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Judgment
299 paragraphs · 6,417 wordsThe Bihar Land Reforms Act, 1950 (hereinafter referred to as ‘the Act’), came to be enacted to provide for (i) the transference to the State
of the interests of the proprietors and tenure-holders in land of the mortgagees and lessees of such interests including interests in trees, forests,
fisheries, jalkars, ferries, hats, bazars, mines and minerals and (ii) for constitution of a Land Commission for the State of Bihar with the powers to
advise the State Government for agrarian policy to be pursued by the State Government consequent upon such transference and for other matters
connected therewith.
Section 3 of the Act empower the State Government to declare that the estates or tenures of a proprietor or tenure- holder, specified in the
notification, have passed to and become vested in the State, by notification issued from time to time. Sub- Section (2) of Section 3 of the Act provides
for mode and manner of notification. Sub-Section (3) of Section 3 of the Act states that the notification, under Sub-Section (2) shall be conclusive
evidence of the notice of the declaration to such proprietors or tenure-holder whose interests are affected by the notification. Section 3A of the Act,
which came to be introduced by amendment, lays down that the State Government may, at any time, by notification, declare that the intermediary
interests of all the intermediaries in the whole of the State have passed to and become vested in the State. Section 4 of the Act declares the
consequences of the vesting of an estate or or tenure in the State and it unequivocally states that notwithstanding anything contained in any other law,
for the time being in force, on the publication of notification, under Sub-Section (1) of Section 3 or sub-Section (1) or sub-Section (2) of Section 3A of
the Act, such estate or tenure, including the interests of the proprietors or tenure-holders in any building or part of a building comprised in such estates
or tenure etc., shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure- holder
shall cease to have any interest in the estate ‘other than the interests expressly saved by or under the provisions of this Act’.
Sub-Section (b) of Section 4 of the Act provides that all rents, cesses and royalties accruing in respect of lands comprised in such estate or tenure
on or after the date of vesting shall be payable to the State and not to the outgoing proprietor or tenure-holder and any payment made in contravention
of this clause shall not be binding on the State Government. Sub-Section (f) of Section 4 of the Act provides that the Collector shall be deemed to have
taken charge of the estate or tenure and of all interest vested in the State, under Section 4 of the Act. Sub-Section (h) of Section 4 of the Act
empowers the Collector to make enquiries in respect of any transfer including the settlement of lease of any land comprised in such estate or tenure or
the transfer of any kind of interest in any building used primarily as Office or cutchery for the collection of rent of such estate or tenure or part thereof
and if he is satisfied that such transfer was made at any time after 1st day of January, 1946, with the object of defeating any provisions of this Act or
causing loss to the State or for obtaining higher compensation, the Collector may after giving reasonable notice to the parties concerned to appear and
be heard, annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the
Collector as fair and equitable.
Section 5 of the Act prescribes that with effect from the date of vesting, all homesteads comprised in an estate or tenure and being in the
possession of an intermediary on the date of such vesting, shall be deemed to be settled by the State with such intermediary and shall be entitled to
retain possession of the land comprised in such homestead and to hold it as a tenant under the State free of rent.
Section 6 of the Act, which is relevant for the determination of the controversy involved in the present case, provides retention of certain other
lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights. It states that on and from the
date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of vesting,
including :-
(a) (i) proprietor’s private land let out under a lease for a term of years or under a lease, from year to year, referred to in Section 116 of the Bihar
Tenancy Act, 1885,
(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by
himself with his own stock or by his own servants or by hired labour or with hired stock, and
(c) lands used for agricultural or horticultural purposes forming the subject matter of subsisting mortgage on the redemption of which the intermediary
is entitled to recover khas possession thereof;
shall, subject to the provisions of Sections 7A and 7B, of the Act, be deemed to be settled by the State with such intermediary and he shall be entitled
to retain possession thereof and to hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of
such fair and equitable rent, as may be determined by the Collector.
The dispute, in the present second appeal, pertains to lands of mouza Lalganj, Thana No. 109, Police Station K. Hat (now, Maranga), District
Purnea, appertaining to C.S. Khata No. 99, C. S. Plot Nos. 10 (part) and 11 (part), corresponding to R. S. Khata No. 890, R. S. Plot Nos. 28 (0.42
decimals), 29 (0.56 decimals), 30 (0.09 decimals) and 31 (1.05 decimals), [total, 2.12 acres].
