TMI Blog1979 (7) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... ait Chaudi 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 Chaudi Prasad felt stringency of funds necessary for fighting the litigation and he mortgaged the proprietary interest in the estate which he was claiming as reversioner, with one Mr. Chrestian for ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a notification dated 12th April, 1953 published in the Government Gazette dated 14th May, 1953 under Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land etc. and to provide for matters ancillary and incidental to such transference. Section 3 provided for passing and becoming vested in the State, the estate or tenures of a proprietor or a tenure-holder on the issuance of a notification. Section 4 provides for the consequences of vesting of the tenure or an estate, one such consequence being that on issue of a notification under Section 3 the estate or tenure including the interests of the proprietor or tenure-holder not only in land but in building or part of a building used for various purposes set out therein shall vest absolutely in the State free from all encumbrances 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. One such specific provision saving the interest of the proprietor, relied upon by the plaintiff is Section 6, the relevant portion of which reads as under : 6. Certain other lands in 'khas' possession of intermediaries to be retained by them on payment of rent as 'raiyates' having occupancy rights-(1) On and from the date of vesting, all lands used for agricultural or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect of vesting the estate or tenure of a proprietor or a tenure-holder in the State. Consequently an estate or tenure including all interests of the proprietor of tenure-holder as set out in Section 4 shall with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure-holder shall cease to have any interest in the estate or tenure other than the interest expressly saved by or under the Act and according to the plaintiff his interest was expressly saved as his case is covered by Section 6(1). 13. Section 6(1) provides that all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of vesting shall be deemed to be settled by the State with the intermediary and he shall be entitled to retain possession thereof and hold the same as a raiyat under the State having occupancy rights in respect of such lands subject to certain; conditions specified in the section. 14. According to the plaintiff he was in khas possession (as the word is understood in the Act) of the suit lands used for agricultural purpose on the date of vesting and, therefore, under Section 6 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a tenant-at-will, the case would fall within the latter part of the definition of khas possession which provides that if landlord is cultivating such land himself with his own stock or by his own servants or by hired labour or with hired stock, such cultivation would constitute khas possession of the landlord. An identical expression is used in Section 6(1)(b) which provides that lands used for agricultural or horticultural purposes and held in direct possession of a temporary lease 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 stock would be deemed to be in khas possession of the intermediary. It was, therefore, said that there is no marked or noticeable difference between a tenant-at-will who can be evicted by mere demand of possession and cannot resist the demand for possession, and a hired servant or a hired labourer or a man made to work by hired stock. It was said that if in latter case the statute considers the land to be in khas possession of proprietor a fortiori, in the former case as well it must be treated in khas possession of intermediary or proprietor. Mr. Sarjoo Prasad said that khas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Justice that the defendants could riot be evicted from the disputed lands in the absence of a due notice to quit ending with the expiry of an agricultural year. 19. The decision of the High Court! is not open to question at the instance of the plaintiff. The position concluded against the plaintiff is that the defendants were tenants-at-will of agricultural land and they were holding from year to year and, therefore, they could be evicted not only after termination of their tenancy by a notice to quit but such notice must expire with the agricultural year. Even if it be held that Section 106 of the Transfer of Property Act is not attracted, this being an agricultural lease, the fact remains that in respect of agricultural lease the notice to quit must expire with the end of agricultural year. It would not be correct to say that some reasonable notice would be sufficient to terminate the tenancy. The notice has to be one terminating the tenancy and the notice must expire with the end of the agricultural year. It is not in dispute that the agricultural year in Bihar ends, depending upon the custom in the area, around September. This becomes clear from the fact that the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain or sure estate for the lessor may put him out at any time he pleases (see quotation from Woodfall extracted above). Reference was also made to Sudhir Kumar Majumdar and Ors. v. Dhirendra Nath Biswas and Anr. AIR1957Cal625 wherein a learned single Judge