PETITIONER:
BALESHWAR TEWARI/& ORS.
Vs.
RESPONDENT:
SHEO JATAN & ORS.
DATE OF JUDGMENT: 20/03/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT
HEADNOTE
JUDGMENT
ORDER
This appeal by special leave arises from the judgment of the single judgment of the single judge of the High Court of Patna, made on April 27, 1979 made in S.A. No. 326/1978 dismissing the appeal in limine.
The respondent-plaintiff laid the suit for declaration of title to 3 bighas and six kathas of land bearing Plot No. 235 and 243 in Khata No. 952 situated in Mauza Nainijore Pachhim Diara, Police Station Brahmpore, District Bhojpur.
The admitted position is taht the respondent had purchased the land on May 23, 1957 for a sum of Rs. 82.2 annas from the Raja Dumraon Raj. Proceedings under Section 145 or Cr.P.C. were initiated in which it was held that the appellant was found in possession of the land. Consequent thereto, the above declaratory suit came to be filed by the respondent. It is the case of the appellant that he has been in possession of the land as a leasee since the year 1925. The trial Court accepted his contention and recorded a nding as under:
"These own documents of the Dumraon
Raj clearly show that the defendant
has been in possession over the
suit land as a raiyat since 1925.
The defendant has also filed the
original Khatiswani of the year
1350 fasli prepared by Dumraon Raj
Which also finds the name of
defendant’s ancestor over the suit
land. Ex. C is the jamabandi
Register of the Dumraon Raj Which
also has the name of defendant’s
ancestor over the suit Khata No.
91. Thus, the above documents of
the defendant clearly prove that
the suit land was never the
proprietor’s Zeerat land and was
never in Khas possession of Dumraon
Raj. Rather these documents show
that the Defendant has been in
possession of the suit land as a
raiyat."
On that basis, the suit was dismissed. On appeal, the Subordinate Judge held that the entries for the year 1952-69 show that the respondent was in possession of the land and , therefore, Raja Dumraon Raj had leased out the land to the appellant on year to year basis and thereby in the enquiry under Rule 7 - E(iii) of the Bihar Land Reforms Act [for short, the "Act"] no suit could be brought in any civil Court in respect of the order passed thereunder. Thereby, it seen that at page 21, he recorded thus:
"Since the suit land was given on
lease from year to year being
proprietor’s private land, it was
not necessary to prove that the
Dumraon Raj was in khas possession
over the suit land. It is important
to add here that the plaintiff has
been able to show by production of
Chitha that Dukhi Tiwari and other
persons were recorded in several
years of Chitha in respect of the
suit land. This fact also establish
the fact that the suit land were
given on lease from year to year by
the Dumraon Raj and the defendant
or other person in different years
clearly do not confer any right of
occupancy of title over the suit
land of those persons recorded in
the chitha."
At page 22, it is further recorded
that
"The possession of different
persons of the suit land on the
basis of lease does not change the
character of private land nor it
can confer a title to those persons
not perfect title by adverse
possession."
Thus, he concluded that the respondent had the title of the property. Accordingly, he declared that the respondent had valid title to the property. It is also evidenced that in 1979, in execution of the decree, the respondent came into possession of the land.
From these facts, the question that arises for consideration is: whether the respondent’s prodecessor-intitle, Dumraon Raj was in Khas possession of the land and thereby the respondent acquired title of the property under the sale deed?
Shri Ranjit Kumar, learned counsel for the appellants, contends that the finding recorded by the subordinate judge is clearly incorrect in view of the law laid down by this Court. shri B.B. Singh, learned counsel for the respondents, contends ha in view of he provisions of section 6(1) and the order passed under Rule 7-E(iii), the land is the private land of the Dumraon Raj and the appellant had not acquired any raiyat right under the Bihar Land Reforms Act. The estate was abolished in 1951. thereafter, the appellant was not recognised as a raiyat. Therefore was no evidence that he was recognised as owner of the land. Therefore, the respondent has proved that he is the owner of the land. The declaration of title is vitiated by error of law.
