Case: Ramesh Bejoy Sharma And Ors Vs. Pashupati Rai And Ors

2. One Tikait Fateh Narain Singh was the holder of an estate comprising Taluka Chakai within the revenue limits of which the lands involved in this litigation are situated. On the death of Tikait Fateh Narain Singh the estate devolved on his widow Mussamat Durga Kumari, she having widows interest as per the prevalent Hindu law at the relevant time. Mst. Durga Kumari sold the entire estate including Taluka Chakai to Maharaja of Gidhaur. After her death one Tikait Chandi Prasad claiming to be the next reversioner of Tikait Fateh Narain Singh brought an action on 15th May, 1907 being Title Suit No. 86/1908 against the Maharaja of Gidhaur for setting aside the alienation on the ground that the alienation was made by a widow having life estate and being without legal necessity, it was not binding on the reversioner. This litigation culminated in a decree in favour of Tikait Chandi Prasad by the Privy Council on 2nd November 1915. However, Tikait Chandi Prasad had succeeded in obtaining possession of Taluka Chakai somewhere in 1911 before the Privy Council finally ruled in his favour.3. Soon after commencing the suit hereinbefore mentioned, Tikait Chandi Prasad felt stringency of funds necessary for righting the litigation and he mortgaged the proprietary interest in the estate which he was claiming as reversioner, with one Mr. Chrestian for Rs. 30, 000. Even after the decision of the Privy Council in his favour, Tikait Chandi Prasad failed to discharge the mortgage with the result that Mr. Chrestian brought Title Suit No. 150/21 to recover the mortgage dues. This suit ended in a final decree on 17th November 1923. Mr. Chrestian took out execution of the final decree in Execution Petition No. 207/25 and at the Court auction Mr. Chrestian himself purchased the proprietary interest in Chakai Taluka on 16th June 1931 and then took delivery of the estate through the Court in 1934.4. Before Mr. Chrestian commenced his action in Title Suit No. 150/21, one Pitamber Rai, the ancestor of the defendants (present respondents) had filed a Money Suit No. 22/1919 against Tikait Chandi Prasad for recovering dues from him and this suit ended in a money decree. Execution Case No. 22/21 was commenced by Pitamber Rai for sale of the lands involved in the present appeal and he himself purchased the same at a Court auction along with some other lands included in Khata Nos. 140 and 146. After the sale was confirmed Pitamber Rai obtained delivery of possession on 10th October 1924. A petition by judgment debtor Tikait Chandi Prasad for setting aside Court sale under Order 21, Rule 90,Code of Civil Procedure, did not meet with success.5. On 18th April 1943 Mr. Chrestian sold his proprietary interest in Chakai Taluka to Rai Bahadur S. K. Sahana, the plaintiff in the present litigation and he claimed to have obtained possession of the lands purchased by him.6. The plaintiff filed Title Suit No. 15/46 against the respondents defendants for recovery of possession of the suit lands alleging that the suit lands were proprietors private lands and were in actual cultivating possession of Tikaits from time immemorial. Alternatively it was the plaintiffs case that even if it be held that Tikait Chandi Prasad had occupancy ryoti rights over the suit lands, the same had merged with his proprietary rights and, therefore, the character of the land would be bakast lands of the proprietor and the defendants respondents would have no. vestige of title for continuing in possession and they would be trespassers. This suit was dismissed by the trial Court and the first appeal by the plaintiff to the High Court failed. What is historically relevant for the present litigation is that the High Court held in its judgment dated 23rd September 1952 in First Appeal No. 355/47 that the defendants (present respondents) or their ancestors had not acquired any ryoti interest with right of occupancy nor they had the status of tenure-holders and they were mere tenants-at-will by virtue of rent receipt granted by Mr. Chrestian. Having so ascertained the character of possession of the respondents in respect of the suit lands, the High Court further proceeded to hold that the suit of the plaintiff was not maintainable because even tenant-at-will cannot be ejected without determining the tenancy in accordance with law. In other words, they were entitled to notice and no. such notice was shown to have been served. Thus ended the first round of litigation started by the purchaser against the present respondents.7. Taking cue from the judgment of the High Court, the plaintiff served notice to quit on the defendants and commenced an action in ejectment in Title Suit No. 60/53. During the pendency of the suit the plaintiff died and his legal representatives were substituted and they continued the suit. The defendants contested the suit, inter alia, on the ground that on the issue of the notification dated 12th April 1953 published in the Government Gazette dated 14th May 1953 under S. 3 of the Bihar Land Reforms Act, 1950 (Act for short), the estate of the plaintiff had vested in the State and, therefore, the plaintiff was not entitled to evict the defendants. The trial Court negatived the contention of the defendants holding that they were not occupancy tenants of the suit lands as alleged by them but they were mere tenants-at-will as held by the High Court, in the earlier round