# RAM RAN BIJAI SINGH AND OTHERS v. BEHARI SINGH ALIAS BAGANDHA SINGH

- **Citation:** [1964] 3 S.C.R. 363
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta, J.C. Shah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-ran-bijai-singh-and-others-v-behari-singh-alias-bagandha-singh-2899
- **Pages:** 19

## Headnote

Land Reform•-LandR
mortgaged-After
redomption
posse•sion soWJht but re.fused by-Per.<onB in poBseBBion vacateOlaim of occupancy right-Right by adverse possession-Property
vesting in state-OonBtruction
of Statute-Suit lands if in
"khaB poBsession"-Bihar Land Reforms Act, 1950 (ZXX of
1950), ... 2. (k), 3 (1), 4,6-lndian Limitation Act, 1908 (IX
of 1908), art. 144.
The appellants' ancestors had executed a registered rehan
bond of the suit land along with other lands.
In 1941 the
appellants paid off the amount due
on the rehan bond and
entered satisfaction on the bond. On the redemption of the
bond the appellants sought to get possession of the suit land.
These lands were in the possession of Respondents 1 and 2
who refused to surrender possession claiming title on the basis
9f their being entitled to occupancy rights in the lands,
J96J
BceA'h" lAl
••
St•I• of U. P.
R•tliubar D~1ol /,
Jiii
J;ril ZS.
1963
Ram R•1i 'Bi)ai ,iingh
.•.
bihari Sirtgll Afiu
.B0:gontl~B \'ingh
36!l, SUPRENIE COURT RBPORTS [1964] VOL.
,
The appellants then filed a suit alleging that the suit
lands were uraiti lands in regard to which they were mtJlih,
that respondents I and 2 were trespl"ers who had no occupancy
rights and
]>rayed
for
declaration of title, recovery of
possession and
mesne profits. Apart from their claim that
they were raiyati tenants entitled to occupancy rights respondents 1 and 2 contended that the suit was~barred by limitation
by reason of adverse possession.
The Trial Court found all the substantial issues in favour
of the present appellants, rejected the plea of adverse possession
and limitation raised by the· respondents and decreed the
suit as prayed for.
Thereupon the
present respondents
filed an appeal before the High
Court. While the appeal,
was pending the nihar Land Reforms Act, 1950, came into
force.
Section 3 of this Act p ovided for
the vesting of the
estates or tenures of proprietors in the State. Section 6
however contained certain savings.
When the appeal came
for hearing in 1957 the respondents contended that by reason of
the Government Notification in 1955 the suit lands had vested
in the State under s. 3 of the Act and since the suit was in
substance one for ejectment based on the title of the present
appellants and the appellants having lo•t their title by reason
of the vesting the appeal should be dismissed. The High
Court found that the present a ppeliants were entitled to get a
declaration of title and to get mesne profits up to the end uf
December,
195~. But the suit lands having vested in the
State the decree for possessii>n given in favour of the appellants
by the trial court was set aside. The present appeal is against
the decree of the High Court setting aside the decree for
possession passed by the trial court filed with a certilicate
granted by the High Court.
On behalf of the appellants it was
contended before
this Court that in view of the concurrent findings by the
courts below that the lands were the uraiti land of the appel·
!ants they would not vest in the State because of the saving
in s. 6 of the Act. It was their ca!C that they should i>e
deemed to have been in "khas possession" of the lands under
s. 6 (1) (c). Relying on the Full Bench deci~lon of the ~alna
High Court in Malianth Sukhd<a DatJ v. Ka•h• Pr"""'1 f'twar,,
A.I.R. 1958 Pat. 630, they contended that tho
e~prc11ion
"khas possession"
had to be understoo J a1i meaning
11.ot
merely actual physical possession as defined in s. 2. (k) ?f
the Act but also cases where a person
was constructively in
possession
the physical possession being in some other who
held the property derivatively from him or in trust for him
3 s.c.R..
SUPREME COURT REPORTS
365
or on his behalf or with his permission-express or implied.
Relying on a decision of the Allahabad High Court in I.L.•.
1933 All. 97 it was contended.that where a mortgagee continued
in possession of property usufructually mortgaged to him,
even after the mortgage was paid and discharged the propert

## Text

3 S.C.R.
SUPRE~E COURT REPORTS
363
We did not hear the learned counsel on the
merits of the case under s. 504 of the Code and
accept the finding of the court• below.
In view 'of the considerations mentioned, no
interference is possible with the acquittal of the
respondent No. 2 on merits. It is, therefore, not
necessary to decide the first question raised for the
appellant.
We accordingly dismiss the appeal.
RAM RAN BIJAI SINGH AND OTHERS
v.
