Case: Korin Alias Etwari Devi Vs. India Cable Company Limited and Others

Court held that the findings recorded in title suit 116 of 1938 could not be res judicata because of the changed circumstances - that now the question of Rajdeos title to the two disputed plots on which his homestead stood was to be considered independently from whatever his interest in the said plots was when they formed part of the agricultural land from which he had been dispossession under Section 50. It is however a little difficult to understand the relevance of the proceeding under Section 50 to which the trial Court and the first appellate Court both referred. If that proceeding related to a holding under a different landlord, and was not part of the land belonging to the plaintiff now in dispute, Rajdeos dispossession under Section 50 could possibly have no bearing on the nature of his interest in the disputed plots. However, as it appears that all the Courts including the High Court as well as the parties to the litigation proceeded on the footing as if the homestead plots and the agricultural land constituted one holding, we do not propose to pursue the matter further.4. The High Court in second appeal preferred by the defendants affirmed the decision of the first appellate Court. The High Court also held that the findings in title suit 116 of 1938 were not res judicata, that the protection of Section 78 of the Act was not available to the defendants after they were dispossessed from the agricultural lands under Section 50 and consequently Rajdeos homestead became subject to the ordinary incidents of a tenancy governed by the Transfer of Property Act. On the point that after the Bihar Land Reforms Act, 1950 came into force the plaintiff company and their lessors TISCO ceased to have any interest in the disputed land, therefore this suit for recovery of possession at their instance was not maintainable, the High Court was of opinion that as the tenancy of the two disputed plots was governed by the provisions of the Transfer of Property Act and not the Chhota Nagpur Tenancy Act, the vesting of estates under the Bihar Land Reforms Act had "nothing to do with the present suit for eviction of the defendants".5. As regard res judicata, if the nature of the defendants interest, in the disputed plots changed after TISCO recovered possession of Rajdeos agricultural lands under Section 50 of the Act, the reason given by the first appellate Court why the rule of res judicate should not apply would be sound calling for no interference. A test to find out if the right that the defendants had in the disputed plots had undergone a change consequent on their dispossession from the agricultural lands is whether the protection of Section 78 was still available to them. Section 78 reads :Homesteads. When a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and subject to local custom or usage by the provisions of this Act applicable to land held by a raiyat.Mr. S. Chaudhury appearing for the first respondent, the plaintiff company, referred to two decisions of the Patna High Court on Section 78. In Joy Chand v. Bhutnath Khan (AIR 1930 Pat 236 : 11 PLT 207 : 125 IC 561) a Division Bench of the High Court held that Section 78 will apply so long as the tenant of the homestead continues to be a raiyat in respect of the other land but no longer. In Secretary of State v. Babu Beni Prasad (AIR 1937 Pat 444 : 170 IC 77 : 1937 PWN 649), another Division Bench held that Section 78 "was enacted as a protection to the cultivating tenant, so that he may not be turned out of his homestead as long as he holds his raiyati land. If he parts with the raiyati land, his tenancy of the homestead becomes subject to the ordinary incidence and does not suffice to keep up his status as a raiyat". This appears to be the consistent view taken by the Patna High Court on the point and we fine no reason, at least non has been pointed out, inducing us to take a different view.6. It follows therefore that the defendants tenancy is governed by the provisions of the Transfer of Property Act and, on the facts found, the plaintiff company would be entitled to a decree for recovery of possession unless, consequent on the vesting of the estates and tenures under the Bihar Land Reforms Act, 1950 it ceased to have any interest in the subject-matter of the suit. The trial Court held that the land had vested in the State, the first appellate Court did not advert to the question, and the High Court thought it was not relevant. The High Court apparently failed to see that the question was relevant in order to find out if the suit was maintainable at the instance of the plaintiff company. We therefore send the matter back to the High Court. The High Court will record a finding as to whether the land forming the subject-matter of the suit had vested in the State and the plaintiff company ceased to have any interest in the land consequent on the vesting. If the High Court finds that the land had vested and the plaintiff company had no subsisting interest therein, it will dismiss the suit. It however the High Court finds that the land had not vested or that the plaintiff company retained an interest in the land in spite of vesting, it will affirm the decree of ejectment passed by the first appellate Court. As it may be possible to decide the question on affidavits and as this is a very old case, the High Court will try to dispose of the matter expeditiously, if possible within three months from the date when it receives back the record of the case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. It follows therefore that the defendants tenancy is governed by the provisions of the Transfer of Property Act and, on the facts found, the plaintiff company would be entitled to a decree for recovery of possession unless, consequent on the vesting of the estates and tenures under the Bihar Land Reforms Act, 1950 it ceased to have any interest in theof the suit. The trial Court held that the land had vested in the State, the first appellate Court did not advert to the question, and the High Court thought it was not relevant. The High Court apparently failed to see that the question was relevant in order to find out if the suit was maintainable at the instance of the plaintiff company. We therefore send the matter back to the High Court. The High Court will record a finding as to whether the land forming theof the suit had vested in the State and the plaintiff company ceased to have any interest in the land consequent on the vesting. If the High Court finds that the land had vested and the plaintiff company had no subsisting interest therein, it will dismiss the suit. It however the High Court finds that the land had not vested or that the plaintiff company retained an interest in the land in spite of vesting, it will affirm the decree of ejectment passed by the first appellate Court. As it may be possible to decide the question on affidavits and as this is a very old case, the High Court will try to dispose of the matter expeditiously, if possible within three months from the date when it receives back the record of the case.