Civil Appeal No 32 of 1971
Appeal from the judgment and order dated March 12 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No 184 of 1965
I N Shroff for the appellants
V section Desai section K Mehta K L Mehta V K Sapre and K R Nagaraja for the respondent
The Judgment of the Court was delivered by Vaidialingam J
The short question that arises for consideration in this appeal on certificate is whether the High Court has complied with the directions given by this Court in its judgment dated January 25 1968 in Civil Appeals Nos 1244 and 1245 of 1967 and adjudicated upon the question whether the claim made by the respondent that the tanks and wells in question were constructed on occupied I and belonging to the Jagirdar within the meaning of section 5c of the Madhya Bharat Abolition of Jagirs Acts Samvat 2008 Act 28 of 1951 hereinafter to be referred as the Abolition Act
The facts leading up to the present decision of the High Court may be stated In Samvat 1885 the Ruler of the erstwhile Gwalior State conferred on the predecessor in title of the respondent the Jagir of Mauza Siroli situated in Pargana Gwalior
The Abolition Act came into force on December 4 1952
Section 3 provides for resumption of Jagir lands by the Government
Under sub section 3 the date appointed under section 3 as the date for resumption of Jagir lands is the date of resumption 
After the issue of notification under section 3 appointing a date for resumption all the property in the Jagirdar including Jagir lands forest trees fisheries wells tanks ponds etc
stood vested in the State under section 4 of the Abolition Act
But under section 5 c all tanks trees private wells and buildings in or on the occupied lands belonging or held by the Jagirdar or any other person were excluded from vesting
After the abolition of Jagirs under the Abolition Act proceedings were initiated for determining the compensation payable to the respondent and the same was determined
Out of the amount so determined certain loans were deducted and the balance amount was paid
The Madhya Pradesh Land Revenue position ultimately was that the entire extent of the tanks was in occupied as the Code came into force on October 2 1959
Section 251 866 of the Code provided for vesting in the State Government all ranks situated on unoccupied lands in the circumstances mentioned therein
The said section made provision for claiming compensation in the manner laid down therein
The respondent on April 5 1961 made an application to the Collector Gwalior under section 251 of the Code claiming com pensation for tanks which according to him had been built by himself and his predecessor in title over an area of 1679 bighas and 18 biswas of land
There were various orders passed by the authorities in connection with the said claim for compensation
The respondent moved the Madhya Pradesh High Court under article 226 of the Constitution by two writ petitions to quash two orders of the Collector of Gwalior and two orders of the Additional Commissioner Gwalior Division
The writ petitions were opposed by the State on the ground that the four tanks claimed by the writ petitioner were really not tanks and in any case the tanks were not on occupied land within the meaning of section 5 c of the Abolition Act and the wells claimed by him had also vested in the State under section 41a of the Abolition Act
The High Court by its judgment dated November 30 1966 allowed the writ petitions and quashed the four orders referred to above on the ground that the claim made by the respondent that the tanks were on occupied land under section 5c of the Abolition Act has to be decided by the Jagir Commissioner in the manner required under section 17 of the said Act
The State challenged before this Court in Civil Appeals Nos 1244 and 1245 of 1967 the decision of the Madhya Pradesh High Court Me contention raised on behalf of the State was that section 17 of the Abolition Act had no application and that it was the function of the Jagir Commissioner alone to inquire whether the claim of the writ petitioner under section 5c of the Abolition Act was well founded on merits and then refer the matter for the final decision of the Government under section 17 of the Abolition Act
After a consideration of the scheme of the Abolition Act and in particular of section 17 this Court accepted the contention of the State and held that the inquiry contemplated under section 17 by the Jagir Commissioner relates to compensation to be paid to the Jagirdar whose Jagir is vested in the State Government and once the compensation is determined and paid no further inquiry under section 17 is contemplated
In this view by its judgment dated January 25 1968 this Court set aside the orders passed by the High Court
This Court further held that the writ petitioner namely the present appellant before us is not left without any remedy to 867 agitate his claim that the tanks and wells claimed by him were constructed on occupied land and that they have been saved from vesting in the Government under section 5c of the Abolition Act
It was held that if the writ petitioner was able to establish this plea the State Government will have no power or authority to take possession of such tanks and wells as the title thereto did not vest in it in view of section 5 c of the Abolition Act
It was further held that section 5 c has an over riding effect on section 4 of the Abolition article In this view this Court held that it was the duty of the High Court to have decided the jurisdictional fact as to whether the tanks and wells claimed by the present respon dent belonged to the Jagirdar within the meaning of section 5c of the Abolition Act and that if the High Court accepted the said contention the High Court was competent to issue a writ under article 226 of the Constitution directing the State to hand over possession of the said tanks and wells to the writ petitioner
Ultimately for all the reasons given in its judgment this Court set aside the decision of the High Court and remanded the proceedings for deciding afresh the claim made by the writ petitioner under section 5c of the Abolition Act
