# GURUCHARAN SINGH v. KAMLA SINGH & ORS - **Citation:** [1976] 1 S.C.R. 739 - **Court:** Supreme Court of India - **Decided:** 1976 - **Case number:** Civil Appeal No. 716 of 1968 - **Bench:** V. R. Krishna Iyer, A. C. GUPTA ANDS. MURTAZA FAzAL ALI - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurucharan-singh-v-kamla-singh-ors-6667 - **Pages:** 18 ## Headnote BUiar Land Reforms. Act, 19501 Sections 2K, 3, 4 and 6 and rule 7-Il of the Rules-Khas possession-Right to possess, if aniounts to possession in law. Section 3 of the Bihar Land Reforms. Act, 1950, transfers all interests in estates or tenures of a proprietor or t:'!nure-holder to the State as flrom a date notified under section 4. Section 6 carves out of this land mass .and leaves untouched, apait from raiyati holdings the bakasht lands in Khas possession . C of the 'intermediary' i.e., the prior full owner. D E F G H Several items of property were gifted by one Ram Badan Singh to bis_ two wives whose names were duly mutated in the revenue register. By further gift deeds and transfers the lands covered by the original gift deeds came to vest Ln the plaintiff and defendants, second party. They divided then1 as per a partition deed Exhibit 4/a dated October 30, 1952 whereby the suit lands fell· to the exc1usive share of the plaintiff along with some other' items while other properties were similarly allotted to defendants 2nd party. Despite this fact defendants, second party, sold the suit lands to the defendants first party alleging· an oral partition sometime before August 1952 and under l:'OVer of that case. committed trespass. Thereupon, a scramble for possession of these prcr perti:es and a proceeding under s. 145 Cr. P.C. ensued in which the defendants. first party, got their possession upheld by Magistrate"s order dated 5-4-1954. The plaintiff brought the present suit in April 1955 for a declaration of his title, for possession and mesne profits on the score that his exclusive pos9ession was by force taken away in July-August 1954 by defendants first party. The latte.r put forward the plea of prior oral partition and exclusive hostile· posse&- s.ion, tracing their claim through dtfendants-'>econd party. The courts of fact found against the defendants and decreed the suit, but in Letters Patent Appeal, the respondents. i.e., the defendants 1st party s.ucceed-ed on the ground that the plaintiff had! lost his title on account of the operation of' sections 3 ·and 4 of the Bihar Land Reforms Act. 1950. In this appeal filed on the basis of the special leaw granted by this Court, it was contended for the appellant that (i \ Section· 6 of the Act applied to the facts of the case and so there wasi no vesting of title in the Stat~ of the suit lands; (ii) This case, resting- on the Act, which had been on the statute book for several' years, had not been set up at the, earlier ·stages of the litigation at and should not have been permitted at the Letters Patent Appeal stage in the High c·oun for the first time; and (iii) The deed Of partition was not legally divestative of rights in view of the provisions of the Estates Partition Act, 1897, which empowered the Collector along to partition the preperties, which not having been done, the lands remained in co-ownership wherefore the possession of the defendants first party, was that of co-sharers. If that were so. the possesslon of one co.sharer was constructive possessioill of the other CO"'\Sharer and the plaintiff was thus 'in khaS possoosion under s. 2k of the Act and, on that basis, s. 6 of the Act saved the disputed properties from· vesting in the State. Rejecting the contentions exC'ept to, a small extent of modifying the decree, HELD : (i) It is well settled that a pure question of law going to the root of the ca"'e and based- on undisputed· or proven facts could be raised even before the Court of last resort, provided the opp06iie side was not taken by surprise or otherwise unfairly prejudiced [745·E·FJ Connecticut Fire Insurance Company v. Kavanach. [1892) A.C. 473. 480. r~ferred to. 740 SUPREME COURT REPORTS [J 976] 1 S.C.R. In the present case, the new plea springs from the common case of the parties and nothing which may work injustice by allowance of this contention has been made out. [746--A] (ii) The Magistrate did not direct possession of the B-Schedule properties to ## Text _Characters 0–39,897 of 57,632. This is a partial read: ask again with offset=39897 for what follows._ ) -)lo " ··~..., A B 739 GURUCHARAN SINGH v. KAMLA SINGH & ORS. September 9, 197 5. [V. R. KRISHNA IYER, A. C. GUPTA ANDS. MURTAZA FAzAL ALI, JJ.] BUiar Land Reforms. Act, 19501 Sections 2K, 3, 4 and 6 and rule 7-Il of the Rules-Khas possession-Right to possess, if aniounts to possession in law. Section 3 of the Bihar Land Reforms. Act, 1950, transfers all interests in estates or tenures of a proprietor or t:'!nure-holder to the State as flrom a date notified under section 4. Section 6 carves out of this land mass .and leaves untouched, apait from raiyati holdings the bakasht lands in Khas possession . C of the 'intermediary' i.e., the prior full owner. D E F G H Several items of property were gifted by one