1. This appeal has been field by the original defendants against the judgment of a Single Judge of this Court dated 14th and 15th December, 1966, whereby the learned Judge dismissed the Second Appeal No. 23 of 1961 and affirmed the decree for possession passed in favour of the original plaintiffs, the respondents herein, in First Appeal No.1 37 of 1960 by the Assistant Judge, Khamgaon.
2. The respondents (plaintiffs) filed this suit praying for a decree for possession of the fields which, admittedly, were in the possession of the defendants. The material plea raised was than that suit field being survey Nos. 28, 29 and 30 of mouza Pingi-Jahagir, a village in Jalgaon taluq, were held from the former Government by the forefathers of the plaintiffs as a subsistence grant for the maintenance of the family of Jahagirdar in perpetituty governed by Class 1 of Rule III of the Bearer Inam Rules. These were owned and possessed by one Trimbak s/o Renukadas Jahagirdar in proprietary rights. The said proprietor died on May 30, 1944, leaving a son Janardan. Janardan also died on September 1, 1947 and he was succeeded by the mother Umabai, the plaintiff No. 2. plaintiff No.1 was adopted by Umabai and, therefore, he claimed this grant and thus both sued for possession.
3. It is the case of the plaintiffs themselves that said Umabai had sold all these three fields to defendant No.1 Parwat under a registered deed fo sale of possession, as such. After this sale and parting of possession, according to the plaint allegation, plaintiff No.1 was taken in adoption.
4. The plaint alleged that the suit land being the personal jahagir under Class I, was governed by Rule III of the Bearer Inam Rules and was inalienable. The alienation effected by Umabai conferred no right or title whatsoever on defendant No.1 or through him on other defendants. It is not the plaintiffs' case that this land was either at any time cultivated personally by them after 1948 or leased out to any one for cultivation. The case on the other hand is that the plaintiffs were out of possession since the time of sale-deed i.e. March 15, 1948 and the cause for suit was only that the transfer was void under Bearer Inam Rules.
5. It may be mentioned that this suit itself was file don January 31, 1958, i.e. after the coming into force of and abolition of all the proprietary rights, by Act No.1 of 1951, Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 1950 (hereinafter for brevity' sale called the Act) under which all the proprietary rights stood divested and further vested in the State. As far as Bearer is concerned the Bearer Inam Rules stood repealed and none could claim any right under these Rules after March 14, 1951, the date of vesting under the Act. Thus a suit filed in 1958 must decide the right or title saved under the provisions of the Act and not what was available under the repealed Rules. Only lands saved by the Act to the erstwhile proprietors could therefor be claimed in personal rights after March 14, 1951. The plaint, surprisingly however is silent as to the status claimed by the plaintiffs though it is plain that the inams and proprietary rights stood long back abolished. It is nowhere pleaded that plaintiffs had nay subsisting right to repossess the land, in as any particular title.
6. What is of interest is the written statement. The written statement after admitting the basic facts relating to inam and jahagir denied that Umabai was in actual possession of the fields at any time. It further alleged, with reference to para 8 relating to possession upon the transfer-deed that the defendants took possession of the land from one tenant named Kisan Banduji who had in his possession a lease deed of April 23, 1946 for four years and the defendant No.1 got the lease surrendered in his favour and obtained actual possession after the sale-deed. Thus both plaintiffs and defendants were agreed that the lands were in possession of defendants since nearly 1948 under a transfer effected by Umabai. The nature of the estate held by Umabai was denied by the defendants, so also the plea as to its inalienability. It was asserted that at any rate, plaintiffs cannot recover back the fields during the lifetime of Umabai. In the special plea, it was stated that upon abolition of proprietary rights under the Act, the plaintiffs lost all their interest in the fields as under the Act the fields were not home-farm lands of the Jahagirdar; they were not in actual possession thereof but the defendant No.1, who being in possession had become the occupant under the provisions of Section 68 of the Act. The land was put to partition amongst the defendants and fell to the share of defendants Nos. 2 to 4, and the State further recognised the right of defendants in Bhumidhari tenure since October 1, 1955 and thus defendants are holding the land from the State in their own right and title. The plaintiffs' claim to entitle them to possess the land in suit was thus totally denied. Though this type of plea was raised that the plaintiffs had no right to possess and further defendants were tenure holders from the State the plaintiffs did not explain how they claim the suit-right nor sought to bring before the Court, the State who alone could claim all lands formerly held by the proprietors.