BEHAR! SINGH ALIAS BAGANDHA SINGH
(P. B. GAJENDRAGADKAR, K. N. WANCHOO,
K. C. DAS GUPTA, J.C. SHAH and
N. RAJAGOPALA AYYANGAR JJ.)
Land Reform•-LandR
mortgaged-After
redomption
posse•sion soWJht but re.fused by-Per.<onB in poBseBBion vacateOlaim of occupancy right-Right by adverse possession-Property
vesting in state-OonBtruction
of Statute-Suit lands if in
"khaB poBsession"-Bihar Land Reforms Act, 1950 (ZXX of
1950), ... 2. (k), 3 (1), 4,6-lndian Limitation Act, 1908 (IX
of 1908), art. 144.
The appellants' ancestors had executed a registered rehan
bond of the suit land along with other lands.
In 1941 the
appellants paid off the amount due
on the rehan bond and
entered satisfaction on the bond. On the redemption of the
bond the appellants sought to get possession of the suit land.
These lands were in the possession of Respondents 1 and 2
who refused to surrender possession claiming title on the basis
9f their being entitled to occupancy rights in the lands,
J96J
BceA'h" lAl
••
St•I• of U. P.
R•tliubar D~1ol /,
Jiii
J;ril ZS.
1963
Ram R•1i 'Bi)ai ,iingh
.•.
bihari Sirtgll Afiu
.B0:gontl~B \'ingh
36!l, SUPRENIE COURT RBPORTS [1964] VOL.
,
The appellants then filed a suit alleging that the suit
lands were uraiti lands in regard to which they were mtJlih,
that respondents I and 2 were trespl"ers who had no occupancy
rights and
]>rayed
for
declaration of title, recovery of
possession and
mesne profits. Apart from their claim that
they were raiyati tenants entitled to occupancy rights respondents 1 and 2 contended that the suit was~barred by limitation
by reason of adverse possession.
The Trial Court found all the substantial issues in favour
of the present appellants, rejected the plea of adverse possession
and limitation raised by the· respondents and decreed the
suit as prayed for.
Thereupon the
present respondents
filed an appeal before the High
Court. While the appeal,
was pending the nihar Land Reforms Act, 1950, came into
force.
Section 3 of this Act p ovided for
the vesting of the
estates or tenures of proprietors in the State. Section 6
however contained certain savings.
When the appeal came
for hearing in 1957 the respondents contended that by reason of
the Government Notification in 1955 the suit lands had vested
in the State under s. 3 of the Act and since the suit was in
substance one for ejectment based on the title of the present
appellants and the appellants having lo•t their title by reason
of the vesting the appeal should be dismissed. The High
Court found that the present a ppeliants were entitled to get a
declaration of title and to get mesne profits up to the end uf
December,
195~. But the suit lands having vested in the
State the decree for possessii>n given in favour of the appellants
by the trial court was set aside. The present appeal is against
the decree of the High Court setting aside the decree for
possession passed by the trial court filed with a certilicate
granted by the High Court.
On behalf of the appellants it was
contended before
this Court that in view of the concurrent findings by the
courts below that the lands were the uraiti land of the appel·
!ants they would not vest in the State because of the saving
in s. 6 of the Act. It was their ca!C that they should i>e
deemed to have been in "khas possession" of the lands under
s. 6 (1) (c). Relying on the Full Bench deci~lon of the ~alna
High Court in Malianth Sukhd<a DatJ v. Ka•h• Pr"""'1 f'twar,,
A.I.R. 1958 Pat. 630, they contended that tho
e~prc11ion
"khas possession"
had to be understoo J a1i meaning
11.ot
merely actual physical possession as defined in s. 2. (k) ?f
the Act but also cases where a person
was constructively in
possession
the physical possession being in some other who
held the property derivatively from him or in trust for him
3 s.c.R..
SUPREME COURT REPORTS
365
or on his behalf or with his permission-express or implied.
Relying on a decision of the Allahabad High Court in I.L.•.
1933 All. 97 it was contended.that where a mortgagee continued
in possession of property usufructually mortgaged to him,
even after the mortgage was paid and discharged the property
remained in the "Khas Possession" of the mortgagor.
The
re•pondents however contended that this was not a ca•e of a
mortgagee remaining in possession after payment of the debt
without anything more but of tenants who claimed the right
to remain in poosession of the property by asserting a title
which wa• as much against the mortgage as against
the
mortgagor.
Held that the possession of respondents I and 2 in the
present appeal was in their own
right and adverse to the
appellants, even on the case with which the appellanto themselves come to the court.
