Surajnath Ahir And Others vs Prithinath Singh And Others
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Civil Appeal No. 533 of 1960
Decision Date: 4 May 1962
Coram: Raghubar Dayal, K.C. Das Gupta
In the matter titled Surajnath Ahir and Others versus Prithinath Singh and Others, decided on 4 May 1962, the Supreme Court of India delivered a judgment authored by Justice Raghubar Dayal, with Justice K C Das Gupta joining the bench. The petitioners were Surajnath Ahir and several other persons, while the respondents were Prithinath Singh and several other persons. The case is reported in 1963 AIR 454 and is also referenced in various citator entries, including E 1971 SC 77, F 1971 SC 2251, F 1977 SC 5, RF 1979 SC 1769, and R 1988 SC 1478. The statutory framework involved the Bihar Land Reforms Act, 1950 (Bihar XXX of 1950), particularly sections 2(k), 3(1), 4(a), 4(f), and 6(1)(a), (b), (c).
The factual backdrop was that the plaintiff‑respondents initiated a suit seeking recovery of possession of certain disputed lands. The appellants had taken possession of those lands based on a mortgage deed. Subsequently, the original mortgagors executed an additional mortgage concerning their milkiat interest in favour of other persons. The plaintiff‑respondents purchased the milkiat‑right shares together with the kasht lands from the mortgagors, entered into possession of the milkiat property, and redeemed the mortgage deeds in the year 1943. Despite the redemption, the appellants failed to surrender possession of the lands in dispute. At the trial level, the court concluded that the plaintiff‑respondents possessed no subsisting title to the lands and held that the suit was barred by principles of adverse possession and the limitation period.
On appeal, the High Court reversed the trial court’s decision, finding that the defendant‑appellants held possession solely as mortgagees and, after the mortgage’s redemption, had no legal right to continue possession. The appellants then obtained a certificate of appeal and approached this Court. The principal questions before the Court were whether estoppel and limitation by adverse possession applied, and more importantly, whether the plaintiff‑respondents had any subsisting title that would permit them to evict the appellants under the provisions of the Bihar Land Reforms Act, 1950.
The Court held that the suit was instituted within twelve years of the mortgage’s redemption and therefore was not barred by the limitation period. Section 4 of the Act declares that, upon vesting, the State acquires all interests of the proprietor or tenure‑holder, including the right to recover possession from a trespasser, except for interests expressly saved by the Act. Because no mortgage remained at the time of vesting in the State, the respondent could not invoke section 6(1)(c) of the Act as amended by Act XVI of 1959. Moreover, the mere existence of a subsisting title to possession at the date of vesting does not render the land the proprietor’s “Khas Possession.” Consequently, the respondents forfeited their right to recover possession from the appellants, even if the appellants were deemed trespassers, due to the estate’s vesting in the State.
They were held to be trespassers on the estate that had vested in the State. The judgment cited the authorities Brijnandan Singh v. Jamuna Prasad, A.I.R., 1958 Pat. 589, and Haji Sk. Subhan v. Madhorao, [1962] Supp. I S.C.R. 123. The matter before the Court was Civil Appeal No. 533 of 1960, an appeal from the judgment and decree dated 28 January 1959 of the Patna High Court, which itself was an appeal from Original Decree No. 143 of 1948. Counsel for the appellants were B. K. Saran and K. L. Mehta, while counsel for the respondents were R. K. Garg, D. P. Singh, S. C. Agarwal and M. K. Ramamurthi. The judgment was delivered on 4 May 1962 by Justice Raghu Bar Dayal. This appeal, issued on a certificate granted by the High Court of Judicature at Patna, arose because the plaintiffs‑respondents sued the appellants for recovery of possession of the disputed lands and for mesne profits, asserting that the family of the defendants possessed no raiyat interest in those lands except a rehan interest created under a rehan deed dated 3 July 1906, and that after redemption of that deed the defendants had no right to remain in possession or occupation of the disputed lands. The plaintiffs alleged that Pranpat Bhagat and others held an eight‑anna share of milkiat interest in village Sevathra, pargana Nonaur, tauzi No. 3879, while the other eight‑anna share was held by Kunj Bihari Bhagat and others, and that those persons also possessed khudkasht lands in the village that were treated as kasht lands. In 1906 Ram Autar Bhagat, a member of the joint family of Pranpat Bhagat, executed a mortgage deed covering fifteen bighas out of sixteen bighas of kasht lands in favour of Sheo Dehin