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PETITIONER: HAJI Sk. SUBHAN

       Vs.

RESPONDENT: MADHORAO

DATE OF JUDGMENT: 16/10/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1962 AIR 1230            1962 SCR  Supl. (1) 123  CITATOR INFO :  R          1963 SC 454  (16)  D          1971 SC  77  (3,9,12)  RF         1980 SC 696  (2,11)  R          1985 SC 579  (1)

ACT:      Execution      Proceedings-Objections      to executability-Decree   for    possession-Enactment providing  for   vesting  in   the  State  of  all proprietary  rights-Enactment  coming  into  force during pendency  of appeal in High Court-Effect on decree  of  High  Court-Executability  of  decree- Madhya Pradesh  Abolition  of  Proprietary  Rights (Estates, Mahals,  Alienated Lands)  Act, 1950 (M. P. 1  of 1951),  ss. 2(g),  2(k), 3, 4, 41-Code of Civil Procedure, 1908 (1)Act 5 of 1908), s.47.

HEADNOTE:      The respondent purchased at a revenue auction sale eight  anna  share  of  and  obtained  formal possession of  that share  on September  23, 1938. relinquished his share in Khudkasht lands and they were recorded  as the  occupancy lands of his wife and sons.  In 1940  the appellant  got a  lease of those fields. The respondent instituted a suit for possession of  the  lands  against  the  appellant basing his  claim  on  his  proprietary  right  to recover possession,  and obtained a decree on July 12, 1944.  The trial  court’s decree was confirmed on April  20, 1951,  by the  High Court which held that the  respondent was  entitled to the lands as they were  originally Khudkasht fields as part and parcel of  the eight  anna share purchased by him. In the  meantime on  March 31,  1951,  the  Madhya Pradesh Abolition  of Proprietary Rights (Estates, Mahals, Alienated  Lands) Act, 1950, had come into force but  the High  Court did  not  consider  the effect of  the Act  on the appeal before it. Under s. 3  of the  Act the  proprietory  rights  in  an estate specified  in the  notification passed from

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the proprietor and became vested in the State free from all  encumbrances, rand  by s.  4, after  the issue   of    the   notification    under   s.   3 124 notwithstanding   anything    contained   in   any contract, grant  or document  or any other law for the time  being in  force, all  rights, title  and interest which  a proprietor  possessed on account of his  proprietorship  of  the  land  within  the estate became  vested in  the State, except, inter alia, His  home-farm land and occupied land. Under s. 2(g)  of the  Act home-farm  lands  were  those which were  recorded as  Sir and  Khudkasht in the name of  a proprietor in the annual papers for the year 1948-49, but in the present case the lands in respect of  which a  decree  had  been  passed  in favour of the respondent, were not so recorded. On the other  hand, the  lands  were  declared  Malik Makbuza of  the appellant  under s. 41 of the Act. In the  execution application  for the recovery of possession filed  by the  respondent the appellant raised objections  that  the  respondent  was  not entitled to  execute the  decree for possession as his proprietary rights except his home-farm lands, ceased to exist on March 1, 1951, by virtue of ss. 3 and  4 of the Act and became vested in the State thereafter, and that the State had, after the date of vesting  recognized the  lands in  suit  to  be tenancy land  of the  appellant. The  respondent’s plea was  that The  appellant was  not entitled to raise such  objections ill  the  executing  court, that the  executing court  could not go behind the decree and, therefore, must execute it and deliver possession to  the respondent. The executing court dismissed the  objections raised by the appellant, and the  High Court  took the  view, relying  upon Rahmatullah Khan  v. Mahabirsingh, I. L. R. [1955] Nag. 983,  that the  lands in suit must be treated as  home-farm  as  it  was  the  duty  of  revenue authorities to make correct entries in the village papers. ^      Held,  that:   (1)  the  principle  that  the executing court cannot question the decree and has to execute  the decree  has no  operation  on  the facts of the present case because the objection of the appellant  was based  not with  respect to the invalidity of  the decree but on the effect of the provisions of  the  Madhya  Pradesh  Abolition  of Proprietary  Rights  (Estates,  Mahals,  Alienated Lands) Act,  1950, which deprive the respondent of his proprietary  rights  including  the  right  to recover possession over the lands in suit;      (2) the  word "document"  ill s.  4(1) of the Act includes a decree of the court;      (3) the  lands in suit could not be the home- farm of  the respondent  as they were not recorded as his  khudkasht in the annual papers of 1948-49, and consequently,  his proprietary  right was lost and got  vested in  the State  on the  coming into force of the Act;      Rahmatullah Khan  v. Mahabir Singh, I. I,. R. [1955] Nag. 983, disapproved. 125      Chhote Khan  v. Mohammad  Obedullakhan, I. L.