The appellant-plaintiff is aggrieved by the judgment and decree, dated 12.06.2015 and 24.06.2015 passed by learned 3rd Additional District Judge,
Purnea, in Title Appeal No. 56 of 2008, reversing the judgment and decree, dated 27.09.2008 and 24.10.2008, passed by learned Sub Judge I, Purnea,
in Title Suit No. 97 of 2001.
The plaintiff, who is respondent no. 2 herein, filed a suit, registered as Title Suit No. 97 of 2001, with his case that his grand-father, Bhaiya Lal
Yadav had got the said suit land in a partition in the year 1962. The land was found mentioning as Bakaste Malguzar, meaning thereby that Bhaiya Lal
Yadav was in cultivating possession of the land and since on the date of vesting of Zamindari, on 26.01.1955, it was in cultivating possession of the
plaintiff’s grand-father, Bhaiya Lal Yadav, the land had not vested in the State of Bihar and accordingly he continued in possession even after
publication of revisional survey khatiyan. He took a plea that when final publication of revisional survey khatiyan was made in the year 1958, name of
Sugia Devi (mother of the appellant) was wrongly recorded. In that background, the plaintiff sought for declaration of the plaintiff’s title in respect
of the suit land and conformation of his possession over the suit land. It was the case of the plaintiff that C.S. Khata No. 99 was one of the khatas of
‘C. S. Khewat No. 6’ and Bhaiya Lal Yadav was recorded as ‘Darmayani Khewatdar’ under the landlord, Mosmat Bhagwanwati
Choudhrain. After the death of Bhaiya Lal Yadav, upon partition in the family be metes and bounds, the suit land came to be allotted in the exclusive
share of the plaintiff. With respect to the cause of action, the plaintiff asserted in the plaint that on the basis of wrong survey of entry, the
defendant/appellant extended threat to take forceful possession on 28.05.2001, whereafter the necessity arose for filing the suit.
The defendant no. 1 set out his claim, in his written statement, that neither the plaintiff nor his ancestors were ever in possession over the suit land
nor were in possession of the suit land at the time of coming of the Act. Specific plea was taken that no return was filed under the provisions of the
Act, by the ancestors of the plaintiff on the basis of which a case of deemed settlement of land with the State, under Section 6 of the Act, could be
made out. He also took a plea that at no point of time, the State of Bihar ever accepted the ancestors of the plaintiff as raiyat of the suit land. The
appellant took a plea that the name of the appellant’s mother, Sugia Devi, was recorded in the revisional survey, which was published in the year
1958, on the basis of a registered patta, in the name of her father, Late Singheshwar Das. A jamabandi was accordingly created. Late Singheshwar
Das had taken possession over the suit land on the basis of registered patta, issued by Late Bhaiya Lal Yadav in the year 1950. A residential house
was also located on Khesra No. 28 of the land and rest of the suit land was being used for agricultural purpose by the appellant/defendant. The
appellant/ defendant, accordingly, pleaded, in the written statement, that ever since 1950, neither Bhaiya Lal Yadav nor his successors were ever in
possession over the suit land.
The sister of the appellant/defendant no. 1 was impleaded as defendant no. 2 in the plaint. Her stand, however, was different from the stand of the
appellant in her written statement inasmuch as she stated that her mother, Sugia Devi, did not possess the suit land at any point of time.
The Trial Court, on the basis of rival pleadings, framed 13 issues, including Issue Nos. 8 to 12, which are as follows:-
“8. Whether the ancestor of the plaintiffs submitted any return according to the Bihar Land Reforms Act?
Whether Singheswar Das had taken permanent settlement of the suit land by virtue of the registered patta from Bhaiya Lal Yadav, in the year
1950?
Whether entry of the name of the mother of the defendant, Sugia Devi, in the revisional survey record of rights was correct?
Whether on the basis of record of rights, jamabandi opened in the name of Sugia Devi, the State Government recognized Sugia Devi as raiyat of
the said suit land?