of the Calcutta High Court held that the service of a formal notice to quit is not necessary for the termination of the tenancy-at-will. We find it difficult to subscribe to this view. Apart from the fact that in the former litigation inter parties which concluded the earlier suit brought by the present appellant, being dismissed on the only ground that the respondents who were tenants-at-will could not be evicted as their tenancy was not terminated by a notice to quit expiring with end of agricultural year, we have already extracted above an observation from Halsbury's Laws of England which also supports the view that notice terminating tenancy of a tenant-at-will is pre-requisite before he can be evicted. A tenant-at-will is nonetheless a tenant. The concept of tenancy-at-will has reference to duration, and interest in the land of which the tenant) is a tenant-at-will. He is not at the sweet will and mercy of the landlord. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll can be said to be a stock of the landlord, nor the tenant-at-will can be said to be servant of the landlord or hired labourer, or the stock of the tenant-at-will can be said to be the hired stock of the landlord. When a servant or hired labourer is engaged or stock is hired the landlord has to pay such servant or hired labourer or for the hired stock. When a tenant-at-will is carrying on agricultural operations he does it on his own and merely pays rent to the landlord. The landlord does not pay the tenant-at-will for the agricultural operations nor for the stock employed by the tenant-at-will. There is a marked, noticeable and understandable difference between a tenant-at-will vis-a-vis the landlord and a servant or hired labourer employed by the landlord. therefore, keeping in view the definition at, the expression 'khas possession' in Section 2(k), a cultivation of land by tenant-at-will could not be said to be cultivation by the landlord by himself or by his servants or by hired labourer. Accordingly, in such a situation the landlord could not be said to be in khas possession of the land in possession of the tenant-at-will who is in a position to hold out against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar shall treat him as a raiyat; with occupancy right and not as a trespasser. We do not agree with this view when the definition of 'khas possession' means the possession of a proprietor or tenure-holder either by cultivating such land himself with his own stock or by his own servants or by hired labour or with hired stock. The mere fact that a proprietor has a subsisting title to possession over certain land on the date of vesting would not make that land under his 'khas possession'. 28. This view was re-asserted in Ram Ran Bijai Singh and Ors. v. Behari Singh alias Bagandha Singh [1964]3SCR363 wherein this Court held that this equation of right to possession as khas possession is not justified on principle or authority. 29. The word used in Section 6 is not 'possession' but it is qualified by the adjective 'khas possession' its equivalent being 'actual possession' as the word is understood in contra-distinction to the word 'constructive possession'. Frankly speaking, the law has still not provided clear and unambiguous definition of the jurisprudential concept of possession. Number of angular approaches to the problem of posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinarily a mortgagee in possession is under a duty to surrender possession to the mortgagor on redemption of the mortgage. A tenant inducted by the mortgagee, unless he is protected by some other law, could be evicted by the mortgagor on redemption of the mortgage. The mortgagor may thus have a right to claim possession but once it is held that the right to recover possession cannot be equated with khas possession within the meaning of the expression used in the Act it would have made no difference in the ultimate decision of the Court even if the Court's attention was drawn to the fact that on redemption the mortgagee is bound to deliver possession to the mortgagor. 32. Reliance was, however, placed on Sonawati and Ors. v. Sri Ram and Anr. [1968]1SCR617 where in the context of the U.P. Zamindari Abolition Land Reforms Act, 1951, and U.P. Land Reforms (Supplementary) Act, 1952, this Court examined the connotation of the expression 'cultivatory possession' and held that a trespasser who has no right to be in possession by merely entering the land by force cannot be said to be in cultivatory possession within the meaning of the aforesaid law. An observation in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis 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 as advised. 35. The last contention was that the appeal as a whole of the respondents should have been dismissed by the High Court in view of non-compliance with the order made by the High Court on 8th March, 1967. Entry 11 in the order sheet of Second Appeal 343/64 shows that three day's time was granted by the Court to take steps for fresh service of notice of appeal on respondents 2, 4 and 8-11 failing which the Court directed that the appeal shall stand dismissed without further reference to Bench. This order appears to have been made because the respondents who were appellants before the High Court appear not t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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