RAMESH BEJOY SHARMA AND ORS. v. PASHUPATI RAI AND ORS (2)

Citation: [1980] 1 S.C.R. 6

Court: Supreme Court of India

Bench: R.S. SARKARIA, D.A. DESAI

Case summary

In accordance with these findings the High Court held that since the issue of notilkation under s. Alternatively it was the plaintiffs case that even if it be held that Tikait Chandi Prasad had occupancy ryoti rights over the suit lands, the same bad merged with his...

Judgment text

RAMESH BE. TOY SHARMA AND ORS. v. PASHUPATI RAI AND ORS. July 17, 1979 [R. S. SARKARIA AND D. A. DESAI, JJ. ] Bihar Land Reforms Act, 1950-S. 6(1)-Scope of-Klias possession- Meaning of-Possession and kha. J possession-Di. Jtinction. Respondents tenants at will in possession of land-Lo. ndlord-lntermediary,. if could be said to be in khas possession of the land and entitled to evict the· tenant-at-will without notice-Rights of tenant-at-will and landlord-Discussed. Contention available to one of the parties not pressed before the High Co'urt-lf could be agitated before Supreme Court. In a suit filed against the respondents (defendants), fur recovery. of possession of the suit lands, the appellants (plaintiffs) alleged that the suit lands were the proprietor's private. lands and w'ere in their actual cultivating possession from time immemorial. The trial court dismissed the suit. Eventually, the High c·ourt held tha.

t the defendants or their ancestors had not acquired any ryoti interest with right of occupancy; nor Were th,ty tenure-holders but were mere tenants-at-will; a1,,1d that the suit was not maintainable because even a tenant-at-will could not be ejected without being given. notice to quit. Thereupon the appellants gave notice to the defendants. In the n1eantime, by virtue of a notification issu'ed under s. 3 of the Bihar Land Reforms Act 19-50, the estate had vested in the State by reason of which the plaintiff was not entitled to evict the defendants, On the question whether the plaintiff had a right to fi. l'e a suit for possel'! Sion after the vesting of the estate in the Stare, the trial court held that since the plaintiff had a right to take possessioo, the land could be deemed to be in bis klta! poss·ession a. nd, therefore, he would be entitled to evict the defendantsnotwithstanding the vesting of the estate in the State.

In appeal the High Court dismissed the plaintiff's suit on the ground that the right to take possession did not constitute khas possession within the meaning of s. 6(! ) (b) of the Act. In appeal to this Court it was contended on behalf of the appellant that khas possession within the meaning of s. 6 comprehends the right to take possession and so the appellant was entitled to evict the respondents. Dismissing the appeal, HELD : (a) A combined reading of the definition of kfta. r possession under s. 2(k) and ss. 3, 4 and 6 of the Act shows that the land in possession of a tenant-at-will cannot be Soaid to be in khas possession of the intermediary for the purpose of s. 6. [19D] (b) A tenant-at-will is not holding possession on behalf of the landlord but he bas a. Vestige of title to it and holds on his own behalf and can set up his po6session against the landlord till the formality prescribed by law is. undertaken R. B. SHARMA v. PASHUPATI RA!

7 by the landlord and he is evicted by due process of law. If a notice of a certain duration is necessary expiring with a c'ertain event such a6 the end of the agricultural year, till the end of the agricultural year the tenant, notwithstanding the fact that be is a tenant-;;i. t-will and under a notice to quit will be able to hold on to his possession and keep the landlord at bay. [17H] In the instant case, in the suit between the same parties to the present litigations, the High Court held that the defendants were tenants-at-Vvill of agri- . cultural land, that they \\'ere holding from year to year and that they could be evicted not only after termination of their tenancy by a notic'e to 'quit but such . ootlce must expire with the agricultural year. The notice to be issued to the tenant-at-will has to be a notice terminating the tenancy whk:h must expire with the end or the agricultural year. In Bihar the agricultural year expires in September.

Therefore, once it is concluded inter-partes that even a tenant-atwill of an agricultural land is entitled to notice in consonance with justice and reason the tenant-at-will cannot be thfO\Vn out at any period during, the. year but the notice must expire with the end of the a. gricultural year. Sudhir Kunzar Majumdar & Ors. v. Dhircndra Nath Biswas & Anr. , A. LR, 1957 Cal. 625, not approved. (c) A tenanat-at-will is someone other than the landlord. \Vhen he cultivates land used for agriculture, the agricultural operations cannot be said to be I> cultivation of the landlord himself. When a tenant-at-will carries on agricultural operations, he does them on his own and merely pays rent to the landlord. 1-he landlord does not pay the tenant-at-\vill for the agricultural operations nor for the stock employed by the tenant-at-will. Keeping in view the definition of 'khas poss'ession'.

cultivation of land by the tenant-at-\vill cou1d not be i;aid to be cultivntion by the landlord, by himself or by his servants or by hired labourers. In such a situation the landlord cannot be said to be in 'khas possession' of the land in possession of the tenant-at-\vill. [18A-G] (d) The term 'possession' used in s. 6 is qualified by th'e adjective 'khas' which means actual possession and is used in contra-distinction to the word 4 COnstructive' possession. The term 'khas' possession, is used in a statute for ushering agrarian reforms and, therefore, the purpose and object behind the legislation n1ust inform the interpretative process. The interpretation must tilt in favour of the actual cultivator, the tiller of the soi1. [20 B-C] 2. When a notification llllder s. 3 was issued the respondents tenant-at-~'ill were under a notice to quit \Vhich was to expire on September 24, 1953.

