# Harhan11 Singh v. State of Punj•b D., Gupta ]. JHJ JUI H•ji Sk. Stlb/tott

- **Citation:** [1962] Supp. 1 S.C.R. 123
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. WANCHOo, K. C. DAS GuPTA, J.C. Shah, Raghubar Day.Al
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harhan11-singh-v-state-of-punj-b-d-gupta-jhj-jui-h-ji-sk-stlb-tott-2409
- **Pages:** 20

## Headnote

Execution Proc.eedings-Objection& t-0 executability-De.cree
for po•se•sion-Enactment prot•iiing Jo1· ve<ting in the Stare of
all proprietary right<J-Enactm.nt coming into force durin<J pen·
de,.cy of appeal in High Goud-Effect on decree of High OourtExecutability of decree-Madhya Pradesh Abolition of Proprietary
Rights (Estates, Mahals, Alienawd Lands) Act, 1950 (M. P. I
of 1951), ss. 219), 2(k), 3, 4, 41-Code of Civil Procedure,
1908 (Act 5 of l!J08,), s. 47.
The respondent purchased at a revenue auction sale
eight anna share of G and obtained formal possession of that
share on September 23, 1938. G relinquished his share in
Khudkaaht 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 pro·
prietary 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 Khudka8ht
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 consHer the effect of the Act on thC appeal
before it. Under s. 3 of the Act the proprietory rights in an
estate specified in the notification passed from the proprietor
and became vasted in the State free from all encumbrance~,
·and by s. 4, after the issue of the notification under s. 3
1961
Harhan11 Singh
v.
State of Punj•b
D., Gupta ].
JHJ
JUI
H•ji Sk. Stlb/tott
v.
Alotlliiroo
\
124 StJPREME COL!RT REPOR'IS [l962j SUPP.
•
uut\vithatanding anytldug contained in auy contract, ~tant or
docurnent or any other law for the tiznc Lein.~ in force, all rights,
title and interest \\•hich a proprietor pos::csscd on account of
hi. proprietorship of the land within the estate became Hsted
in the State, except, inter alia, Jiis home-fann land and
vccupied land. l'nder s. 2(g) of the Act home-farm lands were
tllr,:-c whicli n·crc recorded as Sir and K/,udka11ht in the name
of a proprietor in the annual papers f<,r the year 1948-49, lmt
in the present case the lands in respect of'' liich a <leer cc -ha<l
been passed in favour of the respondent, \\·~re not so recorded.
On the other hand, tire lands were declared Malil· Mukbuza
of the appdlaut under s. 41 of the Act. 111 the execution applicaiion for the rccovr-ry of possession filed Uy the 1c~por.dcnt
the appellant raised objections 1hat tLe respondent was not
en tided to execute the c!ccrec for possession as his proprietary
rights except his 11omc·farm lands, ceased to exist on March
:; I, 1951, by virtue of ss. J and 4 of the Act and became
ve,ted in the State thereafter, and that the State had, after the
date of vesting recognized the lands in suit to Le tenancy land
of the appellant. The respondent's plea was that the appellant was not entitled lo raise such objections in the executing
court, that the "xccutiug court could not go behind the decree
and, therefore, must execute it and deliver possc~ion tu tlie
respondent. The executing courr dismisst-d the objections raised
by the appellant, and the High Court took the view, relying
upon Ralrmatullah Klra11 v. Ma!.abir•ingh, I. L. R. [1955] Nag.
IW3, that the lands in suit must be tttated as home-farm as it
was the duty of reveuue authorities to make correct entries iu
the village papers.
Held, that: (1) the principle that the executing court
canuot question the decree and has to execute the drcrcc has
no operation on the facts of the present case because the objec·
tion of tire 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 dep

## Text

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( 1) s.c.R.
SUPREME COURT REPORTS
123
We therefore allow the appeal of Major Singh
set aside the order of conviction and sentence
ma.de against him by the High Court and restore
the order of acquittal made by the Trial Court. The
appeal of Harbans Singh is dismissed. Major Singh
should be set at liberty at once.
