Case: Prithvinath Singh and Others Vs. Suraj Ahir and Others

2. We may now refer to the circumstances under which the claim for restitution was made by the defendants. The plaintiffshad executed a mortgage in favour of the defendantson July 3, 1906 in respect of an extent of lands measuring 10.24 acres. The plaintiffs redeemed the mortgage on April 5, 1943. Notwithstanding the redemption of the mortgage, the defendants did not make over the possession of the suit lands. Hence the plaintiffs instituted on November 18, 1946 title suit No. 93/1946 in the court of the Subordinate Judge, Arrah, against the defendants for a declaration of their title to and for recovery of possession of 10.24 acres of land along with mesne profits. The plaintiffs case was that the defendants notwithstanding the redemption of the mortgage were in illegal occupation of the lands and hence they are bound so surrender possession of the properties together with mesne profits for the period they have been in such illegal possession. The defendants contested the claim of the plaintiffs on the ground that the disputed lands were never the Baksht lands of the proprietors of the village but on the other hand the lands were really their Raiyati Qaimi Kasht lands and that the plaintiffs never purchased the disputed lands and therefore they had no title to the suit lands. The Trial Court dismissed the suit holding that the plaintiffs had no subsisting title to the suit lands as they never purchased the same an that the suit was barred by limitation as the defendants has been in adverse possession for over the statutory period. On appeal by the plaintiffs (First Appeal No. 143 of 1948) the Patna High Court held that the plaintiffs were the purchasers of the suit lands and that the defendants had been in possession only as mortgagees. The High Court set aside the decree of the Trial Court and granted the reliefs of declaration and recovery of possession as well as mesne profits as prayed for by the plaintiffs. The defendants on certificate issued by the High Court, filed Civil Appeal No. 533 of 1960 in this Court.At this stage we may mention that when First Appeal No. 143 of 1948 was pending before the Patna High Court, the Act had come into force on September 25, 1952, and by virtue of the notification issued by the State Government under Section 3(1) the estate in which the suit lands are situated passed to and vested in the State on January 1, 1956. In consequence of the judgment of the High Court, dated January 28, 1958, the plaintiffs took possession of the lands from the defendants on May 6, 1959. As the decision of the High Court was reversed by this Court on May 4, 1962, the defendants filed on June 25, 1962, Miscellaneous Case No. 110 of 1962 before the Subordinate Judge, Arrah, Under Section 144, C.P.C., claiming : (a) redelivery from the plaintiffs of the suit lands, (b) mesne profits from May 6, 1956, the date when the plaintiffs took delivery of possession, up to the date redelivery and (c) refund of costs realised by the plaintiffs in the title suit proceedings. There restitution proceedings are the subject of consideration before us.4. The plaintiffs contested the claim of the defendants for restitution on the ground that this Court had held the defendants to be trespassers and that the suit lands had vested in the State of Bihar under the Act. The plaintiffs raised a further contention that a the entire estate including the suit lands has vested in the State of Bihar, in law, the plaintiffs must be consider to be in possession on behalf of the State of Bihar and it is the concern of the State of Bihar, if at all, to claim possession and that the defendants have no manner of right in law to take possession from them. They also resisted the claim for mesne profits as well as the rate of interest with regard to the amount of costs which the defendants wanted to be refunded. The learned Subordinate Judge receded only on the basis that the plaintiffs having obtained possession of the lands in pursuance of the decree of the High Court in First Appeal No. 143 of 1948, the defendants are entitled to ask for restitution under Section 144 C.P.C., when once the decree of the High Court was set aside by this Court. The Subordinate Judge also held that the defendants have been deprived of the income from the lands after the plaintiffs took possession on May 6, 1959. The claim for refund of costs collected by the plaintiffs was also accepted by the Subordinate Judge, but he allowed interest only at the rate of 6% per annum. In the result the Subordinate Judge by his order, dated July 24, 1963, allowed the defendants application and ordered restitution in their favour together with mesne profits and also refund of the costs of the title suit proceedings.5. The plaintiffs challenged this order before the Patna High Court in the appeal from the original order No. 214 of 1963. The High Court, by its judgment, dated October 18, 1964, dismissed the plaintiffs; appeal and confirmed the order of the Subordinate Judge. It is this judgment of the High Court which is under attack in the appeal before us.6. During the pendency