Civil Appeal No 281 of 1959
Appeal by special leave from the judgment and order dated October 12 1955 of the former Nagpur High Court in Misc
Petition No 288 of 1954
H R Khanna and R H Dhebar for the appellants
section N Kherdekar and A G Ratnaparkhi for respondent No 1 1961
November 20
The Judgment of the Court was delivered by SHAH J
Out of a total area of 2375 acres 3 gunthas of Dhanora an Izara village in Taluka 712 Pusad in the State of Madhya Pradesh 2283 acres and 28 gunthas is assessed land and the remaining 91 acres and 15 gunthas is unassessed
One Surat Singh who was the proprietor of the village by sale deed dated May 24 1947 conveyed an undivided half share in the village to Yeshwant Madhao Mahajan hereinafter called Mahajan for Rs 25000 and on the same day executed a kabulayat lease deed for five years in respect of the same land for cultivation at an annual rental of Rs 3000 
The Legislature of the Madhya Pradesh State enacted the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1 of 1951 hereinafter called the Act to provide for acquisition of the rights of proprietors in estates mahals alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith
The Act was brought into operation on March 14 1951
The Compensation Officer Yeotmal started an enquiry about assessment of compensation in respect of the village Dhanora which had vested by the operation of section 3 of the Act in the State Government
Before the Compensation officer Mahajan claimed to retain possession of a half share in all the fallow lands in the village which had been leased by him under the deed kabulayat dated May 24 1947 to Surat Singh on the plea that these lands were home farm
This claim was rejected by the Compensation Officer and the order of the Compensation Officer was confirmed in appeal by the Additional Settlement Commissioner
Mahajan then applied to the High Court of Judicature at Nagpur under article 226 of the Constitution for a direction quashing the order of the Additional Settlement Commissioner and the Compensation Officer and for a declaration that the lands mentioned in Schedule A attached to the petition be declared home farm and for a writ of mandamus against the State of Madhya Pradesh to deliver possession of all the lands mentioned in that Schedule
713 The High Court quashed the order of the Additional Settlement Commissioner in so far as it related to the undivided half share in Survey Nos 1 to 91 except those in possession of the specified tenants and also those already recognised as home farm and directed the Compensation Officer to decide the claim made by Mahajan in the light of the law laid down in the judgment
Against the order passed by the High Court the Additional Settlement Commissioner and the State of Bombay which had by virtue of the States Reorganization Act 1956 been substituted for the State of Madhya Pradesh have appealed to this Court with special leave
The dispute in this appeal relates to a half share in those lands in the village which had remained fallow on the date of the notification under section 3 of the Act
By virtue of the sale deed dated May 24 1947 Mahajan was the proprietor of the undivided half share in the entire village and under the kabulayat he had granted to Surat Singh a lease for cultivation of the undivided half share purchased by him
Undoubtedly the lands specified in Schedule A to the petition were on the crucial date lying fallow
The question which falls to be determined is whether those lands can be regarded home far if they be so regarded by virtue of section 42 of the Act Mahajan will be entitled to retain possession of those lands
Section 3 of the Act provides in so far as it is material that 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 Section 41 sets out the 714 consequence of the vesting
By cl
a of section 41 all rights title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land cultivable or barren cease and are vested in the State for the purposes of the State free from all encumbrances
But sub section 2 provides that Notwithstanding anything contained in subsection 1 the proprietor shall continue to retain the possession of his home stead home farm land     Home farm land  is defined in so far as it is material in section 2g as 1 x x x x x x 2 x x x x x x 3 in relation to Berar all land included in holdings which is i under the personal cultivation of the superior holder including land allowed to lie fallow in accordance with the usual agricultural practice ii held by a lessee from the superior holder and iii held by a tenant from the superior holder other than a specified tenant
 Land  is defined as including land covered with water
 Section 7 authorises the Deputy Commissioner to take charge of all lands other than occupied lands and home stead lands and of all interests vesting in the State under section 3 on the date of the vesting and by section 8 duty is imposed on the State Government to pay every proprietor who is divested of proprietary rights compensation in accordance with the rules contained in Schedule I Mahajan was undoubtedly at the date of vesting the superior holder of the half share in the fallow lands which were held by Surat Singh as lessee from him
Prima facie the claim of Mahajan 715 was covered by cl