In view of the respective contentions, the question for consideration is : whether the view taken by the Subordinate Judge is correct in law? Section 6(1) of the Act states that on and from the date of vesting, all lands used for agricultural or horticultural purposes, which were in "khas" possession of an intermediary on the date of such vesting, including proprietor’s private lands let out under a lease for a term of years of under a lease from year to year, referred to in Section 116 of the Bihar Tenancy Act, 1885...Shall, subject to be settled by the State which such intermediary and he shall be entitled to retain possession thereof and hold them as a 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. Sub-section (2) postulates that if the claim of an intermediary, as to his khas Possession over the lands referred to sub-section (1) or as to the extent of such lands, is disputed by any person prior to the determination of the rent of such lands under the said sub-section, the Collector shall on application, made such inquiry into the matter as he deems fit and pass such order as may appear to him to be just and proper. Khas Possession has been defined in 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
tenure-holder 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."
This controversy relating to Khas possession is no longer re integra.
This Court in Gurcharan Singh Vs. Kamla singh & Ors. [(1976) 2 SCC 152 at 162 in paragraph 20 and 21] had dealt with this aspect and a three judge Bench held as under:
"There is no case that the sub-
clauses (a), (b) and (c) of Section
6(1) apply. Counsel’s contention is
that he comes within the ambit of
the main paragraph, being allegedly
in Khas possession. To appreciate
the further discussion, it is
useful to recapitulate that the
appellant has averred in his plaint
that he had been dispossessed as
early as 1954 by a brazen act or
trespass by the contesting
respondents who were holding
adversely to him. Undaunted by this
fatal fact Counsel claimed to be in
possession and argued still. The
focus was turned by him on the
concept of Khas possession defined
in Section 2(K). He presented a
historical perspective and
suggested that the genesis of khas
possession could be traced to be
Bengal Tenancy Act, 1885. May be ,
the draftsman might have drawan
upon those earlier land tenure laws
for facility, but we must
understand right at the outset that
the Constitution of India has
inaugurated a new jurisprudence as
it were, guided by Part VI and
reflected in Part III. When there
has been a determined break with
traditional jurisprudence and a big
endeavour has been made to overturn
a feudal land system and substitute
what may be called a transformation
of agrarian relations, we cannot
hark back to the bygone jura or
hold a new legislation captive
within the confiners of vanishing
tenurial though. De hors the
historical links - a breakaway from
the past in the socio-legal system
is not accomplished by worship of
the manes of the law - khas
possession means of the law- Khas
possession means what the
definition, in plain English, says.
The definition clause is
ordinarily a statutory dictionary,
and viewed that was, we have in the
early part of this judgment
explained how it means actual,
caltivatory possession - nothing
less, nothing else. Off course,
Section 6(1) makes a special
addition by ’including’ other
demised lands by express
enumeration.
Section 6 does not stop with merely
saving lands in khas possession of
the intermediary (erstwhile
proprietor) but proceeds to include
certain lands outstanding on
temporary leases or mortgages with
other, as earlier indicated. These
are private lands as khown to the
Bihar Tenancy Act, privileged lands
as known to the Chota Nagpur
Tenancy Act, lands outstanding with
mortgagees pending redemption and
lands which are actually being
cultivated by the proprietor
himself. Ordinarily what is
outstanding with lessees and
mortgagees may not fail within khas
possession. The legislature,
however, though that while the
permanent tiller’s rights should be
protected and, therefore raiyats
and under-raiyats should have
rights directly under the State
eliminating the private
proprietors, the zamindar or
proprietor also should be allowed
to hold under the State, on payment
of fair rent, such lands as have
been in his cultivatory possession
and other lands which were really
enjoyed as private or privileged
lands or mortgaged with possession
by him. With this end in view,
Section 6(1) enlarged its scope by
including the special categories.
The word "include’ is generally
used in interpretation clauses in
order to enlarge the meaning of the
words or phrases occurring in the
body of the stature. It is obvious
that Section 6(1) uses the word
’including’ to permit enlargement
of the meaning of khas possession
for the limited purpose of that
section, emphasising thereby that,
put for such enlargement, the
expression khas possession excludes
lands outstanding even with
temporary lessees.