Ahir on behalf of his joint family. The defendants entered into possession on the basis of that mortgage deed, having had no prior connection with the mortgaged land before the execution of the deed. Later, in 1912, Ram Lal Bhagat and Munni Bhagat, also of Pranpat’s family, executed another mortgage deed covering their entire milkiat interest in favour of Jatan Ahir and Ram Saran Ahir, who likewise belonged to the family of Sheo Dehin Ahir, and they subsequently took possession of the newly mortgaged land. Ram Lal Bhagat and others sold their milkiat share together with the kasht lands to the plaintiffs in 1915. The plaintiffs entered into possession of the milkiat property and subsequently redeemed the mortgage deeds in 1913. The plaintiffs also purchased a four‑anna share belonging to the branch of Kunj Bihari Bhagat; the remaining four‑anna share of that branch was bought by Raja Singh, who later sold it to Ram Ekbal Singh, impleaded as defendant No. 6 in the suit. However, the defendants failed to transfer possession of the land after the mortgage deeds had been redeemed, and consequently the suit was instituted for a declaration and recovery of possession. Defendants numbered one to five did not admit the allegations made by the plaintiffs.
The defendants contended that the land in dispute had never been the bakasht lands belonging to the village proprietors. They asserted that the disputed parcels were in fact raiyati qaimi kasht lands of the defendants. According to the defendants, the plaintiffs had never purchased the disputed lands. They claimed that the disputed land comprised only the raiyati kasht lands of Ram Autar Bhagat, who had let the land to tenants under various rehan deeds while representing it as raiyati kasht land, and who had previously treated it as his exclusive raiyati kasht land. The defendants further alleged that Ram Autar Bhagat eventually sold the disputed lands to the defendants and recorded the defendants’ names as qaimi raiyati kashtkars. In addition, the defendants maintained that they had acquired title to the suit land by virtue of adverse possession.
The trial court examined these assertions and concluded that the plaintiffs possessed no surviving title to the land in dispute. The court held that the lands had not been conveyed to the plaintiffs, who had only purchased a milkiat interest that included bakasht and zerat lands. Consequently, the trial court found the suit to be barred both by the doctrine of adverse possession and by the applicable limitation period, and it dismissed the suit.
Upon appeal, the High Court reached a different conclusion. The High Court determined that the plaintiffs had indeed purchased the suit land and that the defendants were occupying the land only in the capacity of mortgagees. After the mortgage was redeemed, the High Court held that the defendants had no lawful right to remain in possession. Accordingly, the High Court allowed the appeal and decreed in favour of the plaintiffs, granting the relief claimed in their suit.
The defendants subsequently filed an appeal before this Court. Counsel for the appellants presented five principal points of contention. First, they argued that the record of rights supported the defendants’ claim to be the qaimi raiyats and that the High Court had incorrectly interpreted those rights. Second, they contended that the sale deed of 1915, executed in favour of the respondents, did not encompass the land that formed the subject of the suit. Third, they maintained that even if the plaintiffs‑respondents had acquired the right to the suit land by purchase, they were estopped from taking any action against the defendants‑appellants who had possessed the land for a long duration. Fourth, they asserted that the suit was barred by limitation because the defendants had perfected their title through adverse possession and the plaintiffs had not been in possession within the limitation period. Fifth, they claimed that the plaintiffs‑respondents lacked a subsisting title to evict the appellants under the provisions of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950).
The Court noted that the defendants’ case, as set out in their written statement, regarding the acquisition of qaimi raiyati kasht rights, had been disbelieved by the lower courts and, in the Court’s view, was rightly rejected. The Court affirmed that the defendants had been in possession of the suit land solely as mortgagees, as held by the trial court, and that they possessed no right to retain possession after the mortgage had been redeemed. By reference to the sale deed dated 5 October 1915, the Court observed that Ram Lal Bhagat and others had sold the property described in that deed as “eight annas ancestral milkiat interest, out of Tauzi No. 3879, in mauza Sewathra, pergana Nanaur, thana Pito, district Shahabad, Sub‑registry office Jagdishpur, the …”.
