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SUPREME COURT OF INDIA
C.A.Vaidialingam : J.M.Shelat : P.Jaganmohan Reddy
Prithvinath Singh
Versus
Suraj Ahir
Case No. : 203 of 1967
Date of Decision : 12/4/70
State of Bihar under the Bihar Lands Reform Act, 1950 – Sections 3, 4 – Code of Civil Procedure, 1908 – Section 144 – Restitution Claim – Mortgage – Declaration of their title to and for recovery of possession – IN this appeal on certificate issued by Patna High Court, question that arises for consideration is whether respondents Nos. 1 to 8 are entitled to claim restitution under Section 144 of Code of Civil Procedure as against the appellants in view of estate in which suit lands are situated having vested in State of Bihar under the Bihar Lands Reform Act, 1950 – State of Bihar is 9th respondent in this appeal – Held, State is as of right entitled to be impleaded in proceedings referred to therein and place its point of view before court. – In this case the State has raised objections before High court that as estate has vested in State under Act and as Collector is deemed to have taken charge of estate, from date of vesting, there is no question of any claim for restitution surviving in plaintiffs or the defendants in these proceedings. – Apart from the fact that from 1/01/1956, the estate has vested in State and Collector under Section 4(f) shall be deemed to have taken charge of estate from date of vesting, there is categorical averment by State that they have taken possession from the plaintiffs – Plaintiffs have also stated that they have surrendered possession to State. – So far as Court could see, High court has not rejected as false claim made by State. – High court has proceeded on basis that question of restitution has to be considered only as between plaintiffs and defendants on basis of result of title suit proceedings – Court is of opinion that High court was not justified in rejecting claim made on behalf of the Slate – This court, in title suit proceedings, has categorically held that estate has vested in State and the right to possession, as well as right to recover possession from a trespasser, also got vested in the State – As Court have held that defendants are not entitled to get restitution, it follows that they will not also be entitled to claim mesne profits – Appeal Allowed
C.A. VAIDIALINGAM, J.
(1) IN this appeal on certificate issued by the Patna High Court,the question that arises for consideration is whether the respondents Nos. 1 to 8 (hereinafter referred to as the defendants) are entitled to claim restitution under Section 144 of the Code of Civil Procedure as against the appellants (hereinafter referred to as the plaintiffs) in view of the estate in which the suit lands are situated having vested in the State of Bihar under the Bihar Lands Reform Act, 1950. (Bihar Act 3 of 1950) (hereinafter referred to as the Act). The State of Bihar is the 9th respondent in this appeal.
(2) WE may now refer to the circumstances under which the claim for restitution was made by the defendants. The plaintiffs predecessors-in-title had executed a mortgage in favour of the defendants predecessors-in-title on 3/07/1906 in respect of an extent of lands measuring 10.24 acres. The plaintiffs redeemed the mortgage on 5/04/1943. Notwithstanding the redemption of the mortgage, the defendants did not make over the possession of the suit lands. Hence the plaintiffs instituted on 18/11/1946 title suit No. 93/1946 in the court of the Subordinate Judge, Arrah, against the defendants for a declaration of their title to and for recovery of possession of 10.24 acres of land along with mesne profits. The plaintiffs case was that the defendants notwithstanding the redemption of the mortgage were in illegal occupation of the lands and hence they are bound to surrender possession of the properties together with mesne profits for the period they have been in such illegal possession. The defendants contested the claim of the plaintiffs on the ground that the disputed lands were never the Baksht lands of the proprietors of the village but on the other hand the lands were really their Raiyati Qaimi Kasht lands and that the plaintiffs never purchased the disputed lands and therefore they had no title to the suit lands. The Trial court dismissed the suit holding that the plaintiffs had no subsisting title to the suit lands as they never purchased the same and that the suit was barred by limitation as the defendants had been in adverse possession for over the statutory period. On appeal by the plaintiffs (First Appeal No. 143 of 1948) the Patna High court held that the plaintiffs were the purchasers of the suit lands and that the defendants had been in possession only as mortgagees. The High court set aside the decree of the Trial court and granted the reliefs of declaration and recovery of possession as well as mesne protits as prayed for by the plaintiffs. The defendants on certificate issued by the High Court, filed Civil Appeal No. 533 of 1960 in this court. By its judgment, dated 4/05/1962, this court set aside the judgment of the High court and restored the decision of the Trial court dismissing the plaintiffs suit. The judgment of this court is reported in Surajnath Ahir and Others v. Prithinath Singh and Others. We will refer later to the reasons given by this court for dismissing the plaintiffs suit. An application filed by the plaintiffs for reviewing the said order was dismissed by this court on 10/12/1962.
(3) AT this stage we may mention that when First Appeal No 143 of 1948 was pending before the Patna High court, the Act had come into force on 25/09/1952, and by virtue of the notification issued by the State Government under Section 3(1) the estate in which the suit lands are situated passed to and vested in the State on 1/01/1956. In consequence of the judgment of the High court, dated 28/01/1958, the plaintiffs took possession of the lands from the defendants on 6/05/1959. As the decision of the High court was reversed by this court on 4/05/1962, the defendants filed on 25/06/1962, Miscellaneous Case No. 110 of 1962 before the Subordinate Judge, Arrah, under Section 144, C. P. C., claiming : (a) redelivery from the plaintiffs of the suit lands (b) mesne profits from 6/05/1959, the date when the
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