Judgment S.K.JHA, J. 1. This appeal is directed from the order of the learned Subordinate Judge, Sasaram, dated the 6th of July, 1970 in Miscellaneous Case 48 of 1969 arising out of Execution Case 47 of 1966 levied by the present appellant and his mother Most. Phul Kali Debi, the two decree-holders. The execution case has been held by the court below to be not maintainable in view of the provisions of the Bihar Land Reforms Act, 1950 (hereinafter called the Act). Against that order, one of the decree-holders being aggrieved has come up in appeal. 2. The facts relevant for the disposal of this appeal are not at all in controversy. A title (partition) suit numbered 37 of 1953 was instituted by Ganesh Dubey and his son Brij Bihari Dubey for partition of their five annas nine pies share in tauzi 7060 (7069?) in village Pakpurwa. The preliminary decree in the suit was passed on the 28th February, 1955. Proceedings for preparation of the final decree were started and the pleader commissioner submitted his reort on the 13th of January, 1956, which was confirmed by the trial Court on that very day. But, it seems, the signing of the final decree was stayed under orders of this Court during the pendency of certain matters here. Ultimately, however, the final decree was passed on the 15th of November, 1965. The subject-matter of the partition suit, as already stated above, was merely the proprietary interest of the erstwhile proprietors in the estate in question. On the 1st of January, 1956, i.e., during the pendency of the proceedings for preparation of the final decree the estate vested in the State of Bihar under Notification issued in pursuance of the provisions of Sec.3-A of the Act. After the final decree was passed, Execution Case 47 of 1966 was started by Phul Kali Debi, widow of Ganesh Debey since deceased, and their son Brij Bihari. The judgment-debtors objected to the maintainability of the execution case in Miscellaneous Case 48 of 1969 on the ground that the final decree in the partition suit, which covered only milkiat interest in the tauzi in question, had become infructuous in view of the estate having vested in the State of Bihar. The executing Court sustained the objection of the judgment-debtors respondents and held the execution case to be not maintainable. The executing Court sustained the objection of the judgment-debtors respondents and held the execution case to be not maintainable. The short point for determination in this case is as to whether, in view of the provisions of the Act, the execution of the final partition decree should be held to be infructuous or not. 3. The scheme of the act has been considered by the Supreme Court in quite a number of decisions. I may refer to some of them. They are - Krishna Prasad V/s. Gouri Kumari Devi, AIR 1962 SC 1464 ; Raja Sailendra Narayan Bhanj Deo V/s. Kumar Jagat Kishore Prasad Narayan Singh, 1962 Supp 2 SCR 119 : ( AIR 1962 SC 914 ); Suraj Ahir V/s. Prithinath Singh, AIR 1963 SC 454 ; Shivashankar Prasad Shah V/s. Baikunth Nath Singh, AIR 1969 SC 971 ; Sita Saran Singh V/s. Kedar Prasad Singh, (1971) 3 SCC 200 and Bhubneshwar Prasad Narain Singh V/s. Sidheshwar Mukherjee, AIR 1971 SC 2251 . But even the earliest decision with regard to the scheme of the Act was based upon an earlier decision of the Supreme Court relating to the U. P. Zamindari Abolition and Land Reforms Act, 1950 in the case of Rana Sheo Ambar Singh V/s. The Allahabad Bank Ltd., AIR 1961 SC 1790 . In the case of Rana Sheo Ambar Singh, the Supreme Court had to consider the provisions of the U. P. Act in relation to the question whether a simple mortgagee of an estate, which had vested in the State, was entitled to proceed against the special Bhumidari rights conferred on the mortgagor or proprietor under that Act. It was held that the simple mortgagee had no such right as the provision of the U. P. Act had rendered it impossible for the mortgagee to follow the proprietary right after it had vested in the State. In the case of Raja Sailendra Narayan Bhanj Deo the Supreme Court held that, after a mortgagor had been divested of the mortgaged property under the Act, a redemption decree would be infructuous as the mortgagor could not be entitled to have the property reconveyed to him, the reason being the vesting of the estate in the State. This decision deals with the case of equity of redemption which right, it was held by the Supreme Court, vested in the State. This decision deals with the case of equity of redemption which right, it was held by the Supreme Court, vested in the State. In Krishna Prasads case, it was found that the whole of the mortgaged property was an estate which had vested in the State and, therefore, the procedure prescribed under Chapter IV of the Act had to be followed, the personal decree against the mortgagor could be executed only if realisation from the mortgaged property was found insufficient. In yet another case of Raj Kishore Prasad Narain Singh V/s. Ram Partap Pandey, (1967) 2 SCR 56 : ( AIR 1967 SC 801 ) the Supreme Court had occasion to consider whether in a case, where a mortgage related to two sets of property, namely, that which had vested in the State and that which had not so vested, the right of the mortgagee to pursue remedies under the ordinary law in respect of the non-vested property existed or not, and it was held that the mortgagees rights in that regard were not affected by the Act. The decision of the Supreme Court in Suraj Ahirs case related to the maintainability of a suit by a mortgagor for recovery of possesion of the property from the mortgagee who had not parted with the possession of the property even after the redemption decree bad been passed earlier in favour of the mortgagor in view of the fact that the estate had vested in the State. The Supreme Court held that the mortgagor had lost his right to recover possession from the mortgagee even if his possession was as trespassers. 