Appeal o.f appellant 2 allowed.
Appeal of appellant 1 dismissed.
HAJJ Sk. SUBHAN
v.
MADHORAO
(K. N. WANCHOo, K. C. DAS GuPTA, J.C. SHAH and
RAGHUBAR DAY.AL, JJ.)
Execution Proc.eedings-Objection& t-0 executability-De.cree
for po•se•sion-Enactment prot•iiing Jo1· ve<ting in the Stare of
all proprietary right<J-Enactm.nt coming into force durin<J pen·
de,.cy of appeal in High Goud-Effect on decree of High OourtExecutability of decree-Madhya Pradesh Abolition of Proprietary
Rights (Estates, Mahals, Alienawd Lands) Act, 1950 (M. P. I
of 1951), ss. 219), 2(k), 3, 4, 41-Code of Civil Procedure,
1908 (Act 5 of l!J08,), s. 47.
The respondent purchased at a revenue auction sale
eight anna share of G and obtained formal possession of that
share on September 23, 1938. G relinquished his share in
Khudkaaht 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 pro·
prietary 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 Khudka8ht
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 consHer the effect of the Act on thC appeal
before it. Under s. 3 of the Act the proprietory rights in an
estate specified in the notification passed from the proprietor
and became vasted in the State free from all encumbrance~,
·and by s. 4, after the issue of the notification under s. 3
1961
Harhan11 Singh
v.
State of Punj•b
D., Gupta ].
JHJ
JUI
H•ji Sk. Stlb/tott
v.
Alotlliiroo
\
124 StJPREME COL!RT REPOR'IS [l962j SUPP.
•
uut\vithatanding anytldug contained in auy contract, ~tant or
docurnent or any other law for the tiznc Lein.~ in force, all rights,
title and interest \\•hich a proprietor pos::csscd on account of
hi. proprietorship of the land within the estate became Hsted
in the State, except, inter alia, Jiis home-fann land and
vccupied land. l'nder s. 2(g) of the Act home-farm lands were
tllr,:-c whicli n·crc recorded as Sir and K/,udka11ht in the name
of a proprietor in the annual papers f<,r the year 1948-49, lmt
in the present case the lands in respect of'' liich a <leer cc -ha<l
been passed in favour of the respondent, \\·~re not so recorded.
On the other hand, tire lands were declared Malil· Mukbuza
of the appdlaut under s. 41 of the Act. 111 the execution applicaiion for the rccovr-ry of possession filed Uy the 1c~por.dcnt
the appellant raised objections 1hat tLe respondent was not
en tided to execute the c!ccrec for possession as his proprietary
rights except his 11omc·farm lands, ceased to exist on March
:; I, 1951, by virtue of ss. J and 4 of the Act and became
ve,ted in the State thereafter, and that the State had, after the
date of vesting recognized the lands in suit to Le tenancy land
of the appellant. The respondent's plea was that the appellant was not entitled lo raise such objections in the executing
court, that the "xccutiug court could not go behind the decree
and, therefore, must execute it and deliver possc~ion tu tlie
respondent. The executing courr dismisst-d the objections raised
by the appellant, and the High Court took the view, relying
upon Ralrmatullah Klra11 v. Ma!.abir•ingh, I. L. R. [1955] Nag.
IW3, that the lands in suit must be tttated as home-farm as it
was the duty of reveuue authorities to make correct entries iu
the village papers.
Held, that: (1) the principle that the executing court
canuot question the decree and has to execute the drcrcc has
no operation on the facts of the present case because the objec·
tion of tire 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 respon·
dent of his proprietary rights including the right to recover
possession over the lands in suit;
(2)
the word "document" in s. 4( I) 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 !:hudku•hl in the
annual papers of 1948-49, and consequently, his proprirtary
right was lost and got vc:.sted in the State on the commg mto
force of the Act;
Rahmatullah Khan v. Mahabir Sit1YI•, I. L. R. [195'1)
Nag. 983, disappreved.
