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PETITIONER: HIMATRAO

       Vs.

RESPONDENT: JAIKISHANDAS AND ORS.

DATE OF JUDGMENT: 04/03/1966

BENCH:

ACT: The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (1 of 1951), ss. 3 and 4- Vesting  of proprietary interest in land in  State-Right  to claim partition of ’home-farm’ land whether affected by such vesting.

HEADNOTE: The  appellant’s suit for partition of his share  of  ’home- farm’  land in the Berar area of Madhya Pradesh  was  partly decreed  by the trial court.  Both sides filed  appeals  and the  first  appellate court also decided in  favour  of  the appellant.   The  High Court however dismissed the  suit  as infructuous  on  the  ground that by virtue  of  the  Madhya Pradesh  Abolition  of Proprietary  Rights  (Estate,  Mahals Alienated  Lands)  Act. 1950 the land stood  vested  in  the State.  The appellant came to this Court. HELD  :  (i)  It  is  no doubt  true  that  so  far  as  the proprietary  interest in the village is concerned the  whole of  it has now been acquired by the State and vests  in  it. The  acquisition  of such interest by the  &ate  would  not, however,  put an and to the various rights of  ex-properties in  their  capacity as owners of property.  Thus  every  co- sharer  could  despite the acquisition, of  his  proprietary right obtain a declaration from a civil court as to the fact and  extent  of  his share in  the  preexisting  proprietary rights  of  that  village so that he could lay  claim  to  a proportionate  extent  of ’home-farm’ land in  the  village. [819 A-C] (ii) A distinction has to be drawn between a suit brought by a  proprietor in his character as proprietor for  possession of  property which the law then in force authorised  him  to claim  by  a  suit for the benefit of  the  entire  body  of proprietors  and  a  suit  based  upon  trespass  upon   his individual  rights  obtained  by  him  irrespective  of-  Ms character as such proprietor.  If this distinction had  been borne in mind by the High Court it would not have  dismissed the  present  suit  as wholly infructuous for  a  number  of reliefs  had  been sought by  the  plaintiff-appellant  with respect to property which not vested in the State. [819 G] (iii)     The  village  in question  being  still  undivided every bit of land which was in the cultivating possession of any of the co-shares in the village would be deemed to be in the  possession of the entire body of co-sharers.  The  same would apply to land in the possession of lessees or ordinary tenants.  The right to enforce claims to a partition of this land was in no way affected by any of the provisions of  the Act. [819 D] Chhote Khan v. Mohammad Obedullakhan, I.L.R. [1953] Nag. 702

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(F.B.), distinguished. Rahmatullah  Khan  v. Mahabirsingh, I.L.R. [1955]  Nag.  983 referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 1034  and 1035 of 1963. 816 Appeals from the judgment and decrees dated July 17, 1956 of the former Nagpur High Court in Appeals Nos. 574 and 575 and 608 of 1946 respectively. S.   T.  Desai, G. L. Sanghi and A. C. Ratnaparkhi, for  the appellants (in C. A. No. 1034 of 1963). W.   S.  Barlingay, G. L. Sanghi and A. G. Ratnaparkhi,  for the appellant (in C. A. No. 1035 of 1963). S. G. Patwardhan and M. R. K. Pillai, for respondent No. 4. The Judgment of the Court was delivered by Mudholkar,  J.  Both  these  appeals arise  out  of  a  suit instituted by Himatrao, appellant in C. A. 1034 of 1963  for declaration  that he is owner of 1 anna 5 pies share in  the village  Mozara,  District  Yeotmal and  for  partition  and separate  possession of the property that would fall to  the aforesaid share.  Certain other reliefs were also prayed for by  him;  but it is not necessary to refer to them  for  the purpose  of deciding these appeals.  To this suit he  joined other  co-sharers  in the village as well as  alienees  from some of the co-sharers.  This suit was instituted by him  on December 7, 1939 and was partially decreed on July 31,  1944 by  the  court  of  Sub-Judge,  second  class,  Darwha.   He preferred an appeal from the decree of the trial court.   So also  Pusaram  one of the defendants to the  partition  suit preferred  an appeal from the decree of the trial court  and some  other defendants preferred a  cross-objection  against that decree.  The appeal of Himatrao was allowed while  that of  Pusaram was dismissed.  The cross-objections  of  Jugal- kishore and Jaykumar succeeded while that of Laxman  Vinayak who  is  the appellant’s brother in C. A. 1035 of  1963  was dismissed,  Pusaram  preferred two appeals before  the  High Court from the judgment of the lower appellate court, Second Appeal  No. 574 of 1946 and Second Appeal No. 576  of  1946. Laxman Vinayak preferred Second Appeal No. 608 of 1946.  All these  appeals  were  heard together and disposed  of  by  a common  judgment.   It was urged before the  High  Court  on behalf  of  Pusaram that the suit for partition  had  become infructuous  because of the provision of the Madhya  Pradesh Abolition  of Proprietary Rights (Estates Mahals,  Alienated Lands) Act, 1950 (No.  1 of 1951) and, there. fore, as  held in  Chhote Khan v. Mohammad Obedullakhan(1) the suit  should be dismissed.  This contention was upheld by the High  Court and an order to this effect was made in all the appeals. The Madhya Pradesh Abolition of Proprietary Rights  (Estates Mahals, Alienated Lands) Act, 1950 (hereafter referred to as the Act for brevity) was enacted, as the long title  thereof shows,  to  provide  for the acquisition of  the  rights  of proprietors in estates.. (1)  I.L, R. [1953] Nag. 702 (F.B). 817 mahals,  alienated  villages and alienated lands  in  Madhya Pradesh  and to make provision for other  matters  connected therewith.  It was not intended to take away each and  every kind of right  possessed  by a person in immovable  property situate in such villages. The vesting section is s. 3.  Sub- section  (1)  thereof makes it clear that the  rights  which

