointly interested in the mines before the date  of vesting  and that it is restricted only to the  intermediary directly  working  the mines.  Even though under  s.  9  all mines which were in operation at the commencement of the Act and were being worked directly by the intermediary shall  be deemed to have been leased by the State to the intermediary, the appellant, as a co-sharer, would be entitled to a  share in  such mines on the principle of Bhubaneshwar’s case.   It would  not,  however,  be possible to  give  effect  to  the consent  decree passed by the trial court in respect of  the mines.   Nor would it be possible to pass a final decree  in respect  of  bakhast  and  zirat  lands  in  favour  of  the plaintiff  and then leave the preliminary decree in  respect of  mines untouched leaving the plaintiff to put in a  fresh

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application  for  final decree in respect of mines,  as  the subject  is  too complicated to be dealt with in  the  final decree  proceedings.   Hence, though the High Court  was  in error in holding that the appellant was not entitled to  any share  in the mines unless he was himself  directly  working them,  the appellant will have to work out the  remedies  in respect of Mines by It separate suit. [594 C-595H] (a)The appellant would be entitled to take possession of a share  in  such  mines  only as  a  lessee  from  the  State Government.  But the terms and conditions of the lease would have to be agreed upon between the State Government and  the intermediary  or have to be settled by the  Mines  Tribunal. [595 A-B] (b)Further,  if  an  intermediary had opened  mines  in  a corner  of  a large area and was working it on the  date  of vesting  it  would not mean that he would be entitled  to  a mining lease in respect of the entire area.  Therefore,  the area  to  be covered by the lease will have  to  be  decided under s. 12 in the light of the provisions of the Mines  and Minerals (Regulation and Development) Act, 1957. [595 B-C] (c)Moreover,  under s. 10 of the Bihar Land  Reforms  Act, where  there  is a subsisting lease of  mines  and  minerals comprised in the estate the whole or that part of the estate comprised in such lease, shall be deemed to have been leased by  the  State Government to the holder  of  the  subsisting lease for the remainder of the term of that lease,, and  the appellant would not have any, right in such mines. [595 C-E] (d)But  there  is no material on record as to  what  mines were in operation who among the co-sharers of the  appellant were  working  the mines, and if so to what extent,  on  the date of the vesting in the State. [595 E] 591

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1709  of 1967. From  the judgment and decree dated October 11, 1963 of  the Patna  High  Court  at Patna in  Civil  Revision  Nos.  891, 1080/1081 of 1956. and F. A. 926 of 1956, 303 & 378 of  1959 and  F.A.  13 & 14 of 1960 arising out of the  Judgment  and Decree  dated the 4th day of June 1959 of the Court  of  the Sub-ordinate Judge of Hazaribagh in Partition.  Suit No.  25 of 1937. P. K. Chatterjee and Rathin Das, for the appellant. Bishan  Narain, K. K. Sinha and S. K. Sinha, for  respondent No. 1. I,.   N. Sinha, Solicitor General of India and R. C.  Prasad for respondent No. 4. U. S. Prasad, for the receiver. The Judgment of the Court was delivered by ALAGIRISWAMI,  J.  This litigation which began in  the  year 1937 has come up for consideration before us in this  appeal and we are not sure that this is the end.  In that year  one Dhirendra  Nath  Banerjee filed a suit  for  partition  and- allotment of his 3 annas 3 pies share out of 16 annas in  32 villages  and  a  4 annas share in another  village  in  the Hazatibagh  district  of Bihar.  A  preliminary  decree  for partition   was  passed  in  1939.   Appeals   against   the preliminary  decree were dismissed in 1943 and in  1945  the present  appellant  (he is now dead and his  heir  has  been added as party) purchased Banerjee’s share and he was  added as  a co-plaintiff in 1947.  In 1950 the Bihar Land  Reforms Act  came  into force and all these villages vested  in  the

