# MAULANA SHAMSUDDIN v. KHUSHI LAL AND ORS

- **Citation:** [1979] 1 S.C.R. 582
- **Court:** Supreme Court of India
- **Decided:** 1978-09-08
- **Case number:** Civil Appeal No. 2295 of 1968
- **Bench:** N. L. Untwalia, S. Murtaza Fazal Ali, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maulana-shamsuddin-v-khushi-lal-and-ors-7598
- **Pages:** 8

## Headnote

Bilopal State Land Revenue Act, 1932, S. 2(15),
''uccupa11t",
whetl1t'r
includes Muafidars landlords.
Madhya Prade.\11 Land Revenue Code, 1959, Ss. 185(1)(iv) (b) and 190,
\._
effect on Shikn1is.
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The appellant was a Muafidar of the disputed land, in the erstwhile Bhopal
State, while the first respondent cultivated the said lands as his tenant.
When
the M. P. L R. Code, 1959, came into force, the first respondent claimed that
the appellant, as the occupant of the lands within the meaning of S. 2(15)
of the BhopaJ State Revenue Act, 1932, had become a Bhumlswami u/s.
158(C) of the Code of 1959, while he himself had become
an
occupancy
tenant u/s 185.( 1) (iv) (b) and as such, ·was entitled to ronferment of Bhumi·
swami rights u/s 190 of the same Code.
He applied to the Tahsildar, Huzur,.
for mutation of his name as a Bhumiswami in the Revenue records, and was
directed to deposit compensation equivalent to 15 times of the land fevenue.
Thereafter his name was recorded as a Bhumiswami of the holdings, on the
deposit of the compensation money. The Mualidar appellant's appeal to the SubDivisiooal Officer, aga:inst the Tahsildar's order, and a second appeal to the
Additional Co1nmissioner, were dismissed, but the Board of Revenue allowed
his revision application, holding that he was not an occupant withiri the meaning of S. 2(15) of the Bhopal Act of 1932, and that consequently the first
respondent waB neither a Shik.mi, nor did he become an occupancy tenant
under the M.P. OXle of 1959, and therefore, conferment of Bhumiswami rights
on him was erroneous in law. The first respondent filed a writ petition against
the Revenue Board's Order, which was allowed by the lligh Court.
Dismissing the appeal by certificate, the Court
HELD: I. Under S. 2(15) of the Bhopal State Land Revenue Act 1932,
a person who holds land direct under the: Government, would be a-n "occupant",
in whatever name the payment of money may be described such as premium~
rent, quit-rent etc. On a careful analysis of the definition, it is legitimate to
conclude that a Jagirdar or Muafidar is an occupant. He holds lands under
the Government, on the resumption of the Jagir or the Muafi rights by the
Government, the land reverts back to it. Payment of land revenue or rent
for holding land under the Government was not a sine-qua-non for making
the holder of the land an occupant. [585 A-D, 586 DJ •
Begun1 Suriya Rashid' and Ors. v. State of Madhya Pradesh [1969] 1 SCR
869 held inapplicable.
2. The rights of Shikmis were enlarged by operation of the Madhya Pradesh Land Revenue Code, 1959. Under section 185(1) (iv)(b) a Shikmi became
an occupancy tenant, while u/s 190, as an occupancy tenant, he became entitledT
under certain conditions, to conferment of Bhumiswami right<; of the occupant
of the holdings. [587 F, 588 A-BJ
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MAULANA SHAMSUDD!N v. KHUSHI LAL (Untwalia, I.)
58 3

## Text

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582
MAULANA SHAMSUDDIN
v.
KHUSHI LAL AND ORS.
September 8, 1978
[N. L. UNTWALIA, S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.J
Bilopal State Land Revenue Act, 1932, S. 2(15),
''uccupa11t",
whetl1t'r
includes Muafidars landlords.
Madhya Prade.\11 Land Revenue Code, 1959, Ss. 185(1)(iv) (b) and 190,
\._
effect on Shikn1is.
.,( -
The appellant was a Muafidar of the disputed land, in the erstwhile Bhopal
State, while the first respondent cultivated the said lands as his tenant.
When
the M. P. L R. Code, 1959, came into force, the first respondent claimed that
the appellant, as the occupant of the lands within the meaning of S. 2(15)
of the BhopaJ State Revenue Act, 1932, had become a Bhumlswami u/s.
158(C) of the Code of 1959, while he himself had become
an
occupancy
tenant u/s 185.( 1) (iv) (b) and as such, ·was entitled to ronferment of Bhumi·
swami rights u/s 190 of the same Code.