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were acquired by the State were proprietary  rights save  as otherwise  provided  in the Act, but not any other  kind  of right possessed by an owner of property. The consequences of vesting  are  dealt with by s. 4 of the Act, sub-s.  (2)  of which reads    thus :   "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."      It  is  not disputed on behalf of the  respondents  and indeed  it  cannot be disputed, that home-farm land  is  not affected by the provisions of the Act. In other words,  such land  was  not acquired by the State but was left  with  the owners thereof. The definition of home-farm is given in s. 2 (g) of the Act. Clauses (i) and (ii) of this provision  give the  definition  of  home-farm in relation  to  the  Central Provinces.But with that definition we are not concerned. The village  Mozara was not situate in that part of  the  former Madhya  Pradesh  which  was within the  area  of  the  still earlier  Central  Provinces  of the  British  times.  It  is situate in the part of the former  Madhya Pradesh which  was and  still is known as Berar. Clause (3) of that  definition gives  the  definition of home-farm in  relation  to  Berar. According  to this definition all land included in  holdings which is "(i) under the personal cultivation of the superior holder  including land allowed to lie fallow  in  accordance with the usual agricultural practice; (ii) held by a  lessee from  the superior holder;.and (iii) held by a  tenant  from the superior holder other than a   specified  tenant."   The village Mozara was one of the villages in which Izara rights were  granted  under  the  Waste Land  Rules  of  1865.  The grantees of the rights were known as Izardars or proprietors of the village and they were called superior holders.  There were  various classes of tenants in the Izara villages  such as  ante alienation tenants, permanent tenants,  tenants  of antiquity and  ordinary  tenants.  In addition,  there  were also lessees from the    superior  holders.  The   aforesaid definition excludes from the  home-farm  land all land  held by ante-alienation tenants, permanent tenants and tenants of antiquity.  The  result  of  this is  that  land  under  the personal cultivation of the superior holder as well as  land held  by  a lessee or ordinary tenant from  him  became  his home-farm  land.  Quite  often, as is  the  case  here,  the proprietary right in the village was held by a large  number of persons and those 818 persons were thus co-sharers in the village.  Some of  these villages  were  partitioned  with  the  result  that   lands including  lands  in possession of tenants  were  separately allocated  to the share of each co-sharer.  In  many  cases, however, there was no partition, but various co-sharers  by some  sort  of agreement used to retain possession  of  some lands in the villages, some of which they used to  cultivate personally  and  grant leases over some of  them  or  create tenancy  rights  over some of them.  An arrangement  of  the latter kind was only tentative and subject to the result  of a  perfect partition in strict accordance with the share  of each  co-sharer  in  the village.   It  is  the  plaintiff’s allegation  that  his  case fell  in  the  second  category. According  to him, out of the original 16 annas interest  in the  Izara village an interest of 6 annas had  already  been separated  from an interest of 10 annas and that in this  10