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R. [1953] Nag. 702, distinguished.      (4) since  the Act  did 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, his  right to get possession by executing his decree  got lost  to him  after  the  date  of vesting; and      (5) the  executing court  should,  therefore, have refused to execute the decree holding that it became inexecutable  on account  of the  change in law and its effect.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal No. 285 of 1958.      Appeal from  the judgment  and  decree  dated September 22,  1955, of  the  former  Nagpur  High Court in Mis. (First) Appeal No. 201 of 1952.      N. C.  Chatterjee,  D.  R.  Baxy  and  Dharam Bhusan, for the appellant.      B.  S.   Sastri  and   Ganpat  Rai,  for  the respondent.      1961. October  16. The  Judgment of the Court was delivered by      RAGHUBAR   DAYAL,    J.-This    appeal,    on certificate granted  by the  High Court at Nagpur, is  directed  against  its  order  dismissing  the appellant’s appeal  against the  dismissal of  his objection, under  s.  47  of  the  Code  of  Civil Procedure,  by  the  III  Civil  Judge,  Class  I, Nagpur.      The respondent  purchased  at  auction  sale, held  by  the  Revenue  Officer  for  recovery  of arrears of  land  revenue,  eight  anna  share  of Ganpatrao in  mouza Vadoda,  Tehsil  and  District Nagpur, in  the Central  Provinces,  and  obtained formal possession  of that  share on September 23, 1938.  Ganpatrao   relinquished   his   share   in khudkahst  lands   they  were   recorded  as   the occupancy  land   of  his   wife  and  sons.  They surrendered those  fields to lambardar Narain, who leased those  fields in  occupancy  right  to  tho appellant in 1940. The respondent filed a suit for possession of  certain fields including the fields in suits viz., fields khasra Nos. 147 and 154, 126 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 parcel of  the eight  anna share  of Mahal  No.  2 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

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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, filed an objection  to  the  application  for  delivery  of possession on  the  ground  that  the  respondent- decree holder  had  no  right  to  dispossess  the appellant-judgment debtor,  as the  respondent had lost his  proprietary rights to the fields and the appellant  had  acquired  rights  to  occupy  them subsequent  to  the  confirmation  of  decree  for possession by  the High  Court. It was stated that the   malguzari    proprietary   rights   of   the respondent-decree holder,  except his  rights over home-farm fields,  ceased to  exist on  March  31, 1951, by  virtue of  s. 3 of the Act and vested in the State  thereafter. Home-farm fields were those fields which  were recorded  as khudkasht  or  sir fields in the Jamabandhi of 1948-49. The fields in suit were  not so  recorded and  were recorded  as occupancy fields of appellant,. 127      It was  further contended that the State had, after the date of vesting, collected rent from the appellant recognizing  the land  in suit to be the tenancy land of the appellant.      On September 24, 1951, the appellant filed an application stating  further facts  in support  of his  objection.  He  stated  that  the  respondent neither claimed, in the ex-propriation proceedings before  the   Compensation  Officer,  Nagpur,  the fields in  suit as his khudkasht lands, nor raised any such  claim in  proceedings  for  fixation  of assessment on  his home-farm  and that the decree- holder had  not been declared malik makbuza of the land  in   suit.  He   further  stated   that  the respondent had  included the rent of the fields in suit in the area of the village for the purpose of claiming  compensation   and  thereby   got   more compensation on  that account  and that the fields in suit  had been  declared malik  makbuza of  the appellant on  July 22,  1952, under  s. 41  of the Act.      The respondent contended before the Executing Court that  the appellant  could  not  raise  such objections in  the Executing Court and should have raised them in the High Court before it had passed the orders  in the  appeal. He  further  contended that he  had not  lost his  right to  possess  the fields in suit and that his claim to possession of the  fields  was  not  affected  by  the  Act  the provisions of  which did not apply to the facts of the  case.   He  also   contended  the  State  had absolutely no  right to  collect any  rent for the fields from  the appellant and any collection made did not affect the respondent’s rights. He further contended that  the appellant  could 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