Ram Badan Singh to bis_ two wives whose names were duly mutated in the revenue register. By further gift deeds and transfers the lands covered by the original gift deeds came to vest Ln the plaintiff and defendants, second party. They divided then1 as per a partition deed Exhibit 4/a dated October 30, 1952 whereby the suit lands fell· to the exc1usive share of the plaintiff along with some other' items while other properties were similarly allotted to defendants 2nd party. Despite this fact defendants, second party, sold the suit lands to the defendants first party alleging· an oral partition sometime before August 1952 and under l:'OVer of that case. committed trespass. Thereupon, a scramble for possession of these prcr perti:es and a proceeding under s. 145 Cr. P.C. ensued in which the defendants. first party, got their possession upheld by Magistrate"s order dated 5-4-1954. The plaintiff brought the present suit in April 1955 for a declaration of his title, for possession and mesne profits on the score that his exclusive pos9ession was by force taken away in July-August 1954 by defendants first party. The latte.r put forward the plea of prior oral partition and exclusive hostile· posse&- s.ion, tracing their claim through dtfendants-'>econd party. The courts of fact found against the defendants and decreed the suit, but in Letters Patent Appeal, the respondents. i.e., the defendants 1st party s.ucceed-ed on the ground that the plaintiff had! lost his title on account of the operation of' sections 3 ·and 4 of the Bihar Land Reforms Act. 1950. In this appeal filed on the basis of the special leaw granted by this Court, it was contended for the appellant that (i \ Section· 6 of the Act applied to the facts of the case and so there wasi no vesting of title in the Stat~ of the suit lands; (ii) This case, resting- on the Act, which had been on the statute book for several' years, had not been set up at the, earlier ·stages of the litigation at and should not have been permitted at the Letters Patent Appeal stage in the High c·oun for the first time; and (iii) The deed Of partition was not legally divestative of rights in view of the provisions of the Estates Partition Act, 1897, which empowered the Collector along to partition the preperties, which not having been done, the lands remained in co-ownership wherefore the possession of the defendants first party, was that of co-sharers. If that were so. the possesslon of one co.sharer was constructive possessioill of the other CO"'\Sharer and the plaintiff was thus 'in khaS possoosion under s. 2k of the Act and, on that basis, s. 6 of the Act saved the disputed properties from· vesting in the State. Rejecting the contentions exC'ept to, a small extent of modifying the decree, HELD : (i) It is well settled that a pure question of law going to the root of the ca"'e and based- on undisputed· or proven facts could be raised even before the Court of last resort, provided the opp06iie side was not taken by surprise or otherwise unfairly prejudiced [745·E·FJ Connecticut Fire Insurance Company v. Kavanach. [1892) A.C. 473. 480. r~ferred to. 740 SUPREME COURT REPORTS [J 976] 1 S.C.R. In the present case, the new plea springs from the common case of the parties and nothing which may work injustice by allowance of this contention has been made out. [746--A] (ii) The Magistrate did not direct possession of the B-Schedule properties to be handed over to the defendants, first party, but declared their actual possession. He has done no wrong nor conferred any unjust advantage. There is no principle on which it could be held that these circumstances deprive a party of the benefit of his possession and or the dispossession of the plaintiff flowing from sr.6 of the Act. [746D-E] (iii) Neither the provisions of section 6(1) nor those of section 3.5 contain any prohibition against the civil court's power to decide the issue of title and right to. possession of the plaintiff and. as a necessary corollary,. the claim of actual possession set up by the defendants, first party. Nor can section 6(2) inferentially interdict the plenary power of the civil court. [746.A-B] A B (iv) The partition is valid, it divests title. it binds all; but, so far as land C: revenue liability is co·ncemcd, it relieves parties from the burden falling on the other sharer's land only if the exercise pres·cribed in the F..states Partition Act is gone through. The statute 'is a protective fiscal armour, not a monorail for division among co-owners to travel. Section 7 makes it clear. Not that Courts have lost power to decree partition nor that co-owners have become powerless to separate their sh.ares voluntarily but that land revenue shall not be prejudiced without the prl'Cedure under that Act being gone through. More clinching is the fact that the plaintiff has .here come. to Court on the sole case of partition by metes and bounds and has founded his relief not as co-sharer (). but as exclusive owner. [747-G-H, 748 Al Mahanth Rarn Bhushan Das v. Ranirati Kuer, 1965 Bihar L.J. 119, refrred to. (v) The purpose and purport of section 6(1) is to allow the large land holders to keep possession of' small areas