7. Upon these pleadings of the parties and the position of the law that was available in the year 1958, the only real and germane question that could fall for consideration was the right fo the plaintiffs to get such a decree for possession after the passing of the Act for, admittedly, the land was held in proprietary rights and could only be claimed if it is saved under the Act. Plaint in fact did not disclose any material to this effect nor any proper cause of action was pleaded with reference to relevant facts.
8. However, to follow the history of this litigation till the stage of this appeal we may briefly refer how the matter was understood and so far tried. The first Court, i.e. the Joint Civil Judge, Khamgaon, raised issues on these pleadings including the issue whether the lands were home-farm lands of Trimbak and his heirs and also the issue whether they had any subsisting rights to claim possession. On these main issues, he recorded a finding against the plaintiffs. He also answered in favour of defendant No.1 as he was of the view that after the passing of the Act, rights of Government lessee in Bhumidhari tenure have been conferred upon defendant No.1. Upon the issue of legal necessity for transfer by Umabai, he answered it in the affirmative. But having held that plaintiffs were not entitled to any relief, he dismissed the suit.
9. In the appeal taken by the plaintiffs, somewhat different shape was taken by this litigation and the learned first appellate Court addressed himself broadly to two questions as to whether the plaintiffs proved that the suit lands were home-farm lands within the meaning of Section 2 (g) (3) of the Act held by the plaintiffs on 1st of October, 1949 and further whether the suit lands have become the occupancy lands under Section 68 (1) of the said Act.
10. For the purpose of considering these two main questions as are styled by the first appellate Court, it appears that the learned Judge took into account the evidence and the nature of the inam held by the predecessor of these plaintiffs. He negatived the plaintiffs' own case that the document of lease was that of a loan and acted upon the alleged admission of the defendants that it was a lease proper. He also recorded a finding that though the plaint alleged that actual possession was handed over to defendant No.1 on March 15, 1948, on the own showing of the defendants they were not physically put in possession but it must be according to the learned Judge, through the lessee they inducted themselves on the land. On that footing the learned Judge came to the conclusion that Kisan and plaintiff No.2 were having relationship of lessee and lessor and as such lessee's possession must be taken to be for four years and therefore the property answered the definition of 'home-farm' under Section 2 (g) (3) of the Act. In that circuitous manner, the learned Judge construed the rights of the plaintiffs applying Section 68 of the Act to find that they would be entitled to recover possession of the lands from the defendants in spite of the declaration in their favour as occupants; for the original transfer was itself void.
11. Ex facie these findings are not supportable by any acceptable pieces of evidence. Plaintiffs themselves had come out with a case that they parted possession in favour of defendants in the year 1948 itself. Defendants had taken the plea that they got such possession from Kisan in that year itself. There is no evidence at all to find that Kisan held the land after 1948 as a lessee. Only because there is a lease-deed of 1946 for four years, that does not lead to the conclusion that Kisan was on the land during the entire period. Plaintiffs were styling that lease as a loan and had pleaded that Kisan was not on the land at any time. Defendant No.1 had taken oath that he obtained possession immediately after the purchase in 1948. There was absolutely no evidence, yet to hold that Kisan, as a lessee, was on the land or that he could be the lessee of the proprietor who had transferred the rights.
12. Somehow, the first appellate Court construed the document of lease as an evidence of possession of the lessee of the proprietor for a period of four years. The reasoning and the result both are not supportable by facts available on record. In fact, if the plaintiffs on their own showing had transferred the property to the defendant No.1 under the deed of sale, Kisan, the lessee, would not continue to be the lessee of the proprietor. In law he would be the lessee of the transferee and, therefore, once the transfer which is an admitted position, came into being, defendant No.1 was the person claiming under that transfer. It is crystal clear that the proprietor was not on the land either directly or constructively. The finding recorded, therefore, in the First Appeal on the basis of lease of Kisan to find that the proprietor was cultivating the land through a lessee is, suffice it to say, infirm.