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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 128 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 objection. It  held   that   the   vesting   of   respondents proprietary rights  in the  State did  not come in his way  to take  possession  of  the  fields  ill execution   of   the   decree,   as   the   Deputy Commissioner could  not  take  possession  of  the fields in  suit under s. 7 of the Act as they were occupied lands.  It further  held that the land in suit did not form the respondent’s home-field that the respondent  could not  be the malik makbuza of the fields  under s.  38 (1)  of the  Act  as  the fields were not in his possession. It further held that the  declaration of  the appellant, who was a trespasser as  a malik  makbuza, was  illegal. The appellant then went in appeal to the High Court.      The High Court relied on the case reported as Rahmatulla Khan  v. Mahabirsingh  (1) in  which it was held  that the  definition of a ’home-farm’ in s. 2,  clause (g), of the Act, should be liberally construed and  should  include  the  fields  of  a proprietor who  was entitled  to get  the  Revenue papers of  1948-49 corrected  as a  result of  the decree in his favour, (1) I.L.R. [1955] Nag. 983. 129 even though  the fields  were not  recorded as his khudkasht in  the 1948-49  papers, because  it was the  duty  of  the  Revenue  Authorities  to  make correct  entries   in  the  Jamabandis  and  other village papers.  The High  Court, however, pointed out that  the decision  in  Rahmatullah’s  Case(1) made out  an exception  in the definition which is not in  it  and  in  effect  laid  down  that  the application of the Act depended upon the result of pending litigation,  a view which was not accepted in the  earlier Full  Bench case of Chhote Khan v. Mohammad  Obedullakhan  (2).  The  learned  Judges further said:           Though we  do not agree with the view of      Mudholkar,  J.,   the  decision  ranks  as  a      Division Bench  Case and we follow it, though      reluctantly. "

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    The learned  counsel for  the  appellant  has urged that  the  respondent  is  not  entitled  to execute the  decree for  possession as he had lost the proprietory  right which  entitled him  to get possession. It is further urged that the appellant has secured  the rights  of malik  makbuza of  the land subsequent  to the  decree and has thus got a right to  remain in  possession in  spite  of  the decree. The  learned counsel  for  the  respondent mainly relies on the contention that the Execution Court cannot  go behind  the decree  and therefore must execute  it and  deliver  possession  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      (1) I.L.R. [1955] Nag. 983.         (2) I.L.R                                   [1953] Nag. 702. 130 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,   mahal,   alienated   village,      alienated  land,   or  in   a  person  having      interest in  such proprietary  right  through      the  proprietor,   shall   pass   from   such      proprietor or  such other  person to and vest      in the  estate for  the purposes of the State      free of all encumbrances.           (2) After  the issue  of a  notification      under  subsection  (1),  no  right  shall  be      acquired in  or over  the land  to which  the      said   notification    relates,   except   by      succession or  under a  grant or  contract in      writing made  or entered into by or on behalf      of the  State; and  no  fresh  clearings  for      cultivation or for any other purpose shall be      made in  such land  except in accordance with      such rules  as  may  be  made  by  the  State      Government in this behalf." In accordance with the provisions of this section, the  proprietary   rights  in  an  estate,  mahal, alienated village  or alienated  land in  the area specified  in   the  notification   vesting  in  a proprietor of  such estate etc., were to pass from

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such proprietor and vest in the State for purposes of the  State free  from all  encumbrances.  These provisions themselves  were sufficient  to  divest the  proprietor   of  such  estate  etc.,  of  his proprietary right. The consequences of such 131 vesting are  further specified in s. 4. In view of sub-s. (2)  of s.  3, no right could acquired over the land  which had  vested in the State except by succession or under a grant or contract in writing made or entered into by or on behalf of the State. This means  that no person could acquire any right over such land under a decree passed in his favour subsequent to  the vesting  of the  estate on  the notified date  and that  therefore the  respondent did not  acquire the  right to  possess this  land under the decree in his favour.      The relevant  portions of  sub-s. (1) of s. 4 are:           (1) When  the notification under section      3 in  respect of  any area has been published      in   the   Gazette,   then,   notwithstanding      anything contained  in any contract, grant or      document or  any other law for the time being      in force  and save  as otherwise  provided in      this Act,  the consequence as hereinafter set      forth shall,  from the  beginning of the date      specified in  such notification  (hereinafter      referred to  as the  date of vesting), ensue,      namely           (a)  all   rights,  title  and  interest      vesting  in   the  proprietor  in  such  area      including land  (cultivable or barren), shall      cease and be vested in the State for purposes      of     the      State     free     of     all      encumbrances..................... .................................................. ..........           (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 132      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."

