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Gajanan Dhundiraj Deshpande Vs. Shridhar Moreshwar Deshpande - Court Judgment

LegalCrystal Citation
SubjectProperty;Tenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 49 of 1955
Judge
Reported in(1959)61BOMLR170
AppellantGajanan Dhundiraj Deshpande
RespondentShridhar Moreshwar Deshpande
DispositionAppeal allowed
Excerpt:
madhya pradesh abolition of proprietary rights (estates, mahals, alienated lands) act (i of 1951), sections 4(1) & (2), 38(1) & (2), 2(g), 3(1)-central provinces land revenue act (ii of 1917)-central provinces tenancy act (i of 1920)-home-farm land held as khudkasht and in possession of persons on date of vesting under act i of 1951-title of other per sons in such land subsisting at time of coming into force of act-whether title of such persons affected by act-dispute as to title to land how to be decided.;under the madhya pradesh abolition of proprietary rights (estates, mahals, alienated lands) act, 1950, where a home-farm land stands in the name of certain persons as khudkasht land and is in their possession on the date of vesting under the act, the rights and interests of.....gokhale, j.1. these two second appeals are filed by the original plaintiff against the dismissal of his two suits by both the lower courts. the few facts which it is necessary to state for appreciating the points involved, in these appeals are as follows:-2. moreshwar and gajanan were brothers and they were co-sharers in two villages of nandora and tuljapur. it appears that on may 14, 1930, there was a partition between these two brothers with respect to the home-farm lands in possession of their family, but the proprietorship in respect of these two villages was not partitioned. moreshwar, the elder brother, acted as the lambardar in both these villages. in 1931 pre-emption proceedings were started by moreshwar with regard to field no. 17 of nandora. these proceedings lasted for five.....
Judgment:

Gokhale, J.

1. These two second appeals are filed by the original plaintiff against the dismissal of his two suits by both the lower Courts. The few facts which it is necessary to state for appreciating the points involved, in these appeals are as follows:-

2. Moreshwar and Gajanan were brothers and they were co-sharers in two villages of Nandora and Tuljapur. It appears that on May 14, 1930, there was a partition between these two brothers with respect to the home-farm lands in possession of their family, but the proprietorship in respect of these two villages was not partitioned. Moreshwar, the elder brother, acted as the lambardar in both these villages. In 1931 pre-emption proceedings were started by Moreshwar with regard to field No. 17 of Nandora. These proceedings lasted for five years from 1931 to 1936, and ultimately in January 1936, field No. 17 was acquired by Moreshwar as a result of these proceedings. In 1937 a portion of two acres out of field No. 34/1 situated in mouza Tuljapur was acquired by Moreshwar in ejectment proceedings against one Wajirkhan. This Wajirkhan held at mouza Tuljapur three fields, namely, Nos. 34/1, 36/1 and 52. Field No. 34/1 consisted originally of 12.60 acres, but as I have already stated, two acres out of it were obtained by Moreshwar in ejectment proceedings against Wajirkhan. Subsequently, by two surrender deeds dated April 16, 1937, and November 12, 1937, Moreshwar acquired the remaining land in field No. 34/1, with the result that field No. 34/1 came to be recorded as 34/1 and 34/8. These two fields were known as khari lands. Field No. 16/2 at mouza Nandora was acquired by Moreshwar in ejectment proceedings on October 14, 1938, from its tenant Balaji. Then on November 27, 1940, under a surrender deed Moreshwar acquired the Bhivesni lands, namely, fields Nos. 36/1 and 52 situated at mouza Tuljapur. As I have already stated, the lands at mouza Tuljapur originally were owned by 'Wajirkhan, and despite the fact that Moreshwar acquired all his lands under separate proceedings, there were disputes between Moreshwar and Wajirkhan resulting in proceedings under Section 145 of the Code of Criminal Procedure. But these disputes were regarding khari lands only, that is to say, fields Nos. 34/1 and 34/8 only and they ended in favour of Moreshwar on September 6, 1938. So far, therefore, as the chapter of acquisition of lands by Moreshwar as lambardar was concerned, that chapter closed in 1940. Moreshwar had two sons, Waman and Shridhar, and it appears that Shridhar attained majority sometime before 1942 and he filed a suit for partition against Moreshwar and Waman, being Civil Suit No. 17-A of 1942. Gajanan, the separated uncle, was, it appears, helping Shridhar in this suit and that suit resulted in a compromise. The result of that compromise was that fields Nos. 16/2 and 17 of the village of Nandora were allotted to Waman, while fields Nos. 34/1, 34/8, 36/1 and 52 of mouza Tuljapur were allotted to Shridhar. Moreshwar seems to have died on December 27, 1943, and the fields which had been allotted to Waman and Shridhar in the partition suit came to be respectively entered into their names in the records of the two villages. Nothing happened thereafter till 1952 when Gajanan, the present appellant-plaintiff, filed the two suits, being Civil Suits Nos. 62-A of 1952 and 63-A of 1952. Suit No. 62-A was filed by him against Waman claiming partition and separate possession of half share in fields Nos. 16/2 and 17 of mouza Nandora, and suit No. 63-A was filed by him against Shridhar for partition and separate possession of his half share in fields Nos. 34/1, 34/8, 36/1 and 52 situated at mouza Tuljapur. It is out of these suits that the present two appeals have arisen. Second Appeal No. 50 of 1955 having arisen out of original civil suit No. 62-A of 1952 and Second Appeal No. 49 of 1955 having arisen out of civil suit No. 63-A of 1952. As these two appeals raise common questions, this judgment will govern both of them.

