Vakil Shri Krishna Nath Sinha vs The State of Bihar and Others

B.P. Singh, J.—In this writ application the petitioner has assailed the order of the Sub-divisional Officer (Respondent No. 4) dated 25.7.1977 (Annexure-5) and the order passed by the Commissioner (Annexure-8) dated 26.3.1981. By Annexure-5 the Sub-divisional Officer allowed the application made by Respondent No. 5 u/s 71A of the Chhotanagpur Tenancy Act, 1908 and directed restoration of the land in question in his favour. On appeal the said order was set aside by the Additional Collector by his order dated 15.9.1978 (Annexure-7) but in revision the Commissioner, South Chhotanagpur Division set aside the order of the Additional Collector and restored the order of the Sub-divisional Officer. The order of the Commissioner is Annexure-8 and is dated 26th March, 1981. The facts relevant for the disposal of the install writ application are that the land in question is plot No. 175 measuring O.51 (51 decimals) under khata No. 30 of village Nawdiha. This land was originally recorded as ''Naukarana'' holding in the name of the predecessors-in-interest of respondent No. 5 for rendering personal service to the ex-landlords. The predecessors-in-interest of respondent No. 5, were allowed to appropriate the produce of the land in lieu of wages. It appears that Title Suit No. 18/4 of 1951-52 was filed by the then landlords against the predecessors in interest of respondent No, 5 claiming restoration of possession of the land in suit. It was the case of the then landlords that the defendants in the suit were not performing any service and therefore they were entitled to resume the land in their khas possession. The learned Additional Munsif, Ranchi, decreed the said suit on contest with cost by his judgment and decree dated 23.7.1952. An appeal was preferred against the judgment and decree in the title suit but the appeal was also dismissed by the judgment dated 16th July, 1953 by the Special Subordinate Judge, Ranchi. The aforesaid judgments in the title suit, and in appeal therefrom, have been annexed as Annexures 1 and 2 to the writ application. Pursuant to the decree, the landlords took delivery of possession of the land in question. This happened before the vesting of the estate in the State of Bihar under the provisions of Bihar Laud Reforms Act. Factually, on the date of vesting the landlords were in actual possession of the land in question.

One further fact which is worth mentioning is that there was a partition in the family of the landlords in the year 1936 and by virtue of the partition effected in Partition Suit No 31 of 1936, the land in question fell to the share of the petitioner alone. The name of the petitioner is Vakil Shri Krishna Nath Sinha. Another brother of his is Wakil Bal Krishna Nath Singh (Respondent No. 6) in the instant writ application. The factual position which is not in dispute is that the petitioner herein was in actual possession of the land in question by virtue of the decree passed in his favour before the estate of the intermediary vested in the State of Bihar under the provisions of the Bihar Land Reforms Act. From Annexure 3 and 3/1 to the writ application it appears that a writ of delivery of possession was issued in Execution Case No. 6 of 1953, on 9th July, 1953 and was dismissed on full satisfaction on 15.12.1953. The petitioner further contends that by order dated 4.11.1964 in Revenue Appeal No. 146 (R) of 1962-63, rent in respect of the land in question was fixed by the Additional Collector, Ranchi and his name has been mutated in the records of the State of Bihar in respect of the land in question.

Respondent No. 5 herein made a complaint before the Sub-divisional Officer, Lohardaga, for restoration of the plot of laud in question u/s 71A of the Chhotanagpur Tenancy Act. This application was made in the year 1977. It appears that some other raiyats of village Nawdiha had also filed restoration applications against Wakil Bal Krishna Nath Singh (Respondent No. 6 herein). In none of these restoration applications, the petitioner was made a party. It is not necessary to refer to the other restoration applications dealing the other plots of land, but so far as the restoration application in relation to the plot of land in question is concerned, respondent No. 6 appeared before the respondent No. 4 and stated that the plot of land in question had not fallen to his share, and that he was not in possession of the aforesaid land. He stated that the plot of land in question had fallen to the share of the petitioner, and it was the petitioner who was in possession of the land in question. Despite this assertion of respondent No. 6 in the proceeding before the Sub divisional Officer, it appears that no notice was issued to the petitioner and the proceeding continued in his absence. Ultimately, by Annexure-5 dated 25.7.1977 respondent No. 4 allowed all the applications for restoration including the one relating to the land in question.

