Case Note & Summary
The dispute arose from a partition suit instituted in 1943 concerning four annas milkiat interest in Touzi No. 702, Tappa Haveli, Pargana Maheshi, District Champaran, Bihar, including extensive bakasht lands. The plaintiff respondent claimed partition; defendants appellants resisted final decree after Bihar Land Reforms Act, 1950 came into force, arguing vesting in State extinguished proprietary rights and created raiyati interests only for those in actual khas possession. The Subordinate Judge, Motihari, passed a preliminary decree declaring the first respondent's share. The High Court modified the decree reducing the share to Rs 0-1-4, but the Supreme Court restored the trial court preliminary decree on 5 October 1953. The Bihar Land Reforms Act came into force on 25 September 1950. In June 1958, the first appellant applied to the trial court to treat final decree proceedings as abated due to vesting. The trial court accepted the application on 12 July 1958. The High Court in First Appeal No. 572 of 1958 set aside that order and directed the partition suit to proceed, leading to Civil Appeal No. 2588 of 1966. The core legal issues were whether a co-sharer not in actual khas possession of bakasht land could claim the benefit of Section 6 deeming provision based on constructive possession, and whether the final decree proceedings abated. The appellants argued that Section 6(1) caused all bakasht lands to vest in the State and created tenancy only for persons in actual khas possession, thus only they became raiyats, and the plaintiff co-sharer had no share. The respondent contended that the appellants were in possession as co-sharers and not trespassers; under law, possession of one co-sharer is possession of all, so constructive possession should be recognized. The Supreme Court referred to Bihar Land Reforms Act, 1950 provisions (Sections 3, 4, 6) and prior decisions including Surajnath Ahir, Ram Ran Bijai Singh, P.L. Reddy, S.P. Shah, and Mahant Sukhdeo Das. It noted that 'khas possession' defined in Section 2(k) requires actual cultivation by the proprietor through servants or hired labour. However, for co-sharers, the principle that possession of one co-sharer is possession of all co-sharers applied. The appellants did not claim adverse title. Therefore the deeming provision enured to the benefit of all co-sharers who in the eye of law were in possession. Consequently, the respondent had not lost his share in the bakasht lands and was entitled to hold it as a raiyat under the Act. The Supreme Court dismissed the appeal and upheld the High Court direction to proceed with the partition suit, clarifying that the respondent's share was preserved, though not as tenure-holder or proprietor but as raiyat under the provisions of the Bihar Land Reforms Act, 1950.
Headnote
A) Bihar Land Reforms Act, 1950 - Section 6 - Vesting and Settlement of Bakasht Lands - Constructive Possession of Co-Sharer - A co-sharer not in actual khas possession of bakasht land is deemed to be in constructive possession through co-sharer in actual khas possession; such constructive possession enures for benefit of all co-sharers under Section 6 deeming provision, so co-sharer retains share as raiyat after vesting (Pages 640-645).
Issue of Consideration
Whether a co-sharer not in actual khas possession of bakasht land can claim the benefit of Section 6 of Bihar Land Reforms Act, 1950 by virtue of constructive possession through a co-sharer in actual khas possession, thereby retaining share as raiyat after vesting of estate; whether partition suit should proceed despite objections based on vesting.
Final Decision
Appeal dismissed; High Court direction to proceed with partition suit upheld; respondent had not lost his share in bakasht lands and was entitled to hold it as raiyat under Bihar Land Reforms Act, 1950, though not as tenure-holder or proprietor.
Law Points
- Possession of one co-sharer is possession of all co-sharers
- constructive possession of co-sharer through actual khas possession of another co-sharer enures to benefit of all
- Section 6 of Bihar Land Reforms Act
- 1950 deems settlement of bakasht lands with intermediary in khas possession
- co-sharer retains share as raiyat after vesting despite not in actual possession
- deeming provision of Section 6 extends to all who in eye of law are in actual possession
