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PETITIONER: GURUCHARAN SINGH

       Vs.

RESPONDENT: KAMLA SINGH & Ors.

DATE OF JUDGMENT09/09/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. GUPTA, A.C. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR    5            1976 SCR  (1) 739  1976 SCC  (2) 152  CITATOR INFO :  F          1978 SC  30  (2)  RF         1979 SC1769  (28)  R          1981 SC1284  (21)  RF         1991 SC 663  (10)

ACT:      Bihar   Land Reforms Act, 1950, Sections 2K, 3, 4 and 6 and rule  7-H of  the Rules-Khas possession-Right to possess if amounts to possession in law

HEADNOTE:      Section 3  of  the  Bihar  Land  Reforms  Act,  1  950, transfers  all   interests  in   estates  or  tenures  of  a proprietor or  tenure-holder to  the State  as from  a  date notified under  section 4. Section 6 carves out of this land mass and  leaves untouched,  apart from raiyati holdings the bakasht lands in Khas possession of the ’intermediary’ i.e., the prior full owner.      Several items  of property were gifted by one Ram Badan Singh to  his two wives whose names were duly mutated in the revenue register.  By further  gift deeds  and transfers the lands covered by the original gift deeds can  to vest in the plaintiff and defendants, second party. They divided them as per a  partition deed  Exhibit 4/a  dated October  30,  1952 whereby the  suit lands  fell to the exclusive share, of the plaintiff along with some other items while other properties were similarly  allotted to  defendants 2nd  party.  Despite this fact  defendants, second  party, sold the suit lands to the  defendants  first  party  alleging  an  oral  partition sometime before  August 1952  and under  cover of that ease, committed trespass.  Thereupon, a scramble for possession of these properties  and a  proceeding under  s. 145  Cr.  P.C. ensued in  which the  defendants,  first  party,  got  their possession upheld  by Magistrate’s order dated S-4-1954. The plaintiff brought  the present  suit in  April  1955  for  a declaration of’  his title, for possession and mesne profits on the  score that  his exclusive  possession was  by  force taken away in July-August 1954 by defendants first party the latter put  forward the  plea of  prior oral  partition  and exclusive hostile  possession, tracing  their claim  through defendants second  party. The  courts of  tact found against

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the defendants  and decreed  the suit, but in Letters Patent Appeal, the  respondents  i.e.,  the  defendants  1st  party succeeded on  the ground  that the  plaintiff had  lost  his title on account of the operation of sections 3 and 4 of the Bihar Land Reforms Act, 1950.      In this  appeal filed on the basis of the special leave granted by  this court,  it was  contended for the appellant that (i)  Section 6  of the  Act applied to the facts of the case and  so there  was no vesting of title in the State  of the suit  lands; (ii)  This case,  resting on the Act, which had been  on the  statute book  for several’  years, had not been set  up at  the earlier stages of the litigation at and should not have been permitted at the Letters Patent  Appeal stage in  the High  Court for  the first time; and (iii) The deed of  partition was  not legally divestative of rights in view of  the provisions  of the Estates Partition Act, 1897, which  empowered   the  Collector  along  to  partition  the properties, which  not having  been done, the lands remained in co-ownership  therefore the possession of’ the defendants first party,  was that  of co-sharers.  If that were so. the possession of  one co-sharer  was constructive possession of the other  co-sharer and  the plaintiff  was  thus  in  khas possession under  s. 2k  of the Act and, on that basis, s. 6 of the Act saved the disputed properties from vesting in the State. Rejecting the  contentions  except  to  a  small  extent  of modifying the decree, ^      HELD: (i)  It is  well settled  that a pure question of law going to the root or the case and based on undisputed or proven f  acts could be raised even before the Court of last resort, provided the opposite side was not taken by surprise or otherwise unfairly prejudiced [745-E-F]      Connecticut Fire  Insurance Company v. Kavanach. [1892] A.C. 473, 480. referred to. 740      In the  present case  the new  plea  springs  from  the common case  of the,  parties and  nothing  which  may  work injustice by allowance of this contention has been made out. [746-A]      (ii) The Magistrate did not direct possession of the B- Schedule properties  to be  handed over  to the  defendants, first party,  but declared  their actual  possession. He has done no  wrong nor  conferred any unjust advantage. There is no  principle   on  which   it  could  be  held  that  these circumstances  deprive   .  party  of  the  benefit  of  his possession and of the dispossession of the plaintiff flowing from s.6 of the Act. [746D-E]      (iii) Neither  the provisions of section 6(1) nor those of section  35 contain  any prohibition  against  the  civil court’s power  to decide  the issue  of  the  and  right  to possession of  the plaintiff  and, as a necessary corollary, the claim  of actual  possession set  up by  the defendants, first party.  Nor can  section 6(2)  inferentially interdict the plenary power of the Civil court. [746.A B]      (iv) The  partition is valid, it divests title it binds all. but,  so far as land revenue liability is concerned, it relieves parties  from  the  burden  falling  on  the  other sharer’s land only if the exercise prescribed in the Estates Partition Act  is gone  through. The statute is a protective fiscal armour,  not a  monorail for division among co-owners to travel.  Section 7  makes it  clear. Not that Courts have lost power  to decree  partition  nor  that  co-owners  have become powerless  to separate  their shares  voluntarily but that land  revenue  shall  not  be  prejudiced  without  the

