Case: Brij Kishore Prasad Singh &amp; Others Vs. Jaleshwar Prasad Singh &amp; Others

plaint property had vested in the Government and, therefore, the plaintiffs were incompetent to maintain the suit.7. As regards the first question, the High Court was of the view that, though none of the parties to the compromise had produced the necessary stamp paper as directed by the Court and no formal decree was drawn up, the plaintiffs could not have instituted a fresh suit for recovery of possession of the plaint property as their only remedy was to execute the decree in Suit No. 80/34 of 1944-46. In other words, the High Court held that the plaintiffs should have produced the necessary stamp paper and got the final decree drawn up and executed it, instead of filing a suit for the relief which they could have obtained by executing the decree and so, the suit was barred by Section 47 of the Civil Procedure Code.8. The Trial Court had found that Kishundeo Singh obtained possession of the plaint property without the assistance of the Court in pursuance of the compromise but that he allowed the defendants to occupy the same. To put it in other words, the finding of the Trial Court was that the defendant of the Trial Court was that the defendants were in permissive occupation. The Trial Court also found that the definite case of the defendants was that they were put in possession of the property under the hukumnama and, therefore, their possession was clearly that of lessees under an agricultural lease.9. The lower appellate Court held that there was no allegation in the plaint that Kishundeo Singh obtained khas possession under the compromise nor was there any evidence to show that he obtained khas possession but that defendants 1 and 2 continued in possession as before the compromise.10. Before the compromise, Kishundeo Singh and the defendants were in possession as tenants-in-common.The actual possession of the defendants, of the plaint property, was also the constructive possession of Kishundeo Singh. So, when the lower appellate Court said that the defendants continued in possession as before, it can only mean that after the compromise the defendants were in possession acknowledging the title of Kishendeo Singh. That apart, defendants 1 and 2 had no case that they intended to possess the property as their own. It is clear from the compromise petition that the defendants were permitted to occupy the plaint property until the structure which was constructed in the property was removed by them. They, no doubt, remained in physical possession, but that was not with any intention to possess the property for themselves but because they were permitted to remain in possession until the structure constructed by them was removed. The only right which they claimed in the written statement was that they were tenants under Kishundeo Singh by virtue of the hukumnama executed by him in their favour. At no time they asserted or claimed any right to remain in possession otherwise than as tenant. As already stated, their case that Kishundeo Singh put them in possession under the hukumnama was found against by the Trial as well as the First Appellate Court. But that would not in any way affect the permissive nature of their possession after the compromise.Therefore, we think that Kishundeo Singh was in constructive possession of the property after the compromise, and, the suit for recovery of khas possession was not barred by S. 47 of the Civil Procedure Code.11. The second ground on which the High Court dismissed the suit was that the plaint property had vested in the State of Bihar under the Act and the plaintiffs had, therefore, no right to proceed with the suit and obtain a decree for possession. The suit was instituted on March 7, 1953, the property vested in the State on January 26, 1955, under the Act. There is no dispute that the plaint property answers the description of a homestead in S. 5 of the Act.12. The High Court was of the view that since Kishundeo Singh was not in possession at the time the property vested in the State, he was not entitled to remain in possession of the plaint property under S. 5 as a tenant under the State free of rent. We are of the opinion that the constructive possession of Kishundeo Singh was sufficient to enable him to retain possession as a tenant under the section. In other words, on the date of the vesting of the property in the Government, Kishundeo Singh was, for the purpose of S. 5, in possession of the plaint property. In this context, it may be noted that the language of Section 5 is in sharp contrast with that of S. 6. The material part of S. 5 states :"5. Homestead of intermediaries to be retained by them as tenants - (1) With effect from the date of vesting, all homesteads comprised in an estate or tenure and being in the possession of an intermediary on the date of such vesting shall, subject to the provisions of sections 7A and 7B, be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession of the land comprised in such homesteads and to hold it as a tenant under the State free of rent."The relevant portion of S. 6 is in these terms :"6. Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights- (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......."Whereas S. 6 speaks of khas possession, S. 5 mentions only of possession. We find that on the date of vesting of the plaint property in the State, Kishundeo Singh was in possession for the purpose of S. 5 and that he became a tenant under the State free of rent and that the suit for recovery of possession was maintainable.

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

Explanation:
1[ds]10. Before the compromise, Kishundeo Singh and the defendants were in possession asactual possession of the defendants, of the plaint property, was also the constructive possession of Kishundeo Singh. So, when the lower appellate Court said that the defendants continued in possession as before, it can only mean that after the compromise the defendants were in possession acknowledging the title of Kishendeo Singh. That apart, defendants 1 and 2 had no case that they intended to possess the property as their own. It is clear from the compromise petition that the defendants were permitted to occupy the plaint property until the structure which was constructed in the property was removed by them. They, no doubt, remained in physical possession, but that was not with any intention to possess the property for themselves but because they were permitted to remain in possession until the structure constructed by them was removed. The only right which they claimed in the written statement was that they were tenants under Kishundeo Singh by virtue of the hukumnama executed by him in their favour. At no time they asserted or claimed any right to remain in possession otherwise than as tenant. As already stated, their case that Kishundeo Singh put them in possession under the hukumnama was found against by the Trial as well as the First Appellate Court. But that would not in any way affect the permissive nature of their possession after the compromise.Therefore, we think that Kishundeo Singh was in constructive possession of the property after the compromise, and, the suit for recovery of khas possession was not barred by S. 47 of the Civil Procedure Code.11. The second ground on which the High Court dismissed the suit was that the plaint property had vested in the State of Bihar under the Act and the plaintiffs had, therefore, no right to proceed with the suit and obtain a decree for possession. The suit was instituted on March 7, 1953, the property vested in the State on January 26, 1955, under the Act. There is no dispute that the plaint property answers the description of a homestead in S. 5 of the Act.12. The High Court was of the view that since Kishundeo Singh was not in possession at the time the property vested in the State, he was not entitled to remain in possession of the plaint property under S. 5 as a tenant under the State free of rent. We are of the opinion that the constructive possession of Kishundeo Singh was sufficient to enable him to retain possession as a tenant under the section. In other words, on the date of the vesting of the property in the Government, Kishundeo Singh was, for the purpose of S. 5, in possession of the plaint property. In this context, it may be noted that the language of Section 5 is in sharp contrast with that of S.S. 6 speaks of khas possession, S. 5 mentions only of possession. We find that on the date of vesting of the plaint property in the State, Kishundeo Singh was in possession for the purpose of S. 5 and that he became a tenant under the State free of rent and that the suit for recovery of possession was maintainable.