# HIMATRAO v. JAIKISHANDAS AND ORS

- **Citation:** [1966] 3 S.C.R. 815
- **Court:** Supreme Court of India
- **Decided:** 1966-03-04
- **Case number:** CIVIL APPELLATE JuR1smcnoN : Civil Appeals Nos. 1034 and 1035 of 1963
- **Bench:** A. K. Sarkar, J. R. Mudholkar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/himatrao-v-jaikishandas-and-ors-3751
- **Pages:** 6

## Headnote

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The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahai.f,
Alienated Lands) Act, 1950 (! of 1951), ss. 3· and 4-Vesting of proprietary interest in land in State-Right to claim partition of 'home-farm'
land whether affected by such vesting.
The appellant's suit for partition of his share of 'homt>-farm' land in
the Berar area of Madhya Pradesh was partly decreed by the trial court.
Both sides filed appeals and the first
appellate court also
decid*1 in
favour of the appellant. The High Court however dismissed the suit as
infructuous on the ground that by virtue of the Madhya Pradesh Abolition
of Proprietary Rights (Estate, Mahals Alienated Lands) Act, 1950 the
land stood vo;ted in the State. The appellant came to this Court.
HELD : (i) It is no doubt true that so far as the proprietary intercot
in. the village is concerned the whole of it has now been acquired by
the State and vests in it.
The acquisition of such interest by the State
would not, however, put an end to the various rights of ex-proprietors
in their capacity aa owners of property.
Thus every co~harer could
despite the acquisition of his proprietary right obtain a declaration from
a civil court as to the fact and extent of bis share in the pre-existing
proprietary rights of that v:Jlage so that he could lay claim to a proportionate extent of 'home-farm' land in the village. [819 A-CJ
(ii) A distinction has to be drawn between a suit brought by a
proprietor in his character as proprietor for possession of property which
the Jaw then in force authorised him to claim by a suit for the benefit
of the entire body of proprietors and a suit based upon trespass upon
his individual rights obtained by him irrespective of his character as
such proprietor.
If this distinction had been borne in mind by the
High Court it would not have dismissed the present suit as wholly infructuous for a number of relief' had been sought by the plaintiff-appellant
with respect to property wh'ch not vested in the State. [819 GJ
(iii)
Tho village in question being still undivided every bit of land
which was in the cultivating posse3sion of any of the co-shares in the
village would be deemed to be in the poosession of the entire body of
CCH1harers.
Tho same would apply to land in the possesoion of lessees or
ordinary tenants. The right to enforce claims to a
partition of this
land was in no way affected by any of the provisions of the Act. [319 Dl
Chhot~ Khan v. Mohammad Obedullakhan, I.LR. [1953) Nag. 702
(F.B.), distinguished.
Rahmatullah Khan v. Mahabirsingh, I.L.R. [1955] Nag. 983 referH
red to.
CIVIL APPELLATE JuR1smcnoN : Civil Appeals Nos. 1034 and
1035 of 1963.
815
816
SUPREME COURT
REPORTS
(1966] 3 S.C.R.
Appeals from the judgment and decrees dated July 17, 1956
of the former Nagpur High Court in Appeals Nos. 574 and 575
and 608 of 1946 respectively.
S. T. Desai, G. l. Sanghi and A. C. Ratnaparkhi, for the appellants (in C. A. No. 1034 of 1963).
W. S. Barlingay, G. l. Sanghi and A. G. Ratnaparkhi, for the
appellant (in C. A. No. 1035 of 1963).
S. G. Patwardhan and M. R. K. Pillai, for respondent No. 4.

## Text

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HIMATRAO
v.
JAIKISHANDAS AND ORS.
March 4, 1966
B
[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]
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The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahai.f,
Alienated Lands) Act, 1950 (! of 1951), ss. 3· and 4-Vesting of proprietary interest in land in State-Right to claim partition of 'home-farm'
land whether affected by such vesting.
The appellant's suit for partition of his share of 'homt>-farm' land in
the Berar area of Madhya Pradesh was partly decreed by the trial court.
Both sides filed appeals and the first
appellate court also
decid*1 in
favour of the appellant. The High Court however dismissed the suit as
infructuous on the ground that by virtue of the Madhya Pradesh Abolition
of Proprietary Rights (Estate, Mahals Alienated Lands) Act, 1950 the
land stood vo;ted in the State. The appellant came to this Court.