He applied to the Tahsildar, Huzur,.
for mutation of his name as a Bhumiswami in the Revenue records, and was
directed to deposit compensation equivalent to 15 times of the land fevenue.
Thereafter his name was recorded as a Bhumiswami of the holdings, on the
deposit of the compensation money. The Mualidar appellant's appeal to the SubDivisiooal Officer, aga:inst the Tahsildar's order, and a second appeal to the
Additional Co1nmissioner, were dismissed, but the Board of Revenue allowed
his revision application, holding that he was not an occupant withiri the meaning of S. 2(15) of the Bhopal Act of 1932, and that consequently the first
respondent waB neither a Shik.mi, nor did he become an occupancy tenant
under the M.P. OXle of 1959, and therefore, conferment of Bhumiswami rights
on him was erroneous in law. The first respondent filed a writ petition against
the Revenue Board's Order, which was allowed by the lligh Court.
Dismissing the appeal by certificate, the Court
HELD: I. Under S. 2(15) of the Bhopal State Land Revenue Act 1932,
a person who holds land direct under the: Government, would be a-n "occupant",
in whatever name the payment of money may be described such as premium~
rent, quit-rent etc. On a careful analysis of the definition, it is legitimate to
conclude that a Jagirdar or Muafidar is an occupant. He holds lands under
the Government, on the resumption of the Jagir or the Muafi rights by the
Government, the land reverts back to it. Payment of land revenue or rent
for holding land under the Government was not a sine-qua-non for making
the holder of the land an occupant. [585 A-D, 586 DJ •
Begun1 Suriya Rashid' and Ors. v. State of Madhya Pradesh [1969] 1 SCR
869 held inapplicable.
2. The rights of Shikmis were enlarged by operation of the Madhya Pradesh Land Revenue Code, 1959. Under section 185(1) (iv)(b) a Shikmi became
an occupancy tenant, while u/s 190, as an occupancy tenant, he became entitledT
under certain conditions, to conferment of Bhumiswami right<; of the occupant
of the holdings. [587 F, 588 A-BJ
•
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MAULANA SHAMSUDD!N v. KHUSHI LAL (Untwalia, I.)
58 3
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2295 of 1968.
From the Judgment and Order dated 3-2-1967 of the
Madhya
Pradesh High Court in Misc. Petition No. 26 of 1966.
Harbans Singh for the Appellant.
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Raghwwth Singh and Manojswanip for Responuent No. I.
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S. K. Gambhir for Respondents 3-5 and 7.
U. P. Lalit, B. P. Maheshwari and Sureslt Sethi for Respondent
No. 6.
The Judgment of the Court was delivered by
UNTWALIA, J.
In this appeal by certificate granted by the Madhya
Pradesh High Court the question of law which falls for our determination is whether conferral of Bhumiswami rights on Shri Khushi Lal,
respondent No. 1 in respect of the lands in question in accordance with
Section 190 of the Madhya Pradesh Land Revenue Code, 1959, hereinafter referred to· as the M.P. Code of 1959, by the Revenue Authorities
i< correct and sustainable.
Maulana Shamsuddin, the sole appellant in this appeal, was
a
Muafidar in the erstwhile State of Bhopal of the disputed lands in
accordance with the Bhopal State Land Revenue Act, 1932 (for brevity,
the Bhopal Act of 1932). The first respondent claimed to be a Shikmi
ot the appellant in respect of the lands in question.
His case was
that the appellant was the occupant of the lands within the meaning
of the Bhopal Act of 1932.
On the coming into force of the M.P.
Code of 1959, the appellant became a Bhumiswami under clause (c}
of Section 158 and the respondent became an occupancy tenant under
Section 185 (I) (iv)(b).
Thus he became entitled to conferment of
Bhumiswami rights under Section 490. He applied before the Tahsildar, Huzur, respondent No. 5 for mutation of his name as a Bhumiswami in the Revenue records.
The Tahsildar by his order dated the
24th June, 1963 directed Khushi Lal to deposit compensation equivalent to 15 times of the land revenue on the payment of which his name
was to be recorded as a Bhumiswami of the holdings. It appears his
name was so recorded on the deposit of the compensation inoney. The
appellant filed an appeal before the Sub-Divisional Officer, Huzur,
respomlent No. 4 from the order of the Tahsildar. His appeal was dismissed by the Sub-Divisional Officer on the 12th of December, 1963.