of the appeal in the High Court, the State of Bihar had filed an application on September 20, 1965, for being impleaded as a party to the appeal as the estate in which the suit lands were situate has vested in the State under the Act. A request was also made to order that neither the plaintiffs nor the defendants had any further right, title or interest in the suit lands covered by the title suit No. 93 of 1946 in which the restitution proceedings were being fought out by the parties. The State had also averred in the affidavit filed in support of its application that it had lawfully taken possession of the suit lands from the plaintiffs on August 22, 1965, and therefore, the question of delivery of suit lands to any other party no longer arose for consideration.7. The High Court on October 14, 1965, allowed the said application of the State impleading it as a party to the appeal. Before the High Court the plaintiffs did not quire properly resist the claim for refund of costs already collected by them from the defendants in the proceedings connected with the 4 title suit. But they objected to the claim for restitution as well as for payment of mesne profits on the ground that in view of the Act and as the suit lands have vested in the State who have also taken possession of the lands, the defendants are not entitled to claim redelivery of the suit lands, on the basis of the Judgment of this Court in the title suit, the plaintiffs further urged that the suit lands have been lawfully delivered to the State in whom the entire estates has vested under the Act. The High Court appears to have become somewhat suspicious about the manner in which possession has been taken by the State, and it also held that it has not been shown that any action has been taken by the Collector under Section 4(g) of the Act. The High Court has also taken the view that the rights, if any, of the defendants under the Act have also not been adjudicated upon by this Court and therefore the fact that the State claimed to have taken possession from the plaintiffs is not of any consequence. The High Court, agreeing with the Subordinate Judge, held that the question of restitution has to be considered on the basis of the result in the title suit. As the plaintiffs have admittedly taken possession by virtue of the High Courts judgment in First Appeal No. 143 of 1948 and as this Court reversed the High Court decree, the High Court held that the plaintiffs were bound to redeliver possession of the lands to the defendants. The High Court did not accept the contention of the plaintiffs that they are not liable for mesne profits because they must be considered to have been in possession of behalf of the State, but it was conceded by the defendants before the High Court that their claim for mesne profits can be restricts to the period from May 6, 1959, to August 22, 1965, on which date the State claimed to have taken possession of the suit lands. In view of this modification of their original claim, the High Court confirmed the order of restitution passed by the Subordinate Judge, but limited the period for which mesne profits were payable as from May 6, 1959, till August 22, 1965.

Reasoning:
10. Having due regard to the contentions places before us, we are of the opinion, that the claim for restitution and the further claim for mesne profits should not have been allowed in this case in favour of thethe outset we must point out that though the Act has come into force on September 25, 1950, and the estate including the suit lands had become vested in the State on January 1, 1956, and though the First Appeal No. 143 of 1948 in the High Court was pending during those material dates, no notice was given to the State nor was it impleaded as a party as is mandatory under Section 4(ee) of the Act. The result was that both the appeals in the High Court and the appeal in this Court were heard and decided without the State as a party and therefore it is only legitimate to infer that the rights of the plaintiffs and the defendants inter sea were alone dealt with and decided in those proceedings. In fact even if any finding had been recorded prejudicial to the State, those findings will not be binding on the State.From what is stated above, it will be seen that this Court in the above decision had no occasion to deal with the rights of the State as such. The effect of the Act was only considered for the purpose of finding out whether the plaintiffs had plaintiffs had subsisting title to prosecute their suit for recovery of possession. The sum and substance of the decision of this Court is that the plaintiffs had no right to recover possession of the suit lands and that the defendants has no right as mortgagees and that their possession many be as trespasser or in any other capacity. But it must be noted, that this Court had categorically held that after the estate vested in the State, the right to possession vested in the State and the right to recover possession from a trespasser also got vested in the State. The State had not been impleaded in those proceedings.13. We are not inclined to accept thecontention of Mr. Mehta that the