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TMI Blog1975 (9) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... e called suit lands. Regarding the rest the plaintiff's suit has been decreed. several items of property were gifted by one Ram Badan Singh to his two wives whose names were duly mutated in the revenue register. The further course of the proprietary history takes us to the creation of a wakf and the office of mutawalli which are not relevant to the controversy before us but are interesting when we remember that the donees were Hindus and yet they had executed a wakf and constituted themselves as mutawallis. This shows how community life absorbs and blends jural concepts, overriding religion in the creation of an inter- laced legal culture. This is by the way. We may now take up the thread at the point where by further Gift deeds and transfers the lands covered be the original gift deeds case to vest in the plaintiff and defendants, second party. they divided them as per a partition deed Exhibit 4 'a dated (October 30, 1952 whereby the suit lands fell to the exclusive share of the plaintiff, along with some other items while other properties were similarly allotted to defendants 2nd party. Undaunted by this fact defendants, second ;3 party, sold the suit lands to the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed to examine them. We may as well mention here, but dilate on it later, that certain items out of the B-Schedule bakasht lands are, on the showing of defendants second party, not in their possession, although the plaintiff has averred., in his pleading, dispossession of all the B-Schedule lands The legal impact of this circumstance on s. 4(a) and the schemes of the Act has to be gauged, in the context of the relief claimed by the plaintiff and the eligibility of possessory benefits of the contesting defendants. The central issue obviously is the resolution of the competition between vesting of the suit lands in the State by virtue of ss. 3 and 4 and their exemption from such deprivation by the saving provision in s. 6 in favour of tile plaintiff. A close-up of the profile of the land reform law would help us appreciate the purpose and programme of the statute and the meaning of the provision under construction. The project, as highlighted in the Preamble in grandiose and in keeping with Part IV of thus Constitution, but ill actual implementation drags its feet. Indeed, counsel on both sides were readily agreed only on one point, viz., that neither his Act nor the law setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stroke of substantial land nationalisation will be reduced to pathetic futility if the flood-gates of evasion are kept ajar by plausible but diluted interpretation of s. 6 as urged by the landlords. The Court must suppress the mischief and advance the remedy. Indeed. if we may anticipate our conclusion, the pronouncements of this Court in Surajnath Ahir v. Prithinath Singh (1) and Ram Ran Bijai Singh & Ors v. Behari Singh @ Bagandha Singh,(') bar and bolt the, door of escape in a big way and counsel for the appellant has striven to impress on us the need to reconsider and distinguish that view because it is inconsistent with vintage jurisprudence and Anglo-American concepts bearing on possession of an owner. Let us get down to an openheart surgery in a limited way to check upon the soundness of this cardinal submission. The consternation expressed by appellant's counsel that the High Court's interpretation of sec. 6 will create rights in rank trespassers and distort and defeat the right to possess enjoyed by Zamindars does not, by itself, disturb us. We are in a juridical province of agrarian reform. The creative legal ideas needed to effectuate this developmental p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad will readily make out that what is meant is actual possession with one's feet on the land, plough in the field and hands in the soil, although hired labour is also contemplated. The emphatic point is that possession is actual possession and admits of no dilution except to the extent s.6 itself, by an inclusive process permits. This basic idea banishes the importation of the right to possess as tantamount to khas possession. It would be a perversion of definition to equate the two. Of course, Shri S. C. Misra, appearing for the appellant, has preset before us that jurisprudentially even the right to possess should be regarded as possession. Indeed, this Court has had occasion to consider and construe the relevant provision in Surajnath Ahir and Ram Ran Bijai Singh (supra) and our task is largely to explain and adopt. Before we examine this quintessential aspect presented before us will complex scholarship by Shri S. C. Misra we Had better make. short shrift of certain other questions raised by him. He has desired ` us, by way of preliminary objection, not to give quarter to the plea, founded on s. 6 of the Act, to non-suit his client, since it was a point raised be nova at L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self is obscure. There was a proceeding under s.145 Cr. P.C. before the criminal court in view of the dispute regarding the claims of actual possession. In the order of the Magistrate, the oral partition relied on by the defendants was held proved and the subsequent deed of partition relied on by the plaintiff held not been acted upon. Counsel says that this led to the occupation by trespass of the suit properties. Since the Magistrate's order had led to this prejudicial consequence it was not proper to permit the party to benefit by his own wrong founded on an 'actus curiae'. We see no force at all in this contention. The Magistrate did not direct possession of the B-shedule properties to be handed over to the defendants, first parts, but declared their actual possession. He has done no wrong nor conferred any unjust advantage. There is no principle on which it could be held that these circumstance deprive a party of the benefit of his possession and d of the dispossession of the plaintiff flowing from s.6 of the Act; if any rights accrued from a statutory provision, it could not withheld for the reasons urged by counsel for the appellant The next new discovery in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtition Act, 1897 and. until then, a deed or decree effecting division by metes and bounds does not legally operate. If so, Ex.4/a remains an arrangement for separate enjoyment between co-owners, title continuing, joint. The follow-up of this reasoning is that the suit properties are in the possession of co-shares viz, defendants first party (derived from defendents., second party) and possession of one co-sharer is possession of the other. The plaintiff thus is in constrictive possession good enough to bring him into the rescue shelter provided by s.6 Of the Act. He relied on the ruling in Mahanth Ram Bhushan Das v. Ramrati Kuer(1) and the various provisions of the Estates partition Act to Make out his thesis. The support derived from the decision is more apparent than real because, as noticed by the High Court, the suit there was not, unlike here, brought on the foot of` a partition and the ruling(r laid down that any 'amicable division' among, co-sharer would not bind the Revenue until the partition was effected as visualised under the Estates Partition Act. Shri Misra's study of the provisions of the said Act is free from confusion, save in one fundamental respect T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the State Government consequent upon