PRITHVINATH SINGH Vs. SURAJ AHIR

JUDGEMENT

(1.) In this appeal on certificate issued by the Patna High Court, the question that arises for consideration is whether the respondents Nos. 1 to 8 (hereinafter referred to as the defendants)are entitled to claim restitution Under Section 144 of the CPC as against the appellants (hereinafter referred to as the plaintiffs) in view of the estate in which the suit lands are situated having vested in the State of Bihar under the Bihar Lands Reform Act, 1950 (Bihar Act 30 of 1950) (hereinafter referred to as the Act). The State of Bihar is the 9th respondent in this appeal.

(2.) We may now refer to the circumstances under which the claim for restitution was made by the defendants. The plaintiffs' predecessors in title had executed a mortgage in favour of the defendants' predecessors in title on July 3, 1906 in respect of an extent of lands measuring 10 24 acres. The plaintiffs redeemed the mortgage on April 5, 1943 Notwithstanding the redemption of the mortgage, the defendants did not make over the possession of the suit lands. Hence the plaintiffs instituted on November 18, 1946 title suit No. 93/1946 in the Court of the Subordinates Judge, Arrah against the defendants for a declaration of their title to and for recovery of possession of 10.24 acres of land along with mesne profits. The plaintiffs case was that the defendants notwithstanding the redemption of the mortgage were in illegal occupation of the lands and hence they are bound to surrender possession of the properties together with mesne profits for the period they have been in such illegal possession. The defendants contested the claim of the plaintiffs on the ground that the disputed lands were never the baksht lands of the proprietors of the village but on the other hand the lands were really their raiyati qaimi kasht lands and that the plaintiffs never purchased the disputed lands and therefore they had no title to the suit lands. The trial Court dismissed the suit holding that the plaintiffs had no subsisting title to the suit lands as they never purchased the same and that the suit was barred by limitation as the defendants had been in adverse possession for over the statutory period. On appeal by the plaintiffs (First Appeal No. 143 of 1948) the Patna High Court held that the plaintiffs were the purchasers of the suit lands and that the plaintiffs had been in possession only as mortgagees. The High Court set aside the decree of the trial Court and granted the reliefs of declaration and recovery of possession as well as mesne profits as prayed for by the plaintiffs. The defendants on certificate issued by the High Court, filed Civil Appeal No. 533 of 1960 in this Court. By its judgment dated May 4, 1962 this Court set aside the judgment of the High Court and restored the decision of the trial Court dismissing the plaintiffs' suit. The judgment of this Court is reported in Suraj Nath Ahir and Ors. v. Prithinath Singh and Ors., (1963) 3 SCR 290 . We will refer later to the reasons given by this Court for dismissing the plaintiffs, suic. An application filed by the plaintiffs for reviewing the said order was dismissed by this Court on December 10, 1962.

(3.) At this stage we may mention that when First Appeal No. 143 of 1948 was pending before the Patna High Court, the Act had come into force on September 25, 1952 and by virtue of the notification issued by the State Government Under Section 3(1) the estate in which the suit lands are situated passed to and vested in the State on January 1, 1956. In consequence of the judgment of the High Court dated January 28, 1958, the plaintiffs took possession of the lands from the defendants on May 6, 1959. As the decision of the High Court was reversed by this Court on May 4, 1962, the defendants filed on June 25, 1962 Miscellaneous Case No. 110 of 1962 before the Subordinate Judge, Arrah Under Section 144 C.P.C. claiming: (a) redelivery from the plaintiffs of the suit lands, (b) mesne profits from May 6, 1959, the date when the plaintiffs took delivery of possession, upto the date oi redelivery and (c) refund of costs realised by the plaintiffs in the title suit proceedings. These restitution proceedings are the subject of consideration before us.