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CASE NO.: Appeal (civil)  689 of 1995

PETITIONER: Smt. Gorabai & Ors.

RESPONDENT: Ummed Singh (Dead) by LRs. & Ors.

DATE OF JUDGMENT: 19/04/2004

BENCH: P. Venkatarama Reddi & D.M. Dharmadhikari.

JUDGMENT: J U D G M E N T

Dharmadhikari J.

       This appeal has been preferred by the Legal Representatives of  the original plaintiff.  The original defendants are also dead and are  now represented by their Legal Representatives.  The plaintiff sought  eviction of the defendant and possession of the suit lands.  The suit  was dismissed throughout and decree has been confirmed in the  second appeal by the High Court.   

       Shorn of details, the question involved is whether the suit lands  which continued in possession of the defendants even after expiry of  their term of lease, can be claimed by the plaintiff landlord. as his  Khudkasht  lands of which he can retain  possession as an ex- proprietor under sub-section (2) of section 4 of Madhya Bharat  Zamindari Abolition Act, 1951 [for short ’the Act].  

       The relevant facts as concurrently found by all the courts and  are no longer in dispute are as under :-  

       The plaintiff Virendra Singh was proprietor or Zamindar of  Survey No. 216 of village Kanawar, District Bhind. The suit lands in   that Survey  were recorded up to Samvat 1999 [corresponding to the  year 1942] as Zamindar’s ’Khud-kasht’ lands as defined in section  2(c) of the Act. Under Gwalior-Mal-Qanoon which was the revenue  law applicable to the agricultural lands of the Gwalior region of  erstwhile State of Madhya Bharat, Khud-kasht lands could be leased  by the proprietor for cultivation. A lease for a period of eight years  was granted to the defendants.  On expiry of the period of lease i.e.  in July 1951, the proprietor promptly instituted eviction proceedings  in the Revenue Court under the Gwalior-Mal-Qanoon, for obtaining  possession of the land. The proceedings for eviction instituted prior to  the coming into force of the Act did not fructify in favour of  proprietor. Those proceedings terminated as inconclusive because the  Legal Representatives of one of the tenants were not brought on  record.   

       Proprietary rights were abolished by the Act which came into  force on 25.6.1951 and with effect from the notified date 02.10.1951,  all proprietary rights of proprietors in accordance with the provisions  of section 3 of the Act stood vested in the State. Section 4(1)  enumerates the various kinds of rights, title and interest of the  proprietors which were divested and vested in State. Sub-section (2)  of section 4 of the Act allowed the proprietor to remain in possession  of his Khudkasht land which is so recorded in annual village papers  before the date of vesting. The lands which were in personal  cultivation of the proprietor have been described as ’Khudkasht.’   ’Khudkasht’ is defined under section 2(c) of the Act as under :-

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"Section 2(c) : ’Khud-kasht’ means land cultivated by the  Zamindar himself or through employees or hired  labourers and includes sir land."

       Sub-section (2) of section 4  saves Khud-kasht lands in favour  of the proprietor to be retained by him.  It is a provision directly for  interpretation and application to the facts of the case and reads as  under :-  "Section 4(2) : Notwithstanding anything contained in  sub-section (1), the proprietor shall continue to remain in  possession of his khud-kasht land, so recorded in the  annual village papers before the date of vesting."                                                           (Emphasis added)         All proprietary rights stand abolished by Section 3 of the Act.   In accordance with Section 41 of the Act, tenants of various  categories described therein and proprietors holding Khudkasht or Sir  lands are to be deemed to be tenants of the Government from the  date of vesting.  Section 41 reads as under: "41: Tenant to be deemed to be a Government’s tenant  from the date of vesting and Revenue Administration and  Ryotwari Act to apply to the vested land \026 When the  proprietary rights in any village, Muhal, land, chak or  block are vested in the State under Section 3 of this Act,  every Sakitulmilkiyat, Pacca Maurusi, Mamuli Maurusi,  Gair Maurusi tenant of such village muhal, land, chak or  block who was in possession of any holding shall from the  date of vesting, be deemed to be a tenant of the  Government and the proprietor shall also likewise, in  respect of the holding of his Khudkasht or Sir, be deemed  to be a tenant of the Government from the date of  vesting and all provisions of Part II of Madhya Bharat  Revenue Administration and Ryotwari Land Revenue and  Tenancy Act, Samvat 2007, shall, subject to other  provisions of this Act, apply to such village, Muhal, land,  chak or block are similar provisions of Qanoon Mal,  Gwalior State, Samvat 1983, and of other laws shall  cease to apply:

