# Goi·ind Prasad v. Pawan Kumar, J9j5 X L. ]. 678

- **Citation:** [1964] 2 S.C.R. 191
- **Court:** Supreme Court of India
- **Decided:** 1963-03-04
- **Case number:** CIVIL APPELLATE jURISl>W'l'lON : Civil Appeal No. 293 of 1961
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/goi-ind-prasad-v-pawan-kumar-j9j5-x-l-678-2836
- **Pages:** 6

## Headnote

-
2 S.C.R.
SUPREME COURT REPORTS
191
AHMAD HAFIZ KHAN
' v.
MOHAMMAD HASAN KHAN
(P. B. GAJENDRAGADKAR, M. HIDAYATULLAH
and J.C. SHAH JJ).
Proprietary Right, Abolition of-Operation of enactmentValidity-Oultivating right.• in sir and khudkasht land, if and
when protected against sale in execution of the decree-Madh11a
Pradesh Abolition of Proprietary Rights (Estates, Mahala, Alienated fonds) Act, 1950 (M. P. 1of1951), ss. 43, 49.
One Mohd Yusuf, in execution of a money decree against
the appellant, attached the appellant's share in a village along
with sir and khudkasht lands appurtenant thereto. Before the sale
took place, the Madhya Pradesh Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Act, 1950 M. P.
I of 1951) was made applicable to that area, and the proprietary
rights in the village vested in the State.
On October, 1951,
the respondent purchased the sir khudkasht fields in auction sale
and the appellant's objection therein having been dismissed, the
sale was confirmed. On appeal, the Additional District Judge
set aside the sale and the property was restored to the appellant.
On further appeal, that order was reversed and the auction
purchaser was again put in possession of the property. The
appellant then applied to the executing Court objecting that
there was no jurisdiction to sell the fields.
The objection of the
appellant was dismissed by the Civiljudge and his successive
appeals to the District Judge and the High Court also failed.
On appeal by special leave, the appellant's main contention
was that the cultivating rights in the sir lands could not be the
subject matter of sale in execution of the decree in view of s, 43
of the Abolition Act.
Held, that by the operation of the' Abolition Act, the
proprietor ceases to Le the proprietor of the estate or village
including the sir lands appurtenant to the proprietorship.
But
the cultivating rights in the sir lands which were his home.
farm are saved to him and under s. 38 of the Aboliti011 Act he
becomes a malik makbuza of these fields.
The Abolition Act
having deprived the proprietors of their property interest gives
protection to them in respect of their new rights in the home ...
farm which has become the malik makbuza of the proprietor.
The words of s. 43 are quite clear and the cultivating
rights in the sir and Khw!kas/11 land wl;iich became under the
1963
March 4
1963
A""'ad Hofi: KNvi
v.
Mohi. JIGJan KAon
i92
SUPREME COURT REPORTS [1964] vot.
Act the home-farm of the proprietor are protected against sale
except where those cultivating rights were the subject of a mart·
gage or a charge created by the proprietor.
That condition
did not exist in the present case and the sale, therefore, must
be declared to be without jurisdiction and ordered to be set
aside.
Goi·ind Prasad v. Pawan Kumar, J9j5 X L. ]. 678
distinguished.
CIVIL APPELLATE jURISl>W'l'lON : Civil Appeal
No. 293 of 1961.
Appeal by special leave from the judgment
and order dated December 24, I !!59 of the Madhya
Pradesh High Court in Misc.
Second Appeal No. 3
of l!J5!l.
II'. S. Bar/ingay and A. G. RatTW.pru1chi, for
the appellant.
Ganpat Rai,
for the respondent.
1!163. March 4.
The .Judgment of the Court
was delivered by
Htu:1obdlah J.
HUJAYATt;LLAH
J.-One
l\fohd.
Yusaf
obtain-:d a money decree for Rs. l 2i7 i7 / - against the
appellant, Ahmad Hafiz Khan, on January 14, l!JiiO.