3. These suits came to be filed by the plaintiff on the basis that being a co-sharer with Moreshwar in the two villages of Nandora and Tuljapur, and as Moreshwar had obtained these suit fields by ejectment, surrender and preemption proceedings, they were held by Moreshwar on behalf of the proprietorship belonging to-himself and the plaintiff, and these field came to be entered in the name of Moreshwar as his khudkasht lands and the plaintiff was, therefore, entitled to claim partition and separate possession of i share in all these fields. The suits were resisted by the defendants in the two suits, Waman and Shridhar, on several grounds. But the principal contentions of the defendants were that the plaintiff had refused to pay his contribution for the acquisition of these fields; that the fields were possessed by Moreshwar, and after his death, as a result of the partition, by the defendants as their own khudkasht lands, and the plaintiff was, therefore, not entitled to any share therein. They also alleged that the plaintiff was excluded from enjoyment of these fields, and, therefore, even assuming that he had any original title, that was lost by adverse possession. They also pleaded that the plaintiff was estopped from claiming any share in the property because he had taken an active part in helping Shridhar in Civil Suit No. 17-A of 1942 representing to the defendants that these fields belonged to them only. These were the principal defences to the suit on facts.

4. A point of law was also raised by the defendants and that point was that as a result of the Madhya Pradesh Abolition of Proprietary Eights (Estates, Mahals, Alienated Lands) Act, 1950 (I of 1951), hereinafter referred to as the Abolition of Proprietary Rights Act, the proprietorship in the two villages had ceased, and as the plaintiff had ceased to be a proprietor, he could not file a suit for partition and separate possession of these fields.

5. The trial Court came to the conclusion that the plaintiff's suit was not barred by virtue of the Abolition of Proprietary Eights Act which came into force on March 31, 1951. It, however, held against the plaintiff on issues of fact and came to the conclusion that the plaintiff had refused to contribute towards the cost of acquisition in respect of field No. 16/2 and also held that the plaintiff was estopped from claiming a share by virtue of the part that he played in the partition suit between Waman and Shridhar. It also found that the plaintiff had been ousted by the defendants for the requisite period, and, therefore, the plaintiff's suit for partition was barred by limitation. On these gounds, amongst others, both the suits were dismissed by the trial Court. The plaintiff filed two appeals against this decision. Civil Appeal No. 51-A of 1953 was filed by him against the decision in Civil Suit No. 62-A of 1952, whereas Civil Appeal No. 52-A of 1953 was filed by him against the decision in Civil Suit No. 63-A of 1952. Both these appeals were disposed of by a common judgment by the learned District Judge at Wardha, who found as a fact that the plaintiff had never been approached for contribution for expenses of acquisition of the suit fields and that there was no estoppel against the plaintiff as alleged by the defendants and also no question of the defendants having acted upon any representation on the part of the plaintiff. The lower appellate Court also came to the conclusion that since the acquisitions were by Moreshwar as lambardar, the plaintiff would be entitled to his share as a co-sharer in respect of these fields and no ouster was proved for the requisite period against the plaintiff by the defendants. But, on the question of law raised by the defendants as regards the effect of the coming into operation of the Abolition of Proprietary Rights Act, the learned Judge was of the view that the plaintiff's suits must fail since the suits were brought by the plaintiff in his capacity as the proprietor of the villages, and that character having been lost by the plaintiff by virtue of the abolition of the malguzari, the plaintiff's claim could not be enforced. That was why, for a different reason, the lower appellate Court confirmed the decision of the trial Court in dismissing the plaintiff's suits. That is why the plaintiff has filed these two appeals.

