P. S. Mishra, J.

The defendant—State of Bihar has appealed against the judgment and decree of the court of the 1st Additional Subordinate Judge, Bhagalpur, in the Title Suit No. 14/1964

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4/1967

2. Khawashpur Kothi of Darbhanga Raj bearing Tauzi No. 1309 in Mauze Khawashpur. P.S. Pirpaiti, described in Schedule ‘A’ of the plaint was in possession of the estate of Raj Darbhanga until the notification vesting the said estate in the State Government was issued under section 3 of the Bihar Land Reforms Act, 1950 (hereinafter referred to as ‘the Act’). Shree Kameshwar Singh Bahadur, proprietor and owner of the estate, died on 1.10.1962 leaving his last will dated 5.7.1961, appointing Pandit Shree Lakshmi Kant Jha (since deceased) as the sole executor for all purposes and for all his properties. In the plaint presented to the court by the sole executor, it is stated that Maharajadhiraj Shree Rameshwar Singh Bahadur of Darbhanga father of Maharajadhiraj Shree Kameshwar Singh Bahadur purchased several indigo factories by a registered sale deed dated 3.11.1990 from one Mr. William Loyed Thomes of Calcutta and came in possession of the same including the property described in Schedule ‘A’ of the plaint. The property at Mauza Khawashbur known as Khawashpur Kothi comprised of Bungalow—house, horse stable, out—offices, godowns, gardens, compound and other kinds of land, Maharajadhiraj Kameshwar Singh Bahadur after succeeding to the estate when his father died, developed the property at Khawashpur and also planted indigo for several years. In due course, however, indigo factory was given up but the Kothi and Sahan remained in use, having an area of about 30 Bighas. The Kothi was used for housing the superior officers of Raj including the Tahsildar and the members of his family. The Raj had more than 2000 Bighas of Diara land in Mauza Khawash Pur under its cultivation by tractors, ploughs drawn by bullocks and extensive labour operation was maintained by established labourers. The substantial portions under cultivation were in due course either settled with the tenants or disposed of by the Raj. In 1952-53 some local Amlas of State of Bihar, however took possession of the Kothi, complaint was lodged in this behalf before the then Additional Sub-divisional Officer, Bhagalpur, to enquire into the allegations. After the report of the Additional Sub-divisional Officer on 27.7.1954 the Kothi was restored to the Raj but soon thereafter on 29.7.1954 it was again re-locked by the officers of the defendant appellant. In July, 1963 the properties including furnitures lying in the Kothi were appropriated by the officers and the agents of the defendant—appellant (such properties are described in Schedule ‘B’ of the plaint). A Diyara survey operation was taken up round about the same time and Khawash Pur Kothi and its compound described in Schedule ‘A’ was recorded in the name of the State of Bihar. A dispute arose on the order of the Assistant Settlement Officer approving the entries in the survey operation in favour of the State Government and several applications were filed by the original plaintiff, but no final decision was made by any officer of the Government itself. Although according to plaintiff, Raj continued in possession of the schedule ‘A’ properties, yet a suit became necessary to remove the cloud on the title created by the entries during the Diyara Survey operation.

3. The plaintiff has asserted that the Kothi and its compound is the homestead of the proprietor. Notwithstanding the notification under section 3 of the Act, the homestead is protected under section 5 of the Act, and in terms of the provision contained therein from the date of vesting, the Raj is the owner of the Kothi as a tenant under the State, subject to the terms and conditions as envisaged under the said provision.

4. The defendant—State, however, has maintained that although the Kothi is a building with a compound around it and other ap