# Rojinder Knmar v. Stale 1f Punjab D<DGuptaJ

- **Citation:** [1963] 3 S.C.R. 290
- **Court:** Supreme Court of India
- **Decided:** 1961-01-05
- **Bench:** K. C. Das Gupta, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rojinder-knmar-v-stale-1f-punjab-d-dguptaj-2616
- **Pages:** 12

## Headnote

Land Reform-Suit for recovery of possession after
rt·
'<'
liemption of mortgage-Limitation-Vesting of e.<tates in th•
State-Subsisting title to possession, if confer• right l-0 recover
posses1ion-Bihar Lana Reforms Act, 1950 (Bih•r XXX of
1950), ss. 2(k) 3(1), 4(a), 4(/), 6(1) (a) (b), (c).
The plaintiff-respondents sued the appellants for recovery of possession of the lands in dispute. The appdlants
had ent<red into possession of the lands on the strength of a
mortgage d,eed.
The mortgagors executed another mortgage
with respect to their milkiat -interest in favour of certain
persons. The plaintiff.respondents bought the milkiat rights
shares together with the ka•ht lands from the mortgagors
· and entered into posci:ession of the milki'lt property and sub ..
sequently redeemed the mortgage deeds in 1943. The appellants however did not make over pos!les!!ion of the lands in
dispute after the mort~ages had been redeemed. The trial
court found that the plaintiff·re<pondents had no subsisting
title to the lands and that the suit was barred by adverse
possession and limitati9n. The High Court, on appeal
filed by the plaintiff-respondents, allowed the appeal on the
•
•
..
._,
3 S.C.R.
::,UPREM . .I!.: UOURT REPORTS
2.Jl
~round that the defendant-a.pp·Jlants were in possession
only as mortgagees and that after the redemption of the
mortgage they had no right to continue in possession.
The appellants than appealed to the Supreme Court by
certificate granted by the High Court. Apart from the questions of estoppel and limi1atioQ. by aoverse possession the main
point which was raised in the appeal was that the plaintiff-respondent had no 1ubsisting title to evict the appellant in view
of the provisions of the Bihar Land Reforms Act, 1950.
Hela, that the suit was instituted within twelve years
of the redemptirm of the mortgage deed and was not therefore barred by limitation.
Section 4 of the Act vests in the State all the interests
of the proprietor or tenure-holder, including the right to
recover posseision from the trespasser, except those interests
which are expressly sav1~d by the Act.
Since no mortgage
subsisted on the date d the vesting in the State the respondent could not take advantage of s.6(1) \c) oftheAct (as
amended by Act XVI of 1959).
The mere fact that a proprietor had a subsisting tit!~
to possession over certain land on the date of vesting would
not make that land under his 'Khas Possession'. The respondents lost their right to recover possession from the
appellants even if they were trespassers, on their estate vesting in the State.
Brijnandan Singh v. Jamuna Prasad A. I. R. 1958
Pat. 589, Haji Sk. Subhan v. Madhorao [1962] Supp. l S.C.R.
123.
CIVIL APPELLA'I'E JURISDICTION: Civil Appeal
No. 533 of 1960.
Appeal from th1~ judgment and decree dated
January 28, 1959, of the
Patna High Conrt,
in Appeal from Original Decree No. 143 of 19i8.
B. K. Saran and J(. L. Mehta, for the appellants.
R. K. Garg,
D. P. Singh, S. 0. Agarwal and
M. K. Ramamurthi, :t'or the respondents.
1962 May 4.
Tho Judgment of the Court
was delivered by
1962
S urajnath A hir
••
Prithinath Singh
Suraj'l.ath A.ltir
v,
l"riehinath Sin:h
292
SUPREM:JTI COURT REPORTS [1963]
RAGHUB.AR DAYAL, J.-This appeal, on a certi·
ficate granted by the High Court of Judicature at
Patna, arises in the following circumstances:
The plaintiffs-respondents sued the appellants
R"1hui•r D~ al J. · for the recovery of possession of the disputed lands
and mesne profits as the family of the defendants
did not have any raiyat interest in the disputed
lands except rehan interest under the rehan deed
dated July ;;, 1906, and that subsequent to the
redemption of that deed, they had no right to
remain in possession 11nd occupation of the disputed
lands.
