KAVIRAJ BASUDEVANAND Vs. MAHANT HARIHAR GIR DEAD

JUDGEMENT

(1.) This litigation which began in the year 1937 has come up for consideration before us in this appeal and we are not sure that this is the end. In that year one Dhirendra Nath Banerjee filed a suit for partition and allotment of his 3 annas 3 pies share out of 16 annas in 32 villages and a 4 annas share in another village in the Hazaribagh district of Bihar. A preliminary decree for partition was passed in 1939. Appeals against the preliminary decree were dismissed in 1943 and in 1945 the present appellant (he is now dead and his heir has been added as party) purchased Banerjee's share and he was added as a co-plaintiff in 1947. In 1950 the Bihar Land Reforms Act came into force and all these village vested in the State of Bihar on 8-9-1952 in pursuance of a notification issued under that Act. In consequence the State of Bihar was added as a party some time in 1952. A commissioner was appointed to effect a division of properties and he submitted his report in March 1952. In May, 1952 a compromise was entered into among the various parties in the suit. To this consent order the State of Bihar, in whom the properties had vested, was not a party. A final decree was, however, passed in terms of the consent between the parties. There was in these proceedings an application for appointment of receiver. The order appointing a receiver led to an appeal being filed before the Patna High Court wherein that Court observed that "the plaintiff's suit for partition must be held infructuous as he had no right in law now to the properties, including the mines, which were the subject matter of the partition suit, which have all vested in the state". The present appeal is, however, against the judgment of the High Court of Patna in the appeals filed by the various defendants against the final decrees passed in the suit.

(2.) Along with the appeal, appeals against the orders in certain other petitions were also disposed of by the High Court. It is only necessary to refer to Civil Revision Petition No. 891 of 1958 which the plaintiff filed against the order of the Subordinate Judge rejecting his prayer for amendment of the plaint. In that petition for amendment he had prayed:

(3.) In the main appeal the Court held that the final decree passed by the Court below could not be maintained and must be set aside. The main reason was that the plaintiff's suit for partition had become infructuous, that he had no right in law now to the properties, including the mines, which were the subject matter of the partition suit, as they have all vested in the State, that from the date of vesting the original title of the proprietor completely vanished and new title had come into existence. The contention of the plaintiff that the working mines and the bakhast and zirat lands were not taken over by the State and the suit at least with respect to such properties must succeed was also rejected by the Court. As to working mines, it was held that they also vested in the State, thereby extinguishing the old title, and the intermediary, who had been working the mines directly at the time of vesting was entitled to retain possession of those mines as lessee under the State, and the benefit of Section 9 of the Bihar Land Reforms Act was not available to all persons jointly interested therein before the date of vesting and it was restricted to the person, i.e. the intermediary directly working the mines. The conseqeunce of that provision was held to be that the co-sharer intermediaries who were not concerned in the operation of the mines will have no interest therein.