# STATE OF MADHYA Pit\f>ESH & ORS v. SARDAR D. K. JADHA V

- **Citation:** [1972] 2 S.C.R. 864
- **Court:** Supreme Court of India
- **Decided:** 1971-12-14
- **Case number:** Civil Appeal No. 32 of 1971
- **Bench:** C. A. Vaidialingam, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-madhya-pit-f-esh-ors-v-sardar-d-k-jadha-v-5577
- **Pages:** 10

## Headnote

Madhya Rharat Abolition of Jagirs Act Samvat 2008 (Act 28 of 1951),
ss. 2(1) (ix) and 5(c)-'Occupied land' wht4 is'-Protection of s. 5(c)
whether available where area of tanks is partly occupied by Jagirdar and
partly by tenants.
Under s. 5(c) of the Madhya Bharat Abolition of Jagirs Act Samvat
2008 (Act 28 of 1951) all tanks, trees etc. in or on 'occupied lands'
belonging to or held by the Jagirdar or any other person were excluded
from vesting in the State by virtue of s. 4.
The respondent filed a writ
petition in the High Court claiming that certain tanks built by himself
and his predecessor-in-title were on 'occupied land' and therefore came
within the protection of s. 5(c). The original order passed by the High
Court in the writ petition was set aside by this Court and the High Court
was directed to decide afresh the claim made by the writ petitioners
under s. 5(c) of the A~t After considering the evidence before it on
this question the High Court held that the tanks in question were saved
under s. 5(c) and they had not vested in the State under, the Abolition
Act. In appeal by the State to this Court,
HELD: 'Occupied land' as defined in s. 2(1)(ix) of the Act comprises broadly two types of lands : ( 1) four categories of land held under
the tenures enumerated in sub-clauses (a) to (d); and (2) comprised in
Khud-Kasbt and 'homestead'.
To attract cl. (c) of s. 5 the tank must
be shown in the first instance to be on occupied land that is on land
comprised under the tenures enumerated in sub-clauses (a) to (d) or in
the Ian.ct held as khud-kasht and homestead. It is not ne~"ssary_ that the
entire tank should be exclusively situated in the land held as khud-kasht
and land comprised in homestead. The requirement of the tanks in question ceing an occupied 12.nd will be satisfied even if part of the tank is
situated in one or the other of t~~ tenuri:-s me'l.t;oned in suh-cl~uses (a)
to (d) of cl. (ix) of s. 2(1) and the rest of it is included in the land
held as khud-kasht and the land comprised in a homestead. That is, the
entire area of the tank must be comprised in either the tenures or the
khud-kasht or hormstead or in both.
Therefore it was not possible to
accept the contention advanced on behalf of the appellant State that only
those tanks which are on khud-kasht land of the Jagirdar are saved to
him. Acc'eptance of such a contention will be ignoring the clear working
-0f cl. (ix) of s. 2(1) which takes in also lands held on the various tenures
referred to therein. L871 o,GJ
Therefore in the preient,·case the mere fact that a part of the tanks
was in the occupation of the tenants as tenure-holders did not detract
from the operation of the saving cl. (c) of s. 5.
The expression 'any
other person' is comprehensive enough to take in the persons who were
holding the land on one or the other of the tenures enumerated in subclauses (a) to (d) of s. 2(1) (ix) of the Abolition Act.
Whatever may
be the extent o! the tanks in the possession of the respondent, as his
khud-kasht or homestead and in the possession of the tenure-holders the
position ultimately ~<; that the entire extent of the tanks Was in :occupied
land' belonging to or held by the Jagird~r or any other person. ,[872 H·
873 B)
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M.P. STATE v. D. K. JADHAV (Vaidialingam, J.)
865
The judgment of the High Court must accordingly be upheld.

## Text

864
STATE OF MADHYA Pit\f>ESH & ORS.
v.
SARDAR D. K. JADHA V
December 14, 1971
[C. A. VAIDIALINGAM AND K. K. MATHEW, JJ.]
