BRIJ KISHORE PRASAD SINGH AND OTHERS versus JALESHWAR PRASAD SINGH AND OTHERS

Citation: [1973] 3 S.C.R. 562 · Decided: 02-03-1973 · Supreme Court of India · Bench: A.N. GROVER · Disposal: Appeal(s) allowed

Judgment (excerpt)

562 
BRIJ KISHORE PRASAD SINGH AND OTHERS 
v. 
JALESHW A;R PRASAD SINGH AND OTHERS 
March 2, 1973 
[A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.] 
Code of Civil Procedure, 1908, S. 41.-Partition suit co111pro1nised--
No decree drcwn up or executed-Subsequent suit 
~o.r possession 
of 
property allotted under compromise whether barred. 
Bihar Lan<! Reforms Act 1959, s. 5-Constructive possession suffi-
,cient to confer iright under section. 
A partitio,n suit between K and his brothers was compromised on 
July 4, 1947 and different schedules were prepared for 
the 
property 
·iallotted to the sharers. However none of the parties tg the compromise 
produced the necessary stamp paper as dij:ected bv. the Court, and no 
-decree was drawn up by t_he Court. The present suit was 
filed 
by 
the successors-in-interest of K for possession of certain property which 
under the afdresaid compromiSe had fallen to the share 
of K. 
De· 
fenda,uts 1 and 2 contended .. that K while he was alive 
executed a 
hukumn,ama in their favour and they were put in possess'ion 
of 
the 
plaint property as lessees, and so they were entitled to retain possession. 
They further contended that the suit was barred by limitation and al!o 
by section 47 of the Civil Procedure Code. The Trial Court decreed 
the suit. The decree was c~tfirmed in appeal. 
In second appeal the 
High Court held that the plaintiff should have paid stamp fee and got 
the decree drawn up in the partition suit and executed it_ and so 
the 
suit was barred by sec. 47 of Civil Procedure Code. 
The Court further 
held that since the plaint property had vested in the Bihar Government 
under the Bihar Land Reforms Act, 1959 
the 
plaintiffs 
we're 
not 
e;t>title to maintain the suit. The High Court accordingly allowe<l the 
appeal and dismissed the suit. 
In appeal by special leave to this Court 
two questions that arose for consideration were : ( 1) whether the suit 
was barred by section 47 of the Civil Procedure Code and (2) whether 
under the provi•ions of the Reforms Act the plaint property had vested 
in the Government and therefore the plaintiffs were 
incompetent 
to 
maintain the suit. 
-
Allowing the appeal, 
HELD : (i) It was clear froin the compromise 
petition 
that ihe 
defendants were permitted to occupy the plaint 
property 
until 
the 
structure which was constructed in the property was removed by them. 
·They no doubt 'remained in physical possession but that was not with 
any intention to possess the property for themselves, but because they 
were permitted to remain i.p possession until the sU"ucture constructed 
by them was removed. The only right which they claimed 
in 
the 
written statement was that they were tenants under K by virtue of the 
hukumnc.·ma executed by him in the'ir favour. At no time they asserted 
or claimed any right to remain in possession otherwise than as te:nant. 
lbeir case that K put them in p~session was found against them by 
the Trial as well as the First Appellate Court. 
But that would not 
'in any way affect the permissive nature of their possession. after the 
Compromise. 
Therefore it must be held that K was 
in 
constructive 
possessiap of the property after the compromise 
and 
the 
suit 
for 
recovery of khas possession \Vas not barred by section 47 of the Civil 
l'rocedure Code. [565CE] 
A 
B 
c 
D 
E 
F 
G 
H 
A 
8 
c 
D 
E 
F 
G 
H 
R. K. SINGH v. J. P. SINGH (Mathew, J.) 
563 
(ii) The High Court wrongly took the view that since K was not 
in possession of the property at the time the property vested in 
the 
State he 
\V~as not entitled to retain possession of the 
plaint 
projperty 
under s. 5 of the Bihar Land Reforms Act 1959, as a te1nant under 
the State free of rent. 
There was no dispute that the plaint property 
'answered the description of a homestead in s. 5 
of 
the 
Act. The 
constructive possession of ·K was sufficient to enable him 
to 
retain 
possession as tenant unde·r 
th:~ section. 
In other 
words on 
the 
date 
of vesting of the property in the Government, K was, for the purpose 
of s. 5 in possession of the plaint property. 
Whereas 
s.6 
speaks 
of 
k/ias possession 
s~ction 5 speaks only of possess'ion. 
On the date. of 
vesting of the plai:nt property in the State K was in possession for the 
purpose of s. 5 -and he became a tenant under the State free of rent. 
Accordingly the suit for recovery of possession was maintainable. f565H] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1466 o

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