Bhubaneshwar Prasad Narain Singh &
Ors Vs. Sidheswar Mukherjee & Ors [1971] INSC 43 (2 February 1971)
MITTER, G.K.
MITTER, G.K.
RAY, A.N.
CITATION: 1971 AIR 2251 1971 SCR (3) 646
CITATOR INFO:
RF 1991 SC 663 (11)
ACT:
Bihar Land Reforms Act, 1950, s. 6-Scope
of-Effect on cosharer's possession.
HEADNOTE:
In a suit for partition of bakash land a
preliminary decree was passed. The defendants-appellants, claiming to be in
actual possession of the bakasht land, filed a petition contending that the
consequence of s. 6. of the Bihar Land Reforms Act, 1950 (which came into force
in the meanwhile) was to put an end to the proprietor's possession of the
bakasht land by causing them to vest in the State and simultaneously creating a
tenancy in favour of the person in khas possession thereof, and therefore, no
final decree could be passed. The trial court accepted the contention and
dismissed the plaintiff's application for passing final decree. In appeal, the
High Court set aside the order.
In appeal to this Court,
HELD : Even if the appellants were in actual
khas possession within the meaning of s. 2(k) of the Act, it must be held that
the plaintiff respondent, who was a co-sharer, was in constructive possession
through the appellants, as, under the law, possession of one co-sharer is
possession of all co-shares. The appellants did not claim to be trespassers on
the property neither did they claim any title to the lands adversely to the
respondent. The deeming provision of s. 6 must, therefore, enure for the benefit
of all, who in the eye of land) would be regarded as in actual possession.
Therefore, the respondent had not lost his
share in the bakasht lands and had a right to his share in them, though not as
tenure-holder or proprietor, but as a raiyat under the provisions of the Act.
[645 E-G] P. L. Reddy v. L. L. Reddy, [1957] S.C.R. 195, 202, followed.
Surajnath Ahir v. Prithitnath Singh, [1963] 3
S.C.R. 290, Ram Ran Baijal Singh v. Behari Singh alias Bagandha Singh, [1964] 3
S.C.R. 363, S. P. Shah v., B. N. Singh, [1969] 3 S.C.R. 908 and Mahant Sukhdeo
Das v. Kashi Prasad, Tewari
referred to.
& CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 2588 of 1966.
Appeal from the judgment and decree dated
January 14, 1964 of the Patna High Court in First Appeal No. 572 of 1958.
D. Goburdhun and R. Goburdhun, for the
appellants.
A. N. Sinha and P. K. Mukherjee, for
respondent No. 1.
640 The Judgment of the Court was delivered
by Mitter, J. The only question involved in this appeal is, whether the
direction of the High Court that the partition suit launched in 1943 should be
allowed to proceed in view of the provisions of s. 6 of the Bihar Land Reforms
Act, 1950 which came into force on 25th September, 1950, is correct.
The suit had a chequered career. It was
instituted against a number of persons the main relief asked for being
partition of four annas Milkiat interest in Touzi No. 702, Tappa Haveli,
Pargana Maheshi, District Champaran, Bihar.
The Subordinate Judge of Motihari made a
preliminary decree for partition declaring the first respondent's share in the
property as claimed by him. The High Court in appeal modified the decree
reducing the plaintiff's share to Rs. 0-1-4 interest only. In further appeal to
these Court the trial court's preliminary decree was upheld on 5th ,October
1953. In the meanwhile the Bihar Land Reforms Act of 1950 effecting
far-reaching changes in the incidents of land tenure and land holdings had been
passed. The first appellant made an application to the trial court in June 1958
praying that the proceedings for final decree be treated as having abated in
view of the vesting of all estates in land in the State of Bihar. This was
accepted by the Subordinate Judge by an order dated July 12, 1958. The High
Court allowed the appeal with the direction above mentioned which the
appellants now seek to have set. aside.
The bone of contention between the parties is
the extensive "bakasht' lands in the aforesaid Mouza. The appellants
contend that under s. 6 (1) of the Act all these lands vested in the State and
came to be held by the persons in "khas possession" thereof as
raiyats under the State. To appreciate the plea it is necessary to make a brief
reference to some of the provisions of the Act.