which may be designated. as the priw vate or priv:ileged or mortgaged lands traditionally held directly and occasionally made-over to others, often servants or others, in the shape of lea5>es or mortE. gages. It is obvious that section 6(1) uses the word 'including' to permit enlargement of the meaning of khas possession for the limited purpose of that section, emphasising thereby that, but for such enlargement, the expression klzas possession excludes lands outstanding even with temporary lessees. It is perfectly plain, therefore, that khas possession has been used in the restricted sense of actual possession and to the small extent it had to be en1arged for giving relief to proprietors in respect of 'private', 'privileged' and mortgaged lands, inclusive expressions had to be employed. Khas possession is ,actual possessi'on. Constructive possession or possession in law is what is covered F by sub-clauses of section 6(1). It ·is not correct to say that posse&Sion is so wide as to include a mere right to possess. wheri the actual dominion over the property is held by one in hostility to the former. [751-AB, G-H, 752-C-E.] (vi) In Anglo-American jurisprudence also possession is actual possession and in a .limited set of cases, may -include constructive: possession, but when there is a bare right to possess bereft of any dominion or factum of control, it will be a strange legal travesty to assert that an owner is in possession merely bacuse he has a right to possess when a rival, in the teeth of owner's opposi· tion, is actually holding dominion and control over the land adversely, openly and continuously. This Court has rejected the theory that the possession of a tre.spasser was that of the o\.vner. [752 H, 753A, 754-D.] Surajnath Ahir v. Prithinath Singh, [1963] 3 S.C.R. 290, Rav1~ Ran Bijai Siflgh & Ors. v. Behari Singh @ Bar::andha Singll [1964] 3 S.C.R. 363 relied on. Brij Nandan .Singh v. Jamuno Prasad, A.LR. 1958 Pat. 589, referred to. (vii) It is undeniable that the plaintiff had title to the entire B Schedule properties as against defendants. first party, and second party. If defendants, first party, were not in possession, the plaintiff· would still be entitled to a dec:ree G H ~ 4 " ..... • • 4 .. ~ • ~ •:_.. A c GURCHARAN SINGH v. KAMLA SINGH (Krishna Iyer,!.) 741 for possession of the same. If neither is in possession, the presumption that the owner is in possession holds good and he_ is entitled' to that possession being restored to him. Therefore, the plaintiff is entitled to a decree for possession regarding the items of property covered by paragraph, 27 of the written statement filed on behalf of the contesting defendants, first party. The rights of the State, as against the plaintiff in regard these items of propert.y, will not in any manner be effected. [754H. 755-A-B] Observatidn : Prima fade section 4 (f) and (g) of the Act and rule 7-H of the Rules framed under the Act attract the jurisdiction ot the State and its re~nue authorities. In the present case, the defendants. first party, are rank trespassers and have n() equity in their favour. Section 4(f) declares that the Collectors shall be deemed to have taken charge of the estates and interests vested in the State. This means he has a public. duty to take charge of )ands vested in the State. Surely, a responsible public officer like the Collector, charged wi!h a duty of taking delivery of possessfon of lands which by virtue of the vesting the State is entitJed to take direct possession, will proceed to disposses the trespas.ser. In this case, defendants, first party. are trespassers and the plaintiff bi:ing out of the pale of section 6, the State is entitled to the direct possession of the suit lands. [756B, 755\J]).E] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 716 of 1968. Appeal by Special Leave from the Judgment and Order dated the D 2nd March, 1967 of the Patna High Court in Letters Patent Appeal No. 5 of 1962. E F {] H S. C. Mishra and U. P. Singh for the appellant. S. N. Prasad, A. K. Srivastava, M. s. Narasimhan and B. P. Singh for the respondents. The Judgment of the Court was delivered by KRISHNA IYER, J.-TI1is appeal, by special leave, turns substantially on the application of section 6 of the Bihar Land Reforms Act, 1950 (hereinafter called, the Act), to the case situation the facts having been decided concurrently a:nd finally in favour of the appellant. Still he lost at the stage of the Letters Patent Appeal, because a Division Bench of the High Court held that he had been robbed of his right to sue by Section 6 of the Act. We may set out the relevant facts briefly. Although a number of items of immovable property were involved in the suit, which was for ejectment on title, the lands now in dispute are bakasht lands in the 'B' Schedule to the plaint, for easy reference called suit lands. Regarding the rest the plaintiff's suit has been decreed. Several items of property were gifted by one Ram Badan Singh to his two wives whose names were duly mutated in the revenue register. The further course of the proprietary history takes us to the creation of a wakf and the office of mutawalli which are not relevant