It was on the basis of their possession
being wrongfu!
that a claim was made against them for mesne profits. 'In
the above circumstances it is not possible for the appellants
to contend that these tenants were in posse8'ion of the property
on behalf of the mortgagor and in the character of their rights
being derived from_ the mortgagor. Section 6 (I} (c) cannot
in terms, therefore, apply •ince the
mortgagor-mortgagee
relationship did not subsist on January 1, 1955.
C1vIL APPELLATE JURISDICTION : Civil Appeal
No. 195of1961.
Appeal from the judgment and decree dated
September 3, 1957, of the Patna High Court in
Appeal from original decree No. 42 of 1948.
Sarjoo Pra&ad and Mohan Behari Lal for the
appellant.
·
A. V. Viawanatha Sastri and D. Goburdhtm,
for the respondents Nos. l to 3 and 5.
1963. April 25. The Judgment o( the Court
was delivered by
AYYANGAH J.-The proper construction of the
vesting sections of the Bihar Land Reforms Act, 1950
1§63
Ram' Ran Bijai "J'ing_h
Y.
B1h•ri Sinth At:aj
Ba,andlu .\"i~th .
A»•tor /.
]Jf 3
Rem Ran Bijai Singh
..
B1h•ri Singh Ali•s
B•it1ndha Sinth
Ayy•ntar J.
366 SUPREME COURT REPORTS [1964j vo:L.
(hereinafter called the Act), and in particular the
scope of s. 6 thereof is the principal point that arises
in this appeal which is before us on a certificate of
fitness granted under Art. 133(1) by the High Court
of Patna.
The plaintiffs are the appellants before us. The
subject matter of the suit is a piece ofland of about 14
bighas and 5 kathas in khata No. 741 in mauza Chaugain. The relief claimed in the suit was a declaration
that the land referred to was the zeraiti land of the
plaintiffs and that the persons who were impleaded as
the defendants 1st and 2nd parties had no right or title
thereto and for recovery of possession of the said
land by dispossessing the defendants who were in
actual possession thereof.
There was also a claim to
a decree for mesne profits for three years before the
suit and for an enquiry intp future
p~ofits under
0. XX. r. 12 C. P. Code. We shall now state a few
facts which are necessary to understand the contentions which have been urged in this appeal. The
material allegations, in the plaint were these: The
plaintiffs' ancestors had executed a registered rehan
bond on October 28, 1897 of lands including those
now in suit, in favour of the ancestors of the persons
who were impleaded as defendants 3rd parties. During the subsistence of this mortgage the plaintiffs'
ancestors executed another registered
rehan bond
in June, 1907 in favour of persons who were the
ancestors of the persons im pleaded as defendants
4th parties, a portion of the mortgage money being
left with these second mortgagees to enable "them to
redeem the earlier mortgage. ·This redemption was
effected and the defendants 4th party got into possession of the entirety of the property mortgaged to
them. On June 8, 1941, the plaintiffs paid off the
amount due on the rehan bond of 1907 and entered
satisfaction on the bond making an endorsement
thereon.
On such redemption the plaintiffs obtained
possession of a portion of the lands under mortgage
..
3 S.C.R.
SUPREME couar REPORTS
:167
but they could not obtain possession of the lands in
suit.
These lands were in the possession of the defendants lst and 2nd parties who claimed title on the
basis of their being ent'tled to occupancy rights in the
lands and they refused to surrender actual possession
of the land to the plaintiffs. They had asserted that
the suit lands were not zeraiti lands in regard to
which the plaintiff as maliks would be entitled to
'khas possession', but were raiyat-lands from which
they, the tenants in cultivation could not be evicted.
On this claim being made and resistance offered to
the plaintiffs taking khas possession, the present suit
was filed for the reliefs already set out.
The defendants 3rd and 4th parties who were
the representatives of the mortgages under the rehan
bonds of 1897 and 1907 hardly came into the picture
as their claims under their mortgages have long ago
been satisfied.
The contest was therefore limited to
the tenant-defendants---<lefendants 1st and 2nd parties
and of these, it is sufficient to confine attention to the
defendant 2nd parties who are in actual possession
of the lands at the date of the suit. It need hardly
be mentioned that by their written statement these
defendants questioned the tenure of the lands, and
asserted their rights to remain in possession despite
the discharge by the payment of the rehan of 1907.
There were several issues raised which reflected
these pleadings. But what we are now concerned
with are the issues which relate to the following: (1)
Was the suit-land zeraiti land as claimed by the
plaintiffs or was it raiyati-land as pleaded by the
contesting defendants, (2) When did the defendants
1st and 2nd parties first come into possession and
cultivation of the land. It was the case of the defendants that they had been in possession and occupation
of the land as tenants long before the rehan of 1897even 30 years earlier, whereas it was the case of the
plaintiffs that they were inducted to the land for
lff!
