U.C. Sharma, J.@mdashThis is a plaintiff''s appeal against a judgment of reversal passed by the 2nd Additional District Judge, Purnea, on 15th Dec., 1976. The appeal arises out of a suit for declaration of title and possession with respect to 56.80 acres of land of Khata No. 10 of village Loluka, Police Station, Amour, District Purnea.
2. The plaintiffs case was that the suit lands belonged to one Kafuluddin who created a wakf by means of a deed. Fazlur Rahman was the mut-walli of the waqf during the year 1952-53. After the death of Fazlur Rahman, his son, Abdul Rahman acted as mutwalli for sometime, and thereafter the plaintiff was duly appointed as Mutwalli. It is said that during the mutwalliship of late Fazlur Rahman the suit lands were taken over by the Collector on 29-7-1952 under the Bihar Waste Lands (Reclamation, Cultivation and Improvement) Act, 1946 (hereinafter called the Act), for a period of 10 years. The said period expired in 1962. The same having not been returned, the present suit has been filed. It appears that while the Collector was in possession of the said lands he made settlement in favour of the respondents 2 and 3.
3. Shortly stated, the defendants'' case was that the lands in suit were parti, waste and jungle lands from before and, therefore, in the year 1952 the possession of the same was taken over by the Collector under the Act Since the lands were tenure, they vested in the State of Bihar in 1955 under the provision of the Bihar Land Reforms Act, and, therefore, the plaintiff had no title and was not entitled to possession.
4. The trial Court, after consideration of the matter, held that the plaintiff had title and was entitled to possession, and (on) these findings it decreed the suit. On appeal by the State of Bihar and others, the judgment was reversed on the finding that the plaintiff had no right, title or interest in the suit lands after coming into force of the Land Reforms Act. The plaintiff has, therefore, filed this appeal.
5. Learned counsel appearing on behalf of the appellant contended that in the year 1952 when the lands in dispute were taken possession of by the Collector, he was in khas possession of the same and, therefore, the Collector''s possession would be deemed to be the possession on behalf of the plaintiff, and as such the lands in question would not vest in the State of Bihar. The learned Advocate-General appearing for the respondents repelled the argument and contended that after the issue of notification u/s 3 of the Land Reforms Act, the lands in question vested in the State of Bihar and, as the plaintiff was not in khas possession of the same on the date of vesting, he was not entitled to possession.
6. There is no dispute in this case that the lands is question were tenure holding and the plaintiff was the tenure-holder. It is also admitted that the possession of the lands in question was taken over by the Collector under the Act.
7. In the background of the above admitted facts it has to be considered whether the lands in question vested in the State of Bihar under the provisions of the Land Reforms Act. Section 3 of the Land Reforms Act vests the Government with the power to issue notification declaring that the estate or tenures of a proprietor or tenure-holder have passed to and became vested in the State. Section 4 relates to consequences of vesting. It provides that on the publication of the notification u/s 3 (1) certain consequences shall ensue. One of the consequences is that all such estates or tenures which have been notified shall, with effect from the date of vesting, vest absolutely In the State, and the proprietor or tenure-holder of such estate or tenure shall cease to have any interest other than the interest expressly saved by any provision of the Land Reforms Act In view of the clear provisions of law it is futile to urge that the tenure in question comprising the lands in dispute did not vest in the State. The only thing which has to be considered now is whether this tenure is saved by any provision of the Land Reforms Act. Section 6 provides:
"6 (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.....shall.....be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof.....
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So, what is saved u/s 6 to the "khas possession" of an intermediary. The plaintiff has, therefore, to prove his khas possession over the disputed lands on the date of vesting. The term "khas possession" has been defined in Section 2 (k) of the Land Reforms Act like this:
" ''Khas possession'' used with reference to the possession of a proprietor or tenure-holder of any land and for agricultural or horticultural purposes means thp possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operation thereon himself with his own stock or by own servants or by hired labour or with hired stock".
What the plaintiff has to prove for showing his khas possession is that the lands in question were used for agricultural or horticultural purposes on the date of vesting and that he was cultivating the lands or carrying on horticultural operation himself or by his servants or hired labour with his own stock or hired stock. If he proves all that, he would be deemed to be a statutory tenant with respect to the disputed lands entitled to hold possession. If not, he would be deemed to have lost title and possession.
