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PETITIONER: AHMAD HAFIZ KHAN

       Vs.

RESPONDENT: MOHAMMAD HASAN KHAN

DATE OF JUDGMENT: 04/03/1963

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. SHAH, J.C.

CITATION:  1967 AIR  354            1964 SCR  (2) 191

ACT: Proprietary  Right,  Abolition of--Operation  of  enactment- --Validity-Cultivating rights in sir and khudkasht land,  if and  when  protected  against  sale  in  execution  of   the decree--Madhya  Pradesh  Abolition  of  Proprietary   Rights (Estates,  Mahals, Alienated Lands) Act, 1950 (M.  P.  1  of 1951), ss. 43, 49.

HEADNOTE: One  Mohd Yusuf, in execution of a money decree against  the appellant, attached the appellant’s share in a village along with  sir and khudkasht lands appurtenant  thereto.   Before the  sale  took  place,  the  Madhya  Pradesh  Abolition  of Proprietary  Rights (Estates, Mahals, Alienated Lands)  Act, 1950 M. P. 1 of 1951) was made applicable to that area,  and the  proprietary rights in the village vested in the  State. On October, 1951, the respondent purchased the sir khudkasht fields in action sale and the appellant’s objection  therein having  been dismissed, the sale was confirmed.  On  appeal, the  Additional  District Judge set aside the sale  and  the property was restored to the appellant.  On further  appeal, that order was reversed and the auction purchaser was  again put  in  possession  of the property.   The  appellant  then applied  to the executing Court objecting that there was  no jurisdiction  to  sell  the fields.  The  objection  of  the appellant   was  dismissed  by  the  Civil  judge  and   his successive appeals to the District judge and the High  Court also  failed.  On appeal by special leave,  the  appellant’s main  contention was that the cultivating rights in the  sir lands  could not be the subject matter of sale in  execution of the decree in view of s. 43 of the Abolition Act. Held,  that  by  the operation of  the  Abolition  Act,  the proprietor  ceases  to be the proprietor of  the  estate  or village   including  the  sir  lands  appurtenant   to   the proprietorship.  But the cultivating rights in the sir lands which  were his home. farm are saved to him and under s.  38 of  the  Abolition Act he becomes a malik makbuza  of  these fields.   The Abolition Act having deprived the  proprietors of  their  property  interest gives protection  to  them  in respect of their new rights in the homefarm which has become the malik makbuza of the proprietor.

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The  words  of  s. 43 are quite clear  and  the  cultivating rights in the sir and Khudkash land which became under the 192 Act  the home-farm of the proprietor are  protected  against sale except where those cultivating rights were the  subject of  a mortgage or a charge created by the proprietor.   That condition  did not exist in the present case and  the  sale, therefore,  must be declared to be without jurisdiction  and ordered to be set aside. Govind   Prasad   v.  Pawan  Kumar,  1955  N.  L.   J.   678 distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 293 of 1961. Appeal  by special leave from the judgment and  order  dated December 24, 1959 of the Madhhya Pradesh High Court in Misc. Second Appeal No. 3 of 1959. W.   S. Barlingay and A. G. Ratnaparkhi, for the appellant. Ganpat Rai, for the respondent. 1963.  March 4. The judgment of the Court was delivered by HIDAYATULLAH J.-One Mohd.  Yusaf obtained a money decree for Rs.  1277/7/-  against the appellant, Ahmad Hafiz  Khan,  on January  14, 1950.  In execution of the decree Mohd.   Yusaf attached two annas and 5-7/45 pies share of the appellant in Mouza  Tumhari, Tahsil Sakti, District  Bilaspur,  alongwith sir and khudkasht lands appurtenant thereto.  The attachment was  made on September 28, 1950.  On March 31, 1951,  before the  sale  took  place,  the  Madhya  Pradesh  Abolition  of Proprietary  Rights (Estates, Mahals, Alienated Lands)  Act, 1950 (M.  P. Act No. 1 of 1951) was made applicable to  that area.   In view of the provisions of the Abolition  Act  the proprietary rights in the village vested in the State.  Thus far there is no dispute. On October 1, 1951, the fields under attachment were put  to sale and were purchased by the  193 respondent,  Mohd.   Hasan  Khan.  The  appellant  filed  an application setting forth objections under Order 21 Rule  90 of  the  Code  of Civil Procedure but  the  application  was dismissed  and the sale was confirmed on February  1,  1952. The  judgment-debtor appealed against the  order  dismissing the application and on May 1, 1952, the Additional  District judge,  Bilaspur, set-aside the sale, and possession of  the property  was restored to the appellant.  On further  appeal by  the  auction  purchaser  the  order  of  the  Additional District  judge was reversed and the auction  purchaser  was put  in possession of the property on April 16, 1955.   Both the  appellant  and  the auction purchaser  applied  to  the executing  court.   The appellant raised  further  objection while the auction purchaser asked for mesne profits under s. 144  of the Code of Civil Procedure.  We are concerned  with the  application  of the appellant.  The  objection  of  the appellant   was  dismissed  by  the  Civil  judge  and   his successive appeals to the District judge and the High  Court also  failed.   The  judgment of the High  Court  passed  on December  24, 1959, and the present appeal is filed  against that  judgment  with the special leave of this  Court.   The contention  of the appellant is that the cultivating  rights in the sir lands could not be the subject matter of sale  in execution  of the decree in view of s. 43 of  the  Abolition Act.   This argument was not accepted by the High Court  and it  is  contended  that the decision of the  High  Court  is erroneous.  In our opinion the contention must be sustained.

