Holding

A tenant‑at‑will’s possession does not constitute "khas possession" within the meaning of Section 6(1)(b) of the Bihar Land Reforms Act, and consequently the plaintiff could not sue for possession after his estate vested in the State.

Summary

The plaintiff, an intermediary landlord, sued the respondents, tenants‑at‑will, for possession of agricultural land after a notification under Section 3 of the Bihar Land Reforms Act, 1950 had vested the plaintiff's estate in the State. The trial court held the plaintiff was in "khas" possession and could evict; the High Court reversed, holding that a tenant‑at‑will’s possession does not amount to khas possession under Section 6(1)(b) and that the plaintiff could not sue after vesting. On appeal, the Supreme Court examined the meaning of "khas possession", the rights of a tenant‑at‑will, the requirement of a notice to quit expiring with the agricultural year, and procedural issues of re‑agitating abandoned contentions. It held that the tenant‑at‑will’s possession is not khas possession, the plaintiff lost his interest when the estate vested in the State, and the appeal was dismissed.

Issues considered

The meaning of "khas possession" under Section 6(1)(b) of the Bihar Land Reforms Act, 1950
Whether a tenant‑at‑will’s possession qualifies as khas possession for the purpose of retaining land after vesting in the State
Whether the plaintiff could maintain a suit for possession after his estate vested in the State
Whether a notice to quit is required to evict a tenant‑at‑will and if it must expire with the agricultural year
Whether a contention abandoned before the High Court can be re‑agitated before the Supreme Court

Legislation cited

Bihar Land Reforms Act, 1950s. 2(k), s. 3, s. 4, s. 6(1)(b)
Bihar Tenancy Act, 1885s. 116
Chota Nagpur Tenancy Act, 1908s. 43
Code of Civil Procedures. Order 41 Rule 27
Transfer of Property Acts. 106

Subjects

Bihar Land Reforms Actkhas possessiontenant-at-willland vestingnotice to quitagricultural leaseevictionagrarian reformstatutory interpretation

Judgment

6

A RAMESH BE.TOY SHARMA AND ORS.
v.
PASHUPATI RAI AND ORS.
July 17, 1979 ,
B [R. S. SARKARIA AND D. A. DESAI, JJ.]

Bihar Land Reforms Act, 1950-S. 6(1)-Scope of-Klias possession- \
'
Meaning of-Possession and kha.J possession-Di.Jtinction.
Respondents tenants at will in possession of land-Lo.ndlord-lntermediary,.
if could be said to be in khas possession of the land and entitled to evict the·
C tenant-at-will without notice-Rights of tenant-at-will and landlord-Discussed.
Contention available to one of the parties not pressed before the High
Co'urt-lf could be agitated before Supreme Court.
In a suit filed against the respondents (defendants), fur recovery. of posses-
sion of the suit lands, the appellants (plaintiffs) alleged that the suit lands were
the proprietor's private. lands and w'ere in their actual cultivating possession
D from time immemorial. The trial court dismissed the suit. Eventually, the
High c·ourt held tha.t the defendants or their ancestors had not acquired any
ryoti interest with right of occupancy; nor Were th,ty tenure-holders but were
mere tenants-at-will; a1,,1d that the suit was not maintainable because even a
tenant-at-will could not be ejected without being given. notice to quit. There-
upon the appellants gave notice to the defendants. In the n1eantime, by virtue
of a notification issu'ed under s. 3 of the Bihar Land Reforms Act 19-50, the
E estate had vested in the State by reason of which the plaintiff was not entitled
to evict the defendants,
On the question whether the plaintiff had a right to fi.l'e a suit for possel'!Sion
after the vesting of the estate in the Stare, the trial court held that since the
plaintiff had a right to take possessioo, the land could be deemed to be in bis
klta! poss·ession a.nd, therefore, he would be entitled to evict the defendants-
notwithstanding the vesting of the estate in the State.
F
In appeal the High Court dismissed the plaintiff's suit on the ground that
the right to take possession did not constitute khas possession within the mean-
ing of s. 6 (!) (b) of the Act.
In appeal to this Court it was contended on behalf of the appellant that
khas possession within the meaning of s. 6 comprehends the right to take
G possession and so the appellant was entitled to evict the respondents.
Dismissing the appeal,
HELD : (a) A combined reading of the definition of kfta.r possession under
s. 2(k) and ss. 3, 4 and 6 of the Act shows that the land in possession of a
tenant-at-will cannot be Soaid to be in khas possession of the intermediary for
the purpose of s. 6. [19D]
H (b) A tenant-at-will is not holding possession on behalf of the landlord but
he bas a. Vestige of title to it and holds on his own behalf and can set up his
po6session against the landlord till the formality prescribed by law is. undertaken
R. B. SHARMA v. PASHUPATI RA! 7

