Mahabir Pandey vs Ram Narain Singh And Ors. on 25 November, 1958

Patna High Court
Mahabir Pandey vs Ram Narain Singh And Ors. on 25 November, 1958
Equivalent citations: AIR 1959 Pat 406
Author: K Singh
Bench: V Ramaswami, K Singh


JUDGMENT

Kanhaiya Singh, J.

1. This Second Appeal by defendant 1 is from the concurrent decisions of the Courts below given in a suit instituted by the plaintiffs respondents for a declaration of title to and recovery of possession of 4 bighas 12 kathas and odd lands comprised in Schedules 1, 2 and 3 of the plaint. The plaintiffs’ case was that plaintiffs 1 to 3 were the proprietors of the disputed lands, the lands mentioned in Schedule 1 constituting their zirat lands, those in Schedule 2 their bakasht lands and those in Schedule 3 their raiyati lands and that plaintiffs 4 and 5 were their tenants and were in possession of Schedule 3 lands as jagirdar and bataidar, respectively.

The plaintiffs asserted their title and continuous possession over the disputed lands. In 1946, there was in that part a great social upheaval due to the activities of the socialist movement. Mahabir Pandey (defendant 1), the appellant, started creating troubles so much so that be aided by his followers forcibly cut and removed the crop grown by the plaintiffs. This led to a serious apprehension of the breach of the peace, and Mr. T.D. Mehta, Deputy Magistrate, was deputed to restore law and order and maintain peace.

Mr. Mehta just to restore peace coerced plaintiffs 1 to 3 to agree to a division of the paddy bundles between themselves and the appellant and at the instance of and under undue influence of Mr. Mehta, plaintiff 2 granted a receipt in favour of the appellant on 26-12-1947. On the strength of this receipt the appellant filed an application under Section 40 of the Bihar Tenancy Act for commutation of the produce rent. This application was dismissed on 10-5-1949. The appellant persisted in putting pressure upon the plaintiffs and got a proceeding under Section 144 of the Code of Criminal Procedure started against the plaintiffs.

This proceeding was ultimately converted into a proceeding under Section 145 of the Code in which all the lands in suit were attached. This case was fought up to the High Court, but after remand from the High Court, this proceeding was decided against the plaintiffs on 29-6-1951. The plaintiffs alleged that being emboldened by the adverse decision in the proceeding under Section 145 the appellant dispossessed them of the suit land on 30-6-1951. The plaintiffs thereafter commenced the present action on 29-9-1951 for the reliefs indicated above.

2. The appellant resisted the plaintiffs’ suit for possession. He claimed tenancy right in the suit lands. His defence was that in Jeth 1335 fasli, Bishun Singh, father of plaintiffs 1 to 3 settled with him the disputed lands along with other lands measuring in all 6 bighas 17 kathas 10 dhurs and that since the settlement he has been in continuous possession of the same. He raised the plea that as he was a settled raiyat of the village he had acquired occupancy right in the settled lands. He refuted the allegation of coercion on the part of Mr. Mehta and alleged that due to agrarian troubles Mr. Mehta took a proceeding under section 69 of the Bihar Tenancy Act and got the paddy divided and also had a receipt granted by Kailash Singh (Plaintiff 2).

3. During the pendency of this appeal the State of Bihar was also impleaded as a party under Section 4 (ee) of the Land Reforms Act.

4. Both the Courts concurrently held that the plaintiffs had title to the disputed lands and also possession within ‘twelve years of the suit and that the stoiy of settlement made by the appellant was untrue. Accordingly they entered judgment in favour of the plaintiffs and decreed the suit.

5. Mr. Jaleshwar Prasad appearing for the appellant first contended that the finding of the Courts below about possession of the plaintiffs was vitiated by the fact that there was no proper consideration of the evidence on the record. He particularly laid great stress upon the receipt, exhibit 5 (a), and contended that this was wrongly rejected by the Courts below. His submission is ‘that this receipt established both the title and possession 9f the defendants. There is no foundation for this argument,

We have been taken through the judgments, and it appears that both the Courts have addressed themselves to a critical examination of the evidence of the witnesses produced by either party in support of their respective versions of possession and have also taken into consideration the documents produced by them. I do not find any error in appreciation of the evidence by them, and I have no good reasons to take a view different from the one taken by them.