13. In the second appeal before this Court, the matter appears to have been approached from a different angle. The learned Single Judge first took up the point whether the lands in dispute are inalienable lands and for that purpose construed the Bearer Inam Rules, Upon review of decisions, he came to the conclusion that the property governed by the Bearer Inam Rules was inalienable and as such not capable fo being transferred by a sale deed. Upon that he further held that the transfer made by Umabai would be void.
14. The learned Single Judge further considered whether Section 43 of the Transfer of Property Act was available to the transferee and answered it in the negative.
15. Then the question as to whether the property being Inam property, and not being alienable, could still be claimed by the plaintiffs even after the passing of the Act, was taken up for consideration. After construing Section 4 (2) read with the term 'home-farm' in Section 2 (g) (3) and Section 68 together, the learned Judge came to the conclusion that the property could be saved to the plaintiffs if they showed that the suit property was their home-farm land on the 1st day of October, 1949. That is how he approached the findings recorded in first appeal on the defence plea that one Kisan under the lease-deed Exh. D-1 was inducted on the land held and defendant got it from him by surrender. The finding was treated by against the defendants as a finding of fact leaving the lease being for a period of four years given by the proprietor to Kisan. That is how the learned Judge further found in favour of the plaintiffs to hold that it must be Kisan who continued on the land under Exh. D-1 as on October 1, 1949. The defendants took possession of the property under a void transfer and therefore, though there was a transfer in fact, it was the lessee of the superior holder who was cultivating the land under a lease and the property must be treated as 'home-farm'. Upon that view, the appeal of the original defendants was rejected.
16. In this appeal, therefore, it is pointed out that the very approach to the contest between the parties is entirely erroneous. It is submitted that the suit was filed in the year 1958, i.e. long after the Act had come into effect and what is germane in such a suit is to find out whether the plaintiffs who had based their title in the proprietary rights had a subsisting title to possess the land on the basis of which an enforceable decree can be passed by a court of law. It is submitted that the construction placed upon the provisions of the Act is not correct and if those provisions are properly construed, the plaintiffs had no subsisting right to claim any possession of this land. Alternatively, it is submitted that there is no evidence to show, nor there is any pleading from the plaintiffs on the basis of which it could be concluded, that the property in suit was their 'home-farm' immediately before the Act was put into effect. The view taken by the learned Single Judge that there was any finding of fact was plainly incorrect. It was submitted that provisions of Section 43 of the Transfer of Property Act were also attracted and the judgment under appeal contains apparent errors of law and basic approach.
17. As against this, it is submitted on behalf of the plaintiffs that though plaintiffs have not specifically pleaded any lease and have tried to put up a case of a loan transaction with Kisan, what has been found upon the defendants' plea is that Kisan was inducted on the land under a lease and he must be presumed to be on the land continuously during the tenure of that lease.
18. If we can answer the first question raised as to whether the plaintiffs had any subsisting right after the coming into force of the Act in the negative, then no other question need be considered in this appeal.
19. As we have indicated above, the plaint in this case is entirely based on the rights which were possessed by Trimbak s/o Renukadas in his proprietary status. Except stating that Janardan died on 1-9-1947 and was succeeded by his mother Umabai, who cultivated the land as owner, no further allegations are made. In fact, it is admitted in the plaint-submission that the property in suit was delivered in the possession of defendant No.1 Parwat on March 15, 1948, under a registered sale deed. The plaintiffs do not plead any lease nor any personal cultivation even with reference to the year 1949.
20. The defendants, on the other hand, had clearly stated, as a matter of plea, that under the sale-deed they obtained the actual possession of the property immediately thereafter from one Kisan who had taken a lease on April 23, 1946. As we have indicated earlier the parties were not at issue as to the possession of plaintiffs in any manner in 1949 or thereafter. Admittedly it was defendant No.1 who claimed to be in possession either by himself or through Kisan. So the narrow question was whether plaintiffs could at all be in possession after 1948 so as to claim the property as 'home-farm.'