flo the controversy before us but are interesting when we remember that the donees were Hindus and yet they had executed a wakf and constituted themselves as mutawallis. This shows how community iife absorbs and blends jural concepts, overriding -religion in the creation of an inter-laced legal culture. This is by the way. 742 SUPREME COURT REPORTS [1976] [ S.C.R. We may now take up the thread at the point where by further gift deeds and transfers the lands covered by the original gift deeds came to vest in the plaintiff and defendants, second party. They divided them as per a partition deed E~bit 4/a dated October 30, 1952 whereby the suit lands fell to the exclusive share of the plaintiff, along with some other items while other properties were sintilarly allotted to defendants 2nd party. Undaunted by this fact defendants, second party, sold the suit lands to the defendants first ,party allegin& an oral partition sometime before August 1952 and under cover of that case, committed trespass. Thereupon, a scramble for possession of these properties and a proceeding under s. 145 Cr.P.C. ensued in which the defendants, first party, got their possession upheld by the Magistrate's prder dated 5.4.1954. Inevitably, the plaintiff brought the present suit in April 1955 for a declaration of his title, ~r possession and mesne profits on the score that his exclusive possession was by force taken away in July-August 1954 by defendants, first party. The latter put forward the plea of prior oral partition and exclusive hostile possession, tracing their claim through defendants-s,econd party. The courts of fact found against the defendants and decreed the suit as prayed for, but in Letters Patemt Appeal, the ,present contestingrespondents, i.e., the defendants 1st party, urged with success that the plaintiff had lost his title thanks to the operation of ss. 3 and 4 of the Act and could not salvage any interest under s. 6 thereof. The defeated plaintiff has come up to this. Court, as appellant, assailing the findings of the High Court mainly on three grounds : According to Shri S. C. Misra, learned counsel for the appellant, s. 6 of the Act applied to his case and so there was no vesting of title in the State of the suit lands. He further pressed that, any way, this case, resting on the Act, which had been on the statute book for several years, had not been set up at the earlier stages of the litigation and should not have been permitted at . the Letters Patent Appeal stage in the High Court for the first time. His third contention was that the deed of partition Exhibit 4 /a was not legally divestative of rights in view of the provisions of the Estates Partition Act, 1897 which, in his submission, empowered the Collector alone to_ partition the properties, which not having been done, the lands remained in co-ownership wherefore the possession of the defendants, first party, was that of co-sharers. If that were so, the possession of one co-sharer was constructive possession of the other co-sharer and the plaintiff was thus in khas possession under s. 2k of the Act and, on that basis, s. 6 of the Act saved the disputed properties from vesting in the State. All these three-fold contentions were sought to be repelled by counsel for the respondent and we proceed to examine them. We may as well mention here, but dilate on it later, that certain items out of the B-Schedule bakasht lands are, on the showing of defendants second party, not in their possession, although the plaintiff has averred,. in his pleading, dispossession of all the B-Schedule lands. The legal impact of this circumstance on s. 4(a) and the schemes of the Act has to be gauged, in the context of the relief claimed by the plaintiff and the eligibility of possessory benefits of the contesting defendants. A. "r- ' ti μ --~ c I> E F G H ___,,,. :. " ~· • ... .. ; "'"~ A B c D E F G H GURCHARAN SINGH v .. KAMLA SINGH (Krishna Iyer, J.) 7 43 The central issue obviously is the resolution of the competition between vesting of the suit lands in the State by virtue of ss. 3 and 4 a11d their exemption from such deprivation by the saving provision in s. 6 in favour of the plaintiff. A close-up of the profile of the land reform law would help us appreciate the purpose and pllOgramme of the statute and the meaning of the provision under construction. The project, as highlighted in the Preamble in grnndiose and in keeping with Part IV of the Constitution, but in actual implementat\ton drags its feet. Indeed. counsel 011 both sides were readily agreed only on one point, viz., that neither this Act nor the law setting a ceiling on land ownership slumbering on the statute book since 1962, has been seriously enforced. The Ninth Schedule to the Oonstitution can immunise a legislation from forensic challenge but what schedule can invigorate a half-inert Administration into quick implementation of welfare-oriented, urgently needed, radical legislation now lying mummified in the books? If the assertion of non-implementation of land reforms laws made at the bar were true, the Bihar State Government has much to answer for to 'We, the People of India' and to the stultified legislature