R•m Bo Bijai S1nzlr
••
B1h1ri SU.,h AJ;,s
Bag•odlu. Sinzh
An••1er J ·
1'63
Ram Ron Bijai_ Singh
,
V;. .
Behari fingh Alitt.1
B1g01Ulha;Singh
illl8
SUPREME COURT REPORTS [1964] vot.
the first time as tenants of the mortgagees under the
first rehan of 1897 and that they were originally
brought in as tenants for a term of 7 years which
expired in or about 1912-13, (3) Had the plaintiffs
lost title to the land and their suit for recovery thereof barred by limitation by reason of the contesting
defendants having perfected their title by adverse
possession?
The contesting defendants put forward
a claim that they had perfected their title by adverse
possession for over the statut.ory period of 12 years
under Art. 144 of the Limitation Act and the point
in controversy was when the period of this adverse
possession started and whether computed on that
footing the suit was barred by limitation.
A large mass of documentary and oral evidence
was led by the parties and this was the subject of
elaborate consideration by the learned trial Judge.
The findings recorded by him were: ( 1) that the land
was the zeraiti land of the plaintiffs and had been in
their acutal possession and not in the possession o!
any tenants of theirs at the date of the 1st rehan in
1897. This necessarily meant the rejection of the
case put forward by the defendants that their predeccs
sors were in occupation of the lands even before the
rehan of 1897, (2) the defendants came into possession of the land under a lease deed executed about the
year 1906 for a term of years and that that lease deed
expired in 1912-13 and that thereafter they continued
as tenants of zeraiti land and could not, therefore,
claim any right of occupancy in the land, (3) The
defendants 2nd party who were in actual occupation
were, no doubt, in possession of the suit lands under
a claim to hold them on their own behalf but their
possession could not be adverse to the plaintiffs until
the latter got the right to resume possession which
was only in June 1941 when they paid and discharged the amount due under the mortgage and so
obtained the right to possession.
As the suit was
brought within 12 years from that date it was within
3 S.C.R.
SUPREME COURT REPORTS
369
time.
On these findings the learned trial Judge, by
his judgment dated October 10, 194 7, decreed the
suit, as prayed for.
The contesting defendants-defendants 2nd
party filed an appeal to the High Court challenging
these findings. Pending the appeal they applied for and
obtained stay of delivery of possession and by virtue
of the order the defendants 2nd party continued to
remain in possession. While the appeal was pending
the Bihar Land Reforms Act (Act XXX of 1950) was
enacted and it came into force on September 25, 1950.
Section 3 ( 1) of the Act enacted :
"The State Government mav, from time to time
by notification, declare that the estates or
tenures of a proprietor or tenure-holder, specified in the notification, have passed to and
become vested in the State."
It was common ground that the plaintiffs were
"proprietors" within that Act. Under a notification
published under s. 3 (I) of the Act the plaintiffs'
estate became vested, as and from January 1, 1955,
in the State. The legal effect of a notification under
s. 3 (I) is set out in s. 4 which enacts:
"4. Notwithstanding 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, the
following consequences shall ensue, namely:-
(a) such estate 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 ............. ..
as also his intere~ts in all sub-soil. .......... .
shall, with effect from the date of vesting,
vest absolutely in the State free from all
196!1
Rmn ll4n Bijai Singh
••
Beht11i Singh .dliat
Bagandh.a Singlt
Ayyangar /,
l96J
Rae R .. Bijoi Sin1h
••
Bihari ~ingla 4lio.s
Bagan,ha Sin1A
.(i.)'411gar J •.
370 SUPREME COURT REPORTS [1964] :VOL ..
encumbrances and such proprietor or
tenure-holder shall cease·to have any interests in such estate or tenure, other than the
interests expressly saved by or under the
provisions of this Act."
The rest of the section is not material. The
Act, however, contains in s. 6 a saving as to certain
lands of the proprietor or tenure-holder but to this we
shall refer later. .
The appeal came on for hearing before the
High Court in September, 1957. At that stage
learned Counsel for the tenant-defendants who were
the appellants before the High Court, raised a plea
that the suit which was in substance one for ejectment based on the title of the plaintiffs should fail
and be dismissed because the plaintiffs had lost their
title to the property which vested in the State by
virtue of the notification under s. 3 of the Act with
the consequence specified in s. 4.