21. The state of affairs as to the possession and the cultivation pleaded by the parties was that Umabai handed over under a deed of sale the possession of the property on March 15, 1948 itself. The evidence on this point which may briefly be noticed is only to this extent that defendant No.1 stated that after the purchase he entered into possession of the property immediately. That would show that as to the field property in suit, the defendant No.1 and thereafter defendants Nos. 2 to 4 were in possession under a transfer deed which was the subject-matter of litigation. There was no proof therefore as to the possession either of Umabai or of Keshao, both the plaintiffs, nor on their behalf, by any tenant or a lessee.
22. These facts found on record and which are more or less admitted by the parties have all the relevance while applying the law as to find out the rights of the plaintiffs. The observation by the Leonard Single Judge that the matter could rest with what the first appeal Court has stated is not proper, as we have indicated that basically there is no pleading nor any proof. Mere inference and that too erroneous drawn by the Court of fact cannot bind the judgment in second appeal. That takes us to consider as to what was saved by the Act after it was applied.
23. The provisions of the Act were made applicable to the area of erstwhile Bearer by a notification of March 14, 1951. That Act firstly provided for acquisition of the rights of proprietors in estates, Mahals, alienated villages and alienated lands in the entire State of Madhya Pradesh and with that view made certain declarations. Section 3 enacted that save as otherwise provided in the Act on and from the date specified in a notification by the State Government in that behalf, all proprietary rights in any estate mahal alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances. Sub-section (2) in emphatic terms declared that after the issue of such notification, no right shall be acquired in or over the land to which the said notification relates, except by successor or under a grant or contract in writing made or entered into by or on behalf of the State; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf. The provisions of Section 3, therefore, are clear and clean in contemplation and peremptory in their effect. On the one hand all the proprietary interests have been completely extinguished and effaced; and at the same time the same stood conveyed and vested in the State. Hereafter i.e. from the notified date none can claim as a proprietor any interest, right or title in any form of property. This full sweep or take over did not however operate on certain defined rights in property which this enactment continued with the erstwhile proprietors or superior holders. For this specific provisions were thought of which are in the nature of exceptions to the superimposed title of the State. These provisions may be styled as permissive possessions in favour of ex-proprietors and it follows that whosoever claimed under these savings must plead and prove how his interests were saved.
24. Section 4 of the Act laid out the consequence of the vesting. It is a follow-through provision to the declaration made by Section 3 and states in unambiguous terms that save as otherwise provided in the Act, the consequences as set forth therein shall, from the notified date ensue. Then the section goes on declaring that all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor shall cease and be vested in the State for purposes of the State free of all encumbrances. Similar declarations are made with respect to grants and confirmation of title of or to land in the property and also relating to rents and ceases in respect of any holding after the date of the vesting. Provision is specifically made with respect to arrears of revenue ceases or other dues in respect of the property vested in the State and the property is taken over by the State free of all encumbrances and the interest so acquired by the State was to be possessed by the State and it was d declared that it was not liable to be attached or sold in execution. Thus the provisions are ample and emphatic. They put under eclipse all the proprietary interests in properties in all its known forms.
25. Sub-section (2), however, of Section 4, creates one of the exception and saves certain properties to the erstwhile superior holders. That sub-section being material in this controversy may be extracted.
'4. x x x x
(2) Notwithstanding anything contained in sub-s (1). the proprietor shall continue to retain the possession of his home-stead, 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.'
If this sub-section were to apply it is plain that the proprietor is enabled to retain the possession of his home-stead or home-farm land only. The words are not at all ambiguous and clearly indicate that what can be retained must be in the possession of the proprietor as home-stead or home-farm land on the date of vesting. The words 'shall continue to retain' are indicative of the legislative intent and takes in a state of possession with the proprietor of his home-stead or home-farm. This phrase contemplates and permits a continuity. Possession, for the purpose of retention, must be present and not past. Only that home-farm or home-stead which answers possession in presenting alone can be continued. This provision will only operate in favour of those proprietors, who had on the date of vesting home-farm lands in their possession properly and how therefore had right to possess such lands even after the date of vesting. The first test that must be satisfied with respect to the proprietor's right is that he had a possession which law can conceive of and which can be therefore continued. What kind of possession is contemplated may be answered with reference to the other words used by this sub-section. That has something to do with definition clause of the Act.