Madhya Rharat Abolition of Jagirs Act Samvat 2008 (Act 28 of 1951),
ss. 2(1) (ix) and 5(c)-'Occupied land' wht4 is'-Protection of s. 5(c)
whether available where area of tanks is partly occupied by Jagirdar and
partly by tenants.
Under s. 5(c) of the Madhya Bharat Abolition of Jagirs Act Samvat
2008 (Act 28 of 1951) all tanks, trees etc. in or on 'occupied lands'
belonging to or held by the Jagirdar or any other person were excluded
from vesting in the State by virtue of s. 4.
The respondent filed a writ
petition in the High Court claiming that certain tanks built by himself
and his predecessor-in-title were on 'occupied land' and therefore came
within the protection of s. 5(c). The original order passed by the High
Court in the writ petition was set aside by this Court and the High Court
was directed to decide afresh the claim made by the writ petitioners
under s. 5(c) of the A~t After considering the evidence before it on
this question the High Court held that the tanks in question were saved
under s. 5(c) and they had not vested in the State under, the Abolition
Act. In appeal by the State to this Court,
HELD: 'Occupied land' as defined in s. 2(1)(ix) of the Act comprises broadly two types of lands : ( 1) four categories of land held under
the tenures enumerated in sub-clauses (a) to (d); and (2) comprised in
Khud-Kasbt and 'homestead'.
To attract cl. (c) of s. 5 the tank must
be shown in the first instance to be on occupied land that is on land
comprised under the tenures enumerated in sub-clauses (a) to (d) or in
the Ian.ct held as khud-kasht and homestead. It is not ne~"ssary_ that the
entire tank should be exclusively situated in the land held as khud-kasht
and land comprised in homestead. The requirement of the tanks in question ceing an occupied 12.nd will be satisfied even if part of the tank is
situated in one or the other of t~~ tenuri:-s me'l.t;oned in suh-cl~uses (a)
to (d) of cl. (ix) of s. 2(1) and the rest of it is included in the land
held as khud-kasht and the land comprised in a homestead. That is, the
entire area of the tank must be comprised in either the tenures or the
khud-kasht or hormstead or in both.
Therefore it was not possible to
accept the contention advanced on behalf of the appellant State that only
those tanks which are on khud-kasht land of the Jagirdar are saved to
him. Acc'eptance of such a contention will be ignoring the clear working
-0f cl. (ix) of s. 2(1) which takes in also lands held on the various tenures
referred to therein. L871 o,GJ
Therefore in the preient,·case the mere fact that a part of the tanks
was in the occupation of the tenants as tenure-holders did not detract
from the operation of the saving cl. (c) of s. 5.
The expression 'any
other person' is comprehensive enough to take in the persons who were
holding the land on one or the other of the tenures enumerated in subclauses (a) to (d) of s. 2(1) (ix) of the Abolition Act.
Whatever may
be the extent o! the tanks in the possession of the respondent, as his
khud-kasht or homestead and in the possession of the tenure-holders the
position ultimately ~<; that the entire extent of the tanks Was in :occupied
land' belonging to or held by the Jagird~r or any other person. ,[872 H·
873 B)
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M.P. STATE v. D. K. JADHAV (Vaidialingam, J.)
865
The judgment of the High Court must accordingly be upheld.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 32 of
1971.
Appeal from the judgment and order dated March 12, 1970
of the Madhya Pradesh High Court in Miscellaneous Petition No.
184 oi 1965.
I. N. Shroff, for the appellants.
V. S. Desai, S. X. Mehta,
K. L. Mehta.
V. K. Sapre and
K. R. Nagaraja, for the respondent.
The Judgment of the Court was delivered by
Vaidialingam, J.