As is well known the object of the Act was to
cause transference to the State of the interest of proprietors and
tenure-holders in land as also of the mortgagees and lessees of such interests
including interests in trees, forests, fisheries, jalkars, ferries, hats,
bazars, mines and minerals and to provide for certain consequences following
there-from and connected therewith. S. 3 of the Act ,enabled the State
Government to declare by notification that the estates or tenures of a
proprietor or tenure-holder specified therein 'would pass to and become vested
in the State. The consequences ,of such vesting are set-forth in s. 4. Under
cl. (a) :
"Such estate or tenure including the
interests of the proprietor or tenure-holder in any building or part of a
building comprised in such estate or tenure and used 641 primarily as office or
cutchery for the collection of rent of such estate or tenure, and his interest
in trees, forests, fisheries, jalkars, sairati interest as also his interest in
all sub-soil including any rights in mines and minerals whether discovered or
undiscovered, or whether being worked or not, inclusive of such rights of a
lessee of mines and minerals, comprised in such estate or tenure (other than
the interests of raiyats or under-raiyats) shall, with effect from the date of
vesting, vest absolutely in the State free from all encumbrances and such
proprietor or tenure-holder shall cease to have any interest in such estate or
tenure, other than the interests expressly saved by or under the provisions of
the Act." S. 6 of the Act provides for such saving and the relevant
portion thereof runs as follows "(1) On and from the date of vesting all
lands used for agricultural or horticultural purposes, which were in khas
possession of an intermediary on the date of such vesting, including(a) (i)
proprietor's private lands let out under a lease for a term of years or under a
lease from year to year................
(ii) landlords privileged lands let out under
a registered lease for a term exceeding one year or under ,a lease, written or
oral, for, a period of one year or less, referred to in section 43 of the Chota
Nagpur Tenancy Act, 1908, (b) lands used for agricultural or horticultural
purposes and held in the direct possession of a temporary lessee 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............. be deemed to be settled by
the State with such intermediary and he shall be entitled to retain possession
thereof and hold them as a raiyat under the State having occupying 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.
642 The broad proposition which was advanced
before the High Court and rejected by it and reiterated before us is that the
consequence of s. 6, was to put an end to the character of the possession of
the bakasht lands to the malik by causing them to vest in the State and
simultaneously creating a tenancy in favour of the person in khas possession
thereof. There is no dispute that bakasht lands fall under categories (b) and
(c). We are not here concerned with category (c) and have quoted it to
appreciate some decisions relied on where there are references to that
category.
This question has engaged the attention of
the Patna High Court more than once and it would appear that the views
expressed in different cases have not been uniform. So far as the said High
Court is concerned the point was settled by a decision of the Full Bench in
Mahanth Sukhdeo Das. v.
Kashi Prasad Tewari and Shrideo Misra v.
Ramsewak Singh(1).
The main questions before the Full Bench were
whether on the vesting of an estate which was mortgaged at the material time
the bakash lands therein which are deemed to be settled with the ex-proprietor
in khas possession would form substituted security for the purpose of the
mortgage, and whether a co-sharer proprietor not in actual possession of such
lands had Any claim thereto on the basis of his constructive possession. The
High Court answered both the above in the affirmative.
One of the earliest cases in which this Court
had to interpret s. 6 of the Act was that of Surajnath Ahir v.
Prithinath Singh (2 ) . There the question
which engaged the attention of this Court was whether the appellants who had
originally gone into possession on the strength of a mortgage lost their right
to continue in possession even if they claimed to be trespassers after the
redemption of their mortgage by reason of the estate vesting in the State on
the passing of the Act. Although the case is not directly in point, it bears
upon the identical provisions of law which have to be applied to the facts of
the case before us. The facts in that case were that the appellants had entered
into possession of kasht lands of the mortgagors on the strength of a mortgage
deed. The mortgagors thereafter executed another mortgage with respect to their
milkiat (proprietary) interest in favour of certain persons. The plaintiff
respondents bought the milkiat rights together with "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 possessions of the lands in dispute even after the redemption of
the mortgage. It was held by this Court that the respondents could not take
advantage of section 6 (1) (c) of the Act as no mortgage subsisted on the date
of vesting and the mere fact that the proprietor had a subsisting (1) I.L.R. 37
Patna 918.
(2) [1963]-3 S.C.R. 290 643 title to
possession over certain land on the date of vesting could,' not amount to that
land being treated as under his "khas possession" for the purposes of
the Act. Referring to the definition of "Khas possession" in s. 2(k)
of the Act as meaning "the possession of such proprietor or tenureholder
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".
it was held that in order that the
respondents could take advantage of the provision of s. 6 (1 ) (c) of the Act
they had to, establish a subsisting mortgage on the date of vesting which was
inclusive, of the land subject to their right of redemption. On the question of
possession of the lands it was observed "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
was not 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."
Rejecting the construction put on the expression 'khas possession by the High
Court in Brijnandan Singh v. Jamuna Prasad(1) it was said :
" 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 Full Bench decision
of the Patna High Court, came up for consideration by this Court in Ram Ran
Bijai Singh v. Behari Singh alias Bagandha Singh(2). There the appellants
before this, Court were the plaintiffs who had filed a suit for a declaration
that a certain plot of land was their zeraiti land and that the persons
impleaded as the defendants 1st and 2nd parties had no right or title thereto
and for recovery of possession of the said land by dispossessing them
therefrom. It was argued that in view of the concurrent findings of the courts
below that the lands were the zeraiti lands of the plaintiffs they would not
vest in the State because of the saving in s. 6 of the Act and the appellant should
be deemed to have been in khas possession of the land under s. 6 (1) (c). The
respondents contended that it was not a case of a mortgagee remaining in
possession after payment of the debt without anything more but of tenants who
claimed to remain in possession by asserting a title which was as much against
the mortgagors as against the mortgagees. Reference was made in the (1) A.I.P.
