A.P. Sen, C.J.
1. This appeal under Clause X of the Letters Patent by the plaintiff is directed against a judgment of Bishambhar Dayal, C. J., dated 14-4-1971, affirming the judgment and decree of the 2nd Addl. District Judge, Satna, dated 11-11-1965, setting aside the judgment and decree of the Civil Judge, Class II, Satna, dated 17-4-1961, and dismissing the plaintiff's suit based on title for possession, of sir lands bearing khasra No. 332, area 11-64 acres, and khasra No. 551, area 0.60 acre, total area 12.24 acres, situate in village Dengrahat.
2. The plaintiff, Lal Rangnath Singh was the ex-Jagirdar of Dengrahat in the erstwhile State of Vindhya Pradesh. He created a usufructuary mortgage of the suit lands by executing a registered mortgage-deed, dated 10-5-1951, in favour of the defendant, Sheo Mangal Prasad, to secure a loan of Rs. 1.800. The Jagir was resumed by the then State Government of Vindhya Pradesh under the provisions of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952, w.e.f 1-1-1954. By virtue of Section 6(1) (a) of the Act, as from the date of resumption, the right, title and interest of the plaintiff in the Jagir lands stood resumed to the State Government free from all encumbrances. Under Clause (g) thereof, the usufructuary mortgage was substituted by a simple mortgage and the defendant who was a mortgagee in possession ceased to have any right to possess the land. On 6-4-1958, the defendant consequently brought a suit for recovery of Rs. 2,074 on the basis of the registered mortgage-deed, being the amount due towards the principal amount and interest thereon.While this suit was pending, the plaintiff on 2-8-1958 made an application for allotment of the disputed sir lands under Section 22 of the Act.
3. The State Government in the Land Reforms Department by its order, dated 3-4-1958. issued the following direction:
'GOVT. OF MADHYA PRADESH
LAND REFORMS DEPARTMENT
No. 2086/28/XXVIII-58 Bhopal,
The Director of Land Reforms,
Madhya Pradesh, Rewa.
Subject:-- Settlement of mortgaged Jagir land in the possession of mortgagee.
Ref:-- Your Memo No. 964/62 dated the, 25th May. 57.
Under Section 6 (g) (i) of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act. 1952, a mortgagee in possession of a Jagir, such land or part thereof ceases to have any right to possess such land or part thereof, and such mortgage with possession shall to the extent of the amount of security on the Jagir land and part thereof be deemed to have been substituted by simple mortgage. Government have decided that the said land should be settled with the Jagirdar as if it was under his cultivation.
By order of the GovernorMadhya Pradesh
Sd/- M.P. Singh,
Under Secretary to Govt. M. P.
Land Reforms Deptt. Bhopal.'
4. Pursuant to the orders of the Government, the Tahsildar. Raghuraj Nagar, by his order dated 28-4-1958 allotted the sir lands to the plaintiff. In appeal, the Collector, Satna. by his order dated 30-3-1959, upheld the order of allotment. Thereupon, on 18-7-1959 the defendant moved this Court under Article 226 of the Constitution challenging the order of allotment being Miscellaneous Petition No. 159 of 1959, Sheo Mangal Prasad v. Lal Rang Nath Singh. The allotment was challenged on the ground that the plaintiff not being in personal cultivation of the disputed lands on the date of resumption of Jagir, i.e., on 1-1-1954, within the meaning of the expression 'personal cultivation' as defined in Section 2 (f), he could not derive any right of allotment under Section 22 of the Act. The order of allotment was also assailed on the ground that the Government couldnot by its order override the provisions of Section 22; nor could the Government in the guise of interpretation provide that cultivation by a usufructuary mortgagee should be deemed to be personal cultivation by the Jagirdar. It was, therefore, urged that the Government order was a nullity in all respects and, therefore, the Tahsildar and the Collector, acting under the said Government order, could not have made the allotment in question and their orders were not only contrary to law but also without jurisdiction. The writ petition was fully argued and the case was closed for judgment. The Court, however, permitted the defendant to withdraw the petition, by its order, dated 13-1-1960, stating that the prayer for withdrawal came while the judgment was about to be delivered.