Provided that all cases pending before any Revenue Court  at the time of commencement of this Act shall be decided  according to the provisions of Acts and laws heretofore in  force."                               (Underlining for pointed attention)

       The contention which was advanced on behalf of the defendants  and has persuaded the courts below and the High Court to dismiss  the suit is that on date of vesting, the suit lands were not in actual  cultivating possession of the proprietor as admittedly they were in  possession of defendants as his tenants. The High Court was also of  the view that on the date of vesting, the lands having not been  shown to have been recorded in annual village papers as Khud-kasht,  they cannot be held to have been saved to be retained by the ex  proprietor under sub-section (2) of section 4 of the Act.             Learned counsel appearing for the Legal Representatives of the  ex proprietor in this appeal,  strenuously urged that annual village  papers, duly exhibited before the court, clearly established that  before grant of lease of the lands for eight years to the defendants,  the lands were recorded as Khud-kasht lands and under the then  existing revenue law,  it was permissible to grant lease of Khud-kasht  land by the ex proprietor. Attention specifically is invited to annual  village papers of Samvat 1999 corresponding to year 1942 [Ex.P-9]  in which the ex proprietor is shown in possession of the suit lands  which are described as Khud-kasht.

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          The first limb of argument advanced on behalf of the LRs of  the proprietor, is that under sub-section (2) of Section 4 of the Act,  for seeking retention of the Khud-kasht lands, it is not necessary that  the land should be so recorded in annual village papers immediately  preceding the date of vesting. It is pointed out that the consistent  view of law holding the field in the State of Madhya Bharat (now part  of Madhya Pradesh) is that entry in annual village papers of the lands  as Khud-kasht can be of a period not necessarily before the date of  vesting. Reliance is placed on the decision of Madhya Pradesh High  Court in Pancham Singh vs. Dhaniram [1977 MPLJ 787].   

       The other limb of the argument for availing provisions of sub- section (2) of section 4 of the Act is  that on the date of vesting, the  eight years’ lease granted to the tenants had expired and their  possession, thereafter despite eviction notice and proceedings for  eviction, was that of tenants-at-sufferance which is as worst as  that of trespassers.  It is submitted that the Khud-kasht lands which  the proprietor  had ’right to possess’ on the ’date of vesting’ by  evicting the trespassers or tenants-at-sufferance should be deemed  to be constructively in possession  as Khud-kasht lands of the  proprietor. The possession of the tenant-at-sufferance or trespassers  has to be ignored to give full benefit of the provisions of sub-section  (2) of section 4 of the Act which intends to save such part of land to  the proprietor of which he was himself a tiller. In support of the  above argument, decisions of Madhya Pradesh High Court and of this  Court are cited which take a view that Khud-kasht lands even though  in possession of trespasser,  would be saved from vesting in the State  and  allowed to be retained by the proprietor under sub-section (2) of  section 4 of the Act and under analogous provision of Madhya  Pradesh Abolition of Proprietary Act. The decisions relied are :   Choudhary Udai Singh & Anr. vs. Narainbai & Ors.  [ 2000(8)  SCC 542];  Deo Rao vs. Ramachandra [1982 MPLJ 414(FB)];   Harischandra Behra vs. Garboo Singh & Ors. [1961 MPLJ  835(DB)]; Dayaram Bodhram vs. Maheshwar Danardan [1961  MPLJ 501(DB)]; and Himmatrao vs. Jaikisandas & Ors.[AIR 1966  SC 1974].          We have considered the submissions made by the learned  counsel for the parties and the provisions of the Act. The provisions  of the Act read with its preamble clearly show the legislative intent  to abolish Zamindari system and establish direct relationship of the  tiller with the State. The proprietors, Zamindars or Malguzars by  whatever names they were called in different regions, were  ’intermediaries’ and their rights as intermediaries were taken away.  The proprietors were, however, allowed to retain such lands which  were in their personal cultivation and recorded as ’Khudkasht.’ The  provisions of sub-section (2) of section 4 of the Act have, therefore,  to be interpreted keeping in view the above aim and object of the  Act.                   The decision of Division Bench of the Madhya Pradesh High  Court in the case of Pancham Singh (supra), which is relied as the  settled law in the State of Madhya Bharat (now forming part of the  State of Madhya Pradesh), fully supports the arguments advanced on  behalf of the ex proprietor that if the nature of the lands is Khud- kasht and it is so recorded  in annual village papers in any of the  years before the date of vesting, the benefit of provisions under sub- section (2) of section 4 should not be denied to the proprietor. The  relevant part of the judgment of the Division Bench of Madhya  Pradesh High Court reads as under :-   