by the landlord and he is evicted by due process of law. If a notice of a A
certain duration is necessary expiring with a c'ertain event such a6 the end of
the agricultural year, till the end of the agricultural year the tenant, notwith-
standing the fact that be is a tenant-;;i.t-will and under a notice to quit will be
able to hold on to his possession and keep the landlord at bay. [17H]
In the instant case, in the suit between the same parties to the present liti-
gations, the High Court held that the defendants were tenants-at-Vvill of agri-
. cultural land, that they \\'ere holding from year to year and that they could be
B
evicted not only after termination of their tenancy by a notic'e to 'quit but such
.ootlce must expire with the agricultural year. The notice to be issued to the
tenant-at-will has to be a notice terminating the tenancy whk:h must expire
with the end or the agricultural year. In Bihar the agricultural year expires in
September. Therefore, once it is concluded inter-partes that even a tenant-at-
will of an agricultural land is entitled to notice in consonance with justice and
reason the tenant-at-will cannot be thfO\Vn out at any period during, the. year c
but the notice must expire with the end of the a.gricultural year.
Sudhir Kunzar Majumdar & Ors. v. Dhircndra Nath Biswas & Anr., A.LR,
1957 Cal. 625, not approved.
(c) A tenanat-at-will is someone other than the landlord. \Vhen he culti-
vates land used for agriculture, the agricultural operations cannot be said to be I>
cultivation of the landlord himself. When a tenant-at-will carries on agricul-
tural operations, he does them on his own and merely pays rent to the landlord.
1-he landlord does not pay the tenant-at-\vill for the agricultural operations nor
for the stock employed by the tenant-at-will. Keeping in view the definition
of 'khas poss'ession'. cultivation of land by the tenant-at-\vill cou1d not be i;aid
to be cultivntion by the landlord, by himself or by his servants or by hired
labourers. In such a situation the landlord cannot be said to be in 'khas
possession' of the land in possession of the tenant-at-\vill. [18A-G] E
(d) The term 'possession' used in s. 6 is qualified by th'e adjective 'khas'
which means actual possession and is used in contra-distinction to the word
4
COnstructive' possession. The term 'khas' possession, is used in a statute for
ushering agrarian reforms and, therefore, the purpose and object behind the
legislation n1ust inform the interpretative process. The interpretation must tilt
in favour of the actual cultivator, the tiller of the soi1. [20 B-C] F
2. When a notification llllder s. 3 was issued the respondents tenant-at-~'ill
were under a notice to quit \Vhich was to expire on September 24, 1953.
Ther'efore, till September 24, 1953 the respondents tenants-at-will were in
actual and physical possession_ of the land and till that date could hold aga.inst
the intermediary la\1dlord. It may be that when the notice to quit dated
January 5, 1953 was served the intermediary landlord might have the right to
take po56'ession but till September 24, 1953 when notice would expire the G
respondents were in actual possession and till then they could thwart ' any
attempt of intermediary 1and1ord to take actual possession. Therefore on the
date of the vesting i'.'e. April 12, 1953 the intermedia1y was not in 'kha~ posses-
~ion' within the meaning of s. 6(1) and when on that day his estate vested
m t?e State thereafter he was not entitled to recover possession. After the
ves.ting of the e~tate in the State, which event had occurred prior to th'e insti~
tution of the suit, he could not maintain an action for eviction as be had no H
more subsisting interest in the estate, his intetes.t having vested in the State.
[21-G·H]
2-475SCI/79
8 SUPREME COURT REPORTS (1980] 1 S.C.R.

A Sura;11ath Ahir & Ors. v. Prithi11ath Singh & Ors. [1963] 3 SCR 290; Ram
Ran Bijai Singh & Ors. v. Behari Singh alias Bagandha Singh [1964] 3 SCR
363; Gurucharan Singh v. Kam/a Singh & 01» [1976] I SCR 739 at 752-753;
and Sonatvati & Ors. v. Sri Ram & Anr. [1968] 1 SCR 617; referred to.

3. The contention of the appellant that if his application under Order 41
rule 27 C.P.C. to l'ead additional evidence were allowed it would establish that
B the la·nd was already settled with the intermediary by the State and that ther~·
fore it was no more open to the respondents. to contend that th'e intermediary (
was not entitled to the settlement of the: land in his favour bas no force. The
rejection of the application is justifi'ed because if the evidence was allowed to
be admitted on record at this stage it might put the respondents at a disadvan-
tage. If the plaintiff (appellant) had obtained some settlement of land on the
basis of a decree of the trial Court or the fir.st appellate Court which became
C interlocutory in view of the appeal preferred to the High Court and then to
this Court, it is not open to the plaintiff to take any advantage of such setle~
ment. [22C-Fl

4. If a contention which was available to a party had been abandoned in
th'e High Court, it cannot be· reagitated before this Court.

Jayarama Reddy & Anr. v. Revenue Divisional Offecer & Land Acquisition
D
Officer, Kurnool [1979] 3 SCR 599 referred to.

S. [(f a court fixes time to do a certain thing, the Court al ways retains the
power to extend the time. [23E]

ClvIL APPELLATE JURISDICTION : Civil Appeal No. 368 of
E 1969.
Appeal by Special Leave from the Judgment and Order dated
10-7-1968 of the Patna High Court in Appeal from Appellate Decree
No. 343 of 1964.
Sarjoo Prasad, D. N. Mukherjee and S. N. Misra for the Appellant.
F L. N. Sinha and D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by
DESAI, J.-The chequered history of the litigation culminating in
this appeal by special leave by the original plaintiff spreads over a
period of 70 years with no end in sight. To ascertain and dispose
G of the point raised in this appeal willy nilly the history of the litiga- ;,."
tion, as briefly as one can humanly try, will have to be set out.
One Tikait Fateh Narain Singh was the holder Qf an estate comp-
rising Taluka Chakai within the revenue limits of which the lands in-
volved in this litigation are situated. On the death of Tikait Fateh
H Narain Siugh the estate devolved on his widow Mussamat Durga
Kumari, she having widow's interest as' per the prevalent Hindu law
at the relevant time. Mst. Durga Kumari sold the entire estate includ-
R. B. SHARMA v. PASHUPATI RA! (Desai, !.)

ing Taluka Chakai to Maharaja of Gidhaur. After her death one A
Tikait Chandi Prasad claiming to be the next reversioner of Tikait
Faieh Narain Singh brought an action on 15th May, 1907 being Title
Suit No. 86/1908 against the Maharaja of Gidhaur for setting aside
the alienation on the ground that the alienation was made by a widow
having lifo estate and being without legal necessity, it was not bind-
ing on the reversioner. this litigation culminated in a decree in B
favour of Tikait Chandi Prasad by the Privy Council on 2nd '.'<ovem-
ber, 1915. However, Tikait Chandi Prasad had succeeded in obtain-
ing possession of Taluka Chakai somewhere in 1911 before the Privy
Council finally ruled in his favour.