This was contested by the learned Cou.nse I for the plaintiffs who
submitted that the Court could not take notice of the.
legislation which came into force during the pendency
of the appeal but that the Court should decide on the
rights of parties with reference to the law as it stood
at the date of the suit. The learned Jud:;:es, however
rejected this last contention and held that the rights
of the parties had to be decided on the law as it
existed on the date of their judgment and so the
effect of the Act on t:1e title 0f the plaintiffs had to
be considered before the relief granted by the trial
Judge could be confirmed.
Apparently beyond this
general submission whether <> court. particularly a
court of appeal, should or should not take into
account the effect of a change in the law subsequent
to the institution of the suit, ·no attempt was made by
Counsel for the plaintiffs to tanvass before the High
Court that even if the Act could be taken notice of
the rights of the parties determined on that basis.
3 S.C.R.
SUPREME COURT REPORTS
371
Still on a proper construction of that Act the rights
· of the plaintiffs to the reliefs granted by the trial
Judge remained unaffected which, as we shall point
out later, is the argument pressed upon us.
There is one other matter to be noticed. It
would be seen that the plaintiffs had made a claim
for a declaration regarding the zeraiti character of
the land. They had claimed mesne profits for three
years before the suit which had been granted and
moreover they had been granted the relief of an
inquiry into mesne profits for the period subsequent
to the suit up to 31. 12. 1954 even onthe footing that
the estate vested in the State as and from January l,
1955. The right of the plaintiffs to retain these
reliefs depended upon the correctness of the Court's
decision regarding the tenure of the land.
Counsel for the tenant-defendants canvassed
before the High Court the correctness of the findings
recorded by the trial Judge regarding the zeraiti
character of the land and the further finding as
regards the date from which they were in possession
and cultivation of the lands and the nature and
character of their possession. The learned Judges
therefore examined the oral and documentary evi.
dence bearing upon these points and arrived at the
same conclusion as the learned trial Judge.
Section 4 ( ee) of the Act enacts :
" ........ The State Government may within
three months of the service of the notice apply
to the Court to be added, and shall thereupon
be added, as a party thereto and shall be
entitled to conduct or defend such suit or
proceedings, as the case may be; .................. "
Pursuant to this provision notice was given to the
State Government but no appearance was made on
its behalf .. Counsel for the State, however, appeared
1963
R• &n Bii•i Sinth
••
Bihari Singh Alia
Ba1andha Singh
.4nangar .1.
l/lcn. Ran Bijlli Yingh
••
B1Mri Yingh 4lia
Baa.IJIU/lw SU.1h ·
.,w. .. ,., /, -
372 SUPREME COURT REPORTS[l964] VOL.
at the hearing of the appeal and prayed that a decree ·
may be passed in favour of the State, for possession
of the suit-lands ori the basis that the same had vested
in the State under s. 4 (a) of the Act. The iearned
Judges, however, declined this request for the reason
that the State had not been diligent in acting upon
the notice served upon them as required by the Act
and not entering appearance within the time limited
therefor.
A decree for possession in favour of the
State thus having beeri refused, the learned Judges
modified the decree. of the learned trial Judges in
these terms :
"The plaintiffs shall be entitled to a decree
for a declaration of their title· to the effect
that the lands in suit are the prop.rietors' private
lands belonging to the plaintiffs and that they
are entitled to mesne profits for the years claimed and also up to the 31st December, 1954,
the plaintiffs' estate having vested in the State
of Bihar on 1.1.55, and the decree for possession
is set aside.
The amount of mesne ·profits
shall
be
ascertained
in
a
subsequent
proceedings."
It is this decree which refused them possession that
is challenged by the plaintiffs in the appeal before
us.
Mr. Sarjoo Pras.ad who appeared for the
appellant, did not contest the legality or propriety of
the course adopted by the learned Judges of the
High Court in considering the title. of the plaintiffs
and their claim to the reliefs prayed for in the suit
with reference to the provisions of the Act.
His
contention, however, was that on the very terms of
the Act the plaintiffs were entitled to retain the
decree for possession gran.ted by the trial court. His
argument was shortly as
follows : In view of the
concurrent findings that the lands were ,the zeraiti
•
3 S.C.R.
SUPREME COURT REPORTS
373
'
lands of the plaintiffs, they would not vest in the State
Government because of the saving ins. 6 of the Act
which excepts from the operation of s. 4 such lands
in the situation of those now in suit. He, however,
conceded that if the exception created by s. 6 did
not, for any reason, apply, the vesting in the State
under s. 4 could not be resisted with the result that
the plaintiffs could not have a decree for possession.
It becomes, therefore, necessary to read s. 6 to ascertain its proper scope.
