BRIJ BIHARI DUBEY Vs. CHANDRA SHEKHAR TEWARY

JUDGEMENT

(1.) This appeal is directed from the order of the learned Subordinate Judge, Sasaram, dated the 6th of July, 1970 in Miscellaneous Case 48 of 1969 arising out of Execution Case 47 of 1966 levied by the present appellant and his mother Most. Phul Kali Debi, the two decree-holders. The execution case has been held by the court below to be not maintainable in view of the provisions of the Bihar Land Reforms Act, 1950 (hereinafter called the Act). Against that order, one of the decree-holders being aggrieved has come up in appeal.

(2.) The facts relevant for the disposal of this appeal are not at all in controversy. A title (partition) suit numbered 37 of 1953 was instituted by Ganesh Dubey and his son Brij Bihari Dubey for partition of their five annas nine pies share in tauzi 7060 (7069?) in village Pakpurwa. The preliminary decree in the suit was passed on the 28th February, 1955. Proceedings for preparation of the final decree were started and the pleader commissioner submitted his rcort on the 13th of January, 1956, which was confirmed by the trial Court on that very day. But, it seems, the signing of the final decree was stayed under orders of this Court during the pendency of certain matters here. Ultimately, however, the final decree was passed on the 15th of November, 1965. The subject-matter of the partition suit, as already stated above, was merely the proprietary interest of the erstwhile proprietors in the estate in question. On the 1st of January, 1956, i.e., during the pendency of the proceedings for preparation of the final decree the estate vested in the State of Bihar under Notification issued in pursuance of the provisions of Section 3-A of the Act. After the final decree was passed, Execution Case 47 of 1966 was started by Phul Kali Debi, widow of Ganesh Debey since deceased, and their son Brij Bihari. The judgment-debtors objected to the maintainability of the execution case in Miscellaneous Case 48 of 1969 on the ground that the final decree in the partition suit, which covered only milkiat interest in the tauzi in question, had become infructuous in view of the estate having vested in the State of Bihar. The executing Court sustained the objection of the judgment-debtors respondents and held the execution case to be not maintainable. The short point for determination in this case is as to whether, in view of the provisions of the Act, the execution of the final partition decree should be held to be infructuous or not.

(3.) The scheme of the act has been considered by the Supreme Court in quite a number of decisions. I may refer to some of them. They are -- Krishna Prasad v. Gouri Kumari Devi, AIR 1962 SC 1464; Raja Sailendra Narayan Bhanj Deo v. Kumar Jagat Kishore Prasad Narayan Singh, 1962 Supp 2 SCR 119 = (AIR 1962 SC 914); Suraj Ahir v. Prithinath Singh, AIR 1963 SC 454; Shivashankar Prasad Shah v. Baikunth Nath Singh, AIR 1969 SC 971; Sita Saran Singh v. Kedar Prasad Singh, (1971) 3 SCC 200 and Bhubneshwar Prasad Narain Singh v. Sidheshwar Mukherjee, AIR 1971 SC 2251. But even the earliest decision with regard to the scheme of the Act was based upon an earlier decision of the Supreme Court relating to the U. P. Zamindari Abolition and Land Reforms Act, 1950 in the case of Rana Sheo Ambar Singh v. The Allahabad Bank Ltd., AIR 1961 SC 1790. In the case of Rana Sheo Ambar Singh, the Supreme Court had to consider the provisions of the U. P. Act in relation to the question whether a simple mortgagee of an estate, which had vested in the State, was entitled to proceed against the special Bhumidari rights conferred on the mortgagor or proprietor under that Act. It was held that the simple mortgagee had no such right as the provision of the U. P. Act had rendered it impossible for the mortgagee to follow the proprietary right after it had vested in the State. In the case of Raja Sailcndra Narayan Bhanj Deo the Supreme Court held that, after a mortgagor had been divested of the mortgaged property under the Act, a redemption decree would be infructuous as the mortgagor could not be entitled to have the property reconveyed to him, the reason being the vesting of the estate in the State. This decision deals with the case of equity of redemption which right, it was held by the Supreme Court, vested in the State. In Krishna Prasad's case, it was found that the whole of the mortgaged property was an estate which had vested in the State and, therefore, the procedure prescribed under Chapter IV of the Act had to be followed, the personal decree against the mortgagor could be executed only if realisation from the mortgaged property was found insufficient. In yet another case of Raj Kishore Prasad Narain Singh v. Ram Partap Pandey, (1967) 2 SCR 56 = (AIR 1967 SC 801) the Supreme Court had occasion to consider whether in a case, where a mortgage related to two sets of property, namely, that which had vested in the State and that which had not so vested, the right of the mortgagee to pursue remedies under the ordinary law in respect of the non-vested property existed or not, and it was held that the mortgagee's rights in that regard were not affected by the Act. The decision of the Supreme Court in Suraj Ahir's case related to the maintainability of a suit by a mortgagor for recovery of possesion of the property from the mortgagee who had not parted with the possession of the property even after the redemption decree had been passed earlier in favour of the mortgagor in view of the fact that the estate had vested in the State. The Supreme Court held that the mortgagor had lost his right to recover possession from the mortgagee even if his possession was as trespasser's.