Soon after commencing the suit hereinbefore mentioned, Tikait c
Chandi Prasad felt stringency of funds necessary for fighting the liti-
gation and he mortgaged the proprietary interest in the estate which
he was claiming as reversioner, with one Mr. Chrestian for Rs.
30,000/-. Even after the decision of the Privy Council in his favour,
Tikait Chandi Prasad failed to discharge the mortgage with the result
D
that Mr. Chrestian brought Title Suit No. 150/21 to recover the mort-
gage dues. This suit ended in a final decree on 17th November, 1923.
Mr. Chrestian took ont execution of the final decree in Execution
Petition No. 207 /25 and at the Court auction Mr. Chrestian himself
purchased the proprietary interest in Chakai Taluka on 16th June,
1931 and then took delivery of the estate through the Court in 1934. E
Before Mr. Chrestian commenced his action in Title Suit No.
150/21, one Pitamber Rai, the ancestor of the defendants (present
respondents) had filed a Money Snit No. 22/1919 against Tikait
Chandi Prasad for recovering dues from him and this suit ended in
a money decree. Execution Case No. 22/21 was commenced by
Pitamber Rai for sale of the lands involved in the present appeal and F'
he himself purchased the same at a Court auction along with some
•other lands included in Khata Nos. 140 and 146. After the sale was
confirmed Pitamber Rai obtained delivery of possession on 10th
October, 1924. A petition by judgment debtor Tikait Chandi Prasad
for setting aside Court sale under Order 21, Rule 90, Code of Civil
G
Procedure, did not meet with success.
On 18th April, 1943 Mr. Chrestian sold his proprietory interest
in Chakai Taluka to Rai Bahadur S. K. Sahana, the plaintiff in the
present litigation and he claimed to have obtained possession of the
lands purchased by him.
H
The plaintiff filed Title Suit No. 15/46 against the respondents
defendants for recovery of possession of the suit lands alleging that
IO SUPREME COURT REPORTS [1980) 1 S.C.R.

A the suit lands were proprietor's private lands and were in actual culti-
vating possession of Tikaits from time immemorial. Alternatively it
was the plaintiffs case that even if it be held that Tikait Chandi
Prasad had occupancy ryoti rights over the suit lands, the same bad
merged with his proprietory rights and, therefore, the character of the
land would be bakast lands of the proprietor and the defendants res-
B
pondents would have no vestige of title for continuing in possession
and they would be trespassers. This snit was dismissed by the trial
Co1.11t and the first appeal by the plaintiff to the High Court failed.
What is historica!ly relevant for the present litigation is that the High
Court held in its judgment dated 23rd September, 1952 in Firit Appeal
c No. 355/47 that the defendants (present respondents) or their an-
cestors had not acquired any ryoti interest with right of occnpancy
nor they had the status of tenure holders and they were mere tenants-
at-will by virtue of rent receipt granted by Mr. Chrestian. Having so
ascertained the character of possession of the respondents in respect
of the suit lands, the High Court further proceeded to hold that the
D suit of the plaintiff was not maintainable because even tenant-at-will
cannot be ejected without determining the tenancy in accordance with
law. In other words, they were entitled to notice and no such notice
was shown to have been served. Thus ended the first round of liti-
gation started by the purchaser against the present respondents.
Taking cue from the judgment of the High Court, the plaintiff
served notice to quit on the defendants and commenced an action
in ejectment in Title Suit No. 60/53. During the pendency of the
suit the plaintiff died and his legal representatives were substituted
and they continued the suit. The defendants contested the suit, inter
alia, on the ground that on the issue of a notification dated 12th
April, 1953 published in the Government Gazette dated 14th May,
1953 under s. 3 of the Bihar Land Reforms Act, 1950, ('Act' for
short), the estate of the plaintiff had vested in the State a11d, there-
fore, the plaintiff was not entitled to evict the defendants. The trial
Court negatived .the contention of the defendants holding that they
were not occupancy tenants of the suit lands as alleged by them but
G they were mere tenants-at-will as held by the High Court in the ear-
lier round of litigation and their tenancy having been properly termi-
nated by a notice to quit, the plaintiff was held entitled to a decree
for possession. Issue No. 3 framed by the trial Court was whether
the plaintiff had a right to file the suit for possession after vesting
of the estate in the State ? The trial Court held that as the plaintiff
B had a right to take possession the land could be deemed to be in his
khas possession within the meaning of s. 6(1 )(b) of the Act, and,
therefore, plaintiff would be entitled to evict the defendants, the inter-
R. B. SHARMA v. PASHUPATI RAI (Desai, !.) 11
~I.
~ vening vesting of the estate in the State would not abrogate plaintiff's A
right to possession which accrued to him prior to the date of issue of
the notification under s. 3.
,
; Defendants (present respondents) preferred Title Appeal No.
17/60 which was dismissed as the appellate Court substantially agreed
1 with the findings of the trial Court. Defendants preferred Second B
Appeal No. 343 of 1964 to the High Court of Patna. The learned
single Judge of the High Court was of the opinion that even if the
defendants were in possession of the suit lands as tenants-at-will on
the date of vesting of the estate, their possession of the suit land would
not enure for the benefit of the intermediary (plaintiff) within the
meaning of s. 6 of the Act. The P.igh Court was also of the opinion C
that the right to take possession does not constitute khas possession
within the meaning of s. 6 (1 )(b) of the Act. In accordance with
these findings the High Court held that since the issue of notilkation
under s. 3 the estate of the plaintiff vested in the State and the
plaintiff, therefore, cannot seek, to evict the defendants. The High
Court accordingly allowed the appeal of the defendants and dismissed D
the plaintiff's suit for possession. Hence the present appeal by the
plaintiff.
Before the principal and the only contention canvassed on behalf
of ·the appellants is examined in this case a brief reference to the
relevant provisions of the Act would illumine the contours of the E
controversy.
The Act, as its long title shows, was enacted to provide for1 the
transference to the State of the interests of proprietors and tcnure-
holders in land etc. and to provide for matters ancillary and inciden-
tal to such transference. Section 3 provided for passing and becom-
ing vested in the State, the estate, or tenures of a proprietor or a tenure- F
holder on the issuance of a notification. Section 4 provides for the
consequences of vesting of the tenure or an estate, one such conse-
quence being that on issue of a notification under s. 3 the estate
or tenure including the interests of the proprietor or tenure-holder
not only in land but in building or part of a building used for various G
purposes set out therein shall vest absolutely in the State free from
all encnmbrances and such proprietor or tenure-holder shall cease to
have any interesf in such estate or tenure, other than the interests
expressly saved by or under the provisions of the Act. One such
specific provision saving the interest of the proprietor, relied upon
by the plaintiff is s. 6, the relevant portion of which reads as under R
"6. Certain other lands in 'khas' possession of inter-
mediaries to be retained by them on payment of rent as
12 SUPREME COURT REPORTS [1980] 1 S.C.R.