of litigation and their tenancy having been properly terminated by a notice to quit, the plaintiff was held entitled to a decree for possession. Issue No. 3 framed by the trial Court was whether the plaintiff had a right to file the suit for possession after the vesting of the estate in the State? The trial Court held that as the plaintiff had a right to take possession the land could be deemed to be in his khas possession within the meaning of S. 6 (1) (b) of the Act and, therefore, plaintiff would be entitled to evict the defendants, the intervening vesting of the estate in the State would not abrogate plaintiffs right to possession which accrued to him prior to the date of issue of the notification under S. 3.8. Defendants (present respondents) preferred Title Appeal No. 17/60 which was dismissed as the appellate Court substantially agreed with the findings of the trial Court. Defendants preferred Second Appeal No. 343 of 1964 to the High Court of Patna. The learned single Judge of the High Court was of the opinion that even if the defendants were in possession of the suit lands as tenants-at-will on the date of vesting of the estate, their possession of the suit land would not enure for the benefit of the intermediary (plaintiff) within the meaning of S. 6 of the Act. The High Court was also of the opinion that the right to take possession does not constitute khas possession within the meaning of S. 6 (1) (b) of the Act. In accordance with these findings the High Court held that since the issue of notification under S. 3 the estate of the plaintiff vested in the Sate and the plaintiff, therefore, cannot seek to evict the defendants. The High Court accordingly allowed the appeal of the defendants and dismissed the plaintiffs suit for possession. Hence the present appeal by the plaintiff.

Reasoning:
21. It can thus demonstrably be established that a tenant-at-will is not holding possession on behalf of landlord but he has a vestige of title to it and holds on his own behalf and can set up his possession against the landlord till formality prescribed by law is undertaken by the landlord and he is evicted by due process of law. If a notice of a certain duration is necessary expiring with a certain event such as end of the agricultural year, till the end of the agricultural year the tenant, notwithstanding the fact that he is a tenant-at-will and under a notice to quit, will be able to hold on to his possession and keep the landlord at bay.Analysis of S. 6 read with Sections 3 and 4 along with the definition of expression khas possession in Section 2 (k) of the Act would on principle unquestionably show that the land in possession of a tenant-at-will cannot be said to be in khas possession of the intermediary for the purpose of the intermediary for the purpose of Section 6.It thus becomes crystal clear that on 12th April 1953 when the notification under S. 3 was issued the respondents tenants-at-will were under a notice to quit which would expire on 24th September 1953. Therefore, till 24th September 1953. Therefore, till 24th September 1953 the respondents tenants-at-will were in actual and physical possession of the land and till that date could hold against the intermediatary landlord. It may be that when the notice to quit dated 15th January 1953 was served the intermediary landlord may have a right to take possession but till 24th September 1953 when notice would expire the respondents were in actual possession and till then they could thwart any attempt of intermediary landlord to take actual possession. Therefore, on the date of the vesting i.e. 12th April 1953 the intermediary was not in khas possession within the meaning of S. 6 (1) and when on that day his estate vested in the State he was not entitled to recover possession. After the vesting of the estate in the State which event had occurred prior to the institution of the suit he could not maintain an action for eviction as he had no. more subsisting interest in the estate, his interest having vested in theif the plaintiff appellant has obtained some settlement of land on the basis of a decree of the trial Court or the first appellate Court which became interlocutory in view of the appeal preferred to the High Court and then to this Court, it is not open to the plaintiff to take any advantage of such a settlement. If this evidence is allowed to be admitted on record at this stage it might put the respondents at a disadvantage. Nor can the validity of that settlement be determined in this suit. Therefore, the rejection of this application is justified. The appellants may seek relief in respect of the so-called settlement in their favour asfind no. merit in this contention, firstly, because this contention was not taken before the High Court though it was available to the present appellants who were respondents before the High Court. The contention could be said to have been abandoned and once it is abandoned it cannot be re-agitated before this Court vide decision of this Court in Jayarama Reddy v. Revenue Divisional Officer and Land Acquisition Officer, Kurnool Civil Appeal No. 2314 of 1969, D/- 123-3-1979 (SC). Apart from this, if the Court fixes time for doing a certain thing, the Court always retains the power to extend the time and the same learned Judge of the High Court who made order at Entry 11 extended the time as per order at Entry 14. Therefore, it cannot be said that the appeal stood dismissed.