# BHUBANESHWAR PRASAD NARAIN SINGH & ORS v. SIDHESWAR MUKHERJEE & ORS

- **Citation:** [1971] 3 S.C.R. 639
- **Court:** Supreme Court of India
- **Decided:** 1971-02-02
- **Case number:** Civil Appeal No. 2588 of 1966
- **Bench:** G. K. Mitter, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhubaneshwar-prasad-narain-singh-ors-v-sidheswar-mukherjee-ors-5220
- **Pages:** 7

## Headnote

Bilu1r Land Rcfonns Act, 1950, r. 6--Scope of-Effect on co-sharer'i
posJ't:Jston.
In a suit for partition of bakasht land a preliminary decNe was passc
ed.
The defendants-appellants, claiming to be in actuar possession of
the bakasht land, filecl a petition contending that the consequence of s. 6
of the Bihar Land Reforms Act, 19'50 (which came into force in the
meanwhile) was to put an end to the proprietor's possession of the
b.akasht land by causing them to vest in the State and simultaneously
creating a tenancy in
favour of the person in khas
possession.
thereof, and therefore, no final decree could be passed. The trial court
accepted the contention and dismissed the plaintiff's application for passD
ing final decree. In appeal, the High Court set aside the order.
In appeal to this Court,
HELD : Even if the appellants were in actual khas possession within the meaning of s. 2 (kl of the Act, it must be held that the plaintiff
respondent, who was a co-sharer, was in constructive possession through
the appellants, as, under the law, posslssion of one co-sharer is possesE
sion of all co-shares. The appellants did not claim to be trespassers
on the property neither did they claim any title to the lands adversely
to "the respondent. . The deeming provision of s. ll inust, therefore,
enure for the benefit of all. who in the eye of land would be regarded
.as in actual possession. Therefore, the respondent had not Jost his •hare
,
in the bakasht lands and had a right to his share in them; though not
<J
as tenure-holcler or proprietor, but as a raiyat under the provisions of
~t
the Act. [645 E-GJ
F
P. L. Reddy v. L. L. Reddy, [!957) S .. C.R. 195. 202, followed.
Surajnath Ahir v. Prithitnath Singh, [1963] 3 S.C.R. 290, Ram Ran
Baijal Singh v. Behari Singh alias Bagandha Singh, [1964] 3 S.C.R .. 363,
S. P. Shah v., B. N. Singh, [1969) 3 S.C.R. 9'08 and Mahant Sukhdeo Das
v. Kashi Prasad, Tewari & Shrideo Misra v. Ramsewok Singh A.L.R. 37
G
Pat. 918, referred to.

## Text

63~
A
BHUBANESHWAR PRASAD NARAIN SINGH & ORS.
v.
SIDHESWAR MUKHERJEE & ORS.
B
February 2, 1971
[G. K. MITTER AND A. N. RAY, JJ.]
Bilu1r Land Rcfonns Act, 1950, r. 6--Scope of-Effect on co-sharer'i
posJ't:Jston.
In a suit for partition of bakasht land a preliminary decNe was passc
ed.
The defendants-appellants, claiming to be in actuar possession of
the bakasht land, filecl a petition contending that the consequence of s. 6
of the Bihar Land Reforms Act, 19'50 (which came into force in the
meanwhile) was to put an end to the proprietor's possession of the
b.akasht land by causing them to vest in the State and simultaneously
creating a tenancy in
favour of the person in khas
possession.
thereof, and therefore, no final decree could be passed. The trial court
accepted the contention and dismissed the plaintiff's application for passD
ing final decree. In appeal, the High Court set aside the order.
In appeal to this Court,
HELD : Even if the appellants were in actual khas possession within the meaning of s. 2 (kl of the Act, it must be held that the plaintiff
respondent, who was a co-sharer, was in constructive possession through
the appellants, as, under the law, posslssion of one co-sharer is possesE
sion of all co-shares. The appellants did not claim to be trespassers
on the property neither did they claim any title to the lands adversely
to "the respondent. . The deeming provision of s. ll inust, therefore,
enure for the benefit of all. who in the eye of land would be regarded
.as in actual possession. Therefore, the respondent had not Jost his •hare
,
in the bakasht lands and had a right to his share in them; though not
<J
as tenure-holcler or proprietor, but as a raiyat under the provisions of
~t
the Act. [645 E-GJ
F
P. L. Reddy v. L. L. Reddy, [!957) S .. C.R. 195. 202, followed.
Surajnath Ahir v. Prithitnath Singh, [1963] 3 S.C.R. 290, Ram Ran
Baijal Singh v. Behari Singh alias Bagandha Singh, [1964] 3 S.C.R .. 363,
S. P. Shah v., B. N. Singh, [1969) 3 S.C.R. 9'08 and Mahant Sukhdeo Das
v. Kashi Prasad, Tewari & Shrideo Misra v. Ramsewok Singh A.L.R. 37
G
Pat. 918, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2588 of
1966.