It is perfectly plan, therefore,
that khas possession has been used
in the restricted sense of actual
possession and to the small extent
it had to be enlarged for giving
relief to proprietors in respect of
’private’, ’Privileged’ and
mortgaged lands inclusive
expressions had to be employed.
Khas possession is actual
possession, that is a foothold on
the land, an actual entry, a
possession in fact, a standing upon
it, and occupation of it, as a
real, administrative act done
Constructive possession or
possession in law is what is
covered by the sub-clause of
Section 6(1). Even so, it is
impossible to conceive, although
Shri Misra wanted us to accept,
that possession is so wide as to
include a mere right to possess,
when the actual dominion over the
property is held by on e in
hostility to the former Possession,
correctly understood, means
effective, physical control or
occupation:
The word possession is sometimes
used inaccurately as synonymous
with the right to possess. (Words
and Phrases, 2nd Edn., John B.
Sounders, p.151).
In the Dictionary of English Law
(Earl Jowitt) 1959 at p. 1367
"possession" is defined as follows:
"Possession, the visible
possibility or exercising physical
control over a thing, coupled with
the intention of doing so, either
against all the world, or against
all the world except certain
persons, there are, therefore,
three requisite of possession.
First three requisite of
possession. First there must be
actual or potential physical
control. Secondly physical control
is not possession, unless
accompanies by intention: hence, if
a thing is put into the hand of a
sleeping person he has not
possession of it. Thirdly, the
possibility and intention must be
visible or evidenced by external
sings, for if the thing shows no
sign of being under the shows no
sings of being under the control of
anyone, it is not possessed;
. . .,"
In the end of all, however, the
meaning of "possession’ must depend
on the context, (ibid p. 153)
Maybe, in certain situations,
possession may cover right to
possess. it is thus clear that in
Anglo-American jurisprudence also,
possession is actual possession and
in a limited set of cases, may
included constructive possession
but when there is a bare right to
possess bereft of any dominion or
factum or control, it will be a
owner is in possession merely
because he has a right to possess
when a rival, in the teeth of
owner’s opposition, is actually
holding dominion and control over
the land admittedly, in the present
case, the possession of the
plaintiff had ceased totally at
least two years before the vesting
under Section 4 took place. This
situation excludes khas
possession."
This was reiterated by a Bench of two Judges in Ramesh Bejoy Sharma vs. Pashupati Rai & Ors. [(1979) 4 SCC 27 at 37 in paragraph 28] held as under:
"The word used in Section 6 is not
’possession’ but it is qualified by
the adjective ’Khas possession its
equivalent being ’actual
possession’ as the word is
understood in contradistinction to
the word ’constructive possession’.
Frankly speaking the law has still
not provides clear and unambiguous
definition of the jurisprudential
concept of possession. Number of
angular approaches to the problem
of possession can be referred to
with confidence. Here we are
concerned with what is called "Khas
possession’ in statue for ushering
agrarian reforms and, therefore,
the purpose and object behind the
legislation must inform the
interpretation must till in favour
of the actual cultivator, the
tiller of the soil, Dealing with
this expressions this Court in
Gurucharn Singh vs. Kamla Singh has
observed as under :
"There are, therefore, three
requisites of possession, First
there must be actual or potential
physical control. Secondly physical
control is not possession, unless
accompanies by intention; hence, if
a thing is put into the hand of a
sleeping person he has not
possession of it. Thirdly, the
possibility an intention must be
visible or evidenced by external
signs. Under the control of anyone,
it is not possessed:...."
In the end of all, however, the
meaning of ’possession’ must depend
on the context, end of ll,
however, the meaning of
’possession’ must depend on the
context, (ibid p. 153)
Maybe, in certain situations,
possession may cover right to
possess. It is thus clear that in
Anglo-American jurisprudence also,
possession is actual possession and
in a limited st of cases, may
include constructive constructive
possession but when there is a bare
right to possess bereft of any
dominion or facturm of control, it
will be a strange legal travesty to
assert that an owner is in
possession merely because he has a
right to possess when a rival, in
the teeth of owner’s opposition, is
actually holding dominion and
control over the land adversely,
openly and continuously."
