Holding

The appellant's possession did not constitute "khas possession" and the purchaser could not acquire title; the trial court's dismissal of the suit was correct.

Summary

The respondent purchased three bighas and six kathas of land from the Raja Dumraon Raj in 1957 and filed a suit for declaration of title. The appellant claimed he had been in possession of the land as a lessee since 1925 and the trial court dismissed the suit, finding the appellant to be a raiyat. The Subordinate Judge and the Patna High Court reversed, holding that the Raja was in "khas possession" at vesting and that the purchaser acquired title under the Bihar Land Reforms Act. On appeal, the Supreme Court examined the meaning of "khas possession" under Section 2(k) and Section 6(1)(a) of the Act, concluding that the appellant's possession was not "khas possession" and that the purchaser could not obtain title. The Court also held that the enquiry under Rule 7‑E(iii) was invalid without notice and that revenue entries cannot defeat the tiller’s rights. Consequently, the Supreme Court set aside the High Court and Subordinate Judge decisions and restored the trial court decree, directing restitution of possession to the appellant.

Issues considered

Whether the predecessor-in-title, Dumraon Raj, was in "khas possession" of the land at the date of vesting under the Bihar Land Reforms Act, 1950.
Whether the appellant's possession since 1925 qualifies as "khas possession" within the meaning of Section 2(k) and Section 6(1)(a) of the Act.
Whether the enquiry under Rule 7‑E(iii) of the Bihar Land Reforms Rules, 1951, was valid without notice to the appellant.
Whether revenue record entries can defeat the raiyat's title under the Act.

Legislation cited

Bihar Land Reforms Act, 1950s. 2(k), s. 35, s. 4, s. 6(1)(a), s. 6(1)(b), s. 7A

Subjects

khas possessionBihar Land Reforms Actraiayat rightsland titleleaseintermediaryagrarian reformpossession

Judgment

A BALESHWAR TEWARI (DEAD) BY LRS. AND ORS.
v.
SHEO JATAN TIWARY AND ORS.

MARCH 20, 1997

B
[K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.]

Bihar Land Refonns Act, 1950/Bihar Land Refonns Rules, 1951 : ss.
2(k), 6 and 35/Rule 7E(3}--"Khas possession''-lntennediary selling in 1957
C the land in possessio11 of lessee-Purchaser fili11g suit for declaration of
title-Te11ant claiming to be in possessio11 as lessee since 1925-Suit dis-
missed-Appellate court decreed the suit holding that entries for 1952-69
showed purchaser in possessio11 a11d intennediary who must be in actual
possession-17zough the inclusive definition in s.6(1)(a) of the Act would also
include yearly lease, but it indicates that possession should always be retained
D by the intcnnediary and the tenant must have no security of his tenancy
right-But in the instant case the tenant remained continuously in possession
of the land right from 1925, though possession .was taken in execution of
decree in 1979 and the necessary animus possidendi was absent-Creation of
record is a camouflage to defeat just and legal right or claim or interest of the
E raiyat, the tiller of the soil on whom the Act confers title to the land he tills--ft
is the duty of person claimii1g through an intennediary to establish by u11e-
quivocal evidence that the intennediary retained his right as such in land but
that has not been done-Judgme11t of High Court and subordinate Judge are
set aside and decree passed by trial court is restored-Purchaser would restitute
possession to the , .1iyat.
F
Gurcharan Singh v. Kamla Singh & Ors., [1976] 2 SCC 152; Ramesh
Bejoy Shanna v. Pashupati Rai & Ors., [1979] 4 SCC 27; Labanya Bala Devi
(Smt.) v. State of Bihar, Patna Secreta1iat, Pama & Anr., [1994] Supp. 3 SCC
725 and Brighu Nath Sahay Singh & Ors. v. Md. Khalibur Rahmanh & Ors.,
G [19951 s sec 687, relied on.

CIVIL APPELLATE.JURISDICTION: Civil Appeal No. 2533 of
1980.

From the Judgment and Order dated 27.4.79 of the Patna High Court
H in S.A. No. 326 of 1978.
140
BALESHWAR TEWARI v. SJ. TIWARI 141

Ranjit Kumar and Ms. Binu Tamta for the Appellants. A
B.B. Singh for the Respondents.