As regards the receipt, exhibit 5 (a), both came to the conclusion that plaintiff 1 was not a free agent in granting this receipt and that it was procured from him by undue influence and coercion exercised by Mr. Mehta. Mr. Prasad complained that the evidence of Mr. Mehta did not support the plaintiffs’ case of undue influence and coercion. Mr. Mehta, however, does not say that this receipt was voluntarily granted by the plaintiffs in recognition of the tenancy of the defendants, nor does he say that there was a valid dispute between them over the division of the crop.

He has deposed that Kailash Singh (Plaintiff 2) was not readily agreeable to grant the receipt and that he did so under his persuasion. His evidence, therefore, is sufficient to establish that this receipt was not an act of free volition of the plaintiffs and was granted not in ordinary course of business, but under his persuasion. It is true that Mr. Mehta has not said anything about coercion and undue influence. It has, however, been deposed to by the other witnesses of the plaintiffs, namely, P. Ws. 6, 13 and 20 (Plaintiff 2).

All of them have deposed that the Magistrate coerced P. W. 20 to issue a receipt in favour of the defendant. They have Further stated that he was in temper and threatened to arrest plaintiff 2 and put him in lock up if he did not carry out his orders. Their evidence has been accepted as correct by the Courts below, and Mr. Prasad could not give any reason why their evidence should be discarded. The reluctance of the Magistrate to go the whole hog with the other witnesses is understandable. He could not have possibly conceded that he held out threats, to the plaintiffs if the receipt was not granted.

Those witnesses, however, have been found to be trustworthy by the Courts below, and their evidence finds ample corroboration from the admission of Mr. Mehta that persuasion was brought to bear upon the plaintiffs in granting the receipt. I dc not think his evidence makes any difference. Persuasion was enough to render this receipt legally invalid. It cannot be urged that this was granted by the plaintiffs of their free will in recognition of the appellants’s tenancy.

Mr. Prasad candidly conceded that if the statements of these witnesses stood, the finding could not be challenged in Second Appeal. But, he submitted that the Courts below misconceived the entire case and overlooked the fact that this receipt was granted in respect of division of crop under Section 69 of the Bihar Tenancy Act, with the result that it should be regarded as a valid receipt. There is no material on the record to show that there was any proceeding under Section 69 or that Mr. Mehta had been appointed as a Magistrate to effect division in that proceeding.

The plain fact is that he had been deputed to maintain peace and not to effect division, and the compulsory division was merely a step towards prevention of the breach of the peace. I think, the finding of undue influence and coercion in the matter of granting the receipt is a good finding and must be maintained.

6. Mr. Prasad next pointed out that the learned Additional District Judge in appeal had not applied his mind to the decision of the Magistrate in the 145 proceeding and had given no reasons for discarding his finding regarding possession of the appellant. This contention is equally without merit. In the first place, the decision of the Magistrate in that proceeding is not binding upon the Civil Court. It is entitled to come to a different finding altogether.

Secondly, the finding that the plaintiffs were in possession amounts to sufficient refutation of the findings of the learned Magistrate. Thirdly, the learned Additional Subordinate Judge had in fact considered the findings of the Magistrate in the 145 proceeding and reached the conclusion that
they could not be supported either in law or in fact. It is true that the learned Additional District Judge has not referred to the decision in the 145 proceeding. It is, however, well to remember that the judgment of the appellate Court is a judgment of affirmance, and it is not necessary that all the reasons given by the learned Additional Subordinate Judge should have been considered and reproduced.

The affirmance of his finding of possession implies that the learned Additional District Judge had considered all the reasons given by him including the decision in the 145 proceeding. The finding of the Courts below regarding the title and possession of the plaintiffs is thus unexceptionable. This contention, therefore, must be rejected.