(l) S.C.R.
SUPREME COURT REPORTS
125
Ch/lote Khan v. Mohammad Obtdullakhan, I. L. R. [1953}
Nag. 702, distin,guished.
(4)
since the Act did not provide for th,eoutgoing proprietor to recover possession of land by any process of law if he
had become entitled to the posseosion of that Janel 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 ,J10uld, therefore, have refused
to execute the decree holding that it became inexccutable on
account of the change in law and its eJl'ect.
CrTIL 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 l!l52.
N. G. Ghatte1jee, D. R. Baxy und Dhriram Bhu8an,
for the appellant.
B. S. SaYtri and Ganpat Rai, for the respondent.
1961. October 16. The Judgment of the Court
was delivered by
IHI
H4ii Sk. Su/,han
v.
Madhorao
RAGHUBAR DAYAL, J.-This appeal, on certifiR•1hu&.rDa,,.1 J,
cate 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, l;>y 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 oocupanoy land of his wife and
sons. They surrendered those field@
to lambardar Narain, who leased those fields in occupancy
right to the appellant in 1940. The respondent filed
a suit for possession of certain fields including the
fields in suits viz., fif'lds khasra Nos.
147 and 154,
19'1
H•ji Bk. Bub/Ian
v.
Jl•Jh«-.
R•1lwb41 Dayal ].
126 SUPREME OOURT REPORTS [1962] SUPP.
and based his claim on his proprietary right to recover posseBBion and not on the loBB of p0886BBion
on account of the appellant's dispoBBessing 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
tho 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 purchR.Sed by the respondent.
It so happened that betwl'en the closing of tho
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 (Estatt>s,
Mahala, Alienated Lands) Act, 1950 (111.P. Act No. I
of 1951), hereinafter called the Act, came into forr<>.
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.clecree holder filed execution
application for the recovery of costa and delivery
of possession on July 23, 1951. The appellant paid
up the oosta, but, on August 31, 1951, filed an
objection to the application for delivery of possession on the ground th'lt the respondent-decrt•c
holder had no right to dispossess the appellantjudgment debtor,
&8 tho respondent bad 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 st.ated that the mn.lguzari proprietary rights of the respondent-decree holcler,
except his rights over home-farm fields, ceased to
exist on March 31, 1951, by virtue of s. 3 of the Act
and vestccl in the State thereafter. Home-farm
fields were those fit>lds which were recorded as
khudkaabt or sir fields in the Jamabanclhi of 1948-49.
The fields in
suit were not so recorded and
were recorded as occupancy fields of appellant.
•
,
(1) S.C.R.
SUPREME COURT REPORTS
127
It was further oontended 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 ~tated 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 Qf the land ·ju suit. He
further stated that the resp<mdent had included the
rent of the fields in suit in the area of the· village
for the purposes of claiming compensation and
thereby got more compensation on that account and
that the fields in suit had been declared ma liK
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 bis 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 re@pondcnt'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 c0uld
not ha.ve moved in the matter without obtaining
poBBession or of a dMlaration 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 held by the
ld61
HDji Sk, Subhan
v.
Matlhorai
Baghubar Da)'al ~.
1161
J/aji Sk. S11hhm1
..
,\JtJttho1ao
128 SL"'PREME COURT REPORTS [1962) St"'PP.
High Court not to hg,ve been an occupancy tenant of
the lnnd in suit am! that the respondent had a
dc•cr<>c for poss<>~Rion against him .
The Stato of Madhya Pradesh was served
with notice of the objection and filed its statemt•nt
of facts stating therein that the plots in suit were
nnt shown as home-fa.nn by the ex-proprietor respondent, that no Jamabandhis; as required by
s. 2(μ) of the Act, were filed in the compensation
proceedings and that. consequently, the respondent
wns not deola.recl mailk makbnza. of those plots.