The following Order of the Court was delivered :

This appeal by special leave arises from the judgment of the single B
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, C
District Bhojpur.

The admitted position is that the respondent had purchased the land
on May 23, 1957 for a sum of Rs. 82.2 annas from the Raja Dumraom Raj.
Proceedings under Section 145 of Cr.P.C. were initiated in which it was
held that the appellant was found in possession of the land. Consequent D
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
lessee since the year 1925. The trial Court accepted his contention and
recorded a finding as under :
E
"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 F
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 posses-
sion of Dumraon Raj. Rather these documents show that the
Defendant has been in possession of the suit land as a raiyat." G
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 Rules, 1951 and H
142 SUPREME COURT REPORTS [1997] 3 S.C.R.
••
A Section 35 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 there-
under. Thereby, it is 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
B 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 lands were given on lease
c from year to year by the Dumraon Raj and the act of possession
either by the defendant or other person in different years clearly
do not confer any right of occupancy or title over the suit land of
those persons recorded in the chitha."

At page 22, it is further recorded that
.D
"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 nor perfect title by adverse posses-
sion."
E Thus, he concluded that the respondent had the title of the property.
Accordingly, he declared that the respondent had valid title to the proper-
ty. It is also evidenced that in 1979, in execution of the decree., the
respondent came into possession of the land.

F From these facts, the question that arises for consideration is
whether the respondent's predecessor-in-title, 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
G the finding recorded by the Subordinate Judge is clearly incorrect mview
· of the law laid down by this Court. Shri B.B. Singh, learned counsel for the
respondents, contends that in view of the provisions of section 6(1)(a) 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
H the Bihar Land Reforms Act. The estate was abolished in 1951. Thereafter,
BALESHWAR 1EWARI v. S.J. TIWARI 143

the appellant was not recognised as a raiyat. There was no evidence that A
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? B
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" pos-
session of an intermediary on the date of such vesting, including
proprietor's private lands let out under a lease for a term of years or under
a lease from year to year, referred to in Section 116 of the Bihar Tenancy C
Act, 1885... shall, subject to the provisions of Section 7A and B, be deemed
to be settled by the State with such intermediary and he shall be entitled
to retain possession thereof and hold them as a raiyat under the State
having occupancy rights 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 D
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 determina-
tion of the rent of such lands under the said sub-section, the Collector shall
on application, make 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 E
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 F
operations thereon himself with his own stock or by his own
servants or by hired labour or \vith hired stock."

The controversy relating to Khas possession is no longer res integra.

This Court in Gurcharan Singh v. Kam/a Singh & Ors., (1976] 2 SCC G
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 H
144 SUPREME COURT REPORTS [1997] 3 S.C.R.

A 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 dispos-
sessed as early as 1954 by a brazen act of trespass by the contesting
respondents who were holding adversely to him. Undaunted by
this fatal fact Counsel claimed to be in possession and a~gued still.
B 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
the Bengal Tenancy Act, 1885. May be, the draftsman might have
drawn upon those earlier land tenure laws for facility, but we must
c understand right at the outset that the Constitution of India has
inaugurated a new jurisprudence as it were, guided by Part IV 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
D
bygone jura or hold a new legislation captive within the confines
of vanishing tenurial though. De hors the historical links - a
breakaway from the past in the socio-legal system is not ac-
complished by worship of the manes of the law - khas possession
means what the definition, in plain English, says. The definition
E clause is ordinarily a statutory dictionary, and viewed that way, we
have in the early part of this judgment explained how it means
actual, cultivatory possession - nothing less, nothing else. Of
course, Section 6(1) makes a special addition by 'including' other
demised lands by express enumeration.
F
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
others, as earlier indicated. These are private lands as known to
the Bihar Tenancy Act, privileged lands as known to the Chota
G Negpur 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 fall within khas possession. The legislature,
however, thought that while the permanent tiller's rights should be
H protected and, therefore, raiyats and under-raiyats should have
BALESHWAR TEWARI v. SJ. TIWARI 145