The plaintiffs alleged that Pranpat Bhagat and
others held eight annas share of milkiat interest in
village Sovathra, pargana Nonaur, tauzi No. 3879
and that the other eight annas share was held by
Kunj Bihari Bhagat and others. Thes

## Text

1962
Rojinder Knmar
v.
Stale 1f Punjab
D<DGuptaJ,
1962
May4.
290
SUPREME COURT REPORTS (1963]
establish the prosecution case that Jagdish after
knowing on the January 5, 1961 .. thn,t an offence
had been committed by the murder of Tonny
caused some evidence of the commission of that
offence to disappear with the intention of screening
the offender from legal punishment. He has there.
fore been
ril!htly convicted under s. 204 of the
Indian Penal Code 11.nd the sentence pase9d on him
is proper.
The appeal is accordiugly dismissed.
Appeal dismissed.
--
SURAJNATH AHIR AND OTHERS
v.
PRITHINATH SINGH AND OTHERS
(K. C. DAS GUPTA and RAGHUBAR DAYAL, JJ.)
Land Reform-Suit for recovery of possession after
rt·
'<'
liemption of mortgage-Limitation-Vesting of e.<tates in th•
State-Subsisting title to possession, if confer• right l-0 recover
posses1ion-Bihar Lana Reforms Act, 1950 (Bih•r XXX of
1950), ss. 2(k) 3(1), 4(a), 4(/), 6(1) (a) (b), (c).
The plaintiff-respondents sued the appellants for recovery of possession of the lands in dispute. The appdlants
had ent<red into possession of the lands on the strength of a
mortgage d,eed.
The mortgagors executed another mortgage
with respect to their milkiat -interest in favour of certain
persons. The plaintiff.respondents bought the milkiat rights
shares together with the ka•ht lands from the mortgagors
· and entered into posci:ession of the milki'lt property and sub ..
sequently redeemed the mortgage deeds in 1943. The appellants however did not make over pos!les!!ion of the lands in
dispute after the mort~ages had been redeemed. The trial
court found that the plaintiff·re<pondents had no subsisting
title to the lands and that the suit was barred by adverse
possession and limitati9n. The High Court, on appeal
filed by the plaintiff-respondents, allowed the appeal on the
•
•
..
._,
3 S.C.R.
::,UPREM . .I!.: UOURT REPORTS
2.Jl
~round that the defendant-a.pp·Jlants were in possession
only as mortgagees and that after the redemption of the
mortgage they had no right to continue in possession.
The appellants than appealed to the Supreme Court by
certificate granted by the High Court. Apart from the questions of estoppel and limi1atioQ. by aoverse possession the main
point which was raised in the appeal was that the plaintiff-respondent had no 1ubsisting title to evict the appellant in view
of the provisions of the Bihar Land Reforms Act, 1950.
Hela, that the suit was instituted within twelve years
of the redemptirm of the mortgage deed and was not therefore barred by limitation.
Section 4 of the Act vests in the State all the interests
of the proprietor or tenure-holder, including the right to
recover posseision from the trespasser, except those interests
which are expressly sav1~d by the Act.
Since no mortgage
subsisted on the date d the vesting in the State the respondent could not take advantage of s.6(1) \c) oftheAct (as
amended by Act XVI of 1959).
The mere fact that a proprietor had a subsisting tit!~
to possession over certain land on the date of vesting would
not make that land under his 'Khas Possession'. The respondents lost their right to recover possession from the
appellants even if they were trespassers, on their estate vesting in the State.
Brijnandan Singh v. Jamuna Prasad A. I. R. 1958
Pat. 589, Haji Sk. Subhan v. Madhorao [1962] Supp. l S.C.R.
123.
CIVIL APPELLA'I'E JURISDICTION: Civil Appeal
No. 533 of 1960.
Appeal from th1~ judgment and decree dated
January 28, 1959, of the
Patna High Conrt,
in Appeal from Original Decree No. 143 of 19i8.