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procedure under  that Act being gone through. More clinching is the fact that the plaintiff has here come to Court on the sole case  of partition  by metes and bounds and has founded his relief  not as co sharer but as exclusive owner. [747 G- H, 748 Al      Mahanth Ram  Bhushan Das  V. Ramrati  Kuer, 1965  Bihar L.J. 119, referred      (v) The purpose and purport of section 6(1) is to allow the large  land holders  to keep  possession of  small areas which may  be designated  as the  private or  privileged  or mortgaged lands traditionally held directly and occasionally made-over to  others, often servants or others, in the shape of leases or mortgages. It is obvious that section 6(1) uses the word ’including’ to permit enlargement of the meaning of khas possession  for the  limited purpose  of that  section, emphasising thereby  that, but  for  such  enlargement,  the expression khas  possession excludes  lands outstanding even with temporary  lessees. It  is perfectly  plain, therefore, that khas  possession has  been used in the restricted sense of actual  possession and  to the  small extent it had to be enlarged for  giving relief  to proprietors  in  respect  of ’private’,  ’privileged’   and  mortgaged  lands,  inclusive expressions had  to be  employed. Khas  possession is actual possession. Constructive  possession or possession in law is what is  covered by  sub-clauses of  section 6(1). It is not correct to  say mat  possession is  so wide  as to include a mere right  to possess,  when the  actual dominion  over the property is  held by  one in hostility to the former.. [751- AB, G-H, 752-C-E.]      (vi) In Anglo American jurisprudence 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 dominion 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.  This court  has rejected  the theory that the possession  of a  trespasser was that of the owner. [752 H, 753A, 754-D.]      Surajnath Ahir v. Prithinath Singh [1963] 3 S.C.R. 290, Ram Bijai  Singh &  Ors v.  Behari Singh  @  Bagandha  Singh [1964] 3  S.C.R. 363 relied on.      Brij   Nandan Singh  v. Jamuna Prasad  A.I.R. 1958 Pat. 589, referred to.      (vii) It  is undeniable that the plaintiff had title to the entire  Schedule properties as against defendants, first party, and  second party.  If defendants.  first party, were not in  possession the plaintiff would still be entitled for a decree 741 for possession of the same. If neither is in possession, the presumption that  the owner  is in possession holds good and he is  entitled to  that possession  being restored  to him. Therefore, the  plaintiff is  entitled  to  a    decree  for possession  regarding  the  items  of  properly  covered  by paragraph, 27  of the  written statement  filed on behalf of the contesting  defendants, first  party. the  rights of the State as  against the  plaintiff in  regard   these items of property, will  not in any manner be effected. [754H. 755-A- B]      observation: Prima  facie section  4 (f) and (g) of the Act and  rule 7-H  of the Rules framed under the Act attract the jurisdiction  of the  State and its revenue authorities. In the  present case,  the defendants, first party, are rank

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trespassers and have no equity in their favour. Section 4(f) declares that  the Collectors  shall be deemed to have taken charge of  the estates  and interests  vested in  the State. This means  he has  a public  duty to  take charge  of lands vested in  the State.  Surely, a  responsible public  office like the  Collector, charged with duty of taking delivery of possession of lands which by virtue of the vesting the State is entitled  to take  direct  possession,  will  proceed  to disposses the  trespasser. In  this case,  defendants, first party the  trespassers and  the plaintiff  being out  of the pale of  section 6,  the State  ii entitled  to  the  direct possession of the suit lands. [756B, 755-D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 716 of 1968      Appeal by  Special Leave  from the  Judgment and  order dated the 2nd March, 1967 of the Patna High Court in Letters Patent Appeal No. S of 1962.      S. C. Mishra and U. P. Singh for the appellant.      S N. Prasad , A. K. Srivastava, M. S. Narasimhan and B. P. Singh for the respondents.      The Judgment of the Court was delivered by      KRISHNA IYER,  J.-This appeal,  by special leave, turns substantially on  the application  of section 6 of the Bihar Land Reforms Act, 1950 (hereinafter called, the Act), to the case situation  the facts  having been  decided concurrently and finally in favour of the appellant. Still he lost at the stage of the Letters Patent Appeal, because 3 Division Bench of the  High Court held that he had been robbed of his right to sue by Section 6 of the Act.      We may  set out  the relevant facts briefly. Although a number of  items of  immovable property were involved in the suit, which  was for  ejectment on  title. the  lands now in dispute are bakasht lands in the ’B’ Schedule to the plaint. for easy reference called suit lands. Regarding the rest the plaintiff’s suit has been decreed. several items of property were gifted  by one  Ram Badan  Singh to his two wives whose names were duly mutated in the revenue register. The further course of  the proprietary  history takes us to the creation of a wakf and the office of mutawalli which are not relevant to the  controversy before  us but  are interesting  when we remember that  the donees  were  Hindus  and  yet  they  had executed a  wakf and  constituted themselves  as mutawallis. This shows  how community  life  absorbs  and  blends  jural concepts, overriding  religion in  the creation of an inter- laced legal culture. This is by the way. 742      We may  now take  up the  thread at  the point where by further Gift  deeds and  transfers the  lands covered be the original gift  deeds case  to  vest  in  the  plaintiff  and defendants,  second  party.  they  divided  them  as  per  a partition deed  Exhibit 4 ’a dated (October 30, 1952 whereby the suit lands fell to the exclusive share of the plaintiff, along with  some other  items while  other  properties  were similarly allotted  to defendants  2nd party.  Undaunted  by this fact  defendants, second  ;3 party, sold the suit lands to the  defendants first  party alleging  an oral  partition sometime before  August 1952  and under  cover of that case, committed    trespass.  Thereupon, a scramble for possession these properties  and a  proceeding  under  s.  145  Cr.P.C. ensued in  which the  defendants,  first  party,  got  their possession upheld  by the Magistrate‘s order dated 5.4.1954.