That section runs, to quote
only what is relevant for the present purpo~e :
"6. (l) On and from the date of vesting, all
lands used for agricultural or horticultural
purposes, which were in khas possession of a
proprietor or tenure·holder on the date of such
vesting, including-
(a) (i) proprietors' private lands let out
under a lease for a term of years or
under a lease from year to year, refer.
red to in section
116 of the Bihar
Tenancy Act, 1885,
(ii) landlords 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, 190,8,
(b) Lands used for agricultural or. horticultural purposes and held in the direct
possession oi a temporary I eases 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
l96S
Ram &m Bijai Sinth
.•.
Behari Singh A.liar
Ba1andlra Sill/IA
A,,,.., •. J.
196J
Ram Ran Bija Sinjh
.v.
BJr"ri ~iiaglt. ~lias
Bogandha Sinth
Ayy"a~gai J.
· 374 SUPREME COURT REPORTS (1964] VOL.
(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 subject to the prov1s10ns of sedions 7 A
& 7B, be deemed to be settled by the State
with such proprietor or tenure holder, as the
case may be, and such proprietor or tenure
holder shall be entitled to retain posses1ion
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 in the prescribed manner;''
It will be noticed that it was only lands in the "khas
possession" of the proprietor that were saved from
vesting in possession in the State under s. 6.
The
expression 'khas possession' is defined in s .. 2 (k)
thus:
"'khas possession'
used with reference to the
possession of a proprietor or tenure holder of
any land used for agricultural or horticultural
purposes means the possession of such proprietor
or tenure holder 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;"
The submission was that the plaintiffs should be
deemed to have been in "khas possession" of the
suit land on the date of the vesting i. e. January l,
1955 by reason of the case falling withins. 6 (1) (c)
-which reads:
"lands used for agricultural or horticultural
purposes
forming the subject matter of a
3 s.c.R.
SUPREME COURT REPORTS
375
subsisting mortgage on the redemption of which
the intermediary is entitled to recover Khas
possession thereof."
It was submitted that (1) the expression 'khas posses·
sion' had to be understood as meaning not merely
actual physical possession as defined in s. 2 (k) but
also cases where a person was constructively .in posses·
sion, the physical possession being in some other
who held the property derivatively from him or in
trust for him or on his behalf or with his permissionexpress or implied. For this purpos(' learned Counsel
relied on the deci•ion of the Full Bench of the Patna
High Court in Mahanth Sukhdeo Das v. Kashi
Prasad
Tiwari ('). Where lands in the actual
ph)sical possession of one co-sharer were held to be
in the 'khas possession' of all the co-sharers within
s. 2 (k)., (2) it was then urged that where a mortgagee
continued in possession of property usufructuarily
mortgaged to him, even after the mortgage was paid
and discharged the property remained in "the khas
possession" 9f the mortgagor because the mortgagee
does not hold the property adverse! y to the mortgagor
but his possession having started permissively, he
must in law be deemed to hold it still as mortgagee.
This was on the principle that the payment and
discharge of a mortgage debt in the case of a usufructuary mortgage does not put an end to the mort·
gagor-mortgagee relationship but that the relation·
ship would come to an end only when the mortgagee
had performed his part of the obligation ol returning
to the mortgagor possession of the property which
he held as part of the mortgage-security., (H) on this
line of reasoning it was contended that a suit by the
mortgagor for the recovery of possession from the
mortgagee of property usufructuarily mortgaged could
therefore aptly be described as "a suit for redemp·
tion" notwithstanding that the mortgage debt had
been paid off. For this last proposition learned Counsel
relied on certain decisions rendered on the construction
(I) A. I. a. 19.58 Pallla 630.
J96J
Ram Ran Bij 1i S'ingJ'
••
Bihari Sintla Alias
Bagmdh• Sinih
,JI,..,.,/.
376
SUPREME COURT REPORTS [1964] VOL.
1963
Ram Ran Bijai Singh
y,
of s. 10 of Bengal Regulation XV of 1793 (See,
for instance, I. L. R. 1933 Allahabad 97)., (4) on
the finding of the courts below that the defendants
1st and 2nd parties entered into possession of the
property as tenants for a term during the subsistence
of the rehan of 1897, these defendants could be in no
better position and claim no higher rights than the
mortgagee himself and they must be held bound by
the same equities and the same estoppels as the
mortgagees
who let them into possession. on this
reasoning learned Counsel submitted thats. 6 (1) (c)
of the Act covered the case since redemption in the
sense of possession being reddivered to the mortgagor
was not effected on January 1, 1955 -the date of the
vesting in the State Government.
B~hari 3ingh Alias
Bagandha Si"gh
AyyangarJ,
Before proceeding further it is
necessary to
. advert to an argument addressed to us by learned
Counsel for the respondent.