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      Under  the  Central Provinces Tenancy  Act,  1920,  a proprietor  losing  his  right  to occupy  sir  land,  as  a proprietor  became, from the date of such loss of  right  an occupancy  tenant of sir lands.  This was provided by s.  49 of  the  Act  which, in so far as relevant  to  the  present purpose, read as follows :-               "49,  (1)  A proprietor,  who  temporarily  or               permanently loses, whether under a decree or               194.               order  of  a  Civil Court  or  a  transfer  or               otherwise,  his right to occupy his  sir-land,               in whole or in part, as a proprietor, shall at               the  date  of such loss  become  an  occupancy               tenant   of  such  sir-land  except   in   the               following cases,-               (a)   when a transfer of such sir-land is made               by  him  expressly agreeing  to  transfer  his               right to cultivate such sir land; or               (b)   when such sir-land is sold in  execution               of,  or foreclosed under a decree of  a  Civil               Court  which  expressly directs  the  sale  or               foreclosure  of  his right to  cultivate  such               sir-land."               (The other sub-sections are not relevant) The  effect of the loss of proprietorship by reason  of  the Abolition Act is almost the same except that a new right  is created  in  the quondam proprietor in respect  of  his  sir lands.   On the passing of the proprietary interest  to  the State  what  remains to the proprietor  is  his  cultivating rights  in the sir fields and the Abolition Act provides  in s.  4 (2) that the proprietor "shall continue to retain  the possession of his............ home-farm land".   "Home-farm" is  defined  by s. 2 (g) (i) as "land recorded  as  sir  and khudkasht in the name of the proprietor in the annual papers for  the  year  1948-49."  Thus  by  the  operation  of  the Abolition Act, the proprietor ceases to be the proprietor of the estate or village including the sir lands appurtenant to the  proprietorship.  But the cultivating rights in the  sir lands which were his home-farm are saved to him and under s. 38 of the Abolition Act he becomes a malik makbuza of  these fields.  The Abolition Act. having deprived the  proprietors of their proprietary interest gives some protection to  them in  respect of their new rights in the home-farm  which  has become the Malik makbuza  195 of the proprietor.  Section 43 of the Abolition Act provides as follows               "Any land which immediately before the date of               vesting,  was  held in absolute  occupancy  or               occupancy right or recorded as Sir-land, shall                             not   be  liable  to  attachment  or sale   in               execution  of  a  decree  or  order  for   the               recovery of any debt incurred before the  date               of vesting except where such debt was  validly               secured  by  mortgage of or a  charge  on  the               absolute  occupancy or occupancy land  or  the               cultivating right in the sir-land." By this section attachment and sale of the cultivating right in  sir lands is barred unless there is a mortgage of  or  a charge  on, the cultivating rights.  The section applies  to decrees  in  respect of debts prior to the  vesting  in  the State as in the case here. In the present case the attachment was before, and the  sale after  the  date when the Abolition Act came into  force  in

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this  area.   There  was no mortgage of  or  charge  on  the cultivating rights’ in Sir.  The decree holder Mohd.   Yusaf had only a money decree and the attachment cannot be said to have created a charge on the attached property so as to make it  a secured debt within the latter part of s.  43.   There being no secured debt and the cultivating rights not  having been  mortgaged or charged there could be no sale  of  these fields  after the Abolition Act came into force.   The  sale was, therefore, without jurisdiction, and thus illegal. The  learned  single judge in the High Court relied  upon  a Division  Bench ruling of his own Court reported  in  Govind Prasad v. Pawan Kumar (1), where it was held that after  the Abolition Act an attachment of the proprietary share in  the village  including the Sir and khudkasht  lands  appurtenant thereto made before the Abolition Act got transferred (1)  1955 N. L. J. 678, 196 to  the  home-farm after the appointed date.  It  is  argued that  if the attachment could subsist on the home-farm  then the  home-farm  could  also  be sold.   In  the  ruling  the question  whether  a sale of the cultivating rights  in  the home-farm could take place after the Abolition Act came into force  was not considered at all.  There the attachment  had been  effected before the Abolition Act came into force  and it  was held that the attachment must continue on  the  home farm.     It  was not noticed that. the attachment would  be useless  if the sale could not take place and the  attention of  the  Bench  does not appear to have been  drawn  to  the provisions  of  s. 43 of the Abolition  Act,  otherwise  the Bench  would have mentioned it.  In any event, the words  of s. 43 are quite clear and the cultivating rights in the  sir and  khudkash land which became under the Act the  home-farm of  the proprietor are protected against sale  except  where those cultivating rights were the subject of a mortgage or a charge  created by the proprietor.  That condition does  not exist  in the present case and the sale, therefore, must  be declared  to be without jurisdiction.and ordered to be  set- aside. We  accordingly allow the appeal and set aside the  sale  in respect  of  the  sir  lands  appurtenant  to  the  original proprietary  share.  The appellant shall be entitled to  his costs in this Court but costs incurred in the High Court  or the Court below shall be borne as incurred. Appeal allowed. 197