63~

BHUBANESHWAR PRASAD NARAIN SINGH & ORS.

SIDHESWAR MUKHERJEE & ORS.

B February 2, 1971

[G. K. MITTER AND A. N. RAY, JJ.]

Bilu1r Land Rcfonns Act, 1950, r. 6--Scope of-Effect on co-sharer'i posJ't:Jston.

In a suit for partition of bakasht land a preliminary decNe was passc ed.

The defendants-appellants, claiming to be in actuar possession of the bakasht land, filecl a petition contending that the consequence of s. 6 of the Bihar Land Reforms Act, 19'50 (which came into force in the meanwhile) was to put an end to the proprietor's possession of the b.akasht land by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession. thereof, and therefore, no final decree could be passed. The trial court accepted the contention and dismissed the plaintiff's application for pass- D ing final decree. In appeal, the High Court set aside the order.

In appeal to this Court,

HELD : Even if the appellants were in actual khas possession within the meaning of s. 2 (kl of the Act, it must be held that the plaintiff respondent, who was a co-sharer, was in constructive possession through the appellants, as, under the law, posslssion of one co-sharer is posses- E sion of all co-shares. The appellants did not claim to be trespassers on the property neither did they claim any title to the lands adversely to "the respondent. . The deeming provision of s. ll inust, therefore, enure for the benefit of all. who in the eye of land would be regarded .as in actual possession. Therefore, the respondent had not Jost his •hare , in the bakasht lands and had a right to his share in them; though not <J as tenure-holcler or proprietor, but as a raiyat under the provisions of t the Act. [645 E-GJ F P. L. Reddy v. L. L. Reddy, [!957) S .. C.R. 195. 202, followed.

Surajnath Ahir v. Prithitnath Singh, [1963] 3 S.C.R. 290, Ram Ran Baijal Singh v. Behari Singh alias Bagandha Singh, [1964] 3 S.C.R .. 363, S. P. Shah v., B. N. Singh, [1969) 3 S.C.R. 9'08 and Mahant Sukhdeo Das

v. Kashi Prasad, Tewari & Shrideo Misra v. Ramsewok Singh A.L.R. 37 G Pat. 918, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2588 of 1966.

Appeal from the judgment and decree dated January 14, 1964 of the Patna High Court in First Appeal No. 572 of 1958.

H D. Goburdhun and R. Goburdhun, for the appellants.

A. N. Sirlha and P. K. Mukhejee, for respondent No.- 1.

. '

The Judgment of the Court was delivered by Mitter, J.

The only question involved in this appeal is, whether the direction of the Jligh Court that the partition suit launched in 1943 should be allowed to proceed in view of the provisions Of s. 6 of the Bihar Land Reforms Act, 1950 which came into force on 25th September, 1950, is correct.

The suit had a chequered creer. It was nstituted against a number of persons the main relief asked for being partition of four annas Milkiat interest in Touzi No. 702, Tappa Haveli, Pargana Maheshi, District Champaran, Bihar.

The Subordinate Judge of Motihari made a preliminary decree for partition declaring the first respondent's share in the property as claimed by him.

The High Court in appeal modified the decree reducing the plaintiff's share to Rs. 0-1-4 interest only.

In further appeal to this Court the trial court's preliminary decree was upheld on 5th October 1953.

In the meanwhile the Bihar Land Reforms Act of 1950 effecting far-reaching changes in the incidents of land tenure and land holdings had been passed.

The first appellant made an application to the trial court in June 1958 praying that the proceedings for final decree be treated as having abated in view of the vesting of aH estates m land in tbi State of Bihar. 'This was accepted by the Subordinate Judge by an order dated July 12, 1958. The High Court allowed the appeal with the direction above mentioned which the appellant~ now seek to have -set aside.

The bone of contentiQn between the parties is the extensive 'bakasht' lands in the aforesaid Mquza. The appellants cOifitend

that under s. 6 (1) of the Act all hs~ lands vested }n the State and came to be held by the persons m. "khas possession" thereof as raiyats u, nder the State.

To appreciate the plea it is necessary to make a brief reference to some of the provisions of the Act.

As is well known the object pf the Act was to cause transfer- -ence to the State of the interest of proprietors and tenure-holders in land as also of rthe mortgagees and bssees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals and to provide for certain consequences following there.from and connected therewith.

S. 3 of the Act enabled the State Gover#ment to declare by notification that the -estates or tenures of a proprietor or tenure-holder specified therein would pass to and become vested in the State.

