# BRIJ KISHORE PRASAD SINGH AND OTHERS v. JALESHW A;R PRASAD SINGH AND OTHERS

- **Citation:** [1973] 3 S.C.R. 562
- **Court:** Supreme Court of India
- **Decided:** 1973-03-02
- **Case number:** Civil Appeal No. 1466 of 1967
- **Bench:** A. N. Grover, K. K. Mathew, A. K. Mukherjea
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/brij-kishore-prasad-singh-and-others-v-jaleshw-a-r-prasad-singh-and-others-5902
- **Pages:** 5

## Headnote

Code of Civil Procedure, 1908, S. 41.-Partition suit co111pro1nised--
No decree drcwn up or executed-Subsequent suit
~o.r possession
of
property allotted under compromise whether barred.
Bihar Lan<! Reforms Act 1959, s. 5-Constructive possession suffi-
,cient to confer iright under section.
A partitio,n suit between K and his brothers was compromised on
July 4, 1947 and different schedules were prepared for
the
property
·iallotted to the sharers. However none of the parties tg the compromise
produced the necessary stamp paper as dij:ected bv. the Court, and no
-decree was drawn up by t_he Court. The present suit was
filed
by
the successors-in-interest of K for possession of certain property which
under the afdresaid compromiSe had fallen to the share
of K.
De·
fenda,uts 1 and 2 contended .. that K while he was alive
executed a
hukumn,ama in their favour and they were put in possess'ion
of
the
plaint property as lessees, and so they were entitled to retain possession.
They further contended that the suit was barred by limitation and al!o
by section 47 of the Civil Procedure Code. The Trial Court decreed
the suit. The decree was c~tfirmed in appeal.
In second appeal the
High Court held that the plaintiff should have paid stamp fee and got
the decree drawn up in the partition suit and executed it_ and so
the
suit was barred by sec. 47 of Civil Procedure Code.
The Court further
held that since the plaint property had vested in the Bihar Government
under the Bihar Land Reforms Act, 1959
the
plaintiffs
we're
not
e;t>title to maintain the suit. The High Court accordingly allowe<l the
appeal and dismissed the suit.
In appeal by special leave to this Court
two questions that arose for consideration were : ( 1) whether the suit
was barred by section 47 of the Civil Procedure Code and (2) whether
under the provi•ions of the Reforms Act the plaint property had vested
in the Government and therefore the plaintiffs were
incompetent
to
maintain the suit.
-
Allowing the appeal,
HELD : (i) It was clear froin the compromise
petition
that ihe
defendants were permitted to occupy the plaint
property
until
the
structure which was constructed in the property was removed by them.
·They no doubt 'remained in physical possession but that was not with
any intention to possess the property for themselves, but because they
were permitted to remain i.p possession until the sU"ucture constructed
by them was removed. The only right which they claimed
in
the
written statement was that they were tenants under K by virtue of the
hukumnc.·ma executed by him in the'ir favour. At no time they asserted
or claimed any right to remain in possession otherwise than as te:nant.
lbeir case that K put them in p~session was found against them by
the Trial as well as the First Appellate Court.
But that would not
'in any way affect the permissive nature of their possession. after the
Compromise.
Therefore it must be held that K was
in
constructive
possessiap of the property after the compromise
and
the
suit
for
recovery of khas possession \Vas not barred by section 47 of the Civil
l'rocedure Code. [565CE]
A
B
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D
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G
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R. K. SINGH v. J. P. SINGH (Mathew, J.)
563
(ii) The High Court wrongly took the view that since K was not
in possession of the property at the time the property vested in
the
State he
\V~as not entitled to retain possession of the
plaint
projperty
under s. 5 of the Bihar Land Reforms Act 1959, as a te1nant under
the State free of rent.
There was no dispute that the plaint property
'answered the description of a homestead in s. 5
of
the
Act. The
constructive possession of ·K was sufficient to enable him
to
retain
possession as tenant unde·r
th:~ section.