Respondent No. 6 herein preferred an appeal against the order of the Sub-divisional Officer (Annexure-5) before the Additional Collector, Ranchi. The Additional Collector Ranchi, set aside the order of the Sub-divisional Officer and dismissed the application u/s 71A of the Chhotanagpur Tenancy Act. Against the appellate order, respondent No. 5 herein preferred a revision before the Commissioner, South Chhotanagpur Division, Ranchi. The said revision was allowed by the Commissioner and hence the order of restoration of land in question passed by the Sub-divisional Officer was restored.

Mr. N.K. Prasad, learned counsel appearing on behalf of the petitioner submitted that admittedly the plot of land in question stood recorded in the name of the petitioner. The land in question had fallen to his share in a partition effected as early as in the year 1936. The State of Bihar had recognised him as a tenant under the State of Bihar in respect of the land in question, and was realising rent from the petitioner. ln the record of rights as well the name of the petitioner has been entered. In this view of the matter the proceeding initiated by Respondent No. 5 u/s 71A of the Chhotanagpur Tenancy Act could not be entertained in the absence of the petitioner. The order of the Sub-divisional Officer was therefore illegal, since it was passed in a proceeding in which the petitioner was not made a party. He secondly submitted that in any view of the matter, respondent No. 5, in the facts and circumstances of the case, was not raiyat within the meaning of the Chhotanagpur Tenancy Act, and consequently could not maintain an application u/s 71A of the Act for restoration of the land in question.

I may consider the second submission first. It is not in dispute that even in the record of rights the land was recorded as ''Naukarana''. It is well known that ''Naukarana'' holding is in the nature of grant (loosely so called) whereunder the landlord permits his tenant to cultivate land and to appropriate produce thereof in lieu of the wages. In law, as it stood prior to the vesting of the estates under the Bihar Land Reforms Act, if the holder of such a grant refused to render service, or his services were not required by the landlord, he was obliged in law to hand over possession to the landlord and could not continue in possession. Such a cultivator of the land did not acquire any tenancy rights or occupancy rights. Mr. N.K. Prasad, learned counsel is therefore right in submitting that such possession of the servant was mere permissive possession and not possession as a raiyat. It also amounted to "Khas Possession" of the landlord through his servants. In support of this proposition learned counsel relied upon a Division Bench Judgment reported in Sidhi Binayak Nath Mishra and Others Vs. Ganga Ram Hazam and Others, . The decision of this Court no doubt supports his submission.

Such being the legal position, the question that arises for consideration in the instant writ application is whether respondent No. 5 could maintain an application for restoration u/s 71A of the Chhotanagpur Tenancy Act. Learned counsel for the petitioner emphasised the fact that much before the estate of the intermediary vested in the State of Bihar u/s 6 of the Bihar Land Reforms Act, the intermediary, namely, the petitioner, had already come in actual possession of the land in question. That being so, the land in question was saved under the provisions of section 6 of the Bihar Land Reforms Act being in his "Khas" possession" within the meaning of the Act. He emphasised that in view of the law well settled by a series of decisions following Surajnath Ahir and Others Vs. Prithinath Singh and Others, , it has been consistently held that "khas possession" u/s 6 of the Bihar Land Reforms Act refers to the actual possession of the intermediary. What is important for the purpose of section 6 of the Bihar Land Reforms Act is the "Khas possession" of the intermediary and the crucial date is the date on which the estate of the intermediary vested in the State of Bihar. It wag further submitted that much before the estate vested in the State of Bihar u/s 6 of the Bihar Land Reforms Act. he had come in actual physical possession of the land in question by reason of a decree passed in a duly constituted proceeding before a civil court. His right to claim possession, in view of the fact that the predecessors in the interest of respondent No. 5 had refused to render service, was declared by the civil court and in pursuance to aforesaid judgment and decree passed in a title suit which was affirmed in appeal, the petitioner came in possession of the land in question. Since he came in possession of the land in question under a valid decree, he can not be dispossessed by an order u/s 71A of the Chhotanagpur Tenancy Act.

Learned G.P. II appearing on behalf of the State contended that in law, if the status and title of the petitioner was declared in a duly constituted suit by a civil Court of competent jurisdiction, such a decree cannot be set aside or ignored even in a proceeding u/s 71A of the Chhotanagpur Tenancy Act unless it is shown that the decree was either collusive or was obtained by the practice of fraud, under influence etc. which would vitiate the decree. He also did cot controvert the legal position that in law as it then stood, where a person holding a ''Naukarana'' holding refused 10 render service the master was entitled to resume possession of the land given to such a servant.