The consequences of such vesting are setforth in s. 4. Under cl. (a) :

"Such estaJe or tenure including the interests of the proprietor or tenure-holder in any building or part of a building comprised in such estate or tenure and used

BHUBANESHWAR V. SIDHESWAR (Mitter, J.) 641

primarily as office or cutcb, ery for the collection of rent ot such estate or tenure, and his interest in trees, forests, fisheries, jalkars, sairati interest as also his interest in all sub-soil including any rights in mines a!ld minerals whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under-raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interest in such estate or tenure, other than the interests expressly saved by or under the provisions of the Act." S. 6 of the Act provides for such saving and the relevant portion thereof runs as fol!ows :-

" ( 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, including-

( a) (i)_ proprietor's private }ands let out under a lease for a term of years or under a ]ease from year to year, .............. .

(ii) landlords privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, fo~ a period of one year or Jess, referred to in section 43 of the Chota Nagpur Tenancy Act, 1908,

(b) lands used for agricultural or horticultural purposes and held in the direct possessio, n of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired s:ock, and ( c) lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof; shall . . . . . . . . . . ... be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupying rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. ..

The broad proposition which was advanced before the High Court and rejected by it nd reiterated before us is that thei consequence of s. 6' was to put an end to the character of the possession of the bakasht lands to the malik by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession thereof.

There is no dispute that bakasht lands fall under categories (b) and ( c).

We are not here concerned with category ( c) and have quoted it to appreciate some decisions relied on where there are references to that category.

This question has engaged the attention of the Patna High Court more than once and it would appear that the views expressed in different cases have not been uniform.

So far as the said High Court h concerned the point was settled by a decision of the Full Bench in Mahanth Sukhdeo Das. v. Kashi Prasad Tewcri and Shrideo Misra v. Ramsewak Singh(1).

The main questions before the Full Bench were whether on the vesting of an estate which was mortgaged at the material time the bakaslrt 'lands therein which are deemed to be settled with the ex-proprietor in khas possession would form substituted security for the purpose of the mortgage, and whether a co-sharer proprietor not in actual possessio.n of such lands had any claim thereto on the basis of his constructive possession.

The High Court answered both the above in the affirmative.

One of the earliest cases in which this Court had to interpret s. 6 of the Act Wds that of Surajnath Ahir v. Prithinath Sinigh(2 ).

There the question which engaged the attention of this Court was whether the appellants who had originally gone into possession on the strength of a mortgage lost their right to continue in possession even i~ they claimed to be trespassers after the redemption of their mortgage by reason of the estate vesting in the State on the passing of the Act.

Although the case is not directly in point, it bears upon the \dentical provisions of law which have to be applied to the facts of the case before us.

The facts in that case were that the appellants had entered into possession of kasht lands of the mortgag\)rs on the strength of a mortgage deed.

The mortgagors thereafter executed another mortgage with respect to their milkiat

(proprietary) interest in favour of certain persons. The plaintiffrespondents bought the milkiat. rights together with "kasht" lands from the mortgagors and entered into possession of the milkiat property and subsequently redeemed the mortgage deeds in 1943.

The appellants however did .not make over possession of the lands ill dispute even after the redemption of the mort2ae. It was held by this Court that the respondents could not take advantae of section 6(1) (c) of the Act as no mortgage subsisted on the date of vesting and the llll!re fact that the proprietor had a subsisting

(I) J.L.R. 37 Patna 918.

(2) [1963)-3 S.C.R. 290

JIHUBANBSHWAR v. SIDHESWU (Mitter, J.) 643

title to possession over certain land on the date of vesting could n<Jt amount to Ihat land being treated as under his "khas possession" for the purposes of the Aot.

Referring to the definition of "Khas possession" in s. 2(k) of tht Act as meaning "the possession of such proprietor or te.nure-ho!der by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock". it was held that in order that the respondents could take advantage of the provision of s. 6 (1 )( c) of the Act they had to establish a subsisting ll}Ortgage on the date of vesting which was inclusive of the land subject to their right of redemption.

On the question of possession of the lands it was observed :

"On the date of vesting, the appellants were not in possession as mortgagees.

The mortgages had been redeemed in 1943.

Thereafer, the possession of the appellants was not as mortgagees.

It may be as trespassers or in any other capacity.

The land in suit, therefore, did , not come within cl. ( c) of s. 6 of the Act.!.'

Rejecting the construction put on the expression 'khas possession' by the High Court in Brijnandan Singh v. Jamima Prasad(1) it was said:

"The mere fact that a proprietor has a subsisting title to possession over certain land on the date of vesting woqld not make that land under his 'khas possession'." The Full Bench decision of the Patna High Court came up for consideration by this Court in Ram Ran Bijai Singh v.

Behari Singh alias Bagandlia Singh("). There the appellants before this.

Court were Jhe plaintiffs who had filed a suit for a declaration that a certain plot of land was their zeraiti land and that the persons impleaded as the defendants 1st and 2nd parties had no right or title thereto and for rcovery of possession of the said land by dispossessing them therefro'Il.