In execution of the decree !vfohd. Yusaf attached
two annas and 5-7/4.) pies share of the appellant in
Mouza Tumhari,
Tahsil Sakti, District Bilaspur,
alongwith sir and
khudl.-asht
lands appurtenant
thereto.
The attachment was made on Septem·
bcr 28, 1950. On March 31, 1951, before the sale
took place, the yfadhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals,
Alienated Lands)
Act, 1950 (M. P. Act No. I of 1951) was made applicable to that area.
In view of the provisions of the
Abolition Act the proprietary rights in the village
vested in the State. Thus far there is no dispute.
On October J, l!l51, the

## Text

-
2 S.C.R.
SUPREME COURT REPORTS
191
AHMAD HAFIZ KHAN
' v.
MOHAMMAD HASAN KHAN
(P. B. GAJENDRAGADKAR, M. HIDAYATULLAH
and J.C. SHAH JJ).
Proprietary Right, Abolition of-Operation of enactmentValidity-Oultivating right.• in sir and khudkasht land, if and
when protected against sale in execution of the decree-Madh11a
Pradesh Abolition of Proprietary Rights (Estates, Mahala, Alienated fonds) Act, 1950 (M. P. 1of1951), ss. 43, 49.
One Mohd Yusuf, in execution of a money decree against
the appellant, attached the appellant's share in a village along
with sir and khudkasht lands appurtenant thereto. Before the sale
took place, the Madhya Pradesh Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Act, 1950 M. P.
I of 1951) was made applicable to that area, and the proprietary
rights in the village vested in the State.
On October, 1951,
the respondent purchased the sir khudkasht fields in auction sale
and the appellant's objection therein having been dismissed, the
sale was confirmed. On appeal, the Additional District Judge
set aside the sale and the property was restored to the appellant.
On further appeal, that order was reversed and the auction
purchaser was again put in possession of the property. The
appellant then applied to the executing Court objecting that
there was no jurisdiction to sell the fields.
The objection of the
appellant was dismissed by the Civiljudge and his successive
appeals to the District Judge and the High Court also failed.
On appeal by special leave, the appellant's main contention
was that the cultivating rights in the sir lands could not be the
subject matter of sale in execution of the decree in view of s, 43
of the Abolition Act.
Held, that by the operation of the' Abolition Act, the
proprietor ceases to Le the proprietor of the estate or village
including the sir lands appurtenant to the proprietorship.
But
the cultivating rights in the sir lands which were his home.
farm are saved to him and under s. 38 of the Aboliti011 Act he
becomes a malik makbuza of these fields.
The Abolition Act
having deprived the proprietors of their property interest gives
protection to them in respect of their new rights in the home ...
farm which has become the malik makbuza of the proprietor.
The words of s. 43 are quite clear and the cultivating
rights in the sir and Khw!kas/11 land wl;iich became under the
1963
March 4
1963
A""'ad Hofi: KNvi
v.
Mohi. JIGJan KAon
i92
SUPREME COURT REPORTS [1964] vot.
Act the home-farm of the proprietor are protected against sale
except where those cultivating rights were the subject of a mart·
gage or a charge created by the proprietor.
That condition
did not exist in the present case and the sale, therefore, must
be declared to be without jurisdiction and ordered to be set
aside.
Goi·ind Prasad v. Pawan Kumar, J9j5 X L. ]. 678
distinguished.
CIVIL APPELLATE jURISl>W'l'lON : Civil Appeal
No. 293 of 1961.
Appeal by special leave from the judgment
and order dated December 24, I !!59 of the Madhya
Pradesh High Court in Misc.
Second Appeal No. 3
of l!J5!l.
II'. S. Bar/ingay and A. G. RatTW.pru1chi, for
the appellant.
Ganpat Rai,
for the respondent.
1!163. March 4.
The .Judgment of the Court
was delivered by
Htu:1obdlah J.