such transference and for other matters connected therewith" From this it is fairly clear that the legislative goal s to liquidate all intermediary interests and vest the ultimate ownership on land in the State. In this sense, the import of the Act is a tepid measure of land nationalisation. Section 3 in unmistakable language vests the absolute proprietorship in all the lands in Bihar in the State, the succeeding sections spell out details. We may here read sections 3, 4(g) and 6(1) of the Act: "3. Notification vesting an estate or tenure in the State- (1) The State Government may, from time to time, by notification declare that the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State. (2) The notification referred to in sub-section (1) shall be published in the official Gazette A copy of such notification shall be sent by registered post, with acknowledgement due, to the proprietor of the estate recorded in the general registers of revenue- paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intermediaries to be retained by them on payment of rent as raiyats having occupancy rights-(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)(1) proprietor's private lands let out under a lease for a term of years or under a lease from year to year, referred to in section 116 of the Bihar A Tenancy Act, 1885 (8 of 1885), (ii) landlord's privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral" for a period of one year or less, referred to in section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908), (b) lands used for agricultural or horticultural purposes and held in the 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, 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, subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l sweep" transfers all the interests in all lands to the State, the exception being lesser interests under the State set out in detail in sections 5, 6 and 7. So much so, any person who claims full title after the date of vesting notified under s. 4 has no longer any such proprietorship. All the same, he may have a lesser right if he falls within the saving provisions viz., sections 5, 6 and 7 Sections 5 and 7 do not apply here. The claim of the plaintiff is that he can sustain his right to recover possession in this suit, as coming within the oasis of section 6(1). There is no case that the sub-clauses (a), (b) and (c) of section 1) 6(1) apply. Counsel's contention is that he comes within the ambit of the main paragraph, being allegedly in khas possession. To appreciate the further discussion, it is useful to recapitulate that the appellant has averred in his plaint that he had been dispossessed as early as 1954 by a brazen act of trespass by the contesting respondents who were holding adversely to him. Undaunted by this fatal fact counsel claimed to be in possession and argued still. The focus was turned by him on the concept of khas possession defined in section 2(k). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The word 'include' is generally used in interpretation clauses in order to enlarge the meaning of that words or phrases occurring in the body of the statute. It is obvious that section 6(1) uses the word 'including' to permit enlargement of the meaning of khas possession for the limited purpose of that section, emphasising thereby that, but for such enlargement, the expression khas possession excludes lands outstanding even with temporary lessees. It is perfectly plain, therefore, that khas possession has been used in the restricted sense of actual possession and to the small extent it had to be enlarged for giving relief to proprietors in respect of 'private' 'privileged' and mortgaged lands inclusive expressions had to be employed. Khas possession is actual possession, that is "a foothold on the land, an actual entry, a possession in fact, a standing upon it, an occupation of it, as a real, administrative act done"(l). Constructive possession or possession in law is what is covered by the sub- clauses of section 6(1). Even so, it is impossible to conceive, although Shri Misra wanted us to accept, that possession is so wide as to include a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text of section and after adverting to Brij Nandan Singh v. Jamuna Prasad, on which Shri Misra placed massive reliance, observed: "Reliance was placed by the High Court on the case reported as Brijnandan Singh v. Jamuna Prasad for the construction put on the expression 'khas possession' to include subsisting title to possession as well, and therefore for holding that any proprietor, whose right to get khas possession of the land is not barred by any provision of law, will have a right to recover possession and that the State of Bihar shall treat him as a raiyat with occupancy right and not as 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' ". The attempt to distinguish this decision on the score that the observation is obiter does not appeal to us and the rule laid down there is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng been made unmistakable by the two cases just mentioned, we do not wish to burden this judgment-with case law any further. The conclusion we, therefore, draw is that on the facts found-indeed, on the facts averred in the plaint-the plaintiff had no khas possession of the suit lands and cannot use section 6 as a rescue raft. His title was lost when section 4 was notified as applicable to the suit lands by section 3 in 1956. Without title he could not maintain the action for recovery of possession. But that is not the end of the matter. He is certainly entitled to mesne profits from the defendants, first party, until the date of vesting, i.e." January 1, 1956. We, grant him a decree in this behalf subject to the qualification mentioned below. Again, the contesting defendants, in paragraph 27 of their written statement, have admitted that they had no possession of or connection with some of the plots mentioned in Schedule to the plaint and set out therein. The High Court has dismissed the suit in entirety after noticing the admission of the contesting defendants that they have not been in possession of those items covered by paragraph 27 of the written statement. The plea in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , are trespassers and the plaintiff being out of the pale of section 6, the State is entitled to the direct possession of the suit lands. We expect the Collector to do his duty by section 4(g). Counsel for the respondents drew our attention to rule 7H: "7-H. How to deal with cases in which proprietor, etc. not found in possession on the date of vesting-If the Collector holds on the report of enquiry held under rule 7-E or 7-F that the outgoing proprietor or tenure- holder, or his temporary lessee or mortgagee" was not in possession of the lands or buildings referred to in rule 7-G, he shall fix the fair rent or ground-rent thereof in the manner prescribed in these rules and the person who may be found to be in possession of such lands or buildings shall thereupon be liable to pay the rent or ground-rent so fixed to the State Government with effect from the date of vesting." Although we need not elaborately study the implications of this pro vision, it is fairly clear that this rule does not confer any right or equity to be in possession in favour of d trespasser. All that it does is to make the man in possession, be he trespasser or not, "liable to pay the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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