7. Next, Mr. Prasad contended that the suit was barred under the special law of limitation provided in the Bihar Tenancy Act. He referred to Article 3, Part I of Schedule III of the Act and urged that the suit was governed by two years’ rule of limitation and was, therefore, barred by time.

The said Article provides a period of two years for institution of a suit to recover possession of land claimed by the plaintiff as a landlord or a raiyat to be computed from the date of dispossession. Mr. Prasad alleged that this suit was started more than two years from dispossession. This contention is wholly without merit. Article 3, Part I of Schedule III applies to suits between landlord and tenant. It does not govern a suit between two independent individuals. The suit for recovery of possession by a person against another person who is not a tenant is governed by the general law of limitation.

The assertion by the defendant of the tenancy right in the disputed lands is not enough to render the suit one between landlord and tenant so as to attract the provisions of Article 3 aforesaid. The question of limitation depends upon the facts established in a particular case. In this case it has been found as a fact that there was no relationship of landlord and tenant, and the possession of the defendant was that of a trespasser. Mr. Prasad, however, argued that the defendant was a tenant of the plaintiffs of other lands in the village in which the disputed lands lay.

His contention is that existence of relationship of landlord and tenant, irrespective of the nature and the status of the lands in dispute, is sufficient to attract the operation of Article 3. There is no warrant for this wide proposition of law. As Article 3 itself shows, it applies to recovery of possession of land claimed by the plaintiff either as a landlord or as a raiyat, in other words, the relationship of landlord and tenant must subsist with respect to the land to recover possession of which the suit has been brought.

Mr. Prasad could not cite any authority in support of his contention, and on the plain meaning of the said Article this contention is not supportable. On merits also this contention is without basis. The order of the Magistrate in the 145 proceeding was passed on 29-6-1951. According to the findings of the Courts below, the plaintiffs were dispossessed of the suit lands on the following day, that is, 30-6-1951. The present suit was instituted on 29-9-1951, that is, within three months of their dispossession. From his point of view also the suit is well within lime. Taking any view of the case, this contention has no merit and must be rejected.

8. Lastly, Mr. Prasad contended that by virtue of notification issued by the State of Bihar, pursuant to Section 3 of the Land Reforms Act, the estate of the plaintiffs vested in the State during the pendency of this appeal, and the effect of this vesting is that their entire estate has passed to the Govt. and consequently the plaintiffs have no title to the disputed lands and are not competent to maintain or continue this suit for possession.

He referred to Section 6 of the Bihar Land Reforms Act and contended that in view of the findings of the Courts below the plaintiffs were not in khas possession of the disputed lands on the date of the suit, and consequently on the date of the vesting also. He referred to Section 6 (1) of the Act. This section provides:

"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   ..... shall notwithstanding anything contained in this Act,
be deemed to be settled by the State with' such
intermediary and he shall be entitled to retain pos
session 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 Collec
tor in the prescribed manner. 
 *		*		*		*		*" 
 

Stated simply, by virtue of this section there is a statutory settlement with the intermediary of the bakasht land in his khas possession on the date of the vesting of the estate. The contention of Mr. Prasad is that admittedly the plaintiffs were not in khas possession of the lands on the date of vesting, and, therefore, there was no statutory grant to them in respect of the suit lands. According to him, the words ‘khas possession’ imply actual physical possession.

In support of his contention he referred to two unreported decisions of this. Court, one in Jagabandhu Dutta v. Manek Homi, S.A. No. 1266 of 1953, D/- 8-7-1958, and the other in Mathura Singh v. Kamta Prasad, S.A. No. 1362 of 1953, D/- 15-7-1958. The decisions in these cases no doubt support his contention. The statement of law in these decisions is not correct and runs counter to the decision of the Full Bench in Sukhdeo Das v. Kashi Prasad Tiwari, 1958 Pat LR 255: (AIR 1958 Pat 630). The Full Bench has held that khas possession does not imply actual bodily possession and it includes also constructive possession and a mere right to possess. To quote the observation of the Full Bench:

“To give a harmonious and consistent meaning to different provisions of Section 6, which is a cardinal principle of construction, the words ‘khas possession’ must include also constructive possession. If the legislature intended by using the expression ‘khas possession’ to mean actual physical possession then different provisions of Section 6 become self-contradictory since the provisions of Clauses (a), (b) and (c) are clearly destructive of that meaning.