dispute between the parties in the restitution proceedings has to be adjudicated merely on the basis of Section 144,ignoring the decision of this Court and the material provisions of thee was not in the original Act of 1950. It has been inserted in the year 1954 by the Bihar land Reforms (Amendment Act) 1953 (Bihar Act 20 of 1954). At any rate this provision was in force from May 17, 1954. That is why we have mentioned earlier that in the First Appeal No. 143 of 1948, which was pending before the Patna High Court, no steps were taken to issue notice to the State so as the enable it to appear and conduct or defend the proceedings before the High Court. Thatalso makes it clear that in the absence of sub notice, the decree or order passed in the suit, appeal or proceedings shall not be binding on the State Government. Therefore, it is clear that as the State was not made a party before the High Court or in the further appeal to this Court, the State had no occasion or opportunity to place its objection to the claims made by the parties in those proceedings.We do not think to refer to clause (g) of Section 4 as it originally stood or after its amendment in 1954 or as it stands at present as substituted in 1959 because it has no bearing in deciding the claim of the parties beforethe position in this case is that on January 1, 1956, the estate in which the suit lands are included vested in the State and from that date the Collector in law should be deemed to have taken the charge.We are of the opinion that the High Court was not justified in rejecting the claim made on behalf of the State. This Court, in the title suit proceedings, has categorically held that the estate had vested in the State and the right to possession, as well as rights to recover possession form a trespasser, also got vested in the State.20. Section 4(ee) makes it clear that the State is as of right entitled to be impleaded in the proceedings referred to therein and place its point of view before the Court. In this case the State has raised objection before the High Court that as the estate has vested in the State under the Act and as the Collector is deemed to have taken charge of the estate, from the date of vesting, there is no question of any claim for restitution surviving in the plaintiffs or the defendants in these proceedings. Apart form the fact that from January 1, 1956, the estate had vested in the State and the Collector under Section 4(f) shall be deemed to have taken charge of the estate from the date of vesting, there is categorical averment by the State that they have taken possession from the plaintiffs on August 22, 1965. The plaintiffs have also stated that they have surrendered possession to the State, So far as we cold see, the High Court has not rejected as false the claim made by the State. The High Court has proceeded on the basis that the question of restitution has to be considered only as between the plaintiffs and the defendants on the basis of the result of the title suit proceedings.21. As we have already pointed out even without the actual physical possession taken on August 22, 1965, in law the State must be considers to have been in possession from the date of vesting by virtue of Section 3 and 4, read with Section 4(f). We have already pointed out the difference between Section 4(f) as if originally stood and after its amendment in 1954 with retrospective effect. Apart from the fact that the Collector shall be deemed to have taken charge, the position if further strengthened by the State having actually taken possession from the plaintiffs on August 22, 1965. It is also significant that the defendants were prepared to restrict their claim before the High Court for mesne profits till August 22, 1965, the date on which the plaintiffs surrendered possession to the State.22. From what is stated above it follows that the defendants have no right to get possession from the plaintiffs after the estate had vested and possession delivered to the rightful party, namely, the State. Therefore, the order of restitution passed as against the plaintiffs was erroneous.23. The same principles will apply to the claim for mesne profits made by the defendants. The defendants have claimed mesne profits from May 6, 1959, the date when the plaintiffs took delivery of the suit lands by virtue of the High Courts decision, but long before i.e. January 1, 1956, the State had vested in the State under the Act. As we have held that the defendants are not entitled to get restitution, it follows that they will not also be entitled to claim mesne profits. Therefore, this claim also will have to be rejected.24. The claim made by the defendants for refunds of costs collected by the plaintiffs in the title suit proceedings has not resisted by the latter and that claim has been allowed by the High Court. That part of the order of the High Court will stand. Subject to the direction given above, the judgment of the High Court directing the plaintiffs to surrender possession of the suit lands to the defendants and pay mesne profits will stand set aside and the claim made by the defendants in this regard will stand dismissed.