Whether the plaintiff or his ancestor was in khas possession over the suit land on the date of vesting of khewat right on the Khewatdar?â€
From the records, it transpires that the plaintiff/respondent examined altogether 9 (nine) witnesses to support his case and proved certain
documents, including rent receipt for the year 1965-66 for 9 acres 48 decimals of land under jamabandi no. 578, in the name of Bhaiya Lal Yadav,
under mouza Lalganj, which, however, did not contain the description of the land, like khata number or plot number (Exhibit-1). He also proved a
purcha issued at the initial stage of survey in the name of Bhaiya Lal Yadav, on the particulars of which there were over-writing and re-writing
(Exhibit-3). He also proved three zamindari rent receipts for the khewat or khata no. 6, area 11 acres 92 decimals (Exhibits 5 to 5/b). Revisional
survey record of rights of Khata No. 890 (Exhibit-6), cadestral survey records of right in respect of Khata No. 97, 98, 99 and 100, in the name of
Bhaiya Lal Yadav (Exhibit 6/A), certified copies of revisional survey record of rights in respect of Khata No. 577, 578 and 58, in the name of Bhaiya
Lal Yadav (Exhibit-6/b) and maps of Lalganj (Exhibit-7 and 7/a), were also proved by the plaintiff.
The plaintiff, however, did not produce any document to show that he had paid any rent to the State of Bihar and obtained rent receipts at any
point of time. It appears from the evidence on record that the plaintiff admitted that he obtained rent receipts in respect of other lands, except the suit
lands, and for the first time in the year 2001 when he failed to obtained rent receipts of the suit land since there was wrongful entry of the name of
Sugia Devi in the revisional survey record of rights, he filed the suit.
The appellant defendant no. 1 also got examined 7 (seven) witnesses in his support, including himself and proved certain documents. He proved
registered patta, executed by Bhaiya Lal Yadav in favour of Singheshwar Das, as Exhibit-B, for cultivation. In addition, he proved 08 (eight) rent
receipts in the name of Sugia Devi, under jamabandi no. 890 of the land of Khata No. 890, for 2.13 acres of land and the name of payer is Nebi Das,
the appellant. He also proved Exhibit-D, the record of rights of Khata No. 890 of Mouza Lalganj, Thana No. 109, touzi no. 8/5, recorded in the name
of Sugia Devi, in respect of Plot Nos. 30, 28, 29 and 31 (total area, 2 acres and 13 decimals).
On the basis of the evidence adduced at the trial, it was the plea of the appellant before the Trial Court that the land of Khata No. 99 was khewat
land, recorded in the name of Bhaiya Lal Yadav, who had executed registered patta in favour of Sugia Devi before vesting of zamindari and,
therefore, with the vesting of zamindari, khewat right stood vested in the State of Bihar and during the survey operation, since Sugia Devi was found in
the cultivating possession of the suit land, the same was recorded in her name.
The Trial Court, by its judgment and decree, dated 27.09.2008, decided the said issues, i.e. Issue Nos. 8 to 12, against the plaintiff and dismissed
the suit.
Aggrieved by the judgment of the Trial Court, the plaintiff preferred an appeal, giving rise to Title Appeal No. 56 of 2008. Learned appellate court
below, by the impugned judgment and decree, dated 12.06.2015, has allowed the appeal and set aside the judgment and decree, dated 27.09.2008, and
has decreed the suit in favour of the plaintiff, confirming his right, title, interest and possession over the suit land, restraining the appellant/defendant
permanently from interfering with the peaceful possession of the plaintiff over the suit land.
Learned appellate court below re-appreciated the evidence adduced before the Trial Court, opined that Exhibits 6/A, 4 and 6/B together proved
that during survey operation, Bhaiya Lal Yadav was in khas cultivating possession of the lands of Khata No. 99 and, therefore, exempted from the
operation of Sections 3, 3A and 4 of the Act and accordingly said Bhaiya Lal Yadav acquired the statutory status of occupancy raiyat in respect of
the land of C. S. Khata No. 99. Accordingly, said Bhaiya Lal Yadav had full right, title, interest and possession over the lands carved out of lands of
Khata No. 99. On the question of submission of return, the appellate court below observed that the same was lacking and the return would have been
the conclusive proof of acquiring of statutory right in respect of lands of C. S. Khata No. 99, but held that since said Bhaiya Lal Yadav had acquired
statutory right in respect of the lands in question by operation of law, keeping in view of his khas cultivating possession, non-filing of return would not
affect the claim of the plaintiff. The appellate court below observed that since Bhaiya Lal Yadav was accepted as raiyat in respect of the lands
carved out of the C. S. Plot No. 99, vesting of khewat right in the State of Bihar did not affect the right, title and possession of Bhaiya Lal Yadav in
respect of the said lands, including the suit lands. The appellant court below relied on Section 6 of the Act, which, according to him, exempted said
Bhaiya Lal Yadav, from operation of Section 4 of the Act.