In other
words on
the
date
of vesting of the property in the Government, K was, for the purpose
of s. 5 in possession of the plaint property.
Whereas
s.6
speaks
of
k/ias possession
s~ction 5 speaks only of possess'ion.
On the date. of
vesting of the plai:nt property in the State K was in pos

## Text

562
BRIJ KISHORE PRASAD SINGH AND OTHERS
v.
JALESHW A;R PRASAD SINGH AND OTHERS
March 2, 1973
[A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.]
Code of Civil Procedure, 1908, S. 41.-Partition suit co111pro1nised--
No decree drcwn up or executed-Subsequent suit
~o.r possession
of
property allotted under compromise whether barred.
Bihar Lan<! Reforms Act 1959, s. 5-Constructive possession suffi-
,cient to confer iright under section.
A partitio,n suit between K and his brothers was compromised on
July 4, 1947 and different schedules were prepared for
the
property
·iallotted to the sharers. However none of the parties tg the compromise
produced the necessary stamp paper as dij:ected bv. the Court, and no
-decree was drawn up by t_he Court. The present suit was
filed
by
the successors-in-interest of K for possession of certain property which
under the afdresaid compromiSe had fallen to the share
of K.
De·
fenda,uts 1 and 2 contended .. that K while he was alive
executed a
hukumn,ama in their favour and they were put in possess'ion
of
the
plaint property as lessees, and so they were entitled to retain possession.
They further contended that the suit was barred by limitation and al!o
by section 47 of the Civil Procedure Code. The Trial Court decreed
the suit. The decree was c~tfirmed in appeal.
In second appeal the
High Court held that the plaintiff should have paid stamp fee and got
the decree drawn up in the partition suit and executed it_ and so
the
suit was barred by sec. 47 of Civil Procedure Code.
The Court further
held that since the plaint property had vested in the Bihar Government
under the Bihar Land Reforms Act, 1959
the
plaintiffs
we're
not
e;t>title to maintain the suit. The High Court accordingly allowe<l the
appeal and dismissed the suit.
In appeal by special leave to this Court
two questions that arose for consideration were : ( 1) whether the suit
was barred by section 47 of the Civil Procedure Code and (2) whether
under the provi•ions of the Reforms Act the plaint property had vested
in the Government and therefore the plaintiffs were
incompetent
to
maintain the suit.
-
Allowing the appeal,
HELD : (i) It was clear froin the compromise
petition
that ihe
defendants were permitted to occupy the plaint
property
until
the
structure which was constructed in the property was removed by them.
·They no doubt 'remained in physical possession but that was not with
any intention to possess the property for themselves, but because they
were permitted to remain i.p possession until the sU"ucture constructed
by them was removed. The only right which they claimed
in
the
written statement was that they were tenants under K by virtue of the
hukumnc.·ma executed by him in the'ir favour. At no time they asserted
or claimed any right to remain in possession otherwise than as te:nant.
lbeir case that K put them in p~session was found against them by
the Trial as well as the First Appellate Court.
But that would not
'in any way affect the permissive nature of their possession. after the
Compromise.
Therefore it must be held that K was
in
constructive
possessiap of the property after the compromise
and
the
suit
for
recovery of khas possession \Vas not barred by section 47 of the Civil
l'rocedure Code. [565CE]
A
B
c
D
E
F
G
H
A
8
c
D
E
F
G
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R. K. SINGH v. J. P. SINGH (Mathew, J.)
563
(ii) The High Court wrongly took the view that since K was not
in possession of the property at the time the property vested in
the
State he
\V~as not entitled to retain possession of the
plaint
projperty
under s. 5 of the Bihar Land Reforms Act 1959, as a te1nant under
the State free of rent.
There was no dispute that the plaint property
'answered the description of a homestead in s. 5
of
the
Act. The
constructive possession of ·K was sufficient to enable him
to
retain
possession as tenant unde·r
th:~ section.
In other
words on
the
date
of vesting of the property in the Government, K was, for the purpose
of s. 5 in possession of the plaint property.