4. In many of the cases aforementioned reliance was placed by the Supreme Court on a decision under the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 (Act 1 of 1951) in the case of Haji Sk. Subhan V/s. Madhorao, AIR 1962 SC 1230 . The principle laid down there as also that discussed with regard to the scheme of the U. P. Act in Rana Sheo Ambar Singhs case, AIR 1961 SC 1790 was applied in all the cases arising under our Act. Subhan V/s. Madhorao, AIR 1962 SC 1230 . The principle laid down there as also that discussed with regard to the scheme of the U. P. Act in Rana Sheo Ambar Singhs case, AIR 1961 SC 1790 was applied in all the cases arising under our Act. In connection with the M. P. Act, their Lordships held that sub-sections (1) and (2) of S. 3 of that Act were sufficient to divest the respondent of that case of his proprietary right over the lands awarded to him under the decree of the High Court and the right to possess was lost since the Act intervened. And, with regard to the true scope of Sec. 4 of that Act, which corresponds, more or less, to the provisions of Sec. 4 of our Act, it was held by the Supreme Court that any right which accrued to the proprietor under a decree by virtue of a proprietary right would not, under the scheme of the said Act, prevail over the statutory consequences following the vesting of the proprietary rights in the Stale and would, consequentially, be lost to the proprietor. Then came the decision of the Supreme Court in Shivashankar Prasads case AIR 1969 SC 971 . It is worthwhile in this connection to quote a passage from the judgment of Hegde, J., who delivered the judgment on behalf of the Court- "The consequence of the vesting of an Estate is set out in Sec. 4. Sec. 4 (a) provides that once an estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely free from all encumbrances. Among the rights enumerated therein undoubtedly includes the right of possession. In view of Sec. 4 (a) there is hardly any doubt that the proprietor loses an his rights in the estate in question. After setting out the various interests lost by the proprietor that section proceeds to say such proprietor or tenure holder shall cease to have any interests in such estate or tenure other than the interests expressly saved by or under the provisions of this Act. After setting out the various interests lost by the proprietor that section proceeds to say such proprietor or tenure holder shall cease to have any interests in such estate or tenure other than the interests expressly saved by or under the provisions of this Act. In order to find out the implication of the clause extracted above we have to go to Sec. 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in khas possession of an intermediary on the date of vesting (including certain classes of land specified in that section) shall subject to the provisions of Ss. 7-A 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 suitable rent as may be determined by the Collector in the prescribed manner. Reading Sections 3, 4 and 6 together, it follows that all Estates notified under Sec.3 vest in the State free of all encumbrances. The quondam proprietors and tenure-holders of those Estates lose all interests in those Estates. As proprietors they retain no interest in respect of them whatsoever. But in respect or the lands enumerated in Sec. 6 the State settled on them the rights of raiyats. Though in fact the vesting of the Estates and the deemed settlement of raiyats rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free of all encumbrances. Then followed the deemed settlement by the State of raiyats rights on the quondam proprietors. Therefore in law it would not be correct to say drat what vested in the State are only those interests not coming within S. 6." It will be noticed from the last mentioned decision which is in conformity with the earlier decisions of the Supreme Court that the effect of Sections 3, 4 and 6 taken together is that the estates notified under Sec.3 or 3-A vest in the State free of all encumbrances. The proprietors and tenure-holders lose all interests in such estates. The proprietors and tenure-holders lose all interests in such estates. They do not retain any interest whatsoever in respect of the estates so vested though under the provisions of Sec. 6 of the Act them is a settlement, by legal fiction, of raiyati rights in favour of the erstwhile proprietors in respect of such lands as were in their khas possession on the date of vesting and though such a legal fiction is, more or less, simultaneous to the vesting of the estate in the State, it is now well settled that in law the deemed settlement and the vesting are two different transactions - the vesting preceding, in the eye of law, the act of deemed settlement. But