Referring to Exhibit-B, the registered patta, on which the appellant/defendant had relied on, executed by Bhaiya Lal Yadav, the appellant court
below held that the same did not relate to the suit land and the defendant failed to prove that he had acquired any manner of right on the strength of
said registered patta.
The appellate court below, thus, concluded that Bhaiya Lal Yadav had acquired all manners of right, title, interest and possession over the lands,
carved out of the lands of C. S. Khata No. 99, being in khas cultivating possession of the land by operation of Section 6 of the Act and, therefore, the
State Government did not have any right in respect of the said land except to fix the rent nor to accept Sugia Devi as raiyat in respect of the suit land.
Learned appellate court below held that the defendant could not proved that Sugia Devi was the only daughter of Singheshwar Das.
Since the dispute between the parties, to a considerable extent, centers around the question of exemption, under Section 6 of the Act, which
provides for deemed settlement by the State in respect of lands used for agricultural or horticultural purposes, which were in khas possession of an
intermediary, with such intermediary, based on which the appellate court below held said Bhaiya Lal Yadav to be a raiyat having occupancy rights
under the said provisions, this Court had formulated following substantial questions of law, which the second appeal involved, by order, dated
12.09.2017, while admitting the appeal:-
“The only substantial question of law, which the present second appeal involves, is as to whether even without having filed return, under the
provisions of the Bihar Land Reforms Act, 1950, the defendants/plaintiffs could establish their right, title and interest over the suit property on the
ground of being Khewat and thereby in khas cultivating possession over the suit property.â€
In course of hearing of the appeal, another substantial question of law arose, which came to be framed, in the order, dated 12.10.2017:-
“Whether the lands in khas possession of intermediaries could be said to have been retained by the plaintiff as raiyat having occupancy right taking
advantage of Section 6 of the Bihar Land Reforms Act in the absence of any proof of payment of rent.â€
Learned Counsel appearing on behalf of the parties have been heard and they addressed the Court with reference to the two substantial questions
of law, as noted above.
Before I proceed to consider rival submissions, I consider it apt to re-produce Section 6 of the Act, which is relevant for determination of this
case.
“6. Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy
rights. - (1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary
on the date of such vesting, including. -
(a) (i) proprietor's private land let out under a lease for a term of years or under a lease, from year to year, referred to in Section 116 of the Bihar
Tenancy Act, 1885 (8 of 1885),
(ii) landlord's, privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year
or less; referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908),
(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by
himself with his own stock or by his own servants or by hired labour or with hired stock, and
(c) lands used for agricultural or horticultural purposes forming the subject-matter of a subsisting mortgage on the redemption of which the
intermediary is entitled to recover khas possession thereof;
shall, subject to the provisions of Sections 7A and 7B, be deemed to be settled by the State with such intermediary and he shall be entitled to retain
possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and
equitable rent as may be determined by the Collector in the prescribed manner:
Provided that nothing contained in this sub-section shall entitle an intermediary to retain possession of any naukarana land or any land recorded as
chaukidari chakran or goraiti jagir or mafigoraiti in the record of right has already accrued to a raiyat before the date of vesting.
Explanation. - For the purposes of this sub-section, 'naukarana land' means land as a grant burdened with service in lieu of rent or held simply in lieu
of wages for services to be rendered
(2) If the claim of an intermediary as to khas possession over the lands referred to in sub- section (1) or as to the extent of such lands is disputed by
any person prior to the determination of rent of such lands under the said sub-section the Collector shall, on application, make such inquiry into the
matter as he deems fit and pass such order as may appear to be just and proper.