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    It is  to  be  noted  that  the  consequences mentioned in 8. 4 follow the notification under 8. 3,  notwithstanding   anything  contained  in  any contract, grant  or document  or in  any other law for the  time being  in  force.  The  question  is whether the  word ’document’  includes a decree of the Court.  We do  not see  any good  reason why a decree  of   the  Court,   when  it   affects  the proprietary rights  and is  in relation  to  them, should not  be included  in this  expression.  The main object of ss. 3 and 4 and in fact, of the Act itself, is  that all  the bundle of rights which a proprietor   possess    on    account    of    his proprietorship of the land within the estate etc., should cease,  except such  rights which are saved to the proprietor under some specific provision of the Act. Any rights which accrue to the proprietor under a  decree by virtue to his proprietary right will not,  under the  scheme of  the Act,  prevail over  the  statutory  consequences  following  the vesting of the proprietary rights in the State and will be  lost to the proprietor. One such right is the right  of the  proprietor under  a  decree  to obtain possession over certain land. Such a decree for recovery  of possession  is the  result of the recognition   of   the   proprietor’s   right   of possession as proprietor over that land as against the claim of the judgment debtor to 133 retain possession  of that  land. The  proprietary right vests  in the  State and as a consequence of it the  proprietor’s right  under  the  decree  to obtain possession  also vests  in the  State, even though tho  State gets  right to the possession of the land  under other  provisions of  the  Act  as well.      Section 7 empowers the Deputy Commissioner to take charge,  on the date of vesting, of all lands other than  occupied lands  and homestead  of  all interest vesting  in the  State under  B. 3.  This means that  the  Deputy  Commissioner  could  take possession of  the land  in suit  on the  date  of vesting, i.  e., on  March 31,  1951,  as  it  was neither the  proprietor’s home-farm  nor  occupied land, as  defined in  cl. (k)  of  c.  2,  of  the appellant who  was held  by the High Court to be a trespasser - vide judgment of the High Court dated April 20, 1951, now reported in Subhan v. Madhorao (1).      ‘Occupied land’  means, in  relation  to  the Central Provinces,  according to sub-cl. (1), land held immediately  before the  date of  vesting  in absolute occupancy  or village  service tenure, or land held as 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

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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      (1) I.L.R. [1951] Nag. 895. 134 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   proprietor  can   continue  to  retain possession of  home-farm land after the vesting of his proprietary right in the State. The respondent cannot take  advantage of  this provision  even if the land  in suit  be held to be home-farm. He was not in  possession of the land in suit on the date of vesting and no question of continuing to retain possession arose.  In fact,  the  fields  in  suit could not be his home-farm and therefore he got no right to retain possession over them.      Clause (g)  of s. 2 of the Act defines ‘home- farm’. It reads.           (g)‘home-farm’ means,-           (1) in relation to Central Provinces,-                (ii)  land   recorded  as  sir  and      khudkasht in  the name of a proprietor in the      annual papers for the year 1948-49, and                (ii) land  acquired by a proprietor      by surrender  from  tenants  after  the  year      1948-49 till the date of vesting;           (2) in  relation to  merged territories,      that part  of the  land  under  the  personal      cultivation of  the proprietor on the date of      vesting which was similarly under cultivation      in the agricultural year 1949-50 and which he      is omitted  to retain  on the  termination of      proprietary  tenure   under  any   instrument      having the  force of  law and  applicable  to      such tenure.           Explanation.-   Land    under   personal      cultivation  includes  land  allowed  to  lie      fallow in 135      accordance  with   the   usual   agricultural      practice but  does not  include any  land  in      lawful possession of a raiyat or tenant.      ............................................. ...............      It is  significant to note in this completion that sub-cl.  (1) refers to land actually recorded as sir and khudkasht in the annual papers of 1948- 49 and  does not  refer in terms to land which was the sir  and khudkasht  of the  proprietor in that year and which ought to have been recorded as such in those  papers but  had not  been  so  recorded. Another point  to be noted is that though cl. (ii) refers to  land  acquired  by  the  proprietor  by surrender from  tenants between  the close  of the year 1948-49  and the date of vesting no reference is made  in this definition to land the possession

