Case: Ram Ran Bijai Singh And Others Vs. Behari Singh Alias Bagandha Singh

1. The proper construction of the vesting sections of the Bihar Land Reforms Act, 1950 (hereinafter called the Act), and in particular the scope of S. 6 thereof is the principal point that arises in this appeal which is before us on a certificate of fitness granted under Art. 133 (1) by the High Court ofplaintiffs ancestors had executed a registered rehan bond on October 28, 1897 of lands including those now in suit, in favour of the ancestors of the persons who were impleaded as a defendants 3rd parties. During the subsistence of this mortgage the plaintiffs ancestors executed another registered rehan bond in June, 1907 in favour of persons who were the ancestors of the persons impleaded as defendants 4th parties, a portion of the mortgage money being left with these second mortgagees to enable them to redeem the earlier mortgage. This redemption was effected and the defendants 4th party got into possession of the entirety of the property mortgaged to them. On June 8, 1941, the plaintiffs paid off the amount due on the rehan bond of 1907 and entered satisfaction on the bond making an endorsement thereon. On such redemption the plaintiffs obtained possession of a portion of the lands under mortgage but they could not obtain possession of the lands in suit. These lands were in the possession of the defendants 1st and 2nd parties who claimed title on the basis of their being entitled to occupancy rights in the lands and they refused to surrender actual possession of the land to the plaintiffs. They had asserted that the suit lands were not zeraiti lands in regard to which the plaintiffs as maliks would be entitled to khas possession, but were raiyat lands from which they, the tenants in cultivation could not be evicted. On this claim being made and resistance offered to the plaintiffs taking khas possession, the present suit was filed for the reliefs already set out.3. The defendants 3rd and 4th parties who were the representatives of the mortgagees under the rehan bonds of 1897 and 1907 hardly came into the picture as their claims under their mortgages have long ago been satisfied. The contest was therefore limited to the tenant-defendants-defendants 1st and 2nd parties and of these, it is sufficient to confine attention to the defendant 2nd parties who are in actual possession of the lands at the date of the suit. It need hardly be mentioned that by their written statement these defendants questioned the tenure of the lands, and asserted their rights to remain in possession despite the discharge by the payment of the rehan ofwas the case of the defendants that they had been in possession and occupation of the land as tenants long before the rehan of 1897 - even 30 years earlier, whereas it was the case of the plaintiffs that they were inducted to the land for the first time as tenants of the mortgagees under the first rehan of 1897 and that they were originally brought in as tenants for a term of 7 years which expired in or about 1912-13, (3) Had the plaintiffs lost title to the land and their suit for recovery thereof barred by limitation by reason of the contesting defendants having perfected their title by adverse possession? The contesting defendants put forward a claim that they had perfected their title by adverse possession for over the statutory period of 12 years under Art.144 of the Limitation Act and the point in controversy was when the period of this adverse possession started and whether computed on that footing the suit was barred by limitation.5. A large mass of documentary and oral evidence was led by the parties and this was the subject of elaborate consideration by the learned trial Judge. The findings recorded by him were : (1) that the land was the zeraity land of the plaintiffs and had been in their actual possession and not in the possession of any tenants of theirs at the date of the 1st rehan in 1897. This necessarily meant the rejection of the case put forward by the defendants that their predecessors were in occupation of the lands even before the rehan of 1897, (2) the defendants came into possession of the land under a lease deed executed about the year 1906 for a term of years and that that lease deed expired in 1912-13 and that there after they continued as tenants of zeraiti land and could not, therefore, claim any right of occupancy in the land, (3) the defendants 2nd party who were in actual occupation, were, no doubt, in possession of the suit lands under a claim to hold them on their own behalf but their possession could not be adverse to the plaintiffs until the latter got the right to resume possession which was only in June 1941 when they paid and discharged the amount due under the mortgage and so obtained the right to possession. As the suit was brought within 12 years from that date it was within time. On these findings the learned trial Judge, by his judgment dated October 10, 1947, decreed the suit, as prayed for.6. The contesting defendants - defendants 2nd party filed an appeal to the High Court challenging these findings. Pending the appeal they applied for and obtained stay of delivery of possession and by virtue of the order the defendants 2nd party continued to remain in possession. While the appeal was pending the Bihar Land Reforms Act (Act XXX of 1950) was enacted and it came into force on September 25, 1950.The appeal came on for hearing before the High Court in September 1957. At that stage learned Counsel for the tenant-defendants who were the appellants before the High Court, raised a plea that the suit which was in substance one for ejectment based on the title of the plaintiffs should fail and be dismissed because the plaintiffs had lost their title to the property which vested in the State by virtue of the notification under S. 3 of the Act with the consequence specified in S. 4. This was contested by the learned Counsel for the plaintiffs who submitted that the Court could not take notice of the legislation which came into force during the pendency of the appeal but that the Court should decide on the rights of parties with reference to the law as it stood at the date of the suit. The learned Judges, however rejected this last contention and held that the rights of the parties had to be decided on the law as it existed on the date of their judgment and so the effect of the Act on the title of the plaintiffs had to be considered before the relief granted by the trial Judge could be confirmed. Apparently beyond this general submission whether a court, particularly a court of appeal, should or should not take into account the effect of a change in the law subsequent to the institution of the suit, no attempt was made by Counsel for the plaintiffs to canvass before the High Court that even if the Act could be taken notice of and the rights of the parties determined on that basis, still on a proper construction of that Act the rights of the plaintiffs to the reliefs granted by the trial Judge remained unaffected which, we shall point out later, is the argument pressed upon us.

Reasoning: The possession of the contesting defendants in the present case was in their own right and adverse to the plaintiffs, even on the case with which the appellants themselves came into Court. The plaintiffs stated in their plaint that the mortgagees had, so far as they were concerned, fulfilled their obligations and had put the mortgagors in possession of such property as they could and that it was the contesting defendants who putting forward claims to occupancy rights resisted their entry into possession. This is, therefore, not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed the right to retain possession of the property by asserting a title which was as much against the mortgagee as against the mortgagors.The authorities relied on by Mr. Sarjoo Prasad only go to this extent that where nothing else is known except that a mortgagee continues in possession of the property after redemption, the right of the mortgagor to sue for recovery of the property is governed by the 60 years rule based on the continuing relationship of mortgagor and mortgagee between them. These very authorities however show that if the mortgagee by some overt act renounces his character as mortgagee and sets up title in himself, to the knowledge of the mortgagor, his possession would not thereafter continue as mortgagee but as a trespasser and the suit for recovery of the property from him would be governed by Art.144 the starting point of limitation being the date at which by the overt manifestation of intention the possession became adverse. It is a fortiori so in cases where what the Court is concerned with is not possession of the mortgagee but of someone else, such as in this case, the tenants claiming occupancy rights. When the mortgage was redeemed they resisted the mortgagors claim to possession and asserted their right to remain in possession as kasht tenants. It was on the basis of their possession being wrongful that a claim was made against them for mesne profits and it was on the footing of their being trespassers that they were sped and possession sought to be recovered from them. In these circumstances we consider that it is not possible for the appellants to contend that these tenants were in possession of the property on behalf of the mortgagor and in the character of their rights being derived from the mortgagor. Section 6(1) (c) cannot, in terms, therefore, apply since the mortgagor-mortgagee relationship did not subsist on January 1, 1955 even if the construction which learned Counsel for the appellant pressed upon us was accepted.