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State  of Bihar on 8-9-1952 in pursuance of  a  notification issued  under that Act.  In consequence the State  of  Bihar was added as a party some time in 1952.  A commissioner  was appointed  to  effect  a  division  of  properties  and  lie submitted  his  report in March 1952.  In May  1952  a  com- promise  was entered into among the various parties  in  the suit.  To this consent order the State of Bihar, in whom the properties had vested, was not a arty.  A final decree  was, however, passed in terms of the consent between the parties. There   was   in  these  proceedings  an   application   for appointment  of receiver.  The order appointing  a  receiver led  to  an appeal being filed before the Patna  High  Court wherein  that Court observed that "the plaintiff’s suit  for partition must be held infructuous as he had no right in law now  to the properties, including the mines, which  were-the subject matter of the partition suit, which have all  vested in  the State".  The present appeal is however, against  the judgment of the High Court of Patna in the appeals filed  by the  various defendants against the final decrees passed  in the suit. Along with the appeal, appeals against the orders in certain other petitions were also disposed of by the High Court.  It is  only necessary to refer to Civil Revision  Petition  No. 891  of 1958 which the plaintiff filed against the order  of the Subordinate Judge rejecting his 592 prayer  for amendment of the plaint.  In that  petition  for amendment he had prayed;               (a)   That a separate takhta to the exte it of               the plaintiffs share be prepared with  respect               to the lands and minerals in possession of the               parties  to  the  suit as had  been  shown  in               Schedules  A,  B,  C and D  of  the  amendment               petition and also the tenancy rights  injirat,               bakhast  and  horticultural  lands  which  had               remained   in  possession  of   the   outgoing               proprietors after the vesting of the estate as               had been mentioned in Schedule E.               (b)   That a decree for mesne profits from the               date of the suit till the date of  realisation               with interest might be        allowed; and               (c)   That  any  other  relief  to  which  the               plaintiff was entitled might also be granted. In  Schedule A the plaintiff gave a description of  all  the mines which, according to him, had been opened and worked by him  up to the date of the report of the  Commissioner,  Sri Kalia,  i. c., the 6th March, 1952.  Schedule B contained  a list of the mines which according to the, plaintiff had been worked  by him after the date of the  Commissioner’s  report and before the date of vesting of the estate tinder the Land Reforms  Act,  i. e. between March and  October,  1952.   In ’Schedule  C  the plaintiff mentioned a list  of  the  mines which  were  in possession of the proprietors  of  one  anna share of the Gaddi Masnodih and who had not compromised with the  plaintiff.   In Schedule D he mentioned  the  mines  in possession  of  the  other co-sharers.   In  Schedule  E  he referred  to  all  zirat,  bakhast  and  horticultural   and homestead  lands situated in some villages in touzi  No.  32 which,  according  to him, had not vested in  the  State  of Bihar and in which new rights under the Land Reforms Act had been  created in favour of the ex-proprietors.  The  learned Subordinate  Judge after hearing the parties disallowed  the amendment.   The  High Court rejected  that  Civil  Revision Petition against that order. In  the  main appeal the Court held that  the  final  decree

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passed  by the Court below could not be maintained and  must be set aside.  The main reason was that the plaintiff’s suit for  partition had become infructuous, that he had no  right in  law  now to the properties, including the  mines,  which were the subject matter of the partition suit, as they  have all  vested in the State, that from the date of vesting  the original title of the proprietor completely vanished and new title  had  come  into existence.   The  contention  of  the plaintiff  that the working mines and the bakhast and  zirat lands were not taken over by the State and the suit at least with  respect  to  such properties  must  succeed  was  also rejected  by  the Court.  As to working mines, it  was  held that  they also vested in the State,  thereby  extinguishing the  old title, and the ’intermediary, who had been  working the  mines directly at the time of vesting was  entitled  to retain possession of those mines as lessee under the  State, and  the benefit of section 9 of the Bihar Land Reforms  Act was not available to all persons jointly interested  therein before 593 the  date of vesting and it was restricted to  fire  person, i.e.  the  intermediary  directly working  the  mines.   The consequence  of that provision was held to be that  the  co- sharer-  intermediaries  who  were  not  concerned  in   the operation of the mines will have no interest therein. Before this Court only the first respondent and the State of Bihar have appeared.  In view of a later decision by a  Full Bench  of  the  Patna  High  Court  in  Ramrudhar  Singh  v. Dileshwar  Singh (AIR 1965 Patna 117) and of this  Court  in Bhubaneshwar   v.  Sidheswar  (1971  3  SCR  639)  the   1st respondent and the State of Bihar have rightly conceded that the plaintiff would be entitled to his share in the  bakhast and  zirat  lands.   On behalf of the  State  of  Bihar  the learned  Solicitor General has, however, urged that this  is without  prejudice  to the provisions of any  law  regarding ceilings  on  land which might have been enacted  in  Bihar. This  submission  is undoubtedly well founded.   Any  decree which  the  plaintiff might get in respect  of  bakhast  and zirat  lands in this suit will not enable him to  avoid  the provisions of any law regarding ceiling on land in force  in the State of Bihar. As regards the mines, however, there are certain difficult,. The  Patna  High  Court was in error  in  holding  that  the benefit  of  s.  9  of the Bihar Land  Reforms  Act  is  not available  to all parsons jointly interested therein  before the  date  of  vesting  aid that it  is  restricted  to  the intermediary  directly  working  the  mines.   In   Mahanath Sukhdeo  Das  V. Kashi Prasad Tewari and  Shrideo  Misra  v. Ramsewak-  Singlr (ILR 37 Patna 918) the Full Bench  of  the Patna High Court held that tile provisions of the Bihar Land Reforms  Act  have  to be construed it,  the  light  of  the existing  law  and in the light of the  history  behind  the legislation,  and therefore, a tenure-holder as  defined  in section  2(r)  does  not mean a person who  is  actually  in possession  of  the tenure and consequently  the  expression "Khas  possession  of an intermediary" on the date  of  such vesting  in  section  6 of the Act .... does  not  mean  the possession  of  the intermediary who was  actually  in  pos- session  on the date of the vesting to the exclusion of  the co-intermediaries.   Khas  possession  of  the  intermediary means the possession of the intermediary who was cultivating land either for his own benefit or in trust for others.   If this be the position of an intermediary tinder the Act, then obviously the words "khas possession" ccurring in section  6 of the Act do not exclude constructive possession."