g 3 ii of section 2 of the Act and Mahajan was entitled to the benefit of the exception in section 4 2
But counsel for the State contends that in respect of an undivided interest in land the superior holder is not entitled to the benefit of section 42 because it is not a holding
 Alternatively he contends that the land which is at the date of vesting lying fallow otherwise than in accordance with the usual agricultural practice can never be regarded as home farm
 In our view there is no substance in either of these contentions
Schedule A to the petition sets out the description of the various lands which Mahajan claimed should be treated as home farm land
Each of these lands is assessed
The expression holding  is not defined in the Act but by cl
d of section 2 expressions not defined in the Act in relation to Berar but used or explained in the Berar Land Revenue Code 1928 have the meaning assigned to those expressions in the latter Act
The Berar Land Revenue Code defines holding  as a a parcel of land separately assessed to land revenue andb in reference to land held by a tenant a parcel of land held from a landlord under one lease or set of conditions
 Evidently the survey numbers included in Schedule A to the petition were holdings within the meanings of the Berar Land Revenue Code and therefore within the meaning of that expression as used in the Act
It is true that Mahajan was not entitled to the entire area of each of these holdings but by the definition in the Act all lands included in holdings in Berar provided they fulfil the conditions in cl
i ii or iii of sub cl
3 are home farm lands
In other words a part of the holding or an undivided interest in the holding may also be home farm land if it otherwise fulfils the requirements of cli ii or iii of sub cl3
That a half share in the village which is included in the Schedule to the petition was granted 716 to Surat Singh on lease for cultivation cannot be gain said in view of the express covenants of the kabulayat
Certain lands in the village it is true were lying fallow wholly or partially at the date of the vesting but the lands having been granted in lease for cultivation in our judgment they are by virtue of section 42 to be retained in the possession of the proprietor provision of cl1 of section 4 notwithstanding
By sub section
2 of section 4 all home farm lands are to remain in possession of the proprietor there is no express exclusion of lands lying fallow from the benefit of section 4 2 and none such can be implied either from the scheme of the Act or the context in which section 4 2 occurs
If Mahajan had remained in occupation as proprietor and had allowed the lands to remain fallow they may have vested in the State and Mahajan may not have been entitled to claim the benefit of section 4 2 unless his case fell under cls
i and iii of section 2 g3 but the grant of a lease for cultivation evidences an intention on the part of Mahajan that the land be converted to agricultural purposes and default on the part of the lessee to cultivate those lands will not deprive the lessor proprietor of the benefit granted to him by the statute
In our view the High Court was right in holding that the words of cl
ii of section 2g 3 were explicit and a survey number which was lying fallow but was held by a lessee from the superior holder fell within the definition of home farm
 The appeal therefore fails and is dismissed with costs
Appeal dismissed


Summary:
In 1947 S conveyed by a sale deed to M an undivided half share of Land in his village
On the same day S executed a Kabulayat for 5 years in respect of the same land for cultivation
In 1951 the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1951 came into force and the Compensation Officer started enquiry about assessment of compensation
M claimed to retain possession of the half share in all the fallow lands in the village which had been leased by him for cultivation to S on the plea that these lands were home farm 
The claim 711 was rejected by the Compensation Officer and confirmed by the Additional Settlement Commissioner
The High Court of Nagpur quashed the order
In appeal to the Supreme the Additional Settlement Commissioner contended that in respect of an undivided interest in the land the superior holder is not entitled to the benefit of section 42 of the Act because it is not a holding  alternatively that the land which was at the date of vesting lying fallow otherwise than in accordance with the usual agricultural practice could never be regarded as home farm 
 Held that a part of a holding or an undivided interest in a  holding in Berar may also be home farm  land if it otherwise fulfils the requirement of cl
i ii or iii of sub cl
3 of section 2g of the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1951
The land having been granted in lease for cultivation it is by virtue of section 42 of the Act to be retained in the possession of the proprietor
Grant of a lease for cultivation evidences an intention on the part of the proprietor that the land is to be converted to agricultural purposes and default on the part of the lessee to cultivate the land will not deprive the lessor proprietor of the benefit granted to him by the statute