Supreme Court Upholds Plaintiffs in Partition Compromise Possession Suit Under CPC and Bihar Land Reforms Act. Constructive Possession of Homestead Allotted Under Unexecuted Partition Compromise Sufficient to Maintain Separate Suit for Recovery Despite No Formal Decree; Section 47 CPC Not Barred, and Section 5 Bihar Land Reforms Act 1959 Allows Retention as Tenant Under State Free of Rent.

Civil suit for recovery of possession of plaint property with mesne profits arising from a partition compromise, involving issues of constructive possession, bar under Section 47 CPC, and vesting under Bihar Land Reforms Act, 1959.

Plaintiffs sought a decree for recovery of khas possession of the plaint property and mesne profits from defendants.

After the partition compromise, Kishundeo Singh was allotted the plaint property but defendants remained in permissive occupation; plaintiffs, as his successors, sought to recover possession.

Trial court decreed the suit; first appellate court affirmed; Patna High Court in second appeal allowed the defendants' appeal and dismissed the suit, holding it barred by Section 47 CPC and the property vested in the State under Bihar Land Reforms Act, 1959.

Whether the suit was barred by Section 47 of the Code of Civil Procedure, 1908. Whether under the Bihar Land Reforms Act, 1959, the plaint property had vested in the Government and plaintiffs were incompetent to maintain the suit.

Appellants/plaintiffs contended that no final decree was drawn up in the partition suit, defendants were in permissive occupation, Kishundeo Singh had constructive possession, and constructive possession satisfied Section 5 of Bihar Land Reforms Act, 1959, so the suit was maintainable. Respondents/defendants contended that plaintiffs should have paid stamp fee and got the partition decree drawn up and executed, so the suit was barred by Section 47 CPC, and the plaint property vested in the State under the Act because Kishundeo Singh was not in actual possession on vesting date.

A separate suit for recovery of possession after a partition compromise is not barred by Section 47 CPC when no formal decree was drawn up and the defendant's possession is permissive, leaving the plaintiff in constructive possession. Under Section 5 of the Bihar Land Reforms Act, 1959, the term 'possession' includes constructive possession, unlike Section 6 which requires 'khas possession'; accordingly, an intermediary in constructive possession of a homestead on the date of vesting becomes a tenant under the State free of rent and can maintain a suit for recovery of possession.

Whereas s. 6 speaks of khas possession, s. 5 mentions only of possession. We think that Kishundeo Singh was in constructive possession of the property after the compromise and the suit for recovery of khas possession was not barred by s.47 of the Civil Procedure Code. On the date of vesting of the plaint property in the State, Kishundeo Singh was in possession for the purpose of s. 5 and that he became a tenant under the State free of rent and that the suit for recovery of possession was maintainable.

In 1944-46, Suit No. 60/34 of 1944-46 was instituted for partition among joint family members; on July 4, 1947, the suit was compromised and schedules of allotted properties were prepared, with plaint property going to Kishundeo Singh, but no decree was drawn up because no stamp paper was produced. On March 7, 1953, plaintiffs (successors of Kishundeo Singh) filed the present suit for recovery of possession with mesne profits. The trial court decreed the suit; the first appellate court confirmed. The defendants filed second appeal before the Patna High Court, which allowed the appeal and dismissed the suit on November 24, 1964. The plaintiffs then appealed by special leave to the Supreme Court, which allowed the appeal on March 2, 1973.

• Code of Civil Procedure, 1908: Section 47
• Bihar Land Reforms Act, 1959: Section 5, Section 6, Section 7A, Section 7B