A 'raiyates' having occupancy rights-(!) On and from the
date of vesting, all lands used for agricultural or horticultu-
ral purposes, which were in 'khas' possession of an inter-
mediary on the date of such vesting, including: -
(a) (i) proprietor's private lands let out under a lease
B for a term of years or under a lease from year
to year, referred to in Sec. 116 of the Bihar
Tenancy Act, 1885 (8 of 1885),
(ii) landlord's privileged lands let out under a regis-
tered lease for a term exceeding one year or
under a lease, written or oral, for a period of
c one year or less, referred to in Sec. 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 lease
D 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) land used for agricultural or horticultural purposes
forming the subject matter of a subsisting mortgage ,_
E on the redemption of which the intermediary is en-
titled to recover 'khas' possession thereof;
shall subject to the provisions of Sec. 7 A and 7B be deem-
ed 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 res-
pect of such lands subject to the payment of such fair and
equitable rent as may be determined by the Collector in the
prescribed manner".
There is no dispute that a notification dated 12th April, 1953 as
contemplated by s. 3 was published in the GQvernment Gazette dated
14th May, 1953. On the issue of the notification under s. 3 the con-
...
sequences as envisaged by s. 4 ( 1) ensued, namely, the estate of the
plaintiff vested in the State.
Mr. Sarjoo Prasad, learned counsel who appeared for the appel-
lant plaintiff, contended that the land involved in this appeal was used
H for agricultural purposes and was in khas possession of the plaintiff
who was an intermediary on the date of vesting as understood in
clause (b) of sub-s. (I) of s. 6 and, therefore, by the operation of
R. B. SHARMA v. PASHUPATI RA! (Desai, !.) 13

• s. 6 the land stood settled by the State with the plaintiff who was an A
intermediary and he would be entitled to retain possession and comfo-
I quently the plaintiff would be entitled to a decree for possession.
Section 6 is an exception to s. 4. A notification under s. 3 would
have the e&ct of vesting the estate or tenure of a proprietor or a
tenure-holder in the State. Consequently an estate or tenure includ·
B
ing all interests of the proprietor or tenure-holder as s'et out in s.
4 shall with effect from the date of vesting, vest absolutely in the
State free from all encumbrances and such proprietor or tenure-hol-
der shall cease to have any interest in the estate or tenure other than
the interest expressly saved by or under the Act and according to the
plaintiff his interest was expressly saved as his case is covered by c
s. 6(1).
Section 6(1) provides that all lands used for agricultural or hor-
ticultural purposes which were in khas possession of an intermediary
on the date of vesting shall be deemed to be settled by the State with
the intermediary and he shall be entitled to retain possession thereof
and hold the same as a raiyat under the State having occupancy rights D
in respect of such lands subject to certain conditions specified in the
section.
According to the plaintiff he was in khas possession (as the word
is understood in the Act) of the suit lands used for agricultural pur-
pose on the date of vesting and, therefore, under s. 6 the lands are E
<leemed to be settled by the State with him as intermediary and, there-
fore he is entitled fo retain possession thereof. The eicpression 'khas
possession' is defined in s. 2(k) as under:
"2. Definitions. In this Act, unless there is anything
repugnant in the subject or context- F
(k) 'khas possession' used with reference to the pos-
session of a proprietor or tenure-holder of any land used for
agriculfural or horticultural purposes means the possession
of such proprietor or tenure-holder by cultivating such land
or carrying on horticultural operations thereon himself with
G
his own stock or by his own servants or by hired labour or
with hired stock;

Explanation-"Land used for horticultural pnrposes"
me11ns lands used for the purpose of growing fruits, flowers
or vegetables".
H
The contention is that as the respondents were tenants-at-will of
the suit land as held by the High Court in the former litigation inter
14 SUPREME COURT REPORTS [1980] l s.c.R.