whose 'reform' exercise remains in suspended amimation. In this very case, before the High Court, the Advocate General has appeared for the plaintiff-landowner and yet the State has nq> bestirred itself to appear and claim the suit lands. We are left in obscurity on the vital point, neither counsel nor the records throwing any light on whether the State has been given notice in the case in the High Court. The social transformation cherished by the Constitution involved re-ordering of the land system and a vigilant administration would have intervened in this 20-year-old litigation long ago and extinguished the private contest to the advantage of the State. The feudal will may, not unoften, furtively hide, in strategic positions may be. We may begin consideration of the merits of the rival cases by a broad projection of the Act. Its basic object is to extinguish the proprietary rights and transfer absolutely, and free from all private interests, such ownership to the State. The tillers are riot to be uprooted and so, they i.e., the raiyats and under-raiyats are to be settled on terms of fair rent. The Act, mak:iing a simplistic dischotomy sufficient for our study, thus absolutely vests in the State all lands, freed from all private rights (sec. 3) as from a date notified under}. 4, but carves out of this land mass and leaves untouched, apart from taiyati holdings, the bakasht lands in the khas possession of the 'intermediary' i.e., the prior full owner (sec. 6). Lands not falling within the saved category will be directly managed by the State (sec. 13), if need be, by ejecting trespassers if they are found in illegal occupation [sec. 4(g) ]. 'The valuable rights attached to or imbedded in lands, like trees, fisbe- . ries, minerals also go to the State. A seemingly bold legislation strokeof substantial land nationalisation will be reduced to pathetic futility if the flood-gates of evasion are kept aiar by plausible but diluted interpretation of s. 6 as urged by the landlords. The Court must suppress the mischief and advance the remedy. Indeed, if we may anticipate our conclusion, the pronouncements of this Court in Surajnath Ahir vc. 744 SUPREME COURT REPORTS [1976] 1 S.C.R. Prithinath Singh(1) and Ram Ran Bijai Singh & Ors. v. Behari Singh @ Bagandha Singh,(') bar and bolt the door of escape in a big way and counsel for the appellant has striven to impress on us the need to reconsider and distinguish that view because it is inconsistent with vintage jurisprudence and Ang\0-American concepts bearing on possession of an owner. Let us get down to an openheart surgery in a limited way to check upon the soundness of this cardinal submission. The consternation expressed by appellant's counsel that the High Court's interpretation of sec. 6 will create rights in rank trespassers and distort and defeat the right to possess enjoyed by Zamindars does not, by itself, disturb us. We are in a juridical province of agrarian reform. The creative legal ideas needed to effectuate this developmental plan are conceptually alien to the old land law and 'rural' jurisprudence, wearing as they do a radical contenamce. The Court, in the process of construction, must help the chariot of land reform move forward and sections 3 and ·6 are the vital wheels. Having regard to the significance of the State's presence even in private litigation bearing on eviction and the like, s. 4( ee) provides for notice to the State in certain classes of cases but the uresent suit and later proceedings are not covered by the tenn of s.-4 ( ee) and counsel on either side, when we enq)!ired, did not show interest in taking steps to implead the State or otherwise to give notice to it in the present appeal. We have to leave it at that. The consequence of non-impleader or absence of notice to the State will naturally be visited on the parties, in the sense that the State will not be bound by this adjudication and its rights vis-a-vis the plaintiff and the defendants, first party will remain unaffected. So also of other third parties on the suit lands. We have already adverted to the skeletal scheme of the Act, of vesting the lands in the State and saving in the hands of proprietors such lands as are in their khas possession, including certain categories spelt out in s.6 by settling them on fair rents under the State. So, the crucial concept of khas possession calls for judicial scrutiny rather closely so that loopholes for escape .through the meshes of s.6 mav not frustrate the land reform law itself. But what is legitimately due by way of legislative ju_s_tke to erstwhile proprietors should not be denied. With this and in vieW, the Legislature has definoo khru possession in s.2k which reads thus : "2. Definitions-In this Act, unless there is anything ~epugnant in the su] which served to extenuate the omission to urge the point earlier but hit the nail on the head when it held that it was well-settled that a pure question of law going to the root of the case and based on undisputed or proven facts could be raised even before the Court of last resort, provided the opposite side was not taken by surprise or otherwise unfairly prejudiced. Lord Watson, in