The definition of 'khas possession' under Sec. 2(k) of the Bihar Land Reforms Act, 1950, and its application in determining the title to land under the Act.

B.D.Singh, J.

1. This appeal by the defendant is directed against the judgment and decree of the appellate Court affirming those of the trial Court. The respondents had filed title suit No. 69 of 1960 for declaration of title and recovery of possession of the orchard land measuring 4 bighas 13 kathas and 1 dhur bearing plot No. 473 (old 48) situate in village Anandpur. P.S. Mirganj, in the district of Saran with mesne profits.

2. In order to appreciate the points involved in this appeal it will be necessary to state briefly the facts- The respondents, who are the plaintiffs, are the present proprietress and the proprietors of Hathwa Raj. In 1901 rent suit was brought by then proprietors of the Hathwa Raj against the ancestors of the defendant-appellant. The "suit was decreed in favour of the then landlord who purchased the holding in the auction sale. The said holding consisted of plot No. 473 which is the subject-matter of the present dispute along with the two other plots, namely, plot No. 38 fold 34) and 472 fold 344). It seems that no physical possession was obtained in the execution proceeding after the said purchase by the landlord. Therefore, the then Maharaja of Hathwa Raj filed title suit No. 990 of 1913 against the ancestor of the present defendant for khas possession of the land contained under three plots with wasilat (mesne profits), after evicting the defendants therefrom. The said suit was decreed in part holding that the Maharaja of Hathwa was entitled to recover only plot No. 344. With regard to plot Nos. 34 and 48 it was held on the contention of the then defendants that they (defendants) were not in possession over the same.

3. The present suit land, i.e., plot No. 473, was recorded in revisional survey bearing khewat No. 2 as orchard and according to the plaintiffs, they remained in khas possession till the Zamindari of the Hathwa Raj vested in the State under the Bihar Land Reforms Act in May. 1952. On 13-10-1954 the defendant-appellant cut and removed a dried up mango tree from the suit land, which gave rise to a criminal case, instituted by the Raj against the defendant. The defendant was convicted by the trial court in the said criminal case, but he was acquitted by the appellate court. During the pendency of the criminal case the defendant sowed Til and Bazra in the disputed land. Since he was acquitted by the appellate court, he became emboldened and dispossessed the plaintiffs from the suit land. In June. 1958, the defendant further cut and appropriated two dried up mango trees from the suit land. Thereafter the plaintiffs instituted this suit on the 8th March 1960.

4. The suit was contested by the defendant. The chief defence was that the defendants ancestors were recorded as raiyats in the suit land. There was no delivery of possession over the land in favour of Hathwa Raj. Hathwa Raj never came in possession over this land on the basis of the rent suit. The defendant was in continuous possession over it. The entry in the revisional survey khatian in favour of Hathwa Raj was incorrect.

5. The trial court as mentioned above, decreed the suit in favour of the plaintiffs and the appellate court upheld the judgment and the decree of the trial court.

6. Mr. R.S. Chatterjee, learned counsel on behalf of the plaintiffs has assailed the judgment and the decrees of the courts below and has raised the following points for consideration by this court: (1) Since the court below has not given any finding regarding khas possession over the suit land by the plaintiffs, at the time of vesting of the estate of tile plaintiffs under the Land Reforms Act, the plaintiffs cannot have any title over the suit land nor they are entitled to recovery of possession of the same and (ii) the present suit of the plaintiffs was barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure because the earlier suit by the holder of Hathwa Raj regarding plot Nos. 34 and 43 was dismissed. Thus the present sui