5. The Additional District Judge, Satna. by his judgment in Civil Appeal No. 18-B of 1960, dated 23-11-1960, decreed the defendant's claim for recovery of Rs. 2,074 on the foot of the mortgage.
6. It is common ground that the plaintiff Lal Rangnath Singh, ex-Jagirdar of Dengrahat, was not actually cultivating the sir lands in dispute on the date of resumption. It is also not in dispute that the defendant who was a mortgagee in possession, ceased to have any right or interest in the suit lands mortgaged on resumption of the Jagir. It is further accepted that Section 28 of the Act does not entitle the defendant with any right to allotment of the land and he is, therefore, nothing but a trespasser. It is also not denied that the plaintiff has redeemed the mortgage by paying off Rs. 2,074 in execution of the decree passed by the Additional District Judge, Satna. in Civil Appeal No. 18-B of 1960, dated 23-11-1960.
7. The learned trial Judge in the course of his well-written judgment held that the defendant ceased to have any right to possess the suit lands from the date of resumption under the Act. The consequences of resumption of Jagir lands mentioned in Section 16 (1) (g) are with the rider 'save as otherwise provided in this Act', but according to him there is no 'otherwise' provision so far as the right of the mortgagee to possess the land is concerned. Relying upon the decision of the High Court in Yeshwant Singh v. Rajendra Bahadur. M. P. No. 278 of 1959, D/- 16-12-1960 (Madh Pra), he further held that usufructuary mort-gage being substituted by simple mortgage under Section 6 (1) (g) of the Act, the mortgagor binds himself to pay to the mortgagee the mortgage money and, in default, the mortgagee has a right to get the motrgagor's property sold and proceeds of the sale applied towards payment of the mortgage debt. Hence the result is that the mortgagee's position is that of a creditor and so the outgoing proprietor must be deemed to be in possession of the mortgaged property, unless the land is otherwise liable to vest in the State. He further observed, stating-
'The plaintiff is entitled to get back the suit bandh as the defendant had got decree for the principal mortgage money and interest thereon amounting to. Rupees 2,074 against the plaintiff vide Ex. P-6. This he' can now recover any time. Hence now the defendant cannot get both the bandh and the mortgage money. As the defendant has got the mortgage money so he cannot get the bandh. Hence the plaintiff is entitled to get back the suit bandh.'
The learned trial Judge was of the view that Section 28 (4) of the Act does not help the defendant. Lastly, he was of the view that the matter of allotment of sir lands to the plaintiff under Section 22 was required to be dealt with and decided under the Act by the Tahsildar and in appeal, by the Collector and, therefore, the jurisdiction of the Civil Court was barred under Section 37.
8. In appeal, the learned Additional District Judge tried to distinguish the decision of the High Court in Yeshwant Singh v. Rajendra Bahadur (supra) and held that the plaintiff not being in personal cultivation of the sir lands in dispute for a continuous period of three years immediately preceding the date of resumption, the lands could not be allotted to him under Section 22 and, therefore, the bar of Section 37 would not apply.
9. The learned Chief Justice construing the two Sub-sections of Section 22, held that the requirement of personal cultivation of Sub-section (1) of Section 22 qualify both 'sir and khudkasht' and that the expression 'any other sir land' in Sub-sec. (2) means other than those sir lands mentioned in Sub-section (1), viz., not in personal cultivation of the Jagirdar. He, therefore, negatived the contention that the words 'all sir' occurring in' Section 22 (1) were independent of and do not dependon the adjectival clause which he was cultivating personally etc.'. He also rejected the contention that if that meaning was taken to be correct, then Section 26 is absolutely redundant. Inasmuch as it deals with sir land which is under cultivation of a tenant and when allotted to a Jagirdar, has the effect of conferring on the tenant the status of a sub-tenant. In his view, such land can be allotted in favour of a Jagirdar under Clause (c) of Sub-section (2) to make up the minimum area and consequently it does not appear that Section 26 is redundant.