The short question that
arises for consideration in this appeal, on certificate, is whether the High Court
has complied with the directions given by this Court in its judgment dated January 25, 1968 in Civil Appeals Nos. 1244 and
1245 of 1967 and adjudicated upon the question whether the
claim made by the respondent that the 1anks and wells in question
were constructed on "occupied land" belonging to the Jagirdar
withi;n the meaning of s. 5 ( c) of the Madhya Bharat Abolition of Jagirs Acts, Samvat 2008 (Act 28 of 1951) (hereinafter
to be referred as the Abolition Act).
The facts leading up to the present decision of the
High
Court may be stated: In Samvat 1885 the Ruler of the erstwhile
Gwalior State conferred on the predecessor in title of the respondent the Jagir of Mauza Siroli situated in Pargana Gwalior.
The Abolition Act came into
force on
December 4, 1952.
Section 3 provides for resumption of Jagir-lands by the Govetllment.
Under sub-section (3). the date appointed under s. 3 as
the date for resumption of Jagir-lands is "the date of resumption".
After the issue of notification under s. 3, apointing a date for
resumption, :all the property in the Jagirdar including Jagir-lands,
forest, trees, fisheries, wells, tanks, ponds etc. stood vestod in the
State under s. 4 of the Abolition Act. But under s.5 ( c) all tanks,
trees, private wells and buildings in or on the occupied lands,
belonging or held by the J agirdar or any other person, were excluded from vesting.
After the abolition of J agirs under the Abolition Act proceedings were initiated for determining the compensation p~yable
to the respondent and the same was determined.
Out of the
amount, so determined, certain loans were
deducted
and the
balance amount was paid. The Madhya Pradesh Land Revenue
position ultimately was that the entire extent of the tanks was in 'occupied
as the Code) came into force on October 2. 1959. Section 251
SUPREME COURT REPORTS
[1972) 2 S.C.R.
of the Code provided for vesting in the State Government all
tanks situated on unoccupied lands, in the circumstances mentioned therein.
The said section made provision for claiming
compensation in the manner laid down therein.
The respondent on April 5, 1961 made an application to
the Collector, Gw<)lior under s. 251 of the Code claiming compensation for tanks which, according to him, had been built by
himself and his predecessor in title over an area of 1679 bighas
and 18 biswas of land. There were various orders passed by the
authorities in connection with the said claim for compensation.
The respondent moved the
Madhya Pradesh High
Court
under Art. 226 of the Constitution by two writ petitions to quash
two orders of the Collector of Gwalior and two orders of the
AdditiOnal Commissioner, Gwalior Division.
The writ petitions
were opposed by the State on the ground that the four tanks
daimed by the writ petitioner were really not tanks and in any
case the tanks were not on "occupied land" within the meaning
of s. 5 ( c) of the Abolition Act and the wells claimed by him had
.also vested in the State under s. 4 (l )(a) of the Abolition Act.
The High Court by its judgment dated November 30, 1966
allowed· the writ petitions and quashed the four orders, referred
to above, on the ground that the claim made by the respondent
that the tanks were on "occupied land" under s. 5 ( c) of the
Abolition Act,. has to be decided by the Jagir Commissioner in
the manner required under s. 17 of the said Act.
The State challenged before this
Court in
Civil Appeals
Nds. 1244 and 1245 of 1967, the decision of the Madhya Pradesh High Court. The contention raised on behalf of the State
""«1as that s. 17 of the Abolition Act had no application and that
it was the function of the J agir Commissioner &lone to inquire
whether the claim of the writ petitioner under s.
5 ( c) of the
Abolition Act was well founded on merits and then refer the
matter fOr the final decision of the Government under Si 17 of the
Abolition Act. After a consideration of the scheme of the Abolition Act and in particular of s: 17; this Court accepted
the
contention of the State and held that the inquiry contemplated
under s .. 17 by the J agir Commissioner relates to compensation
to be paid to the Jagirdar whose Jagir is
vested in the State
Government and once the compensation is determined and paid,
no .furtl\er inquiry under s. 17 is contemplated.
