Surajnath Ahir & Ors Vs.
Prithinath Singh & Ors  INSC 203 (4 May 1962)
DAYAL, RAGHUBAR DAYAL, RAGHUBAR GUPTA, K.C.
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)
Land Reform--Suit for recovery of possession
after redemption 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),
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 questions 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,
Held, that the suit was instituted within
twelve years of 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 respondents 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  Supp. I S.C.R. 123.
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
B. K. Saran and K. L. Mehta, for the
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 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
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
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
Learned counsel for the appellants has urged
(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
(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 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-fruitbearing
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., 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. Sub clause (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)  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
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 horticultural purposes means
the possession of such proprietor or tenure-holder by cultivating such land or
carrying on horticultural operations thereon himself with his own stock or by
his own servants or by hired labour or with hired stock." 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-" 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
horticultural 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 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 tenureholder 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'.
(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.