10. The learned Chief Justice, accordingly, held that the allotment of the sir lands in dispute in favour of the plaintiff was invalid since he was not cultivating the same personally for a continuous period of three years, preceding the date of resumption. He further held that when the Tahsildar was given power only to allot land of a particular description, and he allots land other than covered by the provisions of Sub-section (1) of Section 22, but under the direction issued by the State Government, he assumes jurisdiction by wrongly deciding a jurisdictional fact and the order of allotment being a nullity the bar of Section 37 of the Act did not apply.
11. Shri B. C. Verma, appearing for the appellant, has advanced a two-fold contention. The first submission is that the words 'which he was cultivating personally etc.' in Sub-section (1) of Section 22 qualify only 'khudkasht lands' and not 'sir lands'. In other words, it is said that sir lands can be allotted to the Jagirdar under Section 22 (1) irrespective of the fact whether it was being cultivated personally by him or not. The second submission is that once an allotment was made in favour of the plaintiff under Section 22 (1) of the Act, the order of allotment was not open to collateral attack. It was urged that the jurisdiction of the Civil Court was barred under Section 37 and the defendant being nothing but a rank trespasser was not entitled to set up a plea of jus tertii.
12. Shri Ramayan Prasad Pandey, learned counsel for the respondent, on the other hand, contends that the words 'which he was cultivating personally' qualify both 'sir and khudkasht' and it was necessary that both types of land should be in personal cultivation of the Jagirdar before they could be allotted. He further contends that the allotmentof the land in favour of the plaintiff under Section 22 (1) of the Act was not an allotment under the Act but under the executive instructions of the Government. This was ultra vires the State Government because they could not enlarge the 4 meaning of the expression 'personal cultivation' as defined in Section 2 (f) of the Act, He contended that an allotment of sir or khudkasht land must be in conformity with Section 22, In the instant case, it is not so on the face of it and, therefore, the order of allotment was a nullity. It is not sanctioned by law and was in excess of jurisdiction and can always be shown to be so, According to him, the bar of Section 37 of the Act is, therefore, not attracted. He further urged that even though the defendant was not entitled to an allotment of the land under Section 28, he became a gair haqdar tenant under Section 57 of the Rewa Land Revenue and Tenancy Code, 1935 and, therefore, could not be evicted except under Section 132 (c) of the Code. In support of the contention, he relies upon the definition of 'tenant' as contained in Section 4 of the Code, He further contends that Section 134 thereof has no application because it deals with a Kothar tenant, viz., a tenant of the Darbar.
13. In Guru Narayanprasad v. Pt, Ke-darnath Vishweshwarprasadji, AIR 1961 Madh Pra 216, T. P. Naik and T.C. Shrivastava, JJ. held that by virtue of Clause (a) of Sub-section (1) of Section 6 of the Act, all Jagir lands stand resumed free from all encumbrances, and therefore, the State Government is not liable for payment of the mortgage debt. They further held that the effect of Clause (g) of Sub-section (1) of Section 6 is that by legal fiction a mortgage with possession of Jagir lands after resumption is deemed to be substituted by a simple mortgage. The implication of substituting a mortgage with possession by a simple mortgage is to bring into existence the personal liability of the mortgagor under a simple mortgage as denned by Section 58 of the T. P. Act. Consequently, the ex-Jagirdar becomes personally liable for the debt. Thus, the mortgagee has a right to sue for recovery of the amount from the Jagirdar. In the light of these principles, there can be no denial of the fact that the substitution of a simple mortgage in place of a mortgage with possession under Section 6 (1) (g) of the Act brought into existence a personal liability of the plaintiff to pay the debt. As already Stated, the plaintiff has redeemed the mortgage by paying off Rs. 2,074 in satisfaction of the decree passed by theAdditional District Judge, Satna, in CivilAppeal No, 18-B of 1960, decreeing thedefendant's suit for recovery of theamount due on the mortgage towardsthe principal and interest thereon. It isalso conceded that the defendant wasnot entitled to an allotment of the landunder Section 28. It is, therefore, clear thatthe defendant is nothing but a ranktrespasser.