26. Now, what is a home-farm land That must be decided with reference to Section 2 (g) (3) itself. The term 'home-farm' has got certain special meaning for the purpose of the Act and legislative definition alone can be sure guide in that behalf. In other words, there is a dictionary provided as to the meaning of that term by the Act itself, and if that meaning is read in sub-section (2) of Section 4, what types of land are saved becomes lustrously clear.
27. Section 2 (g) (3) of the Act reads as under :-
'2. X X X X
(g) 'home-farm' means -
X X X X
(3) in relation to Bearer, 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 tenant from the superior holder; and
(iii) held by a tenant from the superior holder other than a specified tenant.'
Now, this definition is positive in content. It enumerates conditions with reference to land, which could be treated as home-farm at the time when vesting takes effect. The land to be a home-farm, must answer this description to be within the provisions of sub-section (2) of Section 4. That land which is on the date of vesting in personal cultivation of the proprietor or under a lease given by the superior holder or held by the tenant only can be called home-farm. This state of affair must be available on the date of vesting so as to be continued even in spite of such vesting. It is plain that in no other case the land can be called as home-farm for the purpose of saving under Section 4 (2) of the Act.
28. As we have seen above, in this case, there is even not a whisper that when this Act came into force, this was a land which could answer the description of 'home-farm' in any of the three ways and as such can be continued as 'home-farm' of the plaintiffs. What is being sought after is a lease of 1946. In fact, even on the plaintiffs' own case they lost possession of this property in the year 1948 and had handed over the property under a deed of transfer to the defendants. It is nobody's case that the defendants were on the land either as lessees or tenants. It is on the other hand a case pleaded by the plaintiffs that the defendants were inducted under a void sale. Land parted by proprietor under any other device excepting as spoken of by Section 2 (g) (3) (ii) and (iii) cannot be treated as home-farm. In such matter it does not fall for consideration whether the device was valid, void or violable at the instance of such a party. Assuming as was argued that the defendant No.1 took a void transfer and entered upon such possession that does not turn the land into a home-farm of the proprietor. What is purported to pass on to defendant No.1 in such a case is a right in ownership. Upon a finding that transfer was void or violable different questions as to rights or obligations between parties may ensue and in a given case such a possession may be treated as that of trespasser. Still, however, that is not what the saving sub-section requires. Only if the land is in personal cultivation or is in possession of lessee or a tenant then and then only that provision would be attracted and in all other cases the matter rests with sub-section (1) of Section 4 in that the rights properly pass to the State effacing as complete as possible all roots and stocks of proprietary interest. We do not think that on the plain reading of these sections any other inference is possible.
29. The result, therefore, would be that the right claimed in suit properly cannot be saved by referring to the provisions of Section 4 (2) of the Act. It is elementary in such matters that those who claim the benefit of such an exception must plead and prove the same. No such effort is evinced by the plaintiffs who came to Court for such a relief. It is plain that the plaintiffs failed to establish that they were holding the suit property as home-farm land on the date of vesting and that they were therefore entitled to continue to retain the possession of that home-farm and as such had a title to claim relief of possession in 1958. If they fail on this basic issue, they must fail in the suit itself.
30. However, some confusion appears to have entered in the reasoning of the lower Courts because of the provisions of Chapter VIII of the Act and impels use to briefly review the same.
31. Now as the scheme of the Act is this Chapter has nothing to do with the vesting and divesting; or the enabling exemptions and eminent exceptions case in the framework of this statute. Chapter II is relevant for this purpose. Firstly, the Act in no uncertain terms states its purpose and then gives its own dictionary which includes all the terms like 'home-farm', 'home-stead' 'land', 'mahal', proprietor' etc. completely defined except wherever context otherwise requires. Section 3 vests all the proprietary rights in the State. Section 4 lays down the consequences of such vesting and creates certain eminently clear exceptions. Section 5 similarly declares certain properties to continue in possession of proprietor or other persons. Section 7 directs that a Deputy Commissioner shall take charge of all lands other than occupied lands and home-stead and of all interests vesting in the State under Section 3. That is how the vesting is complete. So whatever interest or land is to be saved from the sweep of this vesting must find place in the four corners of Chapter II itself. What is provided thereafter in the scheme of this Act is how the lands either so vested or so excepted should be assessed and settled with several persons. In other words, the other Chapters of this Act are mainly the details of working out of the rights of persons or occupants who either continue to hold the property under the provisions of Chapter II or upon whom such property is settled after such vesting. If no property is retained under the provisions of Chapter II by any one or settled after such vesting, further consequences of conferring tenures or imposing assessment etc. do not ensue.