8. It is admitted that the Collector took over possession of the disputed lands under the provisions of the Act in the year 1952. It was contended on behalf of the appellant that the plaintiff was in possession through the Collector and, therefore, his lands would be saved from the operation of the provisions of the land Reforms Act, The learned counsel reinforced his argument by citing some authori-tie It was, however, clearly state-ed that there was no case directly in point but he was referring to them by way of analogy. It was also argued that the Collector, in the circumstances, was a trustee for the plaintiff. Before considering the argument and the authorities, it would be useful to examine some of the provistors of the Act. The very preamble of the Act shows that it provides for the reclamation, cultivation and improvement of waste and unproductive lands. If the Collector is satisfied that it was necessary to bring any waste and unproductive land under cultivation and the State Government should take possession, he may serve notice on the landlord u/s 3 and enter upon and take over possession of the land. u/s 4 (1) Collector''s possession may continue for a period not exceeding ten years. Section 4 (2) provides that during the period of possession the Collector may retain the land in his khas possession and arrange for its reclamation, etc. The consequence of taking over posses-sion by the Collector will be that all claims of the landlord in respect of the land shall be barred and no fresh proceedings shall be instituted in respect of any such claim. u/s 1, the expenditure incurred by the Government on reclamation, cultivation and improvement may be recovered from the landlord who was in, or was entitled to. possession of the land on the date of Collector''s taking over posses- sion. When reclamation and improvement is complete the Collector may restore the possession to the landlord u/s 8 of the Act.
9. The above examination of the different provisions of the Act would show that what is taken possession of by the Collector is the waste and unproductive land, he would continue in possession for a fixed period. During the period he would retain "khas possession" and the landlord shall not be entitled to recover anything in respect of such land and all his claims shall be barred. After reclamation and improvement is complete, the Collector may restore possession to the landlord. It is obvious that since the Collector takes and retains "khas possession", the landlord cannot be said to be in possession or to have any right to possession during Collector''s possession. It is not the plaintiff''s case that the land was used for agricultural or horticultural purposes and the landlord plaintiff was in possession by cultivating the same when the Collector took over. So the plaintiff was not in khas possession on that date. It has been found that the Collector was in khas possession of the disputed lands and not the plaintiff on the date of vesting in 1955. It has, therefore, to be held that the lands in question vested in the State of Bihar and the plaintiff lost his title and possession.
10. Learned Counsel, however, relied on certain decisions of this Court for the proposition that the Collector''s possession would be deemed to be the plaintiff''s possession and he would be deemed to be in khas possession of the disputed lands on the date of vesting, None of the cases cited by the learned counsel is directly in point but he relied on them by way of analogy. He referred to the case of Bilat Singh v. Hafiz S. S. Ahmad 1968 BLJR 52. It would appear from the facts of that case that the property vested under the Bihar Land Reforms Act when it was under attachment. It was held that there could be no vesting and the person in possession before the date of attachment would be deemed to be in possession on the date of vesting; Ga-nesh Choudhury v. M. P. Singh 1963 BLJR 906was a case where the vesting had taken place when the stay order of the Court was in force. In that case, the plaintiff obtained decree for possession but the execution of the decree for delivery of possession was stayed. While the stay order was in operation the vesting took place. In those circumstances, their Lordships held that the plaintiff cannot be deprived of the benefits given u/s 6 of the Land Reforms Act. These cases were based on the principle that the act of Courts should do no injury to the suitors. But that is not the case here. Here, the plaintiff was not deprived of the possession as a result of any order of the Court. In the present case the plaintiff lost possession under the provisions of a statute, Therefore, the cases referred to above are of no help to the appellant.
11. Attention was also drawn to the case of Rashmi Kuar v. Mosstt. Hiya-wati Kuer1968 Pat LJR 571 where possession of the property was with licensee when, the vesting took place; it was held that the possession of the licensee would enure to the benefit of the licensor. Learned counsel submits that this case is nearest to the present case. I am, however, not prepared to accept the agrument. License is a sort of permission granted by the owner of the property in possession to do something, and thereby possession of the property is not transferred to the licensee. Owner still continues in possession in spite of the licence. His Lordship clearly observed that there will be no question of ouster of the licensor by the licensee. This case also does not help the appellant. Proceeding on the clear definition of the words "khas possession" in the Act itself, it is not possible to hold that though the plaintiff was not in possession on the date of the vesting, he would be deemed to be in possession through the Collector.
12. It was also urged that the possession of the Collector in the present case was that of a trustee. ''Trust'' has been defined in the Indian Trusts Act. It is like this;
"A ''trust'' is an obligation annexed to the ownership of the property, and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another, or of another and the owner."
It would appear that trust is an act of parties creating an obligation, and it arises out confidence. I do not see how this definition can be applied to a case where the property has been taken over by a Collector under the provi- sions of a statute. No question of obligation nor of confidence arises from an act done under a statute. Therefore, it cannot be said that the Collector in this case was a trustee on behalf of the plaintiff.
13. Having heard learned counsel and considered the arguments. I am of the view that the lands in question vested in the State of Bihar and the plaintiff lost all title and possession after vesting, and he is not entitled to a decree, as prayed for, The suit has been rightly dismissed by the appellate Court. Accordingly, the appeal is dismissed with costs.