Provided that the Collector in making such inquiry shall give due weight to the circumstances under which the area in which such lands were situated
was declared to be a disturbed area under the Police Act, 1861, after the first day of November, 1946.â€
It is evident from reading of Section 6 of the Act that despite issuance of notification under Section 3 or 3A of the Act, which has the
consequence of vesting of an estate or tenure in the State, such lands used for agricultural or horticultural purposes, which are in khas possession of
an intermediary on the date of the vesting, shall be deemed to have been settled by the State with such intermediary and he shall be entitled to retain
the possession thereof and hold them as raiyat under the State having occupancy right in respect of such lands, but subject to ‘payment of such fair
and equitable rent as may be determined by the Collector in the prescribed manner’. It is true that by operation of the said section, an intermediary
would be deemed to be a raiyat under the State having occupancy right in respect of lands, which were used by him for agricultural or horticultural
purposes on and from the date of vesting, such vesting is absolutely subject to payment of fair and equitable rent to be determined by the Collector in
prescribed manner. To acquire status of a raiyat having occupancy right, under Section 6 of the Act, an intermediary will have to declare that such
lands were being used by him for agricultural or horticultural purposes and were in his khas possession on the date of such vesting.
Section 3B of the Act contains the significant provisions to answer substantial questions of law framed in the present case. As has been noticed,
under Section 3A of the Act, the State Government may, at any time, by notification, declare that intermediary interests of all the intermediaries in the
whole of the State of Bihar had passed to become vested in the State. Section 3B of the Act contains provisions applicable to notification proposed to
be issued under Section 3A of the Act. It states that the State Government shall publish a proclamation in the Official Gazette, not less than three
months from the date on which it is proposed to issue a notification under sub-section (1) or sub-section (2) of Section 3A, announcing its intention to
take over, on the expiration of the said period, all intermediary interests in the whole of the State or, as the case may be, in such part of the State as
may be specified in the proclamation. Sub-Section (3) of Section 3B of the Act says that on the publication of the proclamation every intermediary
shall at any time before the expiration of the said period, make to the Collector an application in the form set out in the Schedule to this Act. Sub-
Section (4) of Section 3B of the Act states that the application shall be verified and signed in the manner provided for the verification of a plaint and
shall be accompanied by certain documents, as mentioned therein. Sub- Section (5) of Section 3B of the Act contemplates that if any intermediary
fails, without sufficient cause, to make the application to the Collector or to file the documents, certificate and declaration required by clause (4) within
the period specified in clause (3) or within such extended periods as may be allowed by the Collector in this behalf, the intermediary shall be liable to a
penalty which may extend to fifty rupees for every day after the expiration of said period or the extended period until such application has been made
and the documents, certificate and declaration have been filed and such penalty shall be realized as a public demand. The penal consequence on
failure of an intermediary to make an application in the form set out to the Schedule of the Act makes the provisions of Sub-Section (3) of Section 3B
of the Act mandatory.
Relevant portion of Section 3B of the Act are being re-produced herein below :-
“3B. Provisions applicable to notifications proposed to be issued under Section 3A. - Where it is proposed to issue a notification under
Section 3A in respect of all intermediary interests in the whole of the State, or in a part of the State, the following provisions shall apply, namely :-
(1) The State Government shall publish a proclamation in the Official Gazette, not less than three months before the date on which it is proposed to
issue a notification under sub-section (1) or sub-section (2) of Section 3A, announcing its intention to take over, on the expiration of the said period, all
intermediary interests in the whole of the State or, as the case may be, in such part of the State as may be specified in the proclamation.
(2) The substance of the proclamation shall be announced by beat of drum in all the villages of the State or, as the case may be, in the villages situate
within such part of the State as may be specified in the proclamation.
(3) On the publication of the proclamation every intermediary shall at any time before the expiration of the said period, make to the Collector an
application in the form set out in the Schedule to this Act.
(4) The application shall be verified and signed in the manner provided for the verification of a plaint and shall be accompanied by. -
(a) Such documents relating to the intermediary interests held by the intermediary as are required by the Schedule:
Provided that the Collector may dispense with the production of any document or any particulars in any statement.
(b) a certificate from the intermediary that he has not concealed or withheld any material information or particulars relating to his intermediary
interests;
(c) a declaration by such intermediary that the documents filed by him are genuine and the information furnished by him in the application is true to the
best of his knowledge and belief and that he has made no other application claiming compensation under this Act.