A partes, the plaintiff could evict them at his sweet will and, therefore,
the plaintiff could be said to be in khas possession of the suit land
within the meaning of the expression as understood in the Act and the
p1'aintiff is entitled to evict the defendants. It was said that the
•
tenant-at-will has no certain or sure estate in the land which can be
asserted against the landlord of snch tenant-at-will and, therefore, the
B landlord can be said to be in khas possession of the land even if it be
in actual possession of the tenant-at-will. Woodfall on "Landlord
and Tenant", 27th Edn., Vol. I, p. 279, says :
"A tenancy at will is where lands or tenements are let
by one man to another, to hold at the will of the lessor; in
c this case the lessee is called tenant at will, because he has -no
certain or sure estate for the lessor may put him out at any ·•
time he pleases. Either party may at any time determine
a strict tenancy at will, although expressed to be held at the
will of the lessor only, and the landlord may determine if by
a demand of possession or otherwise without a previous
D formal notice".
At p. 30 it is observed that a tenoant-at-will cannot demise, for
that would amount' to a determination of his estate at will; but a
purported demise, with possession thereunder, will create a tenancy
by estoppel as between him and his lessee. and will be good as against
E himself.
It was said that if such be the position of a tenant-at-will, the case
would fall within the latter part of the definition of khas possession
which provides that if landlord is cultivating such land himself with
his own stock or by his own servants or by hired labour or with hired
stock, such cultivation would constitnte khas possession of the land-
-F
lord. An identical expression is used in s. 6(1 )(b) which provides
that lands used for agricultural or horticultural purposes and held in
direct possession of a temporary lease of an estate or tenure and cul-
tivated by himself with his own stock or by his own servants or by
hired labour or with hired stock would be deemed to be in khas pos-
G session of the intermediary. It was, therefore, said that there is no
marked or noticeable difference between a tenant-at-will who can be
eYicted by mere demand of pos~ession and cannot resist the, demand
for possession, and a hired servant or a hired labourer or a man made
to work by hired stock. It was said that if in latter case the statute
considers .the kind to be in ~has possession of proprietor a fortiori,
H in the former case as well it must be treated in khas possession of
intennediary or proprietor. Mr. Sarjoo Prasad said that khas posses-
sion within the meaning of s. 6 comprehends within its ambit the right
R. B. SHARMA v. PASHUPATI RA! (Desai, J.) 15

. to take possession. In other words, it was said that if on the date
of vesting in respect of rand used for agricultural purpose the inter-
mediary had a right to take possession from a person who could not
resist an action for possession, for the purpose of s. 6 the intermediary
would be deemed to be in khas possession of the land. The substan-
tial point, therefore, which needs examination is: What constitutes
khas possession within the meaning of s. 6 ? That necessitates exa-
B
mination of the position of a tenant-at-will vis-acvis landlord, and
even if it is held that a tenant-at-will has no sure estate or interest in
the lease which can be set up against his-landlord, whether his actual
possession enures for the benefit of the landlord who should be said
to be in khas possession through his tenant-at-will for the purpose of c
s. 6(1). The question is whether khas possession within the mean-
ing of the expression in the Act and especially s. 6 thereof, takes
within its sweep the right to take possession without any hindrance.
The proposition canvassed on behalf of the plaintiff may be first
examined on principle. If a tenant-at-will actually cultivating agri-
cultural land could be evict'-d by the landlord by merely demanding D
possession from him, docs it imply that for all purposes the landlord
himself is i~ possession? This stands negatived by a decision inter
partes. In the former suit filed by the plaintiff for possession the
High Court after holding that the defendants were tenants-at-will,
declined to pass a decree for eviction holding that even tenant-at-will
E
is entitled to a re-asonable notice and in the absence of notice the
plaintiff would not be entitled to a decree for actual possession. The
High Court has thus recognised .some right in the tenant-at-will which
can be set up against the landlord who seeks to evict him. The judg-
ment of the High Court in the former litigation concluded as under:
"For all the reasons which I have given I am forced to F
the conclusion that the interest of the Roys (respondents here-
in) in the suit property is that of tenants-af-will holding from
year to year, whose tenancy can only be terminated by due
notice".
(Reuben, J.)
G
The other learned member of the Bench concluded as under:
"I, therefore, agree with my Lord the Chief Justice that
the defendants could not be evicted from the disputed lands
in the absence of a due notice to quit ending with the expiry
of an agricultural year".
H.
The decision of the High Court is not open to question at the
instance of the plaintiff. The position concluded against the plaintiff
16 SUPREME COURT REPORTS [1980] J S.C.R.

A is that the defendants were tenants-at-will of agricnltnral land and
they were holding from year to year and, therefore, they could be
evicted not only after termination of their tenancy by a notice to quit
but such notice must expite with the agricultural year. Even if i~
be held that s. 106 of the Transfer of Prope11y Act is not attracted,
this being an agricultural lease, the fact rcm'ains that in respect of iyµ-i-
B
cultural lease the notice to quit must expire with the end of agricul-
tural year. It would not be correct to say that some reasonable
not'ice would be sufficient to terminate the tenancy. The notice has
to be one terminating the tenoancy and the notice must expire. with
the end of the agricultural year. It is not in dispute that the agricul-
tural year in Bihar ends, depending upon the custom in the area,
c around September. This becomes clear from the fact that the plain-
tiff has ·averred in the plaint that a notice dated 15th January 1953
terminating the tenancy of the defendants and calling upon them to
surrender possession was served upon them and they were c~led
upon to handover possession by 1st Aswin, 1361 F.S. c6rresponding
D to 24th September, 1963. Once it is concluded inter partes that even
a tenant-at-will of an agricultural land is entitled to notice in conso-
nance with justice and reason, he cannot be thrown out at any period
during the yeoar but the notice must expire with the end ot the agricul-
tural year. Any other approach would be unfair to the tenant-at-will.
If he is left at the sweet mercy of the landlord he can be thrown out
E just after he puts in all his labour and the crop is ready for harvesting.
A tenant under a lC'ase of land used for agriculture would be entitled
to a notice expiring with the end of agricultural year so that he may
not be evicted after the crop is ready for harvesting and may not be
exposed to unfair treatment at the hands of the landlord.