His submission was that
on the materials on the record he could successfully
challenge the finding of the High Court on the
question whether
the land was a zeraiti land of the
plaintiffs. He urged that there had been a material
misappreciation of the evidence adduced by the
contesting defendants to establish that they had been
in possession and were cultivating the suit lands
even before the rehan bond of 1897 and that this
error was so grave as to fall within the exception
to the rule that this Court would not permit the
questioning of concurrent findings of fact. We did
not, however, permit learned Counsel to address any
arguments on this part of the case in view of two
matters: (1) As the contesting defendants had not
filed ar,y appeal from the judgment of the High
Court granting the plaintiffs a declaration that the
la d was zeraiti and also a decree for mesne profits
up to December 31, 1954, it would follow that even
if the respondents succeeded in establishiug that the
land was raiyat land and not zeraiti, it would not
affect the decree passed and ·would only lead to this,
3 S.C.R.
SUPREME COURT REPORTS
377
that they would be able just to maintain the disallowance to the plaintiffs of the relief of possession.,
(2) The second matter which weighed with us in not
permitting arguments relating to the findings regarding the tenure of the land etc. was that we were
not impressed with the legal points urged by the
appellant and in the context of the facts of this case
we arrived at the conclusion that for this reason the
appeal should fail. We should, therefore, not be
taken to have either affirmed or disagreed with the
findings recorded by the learned trial judge and the
High Court as regards the zeraiti character of the
land and the claim of ·the defendants 1st and 2nd
parties to ocCJJpancy rights in those lands.
It would be recalled that under the terms of
s. 6 ( 1) ( c) the zeraiti land of a proprietor would be
deemed to be in his 'khas possession' if it were the
subject-matter of a usufructuary mortgage subsisting
on January I, 1955 and the mortgagor had a right
to recover possession of the same.
The argument
was that these requirements were satisfied by the
appellants and that so long as the mortgagors did
not obtain redelivery of possession of the property,
the rehan of 1907 was alive and "subsisting" notwithstanding that the amount due as mortgage
money was paid and discharged in 1941. Learned
Counsel referred us to s.62 of the Transfer of Property
Act and to the terms of Art. 148 of the 1st Schedule
of the Indian Limitation Act in which a suit for
possession by the mortgagor is said to be against the
mortgagee indicating that during the entire period of
60 years prescribed by column a the mortgagormortgagee relationship continued. He also placed
before us some decisions of the High Courts in
support of the view that a mortgagee continuing in
possession of mortgaged property after the payment
of the mortgage money held the same on behalf of
the mortgagor, and in trust for him. We do not,
however, consider it necessary to discuss these
J96J
Ram Ra11 Bija S1n11'
v.
Bihari Singh A.Lias
Bagandha OinJh
A).1tznt"' J,
1963
·Ram Ran Bijai ~ingh
v.
Brhtzti Singh AliC11
Bagandha Singh
Ayyan1ar J.
378 SUPREME COURT REPORTS [1964) VOL.
submissions further or to record any opinion thereon
since on the facts of the present case the learning
involved in them is not very relevant.
For it was
not disputed that even a mortgagee (and af ortiori so,
a person other than the mortgagee, even though his
possession originated through the possession of a mort·
gagee) could, by overt act and open claims, hold
the property not on behalf of the mortgagor but in
his own right and adversely to the mortgagor.
Mr.
Sarjoo Prasad however relied on certain observations
in the judgment of the full Beneh of the Patna
High Court in Sukdeo Das v. Kashi Prasad (1), were
the learned Judges appear to consider the possession
even of a trespasser who has not perfected his title
by ad verse possession for the time requisite under the
Indian Limitation Act as the khas possession of the
true owner. We consider 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 possession.
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 themselves came into Court. The plaintiffs
stated in their plaint that the mortgaKees had, so far
as they were concerned, fulfilled their obligations and
had put the mortgagors in possession of such property
as they could and that it was the contesting defendants who putting forward claims to OGcupancy
rights, resisted their entry into possession.
This is,
therefore, not a case of a mortgagee remaining in
possession after payment of the debt without anything
more but of tenants who claimed the right to retain
possession of the property by asserting a title which
was as much against the mortgagee as against the
mortgagors. In this context the plea made by the
plaintiffs relevant to the character of the possession
(I; A. r. a. 1918 Pallla 630.
3 S.C.R.
SUPREME COURT REPORTS
379
of the contesting defendants assumes crucial import·
ance, for· if they were admittedly trespassers then
they could not be said to hold the property on behalf
of the mortgagors and the entire basis of the argu·
meat as to the property being in the khas possession
of the plain•iffs would disappear.
