TMI Blog1997 (3) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto, the above declaratory suit came to be filed by the respondent. It is the case of the appellant that he has been in possession of the land as a lessee since the year 1925. The trial Court accepted his contention and recorded a finding as under : These own documents of the Dumraon Raj clearly show that the defendant has been in possession over the suit land as a raiyat since 1925. The defendant has also filed the original Khatiswani of the year 1350 fasli prepared by Dumraon Raj which also finds the name of defendant's ancestor over the suit land. Ex. C is the Jamabandi Register of the Dumraon Raj which also has the name of defendant's ancestor over the suit Khata No. 91. Thus, the above documents of the defendant clearly prove that the suit land was never the proprietor's Zeerat land and was never in Khas possession of Dumraon Raj. Rather these documents show that the Defendant has been in possession of the suit land as a raiyat. 4. On that basis, the suit was dismissed. On appeal, the Subordinate Judge held that the entries for the year 1952-69 show that the respondent was in possession of the land and, therefore, Raja Dumraon Raj had leased out the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recognised as owner of the land. Therefore, the respondent has proved that he is the owner of the land. The declaration of title is vitiated by error of law. 9. In view of the respective contentions, the question for consideration is : whether the view taken by the Subordinate Judge is correct in law? Section 6(1) of the Act states that 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 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 Tenancy Act, 1885...shall, subject to the provisions of Section 7A and B, 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 occupancy rights of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. Sub-section (2) postulates that if the claim of an intermediary, as to his Khas possession over the lands referred to Sub-section (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accomplished by worship of the manes of the law - khas possession means what the definition, in plain English, says. The definition clause is ordinarily a statutory dictionary, and viewed that way, we have in the early part of this judgment explained how it means actual, cultivatory possession - nothing less, nothing else. Of course, Section 6(1) makes a special addition by 'including' other demised lands by express enumeration. Section 6 does not stop with merely saving lands in khas possession of the intermediary (erstwhile proprietor) but proceeds to include certain lands outstanding on temporary leases or mortgages with others, as earlier indicated. These are private lands as known to the Bihar Tenancy Act, privileged lands as known to the Chota Nagpur Tenancy Act, lands outstanding with mortgagees pending redemption and lands which are actually being cultivated by the proprietor himself. Ordinarily what is outstanding with lessees and mortgagees may not fall within khas possession. The legislature, however, thought that while the permanent tiller's rights should be protected and, therefore, raiyats and under-raiyats should have rights directly under the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies by intention; hence, if a thing is put into the hand of a sleeping person he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed;..., In the end of all, however, the meaning of 'possession' must depend on the context, (ibid p. 153) May be, in certain situations, possession may cover right to possess, it is thus clear that in Anglo-American jurisprudence also, possession is actual possession and in a limited set of cases, may include constructive possession but when there is a bare right to possess bereft of any dominion or factum of control, it will be a strange legal travesty to assert that an owner is in possession merely because he has a right to possess when a rival, in the teeth of owner's opposition, is actually holding dominion and control over the land adversely, openly and continuously. Admittedly, in the present case, the possession of the plaintiff had ceased totally at least two years before the vesting under Section 4 took place. This situation excludes khas possession. 12. This was reiterated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Patna Secretariat, Patna and Anr. 1994(4)SCALE590 after extracting the definition held thus : the saving by Section 6(1)(b) is only of the lands actually used for agricultural purposes in a State or a tenure of a lessee or a temporary lessee and directly in his possession and cultivated by himself with his own stock or by his own raiyat rights has been confirmed statutorily subject to the terms contained therein. 14. In Brighu Nath Sahay Singh and Ors. v. Md. Khalipur Rahmanh and Ors. (1995)5SCC687 another Bench considered the definition of khas possession in Section 2(k) and held as under : A reading of Section 2(k) read with Section 4 and 6 of the Act clearly envisages that the intermediary must, as on the date of vesting, be in possession of the land used for agricultural purpose or horticulture purpose as a tenure-holder by cultivating such land or carrying on horticulture operations thereon by himself with his own stock or by his own servants or by hired labour or with hired stock. 15. Thus, it could be seen that though the definition of intermediary right as used in Section 6(1)(a) of the Act, is inclusive of the yearly cultivation and intermediary becomes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries. It is common knowledge in rural India that a raiyat always regards the land he ploughs, as his dominion and generally obeys, with moral fiber the command of the intermediary so long as his possession is not disturbed. Therefore, creation of records is a camouflage to defeat just and legal right or claim and interest of the raiyat, the tiller of the soil on whom the Act confers title to the land he tills. 19. Shri B.B. Singh, in these circumstances, seeks to contend that this question has not been canvassed in the courts below. Since the matter requires examination, it may be remanded to the High Court for consideration. We find that in view of the above findings recorded, the remittance of the matter would render little assistance. 20. Under these circumstance, we are constrained to allow the appeal and set aside judgment of the High Court and also of the Subordinate Judge confirming the decree of the trial Court dismissing the suit. In consequence, the respondent is directed to restitute the possession to the appellant within two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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