It was argued that in view of the concurrent findings of the courts below that the lands were the zeraiti lands of the plaintiffs they would not vest in the State because of the saving i.n s. 6 of the Act and the appe1!ant should be deemed to have been in khas possession of th¢ land .under s. 6 (1 )( c). The respondents contended that it was not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed to remain in possession by asserting a title which was as much against the mortj!; a!!ors as against the mortgagees.

Reference was made in the m A.Lil. t9~R Patna ss•.

12) [1964] 3 s.c.R. 363.

(3) I.L.R.37Pat. 918.

SUPREME COURT REPORT$

[1971]3 S.C.R.

•course of arguments to the Full Bench decision in Sukhdeo Das's case ( ") and it 'll'as submitted that a mortgagee continuing in possession of the mortgaged property a.fter payment of the mortgage amount mu3t hold the same on behalf of the mortgagor and in trust for hiiil.

Counsel further relied on certain observation&. in the judgment of the Full Bench in aid of his proposition and submitted on the basis thereof that even the possession of a trespasser who had not perfected his title by adverse possession for the requisite period. uf time under the Limitation Act should be considered as in khas possession o.f the true own, er. Turning down

this submission it was observed by this Court (p. 378) :

"We cqnsider that this equation of the right to possession with 'khas possession' is not justified by principle or authority. Besides this is also inconsistent with the reasoning of the Full Bench by which constructive possession is treated as within the concept of khas possessiEln." The Court went on to add that :

"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 them>dves came to court." Noting the statement of-the plaintiffs in their plaint that the mortgagees had fulfilled their obligations and the obstruction to possession was put forward only by persons :-vho claimed occupancy rights this Court co, ncluded that, in the circumstances of the case, it was not possible for the appellants to contend that these tenants (defendants 1st and 2nd parties) wer" in possession of the property on behalf of the mortgagor or by virtue -<if any right through the mortgagor.

The case is not therefore an authortiy _for the proposition that a co-sharer's constructive possession is to be ignored under s. 6(1) (c) of the Act.

Counsel for the appellants also referred us to a recent decision of this Court in S. P. Slzah v. B. N. Singh(1) in aid ofhis contention that the true effect of s. 6 of the Act was to create a ilew right of tenancy in favour of the person in khas possession and consequently even i.f the plaintiff in the partition suit had a right to ask for demarcation of his Rs. 0-4-0 share of the bakasht lands before the passing of the Land Reforms Act, he couk! qot pursue his claim by a prayer that he be considered a: tenant along with those who were in_ actual khas possession.

Jn our view the above decision is no authority. for this broad proposition.

In that case the appellants who were mortgagees' of an estate including bakasht lands and other lands filed a suit on

(I) [1969] 3 S C.R. 908.

BHUBANESHWAR v. SIDHESvl:, AR (Mitter, J.) 645

their mortgage and tried to follow up the preliminary decree which was obtained before the Act came into force by a petition for passing a fi.nal decree.

One of the questions before tli.is Court was whether the mortgage decree had become unexecutable in view of the provisions of the Act.

It was held that the net effect of ss. 3, 4 and 6 was that although on the vesting of the lands in the State. a settlement was deemed to be effected with the person in khas possession in law, there were two diffen; nt transactions and the deemed settlement was in effect a separate transaction creating new rights.

The Court came to the conclusion that the only remedy open to the decree-holders was that provided in Chapter IV of the Act i.e. a claim under s. 14 before the Claims Officer for determinng the amount of debt legally and justly payable to each creditor in respect of his claim.

The Court was there dealing with the rights of the mortgage creditors after the Act had come into force.

Chapter IV of the Act made special provisions for dealing with the rights of secured creditors and s. 4 (1 )(d) expressly provided for the abatement of D - all suits and proceedings for the recovery of any money through proceedings which might be pending on the date of vesting arising out of securities created by mortgage or a charge on an estate or tenure.

Here howeven we are not dealing with the claims of mortgagees under Chapter IV. In this case we have to consider whether the appellants had laid a claim which a co-sharer could not put forward except by pleading ouster or a.ny other independent ground.

Even if they were in actual khas possession within the meaning of s. 2 (k) of the Act it must Le held that the plaintiff who was a co-sharer was in constructive possession thrqugh the appellants as "und, er the Jaw possession_ of one co-sharer is lposes sion of all the co-sharers".

We see no reason to hold that the observations of this Court to the above effect in P. L. Reddy v.

L. L. Reddy('1) are not applicable to the case before us. The appellants do not claim to be trespassers on the property : neither did they claim any title to the lands adversely to the plantiff respondent.

The deeming provision of s. 6 must therefore enure for the benefit of all who in the eye of law would be regarded as in actual possession. It follows that the plaintiff had not lost his share in the bakasht lands and had a right to them though not as tenure-holder or proprietor but certainly as a raiyat under the provisions of the Land Refomi.s Act.

The appeal, mus-t therefore be dismissed with costs.

V.P.S.

Appeal dismissed.

(!) [19571 S.C.R. 195, 201.