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Another  Full  Bench of the Patna High Court  in  Ralnrudhar Singh, v. Dileshwar Singh (AIR 1965 Patna 117) took the view that the decision under appeal in the present case that when the  estate vested in the State of Bihar, a  co-sharer,  who was  not  in possession of lands used  for  agricultural  or horticultural  purposes was not entitled to any interest  in it, was wrong and must be overruled. The  matter has been finally settled by a decision  of  this Court  in, Bhubaneshwar v. Sidheswar (1971 3 SCR 639)  in  a case  that  had  arisen under the  Bihar  Land  Reforms  Act itself.   In  that  case  it  was  observed  "even  if   the appellants were in actual khas possession within the 594 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 pos.session of  all ca-sharers..  .  .  The  deeming provision  of  s.  6  must, therefore, enure for the benefit of all, who in the eyes  of law  would  be regarded as in actual possessions."  it  was, therefore, held that the plaintiff had not lost his share in the  bakhast lands and had a right to them though not  as  a tenure-holder or proprietor but certainly as a raiyat  under the  provisions of the Act.  This Court also observed  ,that there  was no reason to hold that the observations  of  this Court ’that in law possession of one co-sharer is possession of  all the cosharers, as was held in P. L. Reddy v.  L.  L. Reddy  (1957 SCR 195, 202) ’were not applicable to the  case before this Court.  If that is so with regard to bakhast and zirat  lands and a co-sharer is entitled to his  share  even though he might be only in constructive possession, there is no  reason why the same principle should not apply to  mines also either on principle or on authority.  The definition of the  expression ’khas possession’ in the Bihar Land  Reforms Act, if any thing, is stronger from the point of view of the person who is actually cultivating the lands than that of  a person who is working directly (the mines) under s. 9 of the Act.   Therefore,  the appellant would be  entitled  to  his share  in  mines which had been worked directly by  any  co- sharer. Though  the  view of the Patna High Court on this  point  is wrong,  there are a number of other difficulties  which  the plaintiff  has to face.  Under section 9 of the  Bihar  Land Reforms Act though all mines which were in operation at  the commencement  of the Act and were being worked  directly  by the intermediary shall be deemed to have been leased by  the State  Government  to  the  intermediary  and  he  shall  be entitled  to  retain possession of those mines as  a  lessee thereof,  there are a number of conditions which are  to  be satisfied.   Under sub-s. (2) of that section the terms  and conditions  of the said lease by the State Government  shall be  such as may be agreed upon between the State  Government and the intermediary or in the absence of agreement, as  may be  settled by a Mines Tribunal appointed under section  12. Furthermore,  all  such  terms and conditions  shall  be  in accordance  with the provisions of any Central Act  for  the time  being  in  force regulating the grant  of  new  mining leases.   Under  section 12 (2) in settling  the  terms  and conditions of a lease by the State Government under  section 9,  the  Mines Tribunal shall have power  to  determine  the extent  of  the property deemed to have been leased  by  the State  and in so doing shall have regard to  the  reasonable requirements  for  the future deve-lopment of  the  lessee’s mining  concern.  In this case there is no averment  in  the plaint or anywhere on record as to what mines were in opera-

