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PETITIONER: SURAJNATH AHIR AND OTHERS

       Vs.

RESPONDENT: PRITHINATH SINGH AND OTHERS

DATE OF JUDGMENT: 04/05/1962

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR GUPTA, K.C. DAS

CITATION:  1963 AIR  454  CITATOR INFO :  E          1971 SC  77  (10)  F          1971 SC2251  (6)  F          1977 SC   5  (7,10,22)  RF         1979 SC1769  (26,28)  R          1988 SC1478  (6)

ACT: Land  Reform--Suit  for  recovery of  possession  after  re- demption of mortgage--Limitation--Vesting of estates in  the State--Subsisting  title to possession, if confers right  to recover possession--Bihar Land Reforms Act, 1950 (Bihar  XXX of 1950), ss. 2(k) 3(1), 4(a), 4(f) , 6(1) (a) (b), (c),

HEADNOTE: The  plaintiff-respondents sued the appellants for  recovery of  possession of the lands in dispute.  The appellants  had entered  into possession of the lands on the strength  of  a mortgage  deed.   The mortgagors executed  another  mortgage with respect to their milkiat interest in favour of  certain persons.   The  plaintiff-respondents  bought  the   milkiat rights  shares  together  with  the  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  possession of  the  lands  in  dispute after  the  mortgages  had  been redeemed.   The  trial  court  found  that  the   plaintiff- respondents  had no subsisting title to the lands  and  that the  suit was barred by adverse possession  and  limitation. The   High  Court,  on  appeal  filed  by   the   plaintiff- respondents, allowed the appeal on the 291 ground that the defendant-appellants were in possession only as mortgagees and that after the redemption of the  mortgage they had no right to continue in possession. The  appellants  than  appealed  to  the  Supreme  Court  by certificate granted by the High Court.  Apart from the ques- tions  of estoppel and limitation by adverse possession  the main  point  which  was raised in the appeal  was  that  the plaintiff-respondent  had no subsisting title to  evict  the appellant  in  view  of the provisions  of  the  Bihar  Land Reforms Act, 1950. Held,  that the suit was instituted within twelve  years  of

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the  redemption of the mortgage deed and was  not  therefore barred by limitation. Section 4 of the Act vests in the State all the interests of the  proprietor  or tenure-holder, including  the  right  to recover   possession  from  the  trespasser,  except   those interests  which are expressly saved by the Act.   Since  no mortgage  subsisted on the date of the vesting in the  State the  respondent could not take advantage of s. 6(1)  (c)  of the Act (as amended by Act XVI of 1959). The  mere fact that a proprietor had a subsisting  title  to possession  over certain land on the date of  vesting  would not  make that land under his ’Khas Possession’.   The  res- pondents  lost  their right to recover possession  from  the appellants  even if they were trespassers, on  their  estate vesting in the State. Brijnandan  Singh v. Jamuna Prasad A. I. R., 1958 Pat.  589, Haji Sk.  Subhan v. Madhorao [1962] Supp.  I S.C.R. 123.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 533 of 1960. Appeal from the judgment and decree dated January 28,  1959, of the Patna High Court, in Appeal from Original Decree  No. 143 of 1948. B. K. Saran and K. L. Mehta, for the appellants. R. K. Garg, D. P. Singh, S. C. Agarwal and M. K. Ramamurthi, for the respondents. 1962 May 4. The Judgment of the Court was delivered by 292 RAGHUBAR DAYAL, J.-This appeal, on a certificate granted  by the  High  Court  of  Judicature at  Patna,  arises  in  the following circumstances: The  plaintiffs-respondents  sued  the  appellants  for  the recovery  of  possession  of the disputed  lands  and  mesne profits  as  the family of the defendants did not  have  any raiyat interest in the disputed lands except rehan  interest under the rehan deed dated July 3, 1906, and that subsequent to the redemption of that deed, they had no right to  remain in possession and occupation of the disputed lands. The  plaintiffs alleged that Pranpat Bhagat and others  held eight  annas share of milkiat interest in village  Sevathra, pargana  Nonaur,  tauzi No. 3879 and that  the  other  eight annas  share  was  held by Kunj Bihari  Bhagat  and  others. These  persons also held khudkasht lands in the village  and that  such lands were treated as kasht lands.  In  1906  Ram Autar  Bhagat,  one of the members of the  joint  family  of Pranpat  Bhagat, executed the mortgage deed with respect  to 15  bighas of land out of 16 bighas of kasht lands, to  Sheo Dehin  Ahir, on behalf of his joint family.  The  defendants entered into possession on the basis of that mortgage  deed, they having had no connection with the land mortgaged  prior to the execution of the mortgage deed. Later  on,  in  1912, Ram Lal Bhagat and  Munni  Bhagat,  of Pranpat’s  family,  executed  another  mortgage  deed   with respect to their entire milkiat interest in favour of  Jatan Ahir  and Ram Saran Ahir who also belonged to the family  of Sheo Dehin Ahir.  They then got into possession of the fresh land which had been mortgaged. Ram Lal Bhagat and others sold their milkiat share  together with  the  kasht  lands  to the  plaintiffs  in  1915.   The plantiffs entered into possession 293 of  the  milkiat  property  and  subsequently  redeemed  the mortgage deeds in 1913.  The plaintiffs also purchased  four

