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PETITIONER: BRIJ KISHORE PRASAD SINGH AND OTHERS

       Vs.

RESPONDENT: JALESHWAR PRASAD SINGH AND OTHERS

DATE OF JUDGMENT02/03/1973

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN GROVER, A.N. MUKHERJEA, B.K.

CITATION:  1973 AIR 1130            1973 SCR  (3) 562  1973 SCC  (1) 672

ACT: Code  of  Civil  Procedure,  1908,  S.  47.-Partition   suit compromised-No  decree drawn up or executed-Subsequent  suit for possession of property allotted under compromise whether barred. Bihar  Land Reforms Act 1959, s.  5-Constructive  possession sufficient to confer right under section.

HEADNOTE: A partition suit between K and his brothers was  compromised on  July 4, 1947 and different schedules were  prepared  for the property ,allotted to the sharers.  However none of  the parties to the compromise produced the necessary stamp paper as directed by the Court, and no decree was drawn up by  the Court.   The  present suit was filed by  the  successors-in- interest  of  K. for possession of  certain  property  which under the aforesaid compromise had fallen to the share of K. Defendants  1  and  2 contended that K while  he  was  alive executed  a hukumanama in their favour and they were put  in possession  of the plaint property as lessees, and  so  they were entitled to retain possession.  They further  contended that  the suit was barred by limitation and also by  section 47 of the Civil Procedure Code.  The Trial Court decreed the suit.  The decree was confirmed in appeal.  In second appeal the  High  Court held that the plaintiff  should  have  paid stamp fee and got the decree drawn up in the partition  suit and  executed it- and go the suit was barred by sec.  47  of Civil Procedure Code.  The Court further held that since the plaint property had vested in the Bihar Government under the Bihar Land Reforms Act, 1959 the plaintiffs were not entitle to  maintain the suit.  The High Court  accordingly  allowed the  appeal  and dismissed the suit.  In appeal  by  special leave   to   this  Court  two  questions  that   arose   for consideration  were  : (1) whether the suit  was  barred  by section 47 of the Civil Procedure Code and (2) whether under the  provisions of the Reforms Act the plaint  property  had vested    in  the  Government and therefore  the  plaintiffs were    incompetentto maintain the suit. Allowing the appeal, HELD : (i) It was clear from the compromise petition thatthe defendants  were  permitted to occupy  the  plaint  property

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untilthe   structure  which  was  constructed  in   the property  was  removed by them.  They no doubt  remained  in physical  possession but that was not with any intention  to possess  the property for themselves, but because they  were permitted  to  remain  in possess-ion  until  the  structure constructed by them was removed.  The only right which  they claimed in the written statement was that they were  tenants under K by virtue of the. hukumnama executed by him in their favour.   At no time they asserted or claimed any  right  to remain in possession otherwise than as tenant.  ’Their  case that K put them in possession was found against them by  the Trial as well as the First Appellate Court.  But that  would not  in  any  way  affect the  permissive  nature  of  their possession after the compromise.  Therefore it must be  held that K was in constructive possession of the property  after the compromise and the suit for recovery of khas possession was  not barred by section 47 of the Civil Procedure  Code. [565CE]                             563 (ii)The  High Court wrongly took the View that since K  was not  in possession of the property at the time the  property vested in the State he was not entitled to retain possession of the plaint property under s. 5 of the Bihar Land  Reforms Act  1959, as a tenant under the State free of rent.   There was  no  dispute  that  the  plaint  property  answered  the description  of  a  homestead  in s.  5  of  the  Act.   The constructive possession of K was sufficient to enable him to retain  possession as tenant under the section.   In  other words  on  the  date  of vesting  of  the  property  in  the Government, K was, for the purpose of s. 5 in possession  of the plaint property.  Whereas s.6 speaks of khas  possession section 5 speaks only of possession.  On the date of vesting of the plaint property in the State K was in possession  for the purpose of s. 5 and he became a tenant under the  State free  of  rent.   Accordingly  the  suit  for  recovery   of possession was maintainable. [565H]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1466  of 1967. Appeal  by special leave from the judgment and decree  dated 24th  November 1964 of the Patna High Court in  appeal  from Appellate Decree No. 1029 of 1968. S.   C. Agarwala, and V. J. Francis, for the appellants. D.   Goburdhan, for respondent Nos. 1 to 3 & 10. The Judgment of the Court was delivered by MATHEW,  J.-This  is  an appeal, by special  leave,  by  the plaintiffs from a decree passed in appeal by the Patna  High Court  dismissing  their suit for recovery  of  the,  plaint property with mesne profits. Plaintiffs  1 to 4 are the daughter’s sons of one  Kishundeo Singh, plaintiffs 5 and 6 are his daughters and plaintiff  7 is his widow.  The plaint property together with some  other properties  belonged to the joint family of which  Kishundeo Singh and his brothers were the members.  Suit No. 60/34  of 1944-46  was  instituted for partition  of  the  properties. That  suit  was compromised on July 4,  1947  and  different schedules  were  prepared for the property allotted  to  the shares and sons property was left in the joint possession of all  of  them.   The plaint property fell to  the  share  of Kishundeo  Singh under the compromise. lit may be  mentioned that  as none of the parties to the compromise produced  the necessary  stamp paper as directed by the Court,, no  decree