The appellant failed before the Additional Commissioner, Bhopal,
respondent No. 3 on the dismissal of his second appeal on the 25th
August 1964.
He went in revision before the Board of Revenue, (respondent No. 2). The revision was allowed on the 6th of July, 1965. The
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SUPREME COURT REPORTS
[1979] ] S.C.R.
Board held that the appellant was not an occupant within the meaning
of Section 2(15) of the Bhopal Act of 1932 and consequently the first
respondent. was not a Shikmi under the said Act.
He did not become
an occupancy te_nant under the M.P. Code of 1959 and, therefore, conferral of Bhumiswami rights on him was erroneous in law.
The first
respondent filed a Writ Petition in the High Court and succeeded therr.
The High Court held that the Board was not right in its view of the
law.
The appellant was an occupant and the respondent no. 1 was
a sub-tenant (Shikmi) under the Bhopal Act of 1932. Consequently
he became an occupancy tenant entitled to conferment of Bhumiswami
rights under the M.P. Code of 1959.
The appellant has preferred this
appeal in this Court to challenge the decision of the High Court and
for restoration of the order of the Board of Revenue.
Mr. Harbans Singh, appearing for the appellant, advanced a very
fair and able argument to advocate his cause.
He could not and did
not dispute that if the appellant was an occupant, the first respondent
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was a Shikmi under th(\ Bhopal Act of 1932 and if that be so then the
order of the High Court is unassailable. But he vehemently contended
that the appellant was not an occupant.
Learned counsel for the
respondents controverted his argument.
Prima facie the argument, as
presented, for the appellant appeared to have substance and force but
on a close scrutiny we had no difficulty in rejecting it.
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Section 2 of the Bhopal Act of 1932 is the definition section and
as usual at the outset it uses the phrase "In this Act, unless there is
anything repugnant in the subject or context,".
Sub-section (5) defines
"Alienated land" to mean "land in respect of which, pursuant to a
grant made by His Highness the Ruler, Government has, in whole or
in part, assigned or relinquished its right to receive land revenue, and
includes such village waste and forest as are mentioned in the sanad
of the grant" Thereafter the sub-section says :-"If the land revenue
is assigned the person to whom such assignment is made is called a
''Jagirdar". If the land revenue is relinquished the person in whose
favour
such
relinquishment is made is called "Muafidar";". Subsection (15) provides :-
" "OCcupant" means a person who holds
land
direct
from the Government or would do so but for the right of
collecting land revenue having been assigned or relinquished."
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It would thus be seen that if pursuant to the grant made by His
Highness the Ruler of Bhopal, Government's right lo receive land
revenue was assigned to the grantee then he was called a Jagirdar and
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MAULANA SHAMSUDDIN v. KHUSHI LAL (Untwalia, J.)
585
if it was relinquished then the person in whose favour such relinquishment was made was called Muafidar.
Under the first part of the
definition of "occup~nt" given in sub-section (15) a person who holds
land direct from Government would be an occupant and being not a
person in whose favour the right to receive land revenue has either
been assigned or relinquished will be required to pay to the Government
land revenue or rent.
We are using both the words 'revenue' and
'rent' on the assumption that such an occupant being neither a J agirdar
nor a Muafidar would be required to pay some money to the Government for being in occupation of the land. Under the second part of
the definition a J agirdar or a Muafidar would also be holding land
direct from Government but because the right of collecting land revenue
has either been assigned or relinquished, strictly speaking, he does not
hold land direct from the Government in the sense of paying any
land revenue or rent to it because the Government has parted with the
right to collect land revenue from him.
We are of the opinion, in
agreement with the High Court, that on a careful analysis of the definition of the term "occupant" in section 2(15), it is legitimate to conclude that even a Jagirdar or a Muafidar is an occupant. He holds land
under the Government; on the resumption of the .Tagir or the Muati
rights by the Government the land reverts back to it.
Payment of land
revenue or rent for holding land under the Government was not a
sine-qua-11011 for making the holder of the land an occupant.
"Rent" is defined in sub-section (19) of Section 2 of the Bhopal
Act of 1932 to mean "whatever is payable to an occupant in money,
kind or service by a shikmi for the right to use land."
This would
show that strictly speaking a person holding the land direct from the
Government wi,!hin the meaning of the frrst part of the definition in
sub-~ection (15) is not to pay any money to the Government in the
shape of rent but what he will be required to pay would be the land
revenue.
But a Jagirdar or a Muafidar holding the land under. the
Govermnent is not required to pay any land revenue.