B. K. Saran and J(. L. Mehta, for the appellants.
R. K. Garg,
D. P. Singh, S. 0. Agarwal and
M. K. Ramamurthi, :t'or the respondents.
1962 May 4.
Tho Judgment of the Court
was delivered by
1962
S urajnath A hir
••
Prithinath Singh
Suraj'l.ath A.ltir
v,
l"riehinath Sin:h
292
SUPREM:JTI COURT REPORTS [1963]
RAGHUB.AR DAYAL, J.-This appeal, on a certi·
ficate granted by the High Court of Judicature at
Patna, arises in the following circumstances:
The plaintiffs-respondents sued the appellants
R"1hui•r D~ al J. · for the recovery of possession of the disputed lands
and mesne profits as the family of the defendants
did not have any raiyat interest in the disputed
lands except rehan interest under the rehan deed
dated July ;;, 1906, and that subsequent to the
redemption of that deed, they had no right to
remain in possession 11nd occupation of the disputed
lands.
The plaintiffs alleged that Pranpat Bhagat and
others held eight annas share of milkiat interest in
village Sovathra, pargana Nonaur, tauzi No. 3879
and that the other eight annas share was held by
Kunj Bihari Bhagat and others. These persons also
held khudkasht lands in the village and that such
lands were treated as kasht lands. In 1906 Ram
Autar Bhagat, one of the members of the joint
family of Pranpat Bhagat, executed the mortgage
deed with respect to 15 bighas of land out of 16
bighas of kasht lands, to Sheo Dehin Ahir, on
behalf of his joint family.
The defendants entered
into possession on the basis of that mortgage deed,
they having had no connection with the land mortgaged prior to the execution of the mortgage deed.
Later on, in 1912, Ram Lal Bhagat and
l\funni Bhagat, of Pranpat's family, executed another mortgage deed with respect to their entire
milkiat interest in favour of Jatan Ahir and Ram
Saran Abir who also belonged to tbe family of Sheo
Dehin Ahir. They then got into possf\Esion of the
fresh land which had been mortgaged. ·
Ram Lal Bhagat and others sold their milkiat
share together with the kasht lands to the plaintiffs in 1915. The plantiffs entered into posseseion
y
•
r
3 8.C.H.
SOPREME UOURT REPORTS
293
of the milkiat property and subsaqnently redeemed
the mortgage deerls in 1943. The plaintiffa also
,purchased four annas share beloging to the branch
of Kunj Bihari Bhagat,
The other four annas
share of that branch was purchased by Raja Singh
who then sold it to Ram Ek~al Singh, impleaded
as defendant No. 6 in the plaint, The defendants,
however, did not make over possession of the land
in suit after the mortgage deeds had been redeemed
and hence the suit was instit.uted for a declaration
arid recovery of possession.
The defendants 1 to 5 did not admit the
allegations made by the plaiD.tiffs and stated the
real state of affairs to be 'that. the disputed lands
were never the bakasht lands of the proprietors of
the village and were really the raiyati. qaimi kasht
lands of the defendants. that the plaintiffs. never
purchased the disputed lande, that the disputed.
lands were the raiyati kasht lands of Ram Autar
Bhagat only, who let out the disputed lands in
rehan under different rehan deeds alleging them to
be raiyati kasht lands, and who had earlier treated
it as his exclusive raiyati kasht lands, and that,
ultimately, Ram Aut&r Bhagat sold the disputed
lands to the defendants and got their names
entered as qaimi raiyati kushtkars. It wae further
alleged that the defendants bad acquired title to
the land in suit by virtue of adverse possession.
The trial Court found that the plaintiffs had
no subsistii:ig title to the lands in suit as those
lands were not sold to the plantiffs who had purchased the milkiat interest including the bakasht
and zerat lands, that the suit was barred by
adverse possession also and that it was barred by
limitation. It therefore dismissed the. suit.
On· appeal, tb.e High Court held that the
plaintiffs did purchase the land in suit and that the
defendants were in possession only as mortgagees.
1962
Surajnalh Ahir
••
Pr£thina!h Sing,.
Raghubar DaJal J,
SurajnalJi Ahir
v.
~
Prithinath Singh:.
Baghubar Dayal J.
294
SUPREME COURT .REPORTS [1963) . ·
and that, after the redemption of the mortgage,
they had no right to continue in· possession. It
therefore allowed the appeal and decreed the plaintiffs' suit.