HUJAYATt;LLAH
J.-One
l\fohd.
Yusaf
obtain-:d a money decree for Rs. l 2i7 i7 / - against the
appellant, Ahmad Hafiz Khan, on January 14, l!JiiO.
In execution of the decree !vfohd. Yusaf attached
two annas and 5-7/4.) pies share of the appellant in
Mouza Tumhari,
Tahsil Sakti, District Bilaspur,
alongwith sir and
khudl.-asht
lands appurtenant
thereto.
The attachment was made on Septem·
bcr 28, 1950. On March 31, 1951, before the sale
took place, the yfadhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals,
Alienated Lands)
Act, 1950 (M. P. Act No. I of 1951) was made applicable to that area.
In view of the provisions of the
Abolition Act the proprietary rights in the village
vested in the State. Thus far there is no dispute.
On October J, l!l51, the fields under attach·
ment were put to sale and were purchased by the
-
2 S.C.R. · SUPREME COURT REPORTS
193
respondent, Mohd. Hasan Khan.
The appellant
filed an application setting forth objections under
Order 21 Rule 90 of the Code of Civil Procedure but
the application was dismissed and the sale was confirmed on February 1, 1952.
The judgment-debtor
appealed against the order dismissing the application
and on May 1, 1952, the Additional District Judge,
Bilaspur, set-aside the sale, and possession of the
property was restored to the appellant. On further
appeal by the auction purchaser the order of the
Additional District Judge was reversecl and the
auction purchaser was put in possession o! the
property on April 16, 1955. Both the appellant and
the auction purchaser applied to the executing court.
The appellant raised further objection while the
auction purchaser asked for mesne profits under s. 144
of the Code of Civil Procedure. We are concerned
with the application oft.he appellant. The objection
of the appellant was dismissed by the Civil Judge
and his successive appeals to the District Judge and
the High Court also failed. The judgment of the
High Court passed on December 24, 1959, and the
present appeal is filed against that judgment with the
special leave of this Court. The contention of the
appellant is that the cultivating rights in the sir lands
could not be the subject matter of sale in execu,tion
of the decree in view of s. 43 of the Abolition Act.
This argument was not accepted by the High Court
and it is contended that the decision of the High /
Court is erroneous. In our opinion the contention
must be sustained.
Under
the
Central Provinces
Tenancy
Act, 1920, a proprietor losing his right to occupy sir
land, as a proprietor became, from the date of such
loss of right an occupancy tenant of sir lands.
This
was provided by s. 49 of the Act which, in so far as
relevant to the present purpose, read as follows :-
"49, (1) A proprietor, who temporarily or
permanently loses, whether under a decree or
1963
Ahmai Hafiz Kh4n
v.
Mihd. HtZS•n Kk@
1 Hid11yatullah J,
1963
Al1n10d Haft< Kliao
••
M1hi. /ios.,. Kha.
llit•J•h,l/ah J.
194
-
~. ~ .......
...... '' _... ..
- .... -··-
SUPREME COURT REPORTS [1964] VOL.
order
of a Civil Court or a
transfer or
otherwise, his right to occupy his sir-land, in
whole or in par:, as a proprietor, shall at the
date of such loss, become an occupancy tenant
of such sir-land except in
the
following
cases,-
(a)
when a transfer of such sir-land is made
by him expressly agreeing to transfer his
right to cultivate such sir land; or
(b) when such sir-land is sold in execution of,
or foreclosed under a decree of a Civil
Court which dpressly directs the sale or
foreclosure of his right to cultivate such
sir-land."
(The other sub-sections are not relevant)
The effect of the loss of proprietorship by
reason of the Abolition Act is almost the same except
that a new right is created in the quondam proprietor
in respect of his sir lands.
On the passing of the
proprietary interest to the State what remains to the
proprietor is his cultivating rights in the sir fields
and the Abolition Act provides in s. 4 (2) that the
·•-J
proprietor "shall continue to retain the possession of
~
his ............ home-farm land".