Thus, the words ‘khas possession’ do not mean actual physical possession; it only means possession of land by cultivation or by carrying on horticultural operations thereon without the intervention of tenants. The lands not under cultivation, though in khas possession of an intermediary, are outside the scope of Section 6. On a true construction of this section, therefore, khas possession of an intermediary in Sub-section (1) of this section, simply means cultivating possession of the intermediary either in his own right or on behalf of others.

Therefore, even if one of the intermediaries is in cultivating possession, the land will be deemed to be settled with the entire body of the intermediaries interested therein though for the time being some of the intermediaries were not in actual possession of the land. There is nothing in Section 6 to warrant exclusion of such intermediaries as are not in actual possession of the land on the date of the vesting,

That seems to be the true meaning of Sub-section (1) of Section 6. To accept the interpretation sought to be put by Mr. Das will produce absurd results and will amount to abrogation of the existing law for which there is no express warrant in the provisions of the Act. For instance suppose just one day before the date of vesting a trespasser forcibly dispossessed an intermediary and annexes the land to his land.

Now, on textual interpretation of Sub-section (1) of Section 6, as is contended by Mr. Das, the lands will be deemed to be settled with that trespasser. A trespasser has obviously no right in the land. Under the existing law of the land, proprietors or the tenure holders, as the case may be, who were in possession prior to their wrongful dispossession, were in law entitled to possession by eviction of the trespasser.

On the literal interpretation, not only are they deprived of their right but also a right is created in favour of the wrong doer. The effect of this construction is that not only the rightful owners are deprived of their right, but a new right is created in a person who had no semblance of justification for possession. The rule is well established that a person cannot profit by his own wrong.”

It is apparent that under Section 6 of the Act there is a statutory settlement in favour of the intermediary and not in favour of the trespasser. Though in actual possession on the date of the vesting, the trespasser gets no right. As explained in that case:

“By giving, therefore, a statutory definition to the words ‘khas possession’ the legislature intended to distinguish the lands in cultivating possession of the proprietor or tenure holder from the lands in possession of the tenants having occupancy rights therein. This was the main legislative intent for giving a statutory definition to the expression ‘khas possession’.

The emphasis on the expression ‘khas possession’ in Section 6 is not on the person holding it but on the manner and method of possession. In other words, the lands which are governed by Section 6 must be such as are culturable and under cultivation and are possessed by a tenure holder or a proprietor. If, on the other hand, the emphasis is on the person possessing the land, as contended by Mr. Das, which will exclude constructive possession, then the entire Section 6 becomes anomalous and inconsistent.”

The main object of the Act was to facilitate acquisition of the estate without any let or hindrance. It was not the intention of the legislature to settle disputes between the intermediary and a third person. If the land has been all along in khas possession of the intermediary and if he is dispossessed by a trespasser before the date of the vesting, the land will be deemed to have been settled with him, becase in the eye of law in the event of a decree for possession being given to him by evicting the defendant, he will be deemed to be in possession on the date of the vesting.

In my opinion, it is quite plain that being a trespasser the defendant has no right to remain upon the land. Then, the question is who is entitled to obtain khas possession? Obviously, the intermediaries, who were entitled to possession and who would have been in possession on the date of the vesting but for the wrongful act of the third person. By no stretch of language Section 6 can be interpreted to mean that the State wanted to acquire for itself all the lands in possession of a trespasser .

In my opinion, in face of the decision of the Full  Bench   aforesaid this   contention   is not  valid, and the decisions in the said two appeals have no binding force.    This contention, therefore, fails.
 

9. At the time of argument the state of Bihar did not support the appellant, and by mutual consent the question of title as between the plaintiffs and the State of Bihar was left open.
 

10. In the result, this appeal is dismissed with? costs.
 

 V. Ramaswami, C.J.
 

11.    I  agree.
 

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