The defendants have now filed this
appeal.
Learned counsel for the appellants has urged
five points :
( 1 ) The record of rights supported the
case of the defendants that they were the
r
qaimi ·raiyats and that the High Court
wrongly construed them.
(2) The sale deed of 1915 in favour of
the respondents did not include the land in
/
suit.
I
.
(3) Even if the plaintiffs-respondents
acquired right to the land in suit by purchase,
they are estopped from taking any action
\oc
against the defendants-appellants who had
been in possession for long.
( 4) The suit is barred by limitation as
the defendants had perfected their title by
adverse possession and the plaintiffs had not
been in possession within limitation~
( 5) The plaintiffs-respondents had no
\
subsisting title to evict the appellants in view
of the provisions of the Bihar Land Reforms
Act, 1950 (Bihar Act XXX of 1950).
The case set up by the defendants with respect
to their acquiring the qaimi raiyati kasht rights, in
their written statement, has been disbelieved by
the Courts below and, we think, rightly. It follows
that the defendants were in possession of the land
· in suit only as mortgagees as held by the Court
below and tjiat they had no right to possession
after the mortgage had been redeemed.
/
-
3 S.C.R.
SUPREME COURT REPORTS
295
By the sale deed dated October 5, 1915, Ram
Lal Bhagat and others sold the property described
thus in the sale deed:
"8 (eight) annas ancestral milkiat interest,
196!
Surajnath Ahir
V.·
Ptilhinath Singh
out ofTauzi No. 3879, in mauza Sewathra,
R•:hubarDa_ral J
pergana Nana.ur, thana Pito, district
IShahabad, Sub·registry office Jagdishpur,
the. Sadar Jama. whereof is
Rs. 190/-
which has been in {lossession and occupation of us, the executants without copartnership and iuterference by anybody
together with all the present Zamindari
rights
appertaining
thereto, without
excluding any interest and profit, together
with Zirat landn which have been recor-
. ded in the surv1~y papers in the names of
us, the executants as bakasht (landa) and
new and old party lands, aam and Khas
Ohairmazrua lands, baharsi dih, house of
the tenants. ground rent, ahar, pond,
reservoir, tank, orchard, fruit-bearing and
non-fruit·bearing
trees and
bambooclumps that is the entire lands and profit
(derived from) zamindari below and
above the surfaoe existing or which may
be derived in future without excluding
anything."
They emphasized the extent of the sale property
further by saying:
"We, the exeeutants, gave
up and
relinquished our respective possession and
occupation of vended property today. The
entire interest excluding only the chaukidari
chakran (service) land which has been let out
in settlement with us,
the ex!lcutants is
being sold. The chaiikidari land only is not
being sound (sic)."
296
• SUPREME COURT. REP()RT~ [!!!63]
19~2 ·.\
It. is· cl~ar therefore, as· held. by the Higii Co~rt,
siUaj.Oii. :ihir
that the land in suit which is included in the milkiat
. . . v. . ..
. share was not excepted from· sale. · The 'only· pro·
Pnth•!•.th s .. ,,
perty excluded from sale was the chaukidari chakran
'-:;-.·'.'land•
·
·
· Ragin.bar DOJal Ji
· •
.,
'J '
.'; .
· ···: ·· The long possession of the appellants therefore·
·does ·'not 'es top the respondents . from recovering
.. possession 'from them. ·. The ·.suit was instituted
wi!hin. 12 years of the redemption of the mortgage .
~deed and is not therefore t.:i:rred by limitation.
.
' '.
:
'
'
'
'
.... ··.The only· other· •question.· to determine., is .
whether the plaintiffs-respondents . cannot recover
·possession from' the apptl!lant's in view of the provi·
sions of the Bihar Land Reforms Act, 1950 (Act ·
·xxx of 1950), hereinafter called the. Act,· which
:came into force during 'the pendency ;. of the appeal
· ··in the High Court •• The trial Court. dismis8ed the
· ·suit on March 8, 1948. The High Court allowed the
appeal on January 28, 19J8. The Act came into.