"Home-farm" is
defined by s. 2 (g) (i) as "land recorded as sir and
khwikasht in the name of the proprietor in the annual
papers for the year UH8-4H.'' Thus by the operation
of the Abolition Act, the proprietor ceases to be the
proprietor of the estate or village including the sir
lands appurtenant to the proprietorship. But the
cultivating rights in the sir lands which were his
hnme-farm arc saved to him and under s. 38 of the
Abolition Act he becomes a rfUJlik makbuza of these
fields.
The Abolition
Act having
deprived the
proprietors of their proprirtary interest gives some
protection to them in respect of their new riKhts iu
tho home-farm which has become the malik makbuza
2 s.a.R.
SUPREME COURT REPORTS
195
of the proprietor. Section 43 of the Abolition Act
provides as follows :-
"Any land which immediately before the date
of vesting, was held in absolute occupancy or
occupancy right or recorded as sir-land, shall
not be liable to attachment or sale in execution
of a decree or order for the recovery of any debt
incurred before the date of vesting except
where
such debt was
validly secured by
mortgage_ of or a charge on the absolute
occupancy or occupancy land or the cultivating
right in the sir-land."
By this section attachment and sale of the cultivating right in sir lands is barred unless there is a
mortgage of or a charge on, the cultivating rights.
The section applies to decrees in respect of debts
prior to the vesting in the State as in the case here.
In the present case the attachment was before,
and the sale after the date when the Abolition Act
came into force in this area. There was no mortgage of or charge on the cultivating rights in sir.
The decree holder Mohd. Yusaf had only a moneydecree and the attachment cannot be said to have
created a charge on the attached property so as to
make it a secured debt within the latter part of s. 43.
There being no secured debt and the cultivating
rights not having been mortgaged or charged there
could be no sale of these fields after the Abolition Act
came into force.
The sale was, therefore, without
jurisdiction, and thus illegal.
The learned single Judge in the High Court
relied upon a Division Bench ruling of his own Court
reported in Govind Prasad v. Pawan Kumar ('),
where it was held that after the Abolition Act an
attachment of the proprietary share in the village including the sir and khudlcasl!t lands appurtenant
thereto made before the Abolition Act got transferred
(I) 1~55 N. L. J. 678.
19il
Ahmad Hafiz Khan
••
Mohd. Has .. Khan
Hid•yctull.h /.
1963
.Hmad llajiz Khan
v,
Mohd, Hasan Klan
llidcyllu/W. J,
196
SUPREME COURT REPORTS [1964) VOL.
to the home-farm after the appointed date. It is
argued that if the attachment could subsist on the
home·farm then the homc·farm could also be sold.
In the ruling the question whether a sale of the culli·
vating rights in the home-farm could take place after
the Abolition Act came into force was not considered
at all.
There the attachment had been effected be·
fore the Abolition Act came into force and it was
held that the attachment must continue on the home·
farm.
It was not
noticed that the attachment
would be useless if the sale could not take place
and the
attention of the Bench does not appear
to ha1•e been drawn to the provisions of s. 43 of the
Abolition Act, otherwise the Bench would
have
mentioned it.
In any event, the words of s. 43 are
quite clear and the cultivatin1_: rights in the sir and
khudkasht land which became under the Act the
home·farm of the proprietor arc protected against
sale except where those cultirnting rights were the
subject of a mortga~c or a charge created by the
proprietor. That condition docs not exist in the
present case and the sale, therefore, must be declared
to be without _jurisdiction and ordered to be set-aside.
\Ve accordingly allow the appeal and set aside
the sale in respect of the sir lands appurtenant to the
original proprietary share.
The appellant shall be
entitled to his costs in this (>>urt hut rnsts incurreci
in the High Court or the Court below shall he borne
as incurred.
App1-nl a/101vol.