Whereas
s.6
speaks
of
k/ias possession
s~ction 5 speaks only of possess'ion.
On the date. of
vesting of the plai:nt property in the State K was in possession for the
purpose of s. 5 -and he became a tenant under the State free of rent.
Accordingly the suit for recovery of possession was maintainable. f565H]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1466 of
1967.
Appeal by special leave from the judgment and decree dated
24th November 1964 of the Patna High Court in appeal from
Apellate Decree No. 1029 of 1968.
S. C. Agarll'ala, and V. J. Francis, for the appellants.
D. Goburdhan, for respondent Nos. 1 to 3 & 10.
The Judgment of the Court was delivered by
MATHEW, J.-This is an
appeal, by special
leave, by the
plaintiffs from a decree passed in appeal by 1he Patna High Court
dismissing their suit for recovery of the, plaint property with mesne
profits.
Plaintiffs I to 4 are the daughter's sons of one Kishundeo
Singh, plaintiffs 5 and 6 are his daughters and plaintilf 7 is his
widow.
The plaint property together with some other properties
belonged to the joint family of which Kishundeo Singh and his
brothers were the members.
Suit No. 60/34 of 1944-46 was
instituted for partition of the properties.
That suit was compromised on July 4, 1947 and different schedules were prepared for
the property allotted to the shares ~nd sons property was Mt in
the joint possession of all of them. The plaint property fell to the
share of Kishundeo Singh under the compromise. It may be mentioned that as none of the parties to the compromise produced the
necessary stamp paper as directed b!y the Court, no decree was
drawn up by the Court.
In the. suit for recovery of possession of the plaint property
filed by the plaintiffs, defend~nts I and 2 contended that Kishundeo
Singh, while be was alive, executed a hukumnama in 1354 Fs. in
their favour and they were put in possession of the plaint property
as lessees and so they were entitled to remain in possession. They
further contended that the suit was barred by limitation and also
by s. 47 of the Civil Procedure Code.
364
SUPREME COURT REPORTS
[1973] 3 S.C.R.
The Trial Court found that Kishundeo Singh o1Jllained possession of the plaint property on the basis of the compr9ntlse, that
the case of the defendants 1 and 2 that Kishundeo Singh had
executed a hukumnama in their favour and that they obtain possession of the plaint property under it was false, that the suit wru;
not barred by limitation or bys. 47 of the Civil Procedure Code and
decreed the suit. This decree was confirmed in appeal.
It was
again&! this decree that ithe second appeal was filed by the defendants before the High Court.
The High Court held that the plaintiff should have paid the
stamps fee and got the decree drawn up in Suit No. 80/34 of
1944-46 and executed it and so the suit was barred by s. 4 7 of the
Civil Procedure Code. The Court further held that since the
plaint property had vasted in the Bihar Government under the
Bihar Land Reforms Act, 1959, hereinafter referred to as the Act,
the plaintiffs were not entitled to maintain the suit. Therefore, the
High Court allowed the appeal and dismissed the suit.
The two questions that arise for consideration in this appeal
are: whether the suit was barred by s. 47 of the Civil Procedure
Code and whether under the provisions of the Act, the plaint
property had vested in the Government and, therefore, the plaintiffs were incompetent to maintain the suit.
As the first question, the High Court was of the view that,
though none of the parties to the compromise had produced the
necessary stamps paper as directed by the Court and no formal
decree was drawn up, t11e plaintiffs could not have instituted a fresh
suit for recovery of possession of the plaint properly as their
only remedy was to execute the decree in suit No. 80/34 of 194446. In other words, !he High Court held that the plaintiffs should
hawe produced the necessary stamp paper and got the final drawn
up and executed it, instead of filing a Sl•it for the relief which they
could have obtained by executing the decree and so, the suit was
barred by s.47 of the Civil Procedure Code.
The Trial Court had found that Kishundeo Singh obtained
possession of the plaint property without the assistance of the Court
in pursuance of the compromise but that he allowed the defendants
to occupy the same. To put it in other words, the finding of the
Trial Court was that the defendants were in permissive occupation.