It was also stated that the appellant had OO•'n
clcclarcd malik makhuza of the plots under s. 41 /G6
of the Act on application under s. 4( 2) of the
Madhya Prad('sh Agricultural Raiyat.s and Tenants
Acquisition of Pri"vileges) Act, 1950 (}f. P. Act
XVIII of 19C.O), and that he has paid land revenue
to the State.
The Ex<>ention Court dismissed the objection.
It held that the vesting of respondents proprietary
rights in t.hc fitate did not. come in his way to take
poSBession of the fields in execution of the deerce,
as th!l Deputy Commissioner could not take pos. ession of the fields in 81lit under s. 7 of the Act as t h<>y
were occupied lands. It further held that the land
in suit did not form the respondent's home-fann
and that t.he respondent could not be the malik
makhuza of the fields un<lcr s. 38 (I) of the Act as
the fields were not in his possession. It funlwr
held that the <lecla.ration of the appel!P.nt, whu was
a trnspaPSP.r, aR a malik makhuzn, was illcgoal.
The appell'l.nt then went in appon.l to the High
Court.
The High Court relier! on the case reported as
Rohmatnl/11. A" han v. Mahn.bir8ingh ( 1) in IV hi ch it wa.~
held that the definition of n 'home·farm' ins. 2,
clause (gl, of the Act, should be liberally construed
and Rhould inclncle the fields of a proprietor who
was entitled to get the Hevenue papers of l 948-4l•
corrected as a result of the decree in his fl\vour,
(I) J.L.R. [1955] Naa. 983.
•
(1) S.C.R.
SUPREME OOURT REPORTS 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 R<!hmatullah's Gase(') ma.de out an exception in the definition which i~ 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 ObedvUakhan (').
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 proprietary 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 th!.' respondent mainly relies on the
contt'lntion 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
(I) I. L. R. [1955 )Nag. 983.
!2) I. L. R. [1953] Nag. 702.
1961
Haji Sk. Subhan
v.
Madhorao
Raglmbar Da_l·al J.
Hn)i SJ:. Subhan
Y.
.\fadlw1@
lla1ho•(11 Dayal].
•
130 SUPREME COURT REPORTS [1962) SUPP.
estates, rnahals, alienated ''illages and alienawd
landR. The proprietor8 "·ere intermedinries between
the persons actually cultivating tho land and the
Government. They realised rent from the former
and paid revenue ta the latter.
Section 3 is the vesting section anrl its
sub-Fs. (I) and(:!) read:
"(I) 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,
mah'l.I, alienat.ed villa!le or alienated land,
as the case may be, in the area specified in the
notification, vesting in a proprietor of Euch
estate, me.ha!, alienated ville.Ile, alienated
land, or in a person having interest in such
proprietary right through the proprietor,
shall pass from such proprietor or such other
person t-0 and vest in tho State for the purposes of the State free of all encumbrances.
(2) After the issue of a notification under
sub-sect.ion (1 ), no right shall be acquired in
or over the land to which the said notiffoation
rolates, except by succession or under a grant
or contract in writing made or entt>red into
by or on behalf of the Stare; and no fresh
clearings for cultivation or for any other
purpose shall be made in such land except in
accordance with Rnch rules as may be m11de
by the State Government in this behalf."
In accordance with the provisions of this section,
the proprietary rights in an estate, ma.ha!, alienated
village or alienated land in the area specified in the
notification
vestin~ in a propriet'lr of such estate
etc., were to pass from such proprietor and vest
in the State for purpCllles of the Stat.e free from all
encumbrances. These provisions themselves were
sufficient to divest the proprietor of such estate etc.,
of his proprietary right. The consequcnceR of such
'
•
•-
(1) S.C.R.
SUPREME OOURT REPORTS
131
v!'sting are fur~her specified in s. 4.
In view
of sub-s.
(,2) of s.