6. Mr. Mandlekar, learned advocate appearing on behalf of the plaintiff in both the appeals, has contended in the first instance that the view of the lower appellate Court that the suits were incompetent by virtue of the provisions of the Abolition of Proprietary Rights Act is erroneous in law. Mr. Mandlekar also supports the finding fact which were given-in the plaintiff's favour by the lower appellate Court According to Mr. Mandlekar, if the View of the learned appellate Judge as regards the effect of the Abolition of Proprietary Rights Act is wrong, then he must get a decree in his favour in both the appeals. Now, the short argument of Mr. Mandlekar is that what the Abolition of Proprietary Rights Act does is to abolish the proprietorship of villages. It does not affect the private lands belonging to proprietors, nor does it affect their nature. Mr. Mandlekar contended that Moreshwar was admittedly a lambardar of the two villages of Nandora and Tuljapur. Though in 1930 the home-farm lands belonging to the family of Moreshwar and his client were partitioned, there was admittedly no partition of the proprietorship of these two villages. In between the years 1931-40 Moreshwar acquired the six lands in suit in the two villages by surrender, ejectment and pre-emption proceedings, and these he could only initiate as a lambardar acting on behalf of the whole body of the proprietors of the two villages, which consisted of himself and Gajanan, the plaintiff. The lands were, therefore, acquired by Moreshwar not for himself but for the whole proprietary body, and, therefore, the plaintiff got 0/8/0 share in these lands acquired by Moreshwar and he would be entitled to get separate possession of these lands on his paying his share in the expenses incurred by Moreshwar in acquiring these lands. And Mr. Mandlekar contends that there is nothing in the provisions of the Abolition of Proprietary Rights Act which precludes him from filing a suit against the defendants for his share in the suit lands which are home-farm lands. As against this Mr. Bobde, the learned advocate appearing on behalf of the defendants, admits that no doubt Moreshwar instituted pre-emption, surrender and ejectment proceedings as a lam-bardar and, therefore, acquired these lands as a lambardar, and consequently Mr. Bobde says that the plaintiff initially might have been entitled to a share in these lands. But Mr. Bobde contends that after the chapter of acquisition, as he puts it, was over, right from the time when these lands were acquired, Moreshwar remained in possession of these lands and cultivated these lands as his own home-farm lands, and all these lands were entered in his name as kkud-kasht lands. Since the plaintiff could only claim a share in respect of these lands on the basis that he was a co-sharer in the proprietorship of these two villages, and since this proprietorship itself was abolished under the Abolition of Proprietary Rights Act, the lower appellate Court was right in its view that the plaintiff's suits were not maintainable. Alternatively, Mr. Bobde contended that even assuming that the suits were maintainable, the evidence on record was not properly appreciated by the lower appellate Court, and according to Mr. Bobde, the lower appellate Court has erred in law in coming to the conclusion that the plaintiff had not been excluded for the statutory period and that his title to the lands was not extinguished.