Liberty was given to the parties to place before the High Court such further evidence oral and documentary as they may desire to give on the point at issue
The main judgment was given in Civil Appeal No 1245 of 1967
For the same reasons given in the said judgment Civil Appeal 1244 of 1967 was also remanded in accordance with the directions given in Civil Appeal No 1245 of 1967
The said decision of this Court is reported in State of Madhya Pradesh and others vs Sardar D K Jadhav1
After remand when the matter was taken up by the High Court both the appellant and the respondent filed many documents and examined witnesses with particular reference to the claim regarding the wells and the tanks made by the respondent under section 5c of the Abolition Act
The respondent laid his claim on the ground that the tanks and wells had been constructed on lands which were his Khud kasht lands as also on lands held on tenure by other persons
But ultimately his claim was on the basis that the wells and tanks were all on occupied land belonging to the Jagirdar or any other person as laid down under section 5c of the Abolition Act
The State on the other hand denied the right of the respondent to claim any right in the said tanks and wells on the ground that they were not located on occupied land belonging to the Jagirdar but were situated on lands which were in the possession of tenants
Hence according to the State the said tanks and 1  868 wells were not saved to the respondent under section 5 c of the Abolition Act and that they have vested in the State as rightly held by the Revenue authorities
In short the contention of the State appears to have been that only those tanks and wells which are on occupied land belonging to the Jagirdar and in his possession as Khudkasht land alone are saved under section 5 c of the Abolition Act
At this stage we may mention that though the respondent laid claim to certain wells also in addition to the tanks it is seen from the judgment of the High Court that during the stage of arguments it was represented on his behalf that three out of five wells were already in his possession and that no adjudication is necessary regarding those wells
Regarding the other two wells it is also seen that the respondent abandoned his claim before the High Court
Therefore the entire controversy which the High Court had to decide centred round the claim regarding the tanks made by the respondent under section 5 c of the Abolition Act
Though various maters have been adverted to by the High Court in its judgment its material findings are as follows  That the four tanks_ as also the pick up weir are tanks within the meaning of the Abolition Act
The four tanks as also the pick up weir belonged to the respondent at the time of the resumption of Jagirs under the Abolition Act namely December 4 1952 Section 5 c is clearly attracted it the right of ownership or possession of the tanks belonged either to the Jagirdar or to any other person as against the said right belonging to the community at large or the State
The fact that a part of the bed of the tanks may be in the occupation of tenants is of no consequence in holding in favour of the respondent under section 5 c of the Abolition Act The entire area of the tanks in the possession of the respondent must as his Khud Kasht land and also in the occupation of the tenants are both saved under section 5 c and do not vest in the State under section 4 of the Abolition Act
On these findings the High Court accepted the contention of the respondent and held that the tanks claimed by him are saved under section 5 c and they have not vested in the State under the Abolition Act
We may state at this stage that the High Court has not thought it necessary to consider the precise area of each one of the tanks as the tenants were not parties to the proceedings
Ultimately the High Court held that on resumption of Jagirs under the Abolition Act the four tanks and the pick up weir are saved to the respondent under section 5c of the Abolition Act subject to certain observations contained in the judgment
In consequence the High Court quashed the four orders of the Revenue authorities referred to in the judgment
869 Though Mr INShroff learned counsel for
the State has raised several contentions in our view most of them do not survive in view of the specific directions contained in the order of remand passed by this Court
The only two contentions that have been advanced by him and require to be considered are  1 That the High Court has not complied with the directions given by this Court in its order of remand and 2 The High Court has not found that the said tanks are situated on occupied land so as to be saved under section 5cof the Abolition Act
The counsel has no doubt pointed out certain other circumstances which according to him constitute an infirmity in the judgment of the High Court
On the other hand Mr V section Desai learned counsel for the respondent has pointed out that the directions of this Court have been fully complied with and that after a very elaborate consideration of the materials placed before it by both the parties the High Court has recorded a finding that the tanks claimed by the respondent are on occupied land belonging to or held by the Jagirdar or any other person as required under section 5 c of the Abolition  Act
The fact that the High Court has not considered is necessary to adjudicate upon the exact area of the tanks is of no consequence because that is a matter to be decided as between the Jagirdar and the other tenure holders if any
Once the requirement that the tanks are on occupied land and that they belong to the Jagirdar or toany other person is satisfied they are saved under section 5c of the Abolition Act
That was the only point that the High Court was directed to adjudicate upon and on
that aspect clear findings have been recorded by it
Before we deal with the contentions of the learned counsel on both sides it is necessary to refer the material provisions of the Abolition Act