Connecticut Fire Insurance Company v. Kavanach,(1) stated the law thus : "When a Question of law is raised for the first time in a Court of last resort upon the construction of a document or upan facts either- admitted or proved beyond controversy, it is not only competent but expedie.nt in the inter.est of justice to entertain the plea. The expediency of adoptmg that course may be doubted when the pica cannot .be disposed of without deciding nice questions o~ fact m ~on sidering which the Court of ultimate review JS placed m a much less advantageous position than the courts below. But their Lordships have no hesitation in holding that the course ought not in any case to be followed. unless the Court is satisfied that the evidence upon which they ac:e asked to decide establishes beyond doubt that the f~cts if fully investigated would have supported the new plea. (1) [1892] A. c. 473, 480. t7-L925SupC1ns 7 46 SUPREME .COURT REPORTS [1976) J S.C.R. We agree with the High Court that the new pica springs from the common case of the parties and nothing which may work injustice by allowance of this contention at the late stage of the Letters Patent Appeal has been made ciut to our satisfaction. Therefore, we proceed to consider the impact and applicability of s.6 of the Act to the circumstances of the present case. Counsel for the appellant, in his turn, in this Comt went a step further to p_ise two new. points not urged in the prior stage of the litigation. We have heard him but are not persuaded to agree with him. According to him, the defendants, first party, had stated in their written statement that their possession of the disputed items was base\l on the order of the Magistrate under s.145 Cr. P.C. That order having been found erroneous, no benefit <:ould accrue to the defendan!S. So stated, it is a little obscure and indeed the point itself is obscure. There was a proceeding under s.145 Cr. P.C. before the criminal court in view of the dispute regarding the claims '.o actual possession. In the order of the Magistrate, the oral partition relied on bv the defendants was held proved an\.l the subsequent deed of partition relied on by the plaintiff held not been acted upon. Counsel says that this led to the occupation by trespass of the suit properties. Since the Magistrate's order had led to· !his prejudicial consequence, it was not proper to permit the party to benefit by his own wron~ founded on an 'actus curiae'. We sec no force at all in this cont-ontion. The Magistrate did not direct possession of the B-Schedule properties to be handed over to the defendants. first party, but declared their actual possession. He has done no wrong nor conferred any unjust advantage. There is no principle on which it could be held that these circumstances deprive a party of the benefit of his possession and of the dispossession of the plaintiff flowing from s.6 of the Act; if any rights accrueU from a statutory provision, it could not b' withheld for the reasons urged by counsel for the appollant. The next new discovery in this Court turns on the absence of jurisdiction of the civil court to give relief when the substance of the matter falls within the spec'al jurisdiction of the I revenue authorities. Counsel submitted that this new point occurred to him on reflection and was being pressed by him because it had force. The plaintiff's prayer for declaration of title and for possession was negatived by the High Court in the light of s.6 of the Act wherein it was held that. be had no khas possession and his interests could not in any manner be save\i by that provision. lt was not a case of the defendant claiming or seeming any relief regarding possession but the plaintiff's title standing negatived. The suit itself was for ejcclment on litle and, sans title, ejectment could not be granted. The title of the plaintiff was sought to be rested on s.G at the Letters Patent Appeal level, but on a constr.uclion of th~t provi.sion th~ Cou~t held against him. In short, the High Court dtd i:othmg to mvesl!- gate into the possession of parties hut ~n· the admitted fact that t:he defendants,, first party, were in possess10n by trespass-the. plamt alleges this-the Court dismissed the suit, since s. 6 of the Act dtvested ,. ~- A 4 .. ll ,... c D E F G ll -~-" ' .. ·i" i ... ' _.)' '4 ~ -. A B c [} F .G H GURUCHARA.N SINGH V, KAMI:,A SINGH (Krishna Iyer,!.) 747 the plaintiff of his quondam proprietorship. Moreover, there. is nothing in s. 35 of the Act, relied on by counsel to substantiate l11s submission, depriving the civil court of its jurisdiction to· decide questions of declaration of title . and . consequential relief . of possession. Section 35 deals with d11Ierent types of sutts. Indeed, s.6(1) with which we are concerned, also contains no mhibition against the civil court's power to decide Lli.e issue of title and right to possession of the plaintiff and, as a nec.:ssary corollary, the claim of actual possession set up ·by the defe1idants, first partl:'. No( can s. 6(2)' inferentially interdict the plenary power of the clVll court In short,· the plea of bar of the rcsuiction is specious and fails. Another peripheral issue invoked before the High Court and here to undo the defendant's claim of exclusive possession and consequential absence of khas possession in the plaintiff was based . on the provisions of the Estates Partition Act, 1897. Shri Misra propounded what, unfortunately, strikes us as a fallacious proposition. He went to the extreme extent of maintaining that a partition of lands, to be valid, should be in terms of the Estate~ Partition Act, 1897 and, until then, a deed or decree effecting division by m.