7. In order to examine the respective contentions of the parties on the question of the effect of the Abolition of Proprietary Rights Act, it is necessary to refer to some of the provisions of the Central Provinces Land Revenue Act, 1917 (II of 1917), the Central Provinces Tenancy Act, 1920 (I of 1920), and the Abolition of Proprietary Rights Act. There is no dispute that the suit lands are entered in the name of the defendants to the two suits as khudkasht lands. Section 2(5) of the C.P. Land Revenue Act defines a khudkashi land as that part of the home-farm of a mahal which is cultivated by the proprietor as such and which is not sir land. It is not necessary to refer to the two explanations to this definition. Section 2(17) defines sir land, but it is not necessary to refer to that definition either. Section 2(6) defines 'lambardar' as meaning the proprietor of a mahal appointed to discharge the duties imposed on a lambardar by the Act. Section 188(1) enumerates the duties of the lambardar, while Section 188(2)(a) states that the lambardar shall, in the mahal or patti for which he is appointed, be'deemed to be the landlord within the meaning of the Central Provinces Tenancy Act, 1898; and under Clause (d) of Section 188(2), the lambardar has the power, if necessary, to institute suits and take other proceedings relating to the exercise of his powers of the lambardar and against trespassers on the common property. Then we turn to the provision of the C.P. Tenancy Act, 1920. Section 6-A of this Act refers to landlord's right of pre-emption. Sections 23 and 24 dealt with the landlord's right to recover arrears of rent by ejectment of the tenant and the procedure to be followed by a Revenue Officer in execution of a decree for arrears by ejectment. These two sections are omitted by the C.P. Tenancy (Amendment) Act, 1939; but there is no dispute that when Moreshwar filed ejectment proceedings against the tenants, these provisions of the Tenancy Act were in force. Section 89 of this Act refers to surrender of holding by a tenant in favour of the landlord. As I have already stated, the suit lands were acquired by Moreshwar by instituting ejectment and pre-emption proceedings and getting surrender of some of these lands. Under Section 188(2) of the C.P. Land Revenue Act, as already seen, the lambardar is to be deemed to be the landlord within the meaning of the C.P. Tenancy Act, and it is the lambardar who would be taking proceedings and instituting suits on behalf of the proprietary body in pre-emption and ejectment proceedings and getting surrender deeds from the tenants. There can, therefore, be no doubt that when Moreshwar obtained these lands before 1940, lie was acting as the lambardar of the two villages and acquired the lands for the whole body of the proprietors consisting of himself and his brother Gajanan, and since he acquired these lands for the proprietors, Gajanan would be entitled to a share in those lands, subject to his liability to contribute the necessary amount of expenses incurred by Moreshwar; and as I have already stated, Mr. Bobde does not dispute this legal position that so far as the acquisition proceedings are concerned, they were taken by Moreshwar as a lambardar and he acquired these lands for the proprietorship, which consisted of himself and his brother Gajanan. But then Mr. Bobde's contention is that the definition of khudkasht shows that it is a land which is cultivated by the proprietor as such, and, therefore, since Moreshwar was in possession of these lands and cultivating them, and since Gajanan had nothing to do with this cultivation, these lands became the khudkasht of Moreshwar alone, and they were entered as such in the records of the two villages. And Mr. Bobde further contends that since the only title on which Gajanan can base his present suits for partition being that of a co-sharer in the proprietorship of these two villages and since that proprietorship itself has been abolished, the suits are not maintainable. That takes me to the provisions of the Abolition of Proprietary Rights Act.

8. Section 2(g) of the Abolition of Proprietary Bights Act, so far as it is material, states:

Home-farm' means,-

(1) in relation to the Central Provinces-

(i) land recorded as sir and khudkasht in the name of a proprietor in the annual papers for the year 1948-49....

And Mr. Bobde says that so far as the suit lands are concerned, they were entered as khudkasht in the names of Waman and Shridhar respectively in the two villages of Nandora and Tuljapur. But, if they were recorded in the names of Waman and Shridhar in the annual papers for the year 1948-49 as khudkasht, they could only be so recorded in their names as proprietors; and if admittedly in 1948-49 Gajanan was also a co-sharer in the proprietorship of these two villages, the mere fact that these lands came to be entered in the names of Waman and Shridhar would not, in my judgment, affect the rights of Gajanan in these lands. Under Section 3(2) of this Act

Save as otherwise provided in this Act, on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an 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.

By virtue of Section 4(2)(a) when the notification under Section 3 in respect of any area has been published in the Gazette, then,, notwithstanding anything contained in any contract or in any other document, 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. Sub-section (2) of Section 4, however, provides as follows:-

Notwithstanding anything contained in Sub-section (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.

The date of vesting under the Act was March 31, 1951, so that on that date the interest not only of Gajanan but also of the defendants in the proprietorship of the two villages ceased and vested in the State. But that did not lead to a cesser of the interests of these proprietors in their home-stead or home-: farm lands. They continued to have the right to retain possession of their home-farm lands. Now, Mr. Bobde's contention is that if the right of proprietorship ended on March 31, 1951, the Very basis on which the plaintiff claimed to have his right to a share in these lands enforced, ended, so that Waman and Shridhar alone had the right to retain possession of the suit lands which were entered in their names as khudkasht. I am not prepared to accept that contention. As I have already stated, the lands were entered in the name of Moreshwar till the partition suit, and as a result of the partition suit, in the names of Waman and Shridhar, as khudkasht, because they were the proprietors of the two villages. But they alone were not the exclusive owners of these villages but the plaintiff had admittedly an 0/8/0 share in both these villages. The acquisition of lands being for the whole proprietary body, unless it is shown that the plaintiff had lost his right either by adverse possession or by relinquishment or otherwise, it would be difficult to hold that by virtue of Section 4(1) and (2) of the Abolition of Proprietary Rights Act, the plaintiff ceased to have any right to claim a share in these lands. In this connection, reference may be made to the provisions of Section 38 of the Abolition of Proprietary Rights Act. Under Section 38(1) every proprietor, who is divested of his proprietary rights in an estate or mahal, shall, with effect from the date of vesting, be a malik-makbuzcs of the home-farm land in his possession. The C.P. Land Revenue Act, by Section 2(9), defines 'malik-makbuza' as meaning any person who owns one or more plots of land separately assessed to land-revenue in a mahal. Now, Mr. Bobde very strenuously relies on Section 4(2) and Section 38(1) of the Abolition of Proprietary Rights Act, in support of his argument that the plaintiff had no right whatever in the suit lands. According to him, it is Waman and Shridhar, the two defendants in the suits, who continued to have the rights to retain possession of the home-farm land, and Mr. Bobde further contends that under Section 38(1), from the date of the vesting i.e. March 31, 1951, it is the defendants who became the malik-makbuzas of the home-farm lands in their possession. But Mr. Bobde's argument assumes that the entire proprietary rights on the date of vesting were in Waman and Shridhar. That assumption, in my opinion, is entirely erroneous. In this connection, reference may also be made to Sub-section (2) of Section 38 of the Abolition of Proprietary Rights Act, which provides:

