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

2. Plaintiffs 1 to 4 are the daughters sons of one Kishundeo Singh, plaintiffs 5 and 6 are his daughters and plaintiff 7 is his widow. The plaint property together with some other properties belonged to the joint family of which Kishundeo Singh and his brothers were the members. Suit No. 80/34 of 1944-46 was instituted for partition of the properties. That suit was compromised on July 4, 1947 and different schedules were prepared for the property allotted to the shares and some property was left in the joint possession of all of them. The plaint property fell to the share of Kishundeo Singh under the compromise. It may be mentioned that as none of the parties to the compromise produced the necessary stamp paper as directed by the Court, no decree was drawn up by the Court.3. In the suit for recovery of possession of the plaint property filed by the plaintiffs, defendants 1 and 2 contended that Kishundeo Singh, while he was alive, executed a hukumnama in 1354 Fs in their favour and they were put in possession of the plaint property as lessees and so they were entitled to remain in possession. They further contended that the suit was barred by limitation and also by S. 47 of the Civil Procedure Code.4. The Trial Court found that Kishundeo Singh obtained possession of the plaint property on the basis of the compromise, that the case of the defendants 1 and 2 that Kishundeo Singh had executed a hukumnama in their favour and that they obtained possession of the plaint property under it was false, that the suit was not barred by limitation or by S. 47 of the Civil Procedure Code and decreed the suit. This decree was confirmed in appeal. It was against this decree that the second appeal was filed by the defendants before the High Court.5. The High Court held that the plaintiff should have paid the stamp fee and got the decree drawn up in Suit No. 80/34 of 1944-46 and executed it and so the suit was barred by S. 47 of the Civil Procedure Code. The Court further held that since the plaint property had vested in the Bihar Government under the Bihar Land Reforms Act, 1950, hereinafter referred to as the Act, the plaintiffs were not entitled to maintain the suit. Therefore, the High Court allowed the appeal and dismissed the suit.

Reasoning:
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.