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Inevitably the  plaintiff brought  the present suit in April 1955 for  a declaration  of his  title, for  possession  and mesne profits on the score that his exclusive possession was by force taken away in July-August 1954 by defendants, first party. The  latter  put  forward  the  plea  of  prior  oral partition and  exclusive hostile  possession, tracing  their claim through  defendants-second party.  The courts  of fact found against  the defendants and decreed the suit as prayed for, but  in Letters  Patent Appeal,  the present  contestig respondents, i.e.,  the defendants  1st  party,  urged  with success that  the plaintiff had lost his title thanks to the operation of  ss. 3  and 4  of the Act and could not salvage any interest  under s. 6 thereof. The defeated plaintiff has come up  to this Court, as appellant, assailing the findings of the High Court mainly on three grounds: According to Shri S. C.  Misra, learned  counsel for the appellant s. 6 of the Act applied to his case and so there was no vesting of title in the State of the suit lands. He further pressed that, any way, this  case, resting  on the  Act, which had been on the statute block  for several  years had not been set up at the earlier stages  of the  litigation and  should not have been permitted at  the Letters  Patent Appeal  stage in  the High Court for  the first time. His third contention was that the deed of partition Exhibit 4/a was not legally divestative of rights in  view of  the provisions  of the Estates Partition Act, 1897  which, in his submission, empowered the Collector alone to  partition the  properties, which  not having  been done, the  lands remained  in  co  ownership  wherefore  the possession of  the defendants,  first party, was that of co- sharers. If  that were  so, the  possession of one co-sharer was constructive  possession of  the other co-sharer and the plaintiff was thus in khas possession under s. 2k of the Act and, on  that basis,  s. 6  of the  Act saved  the  disputed properties from  vesting in  the State. All these three-fold contentions were  sought to  be repelled  by counsel for the respondent and we proceed to examine them.      We may  as well  mention here,  but dilate on it later, that certain  items out of the B-Schedule bakasht lands are, on the  showing of  defendants second  party, not  in  their possession, although  the plaintiff  has  averred.,  in  his pleading, dispossession  of all  the  B-Schedule  lands  The legal impact of this circumstance on s. 4(a) and the schemes of the  Act has  to be  gauged, in the context of the relief claimed by  the plaintiff  and the eligibility of possessory benefits of the contesting defendants. 743      The central  issue obviously  is the  resolution of the competition between  vesting of  the suit lands in the State by virtue  of ss.  3 and  4 and  their exemption  from  such deprivation by  the saving  provision in  s. 6  in favour of tile plaintiff.      A close-up  of the profile of the land reform law would help us  appreciate the purpose and programme of the statute and the  meaning of the provision  under construction  . The project, as  highlighted in the Preamble in grandiose and in keeping with  Part IV  of thus  Constitution, but ill actual implementation drags its feet. Indeed, counsel on both sides were readily  agreed only  on one  point, viz., that neither his Act  nor the  law setting  a ceiling  on land  ownership slumbering   the statue  book since 1962, has been seriously enforced.  The   Ninth  Schedule  to  the  Constitution  can immunise a  legislation from  forensic  challenge  but  what schedule can  invigorate a  half-inert  Administration  into quick implementation  of welfare-oriented,  urgently needed, radical legislation  now Lying  mummified in  the books ? If

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the assertion  of non-implementation  of land  reforms  laws made at  the bar  were true,  the Bihar State Government has much to  answer for  to ’We  the People of India’ and to the stultified legislature  whose ’reform’  exercise remains  in suspended animation.  In this  very case,  before  the  High Court, the  Advocate General has appeared for the plaintiff- landowner and  yet the  State has  not bestirred  itself  to appear and claim the suit lands. We are left in obscurity on the vital  point, neither  counsel nor  the records throwing any light  on whether the State has been given notice in the case in  the High Court. The social transformation cherished by the  Constitution involved re-ordering of the land system and a  vigilant administration would have intervened in this 20-year-old litigation long ago and extinguished the private contest to  the advantage of the State. The feudal will may, not unoften, furtively hide, in strategic positions may, be.      We may  begin consideration  of the merits of the rival cases by  a broad projection of the Act. Its basic object is to  extinguish   the   proprietary   rights   and   transfer absolutely,  and  free  from  all  private  interests,  such ownership to  the Stat.. The tillers are not to be up rooted and so,  they i.e.,  the raiyats and under-raiyats are to be settled on terms of fair rent. The Act, making; a simplistic dischotomy sufficient  for our  study, thus absolutely vests in the  State all lands, freed from all private rights (sec. 3) as  from a  date notified  under s.  4, but carves out of this land  mass and  leaves untouched.  apart  from  raiyati holdings, the  bakasht lands  in the  khas possession of the ’intermediary’ i.e.,  the prior  full owner  (sec. 6). Lands not falling  within the  saved  category  will  be  directly managed by  the State  (sec. 13),  if need  be, by  ejecting trespassers if  they are  found ill illegal occupation [sec. 4(g)]. ’rh   valuable  rights attached  to  or  imbedded  in lands, like trees, fisheries, minerals also go to the State. A seemingly  bold legislation  stroke  of  substantial  land nationalisation will  be reduced to pathetic futility if the flood-gates of  evasion  are  kept  ajar  by  plausible  but diluted interpretation  of s.  6 as  urged by the landlords. The Court  must suppress the mischief and advance the remedy .  Indeed.   if  we   may  anticipate  our  conclusion,  the pronouncements of this Court in Surajnath Ahir v. 744 Prithinath Singh(1)  and Ram Ran Bijai Singh & Ors v. Behari Singh  @ Bagandha Singh,(’) bar and bolt the, door of escape in a  big way  and counsel  for the appellant has striven to impress on  us the  need to  reconsider and distinguish that view because  it is  inconsistent with vintage jurisprudence and Anglo-American  concepts bearing  on  possession  of  an owner.      Let us  get down  to an  openheart surgery in a limited way to check upon the soundness of this cardinal submission. The consternation  expressed by appellant’s counsel that the High Court’s  interpretation of sec. 6 will create rights in rank trespassers and distort and defeat the right to possess enjoyed by Zamindars does not, by itself, disturb us. We are in a  juridical province  of agrarian  reform. The  creative legal ideas needed to effectuate this developmental plan are conceptually  alien   to  the   old  land  law  and  ’rural’ jurisprudence, wearing  as they  do  radical contenance. The Court, in  the process of construction must help the chariot of land  reform move  forward and  sections 3  and 6 are the vital wheels.      Having  regard  to  the  significance  of  the  State’s presence even  in private litigation bearing on eviction and the like,  s. 4(ee)  provides for  notice to  the  State  in