If there are more persons than one having interest in land held as sir or khudkasht immediately before the date of vesting, any such person may apply for a partition of his share in the land and the Revenue Officer may, subject to rules made by the State Government in this behalf, after hearing the objection of the co-sharers, divide the land and apportion the assessment:

Provided that no such partition shall be made if any question of title is raised until such question has been decided by a civil Court.Explanation.-For the purposes of the aforesaid proviso, the claim of any proprietor that he holds any land in exclusive ownership or that he had acquired any khudkasht land exclusively for himself shall be deemed to be a question of title.

These provisions would, therefore, clearly indicate that where a home-farm land stands in the name of certain persons, the rights or interests of other persons in this land are not intended to be affected by the provisions of the Abolition of Proprietary Rights Act: they are kept intact; and if any dispute arises as to the title to this land, that dispute has to be settled by the civil Court. It is true that if, before this Act came into force, Waman and Shridhar had obtained exclusive title to these lands as against the plaintiff by virtue of adverse possession, or in any other manner, then under Section 4(2) they would be entitled to retain possession of the home-farm land and they would become malik-makluzas of these lands under Section 38(2) but the coming into force of this Act cannot have any effect on the title of the plaintiff if that title was subsisting at the time when this Act came into force. The trial Court took the view that the plaintiff did not lose his share in the suit lands by virtue of the provisions of the Abolition of Proprietary Rights Act. The lower appellate Court, however, disagreed with the view of the trial Court and relied upon the decision in Chhote Khan v. Mohammad Ohedullakhan [1953] Nag. 702 in support of its view. All that that case decides is that the Abolition of Proprietary Eights Act was not retrospective in its operation, and the majority view was that the landlord's powers to institute a suit for evicting the unauthorised occupant of an abadi site had come to an end by virtue of Sections 50 and 60 of that Act. The only question, that was before the Court in that case was whether the proprietor was entitled to continue the suit filed by him as lambardar after the coming into operation of the Act, and it was held that the office of the lambardar itself having ceased because of the Act, the Us could not be continued by him. Mr. Mandlekar seems to be right in his contention that this case does not come in the way of the plaintiff in the present suits, which are filed by him for enforcing his right to partition and getting separate possession of his share in the home-farm lands. I have already referred to the relevant provisions of the C.P. Land Revenue Act, 1917, as well as the C.P. Tenancy Act, 1920. As Sinha C.J., as he then was, points out in Chhote Khan's case, a lambardar had a duel character. He was an agent of the Government for collecting and paying into Government treasury the Government share in the collections from tenants and he had other duties like assisting Government agents in the mofussil in the discharge of their duties. Secondly, he was the statutory agent of the proprietors of the village. Under Section 188(2)(a) he was deemed to be the landlord, and under Section 188(2)(6) he had to exercise the powers of the proprietors in matters relating to the village abadi and the enjoyment of their rights and privileges by tenants and others over the wasteland of the village including the grazing of cattle thereon. Under Section 188(2)(e) he was empowered to collect village profits and was under an obligation to render an account of the same to the proprietors within six months of the close of the agricultural year. And under Section 188(2)(d), if necessary, he was entitled to institute suits and take other proceedings in relation to the common property of the proprietors. As a lambardar, when he instituted suits for ejectment or pre-emption, or obtained surrenders from the tenants, he did it in his representative capacity. The effect of the abolition of the Proprietary Rights Act is, as Sinha C.J. points out, to wipe out the interest of the intermediaries between the State and the actual tillers of the soil, with the result that the State comes into direct relationship with persons who are in actual occupation of agricultural lands or house-sites and buildings on such house-sites being parts of village sites. The proprietor as the receiver or collector of rent and as lambardar has been abolished under the Act. But that does not mean that he loses all his private rights and it would be clear from Section 4 that lands in his possession such as home-stead and home-farm lands and any claim of money before the date of vesting of the proprietary rights in the State are saved to him. That is the effect of Section 4(2) and (3) of the Abolition of Proprietary Rights Act. Section 5 also saves the outgoing proprietor certain rights including all open house-sites, 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 the village site, though he can hold these lands on such terms and conditions as may be determined by the State. The home-farm lands, therefore, which are in possession of the proprietor on the date of vesting still continue to belong to the proprietor, and if he claims exclusive title to the khudkasht lands which stand in his name and that claim of his is challenged by the other ex-proprietors, then that would be a question of title which will have to be decided by a civil Court as contemplated under Section 38 of the Act. As I have already pointed out, under Sub-section (2) of Section 38, if there are more persons having interest in the land held as sir or khudkasht immediately -before the date of vesting, any such person may apply for a partition of his share in the land and the Revenue Officer may, subject to rules made by the State Government in this behalf divide the land and. apportion the assessment. But, if a question of title is raised, no such partition shall be made unless that question is decided by a civil Court. In my opinion, therefore, the case relied upon by the lower appellate Court has no application to the facts of this case.