In the sale deed the executants stated that the total consideration amounted to one hundred ninety rupees, and that they had been in exclusive possession and occupation of the property without any partnership or interference. They claimed to hold all the existing Zamindari rights attached to the land, including any interests, profits, and revenues, and asserted that the Zirat lands recorded in the survey as bakasht, as well as the new and old party lands, aam and Khas Chairmazrua lands, baharsi dih, tenant houses, ground‑rent lands, ahar, ponds, reservoirs, tanks, orchards, fruit‑bearing and non‑fruit‑bearing trees, and bamboo clumps, constituted the whole of the estate both above and below the surface, together with any future profits derived therefrom, without excluding any portion.
The executants further emphasized that they were relinquishing their possession and occupation of the entire property on the day of sale, except for the chaukidari chakran land, which had been let out under a settlement with the executants and was therefore not being transferred. Consequently, the High Court observed that the portion of the land forming the milkiat share was included in the sale and was not excluded, the sole exception being the chaukidari chakran land. The Court held that the appellants’ long possession did not prevent the respondents from seeking to recover possession, and that the suit was filed within twelve years of the mortgage redemption, rendering it unbarred by limitation.
The remaining issue to resolve was whether the respondents could recover possession in light of the Bihar Land Reforms Act, 1950 (Act XXX of 1950), which had become operative during the pendency of the appeal. The trial court had dismissed the suit on 8 March 1948, while the High Court allowed the appeal on 28 January 1958. The Act had come into force on 25 September 1950, and subsection (1) of section 3 empowered the State Government to issue a notification vesting the estates or tenures of specified proprietors in the State. Such vesting took effect on 1 January 1955. The appellants contended that once the respondents’ estate vested in the State, they lost any proprietary right in the land and therefore could not claim possession. Section 4 of the Act set out the consequences of the notification, providing that from the date of vesting the estate, together with all interests of the proprietor, would vest absolutely in the State free of all encumbrances, and that the proprietor would cease to have any interest except those expressly saved by the Act. This provision was taken to mean that after vesting no interest remained in the respondents apart from what was specifically preserved, and that the right to recover possession from a trespasser also passed to the State.
It was held that after the estate vested in the State, the only interest that could remain with the respondents was that which was expressly saved by or under the provisions of the Act. Consequently, no other interest survived in the respondents once the vesting occurred. The authority to recover possession of the land from any trespasser also transferred to the State. Sub‑clause (f) of section 4 stipulates that the Collector shall assume charge of the estate or tenure and of all interests that subsequently vested in the State under that section. In this regard the Court referred to its earlier decision in Haji Sk. Subhan v. Madhorao (1), a case that examined a comparable issue under the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M.P. Act No. 1 of 1951). The Court then turned to the question of whether any interest in the land that is the subject of the present suit was expressly saved by or under the Act in favour of the respondents.
Section 6 of the Act provides, inter‑alia, that from the date of vesting onward, all lands used for agricultural purposes which were in “khas possession” of a proprietor or tenure‑holder on that date shall be deemed to have been settled by the State with that proprietor or tenure‑holder. Such a proprietor or tenure‑holder is thereby entitled to retain possession of the land and may hold it as a raiyat under the State, enjoying occupancy rights subject to the payment of a fair and equitable rent to be fixed by the Collector. The lands covered by this provision include those used for agriculture that formed the subject‑matter of a subsisting mortgage, on the redemption of which the intermediary is entitled to recover khas possession, as noted in the citation “[1962] Supp. 1 S.C.R. 123”. Accordingly, even if the proprietor did not actually have khas possession at the moment of vesting, the land would still be deemed settled with the proprietor, who would continue to possess it as a raiyat of the State. Section 2(k) defines “khas possession” as the possession of a proprietor or tenure‑holder by personally cultivating the land or carrying out horticultural operations thereon, either with his own stock, his own servants, hired labour, or hired stock. On the date of vesting, the respondents were not in khas possession of the disputed land because they were not occupying it in any of the manners described in that definition. Section 6 does not broaden the meaning of “khas possession”; rather, it includes lands described in clauses (a), (b) and (c) of sub‑section 1, which may be deemed settled with the proprietor. Clause (c) originally read: “lands used for agricultural or horticultural purposes and in …”.
