ivil 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 section 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 prayina 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 section 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
section 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 section 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
 section 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 equit able 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 section 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
vs Kashi Prasad Tewari and Shrideo Misra vs Ramsewak Singh1
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 section 6 of the Act was that of Surajnath Ahir vs 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 ILR 37 Patna 918
2 1963 3 SCR 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 section 2k of the Act as meaning 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
it was held that in order that the respondents could take advantage of the provision of section 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 clc of section 6 of the Act
 Rejecting the construction put on the expression khas possession by the High Court in Brijnandan Singh vs Jamuna Prasad1 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 vs Behari Singh alias Bagandha Singh2
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 section 6 of the Act and the appellant should be deemed to have been in khas possession of the land under section 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 AIP 1958 Patna 580
2 3 ILR37Pat
644 course of arguments to the Full Bench decision in Sukhdeo Das s case3 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 pos session 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 section 6 1 c of the Act
Counsel for the appellants also referred us to a recent decision of this Court in section P Shah vs B N Singh1 in aid of his contention that the true effect of section 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  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 unexecutable in view of the provisions of the Act
It was held that the net effect of sections 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 ie a claim under section 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 section 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 section 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 vs L L Reddy1 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 section 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
VPS Appeal dismissed
1   202


Summary:
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 section 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 section 2k 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 section 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 vs L L Reddy   202 followed
Surajnath Ahir vs Prithitnath Singh  Ram Ran Baijal Singh vs Behari Singh alias Bagandha Singh  section P Shah vs B N Singh  and Mahant Sukhdeo Das vs Kashi Prasad Tewari referred to