Case Note & Summary
The appeal arose from a civil suit concerning zeraiti land in mauza Chaugain. The plaintiffs (appellants) claimed title as proprietors after redeeming a usufructuary mortgage and sought recovery of possession from tenants who claimed occupancy rights. The defendants had refused to surrender possession, asserting raiyati rights. The trial court decreed the suit, but during appeal, the Bihar Land Reforms Act, 1950, was enacted, and the plaintiffs' estate vested in the State under a notification. The High Court modified the decree, upholding declaration and mesne profits up to 31-12-1954 but setting aside the possession decree on the ground that lands had vested. The plaintiffs appealed to the Supreme Court. In 1897 plaintiffs' ancestors executed a registered rehan bond of lands including suit lands in favour of third-party ancestors. In 1907 a second rehan bond was executed, and the second mortgagee redeemed the first mortgage and obtained possession. On June 8, 1941, plaintiffs paid off the rehan bond of 1907 and entered satisfaction. They obtained possession of some lands but could not get possession of the suit lands, which were in possession of defendants 1st and 2nd parties who claimed occupancy rights and refused to vacate. Plaintiffs filed suit for declaration, possession, and mesne profits. The trial court found the land was zeraiti, that tenants came into possession under a lease expiring in 1912-13, and that adverse possession started only in 1941 after redemption; suit was within limitation under Article 144 of Limitation Act. The trial court decreed the suit on October 10, 1947. The defendants appealed and obtained stay of delivery. Meanwhile, the Bihar Land Reforms Act came into force; notification vested the estate on January 1, 1955. The High Court held that plaintiffs were entitled to declaration and mesne profits up to end of 1954, but because the lands vested in State, the possession decree was set aside. The principal issue was whether the suit lands were in khas possession of the plaintiffs under Section 6(1)(c) of the Bihar Land Reforms Act, thereby saved from vesting. The appellants argued that khas possession includes constructive possession, relying on Patna High Court Full Bench and Allahabad High Court decisions. Respondents contended that tenants' possession was adverse and not derivative, so the saving did not apply. Appellants submitted that even though tenants were in physical possession, they held on behalf of the mortgagor, so the lands remained in khas possession. They relied on Mahanth Sukhdeo Das v. Kashi Prasad Tiwari, AIR 1958 Pat 630, which held that khas possession includes constructive possession. Respondents argued that the tenants asserted their own title and were not holding under the mortgagor; hence no mortgage relationship subsisted on the vesting date. The Court noted that the plaintiffs' own case was that the tenants were trespassers, and they had sought mesne profits on that basis. The possession of respondents 1 and 2 was in their own right and adverse to the appellants. The Court distinguished the Allahabad High Court case where a mortgagee continued in possession after discharge, because in that case the possession was derivative; here the tenants claimed a right inconsistent with the mortgagor's title. Therefore, the relationship of mortgagor and mortgagee did not subsist on January 1, 1955, and Section 6(1)(c) could not apply. The Court affirmed the High Court's conclusion that the lands vested in the State. The Supreme Court dismissed the appeal, holding that the suit lands were not in khas possession of the appellants and had vested in the State under Section 3 of the Bihar Land Reforms Act. The decree for possession granted by the trial court was correctly set aside.
Headnote
A) Land Reforms - Vesting of Estates - Khas Possession Saving - Bihar Land Reforms Act, 1950, Sections 3(1), 4, 6(1)(c) - The suit lands were zeraiti lands of the appellants, but after redemption of mortgage, tenants remained in possession claiming occupancy rights in their own right and adversely to the appellants - Court held that such possession was not on behalf of or derivative from the mortgagor, so lands could not be deemed to be in khas possession of the proprietor under Section 6(1)(c) and thus vested in the State (Paras 11-14). B) Limitation - Adverse Possession - Commencement Against Mortgagor - Indian Limitation Act, 1908, Article 144 - Tenants' adverse possession against mortgagor began only after redemption in June 1941 when mortgagor became entitled to possession; suit filed within 12 years was not barred - Court affirmed trial court findings that suit was within time (Paras 8-9). C) Precedent - Interpretation of Khas Possession - Patna High Court Full Bench in Mahanth Sukhdeo Das v. Kashi Prasad Tiwari, AIR 1958 Pat 630 distinguished - The expression khas possession under Section 6(1)(c) includes constructive possession where physical possession is with someone holding derivatively or on behalf of proprietor, but not where possession is adverse - Held that in present case tenants' possession was adverse, hence saving not applicable (Paras 15-17). D) Mortgage Redemption - Effect of Discharge - Relationship of Mortgage and Tenant - Allahabad High Court Decision, I.L.R. 1933 All. 97 distinguished - Where a mortgagee continued in possession after discharge, possession could be treated as on behalf of mortgagor, but not when tenants asserted title adverse to mortgagor - Court held that mortgagor-mortgagee relationship did not subsist on date of vesting, so Section 6(1)(c) could not apply (Paras 18-20).
Issue of Consideration
Whether the suit lands, which were in possession of tenants claiming occupancy rights adverse to the appellants after redemption of a usufructuary mortgage, could be deemed to be in 'khas possession' of the appellants under Section 6(1)(c) of the Bihar Land Reforms Act, 1950, so as to be saved from vesting in the State.
Final Decision
The Supreme Court dismissed the appeal and affirmed the High Court's decision. It held that the possession of respondents 1 and 2 was in their own right and adverse to the appellants, not on behalf of the mortgagor. Therefore, Section 6(1)(c) of the Bihar Land Reforms Act, 1950 could not apply because the mortgagor-mortgagee relationship did not subsist on January 1, 1955. The suit lands had vested in the State under Section 3 of the Act, and the trial court's decree for possession was correctly set aside.
Law Points
- Khas possession under Section 6(1)(c) of Bihar Land Reforms Act
- 1950 excludes possession by persons claiming adversely to the proprietor
- adverse possession of tenants against mortgagor begins only after redemption of mortgage
- lands in possession of tenants claiming own title are not saved from vesting
- notification under Section 3(1) vests estate free from encumbrances
- constructive possession requires derivative title
- not adverse title
- suit for recovery of zeraiti land by mortgagor after redemption is not barred if filed within 12 years from redemption