Appeal from the judgment and decree dated January 14, 1964
of the Patna High Court in First Appeal No. 572 of 1958.
H
D. Goburdhun and R. Goburdhun, for the appellants.
A. N. Sirlha and P. K. Mukhe~jee, for respondent No.- 1.
. '
640
SUPREME COURT REPORTS
[1971] 3 S.C.R.
The Judgment of the Court was delivered by
Mitter, J.
The only question involved in this appeal is, whether the direction of the Jligh Court that the partition suit launched
in 1943 should be allowed to proceed in view of the provisions
·Of s. 6 of the Bihar Land Reforms Act, 1950 which came into
force on 25th September, 1950, is correct.
The suit had a chequered c~reer. It was ~nstituted against a
number of persons the main relief asked for being partition of
four annas Milkiat interest in Touzi No. 702, Tappa Haveli, Pargana Maheshi, District Champaran, Bihar.
The Subordinate
Judge of Motihari made a preliminary decree· for partition declaring the first respondent's share in the property as claimed by him.
The High Court in appeal modified the decree reducing the plaintiff's share to Rs. 0-1-4 interest only.
In further appeal to this
Court the trial court's preliminary decree was upheld on 5th
October 1953.
In the meanwhile the Bihar Land Reforms Act
of 1950 effecting far-reaching changes in the incidents of land
tenure and land holdings had been passed.
The first appellant
made an application to the trial court in June 1958 praying that
the proceedings for final decree be treated as having abated in
view of the vesting of aH estates m land in tbi State of Bihar.
'This was accepted by the Subordinate Judge by an order dated
July 12, 1958. The High Court allowed the appeal with the
direction above mentioned which the appellant~ now seek to have
-set aside.
The bone of contentiQn between the parties is the extensive
'bakasht' lands in the aforesaid Mquza. The appellants cOifitend
that under s. 6 (1) of the Act all ~h~s~ lands vested }n the State
and came to be held by the persons m. "khas possession" thereof
as raiyats u,nder the State.
To appreciate the plea it is necessary
to make a brief reference to some of the provisions of the Act.
As is well known the object pf the Act was to cause transfer-
-ence to the State of the interest of proprietors and tenure-holders
in land as also of rthe mortgagees and bssees of such interests
including interests in trees, forests, fisheries, jalkars, ferries, hats,
bazars, mines and minerals and to provide for certain consequences
following there.from and connected therewith.
S. 3 of the Act
enabled the State Gover#ment to declare by notification that the
-estates or tenures of a proprietor or tenure-holder specified therein
would pass to and become vested in the State.
The consequences
of such vesting are setforth in s. 4. Under cl. (a) :
"Such estaJe or tenure including the interests of the
proprietor or tenure-holder in any building or part· of a
building comprised in such estate or tenure and used
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BHUBANESHWAR V. SIDHESWAR (Mitter, J.)
641
primarily as office or cutcb,ery for the collection of rent
ot such estate or tenure, and his interest in trees, forests,
fisheries, jalkars, sairati interest as also his interest in
all sub-soil including any rights in mines a!ld minerals
whether discovered or undiscovered, or whether being
worked or not, inclusive of such rights of a lessee of
mines and minerals, comprised in such estate or tenure
(other than the interests of raiyats or under-raiyats)
shall, with effect from the date of vesting, vest absolutely
in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interest
in such estate or tenure, other than the interests expressly saved by or under the provisions of the Act."
S. 6 of the Act provides for such saving and the relevant portion
thereof runs as fol!ows :-
" ( 1) 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-
( a) (i)_ proprietor's private }ands let out under a
lease for a term of years or under a ]ease from year to
year, .............. .
(ii) landlords privileged lands let out under
a
registered lease for a term exceeding one year or under
a lease, written or oral, fo~ a period of one year or Jess,
referred to in section 43 of the Chota Nagpur Tenancy
Act, 1908,
(b) lands used for agricultural or horticultural purposes and held in the direct possessio,n of a temporary
lessee of an estate or tenure and cultivated by himself
with his own stock or by his own servants or by hired
labour or with hired s:ock, and
( c) 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;
shall . . . . . . . . . . ... 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 occupying rights in respect of
such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the
prescribed manner.
..
642
SUPREME COURT REPORTS
[1971]3 S.C.R.
The broad proposition which was advanced before the High Court
and rejected by it ~nd reiterated before us is that thei consequence
of s. 6' was to put an end to the character of the possession of
the bakasht lands to the malik by causing them to vest in the
State and simultaneously creating a tenancy in favour of the person
in khas possession thereof.