14. The crux of the matter is whether, on a proper construction of Sub-section (1) of Section 22 of the Act, cultivation by a usufructuary mortgagee should not be deemed to be personal cultivation by the Jagirdar. The answer to the question whether the disputed land could be allotted to the plaintiff or not under Section 22 (1) depends on a proper construction to be placed on the expression 'all sir and khudkasht lands which he was cultivating personally etc.' appearing in Section 22 (1), which reads:
'Section 22. Allotment of sir or khudkasht land.-- (1) A Jagirdar shall be allotted all sir and khudkasht land which he was cultivating personally for a continuous period of three years immediately preceding the date of resumption,
(2) A Jagirdar whose Jagir lands have been resumed under this Act-
(a) who is not allotted any sir or khudkasht land under Sub-section (1), or
(b) who had been allotted any such land which is less than the minimum area, may if he applies in this behalf, be allotted any other sir or khudkasht land in his personal cultivation at the date of resumption or where there is no such land or sufficient area of such land any unoccupied cultivable waste land in the Jagir-land subject to availability of such land, so that-
(1) in a case falling under Clause (a), the total area allotted to him under this sub-section is equal to the minimum area, and
(ii) in a case falling under Clause (b), the area allotted to him under this Sub-section, together with the area allotted under Sub-section (1) equal to the minimum area.
Explanation.-- In this sub-section, the expression 'minimum' means ten per cent of the total cultivated land in the Jagir-land at the date of resumption, or 30 acres whichever is greater:
Provided that in no case the minimum area shall exceed 250 acres.'
15. The scheme underlying the section is that the Jagirdar should first be allotted all sir and khudkasht land which he had been personally cultivatingfor a continuous period of three years before resumption. This allotment is not subject to any restriction of area. If, however, there is no such land ornot enough land of this category, thenunder Sub-section (2), the Jagirdar is entitled to be allotted 'any other sir or khudkasht land in his personal cultivation at the date of resumption.' The allotment under this sub-section is subject to the ceiling placed in the Explanation,
16. There is no substance in the contention that the words 'which he was cultivating personally etc.' occurring in Sub-section (1) of Section 22, qualify only 'khudkasht land' and thus sir land could be allotted to the Jagirdar irrespective of the fact whether it was being cultivated personally by him or not. The expression qualifies both 'sir and khudkasht'. In Lal Mordhwaj Singh v. Collector, Rewa, M. P. No. 288 of 1958, D/- 16-10-1959 (Madh. Pra) T. C. Shrivastava, J. while delivering the judgment of a Division Bench, in agreement with the view expressed in Bhondu Singh v. Visheshwar Prasad, AIR 1956 Vindh Pra 12 stated:
'In Sub-section (1) of Section 22 of the Act there can be little doubt that the adjectival clause 'which he was cultivating personally etc.' qualifies both sir and khudkasht land. If this construction is not put on that clause, then sir lands will all be disposed of under Clause (1). Sub-section (2) would become meaningless, so far as sir lands are concerned, because none would be left to be dealt with under Sub-section (2). It is pertinent to observe that the Jagirdar has no right automatically to continue in possession of all his sir and khudkasht lands. That depends upon allotment by the Talsildar. Section 20 clearly shows that the land which is allotted to the Jagirdar is 'for personal cultivation,' If that is the intention, there would be no meaning in allotting to him lands which are not in his personal cultivation.'