'.force on September 25, 1950. •· ·
·
. · · ·
Sub-section (1) ofs. 3 oithe Act empowered
· the State Government to declare by notification that
,. the estat~s. or t~nures of . a . p~oprietoi; or tenure
. holder specified m the notification have passed to ·
· ·and become vested in the State.· Such vesting took
·-·..,,
. ---,
place on January 1, 1955. · It is. ·contended for the·
'1
· .appellants that the respondents ceased to have any
proprietary right in the land. in suit when. their
. estate vested in the State and therefore they had no
· right to recover possession from them. ·
Section 4 of the.Act mentions the consequences which follow on the publication of the . notification under sub-s. (I) .. of s. 3. According to 'e. 4(a),
such estate or tenure including the interests of the •.
proprietor or tenur~holder in the various . objects
mentioned therein shall, with effect from the date·
of vesting, vest absolutely in the State free
frc~
,. -,
/
3 S.C.R.
SUPREME OOURT REPORTS
297
all encumbrances, and such proprietor or tenure.
holder ah11.ll cease to have any inter0st in snch estate
or tenure other than the interest expressly saved by
or under the provisions of the Act. Thi• makes it
absolutely clear that after the vesting of the estate,
no interest other than that expressly saved by or
under the provisions of the Act remained in the
respondents. The right to recover possession from
the trespasser also got vested in the State. Subclause (f) of s. 4 provides that the Collector shall
take charge of such estate or tenure and of all
interests vesteil in the State under the section.
In this connection reference may be made to
the decision of this Court in Haji Sk. Subhan. v.
Madhorao (1) which dealt with a similar question in
the context of the provisions of the Madhya Pradesh
Abolition of Proprietary Rights (E3tates, Mahala,
Alienated Lands) Act, 1950 (M.P. Act No. l of
1951).
We have now to consider whether any interest
in the land in suit was expressly saved by or under
the provision of the Act in favour of the res pondents.
Section 6 of the Act provides inter-alia that
on and from the date of vesting, all lands used for
agricultural purposes which were in khas possession
of a proprietor or tenure-holder on the date of
vesting shall 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 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.· The lands coming
within this section included lands used for agricultural purposes forming the subject matter of a
subsisting mortgage on the redemption of which the
(1) {1962] Supp. 1 S.C.R. 123.
1958
Surajnatli Ah ir
v.
Prithinath Singh
Raghubar Da1al J.
1962
.Su,.ajnalh Ahir
••
Prithin1th-Sinzh
•
298
SUP HEME COURT REPORTS (1963)
intermediary is entitled to recover lchas possession.
thereof. It follows that such lands, though not in
the actual lchas posses"ion of the proprietor on the
date of vestin~ would also be deemed to be settled
with the proprietor, who would retain their possession 11s raipat under the State.
According to s. 2(k) of the Act,
... 'khas possession' used with reference to
the possession of a proprietor or tenure-holder
of any land used for agricultural or horticultural purpo~es means the possession of such
proprietor or tenure-holder hy cultivating such
land or carrying on horticultuml operations
thereon himself with his own stock or by his
own servants or by hired labour or with hired
stock."
·
On the date of vesting, the respondents were not in
!chas possession of the land in suit as they were not
in possession in any of the manner mentioned in
this definition.
Section 6 does not really en large the scope of
the expression 'Kb.as possession but includes lands
covered by els. (a), (b) and (e) of sub-s, (1) among
the lands which can be deemed to be settled by
the State with the proprietor. Clause (c) originally
was:
"lands used for agricultural or horti·
cultural purposes and in the possession of a
mortgagee
which immediately before the
execution of the mortgage bond were in kb.as
possession of such
proprietor or tenure
holder."
This clause was substituted by another clause by
s. 6 of the Bihar land Reforms (Amendment) Act,
1959 (Act XVI of 1959) and under that section the
substituted clause shall be deemed always to have
I
.).-.
I
i
I
'
...... ,.,
' -
3 S.C.R.
SUPREME COURT REPORTS
299
been substituted, that is t.o say, is to be deemed to
have been in the original Act from the- very beginning. The substituted cl. (c:) reads :
"(c) lands used for agricultural or horticultural purposes forming the subject matter
of a subsisting mortgairn on the redemption of
which the intermedfory is entitled to recover
khas possession thereof.",
It is therefore necessary for the respondents, to
get advantage oft.he provisions of this clause, that
there be a subsisting mortgage on the date of
vesting and that the land :included in the subsi8ting
mortgage be such that on the redemption of thP.
mortgage the respondents be entitled to recover
khas possession thereof. No mortgage subsisted
on the date of vesting and therefore the benefit of
this clause cannot be taken by the 1 espondent.s.
