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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