In thi& view,
!'& jts jl!dgment dated January 25, 1968, this Court set aside the
orders passed by the High Court.
This Court further held that the writ petitioner, namely, the
present appellant before us, is not left without any remedy to
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M.P. STATE v. D. K. JADHAV (Vaidia/ingam, J.)
867
agitate his claim that. thJ: tainks and wells claimed by him were
constructed on occupied land and that they have been s~~ed
from vesting in the Goveriun~nt under s. 5 ( c) of the Abolit!?n
Act. It was held that if the writ petitioner was able to establish
this plea, the State Government will have no power or authority
to take possession of such tanks and wells, as the title thereto
did not vest in it in view. of s. 5 ( c) of the Abolition Act It
was further held that s. 5 ( c) has an over-riding effect on s. 4 of
the Abolition Act. In this view this Court held that it was the
duty 'Of the High Court to have decided the jurisdictional fact
as to whether the tanks" and wells claimed by the present respondent belonged to the Jagirdar within the meaning of s. 5 ( c) of
the Abolition Act and that, if the High Court accepted the said
contention, the High Court was competent to issue a writ under
Art. 226 of the Constitution directing the State to hand over
possession of the said tanks
and wells to the writ
petitioner.
Ultimately, for all the reasons given in its judgment, this Court
set aside the decision of the High Court and remanded the proceedings for deciding afresh the claim made by the writ petitioner
under s. 5 ( c) of the Abolition Act.
Liberty was given to the
parties to place before the High Court such further evidence, oral
and documentary, as they may desire to give on the point at
issue. The main judgment was given in Civil Appeal No. 1245
of 1967. For the same reawns given in the said judgment, Civil
Appeal 1144 of 1967 was also remanded in accordance with the
directions given in Civil Appeal No. 1245 of i 967.
The said
decision of this Court is reported in State of Madhya Pradesh
and others v. Sardar D. K. Jadhav(').
After .remand, when the matter was taken up by the High
Court, both. the appellant and the respondent. filed many documents and examined witnesses with particular reference to the
claim regarding the wells. and the tanks made by the respondent
under s. 5 ( c) of the Abolition Act.
The respondent laid his claim on the ground that the tanks
and wells had been constructed on lands whkh were his Khudkasht lands as also on lands held on tenure by other persons.
But ultimately his claim was on the basis that the wells and tanks
were all on occupied land belonging to the Jagirdar or any other
person, as laid down under s. 5 ( c) of the Abolition Act.
The State, on the other hand, denied the right of the respondent to claim any right in the said tanks and wells on the ground
that -they W€re not located on occupied land belonging to the
Jagirdar, but were situated on lands which were in the possession
of tenants.
Hence, according to the State, the said tanks and
(1) ]1968] 2 S.C.R. 823.
868
SUPREME COURT REPORTS
[1972] 2 S.C.R.
wells were not saved to the resp0ndent under s. 5 ( c) of the
Abolition Act, and that they have vested in the State, as rightly
held by the Revenue authorities. In short, the contention of the
State appears to have been that only those tanks and wells, which
are on occupied land belonging to the Jagirdar and in his possession as Khudkasht land alone are saved under s. 5 ( c) of the Abolition Act.·
.
At this stage we may mention that though the respondent
laid claim to certain wells also in addition to the tanks, it is seen
from the judgment of the High Court that during the stage of arguments, it was represented on his behalf that three out of five wells
were already in his possession and that no adjudication is necessary
regarding those wells. Regarding the other two wells, it is also
seen that the respondent abandoned his claim before the High
Court. Therefore, the entire controversy, which the High Court
had to f!ecide centred round the claim, regarding the tanks, made
by the respondent under s. 5 ( c) of the Abolition Act.
Though various maters have been adverted to by the High
Court in its judgment, its material. findings are as follows : That
the four tanks. as also the pick-up weir are tanks within the meaning of the Abolition Act.