There is no dispute that bakasht lands
fall under categories (b) and ( c).
We are not here concerned
with category ( c) and have quoted it to appreciate some decisions
relied on where there are references to that category.
This question has engaged the attention of the Patna High
Court more than once and it would appear that the views expressed
in different cases have not been uniform.
So far as the said High
Court h concerned the point was settled by a decision of the Full
Bench in Mahanth Sukhdeo Das. v. Kashi Prasad Tewcri and
Shrideo Misra v. Ramsewak Singh(1).
The main questions before the Full Bench were whether on the vesting of an estate which
was mortgaged at the material time the bakaslrt 'lands therein which
are deemed to be settled with the ex-proprietor in khas possession
would form substituted security for the purpose of the mortgage,
and whether a co-sharer proprietor not in actual possessio.n of
such lands had any claim thereto on the basis of his constructive
possession.
The High Court answered both the above in the
affirmative.
One of the earliest cases in which this Court had to interpret
s. 6 of the Act Wds that of Surajnath Ahir v. Prithinath Sinigh(2 ).
There the question which engaged the attention of this Court was
whether the appellants who had originally gone into possession on
the strength of a mortgage lost their right to continue in possession
even i~ they claimed to be trespassers after the redemption of their
mortgage by reason of the estate vesting in the State on the passing
of the Act.
Although the case is not directly in point, it bears
upon the \dentical provisions of law which have to be applied to
the facts of the case before us.
The facts in that case were that
the appellants had entered into possession of kasht lands of the
mortgag\)rs on the strength of a mortgage deed.
The mortgagors
thereafter executed another mortgage with respect to their milkiat
(proprietary) interest in favour of certain persons. The plaintiffrespondents bought the milkiat. rights together with "kasht" lands
from the mortgagors and entered into possession of the milkiat
property and subsequently redeemed the mortgage deeds in 1943.
The appellants however did .not make over possession of the lands
ill dispute even after the redemption of the mort2a~e. It was held
by this Court that the respondents could not take advanta~e of
section 6(1) (c) of the Act as no mortgage subsisted on the date
of vesting and the llll!re fact that the proprietor had a subsisting
(I) J.L.R. 37 Patna 918.
(2) [1963)-3 S.C.R. 290
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JIHUBANBSHWAR v. SIDHESWU (Mitter, J.)
643
title to possession over certain land on the date of vesting could
n<Jt amount to Ihat land being treated as under his "khas possession" for the purposes of the Aot.
Referring to the definition
of "Khas possession" in s.
2(k) of tht Act as meaning
"the possession of such proprietor or te.nure-ho!der
by cultivating such land or carrying on horticultural
operations thereon himself with his own stock or by his
own servants or by hired labour or with hired stock".
it was held that in order that the respondents could take advantage·
of the provision of s. 6 (1 )( c) of the Act they had to establish
a subsisting ll}Ortgage on the date of vesting which was inclusive·
of the land subject to their right of redemption.
On the question
of possession of the lands it was observed :
"On the date of vesting, the appellants were not in
possession as mortgagees.
The mortgages had been redeemed in 1943.
Thereafer, the possession of the
appellants was not as mortgagees.
It may be as trespassers or in any other capacity.
The land in suit,
therefore, did ,not come within cl. ( c) of s. 6 of the
Act.!.'
Rejecting the construction put on the expression 'khas possession'
by the High Court in Brijnandan Singh v. Jamima Prasad(1) it was
said:
"The mere fact that a proprietor has a subsisting title
to possession over certain land on the date of vesting
woqld not make that land under his 'khas possession'."
The Full Bench decision of the Patna High Court came up for
consideration by this Court in Ram Ran Bijai Singh v.
Behari
Singh alias Bagandlia Singh("). There the appellants before this.
Court were Jhe plaintiffs who had filed a suit for a declaration
that a certain plot of land was their zeraiti land and that the
persons impleaded as the defendants 1st ·and 2nd parties had no
right or title thereto and for r~covery of possession of the said
land by dispossessing them therefro'Il.
It was argued that in view
of the concurrent findings of the courts below that the lands were
the zeraiti lands of the ·plaintiffs they would not vest in the State
because of the saving i.n s. 6 of the Act and the appe1!ant should
be deemed to have been in khas possession of th¢ land .under
s. 6 (1 )( c). The respondents contended that it was not a case
of a mortgagee remaining in possession after payment of the debt
without anything more but of tenants who claimed to remain in
possession by asserting a title which was as much against the mortj!;a!!ors as against the mortgagees.
Reference was made in the
m A.Lil. t9~R Patna ss•.
12) [1964] 3 s.c.R. 363.
(3) I.L.R.37Pat. 918.
644
SUPREME COURT REPORT$
[1971]3 S.C.R.