Ther'efore, till September 24, 1953 the respondents tenants-at-will were in actual and physical possession_ of the land and till that date could hold aga. inst the intermediary la\1dlord. It may be that when the notice to quit dated January 5, 1953 was served the intermediary landlord might have the right to take po56'ession but till September 24, 1953 when notice would expire the respondents were in actual possession and till then they could thwart ' any attempt of intermediary 1and1ord to take actual possession. Therefore on the date of the vesting i'. 'e. April 12, 1953 the intermedia1y was not in 'kha~ posses- ~ion' within the meaning of s. 6(1) and when on that day his estate vested m t? e State thereafter he was not entitled to recover possession. After the ves. ting of the e~tate in the State, which event had occurred prior to th'e insti~ tution of the suit, he could not maintain an action for eviction as be had no more subsisting interest in the estate, his intetes.

t having vested in the State. [21-G·H] 2-475SCI/79 Sura;11ath Ahir & Ors. v. Prithi11ath Singh & Ors. [1963] 3 SCR 290; Ram Ran Bijai Singh & Ors. v. Behari Singh alias Bagandha Singh [1964] 3 SCR 363; Gurucharan Singh v. Kam/a Singh & 01» [1976] I SCR 739 at 752-753; and Sonatvati & Ors. v. Sri Ram & Anr. [1968] 1 SCR 617; referred to. 3. The contention of the appellant that if his application under Order 41 rule 27 C. P. C. to l'ead additional evidence were allowed it would establish that the la·nd was already settled with the intermediary by the State and that ther~· fore it was no more open to the respondents. to contend that th'e intermediary ( was not entitled to the settlement of the: land in his favour bas no force. The rejection of the application is justifi'ed because if the evidence was allowed to be admitted on record at this stage it might put the respondents at a disadvantage.

If the plaintiff (appellant) had obtained some settlement of land on the basis of a decree of the trial Court or the fir. st appellate Court which became interlocutory in view of the appeal preferred to the High Court and then to this Court, it is not open to the plaintiff to take any advantage of such setle~ ment. [22C-Fl 4. If a contention which was available to a party had been abandoned in th'e High Court, it cannot be· reagitated before this Court. Jayarama Reddy & Anr. v. Revenue Divisional Offecer & Land Acquisition Officer, Kurnool [1979] 3 SCR 599 referred to. S. [(f a court fixes time to do a certain thing, the Court always retains the power to extend the time. [23E] ClvIL APPELLATE JURISDICTION : Civil Appeal No. 368 of 1969. Appeal by Special Leave from the Judgment and Order dated 10-7-1968 of the Patna High Court in Appeal from Appellate Decree No. 343 of 1964. Sarjoo Prasad, D. N. Mukherjee and S. N. Misra for the Appellant. L. N. Sinha and D.

Goburdhan for the Respondent. The Judgment of the Court was delivered by DESAI, J. -The chequered history of the litigation culminating in this appeal by special leave by the original plaintiff spreads over a period of 70 years with no end in sight. To ascertain and dispose of the point raised in this appeal willy nilly the history of the litiga- ;,. " tion, as briefly as one can humanly try, will have to be set out. One Tikait Fateh Narain Singh was the holder Qf an estate comprising Taluka Chakai within the revenue limits of which the lands involved in this litigation are situated. On the death of Tikait Fateh Narain Siugh the estate devolved on his widow Mussamat Durga Kumari, she having widow's interest as' per the prevalent Hindu law at the relevant time. Mst. Durga Kumari sold the entire estate includ- R. B. SHARMA v. PASHUPATI RA! (Desai, !. ) ing Taluka Chakai to Maharaja of Gidhaur.