The four tanks as also the pick-up ·
weir belonged to the respondent at the time of the resumption
of Jagirs under the Abolition Act, namely, December 4, 1952;
Section 5 ( c) is clearly attracted if the right of ownership or
possession of the tanks belonged either to the Jagirdar or to any
other person as against the said right belonging to the community at large or the State. The fact that a part of the bed of the
;tanks may be in the occupation of tenants is of no consequence
in holding in favour of the respondent under s. 5 ( c) of the Abolition Act; The entire area of the tanks in the possession of the
respondent mus.t as his Khud Kash! land and also in the occupation of the tenants are both saved under s. 5 ( c) and do not vest
in the State under s. 4 of the Abolition Act. On these findings,
the High Court accepted the contention of the respondent and
held that the tanks claimed by him are saved under s. 5 ( c) and
they have not vested in the State under the Abolition Act.
We may state at this stage that the High Court has not thought
it necessary to consider the precise area of each one of the tanks
as the tenants were not parties to the proceedings.
Ultimately,
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the High Court held that on resumption of Jagirs under the Abolition Act, the four tanks and the pick-up weir are saved to the
r.ti$pondent under. s. 5 ( c) of the Abolition Act, subject to certain ·H
. o~ervations contained in the judgment. In consequence,
the
High Court quashed the four orders of the Revenue authorities,
referred to, in the judgment.
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M.P. STATE v. D. K. <JADHAV (Vaidialingam, J.)
86'9
Though Mr. I. N. Shroff, learned counsel for the State, has
rahed several contentions, in our view, most of them do not 811£·
vive in view of the specific directions contained in the order of
remand passed by this Court. The only two contentions that have
been advanced by him and require to be considered are : ( 1)
That the High Courf has not complied with the dir.ections given
by this Court in its order of remand; and (2) The High Court
has not found that tlie said tanks are situated on "occupied land"
so as to be saved under s. 5 ( c) of the Abolition Act. The counsel
has, no doubt, pointed out certain other circumstances, which,
according to him, constitute an infirmity in the judgment of .the
High Court.
On the other hand, Mr. V. S. Desai, learned counsel for the
respondent, has pointed out that the directions of this Court have
been fully complied with and that after a very elaborate consideration of tlie materials placed before it by both the partie~. the
High Court has recorded a finding that the tanks claimed by the
respondent are on "occupied land" belonging to or held by the
fagirdar or any other person as required under s. 5 ( c) of the
Abolition Act. The fact that the High Court has not considered
it necessary to adjudicate upon the exact area of the tanks is of
no consequence biecause that is a matter to be decided as between
lhc J agirdar and the other tenure-holders, if any.
Once the requirement that the tanks are on occupied land and that they belong
to the Jagirdar or to any other person, is satisfied, they are saved
under s. 5 ( c) of the Abolition Act. That was the only point that
the High Court was directed to adjudicate upon and on that aspect
cleJr findings haYe been recorded by it.
Before we deal with the contentions of the learned counsel on
both sides, it is necessary to refer to the material provisions of the
Abolition Act.
The ex,pressions "Homestead" and "Occupied
land'' are defined in sub-clauses (iv) and (ix) of s. 2 ( 1) and
they are as follows :
"2 (1) In this Act unless the context otherwise requires-
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(iv) "Homestead" means a dwelling-house together
with any court-yard, compound, attached garden
or barl, and includes any out-building used for
agricultural purposes and any tank or well appertaining to the dwelling-house.
(ix) "Occupied land" means land held immediately
before the commencement of this Act on any of
the following tenures, namely,
8--7LJ6 S'.t'' Cl/72
SUPREME COURT REPORTS
(a) Ex-proprietary;
(b) Pukhta Maurusi;
(c) Mamuli Maurusi;
(d) Gair Maurusi;
[1972] 2 S.C.R.
and includes land held as Khud-kasht and land
comprised in a homestead;"
Section 3 deals with resumption of J agir lands by the Government.