Sub-section (21)
defines "Shikmi" to mean "a person who holds land from an occupant
and is, or but for a contract, would be liable to pay rent for such
land to that occupant, but does not include a mortgagee or a person
holding land directly from Government." Respondent no. 1
was
inducted upon the land by tho appellant in the year 1958. Since then
lie had been cultivating the land.
He could not but be a Shikmi within the meaning of sub-section (21). Mr. Harbans Singh was not right
in saying that he was a mere cultivator and was cultivating the land
not as a sub-tenant or a Shiktni but must be doing so ooder some
£pecial arrangement of cultivating the land as a servant of the appellant
-0r the like.
There is no warrant for such a contention.
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Section 46 of the Bhopal Act of 1932 runs thus :
"(!) All land to whatever purpose applied and wherever
situate, is liable to the payment of revenue to the Government, except such land as has been wholly exempted from
such liability by a special grant of His Highness the Ruler
or by a contract with the Government, or under the provisions of any law or rule for the time being in force.
(2) Such revenue is called "Land Revenue"; and that
term includes moneys payable to the Government for land,
notwithstanding that such moneys may be described as premium, rent, quit-rent, or in any other manner in any enactment, rule, contract or deed."
·
This section lends support to the· view which we have expressed
above that a person holding land directly under the Government and
not being a Jagirda.r or a Muafidar will be liable to pay fond revenue
to th.e Government in whatever name the payment of money may be
described such as premium, rent, quit-rent etc.
The High Court in its judgment has adverted to some sections
contained in Chapter VI of the Bhopal Act of 1932.
Section 51 provided for disposal of unoccupied land.
Sub-section ( 1) of section 52
says that a person acquiring the right to occupy land under section 51
will be called an occupant of such land and under sub-section ( 2) all
persons who, prior to the commencement of thi~ Act, had been entered
in settlement records as responsible for the payment of land revenue
to the Government, or who, but for a special arrangement, would have
been so responsible, wonld be deemed to be occupants within the meaning of Section 52. In our opinion this special arrangement mentioned
in sub-section (2) caunot be squarely equated with the assignment or
relinquishment of the right to receive land revenue envisaged by the
Bhopal Act of 1932.
We do not feel inclined to agree with the High Court that the
appellant became occupant under section 52(2) of the Bht>pal Act of
1932 because he was a person who was entered into 5ettlement records
prior to the coming into force of that Act.
Firstly it is not clear
whether the facts so stated in the judgment of the High Court are
quite correct, and, secondly, it is admitted on all hands that the appellant was a Muafidar and, therefore, in our opinion he was an occupant
within the meaning of Section 2 (15) .
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Section 54 pro"1ded that the rights of an occupant, meaning thereby
the occupant as mentioned in Section 52, were to be permanent, transferable and heritable.
Ordinarily and generally the rights of a Jagirdar
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MAULANA SHAMSUDD!N v. KHUSHI LAL (Untwalia, J.)
587
or a Muafidar being occupants within the meaning of Section 2 (15)
read with Section 167 were neither transferable nor heritable and in
that sense the rights were not permanent.
In our opinion, therefore,
the type of occupant who is dealt with in Chapter VI of the Bhopal Act
of 1932 is not the type of occupant having the s~me kind of incidence
as defined in Section 2(15). As we have already indicated it is a
well-established principle of law that a particular term defined in the
definition section is subject to anything repugnant in the context of the
other provisions of the Statute.
The provisions of Chapter VI being
at variance with the definition clause cannot make the occupant described in that Chapter the same occupant as defined in Section 2 (15).
Our attention w«s drawn by the learned counsel for the appellant
to Section 167 of the Bhopal Act of 1932 dealing with the restriction
in the rights of the Jagirdars and Muafidar§ to transfer such rights or
create encumbra'!ces on them.
According to the said
Section no
Jagirdar or Muafidar could "transfer his rights as Jagirdar or muafidar,
or, except for such period as he is in possession of his jagir or muafi
create an encumbrance on the income thereof." But inducting a person as Shikmi op the land was not prohibited under Section 167. On
the other hand, Section 194 provided that an occupant could make a
lease of his holding and under certain circumstances it could not be
for a term of more than 12 years. It was then argued that the right of a
Muatidar_ being in the nature of a life grant was •alid only for the
life time of the Muafidar.
So the Muafidar could not induct a person
as Shikmi who ultimately could become an occupancy tenant entitled
to conferment of Bhumiswami rights later on. Thi• argument has to be
stated merely tei be rejected.