•course of arguments to the Full Bench decision in Sukhdeo Das's
case ( ") and it 'll'as submitted· that a mortgagee continuing
in possession of the mortgaged property a.fter payment of the
mortgage amount mu3t hold the same on behalf of the mortgagor
and in trust for hiiil.
Counsel further relied on certain observation&. in the judgment of the Full Bench in aid of his proposition
and submitted on the basis thereof that even the possession of a
trespasser who had not perfected his title by adverse possession for
·the requisite period. uf ·time under the Limitation Act should be
considered as in khas possession o.f the true own,er. Turning down
~this submission it was observed by this Court (p. 378) :
"We cqnsider that this equation of the right to possession with 'khas possession' is not justified by principle
or authority. Besides this is also inconsistent with the
reasoning of the Full Bench by which constructive possession is treated as within the concept of khas possessiEln."
The Court went on to add that :
"The possession of the contesting defendants in the
present case was in their own right and adverse to the
plaintiffs, even on the case with which the
appellants
them>dves came to court."
Noting the statement of-the plaintiffs in their plaint that the mortgagees had fulfilled their obligations and the obstruction to possession was put forward only by persons :-vho claimed occupancy
rights this Court co,ncluded that, in the circumstances of the case,
it was not possible for the appellants to contend that these tenants
(defendants 1st and 2nd parties) wer" in possession of the property
on behalf of the mortgagor or by virtue -<if any right through the
mortgagor.
The case is not therefore an authortiy _for the proposition that a co-sharer's constructive possession is to be ignored
·under s. 6(1) (c) of the Act.
Counsel for the appellants also referred us to a recent decision
of this Court in S. P. Slzah v. B. N. Singh(1) in aid ofhis contention that the true effect of s. 6 of the Act was to create a ilew right
of tenancy in favour of the person in khas possession and consequently even i.f the plaintiff in the partition suit had a right to ask
for demarcation of his Rs. 0-4-0 share of the bakasht lands before
the passing of the Land Reforms Act, he couk! qot pursue his
claim by a prayer that he be considered a: tenant along with those
who were in_ actual khas possession.
Jn our view the above decision is no authority. for this broad
proposition.
In that case the appellants who were mortgagees' of
an estate including bakasht lands and other lands filed a suit on
(I) [1969] 3 S C.R. 908.
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BHUBANESHWAR v. SIDHESvl:,AR (Mitter, J.)
645
their mortgage and tried to follow up the preliminary decree which
was obtained before the Act came into force by a petition for passing a fi.nal decree.
One of the questions before tli.is Court was
whether the mortgage decree had become unexecutable in view of
the provisions of the Act.
It was held that the net effect of ss. 3,
4 and 6 was that although on the vesting of the lands in the State.
a settlement was deemed to be effected with the person in khas
possession in law, there were two diffen;nt transactions and the
deemed settlement was in effect a separate transaction creating new
rights.
The Court came to the conclusion that the only remedy
open· to the decree-holders was that provided in Chapter IV of the
Act i.e. a claim under s. 14 before the Claims Officer for determin-
~ng the amount of debt legally and justly payable to each creditor
in respect of his claim.
The Court was there dealing with the rights of the mortgage
creditors after the Act had come into force.
Chapter IV of the
Act made special provisions for dealing with the rights of secured
creditors and s. 4 (1 )(d) expressly provided for the abatement of
D - all suits and proceedings for the recovery of any money through
proceedings which might be pending on the date of vesting arising
out of securities created by mortgage or a charge on an estate or
tenure.
Here howeven we are not dealing with the claims of mortgagees under Chapter IV. In this case we have to consider whe-
.E
G
ther the appellants had laid a claim which a co-sharer could not
put forward except by pleading ouster or a.ny other independent
ground.
Even if they were in actual khas possession within the
meaning of s. 2 (k) of the Act it must Le held that the plaintiff
who was a co-sharer was in constructive possession thrqugh the
appellants as "und,er the Jaw possession_ of one co-sharer is lpo~ses
sion of all the co-sharers".
We see no reason to hold that the
observations of this Court to the above effect in P. L. Reddy v.
L. L. Reddy('1) are not applicable to the case before us. ·The
appellants do not claim to be trespassers on the property : neither
did they claim any title to the lands adversely to the
pla~ntiff
respondent.
The deeming provision of s. 6 must therefore enure
for the benefit of all who in the eye of law would be regarded as
in actual possession. It follows that the plaintiff had not lost his
share in the bakasht lands and had a right to them though not as
tenure-holder or proprietor but certainly as a raiyat under the
provisions of the Land Refomi.s Act.
The appeal,mus-t therefore
be dismissed with costs.
V.P.S.
Appeal dismissed.
H
(!) [19571 S.C.R. 195, 201.