1. This judgment will also govern Second Appeal No. 105 of 1954.
2. These two second appeals arise out of two suits instituted by the plaintiff-appellant for possession of certain sites situate in a former Izara village which were leased by him to respondent No. 1 in each of the two appeals or their predecessors-in-interest.
3. The only question which arises for decision is whether under Section 5(a) of the M.P. Abolition of Proprietary Rights Act, 1950, the appellant is entitled to be in possession of these sites despite the fact that they have vested in the State. Section 5(a) runs thus:
Subject to the provisions in Sections 47 and 63:
(a) All open enclosures used for agricultural or domestic purposes and in continuous possession for twelve years immediately before 1948-49 ; all open house-sites purchased for consideration ; all buildings ; places of worship ; wells situated in and trees standing on lands included in such enclosures or house-sites or land appertaining to such buildings or places of worship ; within the limits of a village site belonging to or held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person, as the case may be ; and the land thereof with the areas appurtenant thereto shall be settled with him by the State Government on such terms and conditions as it may determine;
Relying upon the portion italicized by me, Shri Abhyankar who appears for the appellant, contends that these sites unquestionably belonged to the appellant before the date of vesting and, therefore, it is the appellant who was entitled to the possession of those sites. He concedes that the State Government has to settle these sites with the out-going proprietor. But according to him, even before such settlement is made, an ex-proprietor has a preferential right to the possession of the sites over his lessee.
4. It seems to me that the argument of Shri Abhyankar is mis-conceived. The meaning of the portion which is italicized by me is not that every site situate within the limits of a village shall continue to be in possession of the out-going proprietor provided it belonged to him or was held by him on the date of vesting. This portion has to be read along with the rest of Clause (a) of Section 5. If the whole of Clause (a) is read together, it would be apparent that the portion italicized governs all that precedes it. If the clause were not read together then it will be taken to be incomplete as to the location of the particular kinds of properties which are referred to in the earlier part of the clause. Again, if the interpretation of Shri Abhyankar were to be accepted there will be no propriety in saying specifically that all open house-sites purchased for Consideration shall be settled with the ex-proprietor because even such sites would be included within the kind of property dealt with in the portion italicized as interpreted by. Shri Abhyankar. The proper way to read the section would, in my opinion, be this:
An out-going proprietor or any other person shall continue to own or to hold 'all open enclosures.places of worship' situate within the limits of the village-site, belonging to or held by the out-going proprietor or any other person on the date of vesting, and that such person shall be entitled to have 'the land thereof etc'. settled with him by the State Government on such terms and conditions as it may determine.
The expression 'village-site' has been defined in Section 2(q). The relevant portion of the definition reads thus:
village site means
(iii) in relation to Berar, an area reserved at the time of settlement for the residence of the inhabitants or for purposes ancillary thereto.
It would, therefore, be clear that the property of which ownership or possession was intended to be continued with the out-going proprietor should, in the first instance, be situate within the limits of a village site, secondly, it should belong to or be held by the out-going proprietor or other person on the date of vesting and, thirdly, it should be either an open enclosure used for agricultural or domestic purposes, or open house-site purchased for consideration or a building, or a place of worship, or a well or tree standing on the land.
5. In the instant case, it is clear that the land of which possession is claimed is not an open house-site purchased for consideration by the appellant. The lower appellate Court has held that the appellant was the owner of the site on the date of vesting (in the sense that it formed part of the village site which appertained to the village which belonged to him), but the fact remains that he did not 'hold' the land on that date as he was not in possession thereof. The respondent held it as he was in its possession as of right. Under Section 5(a) of the Madhya Pradesh Abolition of Proprietary Eights (Estates, Mahals, Alienated Lands) Act, he is entitled to have it settled with him by the Government. It is not necessary for me to consider here whether the appellant, having been found to be the owner thereof on the date of vesting, is entitled to exercise a right to possession based upon his ownership for the simple reason that until and unless he got the land settled with him, as an owner, by the Government under Section 5(a), he is not entitled to enforce any right with regard to it. Indeed, it is conceivable that if both parties apply to the State Government under Section 5(a) it may, in ease the appellant's right of ownership has not been extinguished by the operation of the law of limitation, so settle the land as to keep intact the appellant's right of ownership as well as the respondents' right to remain in possession subject to appropriate terms and conditions. The appellant was, therefore, not entitled to the possession of the site in suit, at any rate, on the date of suit.
6. For these reasons I uphold the decrees of the lower appellate Court and dismiss each of the appeals with costs.