It may well be that the right of a Shikmi
would not have lasted beyond the duration of the right of the Muafidar.
But then, his rights were enlarged by operation of the welfare legislation
enacted by the State Legislature for the benefit of the cultivators of the
soil in the year 1959.
Section 185(1 )(iv) (b) of the M.P. Code of
1959 says:-
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" ( 1) Every person who at the coming into force of this
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Code holds-
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(iv) in the Bhopal region-
(b) any land as a shikmi from an occupant as defined
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in the Bhopal State Land Revenue Act, 1932 (IV of 1932) :
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SUPREME COURT REPORTS
[1979] 1 S.C.R.
shall be called an occupancy tenant and shall have all the
rights and be subject to all the liabilities conferred or imposed
upon an occupancy tenant by or under this Code."
As held by us above the appellant was an occupant as defined in the
Bhopal Act of 1932 and thus under clause (c) of Section 158 on the
coming into force of the Code he became a Bhumiswami.
But his
Bhumiswami rights were liable to be conferred, under certain conditions, on the occupancy tenant under Section 190.
As a matter of fact
in accordance with the said provision the Bhumiswami rights were
conferred on respondent no. 1 on payment· of compensation being In
the amount of 15 times of the land revenue for payment to the appellant.
Our attention was drawn to a recital of facts in the Statement
of the case of some of the respondents that the appellant had withdrawn
the said amount of compensation.
But we are not resting our judgment
on that ground as in our opinion, whether he has withdrawn the
amount of compensation or not, he cannot challenge the conferment of
his Bhumiswami rights on respondent no. l, which have been Yalidly
and legally conferred.
We may now briefly deal with a few more short submissions of the
appellant. In section 185(1)(iv) (a) of t'1e M.P. Code of 1959 it is
provided that if a person who at the time of coming into force of the
said Code was holding any land as a sub-tenant as defined in the
Bhopal State Sub-tenants Protection Act, 1952 shall also be called an
occupancy tenant.
A copy of this Act could not be made available
for our perusal. But what we get from the order of the Board of
Revenue is that a sub-tenant as defined in the Bhopal Act of 1952
means a person who bolds a parcel of khud kasta land from a Jagirdar.
Along with this our attention was also drawn to the Bhopal State SubTenants (Of Occupants) Protection Act, 1954. In this Act, section
2 (b) runs. thus :-
"The expression "occupant" shall have the same meaning
as in the Bhopal State Land Revenue Act, 1932 (IV of
1932) and, for the purposes of this Act, it should also include a muafidar, as defined in Bhopal State Land Revenue
Act, 1932 (IV of 1932)".
In other sections of the said Act protection iigainst ejectment was given
to the Shikmis. The. argument was that protection to the sub-tenants
of Jagirdars was given in the Bhopal Act of 1952 and protection to
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such persons was given in case of sub-tenants of Muafidar under the
Bhopal Act of 1954 by including Muafidar in the expression 'occupant'
occurring in the said Act.
Counsel, therefore, snbmitted that if the
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MAULANA SHAMSUDDIN v. KHUSHI LAL (Untwalia, J.)
589
term 'occupant' in the Bhopal Act of 1932 had included a Muafidar
then there was no necessity of expressly and separately including a
Muafidar in the definition of the said expression in the Act of 1954.
In our opinion this argument has no substance. It may be by way of
abundant precaution or for putting the matter beyond any shadow of
doubt that the expression 'occupant' was defined in a comprehensiv.e
manner in the Bhopal Act of 1954. Section 3 of the said Act shows
that even a Muafidar could sub-let a land to a. person and induct him
as a Shikmi prior to the coming into force of this Act.
Such a Shikmi
got the protection against ejectment by operation of law engrafted in
the Bhopal Act of 1954.
After the passing of this Act, he no longer
could be said to be a Shikmi only during the life time of the Muafidar
but was so even beyond it.
The counsel for the appellant called our attention to a decision of
this Court in Begum Suriya Rashid and others v. State of Madhya
Pradesh(').
In this case it was held that the muafi granJs to the pre- .
decessor-in-interest of the appellants before the Supreme Court were
not hereditary or perpetual and the appellants could not claim title as
Muafidars even though some contradictory arabic expressions had been
used in the document of grant.
This decision does not advance the
case of the appellant any further.
For the reasons stated above, we dismiss this appeal but make no
order as to costs.
M.R.
Appeal dismissed •
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(I) [1969] I SCR 869=1971 MPLJ. 352
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