The learned Commissioner in his revisional order has ignored the judgment and decree passed in title suit, and thereafter in appeal, whereby the petitioner came in possession of the land in question. The aforesaid judgments are Annexures-1 and 2 to the writ application. The Commissioner gave two reasons for ignoring the aforesaid judgment and decrees. He firstly held that the decree was obtained by compromise. He secondly held that the decree was a collusive decree. I have carefully gone through the relevant records. First reason given by the Commissioner is an error apparent on the face of the record. The judgment of the trial court in the aforesaid suit discloses that the suit was contested and was decreed after contest with costs. Not only that, even an appeal was preferred against the aforesaid decree and the said appeal was also dismissed. The Commissioner was, therefore, in error in thinking that the decree was compromise decree. So far as his second finding is concerned, namely, that the decree was collusive, decree, the Commissioner has not discussed any material to establish that the decree was obtained by collusion, He inferred collusion in view of the fact that he was under the impression that the decree was a compromise decree. The very basis for the inference is non-existent. Even otherwise, where a decree is alleged to have been vitiated on account of any of the vitiating factors such as collusion, mis-representation, undue influence, fraud, etc., such an allegation must be specifically made and clearly established at the trial. There is no material whatsoever to support the conclusion that the decree, passed in the aforesaid suit was collusive. The finding of the Commissioner is therefore not only vitiated by error apparent on the face of record, but also because the material finding is based on no evidence whatsoever.

The Commissioner has also referred to the amendment to section 6 of the Bihar Land Reforms Act, and has held that he must take notice of the change in law. By an amendment of section 6 of the Bihar Land Reforms Act, ''Naukarana'' land has been included in the proviso, so that if the land is in possession of the servant as a ''Naukarana'' holding, the same shall not be deemed to be the "Khas possession'' of the intermediary. The Commissioner is right in his understanding of the law, but wrong in the application of that law. The proviso of section 6 can come into play only it on the date of vesting of the estate in the State of Bihar, the servant who held the ''Naukarana'' holding was in possession. If it is found that the intermediary was himself in ''Khas possession'' and the servant was not in possession of the land in question, section 6 will protect the rights of the intermediary. In the instant case much before the vesting of the estate in the State of Bihar the intermediary, namely, the petitioner had come in possession of the land in question. Section 6, therefore, clearly applied to protect his possession, and in respect of the land in question be became a tenant under the State of Bihar. There is no dispute that the State of Bihar recognised this legal position and u/s 6 of the Bihar Land Reforms Act rent was fixed in favour of the petitioner. The Commissioner was, therefore, clearly in error in thinking that by reason of the amendment of the proviso of section 6 of the Bihar Land Reforms Act in the year 1974, respondent No. 5 was entitled to recover possession of the land in question. It is clarified in large number of decisions of Supreme Court and of this Court that the crucial question for the application of section 6 of the Bihar Land Reforms Act is the actual possession of the party concerned on the date of vesting. Admittedly, the petitioner was in possession of the land in question on the date of vesting, and therefore his interest in the land in question was saved and be became tenant under the State of Bihar by reason of the provisions of section 6 of the Bihar Land Reforms Act.

In view of the findings above, I hold that the petitioner could not be dispossessed from the laud in question. The ''Naukarana'' holding of respondent No. 5 came to an end by reason of decree passed in a duly constituted suit after contest before a court of competent civil jurisdiction. The appeal against the said decree having been dismissed, the petitioner became entitled to khas possession of the land in question in pursuance to his title to the land having been declared by the civil court. He having come in possession under a valid decree, the same cannot be ignored by the authority under the Chhotanagpur Tenancy Act while considering an application u/s 71A of the Act. Section 6 of the Bihar Land Reforms Act did not help respondent No. 5 inasmuch as on the date of vesting, the petitioner was in "Khas possession" of the land in question, In this view of the matter the application u/s 71A of the Act should have been dismissed.

The other objection raised by the petitioner that he was not made party in the proceeding is also a valid objection. The petitioner was recorded tenant of the land in question on the date on which application for restoration u/s 71A of the Act was made. This fact was brought to the notice of respondent No. 4 by respondent No. 6 but despite this, the petitioner was not made a party. The entire proceeding continued in his absence and an order was passed adversely affecting his interest. The orders (Annexures 5 and 8) are therefore bad also on the ground that they have been passed in clear breach of the principles of natural justice. In the result, this application is allowed and Annexures 5 and 8 are quashed. Application filed by respondent No. 5 for restoration of the land in question u/s 71A of the Chhotanagpur Tenancy Act, 1908 is dismissed. If the petitioner has been dispossessed from the land in question in pursuance of the orders (Annexures 5 and 8), he shall be restored possession forthwith. There shall be no order as to costs.