F Thus, even if it is held that a tenant-at-will has no sure interest or
estate, yet he is entitled to notice and he cannot be evicted without
notice the duration of which would be dependant upon the nature of
the lease. In the case of an agricultural lease, the notice must expire

G
with the end of agricultural year. As a corollary it must follow that
oa tenant-at-will can hold out against his landlord if he is sought to be .•
evicted without due proceS§ of law which would imply notice terminat-
ing tenancy, and can continue to remain in possession against the
landlord till the termination of the lease by a proper legal notice. In
Halsbury's Laws of England, 3rd Edn., Vol. 23, p. 507, it is stated
as under:
H "A ten"ancy at will is determinable by either party on his
expressly or impliedly intimating to the other his wish that
the tenancy should be at an end. Until the intimation is
R. B. SHARMA v. PASHUPATI RAJ (Desai, J.) 17
-\
thus given the tenant is lawfully in possession, and accor- A
dingly the landlord cannot recover tho premise. In in iction
for recovery of land without a previous demand of posses-
sion or other determination of the tenoancy".

An attempt was made inviting us to re-examine the position of a
tenant-at-will vis-a-vis the landlord urging that no particular notice B
of any particular duration is necessary for evicting a tenant-at-will. It
was said that a tenant-at-will has no certain or sure estate for the
lessor may put him out at any time he pleases. (sec quo~ation from
Woodfall extracted above). Reference was also made to Sudhir
Kumar Majwndar & Ors. v. Dhirendra Nath Biswas & Anr. (')
wherein a le'arned single Judge of the Calcutta High Court held that
c
the service of a formal notice to quit is not necessary for the termina-
tion of the tenancy-at-will. We find it difficult to subscribe to this
view: Apart from the fact that in the former litigation inter partes
which concluded the earlier suit brought by the present appellant,
being dismissed on the only ground that the respondents who were D
tenants-oat-will could not be evicted as their tenancy was not terminat-
ed by a notice to quit expiring with end of agricultural year, we have
already extracted above an observation from Halsbury's Laws of
England which also supports the view tlrat notice terminating tenancy
of a tenant-at-will is pre-requisite before he can be evicted. A tenant-
.at-will is nonetheless a tenant. The concept of tenancy-at-will has E
reference to duration and interest in the land of which the ten-ant is
a tenant-at-will. He is not at the sweet will and mercy of the land-
lord. The Division Bench which disposed of the appeal inter partes
on the rorlier occasion, after examining a large number of authorities
came to the conclusion that a tenancy-at-will has to be determined by
a rea~onable notice to quit and we are in agreement with the view F
of the High Court and we are not persuaded to agree with
the opinion expressed by the learned single Judge of the Calcutta ILgh
Coor!. The view ~aken by the Division Bench of Patna High Court
in F.A. No. 355 of 1947 between the parties to the present proceed-
ing that a tenant-at-will of agricultural land cannot be evicted without
G
a notice terminating the tenancy expiring with the end of agricultural
year commends to us as laying down correct law.

It can thus demonstrably be established that a tenant-at-will is not
holding Jl<lSSession on behalf of landlord but he has a vestige of title
t'o it and holds on his own behalf and eoan set up his possession against
H
the landlord till formality prescribed by law is undertaken by the land-

(!) AIR 1957 Cal. 625.
18 SUPREME COURT REPORTS [1980] J S.C.R.

A. lord and he is evicted by due process of law. If a notice of a certain •
duration is necessary expiring with a cerl'ain event such as end of the
agricultural year, till the end of the agricultural year the tenant, notwith-
standing the fact that he is a tenant-at-will and under a notice to quit,
will be able to hold on to his possession and keep the landlord at
II
bay. •
If such be the position of the landlord vis-a-vis his tenant-at-wi!l, '
could the landlord be said to be in khas possession of the land when
the tenant-at-will is in actual possession and holds out against the
landlord and questions his right to, be put in possession till a proce-
dure prescribed by law is followed by the landlord? In this very case
c the landlord in his earlier litigation for obtaining actual possession
from the tenant-at-will failed to obtain a decree against the tcnant-at-
will lxcaµse the landlord had not followed the procedure prescribed
by law, viz., a notice to quit •and determination of the lease. Could
posses~ion of such a tenant-at-will be said to be the possession on
behalf of the landlord for the purpose of s. 6 ( J ) ?
D
A tenant-at-will is some one other than the landlord. If a tenant-
at-will is cultivating land used for agriculture, the agricultural opera-
tion carried on by the tenant cannot be said to be cultivation of the
landlord himself, nor the stock of the tenant-at-will can be said to be
a stock of the landlord, nor the tenant-at-will mn be s_aid to be ser-
E van! of the landlord or hired labourer, or the stock of the tenant-at-
will can be said to be the hired stock of the landlord. When a ser-
vant or hired labourer is engaged or stock is hired the landlord has to
pay such servant or hired labourer or for the hired stock. When
a tenant-at-will is carrying on agricultural operations he does it on his
own and merely pays rent to the landlord. The 1'andlord does not pay
F the tenant-at-will for the agricultural operations nor for the stock
employed by the tenant-at-will. There is a marked, noticeable and
understandable difference between a tenant-at-will vis-a-vis the land-
lord and a servant or hired labourer employed by the landlord. There-
fore, keeping in view the definition of the expression 'khas possession'
in s.2(k), a cultivation of land by tenant-at-will could not be said to "'
•
G
be cultivation by the landlord by himself or by his semmts or by
hired labourer. Accordingly, in such a situation the landlord could
n~ be said to be in khas possession of the land in possession of the
tenant-at-will who is in a -position to hold out against the landlord
unless his lease is determined in the manner prescribed by law.
B Mr. Sarjoo Prasad, however, urged that the case would be cover-
ed bys. 6(1) (b). The requirements for attracting s. 6(1) (b) are in
pari materia with the definition of khas possession save and except that
R. B. SHARMA v. PASHUPATI RA! (Desai, J.) 19