The original provision described the possession of a mortgagee who, immediately before the execution of the mortgage bond, was in khas possession of the proprietor or tenure‑holder. This wording was replaced by a new clause through section 6 of the Bihar Land Reforms (Amendment) Acts 1959 (Act XVI of 1959). The amendment stipulated that the substituted clause shall be deemed to have been part of the original Act from its inception.
The substituted clause (c) states: “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.” Consequently, for the respondents to benefit from this provision, two conditions must be satisfied. First, a subsisting mortgage must exist on the date of vesting. Second, the land covered by that mortgage must be such that, upon redemption of the mortgage, the respondents would be entitled to recover khas possession of the land. Because no mortgage was subsisting on the date of vesting, the respondents could not invoke the benefit of clause (c). Accordingly, the land in dispute does not fall within the scope of clause (c) or any other part of sub‑section (1) of section 6 of the Act.
This issue was raised before the High Court, which observed the following: “In the first place the defendants were in possession as mortgagees and, even section 6 of the Bihar Land Reforms Act provides that the possession of the mortgagee is the possession of the mortgagor even for the purpose of construing the meaning of khas possession of the intermediary over the land which may be deemed to be settled with him by virtue of section 6 of the Act. The defendants’ possession being the mortgagees’ possession, the case is covered by the terms of section 6 itself. Apart from it, it has been held in the case of Brij Nandan Singh v. Jamuna Prasad Sahu and Another (First Appeal No. 205 of 1948) by a Division Bench of this Court that the words ‘khas possession’ include subsisting title to possession as well and 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 the State of Bihar shall treat him as Raiyat with occupancy right and not the trespassers. The contention of the learned Advocate General must fail in terms of the above decision.”
However, on the date of vesting, the appellants were not in possession as mortgagees. The mortgages had been redeemed in 1943, and thereafter the appellants possessed the land in a capacity other than that of mortgagees—potentially as trespassers or in another role. Because the land was not held under a subsisting mortgage at the relevant date, it could not be brought within clause (c) of section 6 of the Act as it stood at the time the High Court delivered its judgment.
The High Court’s reasoning relied heavily on the decision in Brij Nandan Singh v. Jamuna Prasad, interpreting “khas possession” to include a subsisting title to possession. The present Court found that interpretation unsuitable when the statutory definition of “khas possession” limits the term to actual possession attained by cultivation or horticultural activity, either by the proprietor himself, his servants, hired labour, or hired stock. Mere subsistence of a title on the date of vesting does not satisfy that definition, and therefore the land in suit cannot be deemed settled with the respondents under the provisions of the Bihar Land Reforms Act.
The Court referred to the decision reported as Brijnandan Singh v. Jamuna Prasad (1) which had interpreted the expression “khas possession” to mean that a proprietor who possessed a subsisting title to the land could also claim the right to recover possession, and that the State of Bihar should treat such a proprietor as a raiyat with an occupancy right rather than as a trespasser. The Court did not accept this interpretation. The Court explained that the definition of “khas possession” refers specifically to the possession of a proprietor or tenure‑holder obtained by actually cultivating the land himself with his own stock, by his own servants, by hired labour or by hired stock. Consequently, the mere fact that a proprietor held a subsisting title to possession of a parcel of land on the date of vesting does not, by itself, place that land in his “khas possession.” (1) A. I. R. 1958 Pat. 589. On this basis the Court found that the land involved in the suit could not be deemed to have been settled with the respondents by the State in accordance with the provisions of section 6 of the Act. Because no such settlement existed, the Court held that no rights over the land remained in the respondents after the vesting date; all of the respondents’ rights had vested in the State by operation of subsection (1) of section 3 of the Act. The Court was therefore of the opinion that, even if the respondents were trespassers, they lost any right to recover possession from the appellants once their estate vested in the State under sections 3 and 4 of the Act. Accordingly, the right to possession now vested solely in the State. Since the respondents were no longer entitled to recover possession of the land, the decree of the High Court was to be set aside. The Court, accordingly, allowed the appeal, set aside the decree of the Court below and restored the decree of the trial Court, albeit for reasons different from those given by the trial Court in its judgment. In the circumstances, the Court ordered each party to bear its own costs. The appeal was allowed.