9. Mr. Mandlekar also relied upon a recent decision of the Nagpur High Court in Rahmatullah Khan v. Mahabir Singh [1955] Nag. 983 where the majority of the Judges held that the Abolition of Proprietary Rights Act does not altogether eliminate the interest of the proprietor who has acquired the right to hold specific plots of land as owner of those plots, and a suit for possession of khudkasht land by the owner thereof is thus maintainable in spite of the Act. In this case, Chhote Khan's case was cited and was distinguished by Sinha C.J. who observed as follows (p. 988) :-

To give effect to the argument raised on behalf of the appellant in this case would be to hold that if a proprietor has been wrongfully dispossessed of a part of the property being khudkasht, the defendant trespassing upon the property can claim to continue his trespass. A distinction has to be made between a suit brought by a proprietor in his character as such for possession of property which the law then in force authorized him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him Irrespective of his character as such. In the instant case the plaintiff had purchased specific plots of khudkasht lands and would have continued in possession in spite of the enactment of the Abolition of Proprietary Rights Act but for the defendant's trespass. The aforesaid enactment does not govern such a suit. It only substitutes the State for the proprietor in respect of such lands as are not occupied lands. That legislation terminates the character of the landlord as such but does not deprive him of his rights to possess specific lands as his khudkasht or home-farm or his own a bad site which he has appropriated to his personal use and occupation; in other words, the Act aforesaid abolishes the intermediaries between the State and the actual occupier of land for cultivation or residential purposes subsidiary to those purposes, but does not altogether eliminate the interest of the proprietor who has acquired the right to hold specific plots of land as owner of the property.

Hidayatullah J. however, differed from this view, and the matter was referred to Mr. Justice Mudholkar who agreed with the view of the learned Chief Justice. Mr. Bobde tried to distinguish this case on the ground that it was a case of khudkasht land which was not recorded as khudkasht in the revenue records because of an error on the part of the revenue officers and it was held by Mr. Justice Mudholkar that an erroneous recording of the khudkasht land as occupancy land would not in law alter the real character of that land, and despite the wrong entry the land must be regarded as having always been the khudkasht of the respondent, who was, therefore, entitled to maintain a suit in spite of the Abolition of Proprietary Rights Act against a person who had trespassed upon it. I am unable to accept the argument that this distinction would make the' case inapplicable. In the present ease, it is not disputed that the nature of the land in suit is khudkasht. 'What is contended is that the defendants in the two suits alone are the owners of these khudkasht lands. As I have already pointed, the lands were acquired by Moreshwar in his capacity as the proprietor for the benefit of the proprietary body consisting of himself and his brother Gajanan, the present plaintiff. Gajanan may lose his right therein by adverse possession or in any other manner, but the provisions of the Abolition of Proprietary Rights Act can have no effect on Gajanan's rights if those rights continued till the date of vesting.