3,
no right
could
be
acquired over the land which had vested in the
State except hy succession or under a grant or
contra.ct in writing made or enterPd 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 possABS
this land nuder the decree in his favour.
The relevant portions of sub-s. (I) of s. 4 are :
"(l) 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 consequences as hereinafter set forth shall,
from the beginning of the date specifiPd in
such notification (hereina{ter 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
StatA 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 Tran-fer of Property Act, 1882, oase
to be in force.''
Sub sections (2) and (3) of s. 4 aro as follows :
(2) Notwithstanding anything contained
in sub· section (1 ), the proprietor shall continue
1981
Haji \'k. Subh<Jn
v •
.1'1adhorao
Roghuiar Dayal J.
1'61
Haji Sk. Subu•
••
Madhorao
Rath"b"" Dayal.].
132 SUPREME OOUM' REPORTS [1962] SUPP.
to rota.in the poBSesaion of his homeatead,
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 sub-section (I)
shall operate as a bar t<J the recovery by tho
outgoing proprietor of any gum which becomes
due to him before thii date of vesting by
virtue of his proprietory rights and any such
sum shall be recoverable by him by nny
process of law which hut for this Act would
be avaihble to him."
It is to be noted that tho consequences
mentioned in s. 4 follow the notification under
s. 3, notwithstanding anything cont&ined in any
contract, grant or document or in any other law
for the time being in force.
The question is whe.
ther 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
as. 3 and 4 •.md in fact, of the Act itself, is that
all the bundle of rights which a proprietor posse88es on account of his proprietorship of the land
within the estate etc., should cease, except such
rights which arc saved to the proprietor under
some specific provision of the Act. Auy rights
which accrue to the_ proprietor under a decree by
virtue to his proprietary right will .not, ttnder tlie
scheme of the Act, prevail over the statutory
consequences following the vePting 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 p088eSBion over
certain land. Such a decree for recovery of possession is the result of the recognition of the proprietor's right of possossion a& proprietor over that
labd as against the claim of the judgment debtor to
' '
-
•
(l) S.C.R.
SUPREME COURT REPORTS
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
s. 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 s. 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 .
• ~f adhorao (1).
•Occupied land' means, in relation to the Central Provinces, according to sub-cl. (i), land held
immediately before the date of vesting in absoluteoccupancy 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 inexecntable on the vesting
of his rights in the State. There is therefore good
reason to hold that decrees in his favour also be·
come inoxecutable if they are based on his proprietary right which he possesses no more and which
has vested in the State.
The Act provided, by snb-s. (3) of s. 4, that the
out-going proprietor was free to recover any sum
which had become due to him bAfore the date of
vesting by virtue of his proprietary rights by any
process of law which, but for the Act, would be
(I) I.L.R. [1951] Nag, 895.
1961
Haji Sk. SuhhaJt
v.
Madlwrco
Ra~hubar Dayal J.
'•
134
~UPREllIE COURT REPORTS [1962] ·SUPP.
1~61
Haji Sk~ Suhhan
v.
Madhorao
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 tbat land before the elate of vestRaghu!ar Dayal].
ing. -TJie absence of any such provisfon adds strength to the view that the proprietor's right· -to
-'----obtain_ possession_ of Janel und,cr a decree. in his
favour gets lost to him after the date of vestmg.
/
/
-
Sub:Section (2) of s .. 4 ,of the~Act .provides
· that the proprietor can con tinuc 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 sait on the . datirnf vesting
and no question of continuing to , re_tain possession
arose. -•In fact, the .fields _in suit could not be. his
home-farm and therefore he ~got np right to retain
possession over theni.
-
: , . _ :
· Clause (g) of s. 2 of 'the Act deflnes 'home.
farm'. -It reads:
.. :
"(g)'home-farm' means,-··' ,
• - -
(I) in relation to Central· Prci'"inces,-'
: -(i) land record~d ~s sir and khud·,
kasht in the name of a proprietor , in the_
annual papers for the year ID48-49, an~
.