The expressions Homestead and Occupied land are defined in sub clauses iv and ix of section 21 and they are as follows 2 In this Act unless the context otherwise requires ivHomestead means a dwelling house together with any court yard compound or attached garden or bari and includes any out building used for agricultural purposes and any tank or well appertaining to the dwelling house
ix Occupied land means land held immediately the following tenures namely L36 SupCI72 870 a Ex proprietary b Pukhta Maurusi c Mamuli Maurusi d Gair Maurusi and includes land held as Khud kasht and land comprised in a homestead Section 3 deals with resumption of Jagir lands by the Government
As we have already mentioned the date of resumption is December 4 1952
Section 4 enumerates the various items which vest in the State unless the contrary has been provided in the Abolition Act
Section 5 saves from vesting certain items arid clause c which is material is as follows Section 5  Private wells trees buildings house sites and enclosures
Notwithstanding anything contained in the last preceding section c all tanks trees private wells and buildings in or on occupied land belonging to or held by the Jagirdar or any other person shall continue to belong to or be held by such Jagirdar or other person
Regarding the first contention we are satisfied that the High Court has complied with the directions given by this Court in its remand order
The High Court was directed to decide the jurisdictional fact as to whether the tanks and wells claimed by the respondent belonged to the Jagirdar and were saved under section 5c of the Abolition Act
Therefore the only investigation that had to be made by the High Court was on the point referred to above
In fact it is seen that the High Court has been very considerate when it allowed the appellant to raise various other questions such as the locus standi of the respondent to file the writ petition the question of non impleading of the tenants in possession of lands over which part of the tanks are situated and the undue delay in filing the writ petition
Further the High Court has allowed the appellant to raise the question that the respondent is estopped from seeking relief regarding the tanks under section 5c in view of the stand taken by him before the Revenue authorities in his application for award of compensation
These matters should not have been permitted to have been raised by the appellant
If these contentions were available to the appellant they should have been raised be fore this Court in the appeals referred to earlier
Any how the High Court has gone into those matters and held against the appellant
Therefore far from not complying with 871 the directions given by this Court it has even allowed the appellant to raise certain contentions which were
not available to it at the stage when the matter was being considered after remand
Therefore the first contention will have to be rejected straightaway
Regarding the second contention it is also clear from the judgment of the High Court that it has very elaborately considered the various aspects presented to it both by the appellant as well as the respondent
After a consideration of the materials so placed before it and having due regard to the provisions of the Abolition Act the High Court as we have pointed out earlier has considered as directed by this Court the main question whether the tanks are saved under section 5c of the Abolition Act
In that connection the High Court had naturally to consider the scope of the definition of Occupied land under section 2 1 ix of the Abolition Act
It is after a consideration of all these aspects that the High Court has found that the four tanks belonged to the respondent at the time of resumption
and the said tanks were on occupied land belonging to the Jagirdar or any other person
Therefore it considered the question properly as per the remand order and has given a finding on the same
As to whether the said finding is correct or not is a different matter
But the criticism that it has not considered the point regarding the saving of the tanks under section 5c of the Abolition Act cannot be accepted
Now coming to the merits it is clear that as and from the date of resumption the consequences enumerated under section 4 will have full effect
Except as otherwise provided in the Abolition Act normally under cl
a of Section 41 the right title and interest of every Jagirdar and of every other person claiming through him in his Jagir lands including among other items tanks shall stand resumed to the State
The saving is provided under section 5
If the respondent is able to establish that the tanks in question are on occupied land belonging or hold by the Jagirdar or any other person then those tanks are saved in favour of the respondent under section 5 c of the Abolition Act
It may be mentioned at this stage that though the items are all described as tanks it is in evidence that they get submerged at times and at other times portions of the same are being cultivated either by the respondent or by other s under certain tenures
That is parts of the tanks are included and held by the respondent as khud kasht and rest of it is held by the tenure holders who have got tenancy rights over them
As the other tenure holders namely the tenants were not parties before the High Court the question of the extent of the area of the tanks was not decided and it was left open
But the 872 entire extent of the tanks had been given by the respondent as 1679 bighas and 18 biswas of land and this claim was fully known to the Revenue authorities who raised the specific plea that the said tanks are not on occupied land
Therefore the circumstance that the High Court did not adjudicate upon the question of the extent of the tanks is of no consequence and it is not material for the point in dispute
In order to get the tanks in question saved under section 5 c of the Abolition Act the respondent will have to establish They were on occupied land and b They belonged to or were held by the Jagirdar or any other person
We have already extracted the definition of occupied land 
The essential ingredient of such land is that it must have been held immediately before the commencement of the Abolition Act under one or other of the four tenures mentioned in sub cls