~tes and bounds does not legally operate. If so, Ex.4/a remains an arrangement for separate enjoyment between co-owners, title continuing joint, The follow-up of this reasoning is that the suit properties arc in the possession of co-shares viz., defendants first party (derived from defendants,, second party) and possession of one co-sharer is posse>Sion of 111e other. The plaintiff thus is in constructive possession. good enough to bring him into the rescue shelter provided by s. 6 of the Act. He relied on the ruling ii1 Malzanth Ram Blwshan Das v. Ramrati Kuer(') and the various provisions of the Estates partition Act to make out his thesis. The support derived from the decision is mc:rc apparent than real because, as noticed by the High Court, the suit there was not, unlike here, brought on the foot of a partition and the ruling laid down that any 'amicable division' among co-sharers would not bind the Revenue until the partition was efiectcd as visualised under the Estates Partition Act. . Shri Misra's study of the provisions of the said Act is free from confusion, save in one fundamental rcsi:cct.. That one point, missed by him, is that the whole statutory project 1s to protect the land revenue, not to afiect title. The partition is valid, it divests title, it binds >ll; but, so far as land revenue liability is concerned, it relieves parties from the burden fallin" on the other sharer's I.and only if the exercise prescribed in the Estat~s Partition Act is gone through. The statute is a protective fiscal "rmour., not a mono-rail for division among co-owners to travel. Section 7 makes it clear. Not that Courts have lost power to decree partition nor that co-owners have bec0111e impotent to separate their shares voluntarily but that land rev~nue shall not be prejudiced without the procedure unde~ t~iat Act bemg gone through. More clinching is the fact that the plarn!Jff bas here come to Court on the sole case of partition by metes and bounds and has founded his relief not as co-sharer (I) 1965 Bihar L. J. 119. 7 48 SUPREME COURT REPORTS [1976] 1 S.C.R. but as exclusiv.e owner. Seeming legal ingenuity has small chance in court and to miss the point and pertinence of a measure is to travel to a wrong destination. Now we come to the master problem presented at learned length by Shri S. C. Misra and deferentially. listened to by us to discover its substanre and the solution. 'A blind understanding' has been the result, and as his argmnent concluded we 'came out by the same door as in (we) went'. It behoves us to >el out counsel's submission and the setting of the Act to ·~xplain why we do not agree with him and what we regard is the master-key to the construction of section 6. We must first appreciate that it is a land reform law we are interpreting and not just an ordinary statute. The social-economic thrust of the law in this area should not be retarded by judicial construction but filliped by the legal process, without departing from the plain meaning and objective of the Act. We may delineate the content and contours of section 6 with which we are directly concerned in the present case. The preamble to the Act, which sheds skylight on the statute, reads : "An Act to provide for the transference to the State of the interests of proprietors and tenure-holders in land and of the mortgages and lessees of such interests including inc terests in trees, forests, fishries, jalkars, ferries, hats,, ba.zars, mines and minerals and to provide for the constitution of a Land Commission for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the State Government consequent upon such transference and for other matters connected therewith". From this it is fairly clear that the legislative goal is to liquidate all intermediary interests and vest the ultimate ownership on land in the State. In this sense, the import of the Act is a tepid measure of land nationalisation. Section 3 in umnistakable language ves·ts the absolute proprietorship in all the lands in Bihar in the State, the succeeding: A B c D E sections spel! out details. F We may here read sections 3, 4(g) and 6(1) of the Act: "3. Notification vesting an estate or tenure in the State- (1 ) The State Govermnent may, from time to time, by notification declar,, that the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State. (2) The notification referred to in sub-section (1) shall be published in the Official Gazette. A copy of such notification shall· be sent by registered post, with acknowledgement . due, to the proprietor of the estate recorded in the general registers of . revenue-payingi or revenue-free lands maintained under the Land Registration Act, 1876 (Ben. Act 7 of 1876), of'in case where the estate is not entered in G H "' I •( ,., t ~~ • "' ' A B c D E F G H GURUCHARAN SINGH v. KAMLA SINGH (Krishna Iyer,!.) 