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annas share he had an interest of 1 anna 5 pies.  No  doubt, his father was actually in possession of 7 specified  fields which had been sold in execution of a decree and later  came in  the possession of Pusaram.  But this did  not  represent the  full  1  anna  5 pies share to  which  his  father  was entitled or to which he is entitled.  He admits that these 7 fields were sold in execution of the decree obtained by  one Girdharilal against Basantrao, his father, in civil suit No. 43  of  1925.  According to him, however, it is  only  these fields that were sold in execution and not his share in  the Izara  itself.  However, the sale certificates and  receipts for  possession  mention not only these 7  fields  but  also Basantrao’s  one  anna 3 pies’ share in  the  village.   His contention which was accepted by the trial court as well  as by the lower appellate court was that the mention of 1  anna 3  pies’ share in the warrant of attachment and receipt  was the  result of a fraud practised on the court by  interested persons.  According to the trial court Himatrao’s share is 1 anna 3 pies while according to the lower appellate court  it was 1 anna 5 pies.  In the light of these findings a  decree for  partition  and separate possession of 1  anna  5  pies’ share in the village, that is, of land falling to the  share of 1 anna 5 pies was granted by the lower appellate court to Himatrao.  It may be mentioned that Himatrao had said in his plaint  that the 7 fields which were sold in  execution  and which  later  came  into possession  of  Pusaram  should  be allocated  to  Hamatrao’s 1 anna 5 pies’  share.   The  main contention  of Pusaram in the second appeal before the  High Court appears to have been that as a result of the  previous execution sale he had become the owner not only of 7  fields but of Himatrao’s share in the village.  Apart from the fact that  the  finding on each of the points of- the  two  lower courts being one of fact was binding on the High Court,  the High  Court  has  erred in the view which  it  took  of  the provisions  of the Act and of the decision in Chhote  Khan’s case(1)’ What  we  have, therefore, to consider is whether  the  High Court was right in throwing out the suit as infructuous.  It is no doubt (1)  I.L.R. [1953] Nag. 702 (F.B.)                             819 true that so far as the proprietary interest in the  village is  concerned the whole of it has now been acquired  by  the State and vests in it.  But under the provisions of the  Act compensation  is payable to the ex-proprietors by virtue  of the  provisions  of the Act.  This proprietary  interest  is analogous   to  what  is  known  as  the  interest  of   the intermediary in similar Acts enacted in many other States of India.   The  acquisition of such an interest by  the  State would not put an end to the various rights of ex-proprietors in  their capacity as owners of property.  Thus,  every  co- sharer  could,  despite the acquisition of  his  proprietary right obtain a declaration from a civil court as to the fact and  extent  of his share in  the  pre-existing  proprietary rights  of  that  village so that he could lay  claim  to  a proportionate amount of compensation and to a  proportionate extent  of home-farm land in that village.  The  High  Court seems to think that inasmuch as Himatrao was admittedly  not in  cultivating  possession of any part of the land  in  the village  he  could not lay any claim to a partition  of  the home-farm  land.   We have already given the  definition  of home-farm.  It would be clear from it that the village being still  undivided every bit of land which was in  cultivating possession of any of the co-sharers in the village would  be deemed to be in possession of the entire body of co-sharers.

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The  same  would apply to land in possession of  lessees  or ordinary  tenants.   The  right  to enforce  a  claim  to  a partition  of this land is in no way affected by any of  the provisions of the Act or by the interpretation placed on the provisions of the Act in Chhote Khan’s case(1).  Suffice  it to  say  that Chhote Khan’s case(1) was concerned  with  the right  of an ex-lumbardar to continue after the coming  into force of the Act, a suit for possession of abadi land  which had  vested in the State.  In the present suit a  number  of reliefs which Himatrao claimed are with respect to  property which  has  not  vested in the State.   A  somewhat  similar argument  was sought to be advanced before the  Nagpur  High Court on the basis of the decision in Chhote Khan’s  case(1) in Rahmatullah Khan v. Mahabirsingh(2).  While rejecting the argument  the  majority of the Judges who decided  the  case pointed out that a distinction has to be made between a suit brought  by a proprietor in his character as proprietor  for possession   of  property  which  the  law  then  in   force authorised  him  to claim by a suit for the benefit  of  the entire  body of proprietors and a suit based  upon  trespass upon  his individual rights obtained by him irrespective  of his  character as such proprietor.  If this distinction  had been  borne  in  mind by the High Court it  would  not  have dismissed the suit as wholly infructuous. An argument was sought to be advanced on behalf of the  res- pondents by Mr. Patwardhan that the suit was also barred  by the  principle  of res judicata.  However,  learned  counsel realising (1) I.LR. [1953] Nag. 702 (F.B). (2) I.L.R. [1953] Nag. 983. 820 that  there was no substance in that contention gave it  up. We, therefore, need say nothing more on the point. For  the reasons which we have given, it is clear  that  the matter  must  go  back to the High Court  for  deciding  the appeals  before  it  on their merits.   Dr.  Barlingay,  who appears  for  Laxman Vinayak, has said that  he  adopts  the arguments  addressed before us on behalf of Himatrao by  Mr. S.  T. Desai and has nothing to add.  He said that he  would be  content  with the order that the appeals  be  heard  and decided on merits by the High Court.         In the result, therefore, we allow the appeals,  set aside  the  decrees passed by the High Court and  remit  the entire  suit to the High Court for decision on merits.   The respondents should pay the costs in this Court and the  High Court  and the costs of the trial court and to  be  incurred hereinafter will be as in a partition suit. Appeals allowed. 821