_- - (ii) land acquired by a proprietor by
surrender from tenants after the. year 1948~49
till the date of vesting;· ~-
, ,
, , ,
- - ·
(2) ill relatiOn to merged territories, that
- part of the land under the personal cultivation
- of tho proprietor on the date of vesting which
was similarly under cultivation in- the agri-
. cultural year 1949-50 and which he is entitled
to retain on the termination ·of proprietary
tenure under any instrum_ent having theforc(l
of law and applicable to such tenure.:
.
-
Explanation.--Laiid lliider personal 'cultivation includes land allowed to lie fallow in
(1) s.c.n.
SUPREM:il: COURT REPOR'rs
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 connection that
sub-cl. (i) 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
khuclkasht 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 ha:d been
obtained by the proprietor as a re.suit of a decree
during that period or to the possession of which
the proprietor was held en titled 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 decribed 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. (i) of sub-s. (I). It is not necessary, a.ccor-.
ding to that sub-clause, that the proprietor be
personally· cultivating that land. The only condition requisite fo1· the proprietor having certain land
treated as his home-farm was the fact that the
annual papere of 1948-49 recorded that land as his
sir and khudkasht.
The basis was the record and
19dl
Huji Sk. Subhan
v:
Madhor110
Raghabar Dayal J.
J~J
ll"ji SA. S1.bh""
v.
Madliora11
Ra1Jwb., D•;al J.
136
SUPREME COURT REPORTS (1962] SUP!'.
,
not the fact of actual cultivation or hiH title to that
land.
The definition evinces the intention of the
Lcgi~laturc t.o remove the qu<'stion of certain land
being 'homc·farm" or not from the sphere of litigation.
lfoC"ordccl entry wao treated to be the basis
for adjudging the land to be 'homo-farm.'
There is 110 amLiguity aLout the d<'finitiun of
'home-farm' and so thll question of Rtrict ur liberal
construction <loeH nut ariHO.
These considcmtions lead to the conclusion
that land cannot come within th<> definition of
'home farm' which ha<l not been actu'llly recorded
as sir and khudkasht in
the name of the
proprietor in the annual papers for t.he year
1 !J48·49 or which had not been acquired by tho
proprietor by
surremfor from tenants after tho
years 1948·49 till the date of vesting. The plots in
suit were neither actually recorded as the respondent's sir and khudka.sht in the 1948-49 annual
plpers nor had been aoquirud by him by surrender
from tenants during the period mentioned in sub-ol.(ii)
of cl. (I) of the definition and so could not be
the respondent's home-farm.
Tho decree of tho trial Court was passed 011
July 12, 1944. As that decree was under appeal
in 1948-49, it would not be right to say that th<>
Hevenue Authorities were in error in not correcting
tho entries in the annual papers. They could not
have corrected them merely on the basis of the
deoree. Correction in the entries would have been
ma.de if there had been change of possession. No
change of posse88ion took place and therefore no
entry could have been ma.de in the annual papers
of 1948-49 with respect to the plots in suit to be
the khudka.sht of the respondent. In fact, even if
the respondent had ta.ken po88688iOn over the land
in suit by executing the decree passed by the trial
Court, an entry of hiH holding that land as khudkasht could have been made only if he had brought
...
(1) S.C.R.
SUPREME COURT REPORTS
137
that land un<ler his own personal cultivation and
not if he had let out the land to some other person.
This oonsideration, 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 Ci vii Procedure. The
respondent filed his compensation statement, Docu·
ment No. l, on September 20, 1951, and men·
tioned in his claim the total gross rental of his
proprietary share. This rental included the recorded
rent of the land in suit.
Section 83 provide~ that every entry in the
record-of-rights, the annual papers an<l the register
of proprietary mutatfons 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 settle1r ent of the
claim filed by the !'edpondent under s. 12, the entry
of the appellant's being an occupancy tenant in the
annual papcirs had to be presumed to be correct
and, as a conscqueuce of such a presumption the
land in suit cannot_Le taken to be tho respomient's
khudkasht in 1948-49, and this supports the construction we have placed on the definition of 'home·
farm' ins. 2 (g).