Paragraph 10 of
.the plaint reads :
" ......... It is quite clear that the defendants
1st party or 2nd party have no kasht right in
the disputed lands as against the plaintiffs, and
after redemption of the rehan, their possession
and occupation are quite wrongful".
They expanded the idea here contained in the next
paragraph which we shall set out in full.:
·
"On 8.6.41, in the year 1941-the plaintiffs,
on payment of the entire rehan money, and
redeemed the rehan property under the reh11,n
bond dated 10.6.1907 and entered into possession and occupation of the rehan property
covered by the said bond, but when the plaintiffs wanted to enter into possession and occupa·
tion of the disputed land entered in schedule
No. 3, the defendants 2nd party in collusion
and concert with the defendants 1st party
did not allow the plaintiffs to enter into
possession and occupation and there was 'fresh
invasion' against the title of the plaintiffs."
It is hardly necessary to add that the defendants 1st
and 2nd parties besides asserting their right to be in
possession lawfully as tenants cultivating raiyati
land, also asserted that they had acquired that right
on account of adverse possession for more than 12
years and "on account of being settl~d raiyats which
the maliks had all along been admittinj? etc .......... "
The relevant issue framed in regard to this point was
1963
Ram Ran iJijoi Singh
v.
Beh.ari Siugh Alia.r
Bwgandha Singh
A.yyangar J.
. .
196$
Ram Ran Bijai iingh
••
Beluui Singh Alias
Baiondha Singh
Ay,angar .I.
380 SUPREME COURT REPORTS (1964] VOL.
Issue No. 9 which read :
"Have defendant 2nd party or 1st party acquir·
ed any right in the suit land by adverse
possession ? "
and it was for the consideration of this issue that it
was necessary for the Court to ascertain the date
when their possession became adverse. The finding
recorded by the learned trial Judge was in these
terms:
" •••.•• The rehandars (1st and 2nd) ................. .
had no right to create tenancies in the zerait
land in suit and whatever tenancies might have
been created by them during their possession,
ipso f qcto came to an end when the mortgage
. was redeemed by the plaintiffs in 1941. The
possession of defendants 1st party or defendant
2nd party became that of a
trespasser as
against the plaintiffs on the redemption of the
rehan in 1911 ; and the suit having been instituted withiR 12 years from the date of redemp·
tion, the suit is not barred by limitation and
the plaintiffs are entitled to recover khas possession ......... The plaintiffs are entitled to treat
both of them as trespassers and their possession
would become adverse as against the plaintiffs
from the date of redemption i.e., from 1941.
The suit having been instituted within 12 years
from 1941, the plaintiffs right to recover khas
possession of the suit land will therefore not be
barred by limitation.",
and the same idea is repeated in a later passage of
the judgment. This ·aspect of the case has not been
dealt with in the judgment of the High Court apparently because the title of the contesting defendants
based on adverse possession for over 12 years was not
pressed before the High Court in view of its fiilaing
on the other parts of the case.
3 S.C.R.
SUPREME COURT REPORTS
381
The authorities relied on by Mr. Sarjoo Prasad
only go to this extent that where nothing else is
known except that a mortgagee continues in possession
of the property after redemption, the right of the
mortgagor to sue for recovery of the property is
governed by the tiO years rule based on the continuing
relationship of mortgagor and mortgagee between
them; These very authorities however ~how that if
the mortgagee by some overt act renounces his character as mortgagee and sets up title in himself, to the
knowledge of the mortgagor, his possession would not
thereafter continue as mortgagee but as a trespasser
and the suit for recovery of the property from him
would be governed by Art. 14! the starting point of
limitation being the date at which by the overt
manifestation of intention the possession became
adverse. It is afortiori so in cases where what the
court is concerned with is not the possession of the
mortgagee but of someone else, such as in this case,
the tenants claiming occupancy rights. When the
mortgage was redeemed they resisted the mortgagor's
claim to possession and asserted their ·right to remain
in possession as kasht tenants. It was on the basis of
their possession being wrongful that a claim was
made .against them. for mesne profits and it was on
the footing of their being trespassers that they were
sued and possession sought to be recovered from them.
In these circumstances we consider that it is not
possible for the appellants to contend that these
tenants were in possession of the property on behalf
of the mortgagor and in the character of their rights
being derived from the mortgagor.
Section 6 (1) (c)
. cannot, in terms, therefore apply since t lie mortgagor·
mortgagee relationship did not subsist on January
1, 1955 even if the construction which learned Counsel
for the appellant pressed upon us was accepted.
The result is, the Appeal fails and is dismissed
with costs.
Appeal dismissed.
196S
Ram Ro11 Bijoi Sinth
••
Behari Singh .4litU
Bagandha ·'-i1114
Ay1ana11> J.