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was drawn up by the Court. In  the  suit  for  recovery of  possession  of  the  plaint property  filed  by  the  plaintiffs,  defendants  1  and  2 contended that Kishundeo Singh, while he was alive, executed a  hukumnama in 1354 Fs. in their favour and they were  put in possession of the plaint property as lessees and so  they were  entitled  to  remain  in  possession.   They   further contended that the suit was barred by limitation and also by s. 47 of the Civil Procedure Code. 564 The Trial Court found that Kishundeo Singh obtained  posses- sion of the plaint property on the basis of the  compromise, that the case of the defendants 1 and 2 that Kishundeo Singh had  executed   a hukumnama in their favour  and  that  they obtain possession of the plaint property under it was false, that  the suit was not barred by limitation or by s.  47  of the Civil Procedure Code and decreed the suit.  This  decree was  confirmed in appeal.  It was against this  decree  that the  second  appeal was filed by the defendants  before  the High Court. The High Court held that the plaintiff should have paid  the stamps fee and got the decree drawn up in Suit No. 80/34  of 1944-46 and executed it and so the suit was barred by s.  47 of  the Civil Procedure Code.  The Court further  held  that since the plaint property had vasted in the Bihar Government under the Bihar Land Reforms Act, 1959, hereinafter referred to as the Act, the plaintiffs were not entitled to  maintain the suit.  Therefore, the High Court allowed the appeal  and dismissed the suit. The  two  questions  that arise for  consideration  in  this appeal are:    whether  the suit was barred by s. 47 of  the Civil Procedure Code     and whether under the provisions of the  Act, the plaint property bad vested in  the  Government and, therefore, the plaintiffs were incompetent to  maintain the suit. As the first question, the High Court was of the view  that, though  none of the parties to the compromise  had  produced the  necessary stamps paper as directed by the Court and  no formal  decree was drawn up, the plaintiffs could  not  have instituted  a fresh suit for recovery of possession  of  the plaint  property  as their only remedy was  to  execute  the decree  in  suit No. 80/34 of 1944-46. In other  words,  the High Court held that the plaintiffs should have produced the necessary  stamp  paper  and  got the  final  drawn  up  and executed  it, instead of filing a suit for the relief  which they could have obtained by executing the decree and so, the suit was barred by s.47 of the Civil Procedure Code. The  Trial  Court had found that  Kishundeo  Singh  obtained possession of the plaint property without the assistance  of the Court in pursuance of the compromise but that he allowed the  defendants  to occupy the same.  To put  it  in  other words,  the  finding  of  the  Trial  Court  was  that   the defendants  were in permissive occupation.  The Trial  Court also found that the definite case of the defendants was that they  were  put  in possession of  the  property  under  the hukumnama and, therefore, their possession was clearly  that of lessees under an agricultural  lease. The lower appellate Court held that there, was no allegation in the plaint that Kishundeo Singh obtained khas  possession under the compromise nor was there any evidence to show that he obtained 565 khas possession but that defendants 1 and 2 continued in  as before the compromise. Before  the compromise, Kishundeo Singh and  the  defendants