As we have already mentioned the date of resumption is
December 4, 1952.
Section 4 enumerates the
various
items
which vest in the State, unless the contrary has been provided in
the Abolition Act.
Section 5 saves from vesting certain items
and clause ( c), which is material is as follows:
"Section 5 : Private wells, trees, buildings, house-sites
and enclosures.-. Notwithstanding anything contained in the last preceding section-
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( c) all tanks, trees, private welis and buildings in or
on occupied land belonging to or held by the
Jagirdar or any other person shall continue to belong to or, be held by such Jagirdar or other
person.''
Regarding the first contention we are satisfied that the High
Court has complied with the directions given by this Court in its
remand order. The High Court was directed to decide the jurisdictional fact as to whether the tanks and we!Is claimed by the
respondent belonged to the J agirdar and were saved under s. 5 ( c)
of the Abolition Act. Therefore, the only investigation that had
to be made by the High Court was on the point, referred to above.
In fact, it is seen that the High Court has been very considerate
when it allowed the appellant to raise various other questions,
such as, the locus standi of the respondent, to file the writ petition, the question of non-impleading of the tenants in possessioa
of lands over which part of the tanks are situated. and the undue
delay in filing the writ petition. Further, the High Court has
allowed the appellant to rais~ .the question that the respondent is
estopped from seeking relief regarding the tanks under s. 5 (c) in
view of the stand taken by him before the Revenue authorities in
his application for award of compensation. These matters should
not have been pennitted to have been raised by the appellant.
TI
these contentions were available to the appellant, they should have
been raised before this Court in the appeals, referred to earlier.
Any how the High Court .has gone into those matters and held
against the 3ppellant.
Therefore, far from not complying with
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M.P. STATE v. D. iK. JADfutV (Vaidialingam, J.)
871
the directions. given by this Court, it has even allowed the appellant to raise certain contentions which were not available to it at
the stage when the matter was being considered after remand.
Therefore, the first contention will have to be rejected straightaway.
Regarding the second contention, it is also clear from the
judgment pf the High. Court that it has very elaborately con;idered the various aspects presented to it, both by the appellant as
well as thJ< respondent. After a consideration of the materials so
placed before it and having due regard to the provisions of the
Abolition Act, the ·High. Court, as we have pointed out eariier,
has .considered, as directed by this
Court, the main
question
whether the tanks are saved under s. 5 ( c) of the Abolition Act.
fn that connection the High Court had naturally to consider the
scope of the definition of "Occupied land" under s. 2( 1 )(ix) of
the Abolition Act. It is after a consideration of all these aspects
that the High Court has found that the four tanks belonged to the
respondent at the time of resumption and the said tanks were on
occupied land belonging to the
Jagirdar or any other pen.on.
Therefore, it considered 'the question properly as per the remand
order and has given a finding on the same. As to whether the
said finding is correct or not, is a different matter. But the criticism that it has not considered the point regarding the saving of
the tanks under s. 5 ( c) of the Abolition Act, cannot be accepted.
Now coming to the merits, it is clear that 'as and from the date
of resumption, the consequences enumerated under s. 4 will have
full effect.
Except as otherwise provided in the Abolition Act,
normally under cl. (a) of Section 4(1) the right, title and interest
of every J agirdar and. of every other person claiming through him
in his Jagir lands including among other items, tanks, shall stand
resumed to the State. The saving is provided under s. 5. If the
respondent is able to. es~ablish that the tanks in question are on
occupied land belonging or held by the J agirdar or any ether
person, then those tanks are saved in favour of the respondent
under s. 5 ( c) of the Abolition Act. It may be mentioned at th is
stage that though the items are all described as tanks, it is in evidence that they get sub-marged at times and at o·ther times portions
of the same are being cultivated either by the respondent or by
other persons under certain tenures. That is, parts of the tanks
are included and held by the respondent as khud kasht and rest
of it is held by the tenure-holders, who have got tenancy rights
over them.