HELD : (i) It is no doubt true that so far as the proprietary intercot
in. the village is concerned the whole of it has now been acquired by
the State and vests in it.
The acquisition of such interest by the State
would not, however, put an end to the various rights of ex-proprietors
in their capacity aa owners of property.
Thus every co~harer could
despite the acquisition of his proprietary right obtain a declaration from
a civil court as to the fact and extent of bis share in the pre-existing
proprietary rights of that v:Jlage so that he could lay claim to a proportionate extent of 'home-farm' land in the village. [819 A-CJ
(ii) A distinction has to be drawn between a suit brought by a
proprietor in his character as proprietor for possession of property which
the Jaw then in force authorised him to claim by a suit for the benefit
of the entire body of proprietors and a suit based upon trespass upon
his individual rights obtained by him irrespective of his character as
such proprietor.
If this distinction had been borne in mind by the
High Court it would not have dismissed the present suit as wholly infructuous for a number of relief' had been sought by the plaintiff-appellant
with respect to property wh'ch not vested in the State. [819 GJ
(iii)
Tho village in question being still undivided every bit of land
which was in the cultivating posse3sion of any of the co-shares in the
village would be deemed to be in the poosession of the entire body of
CCH1harers.
Tho same would apply to land in the possesoion of lessees or
ordinary tenants. The right to enforce claims to a
partition of this
land was in no way affected by any of the provisions of the Act. [319 Dl
Chhot~ Khan v. Mohammad Obedullakhan, I.LR. [1953) Nag. 702
(F.B.), distinguished.
Rahmatullah Khan v. Mahabirsingh, I.L.R. [1955] Nag. 983 referH
red to.
CIVIL APPELLATE JuR1smcnoN : Civil Appeals Nos. 1034 and
1035 of 1963.
815
816
SUPREME COURT
REPORTS
(1966] 3 S.C.R.
Appeals from the judgment and decrees dated July 17, 1956
of the former Nagpur High Court in Appeals Nos. 574 and 575
and 608 of 1946 respectively.
S. T. Desai, G. l. Sanghi and A. C. Ratnaparkhi, for the appellants (in C. A. No. 1034 of 1963).
W. S. Barlingay, G. l. Sanghi and A. G. Ratnaparkhi, for the
appellant (in C. A. No. 1035 of 1963).
S. G. Patwardhan and M. R. K. Pillai, for respondent No. 4.
The Judgment of the Court was delivered by
Mudbolkar, J, Both these appeals arise out of a suit instituted
by Himatrao, appellant in C. A. 1034 of 1963 for declaration that
he is owner of 1 anna 5 pies share in the village Mozara, District
Yeotmal and for partition and separate possession of the property
that would fall to the a~oresaid share. Certain other reliefs were
also prayed for by him; but it is not necessary to refer to them
for the purpose of deciding these appeals. To this suit he joined
other co-sharers in the village as well as alienees from some of
the co-sharers.
This suit was instituted by him on December 7,
I 939 and was partially decreed on July 31, I 944 by the court of
Sub-Judge, second class, Darwha. He preferred an appeal from
the decree of the trial court. So also Pusaram one of the defendants
to the partition suit preferred an appeal from the decree of the
trial court and some other defendants preferred a cross-objection
against that decree. The appeal of Himatrao was allowed while
that of Pusaram was dismissed. The cross-objections of Jugalkishore and Jaykumar succeeded while that of Laxman Vinayak
who is the appellant's brother in C. A. 1035 of I 963 was dismissed.
Pusaram preferred two appeals before the High Court from the
judgment of the lower appellate court, Second Appeal No. 574
of 1946 and Second Appeal No. 57& of 1946.
Laxman Vinayak
preferred Second Appeal No. 608 of 1946.
All these appeals were
heard together and disposed of by a common judgment. It was
urged before the High Court on behalf of Pusaram that the suit
for partition had become infructuous because of the provisions
of the Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950 (No. I of 1951) and, therefore, as held in Chhotc Khan v. Mohammad Obed11//akilan( 1)
the
suit should be dismissed. This contention was upheld by the High
Court and an order to this effect was made in all the appeals.
The Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950 (hereafter referred to as the
Act for brevity) was enacted, as the long title thereof shows, to
provide for the acquisition of the rights of proprietors in estates,
(I) I.LR. lt953J Nag. 702 (F.U).
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HIMATRAO v. JAIKISHANDAS (Mudholkat, J.)
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mahals, alienated villages and alienated lands in Madhya Pradesh
and to make provision for other matters connected therewith.
It was not intended to take away each and every kind of right
possessed by a person in immovable property situate in such villages.
The vesting section is s. 3. Sub-section (I) thereof makes it clear
that the rights which were acquired by the State were proprietary
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rights save as otherwise provided in the Act, but not any other kind
of right possessed by an owner of property. The consequences of
vesting are dealt with by s. 4 of the Act, sub-s. (2) of which reads
thus :
"Notwithstanding anything contained in sub-section
(1), the proprietor shall continue to retain the possession
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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."
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It is not disputed on behalf of the respondents and indeed it cannot be disputed, that home-farm land is not affected by the provisions of the Act. In other words, such land was not acquired
by the State but was left with the owners thereof. The definition
of home-farm is given in s. 2 (g) of the Act. Clauses (i) and (ii}
of this provision give the definition of home-farm in relation to the
Central Provinces. But with that definition we are not concerned.
The village Mozara was not situate in that part of the former Madhya
Pradesh which was within the area of the still earlier Central Provinces of the British times. It is situate in the part of the former,;'
Madhya Pradesh which was and still is known as Berar. Clause (3)
of that definition gives the definition of home-farm in relation to
Berar. According to this definition all land included in holdings
which is "(i) under the personal cultivation of the superior holder
including land allowed to lie fallow in accordance with the usual
agricultural practice; (ii) held by a lessee from the superior holder;
and (iii) held by a tenant from the superior holder other than a
specified tenant." The village Mozara was one of the villages in
which Izara rights were granted under the Waste Land Rules of
1865. The grantees of the rights were known as Izardars or proprietors of the village and they were called superior holders. There
were various classes of tenants in the Izara villages such as antealienation tenants, permanent tenants, tenants of antiquity and
ordinary tenants. In addition, there were also lessees from the
superior holders. The aforesaid definition excludes from the
home-farm land all land held by ante-alienation tenants, permanent tenants and tenants of antiquity. The result of this is that
land under the personal cultivation of the superior holder as weir
as land held by a lessee or ordinary tenant from him became his.
home-farm land. Quite often, as is the case here, the proprietary
right in the village was held by a large number of persons and those·
818
SUPREME COURT REPORTS
[1966] 3 S.C.R.
persons were thus co-sharers in the village.
Some of these villages
were partitioned with the result that lands including lands in possession of tenants were separately allocated to the share of each cosharer. In many cases, however, there was no partition, hut various
co-sharers by some sort of agreement used to retain possession of
some lands in the villages, some of which they used to cultivate
personally and grant leases over some of them or create tenancy
rights over some of them. An arrangement of the latter kind was
only tentative and subjc'Ct to the result of a perfect partition in
strict accordance with the share of each co-sharer in the village.
It is the plaintiff's allegation that his case fell in the second category.
According to him, out of the original 16 annas interest in the Izara
village an interest of 6 annas had already hecn separated from
an interest of 10 annas and that in this 10 annas share he had an
interest of I anna 5 pies.
No doubt, his father was actually in
possession of 7 specified fields which had hecn sold in execution of
a decree and later came in the possession of Pusaram. But this
did not represent the full I anna 5 pies share to which his father
was entitled or to which he is entitled. He admits that these 7
fields were sold in execution of the decree obtained by one Girdharilal against Basantrao, his father, in civil suit No. 43 of 1925. According to him, however, it is only these fields that were sold in
execution and not his share in the lzara itself.
However, the
sale certificates and receipts
for possession mention not only
these 7 fields hut also Basantrao's one anna 3 pies' share in the
village.
His contention which was accepted by the trial court as
well as by the ,lower arpellate court was that the mention of I
anna 3 pies' share in the warrant of attachment and receipt was
the result of a fraud practised on the court by interested persons.
According to the trial court Himatrao's share is I anna 3 pies
while according to the lower appellate court it was I anna 5 pies.