(5) If any intermediary fails, without sufficient cause, to make the application to the Collector or to file the documents, certificate and declaration
required by clause (4) within the period specified in clause (3) or within such extended periods as may be allowed by the Collector in this behalf, the
intermediary shall be liable to a penalty which may extend to fifty rupees for every day after the expiration of said period or the extended period until
such application has been made and the documents, certificate and declaration have been filed and such penalty shall be realized as a public demand:
Provided that where the sum of such penalty exceeds five hundred rupees, the Collector shall refer the matter to the Commissioner whose orders
thereon shall be final:
Provided further that the Commissioner may at any time, of his own motion or on the application of any intermediary, revise any order of the Collector
imposing any penalty and the order of the Commissioner on revision shall be final.
(6) When an application has been made in accordance with the provisions of this Section, the Collector shall transfer it with all the materials and
documents accompanying it to the Compensation Officer.
(7) Where an intermediary has intermediary interests in more than one district of the State, he shall, with his application to the Collector of the district
in which the major portion of his interest lies or in which he ordinarily resides, furnish particulars and documents in respect of his intermediary interests
in other parts of the State and shall state in his applications to the Collectors of other districts in which his intermediary interests lie that the particulars
and documents have been so furnished.â€
It takes me to the schedule of the Act, as referred to in Sub-Section (3) of Section 3B of the Act. The said schedule reads thus:-
“[The Schedule] [See Section 3B (3)]
Form of application under Section 3B (3) of the Bihar Land Reforms Act, 1950
To
The Collector of.................…
Sir,
Whereas the Government of Bihar have published a proclamation in the Bihar Gazette, dated announcing their intention to take over on the expiration
of a period of three months all intermediary interests in the whole of the State of Bihar/the District/Districts of .................. I /I, authorised agent of
.................. son/daughter/wife of .................. resident of village/town ...................., thana , district ................... beg to furnish the necessary
particulars in respect of all intermediary interests held by me/my client in the State of Bihar in the enclosed Statements, I, II, III, IV and V.
I file the following documents in respect of all intermediary interests :-
(i) Jamabandi of my interest in estate/tenure (of cash and produce rent).
(ii) Wasil Baki Book.
(iii) Siaha Book.
(iv) Khatian/Khewat of the estate/tenure.
(v) All counterfoils of rent receipts for one year immediately preceding the agricultural year in which the intermediary interests will vest in the State.
(vi) Register of account of Bhawli or Batai land.
(vii) Register of lands in khas possession together with the connected documents in respect of it.
Yours faithfully
..............................................…
Father's name .......................…
Village/Town .........................…
Thana .....................................…
District â€
(Emphasis is added)
It is evident thus that there is requirement in Clause (vii) of paragraph 2 of the Schedule reproduced hereinabove, to furnish register of lands in
khas possession together with the connected documents in respect of the same. Paragraph 1 of the said Schedule requires furnishing of necessary
particulars in respect of all intermediary interests in the form of statements (I), (II), (III), (IV) and (V). In column (8) of Statement (I), an intermediary
is required to disclose the area in his khas possession together with plot numbers and classification of land.
A conjoint reading of sub-Section (3) and (5) of Section 3B of the Act and the Schedule to the Act leads me to the one and the only irresistible
conclusion that it is mandatory for an intermediary to furnish necessary particulars in respect of intermediary interests, as contemplated in the
Schedule, which includes the details of the land in khas possession of such intermediary. An intermediary, therefore, can claim status of raiyat having
occupancy rights by operation of Section 6 of the Act on the ground of being in khas possession of an estate being used for agricultural or horticultural
purpose only if he declares in his application, particulars as contemplated under Section 3B (3) of the Act, asserting that the said lands were in his
khas possession, being used for the said purposes.
Before I proceed further, I may turn to the provisions in the Bihar Land Reforms Rules, 1951 (hereinafter referred to as’ the rules’),
which have been framed under Section 43 of the Act. Section 43 of the Act empowers the State Government to make rules for carrying out the
purposes of the Act which may provide for the procedure to be followed in determining fair and equitable rent in respect of certain lands deemed to be
settled with an intermediary under Sections 5, 6 or Section 7.
Evidently, thus, Section 6 of the Act is to be implemented in accordance with the procedure laid down under the said Rules.