The land in suit does nol; come within 1 he provisions of cl. (c) or any other clause of sub·s. (1)
of s, 6 of the Act. This point was raised in the
High Court which
observed as
follows m this
connection :
"In the first place the defendants were
in pOSS''ssion as mortgagees and, even section 6 of the Bihar land Reforms Act provides that th11 pos11ession of the mortgagee
is the possession of the mortgagor even for
the
purpose of construing the meaning
of Khas possession of the intermediary over
the land which mav be deemed to be settled
with him by virtu(1 of section 6 of the Act.
The defendants' possession being the mortgagees' possession, the case is covered by the
terms of section 6 itself. Apart from it, it
has been held in the case of Brij Nandan
SinJh v. JamunaPra8ad Sahu and Another (First
1962
Su•ajnath Ahir
v.
Pri lhina!h ~in;:~
--
l!at!.ubar Dayal J
SuroJ··a·h Ahi,
••
P1ithin1Jth Singh
Raghubar Dayal J.
300
SUPREME COURT REPORTS (1903]
Appeal No. 20.3 of 1948) by a Division Bench
of this Court that the words •Khas possession
include subsisting title to possession as well
and any proprietor, whose right to get khas
possession of the land is not barred by any
provision of law, will have a right to recover
possession and the State of Bihar shall treat
him as Raiyat with occupancy right and not .
the trespassers.
The contention of the
learned Advocate
General must fail
in
terms of the above decision."
On the date of vPsting, the appellants were not
in
pos~ession as mortgagees.
The mortagages
had baen
redeemed in 1943.
Thereafter, the
possession of the appellants was not as mortgagees.
It may be as trespassers or in any other capacity.
The land in suit, therefora, did not come within
cl. ( c) of s. 6 of the Act as it stood when the
High Court delivered the juclgmrnt.
·
Reliance
was placed by the High Court
on the case reported as Brijnandan Singh v.
J amuna Prasad ( l) for the construction put <m
the
expression
'khas
possession' to include
subsisting
title to possession as well,
and
therefore for holding that any proprietor, whose
right to get khas possession of the land is not
barred by 11.ny provision of law, will have a right to
recover pos~ession and that the St•te of Bihar shall
treat him as a raiyat with occupancy right and
not as a trespasser. We do not agree with this view
when the definition of 'khas ·possession' meam the
possession of 11. proprietor or tenure-holder either by
cultivating such land himself with his own stock or
by his own servants or by hired labour or with hired
stock.
'l'he mere fact that a proprietor has a subsisting title to possession over· certain land on the
date.of vesting would not make that land under his
'khas possession'.
(1) A.IR. 1958 Pat. 589.
3 S.C.R.
SUPREME COURT REPORTS
301
It is clear therefore that the land in suit
cannot de deemed to be settled with the respondents by the State in accordance with the provi~ions
of s. 6 of the Act. In the absence of any such
settlement, no rights over the land in suit remain0d
in the respondents after the date of vesting, all their
rights having vested in the
State by virtue of
sU:b. s. ( 1) of s. 3 of the Act.
We are therefore of opinion that the respondents lost their right to recover possession from the
appellants, -even if they were trespassers, on their
estate vesting in th'-l Stafo, by virtue of ss. 3 and 4
of the Act and that therefore, thereafter, they had
no subsisting right to recover pc;s•ession from the
appellants. The right to possession now vests in
the State. The respondents being no more entitled
to recover possession of the land in suit the decree
of the High Court has to be set asi<le.
We, accordingly, aliow the appeal, set aside the d 'Cree of the
Court below and restore the decree of the trial
Court, though for reasons other than those given
by that Court in its judgment. In the circumstances of the case, we order the parties to bea.-r their
own costs.
Appeal allowe,d.
JJ68
Surajnath Ahir
v.
Prithinalh Singh
Raghnbat Dayal J.