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certain classes  of cases  but the  present suit  and  later proceedings are  not covered  by the  term of  s. 4(ee)  and counsel on  either side,  when we  enquired,  did  not  show interest in  taking steps  to implead the State or otherwise to give notice to it in the present appeal. We have to Leave it at  that. The  consequence of non-impleader or absence of notice to  the  State  will  naturally  be  visited  on  the parties, in  the sense  that the State will not be bound  by this adjudication and its rights vis-a-vis the plaintiff and the defendants,  first party will remain unaffected. So also of other third parties on the suit lands.      We have  already adverted to the skeletal scheme of the Act, of  vesting the  lands in  the State  and saving in the hands of  proprietors  such  lands  as  are  in  their  khas possession, including certain categories spelt out in s.6 by settling them on fair rents under the State. So, the crucial concept of  khas  possession  calls  for  judicial  scrutiny rather closely  so i-has  loopholes for  escape through  the meshes of  s.6 may not frustrate the land reform law itself. But what  is legitimately  due by way of legislative justice to erstwhile proprietors should not be denied. With this and in view, the Legislature has defined khas possession in s.2k which reads thus: G           "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      (1) [1963] 3 S.C.R. 290.       (2) [1964] 3 S.C.R. 363. 745      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." He who  runs and  read will  readily make  out that  what is meant is  actual possession  with one’s  feet on  the  land, plough in  the field  and hands  in the soil, although hired labour is  also contemplated.  The emphatic  point  is  that possession is  actual possession  and admits  of no dilution except to  the extent  s.6 itself,  by an  inclusive process permits. This  basic idea  banishes the  importation of  the right to  possess as tantamount to khas possession. It would be a  perversion of definition to equate the two. Of course, Shri S.  C. Misra,  appearing for  the appellant, has preset before us   that jurisprudentially even the right to possess should be regarded as possession. Indeed, this Court has had occasion to  consider and construe the relevant provision in Surajnath Ahir and Ram Ran Bijai Singh  (supra) and our task is largely to explain and adopt.      Before we  examine this quintessential aspect presented before us  will complex  scholarship by  Shri S. C. Misra we Had better  make. short   shrift  of certain other questions raised by  him. He  has desired  ‘ us, by way of preliminary objection, not  to give quarter to the plea, founded on s. 6 of the  Act, to  non-suit his  client, since  it was a point raised be  nova at Letters Patent state. The High Court have thought to this objection but overruled it, if we may say so rightly. The  Court narrated the twists and turns of factual and  legal  circumstances  which  served  lo  extenuate  the omission to  urge  the point earlier but hit the nail on the head when  it held  that it  was well-settled  that  a  pure

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question of  law going to the root of the case and based  on undisputed or  proven facts  could be raised even before the Court of  last resort,  provided the  opposite side  was not taken by  surprise or  otherwise unfairly  prejudiced.  Lord Watson,  in   Connecticut     Fire    Insurance  Company  v. Kavanach,(1) stated the law thus:           When a  question of  law is  raised for  the first      time in a Court of last resort upon the construction of      a document  or upon  facts either  admitted  or  proved      beyond    controversy,  it is  not only  competent  but      expedient in  the interest  of justice to entertain the      plea. The  expediency of  adopting that  course may  be      doubted when  the plea  cannot be  disposed of  without      deciding nice  questions of  fact in  considering which      the Court  of ultimate  review is placed in a much less      advantageous position  than the courts below. But their      Lordships have no hesitation in holding that the course      ought not  any case  to be followed unless the Court is      satisfied that  the evidence  upon which they are asked      to decide  establishes beyond  doubt that  the facts if      fully investigated would have supported the new plea."      (1) [1892] A. C. 473, 480. 17-L925SupCI /75 746 We agree  with the High Court that the new plea springs from the common  case of  the parties, and nothing which may work injustice by  allowance of this contention at the late stage of the  Letters Patent  Appeal has  been  made  out  to  our satisfaction. Therefore,  we proceed  to consider the impact and applicability  of s.6 of the Act to the circumstances of the present case.      Counsel for  the appellant,  in his turn, in this Court went a step further to raise two new points not urged in the prior state of the litigation. We have heard him but arc not persuaded to,  agree  with    him.  According  to  him,  the defendants,  first   party,  had  stated  in  their  written statement that  their possession  of the  disputed items  as based on  the order of the Magistrate under s.145 Cr. P.C.‘. That order  having been  found erroneous,  no benefit  could accrue to  the defendants. So stated, it is a little obscure and indeed   the  point  itself  is  obscure.  There  was  a proceeding under s.145 Cr. P.C. before the criminal court in view  of   the  dispute   regarding  the  claims  of  actual possession.  In  the  order  of  the  Magistrate,  the  oral partition relied  on by  the defendants was held proved  and the subsequent  deed of partition relied on by the plaintiff held not  been acted upon. Counsel says that this led to the occupation by  trespass of  the suit  properties. Since  the Magistrate’s order  had led  to this prejudicial consequence it was not proper to permit the party to benefit by his  own wrong founded  on an  ’actus     curiae’. We see no force at all in  this  contention.  The  Magistrate  did  not  direct possession of  the B-shedule properties to be handed over to the defendants,  first  parts,  but  declared  their  actual possession. He  has done  no wrong  nor conferred any unjust advantage. There  is no principle on which  it could be held that   these circumstance  deprive a party of the benefit of his possession  and d  of the dispossession of the plaintiff flowing from  s.6 of  the Act; if any rights accrued  from a statutory provision,  it could not withheld for  the reasons urged  by counsel for the appellant      The next  new discovery  in this  Court  turns  on  the absence of  jurisdiction of  the civil  court to give relief when   the substance  the   matter  falls within the special jurisdiction of the revenue  authorities . Counsel submitted