The learned Judge then observed:
'The qualifying expression 'in his personal cultivation' occurs in proximity of the word 'land' which goes equally with 'sir or khudkasht'. In other words, the relevant clause can be extended thus: 'any other sir land or other khudkasht land in his personal cultivation'. Thus, there is no question of the expression 'in his personal cultivation' going with khudkasht alone. The word land which is common to both sir and khudkasht makes all the difference in the in terpretation. This is further borne out with the use of the word 'other' which qualifies both sir and khudkasht and is in juxtaposition with 'all sir and khudkasht land' which has been dealt with under Sub-section (1). Sub-section (2) provides for allotment of only that sir or khudkasht land which does not satisfy the requirements of Sub-section (1) and could not therefore be allotted under that subsection. If the expression 'in his personal cultivation' were to go with khudkasht land alone, I may also add that it would be meaningless; for as defined in Section 2 (1) (e) of the Act 'khudkasht' means any land cultivated personally by a Jagirdar, Nothing can be khudkasht which is not cultivated personally and therefore to say that again that the khudkasht land mentioned in Clause (b) should satisfy this qualification is unnecessary. It appears to me obvious that the qualifying expression must go with sir also.'
We are in respectful agreement with! these observations.
17. The real point in controversy is as to what is meant by 'personal cultivation'. The expression 'land cultivated personally' has been defined in Section 2 (f) as under:--
'Section 2, Definitions.-- (1) In this Act, unless the context otherwise requires,--
XXX XXX XXX (f) 'land cultivated personally' means land cultivated on one's own account-
(i) by one's own labour; or
(ii) by the labour of any member of one's family; or
(iii) by servants on wages payable in cash or kind (but not in a share of the crops) or by in red labour under one's personal supervision or under supervision of any member of one's family:
Provided that in the case of a person who is a widow or a minor or is subject to any physical or mental disability or who is in service as a member of the armed forces of the Union, land shall be deemed to be cultivated personally even without such personal supervision;'
18. With due respect, we are afraid, the learned Chief Justice wrongly assumed that expression 'personal cultivation' in Section 22 (1) can bear no other meaning than the one given in Section 2 (f), in all circumstances. He appears to have overlooked the opening words of Section 2 'unless the context otherwise requires.' In case of a mortgage with possession, which by virtue of Section 6 (1) (g), is substituted by a simple mortgage, the cultivation by the mortgagee in possession must, in law, be regarded as personal cultivation by the mortgagor. The Act is silent with respect to this and, therefore, there was nothing wrong in the Government taking a policy decision in the matter. In Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910, their Lordships while dealing with the question of promotion to Selection Grade Posts on the basis of ranking in Gradation List under the Indian Police Service (Pay) Rules, 1954, observed (at p. 1914):
'It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed'
The Act provided for resumption of all Jagir lands in the State. The consequence of resumption as set forth in Clause (a) of Sub-section (1) of Section 6 is that, as from the date of resumption, notwithstanding anything contained in any contract, grant or document or in any other law, rule, regulation or order for the time being in force, the right, title and interest of every Jagirdar and of every other person claiming through him in his Jagir lands stand resumed to the State 'free from all encumbrances'. Section 20 of the Act then provided allotment of land to the Jagirdar for personal cultivation. On an application being made under Section 20, the Tahsildar has to hold an enquiry under Section 21. After making the enquiry referred to in Sub-section (1) of Section 21, the Tahsildar may pass an order making an allotment to the Jagirdar of such land for personal cultivation as may be specified.having regard to the provisions contained In Chap, IV. Section 22 provides for allotment of sir or khudkasht lands.
19. The Legislature while enacting the law, obviously overlooked the fact that some part of the home-farm of the Jagirdar may not be in his actual cultivation but be with a mortgagee with possession. It is true that the Government cannot by an executive order, enlarge the meaning of the expression 'land under personal cultivation' as defined in Section 2 (f) of the Act Nevertheless, it necessarily has the power to issue necessary directions in that behalf, if the expression personal cultivation' as defined in Section 2 (f) cannot have that meaning in the context of a usufructuary mortgage, i. e., if the context otherwise requires.
