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HIGH COURT OF PATNA
P. S. Mishra, J.
Sheo Shankar Pd. Singh (substituted heir of appellant respondent) no. 1) & others - Appellants
Versus
Ganga Prasad & others - Respondents
Appeal from Appellate Decree Nos. 173 & 174 of 1968
Decided On : 1.12.1983
HOMESTEAD - DEFINITION - LAND SETTLED TO TENANTS - NO HOUSE IN EXISTENCE - HOUSE BUILT BY TENANTS - NOT A HOMESTEAD OF INTERMEDIARY - VESTING UNDER BIHAR LAND REFORMS ACT, 1950.
Fact of the Case:
Plaintiffs claimed to be owners of two holdings in Patna, which were given in settlement to defendants' ancestors under registered sarkhats. Defendants occupied the holdings and paid rent to plaintiffs' ancestors and to plaintiffs. When plaintiffs claimed rent for a certain period, defendants disclosed that ground rent had been paid to the State of Bihar and that plaintiffs were not entitled to claim any rent from them. Plaintiffs filed a suit for arrears of rent against defendants and the State of Bihar.
Finding of the Court:
The trial court decreed the suit in part, granting a money decree for the arrears of rent against defendants and a decree for ground rent against the State of Bihar. On appeal, the appellate court allowed the appeals and remitted the case back for a re-determination. On remand, the trial court again decreed the suit in favor of plaintiffs. On appeal, the appellate court allowed the appeals and held that plaintiffs were entitled to realize rent from defendants only until the date of vesting of the intermediary estates in the State of Bihar and that the State of Bihar was entitled to realize rent from defendants thereafter.
Issues: Whether the lands in question satisfy the definition of a homestead of a proprietor or a tenure-holder under the Bihar Land Reforms Act, 1950 (the Act) and are protected from vesting under section 5 thereof.
Ratio Decidendi: A homestead of a proprietor or a tenure-holder in possession of a tenant under a hukumnama shall not vest, but two facts are necessary to be established before any such conclusion is arrived at: (1) the land should be a homestead as defined under section 2(j) of the Act; and (2) it should be in possession of the proprietor or the tenure-holder or his tenant under a hukumnama on the date of vesting. In the instant case, the land was settled to the defendants' ancestors as homestead land, not as a homestead as defined under the Act. The defendants built their own houses on the land after they got it settled with them. Therefore, the land was not a homestead of the plaintiffs or their ancestors and was not protected from vesting under section 5 of the Act.
Final Decision: The appeals were dismissed, and the judgment and decree of the appellate court were upheld.
Prabha Shanker Mishra, J.
The plaintiff, respondents have moved this Court in appeal against the JUDGMENT : of the 5th Additional Subordinate Judge, Fatna, in one case modifying the decree for arrears of rent and in the other case setting aside the JUDGMENT : and decree of the Munsif 1st Court, Patna. These appeals arise out of a common JUDGMENT : and involve common question of law. Accordingly, they have been heard together and are being disposed of a common JUDGMENT :
2. The plaintiff-appellants claim to be the owners of holding no. 88/89, Circle No.93, Ward No. 20 plot no. 6.A and holding no. 26, Circle No. 91, Ward No. 19 plot no. 458 situated in Mohalla Maharajganj alias Bajuganj in the town of Patna. According to their case, upon the said holdings, there were houses. The original owners were Mosmat Ghansi and Kunda. Later the houses fell down and lands were sold by them to Dallu Singh. Appellants inherited the property from him through their father. Holding no. 88/89 was given in settlement by the ancestors of the appellants to Chhedi Sah grand father of defendants 1 and 2 under registered sarkhat dated 14.2.1897 on a monthly. Mahabiri rental of Rs. 2/12 annas and annual Mahabiri Jhanda charges of Rs. 2/-. Similarly, the other holding, that is to say, holding no.26 was given in settlement under registered Sarkhat dated 2.1.1911 to Sohrai Sah father of defendants 1 and 2 on motarfarental of Rs. 9/8/9- pie per month. Defendants occupied the two holdings and paid rent to the ancestors of the appellants as also to them continuously in the past. But when they claimed rent from them for the period Magh 1361, Fasli to Bhado 1366 Fasli, they disclosed that ground rent had been paid to the defendant no. 3, the State of Bihar and the appellants (plaintiffs) were not entitled to claim any rent from them. The plaintiffs thereafter filed the suit, being money suit no.463 of 1959. On 10th July, 1961 the suit was
decreed in part by the learned Munsif granting a money decree for the arrears of rent against the defendants 1 and 2 for Rs.151/- and a decree for Rs. 89/- against defendant no. 3 the State of Bihar, as it was found that State of Bihar had realised rent from the defendants 1 and 2. Both the State of Bihar (defendant no. 3) and defendants 1 and 2 went in appeal against the JUDGMENT : and decree of the learned Munsif. The appeal filed on behalf of the State of Bihar was numbered as miscellaneous appeal no. 47 of 1961. The appeal filed on behalf of the defendants 1 and 4. was numbered as Miscellaneous Appeal No. 51 of 1961. These appeals were allowed and the case war remitted back on 3.7.1966 for a re-determination in accordance with law. The trial court -alter the remand again decreed the suit in favour of the plaintiff-appellants. This time also the State of Bihar and the defendants 1 and 2 filed their respective appeals. Appeal filed on behalf of the State was numbered as Miscellaneous appeal no. 9/6 of 1967 and the appeal filed on behalf of the defendants 1 and 4 was numbered as Miscellaneous appeal no. 10/3 of 1967. Those appeals have been allowed by the learned Additional Subordinate Judge, inasmuch as the plaintiff appellants have been found to be entitled to realise rent from the defendants 1 and 2 only until the date of vesting of the intermediary estates in the state of Bihar and for the periods thereafter the State of Bihar has been found to be entitled to realize rent from the defendants 1 and 2.
3. Mr. Lakshman Sharan Sinha learned counsel appearing for the appellants has contended that the lauds in question sarisfy the definition of a homestead of a proprietor or a tenure-holder under the Bihar Land Reforms Act, 1950 (hereinafter referred to as the Act), and as such it is protected from vesting under section 5 thereof. Mr. Sinha has placed reliance on a JUDGMENT : of the Supreme Court in Case of Brij Kishore Prasad Singh & others v. Jaleshwar Prasad Singh & others (A.I.R. 1973 S.C. 1130) wherein it has been h
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