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were   in  possession  as  tenants-in-common.   The   actual possession  of the defendants, of the plaint  property,  was also  the constructive possession of Kishundeo  Singh.   So, when  the  lower appellate Court said  that  the  defendants continued  in  possession as before, it can only  mean  that after  the  compromise  the defendants  were  in  possession acknowledging  the  title of Kishundeo Singh.   That  apart, defendants  1  and  2 had no case  that  they  intended to possess  ,the property as their own.  It is clear  from  the compromise  petition that the defendants were  permitted  to occupy  the  plaint property until the structure  which  was constructed  in the property was removed by them.  They,  no doubt,  remained  in physical possession, but that  was  not with  any intention to possess the, property for  themselves but  because  they were permitted to  remain  in  possession until  the structure constructed by them was  removed.   The only right which ’they claimed in the written statement  was that  they were tenants under Kishundeo Singh by  virtue  of the  hukumnama executed by him in their favour.  At no  time they  asserted or claimed any right to remain in  possession otherwise  than  as tenant.  As already stated,  their  case that  Kishundeo  Singh  put them  in  possession  under  the hukumnama  was  found against by the Trial as well  as  ;the First Appellate Court.  But that would not in any way affect the   permissive  nature  of  their  possession  after   the compromise.  Therefore, we think that Kishundeo Singh was in constructive possession of the property after the compromise and, the suit for recovery of khas possession was not barred by s.47 of the Civil Procedure Code. The second ground on which the High Court dismissed the suit was  that  the plaint property had vested in  the  State  of Bihar  under the Act and the plaintiffs had,  therefore,  no right  to  proceed  with the suit and obtain  a  decree  for possession.   The suit was instituted on March 7, 1953;  the property vested in the State on January 26, 1955, under  the Act.   There is no dispute that the plaint property  answers the description of a homestead in s. 5 of the Act. The  High Court was of the view that since  Kishundeo  Singh was not in possession at the time the property vested in the State,  he  was  not entitled to retain  possession  of  the plaint property under s. 5 as a tenant under the State  free of  rent.   We  are of the  opinion  that  the  constructive possession  of Kishundeo Singh was sufficient to enable  him to  retain  possession as a tenant under  the  section.   In other  words, on the date of the vesting of the property  in the  Government, Kishundeo Singh was, for the purpose of  S. 5,  in possession of the plaint property.  In this  context, it may be noted 4-L761Sup.CI/73 566 that the language of s. 5 is in sharp contrast with that  of s. 6. The material part of s. 5 states :               "5.    Homesteads  of  intermediaries  to   be               retained  ’by them as tenants-(1) With  effect               from  the  date  of  vesting,  all  homesteads               comprised in an estate or tenure and being  in               the possession of an intermediary on the date               of  such  vesting  :shall,  subject -to  the               provisions of sections 7A and 7B, be deemed to               be  settled the State with  such  intermediary               and he shall be entitled to retain  possession               of  the land comprised in such homesteads  and               to hold it as a tenant under the State free of               rent." The relevant portion of s. 6 is in these terms

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  "6.    Certain  other  lands  win  khas   possession   of intermediaries to be retained :by them on payment of rent as raiya ts 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,. . . ." Whereas s. 6 speaks  of khas possession, s. 5 mentions only of possession.  We  find that  on the date of vesting of the plaint property  in  the State, Kishundeo Singh was in possession for the purpose  of s.  5  and that he became a tenant under the State  free  of rent  and  that  the suit for recovery  of  possession  was maintainable. In  the result we allow the appeal and set aside the  decree of the High Court and restore the decree passed by the lower appellate Court, but we make no order as to costs. G.C.                     Appeal allowed. 567