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of which  had been obtained by the proprietor as a result of  a decree  during that  period or to the possession  of   which  the  proprietor  was  held entitled under  the decree  of  the  Court  passed before the date of vesting.      It is also significant to notice that in sub- s. (2),  the land  answering  the  description  of ’home-farm’ is  described differently.  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 136 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-farm.’      There is no ambiguity about the definition of ’home-farm’ and  so   the question  of  strict  or liberal construction does not arise.      These consideration  lead to  the  conclusion that land  cannot come  within the  definition  of ‘home farm’  which had  not been actually recorded as sir and khudkasht in the name of the proprietor in the annual papers for the year 1948-49 or which had  not   been  acquired  by  the  proprietor  by surrender from  tenants after  the  years  1948-49 till the  date of  vesting. The plots in suit were neither actually  recorded as the respondent’s sir and khudkasht in the 1948-49 annual papers nor had been acquired  by him  by surrender  from  tenants during the  period mentioned in sub-cl.(ii) of cl. (1) of  the definition  and so  could not  be  the respondent’s home-farm.      The decree  of the  trial Court was passed on July 12,  1944. As that decree was under appeal in 1948-49, it  would not  be right  to say  that the Revenue  Authorities   were  in   error   in   not correcting the  entries in the annual papers. They could Not  have corrected them merely on the basis of the  decree. Correction  in the  entries  would have  been  made  if  there  had  been  change  of possession. No change of possession took place and therefore no  entry could  have been  made in  the annual papers of 1948-49 with respect to the plots in suit  to be the khudkasht of the respondent. In fact, even  if the respondent had taken possession

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over the  land in  suit by  executing  the  decree passed by the trial Court, an entry of his holding that land  as khudkasht  could have been made only if he had brought 137 that land  under his  own personal cultivation and not if  he had  let out  the land  to  some  other person.  This   consideration,  again,   would  go against  the   respondent  even   if   a   liberal interpretation was  to be  given to the definition of ‘home-farm’.      Section 12  requires  that  every  proprietor should file  a statement of claim in the specified form and  verify that statement in accordance with order VI,  rule 15,  Code of  Civil Procedure. The respondent  filed   his  compensation   statement, Document  No.   1,  on  September  20,  1951,  and mentioned in  his claim  the total gross rental of his proprietary  share. This  rental included  the recorded rent of the land in suit.      Section 83  provides that  every entry in the record-of-rights,  the   annual  papers   and  the register of  proprietary mutations  in the Central 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. 138      Exhibit  A-1,  dated  May  8,  1951,  is  the statement of  fixation of  assessment on the home- farm of  the respondent.  It does  not include the land in suit.      Section  45  provides  inter  alia  that  any person  who,   immediately  before   the  date  of vesting, was  in possession  of any holding, as an occupancy tenant,  shall be  deemed to be a tenant of the  State and  shall hold the land in the same rights and  subject to  the same  restrictions and liabilities as  he was  entitled  or  subject  to, immediately before the date of vesting.      Section 41  provides inter alia for occupancy tenants to be declared in the prescribed manner to be malik  makbuza of  the land  comprised in their holding on payment of the amounts mentioned in the section.  The   appellant  applied   for  such   a declaration  on   July  22,   1952  and   got  the declaration i his favour on the basis of the entry

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in the  village papers,  though that  entry of his being an occupancy tenant was wrong in view of the finding of the High Court.      Exhibit A-4  is the  declaration by  the Naib Tehsildar, Nagpur, on July 22, 1952, under s.41 of the Act,  that ’the appellant was malik makbuza in respect of the land in suit.      Exhibit A-6 is the copy of the Jamabandhi for holding serial  No. 121  of mauze  Vadoda for  the year 1948-49,  showing the  respondent to  be  the occupancy tenant of the land in suit.      Section 46  provides that every person deemed or declared to be a malik makbuza under section 33 or section  33 and  every other malik makbuza in a mahal, shall  be entitled  to any  right  which  a tenant has  under the  village  wajibul  arz.  The appellant therefore got entitled to such rights of a tenant.      It is  clear from  the various  provisions of the Act already discussed in relation to the facts of this case, that the respondent was not recorded 139 and could not have been recorded to have khudkhast in the  land in  suit in the papers of 1948-49 and therefore could  not have claimed this land as his home-farm. In  fact,  he  did  not  claim  so.  He therefore lost his proprietary rights in this land and they got vested in the State; He therefore had no subsisting  right to  recover possession of the land in  suit, in  spite of;  the  decree  in  his favour passed  on  the  basis  of  his  being  the proprietor of  the land in suit, and the appellant being in  wrongful possession of that land. On the other hand,  the appellant continued in possession and has,  on the  basis  of  the  entries  in  the village papers  which had  to be  presumed correct for the  purpose  of  assessment  of  compensation secured a  declaration 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 140 possession of  the appellant would be deemed to be