749 any such registers and in the case of tenure-holders, to the proprietor of the estate or to the tenureholder of the t~nure ii the Collector is in possession of a list of such propnetors or l'enure-holders together with their addresses, and such posting shall be dee!I!~d to be sufficient servi.ce o! th~ notitication on such propnetor or,, where such notification 1s sent by post to the tenure-holder, on such tenure-holder for the purposes of this Act. ( 3) The publication of such notification, in the Official Gazette shall be conclusive evidence of the notice of the declaration to such proprietors or tenure-holders whose interests are affected by the notification." "4. Consequences of the vesting of an estate or tenure in the State-Notwithstartding anything contained in any other law for the time being in force or in any contract, on the publication of the notification under sub-section ( 1) of section 3 or sub-section (1) or (2) of section 3A the following consequences shall ensue, namely : ** ** •• ** (g) Where by reason of the vesting of any estate or tenure or any part thereof in the State under provision of this Act, the Collector is of opinion that the State is entitled to the direct possession of any property he shall, by an order in writing served in the prescribed manner on the person in possession of such property, require him to deliver possession thereof to the State or show cause, if auy, against the order within .a time to be specified therein and if such person fails to deliver possession or show cause or if the Collector rejects any cause shown by such person after giving him a reasonable opportunity of being heard, the Collector shall for reasons to ~ recorded,, take or cause to be taken such steps or use or cause to be used such force as, in his opinion, may be necessary for securing compliance with the order or preventing a breach of the peace : Provided that if the order under clause (g) is passed by an officer below the rank of the Collector of a district, an appeal shall, if preferred within sixty days of the order,, lie to the Collector of the district and the Collector shall dispose of the appeal in accordance with the prescribed procedure." "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 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 lands let out under a lease for a term of years or under a lease from year 750 SUPREME COURT REPORTS [1976] ] S.C.R. to year, referred to in section 116 of the Bihar Tenancy Act, 1885 (8 of 1885), (ii) landlord's privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or .oral,, for a period of one year or less, referred to in section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908), ( b) lands used for agricultural or horticultural purposes 3i1d held in the ,direct possession of a temporary lease 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 stock, and ( c) lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on !he redemption of which the intermediary is entitled to recover khas possession thereof; shall, subject to the provisions of section 7 A and 7B 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 occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector A B c Ll in the prescribed manner : ·E Provided that nothing contained in this sub-section shall entitle an intermediary to retain poss~ssion of any naukarana land or any land recorded as chaukidari or goraiti jagir or mafi goraiti in the record-of-rights or any other land in respect of which occupancy right has already accrued to a raiyat before the date of vesting. Explanation.-For the purposes of this sub-section, 'naukarana land' means land held as a grant burdened with service in lieu of rent or held simply in lien of wages for scrvicis to be rendered." F Although there is a blanket vesting of proprietorship in all the lands G in the State, the legislation is careful, in this initial stage of 'agrarian reform, not to be too deprivatory of the cultivating possession of those -c who have been tilling the land for Jong. Therefore,. while the consequence of the vesting is stated to be annihilation of all interests,. encum- -'.~ brances and the like in the land, certain special categories of rights are saved. Thus, raiyats and under-raiyats are not dispossessed and their rights are preserved. The full proprietor's khas possession is H if so .not disturbed. Certainly, the large landhold·~rs, whose lands have for longi been under tenancy, lose their lands to the State by virtue of the vesting operation (of course, compensation is provided for). , .. _,,..~ ~ # ·Jt 1" "'! >'4o '; .... ~ A B c D E F G H GURUCHARAN SINGH v. KAMLj\. SINGH (Krishna Iyer,!.) 751 Nevertheless, the reform Jaw concedes the continuance of a limited species of interests in f;wour o[ those Zamindars. The three-fold class of lands is brought into the saving bucket by includinl'J them in the khas possession of the proprietors. They are legislatively included in khas possession by an extended itemisation in section 6(1).