Case: Meharbansingh And Others Vs. Nareshsingh And Others

proprietor shall continue to remain in Possession of his khud-kasht land, so recorded in the annual village papers before the date of vesting.(3) Nothing contained in sub-section (1) shall operate as bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting in virtue of his proprietary rights”8. A plain reading of these sections would show that all rights, title and interest of the proprietors in the area notified were to cease and were instead to vest in the State free from all encumbrances with effect from the date of notification and after such vesting in the State every mortgage with possession existing on the property so vested or part thereof on the date immediately preceding the date of vesting, to the extent of the amount secured on such property or part there-of, is to be deemed, without prejudice to the right of the State under Section 3 to have been substituted by a simple mortgage. The proprietor, however, notwithstanding other consequences of the vesting in a State, is entitled to continue to remain in possession of his khud-kasht land which is so recorded in the annual village papers before the date of vesting. Now it was clearly open to the plaintiffs to show that the land in question was khud-kasht and, therefore, in accordance with Section 4 they were entitled to remain in Possession there of.9. On behalf of the appellants also our attention was invited to the decision of this Court in the case of Haji S. K. Subhan, (l962) Supp 1 SCR 123 = (AIR 1962 SC 1230 ) (supra) and specific reliance was placed on observations at p. 139 (of SCR) = (at p. 1237 of AIR) of the report which suggests that a person continuing in possession on the basis of entries in the village papers, which had to be presumed to be correct, was not affected by the Act Reference was also made to the observation at page 142 (of SCR) = (at page 1238 of AIR) of the report where right to possess was upheld in favour of the party who had obtained a declaration of being an owner in possession10. On behalf of the respondents reliance was placed on Rana Sheo Ambar Singh v. Allahabad Bank Ltd. Allahabad 1962-2 SCR 441 = (AIR 1961 SC 1790 ) but that decision does not deal with the Madhya Bharat Act which concerns us. That decision is concerned with the U. P. Zamindari Abolition and Land Reforms Act I of 1951, the scheme of which is not shown to be similar to that of the Madhya Bharat Act so far as it concerns us in the present case. That decision is therefore, of little assistance in construing the Madhya Bharat Act Another decision on which the respondents learned Advocate has placed reliance is Sailendra Narayan Bhai Deo v Jagat Kishore Prasad Narayan Singh, 1962 Supp (2) SCR 119 = (AIR 1962 SC 914 ) which again deals with the Bihar Lands Reforms Act and not with the Madhya Bharat Act. The scheme of the Bihar Act being also dissimilar from that of the Madhya Bharat Act, this decision too cannot be of much help.11. The last decision relied on by Shri Mishra is Suraj Ahir v. Prithinath Singh, AIR 1963 SC 454 which is concerned with the Bihar Lands Reforms Act XXX of 1950 as amended by Act XVI of 1959. This decision is equally unhelpful12. In our opinion the High Court was in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority of this Courts decision in the case of Haji S. K. Subhan (1962) Supp 1 SCR 123 - (AIR 1962 SC 1230 ) (supra).In the reported case the word "document" as occurring in Section 4 (1) of the M. P. Abolition of Proprietary Rights Act (M. P. Act 1 of 1951) was construed to include a decree of the Court and it was held that the principle that the executing Court cannot question the decree and has to execute it, had no operation on the facts of that case, because the objection was not based on the invalidity of the decree but on the effect of the aforesaid Act on the rights of the decree holder proprietor to retain possession. The facts of that case were, therefore, different and so was the problem requiring solution. The precise question requiring decision by the Court in the present case was lost sight of and not properly adverted to. We are required in the present case to consider the effect of Section 4 (I) (f) of the M. B. Act XIII of 1951 on the rights of the plaintiff-appellants to redeem the mortgage and secure possession of the mortgaged land.13. It may be pointed out that both the contesting parties - the appellants and the respondents - before us claim for themselves actual possession of the land in dispute as khud-kasht and also assert that the relevant entries in the annual village papers before the date of vesting showed them in such Possession. On this basis they both claim right to retain possession even against the State. These rival controversial claims pressed by both the parties was the central question involving proper appraisal of material on the record and this basic dispute had to be first adverted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of the M. B. Act XIII of 1951 to the facts found. As the question of vesting of title in the State was also of vital importance it was, in our opinion, fit and proper for the Courts below to have issued notice to the State as well, thereby enabling it to be impleaded as a party if it so desired. The approach of the High Court is erroneous and its decision highly unsatisfactory. The controlling question seems to have been missed

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

Explanation:
1[ds]The submission is not wholly correct. There was in fact an amendment of the plaint pursuant to the enactment of the Madhya Bharat Abolition of Zamindari Act (sic) and additional issues were framed on the amended pleadings. The parties and the Courts were thus not ignorant of the existence of the said Act on the statute book.A plain reading of these sections would show that all rights, title and interest of the proprietors in the area notified were to cease and were instead to vest in the State free from all encumbrances with effect from the date of notification and after such vesting in the State every mortgage with possession existing on the property so vested or part thereof on the date immediately preceding the date of vesting, to the extent of the amount secured on such property or part there-of, is to be deemed, without prejudice to the right of the State under Section 3 to have been substituted by a simple mortgage. The proprietor, however, notwithstanding other consequences of the vesting in a State, is entitled to continue to remain in possession of his khud-kasht land which is so recorded in the annual village papers before the date of vesting. Now it was clearly open to the plaintiffs to show that the land in question was khud-kasht and, therefore, in accordance with Section 4 they were entitled to remain in Possession thereIn our opinion the High Court was in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority of this Courts decision in the case of Haji S. K. Subhan (1962) Supp 1 SCR 123 - (AIR 1962 SC 1230  )the reported case the word "document" as occurring in Section 4 (1) of the M. P. Abolition of Proprietary Rights Act (M. P. Act 1 of 1951) was construed to include a decree of the Court and it was held that the principle that the executing Court cannot question the decree and has to execute it, had no operation on the facts of that case, because the objection was not based on the invalidity of the decree but on the effect of the aforesaid Act on the rights of the decree holder proprietor to retain possession. The facts of that case were, therefore, different and so was the problem requiring solution. The precise question requiring decision by the Court in the present case was lost sight of and not properly adverted to. We are required in the present case to consider the effect of Section 4 (I) (f) of the M. B. Act XIII of 1951 on the rights of the plaintiff-appellants to redeem the mortgage and secure possession of the mortgaged land.13. It may be pointed out that both the contesting parties - the appellants and the respondents - before us claim for themselves actual possession of the land in dispute as khud-kasht and also assert that the relevant entries in the annual village papers before the date of vesting showed them in such Possession. On this basis they both claim right to retain possession even against the State. These rival controversial claims pressed by both the parties was the central question involving proper appraisal of material on the record and this basic dispute had to be first adverted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of the M. B. Act XIII of 1951 to the facts found. As the question of vesting of title in the State was also of vital importance it was, in our opinion, fit and proper for the Courts below to have issued notice to the State as well, thereby enabling it to be impleaded as a party if it so desired. The approach of the High Court is erroneous and its decision highly unsatisfactory. The controlling question seems to have been misse