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SUPREME COURT OF INDIA
V.R. KRISHNA IYER, A.C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.
Gurucharan Singh, Appellant
Versus
Kamla Singh and others, Respondents.
Civil Appeal No. 716 of 1968,
D/- 9-9-1975. 6
Advocates appeared
Mr. S. C. Mishra, Sr. Advocate, (Mr. U. P. Singh, Advocate with him), for Appellant; M/s. S. N. Prasad and A. K. Srivastava, Advocates, and Mr. M. S. Narasimhan, Advocate, for Mr. B. P. Singh, Advocate, for Respondents.
Bihar Land Reforms Act, 1950 - Estates Partition Act, 1897 - Bengal Tenancy Act, 1885 – Criminal Procedure Code – Section 145 - Immovable property - Possession of one co-sharer - Court turns on absence of jurisdiction - Whether State had been given notice in case in High Court - Court may set out relevant facts briefly - Although a number of items of immovable property were involved in suit which was for ejectment on title lands now in dispute at lands in the B Schedule to plaint for easy reference called suit lands. Regarding the rest plaintiff’s suit has been decreed - Several items of property were gifted by one to his two wives whose names were duly mutated in the revenue register - Further course of proprietary history takes us to the creation of a wakf and the office which are not relevant to controversy before us but are interesting when we remember that domes were Hindus and yet they had executed a wakf and constituted themselves - This shows how community life absorbs and blends concepts overriding religion in the creation of an inter-laced legal culture - Court may now take up thread at the point where by further gift deeds and transfers lands covered by the original gift deeds came to vest in plaintiff and defendants second party - They divided them as per a partition deed Exhibit dated October whereby suit lands fell to the exclusive share of plaintiff along with some other items while other properties were similarly allotted to defendants 2nd party - Undaunted by this fact defendants second party sold the suit lands to the defendants first party alleging an oral partition sometime before August and under cover of that case committed trespass - Thereupon a scramble for possession of these properties and a proceeding under Sec. 145 Cr. P.C. ensued in which defendants first party got their possession upheld by Magistrates order – Inevitably plaintiff brought the present suit in April for a declaration of his title for possession and manse profits on score that his exclusive possession was by force taken away in July-August by defendants first party – Held, Court will be confined to those items which are found to be in the possession of the defendants, first party - There is a disturbing feature about this case - Court have already indicated how there is an apparent indifference on the part of the State in securing its rights granted by Act - Here is a case where defendants first party are rank trespassers and have no evident equity in their favor - Section 4 (f) declares that Collector shall be deemed to have taken charge of the estates and interests vested in State - This means he has a public duty to take charge of lands vested in the State – Surely a responsible public officer like Collector charged with a duty of taking delivery of possession of lands which by virtue of vesting the State is entitled to take direct possession of will proceed to dispossess trespasser - In this case defendants first party are trespassers and plaintiff being out of the pale of Section 6 State is entitled to the direct possession of the suit lands - Court expect Collector to do his duty by Section 4 (g) - Counsel for respondents drew our attention to rule 7-H - If the Collector holds on the report of enquiry held under Rule 7-E or 7-F that outgoing proprietor or tenure-holder or his temporary lessee or mortgagee was not in possession of the lands or buildings referred to in Rule 7-C he shall fix the fair rent or ground-rent thereof in manner prescribed in these rules and person who may be found to be in possession of such lands or buildings shall there-upon be liable to pay rent or ground-rent so fixed to the State Government with effect from the date of vesting - Although we need not elaborately study the implications of this provision it is fairly clear that this rule does not confer any right or enquiry to be in possession in favors of a trespasser - All that it does is to make the man in possession be he trespasser or not liable to pay rent or ground-rent so fixed to State Government with effect from the date of vesting - It is the liability to pay rent that is created not the equity to claim possession - After all land reform measure is intended to conserve as much land as is available in hands of the State and any trespasser who distorts this claim and snatches possession cannot benefit by his wrong - May be there are special circumstances which may persuade the State to give possession of any land either to its erstwhile proprietor or to one who has been in long possession rightly or wrongly - Court do not make any observation in that behalf but point out that prima facie Section 4 (f) and (g) and Rule 7-H attract jurisdiction of State and its revenue authorities - Policy of Act includes the State taking over and managing lands not saved by Sections 5, 6 and 7 and are not found to be in possession of proprietor so that eventual distribution to the landless and the like may be worked out smoothly - Appeal is dismissed
Judgment
KRISHNA IYER, J. :- This appeal, by special leave, turns substantially on the application of Section of the Bihar Land Reforms Act, 1950 (hereinafter called, the Act), to the case situation, the facts having been decided concurrently and 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.
2. 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 at bakasht lands in the B Schedule to the plaint, for easy reference called suit lands. Regarding the rest the plaintiffs 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 to 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 8 mutawallis. This shows how community life absorbs and blends jural concepts, overriding religion in the creation of an inter-laced legal culture. This is by the way.
3. 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 Exhibit 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 similarly allotted to defendants 2nd party. Undaunted by this fact defendants, second party, sold the suit lands to the defendants first party alleging 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 Sec. 145, Cr. P.C. ensued in which the defendants, first party, got their possession upheld by the Magistrates order dated 5-4-1954. Inevitably, 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 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-second party. The courts of fact found against the defendants and decreed the suit as prayed for, but in Letters Patent Appeal, the present contesting-respondents, i.e. the defendants 1st party, urged with success that the plaintiff had lost his title thanks to the operation of Sections 3 and 4 of the Act and could not salvage any interest under Section 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 forthe appellant, Section 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 cosharers. If that were so, the possession of one co-sharer
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