a to d
We have not been shown about the existence of any other type of tenure
The occupied land will also include as per the definition lands held by the Jagirdar as khud kasht as well as the land com prised in a homestead
Therefore occupied land comprises broadly of two types of lands 1 four categories of land held under the tenures enumerated in sub clauses a to d and 2 comprised in khud kasht and Homestead
To attracted cl
c of section 5 the tank must be shown  in the first instance to be on occupied land that is on land comprised under the tenures enumerated in sub clauses a to d or in the land held as khud kasht and homestead
In our opinion it is not necessary that the entire tank should be exclusively situated in one or other of the tenures enumerated in sub clauses a to d of s2 1 ix on exclusively in the land herd as khud kasht and land comprised  in homestead
The requirement of the tanks in question being on occupied land will be satisfied even if part of the tanks is situated in one or other of the tenures mentioned in sub clauses a to d of cl
ix of section 2 1  and the rest of it is included in the land held Is khud kasht and land comprised in a homestead
That is the entire area of the tank must be comprised in either the tennures of the khudkasht and homestead or in both
Therefore it is not
possible to accept the contention advanced on behalf if the appellant State that only those tanks  which are on khud kasht land of the Jagirdar are saved to him  Acceptance of such a contention will be ignoring the clear wording of cl ix of section 21 which takes in also lands held on the various tenures referred to therein
From this it follows that the mere fact that a part of the tanks is in the occupation of the tenants as  tenure holders does not detract from operation of the saving clc of section 5
There is no controversy that at the material date the occupied lands on which 873 tanks are situated belonged to or were held by the Jagirdar or any other person
The expression any other person is comprehensive enough to take in the persons who were holding the land on one or other of the
tenures enumeratedin sub clauses a to id of section 21 ix of the Abolition Act
Whatever may be the extent of the tanks in the possession of the respondent as his khud kasht or homestead and in the possession of the tenure holders the position ultimately is that the entire extent of the tanks is in occupied land belonging to or held by the Jagirdar or any other person
The actual extent and the area held by the Jagirdar and the tenure holders can be worked out only in the presence of both those parties
To conclude we are satisfied that the High Court has appealed the correct test
to find out whether the
tanks are saved under section  of the Abolition Act
We are also in agreement with the finding of the High Court that the four tanks and the pick up weir are saved to the respondent under section 5c of the Abolition Act
In the result the judgment and order of the High Court are confirmed and thisappeal dismissed with costs G C Appeal dismissed


Summary:
Under section 5c of the Madhya Bharat Abolition of Jagirs Act Samvat 2008 Act 28 of 1951 all tanks trees etc
in or on occupied lands  belonging to or held by the Jagirdar or any other person were excluded from vesting in the State by virtue of section 4
The respondent filed a writ petition in the High Court claiming that certain tanks built by himself and his predecessor in title were on occupied land  and therefore came within the protection of section 5c
The original order passed by the High Court in the writ petition was set aside by this Court and the High Court was directed to decide afresh the claim made by the writ petitioners under section 5c of the Act
After considering the evidence before it on this question the High Court held that the  tanks in question were saved under section 5c and they had not vested in the State under the Abolition Act
In appeal by the State to this Court HELD Occupied land  as defined in section 21 ix of the Act comprises broadly two types of lands  1 four categories of land held under the tenures enumerated in sub clauses a to d and 2 comprised in Khud Kasht and homestead 
To attract cl
c of section 5 the tank must be shown in the first instance to be on occupied land that is on land comprised under the tenures enumerated in sub clauses a to d or in the land held as Khud kasht and homestead
It is not necessary that the entire tank should be exclusively situated in the land held as khud kasht and land comprised in homestead
The requirement of he tanks in question being an occupied land will be satisfied even if part of the tank is situated in one or the other of the tenures mentioned in sub clause a to d of cl
ix of section 21 and the rest or it is included in the land held as khud kasht and the land comprised in a homestead
That is the entire area of the tank must be comprised in either the tenures or the khud kasht or homestead or in both
Therefore it was not possible to accept the contention advanced on behalf of the appellant State that only those tanks which are on khud kasht land of the Jagirdar are saved to him
Acceptance of such a contention will be ignoring the clear working of cl
ix of section 21 which takes in also lands held on the various tenures referred to therein
871 D G Therefore in the present case the mere fact that a part of the tanks was in the occupation of the tenants as tenure holders did not detract from the operation of the saving cl
c of section 5
The expression any other person  is comprehensive enough to take in the persons who were holding the land on one or the other of the tenures enumerated in subclauses a to d of section 21ix of the Abolition Act
Whatever may be the extent of the tanks in the possession of the respondent as his khud kasht or homestead and in the possession of the tenure holders the position ultimately was that the entire extent of the tanks was in occupied land  belonging to or held by the Jagirdar or any other person
872 H873 B 865 The judgment of the High Court must accordingly be upheld