if the land is held in direct possession of •a temporary lessee of an A
estate or tenure and is cultivated by snch lessee with his own stock
• or by his own servants or by hired stock or hired labour it shall be
deemed to be in khas possession of the intermediary. Section 6(1)
(b) envisages a temporary lease of an estate or tenure by the inter-
mediary Md if such lessee is personally cultivating the land included
in the estate or tenure then the land would be deemed to be in khas B
possession of the intermediary. A tenant-at-will is not a temporary
lessee of an estate or tenure. An e~fute or tenure is a certain kind
of interest in land. It is such an element of interest in fand which is
described as estate or tenure and temporary lease of such an estate
or tenure is envisaged by s. 6 ( 1) (b). Such being not the case here,
s. 6(1) (b) would not he attracted. c
Analysis of s. 6 read with ss. 3 and 4 •along with the definition of
expression 'khas possession' in s. 2(k) of the Act would on principle
unquestionably show that the land in possession of a tcnant~at-wi!l
cannot be said to be in khas possession of the intermediary for the
purpose of s. 6. D
It was, however, contended by Mr. Sarjoo Prasad that khas pos-
session in s. 6 ( 1) takes within its &\Veep right to take possession. This
position is no more res integra and is concluded by two decisions of
this Court. In Surajnath Ahir & Ors. v. Prithinath Singh & Ors.,(')
it was contended that the expression 'khas possession' in s. G(I) E
includes the subsisting title of possession as well. Negativing this
contention this Court held as un,fer :
"Reliance was placed by the High Court on the case re-
ported as Brijnandan Singh v. Jamuna Prasad (AIR 1958
Pat. 589) for the construction put on the expression 'khas
possession' to include subsisting title to possession as well, F
and therefore for holding that any proprietor, whose right
to get khas possession of the land is not barred by any pro-
vision of law, will have a right to recover possession and
that the State of Bihar shall treat him as a raiya\ with
occupancy right Md not as a trespasser. We do not agree
with this view when the definition of 'khas possession' means G
the possession of a proptietor or tenure-holder either by
cultivating snch land himself with his own stock or by his
own servants or by hired labour or with hired stock. The
mere fact that a proprietor has a subsisting title to posses-
sion over certain land on the date of vesting would not make H
that land under his 'khas possession'.
(lJ Jl963J 3 s.c.R. 290.
20 SUPREME COURT REPORTS [1980] 1 S.C.R.

A This view was re-asserted in Ram Ran Bijai Singh & Ors. v.
Behari Singh alias Bagandha Singh(') wherein this Court held that
this equation of right to possession as khas possession is not justified
•
on principle or authority.
The word used in s. 6 is not 'possession' but it is qualified by the
B adjective 'khas possession' its equivalent being 'actual possession' as
the word is understood in contra-distinction to the word 'constructive
possession'. Frankly speaking, the law has still not provided clear
and unambiguous definition of the jurisprudential concept of posses-
'
sion. Number of angular approaches to the problem of possession
can be referred to with confidence. Here we are concerned with what
c is called 'khas possession' in a statute for ushering agrarian reforms
and, therefore, the purpose and object behind the legislation must in-
form the interpretative process. The interpretation must tilt in favour
of the actual cultivator, the tiller of the soil. Dealing with Qiis ex-
pression, this Court in Gurucharan Singh v. Kam/a Singh & Ors.,(')
has observed as under:
D
"There are, therefore, three requisites of possession.
First, there must be actual or potential physical control.
·secondly, physical control is not possession, unless accom-
panied by intention; hence, if a thing is put into the hand of
a sleeping person, he has not possession of it. Thirdly, the
E possibility and intention must be visible or evidence (sic)
by external signs, for if the thing shows no signs of being
under the control of anyone, it is not possessed; .. ! In
the end of all, however, the meaning of 'possession' must
depend on the context (ibid p. 153). May be, in certain
situations, possession may cover right to possess. It is thus
F clear that in Anglo-American jurisprudence also, posses-
sion is actual possession and in a limited set of cases, µlay
include constructive possession, but when there is a bare
right to possess bereft of any domination or factum of con-
trol, it will be a strange legal travesty to assert that an
owner is in possession merely because he has a right to pos-
G sess when a rival, in the teeth of owner's opposition, is
acfually holding dominion and control over the land ad-
versely, openly and continuously".
After thus observing this Court approved the ratio extracted above
in Surajnath Ahir's case (supra) as also the ratio in Ram Ran Bijai
B Singh's case. (supra)
(I) [196413 s.c.R. 363.
(2) [1976] 1 S.C.R. 739 at 752-753.
R. B. SHARMA I'. PASHUPATI RAJ (Desai, J.) 21

' It was, however, said that in both these cases the Court overlooked A
the fact that on redemption of a mortgage the mortgagee is bound to
deliver possession of the mortgaged property fo the mortgagor. In
both these cases the question was whether the tenant inducted by the
mortgagee in possession who had no right to continue in possession
beyond the redemption of the mortgage could be said to be holding
possession on behalf of the mortgagor as the mortgagor had a right B
to evict him and the tenant had no right to continue in possession
against the mortgagor. It is true that ordinarily a mortgagee in po~
session is under a duty to surrender possession to the mortgagor on
redemption of the mortgage. A tenant inducted by the mortgagee,
unless he is protected by some other law, could be evicted by the
mortgagor on redemption of the mortgage. The mortgagor may thus
c
have a right to claim possession but once it is held that the right to
recover possession cannot be equated with khas possession within the
meaning of the expression used in the Act it would have made no
difference in the ultimate decision of the Court even if the Court's
attention was drawn to the fact that on redemption the mortgagee D
is bound to deliver possession to the mortgagor.