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that this  new point  occurred to him  on reflection and was being pressed   by  him    because  it  had  force    .  The plaintiff’s prayer  . for  declaration  of  title  and  for- possession   was    negatived by the High Court in the light of s.6 of the Act wherein it was held         that he had no khas possession  and   his interests could not in any manner be saved  by that  provision  It  was  not  a  case  of  the defendant  claiming   or  securing   any  relief   regarding possession but the plaintiff"s title standing negatived. The suit itself  was for  ejectment on  little and  sans  title, ejectment could  not be  granted The  title of the plaintiff was sought  to be rested on s.6 at the letters patent Appeal level but on a construction of that Provision the Court held against  him   In  short  the  High  Court  did  nothing  to investigate into  the  possession  of  parties  but  on  the admitted fact  that the  Defendants" first  party,  were  in possession by  trespass-the plaint  alleges  this-the  Court Dismissed the suit, since s. 6 of the Act divested 747 the plaintiff of his quondam proprietorship. Moreover, there is nothing  in s.  35 of  the Act,  relied on  by counsel to substantiate his  submission, depriving  the civil  court of its jurisdiction to decide questions of declaration of title and consequential  relief of  possession. Section  35  deals with different  types of  suits Indeed, s.6(1) with which we are concerned, also contains no inhibition against the civil court’s power  to decide  the issue  of title  and right  to possession of  the plaintiff  and, as a necessary corollary, the claim  of actual  possession set  up by  the  defendants first party  Nor, can  s. 6(2)  inferentially interdict  the plenary power  of the civil court. In short, the plea of bar of the restriction is specious and fails      Another peripheral  issue invoked before the High Court and  here   to  undo  the  defendant’s  claim  of  exclusive possession and  consequential absence  of khas possession in the plaintiff  was based  on the  provisions of  the Estates Partition Act, 1897.      Shri Misra  propounded what,  unfortunately, strikes us as a  fallacious proposition.  He went to the extreme extent of maintaining  that a  partition of  lands,  to  be  valid, should be  in terms  of the Estates Partition Act, 1897 and. until then, a deed or decree effecting division by metes and bounds does  not legally  operate. If  so, Ex.4/a remains an arrangement for  separate enjoyment between co-owners, title continuing, joint.  The follow-up  of this reasoning is that the suit  properties are in the possession of co-shares viz, defendants first  party (derived  from  defendents.,  second party) and  possession of one co-sharer is possession of the other. The plaintiff thus is in constrictive possession good enough to  bring him into the rescue shelter provided by s.6 Of the  Act. He  relied on the ruling in Mahanth Ram Bhushan Das v.  Ramrati Kuer(1)  and the  various provisions  of the Estates partition  Act to  Make out  his thesis. The support derived  from  the  decision  is  more  apparent  than  real because, as  noticed by  the High  Court, the suit there was not, unlike  here, brought  on the  foot of‘ a partition and the ruling(r  laid down  that any ’amicable division’ among, co-sharer would not bind the Revenue until the partition was effected as visualised under the Estates Partition Act. Shri Misra’s study of the provisions of the said Act is free from confusion, save  in one  fundamental respect That one point, missed   by him,  is that  the whole statutory project is to protect the land revenue, not to affect title. The partition is valid,  it divests  title, it  binds all;  but, so far as land   revenue   liability is concerned, it relieves parties

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from the  burden falling, on the other sharer’s land only if the exercise prescribed in the Estates Partition Act is gone through. The  statute is  a Protective  fiscal armour  not a mono- for  division among  co-owners to  travel.  Section  7 makes it  clear. Not  that Courts  have lost power to decree partition  nor   that  co-owners  have  become  impotent  to separate their  shares voluntarily  but  that  land  revenue shall not  be prejudiced  without the   procedure under that Act being  gone through. More clinching is the fact that the plaintiff has  here come  to  Court  on  the  sole  case  of partition by  metes and   bounds  and has founded his relief not as co-sharer      (1) 1965 Bihar L. J. 119. 748 but as  exclusive owner.  Seeming legal  ingenuity has small chance in  A court and to miss the point and pertinence of a measure is to travel to a wrong destination.      Now we  come to the master problem presented at learned length by  Shri S. C. Misra and deferentially listened to by us to  discover its  substance and  the solution.  ’A ’blind understanding’ has  been the  result, and  as  his  argument concluded we  ’came out  by the same door, as in (we) went’. It behaves  us to  set  out  counsel’s  submission  and  the setting   of the Act to explain why we do not agree with him and what  we regard is the master-key to the construction of section 6.      We must  first appreciate  that it is a land reform law we are  interpreting and   not just an ordinary statute. The social-economic thrust of the law in this area should not be retarded by  judicial construction but filliped by the legal process,  without  departing  from  the  plain  meaning  and objective of  the Act.  We may  delineate  the  content  and contours of  section 6  with which we arc directly concerned in the  present case.  The preamble  to the Act, which sheds skylight on the statute, reads:           "An Act  to provide  for the  transference to  the      State of  the  interests  of  proprietors  and  tenure-      holders in  land and  of the  mortgages and  lessees of      such interests  including in tersest in trees, forests,      fishries, jalkars,  ferries, hats  bazaars.  mines  and      minerals and to provide for the constitution of a l and      Commission for the State of Bihar with powers to advise      the State  Government on  the  agrarian  policy  to  be      pursued by  the State  Government consequent  upon such      transference   and    for   other   matters   connected      therewith" From  this it is fairly clear that the legislative goal s to liquidate all  intermediary interests  and vest the ultimate ownership on land in the State. In this sense, the import of the Act  is a tepid measure of land nationalisation. Section 3 in unmistakable language vests the absolute proprietorship in all  the lands  in Bihar  in the  State,  the  succeeding sections spell out details. F      We may here read sections 3, 4(g) and 6(1) of the Act:           "3. Notification  vesting an  estate or  tenure in the State-           (1) The  State Government  may, from time to time,      by notification  declare that the estates or tenures of      a  proprietor   or  tenure-holder,   specified  in  the      notification, have  passed to  and become vested in the      State.           (2) The  notification referred  to in  sub-section      (1) shall  be published  in the official Gazette A copy      of such  notification shall be sent by registered post,      with acknowledgement  due, to  the  proprietor  of  the