After thus observing this approved
the ration extracted above in
Surajnath Ahir case as also the
ratio in Ram Ran Bijai Singh case."
In Labanya Bala Devi (Smt.) vs. State of Bihar, Patna Secretariat, Patna & Anr. [(1994) Supp. 3 SCC 725 at 727] after extracting the definition held thus:
"the saving by Section 6(1)(b) is
only of the lands actually used for
agricultural purposes in a State or
a tenure of a lessee or a temporary
lessee and directly in his
possession and cultivated by
himself with his own stock or by
his own raiyat rights has been
confirmed statutorily subject to
the terms contained therein."
In Brighu Nath Sahay Singh & Ors. vs, Md. Khalipur Rahmanh Ors. [(1995) 5 SCC 687] another Bench considered the definition of "Khas possession" in Section 2(K) and held as under:
"A reading of Section 2(K) read
with Section 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 own
servants or by hired labour by his
own servants or by hired labour or
with hired stock."
Thus, it could be seen that though the definition of "intermediary right" as used in Section 6(1)(a) of the Act, is inclusive of the yearly caltivation and intermediary becomes owner of such land subject to payment of rent determined, the intendment of khas possession is referable to the intermediary wh must be in actual possession, i.e., one foot on the land, and the other on the plough in the filed and hands in the soil; although hired labour is also contemplated. The emphasis is on the point that the possession is actual possession and admits of no dilution except to the extent specified under Section 6, i.e., itself by an inclusive process, permits and the animation of retention of possession always must be manifested. It must also be read with Bihar read with Bihar Tenancy Act wherein "Khas possession" has been dealt with.
It is true that the inclusive definition in Section 6(1)(a) would also include yearly lease but it indicates that the possession should always be retained by the intermediary and the tenant must have no security of his tenancy right. But when the tenant remained continuously in possession of the land well over years, right from 1925 as found by the trial Court admittedly, the possession was taken in execution of the decree in 1979 and the necessary animus possidendi was absent.
The question that arises is: whether it will be a "khas possession" and the respondent is entitled to declaration that the intermediary remained in possession as khas possession. In view of the law laid down by this Court, as extracted earlier, and the factual position, the conclusion would be that the tenant remained in possession in his own right as a raiyat though he was paying rent to the intermediary prior to the abolition. His possession is only of a raiyat possession. It is the duty of the respondent to establish by unequivocal evidence that the intermediary retained his intermediary right in the land and that proof has not been established by adducing any evidence. It is true that there is a finding y the Subordinate Judge that an enquiry under Rule 7-E(iii) was he held but there is no finding recorded by the Subordinate Judge that enquiry was conducted after issuing notice to the appellant.
Under these circumstances, even if any enquiry was conducted unless the appellant is given notice and an opportunity to adduce the evidence to establish his right in the enquiry made, the finding generally does not binds him. Entries in revenue records is the paradise of the patwari and the tiller of the soil is rarely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is not interdicted by due process and course of law, he is least concerned with entries. It is common knowledge in rural India that a raiyat always regards the land he ploughs, as his dominion and generally obeys, with moral fiber the command of the intermediary so long as his possession is not disturbed. Therefore, creation of records is a camouflage to defeat just and legal right of claim and interest of the raiyat, the tiller of the soil on whom the Act confers title to the land he tills.
Shri B.B. Singh, in these circumstances, seeks to contend that this question has no been canvassed in the courts below. Since the matter requires examination, it may be remanded to the High Court for consideration. We find that in view of the above findings recorded, the remittance of the matter would render little assistance.
Under these circumstance, we are constrained to allow the appeal and set aside the judgment of the High Court and also of the Subordinate Judge of confirming the decree of the trial Court dismissing the suit. In consequence, the respondent is directed to restitute the possession to the appellant within two months from the date of the receipt of this order. In case, he fails to do so, the appellant is at liberty to have it executed with police assistance and take possession. No costs.