20. In Yeshwantsingh v. Rajendra Bahadursingh, M. P. No. 278 of 1958, D/-16-12-1960 (Madh Pra) Dixit, C. J. and Pandey, J. rejected a similar contention raised by mortgagees in possession of sir and khudkasht lands challenging an order of allotment of such lands in favour of the Pawaidars under Section 22 (1) of the Act, saying that they have no locus standi to challenge the allotment inasmuch as they had right to allotment of the land under Section 28. The attention of the learned Chief Justice was not drawn to this decision though the learned trial Judge had referred to it.
21. In Meharban Singh v. Naresh Singh, AIR 1971 SC 77 their Lordships while dealing with the provisions of the Madhya Bharat Zamindari Abolition Act, 1951, reversed the decision of this Court holding that the plaintiffs who were ex-Zamindars, were entitled to redeem the mortgage by paying the mortgage money but disentitled to get possession of the mortgaged land. The expression 'khudkasht' as denned in Section 2 (c) in that Act, as here, meant land cultivated by the Zamindar himself or through employees or in red labourers and includes sir land. While remanding the appeal, for a reconsideration of the nature and character of the mortgagee's possession, their Lordships held that this Court was in error in dismissing the plaintiffs' suit for possession on the authority of Haji Sk. Subhan v. Madhorao, AIR 1962 SC 1230 which turned on the definition of 'khudkasht' contained in Section 2 (g) of the M. P. Abolition of Proprietary Rights Act, 1950. While under the M. P. Abolition of Proprietary Rights Act, the record was the basis, under the Madhya Bharat Zamindari Abolition Act, the emphasis is laid on personal cultivation: Khumansingh Sandersingh v. Dhansingh, 1971 MPLJ 750,
22. That takes us to the question whether the learned Chief Justice was right in his construction of Section 37 of the Act, which runs thus 3
37. Bar of Jurisdiction of Civil Courts, --(1) No Civil Court shall have jurisdiction to settle, decide, or deal with any question which is, by or under this Act, required to be settled, decided or dealt with by the Talsildar, the Deputy Commissioner, the Land Reform Commissioner, or the Board of Revenue,
(2) Except as otherwise provided in this Act, no order of a Tahsildar, a Deputy Commissioner, the Land Reform Commissioner, or the Board of Revenue under this Act shall be called in question in any court,'
23. In Rao Bhupendra Singh v. Smt. Gopal Kunwar Umath, AIR 1970 Madh Pra 91, T. P. Naik and G. P. Singh, JJ, while interpreting Section 39 of the Bhopal Abolition of Jagirs and Land Reforms Act, 1953, which is in pari materia with Section 37 of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952, held that the bar created by Sub-section (2) of Section 39 of that Act does not apply to an order which is a nullity. G. P. Singh J. delivering the Judgment of the Court, observed (at p. 95) :
'The language employed in Section 39 is thus apparently quite comprehensive. But statutory provisions like Section 39 of the Act, which oust the jurisdiction of the ordinary Courts in spite of their apparent wide language, have certain inherent limitations. Thus the second Sub-section which prevents the calling in question in any Court of an 'order of the State Govt. etc. under this Act' will have no application if the order that is called in question, is really not an order under the Act but a nullity. In other words, if a purported order is no order at all, the immunity conferred by Sub-section, (2) will not protect such an order from being challenged in a Civil Court. The question whether an order of the State Government, Tahsildar etc. is a nullity is also not one which is required to be settled, decided or dealt with by these authorities under the Act and, therefore, the bar of Sub-section (1) will not preventsuch a question being tried by a Civil Court.'