The Trial Court also found that the definite case of the defendants
was that they were put in possession of the property under the
hukumnama and, therefore, their possession was clearly that of
lessees under an agricultural lease.
The lower appellate Court held that there was no allegation in
the plaint that Kishundeo Singh obtained khas possession under the
com1'f01llise nor was there any evidence to show that he obtained
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B. K. SINGH v. J. P. SINGH (Mathew, J.)
565
khas possession but that defendants 1 and 2 continued in
as before the compromise.
Before the compromise, Kishundeo Singh and the defei_idants
were in possession as tenants-in-common. The actual possession of
the defendants, of the plaint property, was also· the constructive
possession of Kishundeo Singh. So, when the lower appellate
Court said that the defendants continued in possession as before,
it can only mean that after the compromise the defendants were
in possession acknowledging the title of Kishundeo Singh. That
apart, defend11nts l and 2 had no case that they intended to possess
the property as· ·their own. It is clear from the compromise petition
that the defendants were permitted to occupy the plaint property
until the structure which was constructed in the property. was
removed by them. They, no doubft, remained in physical posses,
sion, but that was not with 11ny intention to possess the property
for themselves but because they were permitted to ramain . in
possession until the structure constructed by them was removed.
The only right which they claimed in the written statement was
that they were tenants under Kishundeo Singh by virtue of the
hukumnama executed by him in their favour. At no time they
asserted or claimed any right to remain in possession otherwise
than as tenant. As already stated, their case that Kishundeo Singh
put them in possession under the hukumnama was found against
by the Trial as well as the First Appellate Court. But that would
not in any way affect the permissive nature of their possession
after the compromise. Therefore, 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.4 7 of the Civil Procedure Code.
The second ground on which the High Court dismissed the
suit was that the plaint property had vested in the State of Bihar
under the Act a.nd the plaintiffs had; therefore, no right to proceed
with the suit and obtain a decree for possession. The suit was
instituted on March 7, 1953; die property vested in the State on
Jan.uary 26, 1955, under the Ac~ .. There is no dispute that the
plamt property answers the description of a homestead in s. 5 of
the Act.
The ~Ugh Court was of the view that since Kishundeo. Singh
was not m possession at the time die property vestC'.d in the State,
he was not entitled to retain possession of the plaint property under
s. 5 as a tenant under the State free of rent. We are of the opinion
that the constructive possession of Kishundeo Singh was sufficient
to enable him to retain possession as a tenant under the section. In
other words, on the date of the vesting of the property in the
Gove~ent, Kishundeo Singh was, for the purpose of s. S, in
possession of the plaint property. In this oontext, it may be noted
4-L761Sup,CIJ73
566
SUPJ!.EME COURT REPORTS
[1973] 3 S.C.R.
that tbe language of s. 5 is in sharp contrast with that of s. 6. The
A
·material pa rt of s. 5 states :
"5. Hcmesteads of inW!rmediaries to be retained by them
as tenants-( 1) With effect from the date of vesting, all
homesteads comprised in an estate or tenure and being in
the possession of, an intermediary on the date of such vesting
shall, subject to the provisions of sections 7 A and 7B, be
deemed to be settled by the State with such ill'lermediary and
he shall be entitled to retain possession of the land comprised
in such homesteads and to hold it as a tenant under the Staie
free of rent."
The relevant portion of s. 6 is in these terms :
"6. Certain other lands in khas possession of intermediaries to
be retained by them on payment of rent as raiyats having occupancy rights-( 1) On and from the date of vesting all lands used
B
c
for agricultural or horticultural
purposes, which were in khas
possession of an intermediary on the date of such vesting, .... "
Whereas s. 6 speaks of khas possession, s. 5 mentions only of
possession. We find that on the date of vesting of the plaint
D
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 the result we allow the appeal and set aside the decree of the
High Court and restore the decree passed by the lower appellate
E
Court, but we make no order as to costs.
G.C.
Appeal allowed.