"The combined effect of sections 3, 4(2) and 2(c) is that a  proprietor shall continue in possession in spite of the  abolition of the Zamindari, (I) if the land was his ’Khud- Kasht’ i.e. cultivated by the Zamindar himself or through

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employees or hired labourers, and (ii) it was recorded in  the annual village papers before the date of vesting, i.e.  before Samvat year 2008.  We do not see any force in  Shri Dixit’s contention that the expression ’before  the date of vesting’  must be read as immediately  before the date of vesting.  There is no warrant for  adding the word ’immediately,’ which is not there in  the section.  All that the saving clause requires is  (1) that by its nature the land should be Khud- Kasht, and (2) that it is not enough to be Khud- Kasht land it should also have been recorded as  such.  A trespasser who having unlawfully dispossessed a  proprietor was in possession in Samvat year 2007, cannot  be heard to say that since the proprietor was not in  possession in Samvat year 2007, or was not recorded as  such in the Samvat year 2007, he lost his right to  possession.  It will be  repugnant both to the letter and  spirit of the law to deprive a person of his rights to  possession merely because he was unlawfully and forcibly  dispossessed."

This decision, it is pointed out, was followed in subsequent  decisions and the law laid down therein is being consistently followed.

        In the instant case, it is an undisputed position that the suit  lands were recorded in annual papers of 1942 as Khud-kasht lands of  the ex proprietor and they were as such leased out for a fixed period  of eight years to the tenants.   The appellate Court observed "It was  also undisputed that in Samvat 1999 i.e. immediately before giving  the disputed land on patta, the plaintiff who was the zamindar  cultivated the land as Khudkasht."  Therefore, one important  condition contained in sub-section (2) of section 4 is satisfied that the  land was Khud-kasht and so recorded in annual village papers before  the date of vesting.  

       Admittedly, on the date of vesting, the ex proprietor was not in  actual cultivating possession of the Khud-kasht lands. The lands were  in possession of the tenants even though the lease of eight years’  duration granted to them had expired and after serving eviction  notice, proceedings for eviction were instituted by the proprietor  against them even  prior to date of vesting. After coming into force of  the Act, the present suit was filed for their eviction and obtaining  possession of the land.  

       The possession of the tenant after expiry of the term of lease is  treated in law as unauthorised possession being against the consent  and wish of the landlord. Such a tenant is called a tenant-at- sufferance and his possession is deemed to be almost like that of a  trespasser. Mulla in the ’Transfer of Property Act’, 9th Edition at pp.  1013 explains the status of tenant-at-sufferance thus :-         

"A tenancy at sufferance is merely a fiction to avoid  continuance in possession operating as a trespass.  It has  been described as the least and lowest interest which can  subsist in reality.  It therefore cannot be created by a  contract and arises only by the implication of law when a  person who has been in possession under a lawful title  continues in possession after that title has determined,  without the consent of the person entitled.  But the Act,  as already observed is not exhaustive; and the term is a  useful one to distinguish a possession, rightful in its  inception but wrongful in its continuance, from a trespass  wrongful both in its inception and it its continuance.  A  tenant holding over after the expiration of his term is a

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tenant at sufferance.  If he holds over against the  landlord’s consent, he is a trespasser, and is liable  for mesne profits." [Emphasis added]

       Decisions of this Court and the Madhya Pradesh High Court,  have been cited before us holding that even though the proprietor  is  dispossessed of Khudkasht lands by a trespasser, the proprietor is  deemed to be in cultivating possession of the lands for the purpose of  the beneficial provisions of sub-section (2) of section 4 of the Act   and to allow him to retain the lands. We find sufficient force in the  submission made on behalf of LRs of the ex proprietor that the same  principle as is applied in case of a trespasser should also be made  applicable to the case of tenants-at-sufferance. On the expiry of the  period of their lease and service of notice of eviction on them,  even  though they are not actually evicted from the Khud-kasht lands, their  possession would be deemed to be of trespassers and the lessor or  the proprietor should be held to be legally and constructively in  possession.   Any cultivation by the tenant-at-sufferance against  whom action was initiated to evict by the date of vesting should be  deemed to be the cultivation of the proprietor himself.