Sub-section (l) of s. 38 provides that every pro-
-
prietor who is divested of his proprietary rights in an
estate or mahal, sh:1Jl, with effect from the date of
vesting, be a ma.lik 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-fa.rm. In fact, he states
in his reply to the appellant's objection that. he
could not have moved in the matter without obtaining possession .
..
""
1161
/Jaji Sic, Sublto11
••
MadhPraa
Raghubar Doyal J.
1961
Haji Sk. '"Su11/uuJ
v.
Madliorao
Ilaghubar DCJ;•al J.
:'
13B SUPREME' COURT REPORTS [HIG2] SUPP.
' Exhibit ·A-1, <l11.ted'i1fii.y 8, 1951, is tho statement of fixation of a~sessment on the home-farm
of the respondent. It does not include the land in
suit.
Section 45 provide8 inter alia that any person
who, im!11ediately before .the dato uf vesting, was
in possession of any holding as an occupancy
tenant, shall be deemed to be a tenant of the Rtato
m1Cl
0shall hold tho land in tho same rights and subj out to the sune r<llltrictions· and liabilities a'S ho
was entitled or subject to, immediately ·before the
date of vesting.
Section 41 provides inter cilia fur occup11.11cy
Lcnants to be decl;i.red in the prescribed manner to
be malik makbuza of the ]and comprised in their
hol<li.I;ig ,on .Payment of th.e .amounts mentioned in
the sectio!J.. '.j'he 1,tppellant applied for such a declarntion op. July 2~, 1952 ;ind got the declaration in
his favour on the basis of, the entry in the yillage
papers, though that entry of his being an occupancy
tenant was wrong-.in_ vie"; qf the finding of the High
Court.
Exhibit A-4 is the declaration by tho Naib
Tehsildar, N'agpur, 011 July '22, 1952, under s. 41
of the Act, that tlie appellant was ~alik makbuza
in respect of the fand in' suit.
'Exhibit A-6 is the clipy of the J amabandhi for
holding serial No. 12 l of mauze Vadoda for the year
1948-49, showing the ;respondent to be tho occupancy 'tenant {Jf the land. an suit.
'Section 46 provides that every person deemed
or declared to be a malik:makbuza wider section 33
or section 41 and every .other malik makbuza iii a
mahal; shall be entitled to any right which a tenant
has under the village f1ajibul.,ii.rz.
The appellant
therefore got enti~led to such rights of a tenant.
'rt ii) clear ,from. the various provisions of the
Act already discussed in relation to the facts_ of
this case, that the respondent was not_ recorded
..
( l) s.c.n..
SUPREME COURT REPORTS
139
and could not have been recorded to have khudkast in the land in suit in the papers of 1918-49
and therefore could not have claimed this land
as his home-farm. In fact, he di<l 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 oti the decree in his
favour passed on the basis of his being the proprietor 0f 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 villa.ge
papers which had to be presumed corroct 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 ue 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, oven 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, whioh is not homefarm 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,
hit1 right to rems.in in possession as occupancy tenant
c9n tinues after the vesting of the land in suit,
in the State. If the land in suit he not taken to
be occupancy la.nd of the appellant in view of
the finding of the High Court, the Deputy Commissioner would be deemed to ha.\e ta.ken possession
of the land from the appellant and any subsequent
1961
Haji Sk. Subhan
v.
Madhorao
Ragh11bar Dayal J.
1961
/foji Sk, Sublian
••
.\l1dhoran
Raglwbar Da)'ol J,
140 SUPREME COURT RBPOR'fS [l!J62] SUPl'.
pu~tiessiun of the appellant woulrl be dccme<l to be
posseseion under the 8tate.