1958 Patna 580. (2) [1964] 3 S.C.R. 363.
(3) I.L.R.37Pat. 918.
644 course of arguments to the Full Bench
decision in Sukhdeo Das's case(3) and it was submitted that a mortgagee
continuing in possession of the mortgaged property after payment of the
:mortgage amount must hold the same on behalf of the mortgagor and in trust for
him. Counsel further relied on certain observations in the judgment of the Full
Bench in aid of his proposition and submitted on the basis thereof that even
the possession of a trespasser who had not perfected his title by adverse
possession for the requisite period of time under the Limitation Act should be
considered as in khas possession of the true owner. Turning down this
submission it was observed by this Court (p. 378) :
"We consider that this equation of the
right to possession with 'khas possession' 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 Court went on to add that "The possession of the
contesting defendants in the present case was in their own right and adverse to
the plaintiffs, even on the case with which the appellants themselves came to
court." Noting the statement of the plaintiffs in their plaint that the
mortgagees had fulfilled their obligations and the obstruction to possession
was put forward only 'by persons who claimed occupancy rights this Court
concluded that, in the circumstances of the case, it was not possible for the
appellants to contend that these tenants (defendants 1st and 2nd parties) were
in possession of the property on behalf of the mortgagor or by virtue of any
right through the mortgagor. The case is not therefore an authority for the
proposition that a co-sharer's constructive possession is to be ignored under
s. 6 (1) (c) of the Act.
Counsel for the appellants also referred us
to a recent decision of this Court in S. P. Shah v. B. N. Singh(1) in aid of
his contention that the true effect of s. 6 of the Act was to create a new
right ,of tenancy in favour of the person in khas possession and consequently
even if the plaintiff in the partition suit had a right to ask for demarcation
of his Rs. 0-4-0 share of the bakasht lands before the passing of the Land
Reforms Act, he could not pursue his claim by a prayer that he be considered a
tenant along with those who were in actual khas possession.
In our view the above decision is no
authority for this broad proposition. In that case the appellants who were
mortgagees of an estate including bakasht lands and other lands filed a suit on
(1) [1969] 3 S C.R. 908.
64 5 their mortgage and tried to follow up
the preliminary decree which was obtained before the Act came into force by a
petition for passing a final decree. One of the questions before this Court was
whether the mortgage decree had become un executable in view of the provisions
of the Act. It was held that the net effect of ss. 3, 4 and 6 was that although
on the vesting of the, lands in the State a settlement was deemed to be
effected with the person in khas possession in law, there were two different
transactions and the deemed settlement was in effect a separate transaction
creating new rights. The Court came to the conclusion that the only remedy open
to the decree-holders wag that provided in Chapter IV of the Act i.e. a claim
under s. 14 before the Claims Officer for determining the amount of debt
legally and justly payable to each creditor in respect of his claim.
The Court was there dealing with the rights
of the mortgage creditors after the Act had come into force. Chapter IV of the
Act made special provisions for dealing with the rights of secured creditors
and s. 4 (1) (d) expressly provided for the abatement of all suits and
proceedings for the recovery of any money through proceedings which might be
pending on the date of vesting arising out of securities created by mortgage or
a charge on an estate or tenure. Here however we are not dealing with the
claims of mortgagees under Chapter IV. In this case we have to consider whether
the appellants had laid a claim which a co-sharer could not put forward except
by pleading ouster or any other independent ground. Even if they were in actual
khas possession within the meaning of s. 2 (k) of the Act it must be held that
the plaintiff who was a co-sharer was in constructive possession through the
appellants as "under the law possession of one co-sharer is possession of
all the co-sharers". We see no reason to hold that the observations of
this Court to the above effect in P. L. Reddy v. L. L. Reddy(1) are not
applicable to the case before us. The appellants do not claim to be trespassers
on the property neither did they claim any title to the lands adversely to the
plaintiff respondent. The deeming provision of s. 6 must therefore enure for
the benefit of all who in the eye of law would be regarded as in actual
possession. It follows that the plaintiff had not lost his share in the bakasht
lands and had a right to them though not as tenure-holder or proprietor but
certainly as a raiyat under the provisions of the Land Reforms Act.' The appeal
must therefore be dismissed with costs.
V.P.S. Appeal dismissed.
(1) [1957] S.C.R. 195, 202.
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