As the other tenure-holders, namely, the tenants, were
not
parties before the High Court, the question of the extent of .the
area of the tanks was not decided and it was left open. Bat the
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SUPREME COURT REPORTS
(1972] 2 S.C.lt.
entire extent of the tanks had been given by the respondent as
1679 bighas and 18 biswas of land and this claim was fully known
to the Revenue authorities, who raised the specific plea that the
said tanks are not on occupiedland. Therefore, the circumstance
that the High Court did not adjudicate upon the questicm of the
extent ·Of the tanks, is of no consequence and it is not material for
the point in dispute.
In order.to get the tanks in question saved under s. 5(c) of the
Abolition Act, the respondent will have to establish : (a) They
were on occupied land; and (b) They belonged to or were held
by the J agirdar pr any other person.
We have already extracted the definition of "occupied land".
The essential ingredient of such land ,is that it must have been held
immediately before the commencement of the Abolition Act under
one or other of the four tenures mentioned in sub-els. (a) to ( d).
We have not been shown about the existence of any other type of
tenure. The occμpied land will also include as per the definition
lands held by the Jagirdar as khud kasht as well as the land comprised in a homestead. Therefore, occupied land comprises broadly of two types of lands: (1) four categories of land held under
the tenures enumerated in sub-clauses (a) to (d); and (2) comprised in khud-kasht and "Homestead". To attract cl. (c) of s. 5,
the tank must be shown, in the first instance, to be on occupied
land. that is, on land comprised under the tenures enumerated in
sub-clauses (a) to (d) or in the land held as khud-kasht and
homestead. In our opinion, it is not necessary that the entire tank
should be exclusively situated in one or other ot the tenures
enumerated in sub-clauses (a) to (d) of s. 2(1) (ix) or exclusively
in the land held as khud-kasht and land comprised in homestead.
The requirement of the tanks in question being on occupied land,
will be satisfied even if part of the tanks is situated in one or other
of the tenures mentioned in sub·clauses (a) to (d) of cl. (ix) of
s. 2 (1) and the rest of it is included in the land held as khudkasht and land comprised in a homestead. That is, the entire area
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of the tank must be comprised in either the tenures or the khudkasht and homestead or in both. Therefore, it is not possible to
accept the contention advanced on behalf of the appellant State , G
that only those tanks, which are on khud-kasht land of the Jagirdar
nre saved to him.
Acceptance of such a contention will be ignoring the clear wording of cl. (ix) of s. 2 ( 1), which take> in also
lands held on the various tenures referred to therein.
From this, it follows that the mere fact that a part of the tanks
is in the occupation of the tenants as tenure-holders does not detract from operation of the saving cl. ( c) of s. 5. There is no
controversy that at the material date the occupied lands on which
H
A
B
c
D
M.P. STATE v. D. K. JADHAV (Vaidialingam, J.)
&i3
tanks are situated belonged to,or were held.by the Jagirdar or any
other person. The expression "any other person" is comprehensive
enough to take in the persons _who were holding t'1.e land on one
or other of the tenures enumerated in sub-clauses (a) to (d) of:;.
2(1 )
0 (ix) of the Abolition Act. Whatever may be the extent of
the tanks in the possession of the respondent, as his khud-kasht or
homestead and in the possession of the tenure-holders, the position
ultimately. is, that the entire extent of the tanks is in ''occupied
land" belonging to or held by the Jagirdar or any other person.
The actual extent and the area held by the J agirdar and the tenure·
holders can be worked out only in', the presence of both · those
parties.
To conclude, we are satisfied that the High Court has applied
the correct test to find out whether the tanks are saved under s.
5 ( c) of the Abolition Act. We are also in agreement with the
finding of the High Court that the four tanks and the pick-up
weir are saved lo the respondent under s. 5 ( c) of the Abolition
Act.
In the result, the judgment and order of the High Court are
confirmed and this appeal dismissed with costs.
G. C.
_Appeal dismissed.