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annas share belonging to the branch’ of Kunj Bihari  Bhagat, The  other tour annas share of that branch was purchased  by Raja Singh who then sold it to Ram Ekbal Singh, impleaded as defendant No. 6 in the plaint.  The defendants, however, did not  make  over possession of the land in  suit  after  the mortgage  deeds  had been redeemed and hence  the  suit  was instituted for a declaration and recovery of possession. The defendants 1 to 5 did not admit the allegations made  by the  plaintiffs and stated the real state of affairs  to  be that the disputed lands were never the bakasht lands of  the proprietors of the village and were really the raiyati qaimi kasht  lands  of the defendants. that the  plaintiffs  never purchased  the disputed lands, that the disputed lands  were the  raiyati kasht lands of Ram Autar Bhagat only,  who  let out the disputed lands in rehan under different rehan  deeds alleging them to be raiyati kasht lands, and who had earlier treated  it as his exclusive raiyati kasht lands, and  that, ultimately, Ram Autar Bhagat sold the disputed lands to  the defendants  and  got their names entered  as  qaimi  raiyati kushtkars.   It was further alleged that the defendants  bad acquired  title  to the land in suit by  virtue  of  adverse possession. The trial Court found that the plaintiffs had no  subsisting title  to the lands in suit as those lands were not sold  to the  plantiffs  who  had  purchased  the  milkiat   interest including  the  bakasht and zerat lands, that the  suit  was barred by adverse possession also and that it was barred  by limitation.  It therefore dismissed the suit. On  appeal,  the  High Court held that  the  plaintiffs  did purchase  the land in suit and that the defendants  were  in possession only as mortgagees 294 and that, after the redemption of the mortgage, they had  no right  to continue in possession.  It therefore allowed  the appeal  and decreed the plain  tiffs’ suit.  The  defendants have now filed this appeal. Learned counsel for the appellants has urged five points:               (1) The record of rights supported the case of               the  defendants  that  they  were  the   qaimi               raiyats  and  that  the  High  Court   wrongly               construed them.               (2)  The  sale deed of 1915 in favour  of  the               respondents did not include the land in suit.               (3)   Even   if   the   plaintiffs-respondents               acquired   right  to  the  land  in  suit   by               purchase,  they are estopped from  taking  any               action  against the defendants-appellants  who               had been in possession for long.               (4)  The suit is barred by limitation  as  the               defendants   had  perfected  their  title   by               adverse possession and the plaintiffs had  not               been in possession within limitation,               (5)   The   plaintiffs-respondents   had    no               subsisting  title to evict the  appellants  in               view  of  the  provisions of  the  Bihar  Land               Reforms Act, 1950 (Bihar Act XXX of 1950). The  case  set up by the defendants with  respect  to  their acquiring  the qaimi raiyati kasht rights, in their  written statement, has been disbelieved by the Courts below and,  we think,  rightly.   It follows that the  defendants  were  in possession of the land in suit only as mortgagees as held by the  Court below and. that they had no right  to  possession after the mortgage had been redeemed.  295 By  the sale deed dated October 5, 1915, Ram Lal Bhagat  and