The contention that the Executiug Comt l"all
not question the decree and has to execute it a.s
it 8ta.nds, 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
the invalidity of the decree or wit:h respect to the
<lt•cree being wrong. His objection is tascd on the
effect of the provisions of the Act which has <lepriYc<l the r<'spondent of his proprietary rights, inclu-
<liug 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.
111 tho~e circumstance~, we are of opinion that. the
Executing Court can refuse to e:i;ecutc the decrco
holding that it has become inexecutable on account
of the change in law and its effect.
Chhote Khan'.< Case (') has nut much beal'ing
on the question under consideration in the present
c11se, as it did not deal with the executability of tho
decree obtained by a proprietor against a. trespaaBer
subsequent to the coming into force of the Act. It
dealt with the exeoutability of decrees in favour of
the proprieto1s and pa.seed prior t-0 the enforcement
of the Act an<l held that they had become inexecut ... ble ,18 the effect of ss. 3,4,5, 7,50 and 60 of the
Act was that the rights which wt>re exercisable by
the proprietor, lam bardar and sadar lam bardar by
reason of holding that character could no longer
be exercised by them and that, even though the
cause of action for euforcing those rights arose before the Act ca.me into force, they could not ho
continued by those persons after the Act came into
force as they had ceased to hold that character.
The fact in Rah11111tull11h's Case (') were as
follows: The plaintiff sued for possession in respect
of IJ.18 acres khudkasht lands on the allegation that
his predescssor-in-interest, Khubira.m, had purchased the defcnda11t's interest in the village
(l) l.L.R. (1953) Na1. 702.
(2) 1.1 •. R. (1~5) )la1. 983.
.,.
(1) S.C.R.
SUPREME COURT REPORTS
141
including khudkasht lands at a revenue auction sale
on April 29, 1936. It was contended that the defendent has no right to remain in possession of the
khudkasht lands which, along with the proprietary
interest, passed at the revenue sale. The defondant
contested the suit on the grounds th:tt 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 lst appellate
Court confirmed the decree with respect to a portion
of khudkasht land which was helrl to be included in
the revenue sale. By the time the second appeal
was heard in the High Court, tho Aot ·had come
into force. It was contended on
behalf of the
defendant-judgment debtor that the suit must fajl
in view of the provisions of the Act as interpreted in
Chhote Khan'8 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. I 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 viHage share. The land was thus
khudkasht of Khubiram and accordingly it
continued to be khudkasht of the respondent
who is a succeBBor-in-tit.Je ofKhubfoam. No
doubt, this land, though the khudkasht:of the
(II 1.L.R. (1958) Na11. 702.
1961
Ha;; Sk. Subha,,,
v.
MaJlwrao
Rogliubar Do_ral j.
J!~J
Haji Sk. Sub1iarl.
v .. ; .
Afizdharao
Rag!iubar Da;·a/ J.
·~' ,.-·
I;.,-
142 SUPREME COURT .REPORTS (1962] SUPP.
respondent, was wrongly rccorded .. as occu-
'
pancy. land. of the appellan~. But an erronc- ·
·· ·
ous recording ·of.a. khudkasht land as an
.
oc_cupancy land would not in law· alter.the
· ' . real character of that land. Thus, despite
· · the .wrcing entry, the land must be rngarded
as having always; been the, khudkasht of the.
respondent .. If:this .Court affirms the decree
of the two Courts below, the effect of its deci-
·1 sion would not be. to; alter the.character cf
the land and .convert a land which is· not
· '" <khudkasht into a khudka~ht:land.'' .. · · ' . : ·
.
• ·Interpreting .the definition ·or •home-farm' in
. the Act to include' such ·Jarid, which~ though riot
•
recorded as khudkasht , of ."the proprietor in the
annual-papers of Hl48-49, ought to have been 'recor-
' ded. as such, he. held that' the suit was not barred.
This is not' a/correct . view; for the reasons stated .
by us earlier..
: ;, ..
. As
";~ are .· ~f. opillion that tlrn · iand in
: suit could not be . the . •home-farm' . of · the
.