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    estate recorded  in the   general registers of revenue-      paying or  revenue-free lands maintained under the Land      Registration Act, 1876 (Ben. Act 7 of 1876), or in case      where the estate is not entered in 749      any such  registers and  in the case of tenure-holders,      to the  proprietor of the estate or to the tenureholder      of the  tenure is  the Collector  is in possession of a      list of  such proprietors  or  tenure-holders  together      with their  addresses, and such posting shall be deemed      to be  sufficient service  of the  notification on such      proprietor or.,  where such  notification is  sent book      post to  the tenure-holder,  on such  tenure-holder for      the purposes of this Act.           (3) The  publication of  such notification, in the      Official Gazette  shall be  conclusive evidence  of the      notice  of  the  declaration  to  such  proprietors  or      tenure-holders whose  interests  are  affected  by  the      notification"           "4. Consequences  of the  vesting of  an estate or      tenure in  the State-Notwithstanding anything contained      in any  other law for the time being in force or in any      contract, on  the publication of the notification under      sub-section (1)  of section 3 or sub-section (1) or (2)      of section  3A the  following consequences shall ensue,      namely:           (g) Where  by reason  of the vesting of any estate      or tenure  or any  part  thereof  in  the  State  under      provision of this Act, the Collector is of opinion that      the State  is entitled  to the direct possession of any      property he shall, by an order in writing served in the      prescribed manner  on the  person in possession of such      property, require  him to deliver possession thereof to      the State  or show  cause, if  any, against  the  order      within a  time to  be specified  therein  and  if  such      person fails  to deliver possession or show cause or if      the Collector  rejects any  cause shown  by such person      after giving  him a  reasonable  opportunity  of  being      heard, the  Collector shall for reasons to be recorded"      take or cause to be taken such steps or use or cause to      be used such force as, in his opinion, may be necessary      for securing  compliance with the order or preventing a      breach of the peace:           Provided that  if the  order under  clause (g)  is      passed by an officer below the rank of the Collector of      a district, an appeal shall, if  preferred within sixty      days of  the  order.,  lie  to  the  Collector  of  the      district and  the Collector shall dispose of the appeal      in accordance with the prescribed procedure"           "6. Certain  other lands  in  khas  possession  of      intermediaries to  be retained  by them  on payment  of      rent as raiyats 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)(1)    proprietor’s private lands let out under                     a lease  for a  term of years or under a                     lease from year 750                     to year,  referred to  in section 116 of                     the Bihar  A Tenancy  Act,  1885  (8  of                     1885),           (ii)      landlord’s  privileged   lands  let  out                     under a  registered  lease  for  a  term

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                   exceeding one  year or  under  a  lease,                     written or  oral" for  a period  of  one                     year or  less, referred to in section 43                     of the  Chota Nagpur  Tenancy Act,  1908                     (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)       lands   used    for   agricultural    or                     horticultural   purposes   forming   the                     subject matter  of a subsisting mortgage                     on   the   redemption   of   which   the                     intermediary is entitled to recover khas                     possession thereof; shall, subject  to the  provisions of  section 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 r 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 in the prescribed manner:      Provided that  nothing   contained in  this sub-section shall entitle  an intermediary  to retain  possession of any naukarana land or any land recorded as chaukidari or goraiti jagir or  mafi goraiti  in the record-of-rights or any other land in respect of which occupancy right has already accrued to a raiyat before the date of vesting.      Explantion.-For  the   purposes  of  this  sub-section. ’naukarana land’  means land  held as  a grant burdened with service in  lieu of rent or held simply in lieu of wages for services to he rendered."      Although there  is a  blanket vesting of proprietorship in all  the lands  in the State, the legislation is careful, in this  initial state  of agrarian  reform, not  to be  too deprivatory of  the cultivating possession of those who have been  tilling  the  land  for  long.  Therefore,  while  the consequence of  the vesting  is stated to be annihilation of all interests,  encumbrances  and  the  like  in  the  land, certain  special  categories  of  rights  are  saved.  Thus, raiyats and  under-raiyats are  not dispossessed  and  their rights are  preserved. The full proprietor’s khas possession is if  so not  disturbed. Certainly.  the large landholders, whose lands  have for  long been  under tenancy,  lose their lands to  the State  by virtue  of the vesting operation (of course, compensation is  provided for). 751 Nevertheless, the  reform law  concedes the continuance of a limited species  of interests  in favour of those Zamindars. The three-fold  class of  lands is  brought into  the saving bucket by  including them  in the  khas  possession  of  the proprietors.  They   are  legislatively   included  in  khas possession by  an extended  itemisation in section 6(1). The purpose and  the purport  of the  provision is  to allow the large land  holders to  keep possession of small areas which may be  designated as the private or privileged or mortgaged lands traditionally held directly and occasionally made-over to others,  often servants  or others in the shape of leases or mortgages.  The crucial point to remember is that section 3 in  its total  sweep" transfers  all the  interests in all lands to  the State,  the exception  being lesser  interests under the State set out in detail in sections 5, 6 and 7. So