rights directly under the State eliminating the private proprietors, A
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 B
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 statute. It was obvious that
Section 6(1) uses the word 'including' to permit enlargement of
the meaning of khas possession for tht; limited purpose of that
section, emphasising thereby that, but for such enlargement, the C
expression khas possession excludes lands outstanding even with
temporary lessees. It is perfectly plain, therefore, that khas posses-
sion 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 D
lands inclusive expressions had to be employed. Khas possession
is actual possession, that is a foothold on the Jana, and actual entry,
a possession in fact, a standing upon it, an occupation of it, as a
real, administrative act done Constructive possession or possession
in law is what is covered by the sub-clauses of Section 6(1). Even
so, it is impossible to conceive, although Shri Misra wanted us to E
accept, that possession is so wide as to include a mere right to
possess, when the actual dominion over the property is held by one
in hostility to the former. Possession, correctly understood, means
effective, physical control or occupation;
F
The world 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 : · G

"Possession, the visible possibility of 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 there must be H
1
146 SUPREME COURT REPORTS [1997] 3 S.C.R.

A 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 signs, for if the thing shows no signs of being
under the control of anyone, it is not possessed; ... ,"
B
In the end of all, however, the meaning of 'possession' must depend
on the context. (ibid p. 153)

May be, in certain situations, possession may cover right to possess,
c it is thus clear that in Anglo-American jurisprudence also, posses-
sion is actual possession and in a limited set of cases, may include
constructive possession but when there is a bare right to possess
bereft of any dominion or factum 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
D owner's opposition, is actually holding dominion and control over
the land adversely, openly and continuously. 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."
E This was reiterated by a Bench of two Judges in Ramesh Bejoy
Shanna v. 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
F 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 provided clear and unambiguous definitiem of the jurispruden-
tial concept of possession. Number of angular approaches to the
problem of possession can be referred to with confidence. Here
G we to the problem of possession can be referred to with confidence.
Here we are concerned with what is called 'khas possession' in a
statute for ushering agrarian reforms and, therefore, the purpose
and object behind the legislation must inform the interpretative
process. The interpretation must till in favour of the actual cul-
H tivator, the tiller of the soil. Dealing with this expressions this Court
BALESHWAR TEWARI v. SJ. TIWARI 147

in Gurcharan Singh v. Kam/a Singh has .observed as under : A
"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 and intention must be B
visible or evidenced by external signs, for if the thing shows no
signs 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).
c
~-- May be, in certain situation, possession may cover right to possess,
it is thus clear that in Anglo-American jurisprudence also, posses-
sion is actual possession and in a limited set of cases, may include
constructive possession but when there is a bare right to possess
bereft of any dominion or factum of control, it will be a strange D
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 ratio extracted above in E
Surajnath Ahir case as also the ratio in Ram Ran Blj"ai Singh case."

In Labanya Bala Devi (Smt.) v. State of Bihar, Patna Secretariat, Patna
& Anr., (1994) Supp. 3 SCC 725 at 727 after extracting the definition held
thus:
F
"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." G
In Brighu Nath Sahay Singh & Ors. v. Md. Khalibur Rahmanh & Ors.,
(1995) 5 SCC 687 another Bench considered the definition of "khas posses-
sion" in Section 2(k) and held as under :

"A reading of Section 2(k) read with Section 4 and 6 of the Act H
148 SUPREME COURT REPORTS (1997] 3 S.C.R.

A 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 or with hired
stock."
B
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
cultivation and intermediary becomes owner of such land subject to pay-
ment of rent determined, the intendment of khas possession is referable to
C the intermediary who must be in actual possession, i.e., one foot on the
land, and the other on the plough in the field 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,
D permits and the animation of retention of possession always must be
m;;nifested. It must also be 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
E 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.
F
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
G 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 inter-
mediary right in the land and that proof has not been established by
adducing any evidence. It is true that there is a finding by the Subordinate
H Judge that an enquiry under Rule 7-E(iii) was held but there is no finding
r BALESHWAR TEWARI v. SJ. TIWARI 149

recorded by the Subordinate Judge that the enquiry was conducted after A
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 B
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
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 C
possession is not disturbed. Therefore, creation of records is a camouflage
to defeat just and legal right or 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 not been canvassed in the courts below. Since the matter D
requires examination, it may be remanded to the High Court for considera-
tion. 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 judgment of the High Court and also of the Subordinate E
Judge 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 persuasion. No costs. F

R.P. Appeal allowed.