32. Chapters III to V deal with compensation payable to those who are divested along with determination of debts due. Then follow three Chapters relating to management and tenures of land in the Central Provinces, in the merged territories and in Bearer. Section 68 forms part of Chapter VIII, which relates to management and tenures of lands in Bearer. It contains a statutory declaration that from the date of vesting all lands in Bearer shall be classed as unalienated lands in accordance with the provisions of Section 68. Section 68 (1) speaks that the home-farm land held by a superior holder or the land held by a plot-holder on the first day of October 1949 shall on and from the date of vesting be held by him as an occupant and he shall subject to any orders which may be passed under Section 7 of the Central Provinces and Bearer Revocation of Land Revenue Exemptions Act, 1948, be liable to the fair assessment thereon. Now this provisions itself shows the legislative purpose. If the land is so held, then it makes the holder of the land an occupant. It speaks of a continued condition of land with reference to the date of vesting. This provision has nothing to do with the vesting or divesting of the property which is the subject-matter, as we have indicated above, of Section 3 and Section 4 read with the exceptions provided by sub-sections (2) and (3) thereof. This provision enables those superior holders whose property is saved to hold it as occupants of the property. Similarly the provision of Section 70 relates to management of alienated villages through agency. So this group of Sections 66, 67, 68, 69 and 70 is merely meant to indicate how the properties shall be managed and held after vesting by occupants of land. By the aid of Section 68, therefore, the Court cannot be asked to construe the pre-eminent provisions of Sections 3 or Section 4 of this Act and carve out new exceptions. That is surely not the purpose of Section 68. What has happened however in this case is that the right of the plaintiffs has been found with reference to Section 68, be referring to the date mentioned in that section. In fact that date shows that once the existing home-farm or home-stead is saved to the land-holder his right of occupancy can relate back to October 1, 1949. For the purpose of his rights as to his tenure and assessment that date as far as Bearer land was concerned has a material bearing for Revocation of Land Revenue Exemptions Act, 1948 had made all lands liable to assessment of revenue. That does not create a new saving of lands. Only because land was personally cultivated on October 1, 1949 or leased or tenanted on that date it is not saved. What is material is the vesting and notified date when the right and its savings take effect. Those are stated above and are all dealt with in earlier Chapter and in this case by Sections 3 and 4 along with defining section relating to 'home-farm'. so read and so found, the present plaintiffs can succeed only if the land in dispute was their home-farm land when the vesting took place and as such they had the right to continue to possess the same. Application of Section 68 is neither relevant nor necessary. As, we are of the view the plaintiffs have not proved by any plea or proof the conditions of Section 4 (2) of the Act upon which alone reliance is placed for their right to sue, they cannot maintain any such actin; and were liable to be non-suited.
33. The result would be upon this finding the suit property, which was admittedly Inam property governed by the Inam Rules in Bearer would not be the property of the plaintiffs, for there is nothing to show that it was their home-farm. That conclusion is sufficient to dismiss the plaintiffs' claim being one for possession.
34. We find therefore that the plaintiffs were not entitled to any decree for possessing the suit-lands. That being the position, we are not inclined to enter upon the question as to the inalienability of the Inam rights or the properties held by the predecessor of the plaintiffs as Jahagirdar. Similarly, we are not inclined to enter upon the question whether the transfer admittedly made in favour of the defendant No.1 was void or violable or Section 43 of the Transfer of Property Act is attracted.
35. In the result, therefore, this appeal would be allowed and the suit of the plaintiffs would stand dismissed. The cross-objection filed on behalf of the plaintiffs would also stand dismissed. The defendants would be entitled to costs throughout.
36. Appeal allowed.