Appeal No 533 of 1960
Appeal from the judgment and decree dated January 28 1959 of the Patna High Court in Appeal from Original Decree No 143 of 1948
B K Saran and K L Mehta for the appellants
R K Garg D P Singh section 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 possession
The defendants 1 to 5 did not admit the allegations made by the plaintiffs and stated the real state of affairs to be that the disputed lands were never the bakasht lands of the proprietors of the village and were really the raiyati qaimi kasht lands of the defendants
that the plaintiffs never purchased the disputed lands that the disputed lands were the raiyati kasht lands of Ram Autar Bhagat only who let out the disputed lands in rehan under different rehan deeds alleging them to be raiyati kasht lands and who had earlier treated it as his exclusive raiyati kasht lands and that ultimately Ram Autar Bhagat sold the disputed lands to the defendants and got their names entered as qaimi raiyati kushtkars
It was further alleged that the defendants bad acquired title to the land in suit by virtue of adverse possession
The trial Court found that the plaintiffs had no subsisting title to the lands in suit as those lands were not sold to the plantiffs who had purchased the milkiat interest including the bakasht and zerat lands that the suit was barred by adverse possession also and that it was barred by limitation
It therefore dismissed the suit
On appeal the High Court held that the plaintiffs did purchase the land in suit and that the defendants were in possession only as mortgagees 294 and that after the redemption of the mortgage they had no right to continue in possession
It therefore allowed the appeal and decreed the plain tiffs  suit
The defendants have now filed this appeal
Learned counsel for the appellants has urged five points 1 The record of rights supported the case of the defendants that they were the qaimi raiyats and that the High Court wrongly construed them
2 The sale deed of 1915 in favour of the respondents did not include the land in suit
3 Even if the plaintiffs respondents acquired right to the land in suit by purchase they are estopped from taking any action against the defendants appellants who had been in possession for long
4 The suit is barred by limitation as the defendants had perfected their title by adverse possession and the plaintiffs had not been in possession within limitation 5 The plaintiffs respondents had no subsisting title to evict the appellants in view of the provisions of the Bihar Land Reforms Act 1950 Bihar Act XXX of 1950
The case set up by the defendants with respect to their acquiring the qaimi raiyati kasht rights in their written statement has been disbelieved by the Courts below and we think rightly
It follows that the defendants were in possession of the land in suit only as mortgagees as held by the Court below and
that they had no right to possession after the mortgage had been redeemed
295 By the sale deed dated October 5 1915 Ram Lal Bhagat and 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 190which has been in possession and occupation of us the executants without copartnership and interference by anybody together with all the present Zamindari rights appertaining thereto without excluding any interest and profit together with Zirat lands which have been recorded in the survey papers in the names of us the executants as bakasht lands and new and old party lands aam and Khas Chairmazrua lands baharsi dih house of the tenants ground rent ahar pond reservoir tank orchard fruit bearing and non fruit bearing trees and bambooclumps that is the entire lands and profit derived from zamindari below and above the surface existing or which may be derived in future without excluding anything They emphasized the extent of the sale property further by saying We the executants gave up and relinquished our respective possession and occupation of vended property today
The entire interest excluding only the chaukidari chakran service land which has been let out in settlement with us  the executants is being sold
The chaukidari land only is not being sound sic
 296 It is clear therefore as held by the High Court that the land in suit which is included in the milkiat share was not excepted from sale
The only property excluded from sale was the chaukidari chakran land
The long possession of the appellants therefore does not estop the respondents from recovering possession from them
The suit was instituted within 12 years of the redemption of the mortgage deed and is not therefore barred by limitation
The only other question to determine is whether the plaintiffs respondents cannot recover possession from the appellants in view of the provisions of the Bihar Land Reforms Act 1950 Act XXX of 1950 hereinafter called the Act which came into force during the pendency of the appeal in the High Court
The trial Court dismissed the suit on March 81948
The High Court allowed the appeal on January 28 1958
The Act came into force on September 25 1950
Sub section 1 of section 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 section
1 of section 3
According to section 4a 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
Subclause f of section 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 vs 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 MP Act No 1 of 1951
We have now to consider whether any interest in the land in suit was expressly saved by or under the provision of the Act in favour of the respondents
