ORDER

1. Substitution allowed.

2. Leave granted.

3. This appeal by special leave arises from the judgment and decree dated 7-11-1983 of the Patna High Court made in AAD No. 132 of 1973. The appellants claimed themselves to be the proprietors of the land of 4 bighas, 15 kathas and 10 dhurs of an old Tauzi No. 1298 (New Tauzi No. 8655) situate in Saraunja Village in District Begusarai in Bihar. Their plea was that they had title to and were in possession of the said land and that the respondents have no right to the possession of the said land. The trial court decreed the suit for possession holding that they had the title. On appeal, it was confirmed but in the second appeal, the High Court reversed the same holding that after the Bihar Land Reforms Act, 1950 (for short "the Act") had come into force on 25-9-1950, the appellants had no title to the property and, consequently, they cannot recover possession from the respondents. Thus, this appeal by special leave.

4. Pursuant to the notice issued by this Court on 8-12-1994, Shri B. B. Singh learned counsel for the State, has placed before us the notification issued by the State Government acquiring the lands in question by publication of the notification under Section 4 of the Act in the Gazette. Consequently, it is clear that the lands in question have been vested in the State free from all encumbrances but subject to the provision of the Act from the date of the notification, viz., 26-1-1955.

5. The question thus arises whether the appellants can claim title to the property and recover possession thereof from the contesting respondents. The effect of the vesting under the Act was considered by this Court in Labanya Bala Devi v. State of Bihar Patna Secretariat. It was held that by operation of Section 4 such estates or tenures including the interests of the proprietor in such an estate or tenure and his interests in trees, forests, fisheries etc. and all other sairati interests as also his interest in all subsoil, rights including any rights in mines and minerals etc. other than the interests of the raiyats or under-raiyats shall with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure-holder shall cease to have any interest in such estate or tenure other than the interests expressly saved by or under the provisions of Section 6 of the Act which provides that "on and from the date of vesting, all lands used for agriculture or horticulture purposes which were in khas possession of an intermediary on the date of such vesting, including land used for agriculture and held in direct possession of a temporary lessee 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 ... shall, subject to the provisions of Sections 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as 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".

6. Khas possession has been defined under Section 2(k) of the Act which reads as under

"2. (k) khas possession 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 tenureholder by cultivating such lands or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock."

7. A reading of Section 2(k) read with Sections 4 and 6 of the Act, clearly envisages that the intermediary must, as on the date of vesting, be in possession of the land used for agricultural purpose or horticulture purpose as a tenure-holder by cultivating such land or carrying on horticulture operations thereon by himself with his own stock or by his