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PATNA HIGH COURT
K.Sahai and A.B.N.Sinha JJ.
Prithwinath Singh
Versus
Suraj Ahir
Appeal From Original Order No. 214 of 1963 ;
Decided On : OCTOBER 18, 1965
RESTITUTION - SECTION 144 OF THE CODE OF CIVIL PROCEDURE - REDELIVERY OF POSSESSION - MESNE PROFITS - REFUND OF COSTS - STATE OF BIHAR - RIGHT TO POSSESSION - RAIYATI INTEREST - SECTION 4(F) AND (G) OF THE BIHAR LAND REFORMS ACT, 1950 - INTERPRETATION AND APPLICATION.
Fact of the Case:
Plaintiffs filed a suit for declaration of title and recovery of possession of lands, alleging that the defendants were mortgagees and that they had redeemed the mortgage. The trial court dismissed the suit, but on appeal, the High Court allowed the appeal and decreed the suit. The defendants appealed to the Supreme Court, which upheld the High Court's findings but held that the plaintiffs had lost the right to recover possession due to the vesting of the estate in the State of Bihar under the Bihar Land Reforms Act, 1950. The plaintiffs filed a review application, which was dismissed by the Supreme Court. The defendants then filed an application under Section 144 of the Code of Civil Procedure for redelivery of possession, mesne profits, and refund of costs. The trial court allowed the application, and the plaintiffs appealed.
Finding of the Court:
The court held that the defendants were entitled to redelivery of possession of the lands, mesne profits for the period during which the plaintiffs were in possession under the reversed decree, and refund of the costs realized by the plaintiffs. The court also held that the State of Bihar was not entitled to possession of the lands, as it had not taken any action under Section 4(g) of the Bihar Land Reforms Act, 1950, to establish or exercise its right to possession.
Issues: 1. Whether the defendants were entitled to redelivery of possession of the lands. 2. Whether the defendants were entitled to mesne profits. 3. Whether the defendants were entitled to refund of costs. 4. Whether the State of Bihar was entitled to possession of the lands.
Ratio Decidendi: 1. The court held that the defendants were entitled to redelivery of possession of the lands because they had been deprived of possession by act of Court in pursuance of a decree, which had later been reversed. 2. The court held that the defendants were entitled to mesne profits for the period during which the plaintiffs were in possession under the reversed decree, as justice demanded that the plaintiffs must pay mesne profits to the defendants for the period during which they were in possession under a decree which has since been reversed. 3. The court held that the defendants were entitled to refund of costs because the plaintiffs had realized costs from the defendants pursuant to the reversed decree. 4. The court held that the State of Bihar was not entitled to possession of the lands because it had not taken any action under Section 4(g) of the Bihar Land Reforms Act, 1950, to establish or exercise its right to possession.
Final Decision: The appeal was dismissed with the slight modification as to the date up to which mesne profits were payable. In the circumstances of this case, the parties were directed to bear their own costs.
Sahai, J.
1. This appeal by the plaintiffs is directed against an order passed under Sec.144 of the Code of Civil Procedure.
2. The facts of the case may be shortly stated. The plaintiffs instituted a suit on the 18th November, 1946, for declaration of their title to, and recovery of possession over, 10.24 acres of lands along with mesne profits. Their allegation was that the defendants were mortgagees of the lands, and the plaintiffs had redeemed the mortgage. The trial Court dismissed the suit on the 8th March, 1948, and thereupon the plaintiffs filed First Appeal No. 143 of 1948 in this Court. Admittedly, the estate, which included the lands in suit, vested in the State of Bihar on the 1st January, 1956. This Court heard First Appeal No. 143, and, by a judgment dated the 28th January, 1958, allowed the appeal. The suit was thus decreed not only for declaration of title and recovery of possession but also for mesne profits. The defendants filed Civil Appeal No. 533 of 1960 in the Supreme Court. On the 6th May, 1959, the plaintiffs took delivery of possession of the lands in dispute. By a judgment dated the 4th May, 1962, the Supreme Court, while upholding the findings of the High Court that the lands in question were bakasht lands and the suit was not barred by limitation, allowed the appeal, holding that the plaintiffs had, by, reason of the estate, having vested in the State of Bihar and also by reason of the fact that the lands could not be deemed to have been settled with the plaintiffs under Sec. 6 of the Bihar Land Reforms Act, 1950 (hereinafter to be referred to as the Act) as they were not in Khas possession on the date of vesting, lost the right to recover possession. The suit was thus dismissed. The decision of the Supreme Court is reported in Suraj Ahir V/s. Prithinath Singh, AIR 1963 SC 454.
3. The plaintiffs filed an application for review of judgment before the Supreme Court; but, by an order dated the 10th December, 1962, that Court dismissed the review application. That decision is reported in Prithi Nath Singh V/s. Suraj Ahir, 1963 BLJR 675: (AIR 1963 SC 1041).
4. On the 25th June, 1962, the defendants filed an application under Sec.144 of the Code of Civil Procedure for (1) redelivery of possession of the lands in suit to them, (2) mesne profits for the period of the plaintiffs possession, i.e., from the 6th May, 1959, upto the date of delivery of possession, and (3) refund of the costs of the litigation realised by the plaintiffs from the defendants. The learned Advocate General, who has appeared on behalf of the plaintiffs-appellants, has stated that the plaintiffs do not resist the claim for refund of the costs but they object to the other two prayers of the defendants. By an order dated the 24th July, 1963, the Court below allowed restitution and also allowed the defendants prayer for mesne profits. The plaintiffs then preferred the present miscellaneous appeal in this Court on the 5th August, 1963. Their prayer for stay of operation of the order of restitution passed by the 1st Subordinate Judge at Arrah in Miscellaneous Case No. 110 of 1962 was refused by that Court. This Court, however, granted interim stay on the plaintiffs-appellants prayer. By an order dated the 30th September 1963, the stay order was made absolute subject to the condition that the appellants furnished security to the satisfaction of the Court below for a sum of Rs. 1,000 every year during the pendency of the miscellaneous appeal hi this Court. The appellants have been furnishing security in accordance with this order, and the operation of the order of the 1st Subordinate Judge of Arrah has, accordingly, remained stayed all this time. The result has been that the plaintiffs have been in possession of the lands in question.
5. On the 17th July, 1965, a Bench of this Court passed an order with the consent of the parties that the appeal should be listed for final hearing on the 17th August, 1965. On the 31st August, 1965, the
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