Section 6 of 4 the Act provides inter alia that on and from the date of vesting all lands used for agricultural purposes which were in khas possession of a proprietor or tenure holder on the date of vesting shall be deemed to be settled by the State with such proprietor or tenure holder as the case may be and such proprietor or tenure holder shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector
The lands coming within this section included lands used for agricultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the 1 1962 Supp 1 SCR 123
298 intermediary is entitled to recover khas possession
thereof It follows that such lands though not in the actual khas possession of the proprietor on the date of vesting would also be deemed to be settled with the proprietor who would retain their possession as raiyat under the State
According to s2k of the Act  khas possession  used with reference to the possession of a proprietor or tenure holder of any land used for agricultural or horticul tural purposes means the possession of such proprietor or tenure holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock
 On the date of vesting the respondents were not in khas possession of the land in suit as they were not in possession in any of the manner mentioned in this definition
Section 6 does not really enlarge the scope of the expression Khas possession but includes lands covered by cls
a b and c of sub
section 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 horti cultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof
 It is therefore necessary for the respondents to get advantage of the pro visions of this clause that there be a subsisting mortgage on the date of vesting and that the land included in the subsisting mortgage be such that on the redemption of the mortgage the respondents be entitled to recover khas possession thereof
No mortgage subsisted on the date of vesting and therefore the benefit of this clause cannot be taken by the respondents
The land in suit does not come within the provisions of el
c or any other clause of sub section
1 of section 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 vs 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 section 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 vs 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 tenure holder either by cultivating such land himself with his own stock or by his own servants or by hired labour or with hired stock
The mere fact that a proprietor has a sub sisting title to possession over certain land on the date of vesting would not make that land under his khas possession 
1 A I R 1958 Pat
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 section 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
section 1 of section 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 sections 3 and 4 of the Act and that therefore thereafter they had no subsisting right to recover possession from the appellants
The right to possession now vests in the State
The respondents being no more entitled to recover possession of the land in suit the decree of the High Court has to be set aside
We accordingly allow the appeal set aside the decree
of the Court below and restore the decree of the trial Court though for reasons other than those given by that Court in its judgment
In the circumstances of the case we order the parties to bear their own costs
Appeal allowed


Summary:
The plaintiff respondents sued the appellants for recovery of possession of the lands in dispute
The appellants had entered into possession of the lands on the strength of a mortgage deed
The mortgagors executed another mortgage with respect to their milkiat interest in favour of certain persons
The plaintiff respondents bought the milkiat rights shares together with the kasht lands from the mortgagors and entered into possession of the milkiat property and subsequently redeemed the mortgage deeds in 1943
The appellants however did not make over possession of the lands in dispute after the mortgages had been redeemed
The trial court found that the plaintiff respondents had no subsisting title to the lands and that the suit was barred by adverse possession and limitation
The High Court on appeal filed by the plaintiff respondents allowed the appeal on the 291 ground that the defendant appellants were in possession only as mortgagees and that after the redemption of the mortgage they had no right to continue in possession
The appellants than appealed to the Supreme Court by certificate granted by the High Court
Apart from the ques tions of estoppel and limitation by adverse possession the main point which was raised in the appeal was that the plaintiff respondent had no subsisting title to evict the appellant in view of the provisions of the Bihar Land Reforms Act 1950
Held that the suit was instituted within twelve years of 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 section 61 c of the Act as amended by Act XVI of 1959
The mere fact that a proprietor had a subsisting title to possession over certain land on the date of vesting would not make that land under his Khas Possession 
The res pondents lost their right to recover possession from the appellants even if they were trespassers on their estate vesting in the State
Brijnandan Singh vs Jamuna Prasad A I R 1958 Pat 589 Haji Sk
Subhan vs Madhorao 1962 Supp
I SCR 123