After her death one Tikait Chandi Prasad claiming to be the next reversioner of Tikait Faieh Narain Singh brought an action on 15th May, 1907 being Title Suit No. 86/1908 against the Maharaja of Gidhaur for setting aside the alienation on the ground that the alienation was made by a widow having lifo estate and being without legal necessity, it was not binding on the reversioner. this litigation culminated in a decree in favour of Tikait Chandi Prasad by the Privy Council on 2nd '. ' atory possession within the meaning of the aforesaid law. An observation in the context of a different scheme of law would not assist in analysing the conc,ept of 'khas possession' in the Act. Further, a tenant-at-will enters possession with consent of landlord and till his tenancy is determined, he is in lawful possession and cannot be styled as a trespasser. It thus becomes crystal clear that on 12th April, 1953 when the notification under s. 3 was .

issued the respondents tenants-at-will were under a notice to quit which would expire on 24th September 1953. Therefore, till 24th September, 1953 the respondents tenants-at-will were in actual and physical possession of the la'nd and till that date could hold against the intermediary landlord. It may be th>at when the notice to quit dated 15th January, 1953 was served the intermediary landlord may have a right to take possession but till 24th Sep- n tember, 1953 when notice would expire the respondents were in actual (l) [1968] l S. C. R. 617. possession ll! 1d till then they could thwart any attempt of intermediary landlord to take actual possession. Therefore, on· the date of the vesting i. e. 12th April, 1953 the intermediary was not in khas possessions within the meaning of s. 6(1) and when on that day his estate vested in the State he was not entitled to recover possession.

After • the vesting of the estate in the Slate which event had occurred prior to the institution of the suit he could not maintain an action for eviction as he had no more subsisting interest in the estate, his interest having vested in the State. Mr. Sarjoo Prasad contended that an application under Order 41, Rule 27, Code of Civil Procedure, was given seeking permission to lead additional evidence which, if permitted, would tend to establish that the land was already settled with the plaintiff intermediary by the State as envisaged by s. 6 and, therefore it is no more open to the respondents to contend that the plaintiff intermediary was not entitled to the settlement of the land in his favour. Mr.

Lal Narain Sinha, learned counsel for the respondents count'ered this submission by saying that on the strength of decree of the trial Court such an order is obtained but the Court at this stage need not look into it because this Court should consider the rival contentions of the parties according to the facts and law as were available on the date of the suit. Obviously, if the plaintiff appellant has obtained some settlement of land on the basis of a decree of the trial Court or the first appellate \ __ Court which became interlocutory in view of the appeal preferred to the High Court and then to this Court, it is not open to the plaintiff to take any advantage of such a settlement. If this evidence is allowed to be admitted on record at this stage it might put the respondents at a disadvantage. Nor can the validity of that settlement be determined in this suit Therefore, the rejection of this application is justified.

The appellants may seek relief in respect of the so-called settlement in their favour as advised. The last contention was that the appeal as a whole of the respon- • dents should have been dismissed by the High Court in view of noncompliance with the order made by the High Court on 8th March, 1967. Fntry 11 in the order sheet of Second Appeal 343/64 shows ! 'hat three day's time was granted by the Ccurt to take steps for fresh service of notice of appeal on respondents 2, 4 and 8-1 I failing which the Court directed that the appeal shall stand dismissed without further reference to Bench. This order appears to have been made because the respondents who were appellants before the High Court appear not to have made energetic efforts to make the appeal ready by completing the service. The next entry serial No. I2 dated 10th R. B. SHARMA V. PASHUPATI RAI (Desai, J.

) 23 , August, 1967 reads that seven day's final time was allowed to lake steps to take out fresh notice as per the earlier order. This entry is signed by the Deputy Registrar. Entry 13 in sequence dated 19. th August, 1967 reads that as order No. 12 which was final had not been carried out the matter be plac(xl before the Bench for orders. Entry 14 dated 23rd August 1967 signed by the same learned Judge who had mai~e order entry 11 directs acceptance of talbana (process fee) and C (costs), if filed in the course of the day. That order appears to have been carried out except with regard to respondents 11 and 4. Again the Deputy Registrar granted s~ven . day's time. On 12th December 1967 the Registrar made the order that the matter should be placed before the Bench. There are some subsequent orders which are not very relevant. Mr. Sarjoo Prasad urged that the order at entry 11 directed that if the direction therein made was not carried out the appeal would stand dism.

issed without further reference to the Bench and that the subsequent entry shows that the direction was not carried out, and it was urged that the appeal stood dismissed and, therefore, the appeal no more survived for consideration on merits. We find no merit in th. is contention, firstly, because this contention was not taken before the High Court though it was available to the present appellants who were respondents before the High Court. Tue c. ontention could be said to have been abandoned and once it is abandoned it cannot be re-agitated before this Court vide decision of this Court in Jayarama Reddy & Anr. v. Revenue Divisional Officer & Land Acquisition Officer, Kurnool. (') Apart' from th. is, if the Court fixes, time for doing a certain thing, the . Court always retains the power to extend the time and the same learned judge of the High Court who made order at entry 11 extende'd the time as per order at entry 14. Therefore, it cannot be said that the appeal stood dismissed.

Accordingly, there is no merit in this appeal and it fails and is dismissed with costs. P. B. R. Appeal dismissed. \. o) [197913 s. c. R. 599. 3-475 SCI/79