Reliance was, however, placed on Sonawati & Ors. v. Sri Ram &
Anr.,(') where in the context of the U.P. Zamindari Abolition & Land
Refonus Act, 1951, and U.P. L'alld Reforms (Supplementary) Act,
1952, this Court examined the connotation of the expression 'culti- E
vatory possession' and held that a trespasser who has no righ~ to be
in posse,sion by merely entering the land by force cannot be said to be
in cultiv>atory possession within the meaning of the aforesaid law. An
observation in the context of a different scheme of law would not
assist in analysing the conc,ept of 'khas possession' in the Act. Fur-
ther, a tenant-at-will enters possession with consent of landlord and F
till his tenancy is determined, he is in lawful possession and cannot be
styled as a trespasser.

It thus becomes crystal clear that on 12th April, 1953 when the
notification under s. 3 was .issued the respondents tenants-at-will were G
under a notice to quit which would expire on 24th September 1953.
Therefore, till 24th September, 1953 the respondents tenants-at-will
were in actual and physical possession of the la'nd and till that date
could hold against the intermediary landlord. It may be th>at when
the notice to quit dated 15th January, 1953 was served the interme-
diary landlord may have a right to take possession but till 24th Sep- n
tember, 1953 when notice would expire the respondents were in actual
(l) [1968] l S.C.R. 617.
22 SUPREME COURT REPORTS [1980] I S.C.R,

possession ll!1d till then they could thwart any attempt of intermediary
landlord to take actual possession. Therefore, on· the date of the
vesting i.e. 12th April, 1953 the intermediary was not in khas posses-
sions within the meaning of s. 6(1) and when on that day his estate
vested in the State he was not entitled to recover possession. After •
the vesting of the estate in the Slate which event had occurred prior to
B the institution of the suit he could not maintain an action for eviction
as he had no more subsisting interest in the estate, his interest having
vested in the State.
Mr. Sarjoo Prasad contended that an application under Order 41,
Rule 27, Code of Civil Procedure, was given seeking permission to
c lead additional evidence which, if permitted, would tend to establish
that the land was already settled with the plaintiff intermediary by the
State as envisaged by s. 6 and, therefore it is no more open to the
respondents to contend that the plaintiff intermediary was not entitled
to the settlement of the land in his favour. Mr. Lal Narain Sinha,
learned counsel for the respondents count'ered this submission by say-
ing that on the strength of decree of the trial Court such an order is
obtained but the Court at this stage need not look into it because this
Court should consider the rival contentions of the parties according
to the facts and law as were available on the date of the suit.
Obviously, if the plaintiff appellant has obtained some settlement of
E land on the basis of a decree of the trial Court or the first appellate
\ __
Court which became interlocutory in view of the appeal preferred to
the High Court and then to this Court, it is not open to the plaintiff
to take any advantage of such a settlement. If this evidence is allow-
ed to be admitted on record at this stage it might put the respondents
at a disadvantage. Nor can the validity of that settlement be deter-
F mined in this suit Therefore, the rejection of this application is
justified. The appellants may seek relief in respect of the so-called
settlement in their favour as advised.
The last contention was that the appeal as a whole of the respon-
dents should have been dismissed by the High Court in view of non-
compliance with the order made by the High Court on 8th March,
•
G
1967. Fntry 11 in the order sheet of Second Appeal 343/64 shows
!'hat three day's time was granted by the Ccurt to take steps for
fresh service of notice of appeal on respondents 2, 4 and 8-1 I failing
which the Court directed that the appeal shall stand dismissed without
further reference to Bench. This order appears to have been made
H because the respondents who were appellants before the High Court
appear not to have made energetic efforts to make the appeal ready
by completing the service. The next entry serial No. I 2 dated 10th
R. B. SHARMA V. PASHUPATI RAI (Desai, J.) 23

,, August, 1967 reads that seven day's final time was allowed to lake
steps to take out fresh notice as per the earlier order. This entry is
signed by the Deputy Registrar. Entry 13 in sequence dated 19.th
August, 1967 reads that as order No. 12 which was final had not been
carried out the matter be plac(xl before the Bench for orders. Entry
14 dated 23rd August 1967 signed by the same learned Judge who
B
had mai~e order entry 11 directs acceptance of talbana (process fee)
and C (costs), if filed in the course of the day. That order appears
to have been carried out except with regard to respondents 11 and 4.
Again the Deputy Registrar granted s~ven . day's time. On 12th
December 1967 the Registrar made the order that the matter should
be placed before the Bench. There are some subsequent orders c
which are not very relevant. Mr. Sarjoo Prasad urged that the order
at entry 11 directed that if the direction therein made was not carried
out the appeal would stand dism.issed without further reference to the
Bench and that the subsequent entry shows that the direction was not
carried out, and it was urged that the appeal stood dismissed and,
therefore, the appeal no more survived for consideration on merits. D
We find no merit in th.is contention, firstly, because this contention
was not taken before the High Court though it was available to the
present appellants who were respondents before the High Court. Tue
c.ontention could be said to have been abandoned and once it is aban-
doned it cannot be re-agitated before this Court vide decision of this
Court in Jayarama Reddy & Anr. v. Revenue Divisional Officer & E
Land Acquisition Officer, Kurnool.(') Apart' from th.is, if the Court
fixes, time for doing a certain thing, the .Court always retains the power
to extend the time and the same learned judge of the High Court who
made order at entry 11 extende'd the time as per order at entry 14.
Therefore, it cannot be said that the appeal stood dismissed.
Accordingly, there is no merit in this appeal and it fails and is
dismissed with costs.

P.B.R. Appeal dismissed.

\.

o) [197913 s.c.R. 599.
3-475 SCI/79