Actual khas possession governs vesting under land reform law; constructive possession and revenue partition rules do not save the lands.

The Bihar Land Reforms Act, 1950 saves only lands in the intermediary's actual khas possession at the date of vesting; constructive possession or title alone is insufficient, and land held by a trespasser cannot qualify. A plea based on this statutory saving can be raised late where it is a pure question of law arising from admitted facts and causes no prejudice. The Estates Partition Act, 1897 is a revenue measure and does not preserve joint title or joint possession for purposes of invoking the saving provision. On that reasoning, lands outside actual khas possession vest on notification, while limited relief may remain only for items not shown to be in the opposite party's possession.

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Issues: (i) whether the suit lands were saved from vesting in the State under the khas possession saving provision of the Bihar Land Reforms Act, 1950; (ii) whether a belated plea based on the Act could be permitted at the appellate stage; (iii) whether the Estates Partition Act, 1897 preserved joint possession so as to attract the saving provision.

Issue (i): whether the suit lands were saved from vesting in the State under the khas possession saving provision of the Bihar Land Reforms Act, 1950.

Analysis: The statutory scheme vested intermediary interests in the State on notification, while preserving only lands in the actual khas possession of the intermediary and certain expressly included categories. The definition of khas possession was read as actual physical and cultivatory possession, not a mere right to possess or a constructive claim based on title. Possession of a trespasser, adverse to the owner and inconsistent with actual control by the intermediary, could not be treated as khas possession. On the admitted and found facts, the plaintiff had ceased to be in possession before the date of vesting and therefore could not bring the lands within the saving provision.

Conclusion: The suit lands were not saved by the khas possession provision, and the plaintiff's title was divested on vesting.

Issue (ii): whether a belated plea based on the Act could be permitted at the appellate stage.

Analysis: A pure question of law arising from the common facts and going to the root of the matter may be raised at a late stage if no unfair prejudice is caused. The plea under the Act depended on the admitted factual matrix and did not require fresh investigation of disputed facts. No injustice from its entertainment was shown.

Conclusion: The plea was rightly entertained at the appellate stage.

Issue (iii): whether the Estates Partition Act, 1897 preserved joint possession so as to attract the saving provision.

Analysis: The Estates Partition Act was treated as a fiscal measure regulating land revenue liability, not as a provision preserving title or creating an estate in joint possession for all purposes. A partition deed or arrangement could divest title inter se even if revenue consequences under that Act were not fully worked out. The plaintiff, having sued on the footing of exclusive ownership under partition, could not rely on constructive co-sharer possession to invoke the saving provision.

Conclusion: The Estates Partition Act did not assist the plaintiff in claiming khas possession or saving the lands from vesting.

Final Conclusion: The appeal succeeded only to a limited extent in respect of mesne profits and possession of specified items not shown to be in the defendants' possession, while the main challenge to vesting and the claim to the bulk of the suit lands failed.

Ratio Decidendi: Under the Bihar Land Reforms Act, khas possession means actual cultivatory possession, and lands in the hands of a trespasser or otherwise outside such actual possession do not remain with the intermediary on vesting.

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