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much so,  any person who claims full title after the date of vesting  notified   under  s.  4  has  no  longer  any  such proprietorship. All  the same, he may have a lesser right if he falls  within the  saving provisions  viz., sections 5, 6 and 7  Sections 5  and 7 do not apply here. The claim of the plaintiff is  that he  can  sustain  his  right  to  recover possession in  this suit,  as coming  within  the  oasis  of section 6(1).      There is  no case that the sub-clauses (a), (b) and (c) of section  1) 6(1)  apply. Counsel’s  contention is that he comes  within   the  ambit  of  the  main  paragraph,  being allegedly in  khas possession.  To  appreciate  the  further discussion, it  is useful to recapitulate that the appellant has averred  in his  plaint that he had been dispossessed as early as  1954 by a brazen act of trespass by the contesting respondents who  were holding adversely to him. Undaunted by this fatal  fact counsel  claimed to  be in  possession  and argued still.  The focus was turned by him on the concept of khas possession  defined in  section 2(k).  He  presented  a historical perspective  and suggested  that the  genesis  of khas possession  could be  traced to the Bengal Tenancy Act, 1885. May  be, the  draftsmen might  have drawn  upon  those earlier  land   tenure  laws   for  facility,  but  we  must understand right  at the  outset that  the  Constitution  of India has inaugurated a new jurisprudence as it were, guided by Part  IV and  reflected in Part II. When there has been a determined break  with traditional  jurisprudence and  a big endeavour has  been made  to over-turn  a feudal land system and  substitute  what  may  be  called    transformation  of agrarian relations,  we cannot  hark back to the bygone jura or hold  a new  legislation captive  within the  confines of vanishing tenurial  thought. De  hors the historical links-a break-away from  the past  in the  socio-legal system is not accomplished  by  worship  of  the  manes  of  the  law-khas possession means   what  the definition,  in plain  English, says.  The  definition  clause  is  ordinarily  a  statutory dictionary, and  viewed that  way, we have in the early part of this  judgment explained how it means actual, cultivatory possession-nothing less  nothing else.  Of  course,  section 6(1) makes  a special  addition by ’including’ other demised lands by express enumeration.      Section 6  does not  stop with  merely saving  lands in khas possession  of the  intermediary (erstwhile proprietor) but  proceeds   to  include  certain  lands  outstanding  on temporary leases or mortgages with others. 752 as earlier  indicated. These  are private  lands as known to the Bihar  Tenancy Act,  privileged lands  as known  to  the Chota Nagpur  Tenancy Act, land outstanding with mortgagees, pending  redemption  and  lands  which  are  actually  being cultivated by  the proprietor  himself. Ordinarily  what  is outstanding with  lessees and mortgagees may not fall within khas possession.  The  Legislature,  however,  thought  that while: the permanent tiller’s rights should be protected and therefore, raiyats   and  under-raiyats should  have  rights directly  under   the   state,   eliminating   the   private proprietors, the  Zamindar  or  proprietor  also  should  be allowed to  hold under  the State., on payment of fair rent, such lands  as have  been in  his cultivatory possession and other  lands   which  were  really  enjoyed  as  private  or privileged lands  or mortgaged  with possession by him. With this end  in  view,  section  6(1)  enlarged  its  scope  by including the  special categories.  The  word  ’include’  is generally used in interpretation clauses in order to enlarge the meaning  of that  words or phrases occurring in the body

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of the  statute. It  is obvious  that section  6(1) uses the word ’including’  to permit  enlargement of  the meaning  of khas possession  for the  limited purpose  of that  section, emphasising thereby  that, but  for  such  enlargement,  the expression khas  possession excludes  lands outstanding even with temporary  lessees. It  is perfectly  plain, therefore, that khas  possession has  been used in the restricted sense of actual  possession and  to the  small extent it had to be enlarged for  giving relief  to proprietors  in  respect  of ’private’  ’privileged’   and  mortgaged   lands   inclusive expressions had  to be  employed. Khas  possession is actual possession, that  is "a  foothold on  the  land,  an  actual entry,  a  possession  in  fact,  a  standing  upon  it,  an occupation of  it, as  a real,  administrative act done"(l). Constructive possession  or possession  in law  is  what  is covered by  the sub- clauses of section 6(1). Even so, it is impossible to  conceive, although  Shri Misra  wanted us  to accept, that  possession is  so wide  as to  include a  mere right to possess, when the actual dominion over the property is held  by one  in hostility  to  the  former.  Possession, correctly understood,  means effective,  physical control or occupation.  "The   word  possession   is   sometimes   used inaccurately as  synonymous  with  the  right  to  possess". (Words and Phrases, 2nd Edn., John B. Sounders., p.151). "In the Dictionary of English Law (Earl Jowitt) 1959 at p. l 367 "possession" is defined as follows: ’possession, the visible possibility of  exercising physical  control over  a  thing, coupled with  the intention  of doing so, either against all the world,  or against all the world except certain persons. 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 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 also, possession is  actual possession  and in  a limited  set  of cases, may include constructive possession, but when      (1) American    Jurisprudence, Words & Phrases Vol. 33, p. 103. 753 there is  a bare  right to possess bereft of any dominion 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. Admittedly  in the present case" the possession of the plaintiff had ceased totally at  least two years before the vesting under section 4 took place. This situation excludes khas possession.      We have  the uniform  authority of  this Court  to hold that the  possession of  a  trespasser,  by  no  stretch  of imagination, can  be deemed  to be  khas possession  or even constructive possession  of the  owner.  In  Surajnath  Ahir (supra)  this   Court  considered  the  definition  of  khas possession in  the Act  in the context of section  and after adverting to  Brij Nandan  Singh v.  Jamuna Prasad, on which Shri Misra placed massive reliance, observed:           "Reliance was placed by the High Court on the case      reported as  Brijnandan Singh  v. Jamuna Prasad for the

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    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 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’ ". The attempt  to distinguish  this decision on the score that the observation is obiter does not appeal to us and the rule laid down  there is  in conformity  with the principle as we have earlier  expounded. The  law has  been indubitably laid down in  Ram Ran  Bijai Singh  (supra) where a Bench of five Judges of this Court discussed khas possession in section 2k and the  scope of  section 6  of  the  Act.  The  same  Full Bench(1) case  earlier referred  to was  pressed before  the learned Judges,  and over-ruling  that case,  Ayyangar,,  J. speaking for  the Court  stated the  law in  these unmincing words:           "Mr.  Sarjoo  Prasad  however  relied  on  certain      observations in  the judgment  of the Full Bench of the      Patna High  Court in  Sukdeo Das  v. Kashi Prasad where      the learned  Judges appear  to consider  the possession      even of a trespasser who has not perfected his title by      adverse possession  for the  time requisite  under  the      Indian Limitation  Act as  the khas  possession of  the      true owner. We consider that this equation of the right      to possession with ’khas possession’      (1) A.I.R. 1958 Pat. 589. 754      is not  justified by  principle or  authority.  Besides      this is   also  inconsistent with  the reasoning of the      Full Bench by  which constructive possession is treated      as within the concept of khas possession.           The possession of the contesting defendants in the      present case  was in their own right and adverse to the      plaintiff, even  on the  case with which the appellants      themselves came  into Court."  .. In  this context  the      plea made  by the  plaintiffs relevant to the character      of the  possession of the contesting defendants assumes      crucial  importance,   for  if   they  were  admittedly      trespassers then  they could  not be  said to  hold the      property on  behalf of  the mortgagors  and the  entire      basis of  the argument as to the property being ill the      khas possession  of the plaintiffs would disappear.. It      was on  the basis  of their  possession being  wrongful      that a  claim was  made against  them for mesne profits      and it  was on  the footing  of their being trespassers      that  they  were  sued  and  possession  sought  to  be      recovered from them. In these circumstances we consider      that it  is not  possible for the appellants to contend      that these  tenants were  in possession of the property      on behalf  of the  mortgagor and  in the  character  of      their rights being derived from the mortgagor.’ The Court  rejected the  theory that  the  possession  of  a trespasser was  that of  the owner.  Other decisions  of the Patna High  Court and this Court were referred to at the bar but the  position having  been made  unmistakable by the two

