Haji Sk. Subhan Vs. Madhorao [1961] INSC
302 (16 October 1961)
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 proprietary rights in an
estate specified in the notification passed from 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. 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.
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 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-appropriation 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
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. " 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 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." 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 the 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
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 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 the 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 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 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 possession under the State.
The contention that the Executing Court cannot
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 in executable
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 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 in executable 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.
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