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others sold the property described thus in the sale deed:               "8  (eight) annas ancestral milkiat  interest,               out  of  Tauzi No. 3879,  in  mauza  Sewathra,               pergana Nanaur, thana Pito, district Shahabad,               Sub-registry office Jagdishpur, the Sadar Jama               whereof   is   Rs.  190/which  has   been   in               possession   and   occupation   of   us,   the               executants    without    copartnership     and               interference by anybody together    with   all               the present Zamindari rights   appertaining               thereto,  without excluding any  interest  and               profit,  together with Zirat lands which  have               been  recorded  in the survey  papers  in  the               names of us, the executants as bakasht (lands)               and  new  and old party lands,  aam  and  Khas               Chairmazrua  lands, baharsi dih, house of  the               tenants  ground rent, ahar,  pond,  reservoir,               tank,  orchard, fruit-bearing  and  non-fruit-               bearing  trees  and bambooclumps that  is  the               entire   lands  and  profit   (derived   from)               zamindari below and above the surface existing               or  which  may be derived  in  future  without               excluding anything." They  emphasized the extent of the sale property further  by saying:               "We, the executants, gave up and  relinquished               our  respective possession and  occupation  of               vended  property today.  The  entire  interest               excluding   only   the   chaukidari    chakran               (service)  land  which  has been  let  out  in               settlement  with us’ the executants  is  being               sold.   The chaukidari land only is not  being               sound (sic)." 296 It  is clear therefore, as held by the High Court, that  the land in suit which is included in the milkiat share was  not excepted  from sale.  The only property excluded  from  sale was the chaukidari chakran land. The  long  possession of the appellants therefore  does  not estop the respondents from recovering possession from  them. The suit was instituted within 12 years of the redemption of the mortgage deed and is not therefore barred by limitation. The  only  other  question  to  determine  is  whether   the plaintiffs-respondents  cannot recover possession  from  the appellants  in  view  of the provisions of  the  Bihar  Land Reforms Act, 1950 (Act XXX of 1950), hereinafter called  the Act, which came into force during the pendency of the appeal in  the High Court.  The trial Court dismissed the  suit  on March 8,1948.  The High Court allowed the appeal on  January 28, 1958.  The Act came into force on September 25, 1950. Sub-section  (1)  of  s. 3 of the Act  empowered  the  State Government  to declare by notification that the  estates  or tenures  of a proprietor or tenure holder specified  in  the notification have passed to and become vested in the  State. Such vesting took place on January 1, 1955.  It is contended for  the appellants that the respondents ceased to have  any proprietary  right  in the land in suit  when  their  estate vested  in  the  State and therefore they had  no  right  to recover possession from them. Section 4 of the Act mentions the Consequences which  follow on  the publication of the notification under sub-s. (1)  of s. 3. According to s. 4(a), such estate or tenure  including the  interests  of the, proprietor or tenure-holder  in  the various  objects mentioned therein shall, with  effect  from the date of vesting, vest absolutely in the State free fro.,

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297 all encumbrances, and such proprietor or tenureholder  shall cease  to have any interest in such estate or  tenure  other than the interest expressly saved by or under the provisions of  the Act.  This makes it absolutely clear that after  the vesting of the estate, no interest other than that expressly saved by or under the provisions of the Act remained in  the respondents.   The  right to recover  possession  from  .the trespasser  also got vested in the State.  Subclause (f)  of s.  4 provides that the Collector shall take charge of  such estate  or tenure and of all interests vested in  the  State under the section. In this connection reference may be made to the decision  of this  Court in Haji Sk.  Subhan v. Madhorao (1) which  dealt with a similar question in the context of the provisions  of the   Madhya   Pradesh  Abolition  of   Proprietary   Rights (Estate’s, Mahals, Alienated Lands) Act, 1950 (M.P. Act  No. 1 of 1951). We have now to consider whether any interest in the land  in suit  was expressly saved by or under the provision  of  the Act in favour of the respondents. Section 6 of 4 the Act provides inter-alia that on and  from the  date  of  vesting,  all  lands  used  for  agricultural purposes  which were in khas possession of a  proprietor  or tenure-holder  on the date of vesting shall be deemed to  be settled  by the State with such proprietor or  tenure-holder as  the  case may be and such  proprietor  or  tenure-holder 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 and  equitable rent as may be determined by  the  Collector. The lands coming within this section included lands used for agricultural  purposes  forming  the  subject  matter  of  a subsisting mortgage on the redemption of which the (1) [1962] Supp. 1 S.C.R. 123. 298 intermediary is entitled to recover khas possession. thereof It  follows that such lands, though not in the  actual  khas possession  of the proprietor on the date of  vesting  would also be deemed to be settled with the proprietor, who  would retain their possession as raiyat under the State.               According to s.2(k) of the Act,               " ’khas possession’ used with reference to the               possession of a proprietor or tenure-holder of               any  land used for agricultural  or  horticul-               tural  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." On  the  date of vesting, the respondents were not  in  khas possession  of  the  land  in  suit  as  they  were  not  in possession   in  any  of  the  manner  mentioned   in   this definition. Section  6  does  not  really  enlarge  the  scope  of   the expression  ’Khas possession but includes lands  covered  by cls.  (a), (b) and (c) of sub. s. (1) among the lands  which can  be  deemed  to  be  settled  by  the  State  with   the proprietor.  Clause (c) originally was :               "lands used for agricultural or  horticultural               purposes and in the possession of a  mortgagee               which immediately before the execution of  the               mortgage  bond were in khas possession of  Such               ’proprietor or tenure holder-"

