TMI Blog1961 (10) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... t for possession of certain fields including the fields in suits viz., fields khasra Nos. 147 and 154, and based his claim on his proprietary right to recover possession and not on the loss of possession on account of the appellant's dispossessing him. The suit was decreed and the decree was upheld by he Nagpur High Court by its order dated April 20, 1951, it being held that the respondent was entitled to the fields in suit which were originally khudkasht fields as part and purchased by the respondent. It so happened that between the closing of the arguments in the appeal before the High Court, some time before March 31, 1951, and the delivery of judgment on April 20, 1951, the Madhya Pradesh Abolition of proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M.P. Act No. 1 of 1951), hereinafter called the Act, came into force. This fact does not appear to have been brought to the notice of the High Court as it did not consider the effect of the Act on the appeal before it. The respondent-decree holder filed execution application for the recovery of costs and delivery of possession on July 23, 1951. The appellant paid up the costs, but, on August 31, 1951, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not take any advantage of his omission to claim the land in suit as his home-farm as he could not have moved in the matter without obtaining possession or of a declaration of malik makhbuza under s. 41 of the Act during the pendency of the execution application as he had fraudulently suppressed the fact that he had been hold by the High Court not to have been an occupancy tenant of the land in suit and that the respondent had a decree for possession against him. The State of Madhya Pradesh was served with notice of the objection and filed its statement of facts stating therein that the plots in suit were not shown as home-farm by the ex-proprietor respondent, that no Jamabhandhis as required by s. 2(g) of the Act, were filed in the compensation proceedings and that, consequently, the respondent was not declared mailk makbuza of those plots. It was also stated that the appellant had been declared malik makbuza of the plots under s. 41/56 of the Act on application under s. 4(2) of the Madhya Pradesh Agricultural Raiyats and Tenants Acquisition of Privileges) Act, 1950 (M. P. Act XVIII of 1950), and that he has paid land revenue to the State. The Execution Court dismissed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondent. Before considering the question arising for determination in this appeal, it will be convenient to detail the relevant provisions of the Act and their effect. The preamble of the Act says that it is expedient to provide for the acquisition of the rights of the proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith. This indicates that the Act purported to deal with the rights of the proprietors and not directly with the rights of other persons in the estates, mahals, alienated villages and alienated lands. The proprietors were intermediaries between the persons actually cultivating the land and the Government. They realised rent from the former and paid revenue to the latter. Section 3 is the vesting section and its sub- ss. (1) and(2) read: (1) Save as otherwise provided in this Act, on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncumbrances..................... .................................................. .......... (e) the interest of the proprietor so acquired shall not be liable to attachment or sale in execution of any decree or other process of any court, civil or revenue, and any attachment existing at the date of vesting or any order for attachment passed before such date shall, subject to the provisions of section 73 of the Transfer of Property Act, 1882, case to be in force. ' sub sections (2) and (3) of s. 4 are as follows: (2) Notwithstanding anything contained in sub-section (1), the proprietor shall continue to retain the possession of his homestead, home-farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before . the date of vesting. (3) Nothing contained in subsection (1) shall operate as a bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting by virtue of his proprietary rights and any such sum shall be recoverable by him by any process of law which but for this Act would be available to him. It is to be noted that the consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malik-makbuza, or land comprised in a home-farm. Occupied land did not include land held by a person as a trespasser. The provisions of cl. (e) of sub-s. (1) of s. 4 indicate that certain decrees against the interest of the proprietor become inexecutable on the vesting of his rights in the State. There is therefore good reason to hold that decrees in his favour also become inexecutable if they are based on his proprietary right which he possess no more and which has vested in the State. The Act provided, by sub-s. (3) of s. 4, that the out-going proprietor was free to recover any sum which had become due to him before the date of vesting by virtue of his proprietary rights by any process of law which, but for the Act, would be available to him. It does not provide for the outgoing proprietor to recover possession of land by