In the light of these findings a decree for partition and separate
possession of I anna 5 pies' share in the village, that is, of land
falling to the share of I anna 5 pies was granted by the lower appellate court to Himatrao. It may be mentioned that Himatrao
had said in his plaint that the 7 fields which were sold in execution and which later came into possession of Pusaram should be
allocated to Hamatrao's I anna 5 pies' share. The main contention of Pusaram in the second appeal before the High Court appears
to have been that as a result of the previous execution sale he had
become the owner not only of 7 fields but of Himatrao's share in the
village.
Apart from the fact that the finding on each of the points
of the two lower courts being one of fact was binding on the High
Court, the High Court has erred in the view which it took of the
provisions of the Act and of the decision in Chhote Khan's case(').
What we have, therefore, to consider is whether the High Court
was right in throwing out the suit as infructuous. It is no doubt
(I) I.L.R. (1953] Nag. 7v2 (F.B.)
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HIMATRAO v. JAl,KISHANDAS i(Mudholkar,. J.)
819
true that so far as the proprietary interest in the village is concerned the whole of it has now been acquired by the State and
vests in it. But under the provisions of the Act compensation is
payable to the ex-proprietors by virtue of the provisions of the Act.
This proprietary interest is analogous to what is known as the interest
of the intermediary in similar Acts enacted in many other States
of India. The acquisition of such an interest by the State would
not put an end to the various rights of ex-proprietors in their capacity as owners of property. Thus, every co-sharer could, despite
the acquisition of his proprietary right obtain a declaration from
a civil court as to the fact and extent of his share in the pre-existing
proprietary rights of that village so that he could lay claim to a
proportionate amount of compensation and to a proportionate
extent of home-farm land in that village. The High Court seems
to think that inasmuch as Himatrao was admittedly not in cultivating possession of any part of the land in the village he could
not lay any claim to a partition of the home-farm land. We have
already given the definition of home-farm. It would he clear
from it that the village being still undivided every bit of land which
was in cultivating possession of any of the co-sharers in the village
would be deemed to be in possession of the entire body of co-sharers.
The same would apply to land in possession of lessees or ordinary
tenants. The right to enforce a claim to a partition of this land is in
no way affected by any of the provisions of the Act or by the interpretation placed on the provisions of the Act in Chhote Khan's
case(1). Suffice it to say that Chhote Khan's case(I) was concerned
with the right of an ex-lumbardar to continue after the coming into
force of the Act, a suit for possession of abadi land which had
vested in the State. In the present suit a number of reliefs
which
Himatrao
claimed
are
with respect to property
which has not vested m the State. A somewhat similar
argument was sought to be advanced before the Nagpur High Court
on the basis of the decision in Chhote Khan's case( I) in Rahmatullah
Khan v. Mahabirsingh(Z). While rejecting the argument the majority
of the Judges who decided the case pointed out that a distinction
has to be made between a suit brought by a proprietor in his character as proprietor for possession of property which the law then in
force authorised him to claim by a suit for the benefit of the entire
body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such
proprietor. If this distinction had been borne in mind by the
High Court it would not have dismissed the suit as wholly infructuous.
An argument was sought to be advanced on behalf of the respondents by Mr. Patwardhan that the suit was also barred by the
principle of res judicata. However, learned counsel realising
(1) l.L.R. (1953] Nag. 702 (F.B).
(2) I.LR. [1953] Nag. 983.
820
SUPREME COURT REPORTS
[1966] 3 S.C.R.
that there was no substance in that contention gave it up.
We,
therefore, need say nothing more on the point.
For the reasons which we have given, it is clear that the matter
must go back to the High Court for deciding the appeals before it
on their merits.
Dr. Barlingay, who appears for Laxman Vinayak,
has said that he adopts the arguments addressed before us on behalf
of Himatrao by Mr. S. T. Desai and has nothing to add. He said
that he would be content with the order that the appeals be heard
and decided on merits by the High Court.
In the result, therefore, we allow the appeals, set aside the
decrees passed by the High Court and remit the entire suit to the
High Court for decision on merits. The respondents should pay
the costs in this Court and the High Court and the costs of the
trial court and to be incurred hereinafter will be as in a partition
suit.
Appeals allowed.
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