10. Mr. Bobde then drew my attention to an unreported decision of this Court in Zamasao v. Hiralal (1957) First Appeal No. 15 of 1952, decided by S.T. Desai J., on Deceraber 6, 1957 (Unrep.). That case a can is distinguishable because the lands in that case were not recorded as khudkasht in the jamabandi or the Tchasra of the year 1948-49 and the suit was brought by the plaintiffs in that case to enforce their right to these lands in accordance with the shares and it was held that the plaintiffs' case did not fall under Sub-section (2) of Section 4 of the Act. Then reliance was placed on Maha deo v. Tamunabai (1954) Second Apneal No. 323 of 1948, decided by Choudhury J., on January 22, (Unrep.). in which Mr. Justice Choudhury held that the plaintiffs' right to claim a share in the khudkasht lands in suit was not maintainable as the character of the plaintiffs as proprietors of the village had been lost under the M.P. Abolition of Proprietary Rights Act, and in taking this view Mr. Justice Choudhary relied upon the decision of the Nagpur High Court in Chhote Khan v. Mohammad Obedulla-khan to which I have already made a reference. It is true that this case is in favour of Mr, Bobde's contention; but it appears that Mr. Justice Choudhary, with respect, relied upon the authority of Chhote Khan's case which has been subsequently explained and distinguished in a later decision of the Nagpur High Court in Bahmatullah Khan v. Mahabirsingh to which I have already referred and which is against Mr. Bobde's contention. As I have already observed the facts in Chhote Khan's ease are distinguishable from the facts of the instant case. In the present case, the plaintiff does not claim a half share in the suit lands in his capacity as the proprietor of the two villages, because the rights of proprietorship which vested in Waman, Shridhar and the plaintiff had already ceased to have any existence because of the Abolition of Proprietary Eights Act. Waman and Shridhar claim the suit lands as their exclusive home-farm lands and they claim to retain possession of these lands by virtue of the provisions of Section 4(2) of the Abolition of Proprietary Rights Act. That claim of theirs is challenged by the plaintiff, who says that he has 0/8/0 share in these lands, these lands having been originally acquired for the whole body of the proprietors. The question of title, therefore, arises and that must be decided by the civil Court as contemplated under Section 38 of the Abolition of Proprietary Rights Act. The result is that the only ground on which the lower appellate Court non-suited the plaintiff must be held to be erroneous in law.

11. But Mr. Bobde further contends that he was entitled to support the decree of the lower appellate Court on the ground that assuming that the plaintiff had a title to these lands, the same was extinguished because of ouster on the part of the defendants for the statutory period. In this connection, Mr. Bobde has drawn my attention to the fact that so far as field No. 17 is concerned, which is the subject-matter of Second Appeal No. 50 of 1955, that was obtained by Moreshwar by pre-emption in January 1936 and that was an absolute occupancy land and Mr. Bobde points out that the period of limitation in the case of this land would be three years by virtue of Article 1 of the Second Schedule to the C.P. Tenancy Act. But Mr. Mandlekar contends that after Moreshwar acquired this land, it became the hhudhasht land of the proprietor and, therefore, ceased to be an absolute occupancy land. But there can be no dispute that so far as the other lands are concerned, the period of limitation would be 12 years from the date of exclusion. Now, Mr. Bobde argues that the lower appellate Court which delivered one judgment disposing of both the appeals has really mixed up the questions of estoppel and adverse possession and has not considered the documentary as well as the oral evidence on the record separately. That grievance seems to be well-founded. In this connection, he has ported out that the plaintiff, Gajanan, had, in execution of his decree against Moreshwar, actually attached field No. 17 of Nandora as the property belonging to Waman and Moreshwar and that attachment was objected to by Waman and Moreshwar on the ground that a partition had taken place between Gajanan and themselves on June 3, 1936, and since then they were in possession of these fields in their own right. It is also clear from the finding of the trial Court in Civil Suit No. 63-A of 1952 that Moreshwar had sold part of the hhari lands in suit, namely, fields Nos. 34/1 and 34/8 to Shrawan, Shiva and Mahadeo in 1938, and Mr. Bobde also points out that in the partition suit filed by Shridhar against his father Moreshwar and Waman, the present plaintiff actually helped Shridhar and that suit resulted in a compromise, under which the suit lands at Tuljapur which are the subject-matter of Civil Suit No. 63-A of 1952 fell to the share of Shridhar and the suit lands at Nandora which are the subject-matter of Civil Suit No. 62-A of 1952 fell to the share of Waman, and Mr. Bobde contends that in view of the fact that the plaintiff took active part on the side of Shridhar in negotiating this compromise, he knew that these fields had fallen to the share of these two brothers as their exclusive property. Mr. Bobde argues that the lower appellate Court has not given a clear finding on the question of ouster, and I would, therefore, be entitled to interfere, in second appeal, with that decision. At any rate, Mr. Bobde contends that so far as field No. 17 is concerned, Waman claimed it as his own when Moreshwar and he raised an objection to the plaintiff's attachment as evidenced by exhs. D-8 and D-9. Mr. Bobde also says that so far, at any rate, as khari lands at Tulja-pur, fields Nos. 34/1 and 34/8, are concerned, since they were sold by Waman in 1938, adverse possession would commence from that time, and Mr. Bobde contends that I should remand the case to the lower appellate Court for arriving at a clear finding on the question of ouster and for disposing of the suits in accordance with law. There is considerable force in Mr. Bobde's arguments.