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possession under the State.      The contention  that the  Executing Court can not question  the decree  and has to execute it as it stands,  is correct,  but this principle has no operation in  the facts  of the  present case. The objection of  the appellant is not with respect to tho invalidity  of the  decree or  with respect to the decree  being wrong. His objection is based on the effect  of the provisions of the Act which has deprived the respondent of his proprietary rights, including the right to recover possession over the land  in  suit  and  under  whose  provisions  the appellant has  obtained the  right  to  remain  in possession of  it. In  these circumstances, we are of opinion  that the Executing Court can refuse to execute the  decree holding  that  it  has  become inexecutable on  account of  the change in law and its effect.      Chhote Khan’s  Case (1)  has net much bearing on the question under consideration in the present case, as it did not deal with the executability of the decree  obtained by  a  proprietor  against  a trespasser subsequent  to the coming into force of the  Act.  It  dealt  with  the  executability  of decrees in  favour of  the proprietors  and passed prior to  the enforcement of the Act and held that they had  become inexecutable as the effect of ss. 3,4,5,7,50 and  60 of  the Act was that the rights which  were   exercisable   by   the   proprietor, lambardar and sadar lambardar by reason of holding that character  could no  longer be  exercised  by them and that, even though the cause of action for enforcing those  rights arose  before the Act came into force,  they could  not be continued by those persons after  the Act came into force as they had ceased to hold that character.      The fact  in Rahmatullah’s  Case (a)  were as follows: The  plaintiff  sued  for  possession  in respect of  9.18  acres  khudkasht  lands  on  the allegation  that   his  predecessor.  in-interest, Khubiram, had  purchased the  defendant’s interest in the village      (1) I.L.R. (1953) Nag. 702.        (2) I.L.R,                                        (1955) 983. 141 including khudkasht  lands at  a  revenue  auction sale on  April 29, 1936. It was contended that the defendant has  no right to remain in possession of the  khudkasht   lands  which   along  with   the, proprietary interest,  passed at  the revenue sale The defendant  contented the  suit on  the grounds that his  khudkasht lands  did  not  pass  in  the revenue sale,  that he  had continued all along in possession in  respect of  the same  and had  thus 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

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Khan’s Case  (1). 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 with      the  village   share.  The   land  was   thus      khudkasht  of  Khubiram  and  accordingly  it      continued to  be khudkasht  of the respondent      who is  a successor-in-title  of Khubiram. No      doubt, this land, though the khudkasht of the 142      respondent, was wrongly recorded as occupancy      land  of  the  appellant.  But  an  erroneous      recording of a khudkasht land as an occupancy      land  would   not  in   law  alter  the  real      character of  that land.  Thus,  despite  the      wrong entry,  the land  must be  regarded  as      having  always  been  the  khudkasht  of  the      respondent. If  this Court affirms the decree      of the  two Courts  below, the  effect of its      decision would  not be to alter the character      of the  land and  convert a land which is not      khudkasht into a khudkasht land."      Interpreting the definition of ‘home-farm’ in the Act  to include  such land,  which, though not recorded as  khudkasht of  the proprietor  in  the annual papers  of  1948-49,  ought  to  have  been recorded as  such, he  held that  the suit was not barred. This  is  not  a  correct  view,  for  the reasons stated by us earlier.      As we  are of  opinion that  the land in suit could not  be the ‘home-farm’ of the respondent as it was  not recorded  as his  khud  kasht  in  the annual  papers   of  1948-49,   the   respondent’s proprietary right  of this  land was  lost and got vested in  the State  on the  coming into force of the Act. On the other hand, we have also held that the appellant  obtained  a  declaration  of  malik makbuza in his favour from the State, and thus has secured  a   right  to   possess  it.   In   these circumstances, the  decree ought to be executed by the  respondent   has  become   inexecutable   and therefore the  order under   appeal deserves to be set aside  We accordingly allow the appeal and set aside the  order of  the Court below and Allow the objection of the appellant to the execution of the decree and dismiss the execution application filed by the respondent.      In the  circumstances of the case, we make no order as to costs.                                    Appeal allowed. 143

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