any process of law if he had become entitled to the possession of that land before the date of vesting. The absence of any such provision adds strength to the view that the proprietor's right to obtain possession of land under a decree in his favour gets lost to him after the date of vesting. Sub-section (2) of s. 4 of the Act provides that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferently. Only that land comes within the expression `home-farm'' which had been under the personal cultivation of the proprietor on the date of vesting and which had been similarly under cultivation in the agricultural year 1949-50, and which he is entitled to retain even on the termination of his proprietary tenure under any instrument having the force of law and applicable to that tenure. Personal cultivation of the proprietor at two relevant dates was the main criterion. Such cultivation was not made the criterion in the definition in sub-cl. (1) of sub-s. (1). It is not necessary, according to that sub-clause, that the proprietor be personally cultivating that land. The only condition requisite for the proprietor having certain land treated as his home-farm was the fact that the annual papers of 1948-49 recorded that land as his sir and khudkasht. The basis was the record and not the fact of actual cultivation or his title to that an land The definition evinces the intention of the Legislature to remove the question of certain land being `home-farm' or not from the sphere of litigation. Recorded entry was treated to be the basis for adjudging tho land to be `home-f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Provinces, shall, for purposes of assessment and payment of compensation be presumed to be correct. This means that for the purpose of settlement of the claim filed by the respondent under s. 12, the entry of the appellant's being an occupancy tenant in the annual papers had to be presumed to be correct and, as a consequence of such a presumption, the land in suit cannot be taken to be the respondent's khudkasht in 1948-49, and this supports the construction we have placed on the definition of `home-farm' in s. 2 (g). Sub-section (1) of s. 38 provides that every proprietor who is divested of his proprietary rights in an estate or mahal, shall, with effect from the date of vesting, be a malik makbuza of the home-farm land in his possession. The respondent does not appear to have taken any steps to get himself recognized as a malik makbuza of the land in suit on the ground that it was, his home-farm. In fact, he estates in his reply to the appellant's objection that he could not have moved in the matter without obtaining possession. Exhibit A-1, dated May 8, 1951, is the statement of fixation of assessment on the home- farm of the respondent. It does not inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his being malik makbuza of such land from an officer of the State in whom the land in suit now vests. His right to occupy the land under this right was not adjudicated by the High Court in the judgment leading to the decree ought to be executed. He can therefore object to the execution of the decree for the delivery of possession as the respondent has no subsisting right and as he has secured from the State a good right to possess it as malik makbuza, even though it be on the basis of a wrong entry in the village papers. The right to possession vests in the State and under s. 7, the Deputy Commissioner formally takes possession of the land, which is not home farm or occupied land within the definition of these expressions in the Act. If the land in suit be treated to be the appellant's occupancy tenancy, his right to remain in possession as occupancy tenant continues after the vesting of the land in suit, in the State. If the land in suit be not taken to be occupancy land of the appellant in view of the finding of the High Court, the Deputy Commissioner would be deemed to have taken possession of the land from the appellant and any subsequent possession of the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us acquired the rights of occupancy tenancy which were confirmed in consolidation proceedings. The suit was decreed in its entirety by the trial Court but the 1st appellate Court confirmed the decree with respect to a portion of khudkasht land which was held to be included in the revenue sale. By the time the second appeal was heard in the High Court, the Act had come into force. It was contended on behalf of the defendant-judgment debtor that the suit must fail in view of the provisions of the Act as interpreted in Chhote Khan's Case ( I.L.R. (1953) Nag. 702.). In view of the difference of opinion between the learned Judge who heard the second appeal, two questions were referred to a third Judge for opinion and one of the questions was: Does the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) 'Act, 1950 (No. 1 of 1951) bar a suit by an ex-proprietor for recovery of khudkasht lands purchased by him before the Act came into force ? Mudholkar, J., to whom the questions were referred said at p. 996: It is clear from the documents on record that Khubiram had obtained possession of the land in suit after he purchased it along w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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