Learned counsel for the appellant, how ever, urged that a distinction must be drawn between a case where a collateral fact is to be decided before a tribunal of limited jurisdiction assumes jurisdiction, and a case where the tribunal has to decide the whole matter itself, and there is no question of the decision of any collateral fact as a condition precedent to assumption of jurisdiction. In support of the contention, reliance is placed on the decisions of their Lordships in Custodian, Evacuee Property, Punjab v. Jafran Begum, AIR 1968 SC 169 and Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78. In Custodian of Evacuee Property, Punjab v. Jafran Begum (supra), their Lordships, after examining the scheme of the Administration of Evacuee Property Act, 1950, held that Section 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under Section 7. In Dhulabhai v. State of Madhya Pradesh (supra), their Lordships examined various authorities on the point, and observed that the legal position that emerges may be summarised thus (at p. 89) :
'(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.'
In the view we have taken, viz., the order of allotment passed by the Tahsildar under Section 22 of the Act in favour of the plaintiff was not a nullity, it is needless for us to enter into the question,
24. It is well settled that an order of allotment of this nature is not open to a collateral attack by a plea in defence The question has frequently arisen in cases relating to settlement of homefarm' under Section 39 (1) of the Madhya Pradesh Abolition of Proprietary Right Act, 1950 or settlement of land not included in the 'home-farm' under Section 54. In Harishchandra Behra v. Garbhoo Singh, 1961 MPLJ 501, it was held by a Division Bench that cultivation by a trespasser would be deemed to be personal cultivation by the proprietor. In dealing with the question, it was observed :
'Personal cultivation' in Section 54 indicates not merely bodily possession of the land but constructive possession and also the right to possess against a trespasser. If a wrong-doer takes possession of the property, steps to exclude him from possession can certainly be taken and the cultivation of the wrongdoer in these circumstances cannot clothe him with any rights. His cultivation has to -be deemed on behalf of the rightful owner. The Abolition Act does not aim at the extinguishment of the title of the rightful possessor by mere act of trespass. Nowhere has it been said so. The initial condition under Section 54 of the Abolition Act was fulfilled to the satisfaction of the officer concerned in this case. The patta was issued by him on 26-2-1952. This patta does not admit of a collateral attack,'
In Guruprasad Matadin Shukla v. Pritam Madhosingh, 1961 MPLJ 530 it was observed:
'In the instant case, the Deputy Commissioner was the only authority who could pass an order under Section 39 (1) of the Act. Without such an order or in disregard of an order passed by the Deputy Commissioner thereunder, neither the defendant thekadar nor the civil Court could, in a collateral proceeding, treat the entire home-farm land as re served to the thekadar. If the civil Court were to purport so to do, it would amount to an unwarranted usurpation of jurisdiction which it did not possess.'
In Dayaram Bodhram v. Maheshwar Danardan, 1961 MPLJ 837 a Division Bench held that cultivation by a wrong doer must be treated as personal cultivation by the proprietor. In Mannalal v, Mst. Radhabai Misc. (First) Appeal No, 120 of 1943, D/- 15-9-1955 (Nag). R. Kaushalendra Rao and B. K. Choudhuri, JJ. held that sir and khudkasht lands under cultivation of the judgment-debtors could not become the malik-mak-buza of the judgment-debtors under Section 38 of the Act, observing-
'The judgment-debtors having secured the stay order cannot be permitted to urge that the rights which they have acquired during the pendency of the appeal should operate to their advantage and to the detriment of the persona finally held entitled to the mauzas as a result of the appeal. The judgment-debtors must in justice be regarded as holding in trust for the decree-holders whatever rights might have been acquired by them during the pendency of the appeal by virtue of a title now found never to have been with them,'
25. The result, therefore, is that the appeal succeeds and is allowed. The judgment of the learned Chief Justice upholding the judgment and decree of the Additional District Judge is set aside, and those of the learned trial Judge decreeing the plaintiff's suit are restored with costs throughout. Hearing fee Rs. 200/-, if certified.