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cases  just  mentioned,  we  do  not  wish  to  burden  this judgment-with case law any further.      The conclusion we, therefore, draw is that on the facts found-indeed,  on   the  facts  averred  in  the  plaint-the plaintiff had  no khas  possession of  the  suit  lands  and cannot use  section 6  as a  rescue raft. His title was lost when section  4 was notified as applicable to the suit lands by section  3 in  1956. Without  title he could not maintain the action  for recovery  of possession. But that is not the end of the matter. He is certainly entitled to mesne profits from the defendants, first party, until the date of vesting, i.e." January 1, 1956. We, grant him a decree in this behalf subject to  the qualification  mentioned below.  Again,  the contesting defendants,  in paragraph  27  of  their  written statement, have  admitted that  they had no possession of or connection with  some of  the plots mentioned in Schedule to the plaint and set out therein. The High Court has dismissed the suit  in entirety  after noticing  the admission  of the contesting defendants  that they have not been in possession of those  items covered  by  paragraph  27  of  the  written statement. The  plea in  that paragraph  is that these lands have been  made over  to the defendants, second party. It is undeniable that  the  plaintiff  had  title  to  the  entire Schedule properties  as against defendants. first party, and second party.  If  defendants,  first  party.  were  not  in possession  and   defendants,  second   party,,     were  in possession, the  plaintiff would  still  be  entitled  to  a decree  for  possession  of  the  same.  It  neither  is  in possession the  presumption that  the owner is in possession holds good and he is entitled to that 755 possession being  restored to  him. Therefore,  a decree for possession of  these items  covered by  paragraph 7  of  the written  statement   filed  on   behalf  of  the  contesting defendants, first party, is also granted. Here we must utter a word  of caution and condition our decree accordingly. The State, by  the vesting  operation, has  become the owner and very probably  the plaintiff  cannot sustain any claim to be in  possession  as  against  the  State.  While  we  do  not investigate this aspect, we  wish to make it perfectly plain that the  rights of  the State, as against the plaintiff, in regard to  the items  for which  we are giving him a decree, will not  in any manner be affected. Likewise, if some third party is  in possession  of those  items  unclaimed  by  the defendants, first party, their possession, if any, also will not be  prejudiced. After  all, the decree of this Court can bind  and   regulate  the  rights  of  the  parties  to  the litigation and  not others.  Inevitably, the  mesne  profits which  we have decreed will be confined to those items which are found  to be  in the possession of the defendants, first party.      There is  a disturbing feature about this case. We have already indicated  how there  is an apparent indifference on the part  of the State in securing its rights granted by the Act. Here  is a  case where  the - defendants, first party,, are rank  trespassers and  have no  evident equity  in their favour. Section  4(f) declares  that the  Collector shall be deemed to  have taken  charge of  the estates  and interests vested in  the State This means he has a public duty to take charge of  lands vested  in the State. Surely, a responsible public officer  like the  Collector, charged  with a duty of taking delivery  of possession  of lands  which by virtue of the vesting  the State is entitled to take direct possession of, will proceed to dispossess the trespasser. In this case, defendants first  party, are  trespassers and  the plaintiff

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being out of the pale of section 6, the State is entitled to the direct  possession of  the suit  lands.  We  expect  the Collector to  do his  duty by  section 4(g). Counsel for the respondents drew our attention to rule 7H:           "7-H. How  to deal with cases in which proprietor,      etc.. not found in possession on the date of vesting-If      the Collector holds on the report of enquiry held under      rule 7-E or 7-F that the outgoing proprietor or tenure-      holder, or  his temporary  lessee or mortgagee" was not      in possession  of the lands or buildings referred to in      rule 7-G,  he shall  fix the  fair rent  or ground-rent      thereof in the manner prescribed in these rules and the      person who  may be  found to  be in  possession of such      lands or buildings shall thereupon be liable to pay the      rent or  ground-rent so  fixed to  the State Government      with effect from the date of vesting." Although we  need not  elaborately study the implications of this pro  vision, it is fairly clear that this rule does not confer any  right or equity to be in possession in favour of d trespasser.  All that  it does  is  to  make  the  man  in possession, be he trespasser or not, "liable to pay the rent or ground-rent  so fixed to the State Government with effect from the  date of  vesting.’ It is the liability to pay rent that is  created, not  the equity to claim possession. After all, the land reform 756 measure is intended to conserve as much land as is available in the  hands of  the State  and any trespasser who distorts this claim  and snatches  possession, cannot  benefit by his wrong. May  be. there  are special  circumstances which  may persuade the  State to give possession of any land either to its erstwhile  proprietor or  to one  who has  been in  long possession  rightly   of  wrongly.   We  do   not  make  any observation in  that behalf  but point  out that prima facie section 4(f)  and (g)  and rule 7-H attract the jurisdiction of the  State and  its revenue 13 authorities. The policy of the Act  includes the  State taking  over and managing lands not saved  by sections 5, 6 and 7 and are not found to be in possession  of   the  proprietor   so  that   the   eventual distribution to  the landless and the like may be worked out smoothly.      The appeal  is dismissed  in substantial measure except to the  extent of  the relief  by way  of mesne  profits and possession in  regard to  a few items mentioned in paragraph 27 of  the contestants’  written statement  The parties will bear their costs throughout in the peculiar circumstances of the case.  This judgment will not affect the rights, if any. either party may seek or has secured from the State. V.M.K.                                     Appeal dismissed. 757