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This clause was substituted by another clause by a. 6 of the Bihar  land Reforms (Amendment) Acts 1959 (Act XVI of  1959) and  under  that  section the substituted  clause  shall  be deemed always to have 299 been  substituted, that is to say, is to be deemed  to  have been  in the of original Act from the very  beginning.   The substituted el. (c) reads :               "(c)  lands  used for agricultural  or  horti-               cultural  purposes forming the subject  matter               of a subsisting mortgage on the redemption  of               which the intermediary is entitled to  recover               khas possession thereof. " It  is  therefore  necessary for  the  respondents,  to  get advantage of the pro-visions of this clause, that there be a subsisting mortgage on the date of vesting and that the land included  in  the subsisting mortgage be such  that  on  the redemption  of the mortgage the respondents be  entitled  to recover  khas possession thereof.  No mortgage subsisted  on the date of vesting and therefore the benefit of this clause cannot  be taken by the respondents.  The land in suit  does not  come  within  the provisions of el. (c)  or  any  other clause  of  sub-s. (1) of s. 6 of the Act.  This  point  was raised  in the High Court which observed as follows in  this connection :               "In  the  first place the defendants  were  in               possession as mortgages and, even section 6 of               the Bihar land Reforms Act provides that,  the               possession of the mortgagee is the  possession               of  the  mortgagor  even for  the  purpose  of               construing  the meaning of Khas possession  of               the  intermediary over the land which  may  be               deemed  to  be settled with him by  virtue  of               section   6  of  the  Act.   The   defendants’               possession  being the mortgagees’  possession,               the case is covered by the terms of section  6               itself.   Apart from it, it has been  held  in               the case of Brij Nandan Singh v. Jamuna Prasad               Sahu and Another (First 300               Appeal No. 205 of 1948) by a Division Bench of               this  Court  that the words  ’Khas  possession               include subsisting title to possession as well               and  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 the State of Bihar shall  treat               him as Raiyat with occupancy right and not the               trespassers.   The contention of  the  learned               Advocate  General  must fail in terms  of  the               above decision." 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 wasnot  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 as it stood  when the High Court. delivered the judgment. Reliance  was placed by the High Court on the case  reported as   Brijnandan   Singh  v.  Jamuna  Prasad  (1)   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

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and  that  the St-.to 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  sub- sisting title to possession over certain land on the date of vesting   would   not  make  that  land  under   his   ’khas possession’. (1) A. I. R. 1958 Pat. 589.  301 It is clear therefore that the land in suit cannot de deemed to  be  settled  with  the  respondents  by  the  State   in accordance  with the provisions of s. 6 of the Act.  In  the absence  of any such settlement, no rights over the land  in suit remained in the respondents after the date of  vesting, all  their  rights having vested in the State by  virtue  of sub. s. (1) of s. 3 of the Act. We are therefore of opinion that the respondents lost  their right  to recover possession. from the appellants,  even  if they were trespassers, on their estate vesting in the State, by  virtue  of ss. 3 and 4 of the Act  and  that  therefore, thereafter,   they  had  no  subsisting  right  to   recover possession from the appellants.  The right to possession now vests in the State.  The respondents being no more  entitled to recover possession of the land in suit the decree of  the High Court has to be set aside.  We, accordingly, allow  the appeal, set aside the decree. of the Court below and restore the decree of the trial Court, though for reasons other than those  given  by  that  Court  in  its  judgment.   In   the circumstances  of  the case, we order the  parties  to  bear their own costs.                      Appeal allowed. 302