Case: State Of Madhya Pradesh &amp; Ors Vs. Sardar D. K. Jadhav

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 S. 5 (c) of the Abolition Act, cannot be accepted. 21. Now coming to the merits, it is clear that as from the date of resumption, the consequences enumerated under S. 4 will have full effects. Except as otherwise provided in the Abolition Act, normally under Cl. (a) of Section 4 (1) the right, title and interest of every Jagirdar 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 S. 5. If the respondent is able to establish that the tanks in question are on occupied land belonging or held by the Jagirdar or any other person then those tanks are saved in favour of the respondent under S. 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 sub-merged at times and at other times portions of the same are being cultivated either by the respondent or by other persons under certain tenures. That is, parts of tanks are included and held by respondent as khud kasht and rest of it is held by the tenure-holders, who have got tenancy right over them. 22. 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 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. 23. In order to get the tanks in question saved under S. 5 (c) of the Abolition Act, the respondent will have to establish; (a) They were on occupied land; and (b) they belonged to or were held by the Jagirdar or any other person. 24. 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 comprised in a homestead. Therefore, occupied land comprises broadly of two type of lands: (1) four categories of land held under the tenures enumerated in sub-cls. (a) to (d); and (2) comprised in khud-kasht and "Homestead". To attract cl. (c) of S. 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 S. 2 (1) (ix) or exclusively in the land held 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 tank is situated in one or other of the tenures mentioned in sub-clauses (a) to (d) of cl. (ix) of S. 2 (1) and the rest of it is included in the land held as khud-kasht and land comprised in a home stead. That is, the entire area of the tank must be comprised in either the tenures or the khud-kasht and homestead or in both. Therefore, it is 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 wording of cl. (ix) of S. 2 (1), which takes in also lands held on the various tenures referred to therein. 25. From this, it follows that the mere fact that a part of the tank is in the occupation of the tenants as tenure-holders does not detract from operation of the saving cl. (c) of S. 5.There is no controversy that at the material date the occupied lands on which the 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 enumerated in sub-clauses (a) to (d) of S. 2 (1) (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 andin 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 these parties.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. Though Mr. I. N. Shroff, 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 Court19. 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 S. 5 (c) 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 ofg 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 S. 5 (c) 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 before 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 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 straightway20. 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 S. 5 (c) of the Abolition Act. In that connection the High Court had naturally to consider the scope of the definition of "Occupied land" under S. 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 S. 5 (c) of the Abolition Act, cannot be accepted21. Now coming to the merits, it is clear that as from the date of resumption, the consequences enumerated under S. 4 will have full effects. Except as otherwise provided in the Abolition Act, normally under Cl. (a) of Section 4 (1) the right, title and interest of every Jagirdar 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 S. 5. If the respondent is able to establish that the tanks in question are on occupied land belonging or held by the Jagirdar or any other person then those tanks are saved in favour of the respondent under S. 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 getd at times and at other times portions of the same are being cultivated either by the respondent or by other persons under certain tenures. That is, parts of tanks are included and held by respondent as khud kasht and rest of it is held by the, who have got tenancy right over them22. As the other, 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 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 dispute23. In order to get the tanks in question saved under S. 5 (c) of the Abolition Act, the respondent will have to establish; (a) They were on occupied land; and (b) they belonged to or were held by the Jagirdar or any other person24. 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. (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 comprised in a homestead. Therefore, occupied land comprises broadly of two type of lands: (1) four categories of land held under the tenures enumerated in. (a) to (d); and (2) comprised int and "Homestead". To attract cl. (c) of S. 5, the tank must be shown, in the first instance, to be on occupied land,that is, on land comprised under the tenures enumerated ins (a) to (d) or in the land held ast 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 ins (a) to (d) of S. 2 (1) (ix) or exclusively in the land held ast and land comprised in homestead. The requirement of the tanks in question being on occupied land, will be satisfied even if part of the tank is situated in one or other of the tenures mentioned ins (a) to (d) of cl. (ix) of S. 2 (1) and the rest of it is included in the land held ast and land comprised in a home stead. That is, the entire area of the tank must be comprised in either the tenures or thet and homestead or in both. Therefore, it is not possible to accept the contention advanced on behalf of the appellant state that only those tanks, which are ont land of the Jagirdar are saved to him. Acceptance of such a contention will be ignoring the clear wording of cl. (ix) of S. 2 (1), which takes in also lands held on the various tenures referred to therein25. From this, it follows that the mere fact that a part of the tank is in the occupation of the tenants ass does not detract from operation of the saving cl. (c) of S. 5.There is no controversy that at the material date the occupied lands on which the 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 enumerated ins (a) to (d) of S. 2 (1) (ix) of the Abolition Act. Whatever may be the extent of the tanks in the possession of the respondent, as hist or homestead andin the possession of the, 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 these parties.