Rule 6 of the Rules prescribes that in determining the rent payable by a proprietor or tenure-holder in respect of lands left in his possession under
Section 6 of the Act, the Collector shall have due regard to the average rate of rent payable by occupancy raiyats for the lands of similar description
and with similar advantages in the vicinity. Rule 7-A of the Rules lays down the procedure for determining fair and equitable rent and ground rent
under Rule 6, which states that for the purpose of such determination, the Collector shall observe the procedure laid down in Rules 7-B to 7-I of the
Rules. Rule 7-B of the Rules enables the Collector to ask an outgoing proprietor or tenure-holder of an estate to file application before him in Form-K,
furnishing therein a complete and accurate statement and description of all such lands lying with his jurisdiction, as may be deemed to have been
settled by the State with such proprietor or tenure holder or industrial undertaking under Sections 5, 6, 7, 7-D and 7-F, for determination of fair and
equitable rent or ground rent thereof. Sub-Rule (ii) of Rule 7-B of the Rules allows an outgoing proprietor or tenure- holder of an estate or tenure
vested in the State on his own motion without being so required by the Collector under an order under Sub-Rule (i), file such application before the
Collector furnishing the particulars prescribed in Form-K. Sub-Rule (iv) states that if an outgoing proprietor or tenure-holder or industrial undertaking
of an estate of tenure vested in the State fails to file an application in Form-K, under sub-Rule (i) or (ii), the Collector may, on his own motion, take
such action as may be deemed necessary for obtaining complete and accurate information for the purpose of determining fair and equitable rent and
ground rent, under Sections 5, 6, 7, 7-D and 7-F.
It is reiterated that it has never been the case of the plaintiff that the said proprietor, Bhaiya Lal Yadav, had ever filed any return in respect of the
disputed land, declaring the same to be in his khas possession in accordance with Section 3B (3) of the Act. The question as to whether he could
derive benefit under Section 6 of the Act would have arisen had he disclosed the lands to be in his khas possession for agricultural or horticultural
purposes. The appellant-plaintiff, who claims to be the descendant of the proprietor could not established before the Trial Court that any such return
was filed. There is no evidence to show that any application in accordance with the provisions of the Rules were made, as have been noticed.
Coming now to the question of law framed, I am of the considered view that a proprietor, without making declaration, under Section 3B (3) of the
Act, in the form prescribed in the Schedule of the Act, that he was in khas possession of the land in question, cannot establish his right, title and
interest by operation of Section 6 of the Act. In my view, filing of return, under Sub- Section (3), is mandatory for a proprietor to claim exemption
under Section 6 of the Act.
Coming to the second substantial question of law, I have already noticed, the rules framed under Section 43 of the Act. No evidence is there on
record to show that any procedure was ever undertaken for fixation of rent, as prescribed under the Rules, for the purpose of notification of Section 6
of the Act. As a matter of fact, the question of payment of rent by an outgoing proprietor will arise only after determination of fair and equitable rent
as done in accordance with the provisions of the Rules.
While dealing with second substantial question of law, I must take into account the fact that Rules 7-A to 7-I of the Rules have been introduced by
way of substitution with effect from 15.11.1972. Evidently, either the Collector could proceed suo motu for determination of fair and equitable rent or
the same could be done at the instance of the outgoing proprietor. Sub-Rule (4) of Rule 7-B of the Rules authorizes the Collector to take action if no
application, in Form-K, under sub-Rule (i) or (ii), is filed. Non- filing of application, however, does not stop the Collector from taking steps for the
purpose of determination of fair and equitable rent and ground rent. He could, however, proceed for determination of such land only if there is claim
raised by the outgoing proprietor of him being in khas possession of the land used for agricultural or horticultural purposes. Though, absence of proof
of payment of rent will ipso facto not amount to operation of Section 6 of the Act, the necessity of such determination would arise only if the outgoing
proprietor declares the land to be in his khas possession in the return itself, under Section 3B (iii) of the Act.
From the materials on record, I find that the entire case of the plaintiff/respondent is based on his claim that his grand- father, Bhaiya Lal Yadav,
deemed to have acquired status of raiyat under the occupancy rights of the State by the deeming provision under Section 6 of the Act. In the absence
of any evidence that any return was filed ever, as contemplated under Section 3B (iii) of the Act, the plaintiff/respondent could not substantiate his
claim of his right, title and interest over the suit lands.
In view of the discussion as above, the judgment and decree of the learned appellate court below, dated 12.06.2015, passed in Title Appeal No. 56
of 2008, deserves interference and are accordingly set aside.
This appeal is allowed.