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tion  on  the date of vesting of the estate  in  the  State. Quite  obviously,  if any of the  intermediaries  had  begun operating a mine after that date they would not be  entitled to  any rights in those mines.  Even though the mines  shall be  deemed to have been leased by the State  Government.  to the intermediary and he shall be entitled to take possession of  those mines as a lessee,it could be only  in  accordance with  the  terms  .and  conditions of  lease  by  the  State Government and those terms and 595 conditions   should  be  agreed  upon  between   the   State Government  and the intermediary or be settled by the  Mines Tribunal.   The appellant would be entitled to a share  only in such mines.  We have on means of knowing what those mines are. There  is again the question of the area of the  mine.   For instance, in an area of 100 sq. miles a mine might have been opened  by  the  intermediary in one  corner  and  might  be working  on  the date of the vesting; but it does  not  mean that  he would be entitled to a mining lease in  respect  of all the 100 sq. miles.  The area to be covered by the  lease should  be  decided under s. 12.  The words in  the  section regarding mines being in operation should be interpreted  in the light of the provision of Mines and Minerals (Regulation &  Development)  Act, 1957.  The mining lease will  have  to conform to the provisions of s. 6 of the Mines and  Minerals (Regulation  & Development) Act regarding the  maximum  area for  which the mining lease will have  effect.  Furthermore, under s. 10 of the Bihar Land Reforms Act, whereimmediately before the date of vesting of the estate or tenure there  is a  subsisting  lease of mines or minerals comprised  in  the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall,  with effect  from  the  date of vesting be deemed  to  have  been leased  by  the State Government to the holder of  the  said subsisting  lease  for  the remainder of the  term  of  that lease,   and  such  holder  shall  be  entitled  to   retain possession  of the lease-hold property.  The appellant  will have no right ill such mines. There  is  no allegation and no evidence in  the  plaint  or anywhere  else on record as to who among the  co-sharers  of the  plaintiff  were working the mines, and if  so  to  what extent  on  the date of the vesting in the State.   Even  if they  had been so working the normal term of a lease  is  20 years and that term Would have come to an end even in 1972. It  would not, therefore, be possible to give effect to  the consent  decree passed by the Trial Court in respect of  the mines.   Nor is it possible, as contended on behalf  of  the appellant  to pass a final decree in respect of bakhast  and zirat  lands in favour of the plaintiff and then  leave  the preliminary decree in respect of the mines untouched leaving the plaintiff to put in a fresh application for final decree in respect of the mines.  The subject is too complicated  to be  dealt with in the final decree proceedings in the  suit. The  plaintiff would have to make proper allegations  as  to which among his co-sharers were operating the mines in 1952. If  they  have been operating any mines it may be  that  the appellant would be entitled to a share.  But if the term  of the mining lease has come to an end it would be a matter  of accounting  between the co-sharers who had, actually  worked the  mines  and  the appellant.  The  first  respondent  has disclaimed all interest in the mines.  If all the mines  are being  worked by lessees no question of the appellant  being entitled  to  any rights would arise at all.  If  there  had been  a  renewal  of the mining leases  a  further  question

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whether  the plaintiff would be entitled to a share in  them would arise. 596 The  best thing that could be done in the circumstances  is, therefore,  to  uphold the judgment and decree of  the  High Court in respect of the mines leaving it to the plaintiff to file  a suit, if he is so advised for such relief as he  may consider  available to Wm.  The judgment of the  High  Court would  be modified to the extent that there will be a  final decree in favour of the appellant in respect of the  bakhast and  zirat lands subject to laws regarding ceiling on  lands in force in Bihar State.  Though we have held that the  High Court  was  in error in holding that the plaintiff  was  not entitled  to  any share in the mines unless he  was  himself directly  working those mines he wilt have to work  out  his remedies in respect of the mines by a separate suit.  In the circumstances the parties would bear their own costs. V.P.S.             Decree modified 597