12. Mr. Mandlekar, on the other hand, contends firstly that Mr. Bobde is not entitled to support the decree of the lower appellate Court on the ground that the plaintiff's claim is barred by limitation because that finding is in favour of the plaintiff and no cross-objections have been filed by the respondents. This contention of Mr. Mandlekar is clearly against the provisions of Order XLI, Rule 22, of the Code of Civil Procedure, under which any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal; so that the respondent would be entitled to support the decree even on grounds which are decided against him in the Courts below. Mr. Mandlekar has relied, in this connection, upon Mahagu v. Narayan [1960] Nag. 679. That case is clearly distinguishable because a part of the decree in that case was against the respondents who filed no cross-objections, and Mr. Justice Mandhlekar held that the respondents were not entitled to challenge the finding of the Court below, they having not filed any cross-objections regarding that part of the decree which was against them. On the merits, Mr. Mandlekar supports Mr. Bobde's request that instead of deciding the matter here on evidence, the issue as to ouster and adverse possession should be dealt with by the lower appellate Court on the basis of the evidence on the record and that Court should also consider whether Article 1 of the Second Schedule to the C.P. Tenancy Act would apply in the case of field No. 17. Mr. Bobde has no objection to this being done.

13. Mr. Bobde also raised a new point of law in this appeal in support of the decree of the lower Courts and his contention was that the plaintiff's suits for partition and separate possession of his shares were incompetent by virtue of Section 38 of the Abolition of Proprietary Rights Act. According to Mr. Bobde, under Section 38(2), if there are more persons than one having interest in land held as khudkasht, and one of them wants partition, he has to apply for partition of his share to the revenue authorities, and according to Mr. Bobde, by virtue of the provisions of the Abolition of Proprietary Eights Act, the civil Court would have no jurisdiction to entertain suits for partition and separate possession of khudkasht lands. I have allowed Mr. Bobde to raise this point because it is a pure point of law. But there does not seem to me to be any substance in that contention. As I have already pointed out, if any person claims exclusive ownership with regard to khudkasht lands, which is challenged by another claiming interest in those lands, a question of title is raised and that question can only be decided by a civil Court by virtue of the explanation to the proviso to Section 38(2), It appears that before the coming into operation of the Abolition of Proprietary Rights Act, the plaintiff had, as a matter of fact, filed proceedings before the revenue authorities for partition of his share in the proprietary rights of the two villages as well as partition of these khudkasht lands. But these proceedings, which were proceedings for imperfect partition under Chapter IT of the C.P. Land Revenue Act were dropped and ordered to be filed when the Abolition of Proprietary Rights Act came into force. The civil Court, therefore, would be competent to decide the question of title as between the plaintiff and the defendants, but as regards the actual partition of the land, the plaintiff will have to approach the revenue authorities as contemplated under Section 38(2), just as in the case of revenue-paying lands under Order XX, Rule 18(1), of the Civil Procedure Code.

14. The result is that I hold that the plaintiff would be entitled to 0/8/0 share in the suit lands subject to the decision of the question of limitation which I propose to remit to the lower appellate Court. I, therefore, allow both these appeals, set aside the decrees of the lower appellate Court and remand the cases to the lower appellate Court, with a direction that it will consider the evidence on the record and give a finding as to whether the plaintiff's title to the lands has been barred by adverse possession of the defendants and this will include the question as to whether in the case of field No. 17, Article 1 of the Second Schedule to the C.P. Tenancy Act will apply. These will be the only issues that will be open to the lower appellate Court to consider. After giving its finding, the lower appellate Court will dispose of the appeals in accordance with law in the light of this judgment. As the plaintiff has only partially succeeded in this appeal, there will be no order as to costs in these two appeals. Costs of both the lower Courts will be decided by the lower appellate Court. As these two suits were filed in 1952, I direct the lower appellate Court to dispose of these appeals as expeditiously as possible. The records should be sent down immediately.


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