GURUCHARAN SINGH Vs. KAMLA SINGH

JUDGEMENT

(1.) This appeal, by special leave, turns substantially on the application of Section 6 of the Bihar Land Reforms Act, 1950 (hereinafter called, the Act), to the case situation, the facts having been decided concurrently and finally in favour of the appellant. Still he lost at the stage of the Letters Patent Appeal, because a Division Bench of the High Court held that he had been robbed of his right to sue by Section 6 of the Act.

(2.) We may set out the relevant facts briefly. Although a number of items of immovable property were involved in the suit, which was for ejectment on title, the lands now in dispute at bakasht lands in the 'B' Schedule to the plaint, for easy reference called suit lands. Regarding the rest the plaintiff's suit has been decreed. Several items of property were gifted by one Ram Badan Singh to his two wives whose names were duly mutated in the revenue register. The further course of the proprietary history takes us to the creation of a wakf and the office of mutawalli which are not relevant to the controversy before us but are interesting when we remember that the donees were Hindus and yet they had executed a wakf and constituted themselves as mutawallis. This shows how community life absorbs and blends jural concepts, overriding religion in the creation of an inter-laced legal culture. This is by the way.

(3.) We may now take up the thread at the point where by further gift deeds and transfers the lands covered by the original gift deeds came to vest in the plaintiff and defendants, second party. They divided them as per a partition deed Exhibit 4/a dated October 30, 1952 whereby the suit lands fell to the exclusive share of the plaintiff, along with some other items while other properties were similarly allotted to defendants 2nd party. Undaunted by this fact defendants, second party, sold the suit lands to the defendants first party alleging an oral partition sometime before August 1952 and under cover of that case, committed trespass. Thereupon, a scramble for possession of these properties and a proceeding under Sec. 145, Cr. P.C. ensued in which the defendants, first party, got their possession upheld by the Magistrate's order dated 5-4-1954. Inevitably, the plaintiff brought the present suit in April 1955 for a declaration of his title, for possession and mesne profits on the score that his exclusive possession was by force taken away in July-August 1954 by defendants, first party. The latter put forward the plea of prior oral partition and exclusive hostile possession, tracing their claim through defendants-second party. The courts of fact found against the defendants and decreed the suit as prayed for, but in Letters Patent Appeal, the present contesting-respondents, i.e. the defendants 1st party, urged with success that the plaintiff had lost his title thanks to the operation of Sections 3 and 4 of the Act and could not salvage any interest under Section 6 thereof. The defeated plaintiff has come up to this Court, as appellant, assailing the findings of the High Court mainly on three grounds. According to Shri S. C. Misra, learned counsel forthe appellant, Section 6 of the Act applied to his case and so there was no vesting of title in the State of the suit lands. He further pressed that, any way, this case, resting on the Act, which had been on the statute book for several years, had not been set up at the earlier stages of the litigation and should not have been permitted at the Letters Patent appeal stage in the High Court for the first time. His third contention was that the deed of partition Exhibit 4/a was not legally divestative of rights in view of the provisions of the Estates Partition Act, 1897, which, in his submission, empowered the Collector alone to partition the properties, which not having been done, the lands remained in co-ownership wherefore the possession of the defendants, first party, was that of cosharers. If that were so, the possession of one co-sharer was constructive possession of the other cosharer and the plaintiff was thus in khas possession under Sec. 2 (k) of the Act and, on that basis, of Section 6 of the Act saved the disputed properties from vesting in the State. All these three-fold contentions were sought to be repelled by counsel for the respondent and we proceed to examine them.