for the insertion of Sec. 6 in the Statute Book nothing could have been left to the erstwhile proprietors. The insertion of such a provision, however, does not improve the position of the proprietor or tenure-holder. It simply confers a benefit of a raiyati settlement under law, which otherwise could not have been available to the erstwhile proprietor or tenure-holder. The property so settled is not by virtue of its being any part of the estate which had vested but irrespective of such vesting. This position was reiterated in the case of Sita Saran Singh (1971) 3 SCC 200 where the same learned Judge quoted in extenso from Shivashankar Prasads case AIR 1969 SC 971 that portion which dealt with the consequences of vesting of an estate as set out in Sec. 4 of the Act. 5 It will be noticed that practically an the cases aforementioned were cases relating to mortgages. But a case more in point is that of Bhubneshwar Prasad AIR 1971 SC 2251 . In that case which went up in appeal to the Supreme Court from a judgment of this Court and where this Courts judgment was affirmed, the point for consideration was as to what would be the effect of vesting of an estate on decrees passed in partition suits which had not become final on the date when the estate was notified to have vested in the State. The suit out of which the appeal before the Supreme Court arose in the case of Bhubneshwar Prasad was also a suit for partition of four annas milkiat interest of one of the Co-sharer landlords of the tauzis in question. The suit out of which the appeal before the Supreme Court arose in the case of Bhubneshwar Prasad was also a suit for partition of four annas milkiat interest of one of the Co-sharer landlords of the tauzis in question. The trial court having passed a preliminary decree in favour of the plaintiffs in that suit, this Court, in appeal, modified the preliminary decree and the matter having ultimately been taken to the Supreme Court, the preliminary decree as passed by the trial court was restored. Subsequent thereto proceedings for preparation of final decree were started. An objection was taken that the preliminary decree had become infructuous and, therefore, no final decree would be passed on the basis thereof. While dealing with that question, this Court, in the reported decision in Sidheshwar Mukherji V/s. Bhubneshwar Prasad Narain Singh, 1965 BLJR 452, held that a co-sharers possession was in law possession on behalf of all the co-sharers. If only one co-sharer was in possession of any of the joint properties, it would not amount to his exclusive possession but such a possession would enure to the benefit of all the co-sharers. The point canvassed before the Supreme Court was that the judgment of this Court giving a direction that the partition suit launched in 1943 should be allowed to proceed in view of the provisions of Sec. 6 of the Act was not correct in law. This contention was repelled by the Supreme Court which held that, as possession of one co-sharer was possession of all the co-sharers, the deeming provision of Sec. 6 of the Act enures for the benefit of all who are in possession in the eye of law; the non-possessing co-sharer did not lose his share in the bakast lands and had right to them as raiyat though not as proprietor or a tenure-holder because no party in the partition suit was claiming either to oust a trespasser or any title by adverse possession. This Courts direction, therefore, to the effect that the trial court should proceed with the proceedings for preparation of the final decree in the partition suit in respect of lands deemed to be settled with the proprietors or tenure-holders was sustained. 6. This Courts direction, therefore, to the effect that the trial court should proceed with the proceedings for preparation of the final decree in the partition suit in respect of lands deemed to be settled with the proprietors or tenure-holders was sustained. 6. It must, in view of the aforesaid decisions, be held that the final decree for partition of the proprietary interest in an estate which already stands vested in the State of Bihar has become infructuous. It is a different matter that the parties may be at liberty either to institue a fresh partition suit in respect of the lands deemed to be settled with them under the provisions of Sec. 6 of the Act or may choose to proceed for preparation of fresh final decree. As they may be advised and whichever course may be open to them under the law, the fact remains that the estate having vested, the subject-matter of the partition suit, which, I repeat, was merely the proprietary interest, was obliterated by force of statute and a decree in respect of such property which is non est in the eye of law cannot be held to be executable. It is plain that the non-executability of such a decree will not so attract the provisions of Sec. 47 of the Code of Civil Procedure as to stand as a bar to either of the two courses aforementioned. Be that as it may, the judgment and order of the court below holding that the final decree in the partition suit had become infructuous and the execution case was not maintainable cannot be said to be erroneous in law. 7. For the reasons given above, I do not see any merit in this appeal. It is accordingly dismissed but in the circumstances of this case I make no order as to cost. UNTWALIA, J. 8 I agree.