       The High Court referred to the definition of the Khud-kasht  lands given in clause (c) of section 2 of the Act for coming to the  conclusion  that unless on the date of vesting, the proprietor is in  actual cultivating possession, the benefit of sub-section (2) of section  4 of the Act to allow him to retain the Khud-kasht lands cannot be  granted. We find no good reason to give such a restricted meaning  and effect to the provisions of sub-section (2) of section4 of the Act.  The expression ’Khud-kasht’ has been defined to describe the  category of land forming part of proprietary. Such land under sub- section (2) of Section 4 of the Act has to be allowed to be retained by  the proprietor. The benefit of sub-section  (2) of section 4 cannot be  denied to an ex proprietor who has been illegally deprived of his right  to possess and cultivate his Khud-kasht lands. In the instant case,  the proprietor could not regain possession of Khud-kasht lands for  personal cultivation as the tenants, despite expiry of their period of  lease, illegally continued in possession and the eviction proceedings  in the Revenue Court abated for want of substitution of Legal  Representatives of one of the tenants and due to the intervening  legislation that is the present Act which came into force w.e.f.  02.10.1951. It may be made clear that the provisions of Gwalior-Mal- Qanoon did not bar filing of a civil suit within the prescribed period  under Limitation Act by the proprietor for seeking eviction and  obtaining possession of his Khud-kasht lands from his tenants.  On  the facts found in this case, on the date of vesting the term of lease  granted to the defendants as tenant had expired and their possession  thereafter had been rendered as unauthorized. The ex-proprietor  should be deemed to be legally in possession and cultivation of  his  Khudkasht land on the date of vesting.  In accordance with Section  41, the ex-proprietor in respect of his Khudkasht land is deemed to  be tenant of the Government from the date of vesting.  He had right  to retain possession of his Khudkasht land under Section 4(2) of the  Act.  He had also acquired status of tenant under Section 41 of the  Act.  His right to sue for possession of the lands which are in  unauthorized occupation of the defendants as tenants-at-sufferance  has therefore to be recognized and granted by passing a suitable  decree in his favour.

          The following observations of this Court in the case of  Choudhary Udai Singh & Anr. vs. Narainbai & Ors.  [ 2000(8)  SCC 542 para 7 at pp 544] supports our conclusion :-   "In Harishchandra Behra v. Garbhoo Singh [1961 JLJ  780 (CN 203)], the expression ’personal cultivation’ is  explained as not mere bodily cultivating the land but

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constructively also and also the right to possess against a  trespasser. If a wrongdoer takes possession, steps to  exclude him can certainly be taken and cultivation of  trespassers in such circumstances cannot clothe him with  any right and his cultivation has to be deemed to be on  behalf of the rightful owner. Thus the appellants are  entitled to claim right to possess in respect of the land in  question. We are further fortified by the decision in  Himmatrao vs. Jaikisandas [AIR 1966 SC 1974] where  a distinction has been drawn between a suit brought by a  proprietor in his character as proprietor for possession of  property and in his individual right to possess in respect  of the said property against the  trespasser. The High  Court lost sight of the provisions of section 41 of the Act  which enables even a proprietor holding land khudkasht  or sir, to be deemed to be a tenant from the date of  vesting. If the appellants were entitled to be put in  possession of the land and the same had been deprived of  by a trespasser, that possession  has to be recognised as  that of the person who is entitled lawfully to cultivate the  land in question.   

       Lastly, only a mention  is required to be made of an objection  of a preliminary nature raised by the other side, for the first time in  this appeal, that as after the date of vesting, the lands happened to  be recorded in the name of State, the State was a necessary party to  the suit. Reference is also made to the provisions of Order 1 Rule  3(A) of the Code of Civil Procedure as amended in the State of  Madhya Pradesh.  In view of the discussion aforesaid, we do not think  proper at this belated stage to allow parties to implead the State of  Madhya Pradesh as a party. The objection to the non-maintainability  of suit for non-joinder of State as party raised at this stage,  therefore, is rejected.  However, it is clarified that any decision  rendered in these proceedings does not affect the rights and  remedies of the State against the parties under the provisions of the  Act.         In the result, the appeal succeeds and is allowed. The  judgments respectively of the High Court and the courts below, are,  hereby, set aside. The suit in terms of the prayer clause in the plaint  to the extent of delivery of possession of the lands in suit is decreed.                   In view of the long pendency of the litigation between the  parties and as both sides are being represented by Legal  Representatives, we leave the parties to bear their own costs in this  appeal.