Case: Himatrao Vs. Jaikishandas And Ors

1. Both these appeals arise out of a suit instituted by Himmatrao, appellant in C. A. 1034 of 1963 for declaration that he is owner of 1 anna 5 pies share in the village Mozara, District Yeotmal and for partition and separate possession of the property that would fall to the aforesaid share. Certain other reliefs were also prayed for by him; but it is not necessary to refer to them for the purpose of deciding these appeals. To this suit he joined other co-sharers in the village as well as alienees from some of their co-sharers. This suit was instituted by him on December 7, 1939 and was partially decreed on July 31, 1944 by the court of Sub-Judge, second class, Darwha. He preferred an appeal from the decree of the trial court. So also Pusaram, one of the defendants to the partition suit preferred an appeal from the decree of the trial court and some other defendants preferred cross-objection against that decree. The appeal of Himmatrao was allowed while that of Pusaram was dismissed. The cross-objections of Jugalkishore and Jaykumar succeeded while that of Laxman Vinayak who is the appellants brother in C. A. 1035 of 1963 was dismissed. Pusaram preferred two appeals before the High Court from the judgment of the lower appellate court, Second Appeal No. 574 of 1946 and Second Appeal No. 576 of 1946. Laxman Vinayak preferred Second Appeal No. 608 of 1946. All these appeals were heard together and disposed of by a common judgment. It was urged before the High Court on behalf of Pusaram that the suit for partition had become infructuous because of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Aliendated Lands) Act, 1950 (No. 1 of 1951) and, therefore, as held in Chhote Khan v. Mohammad Obedullakhan, ILR 1953 Nag 702: (AIR 1953 Nag 361) (FB), the suit should be dismissed. This contention was upheld by the High Court and an order to this effect was made in all the appeals.

Court's reasoning:
It is no doubt true that so far as the proprietary interest in the village is concerned the whole of it has now been acquired by the State and vests in it. But under the provisions of the Act compensation is payable to the ex-proprietors by virtue of the provisions of the Act. This proprietary interest is analogous to what is known as the interest of the intermediary in similar Acts enacted in many other States of India. The acquisition of such an interest by the State would not put an end to the various rights of ex-proprietors in their capacity as owners of property. Thus, every co-sharer could, despite the acquisition of his proprietary right obtain a declaration from a civil court as to the fact and extent of his share in the pre-existing proprietary rights of that village so that he could lay claim to a proportionate amount of compensation and to a proportionate extent of home-farm land in that village. The High Court seems to think that inasmuch as Himatrao was admittedly not in cultivating possession of any part of the land in the village he could not lay any claim to a partition of the home-farm land. We have already given the definition of home-farm. It would be clear from it that the village being still undivided every bit of land which was in cultivating possession of any of the co-sharers in the village would be deemed to be in possession of the entire body of co-sharers. The same would apply to land in possession of lessees or ordinary tenant. The right to enforce a claim to a partition of this land is in no way affected by any of the provisions of the Act or by the interpretation placed on the provisions of the Act in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB). Suffice it to say that Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), was concerned with the right of an ex-lumbardar to continue after the coming into force of the Act, a suit for possession of abadi land which had vested in the State. In the present suit a number of reliefs which Himatrao claimed are with respect to property which has not vested in the State. A somewhat similar argument was sought to be advanced before the Nagpur High Court on the basis of the decision in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), in Rahmatullah Khan v. Mahabirsingh, ILR (1955) Nag 983: (AIR 1956 Nag 132). While rejecting the argument the majority of the Judges who decided the case pointed out that a distinction has to be made between a suit brought by a proprietor in his character as proprietor for possession of property which the law then in force authorised him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such proprietor. If this distinction had been borne in mind by the High Court it would not have dismissed the suit as wholly infructuous4. An argument was sought to be advanced on behalf of the respondents by Mr. Patwardhan that the suit was also barred by the principle of res judicata. However, learned counsel realising that there was no substance in that contention gave it up. We, therefore, need say nothing more on the point5. For the reasons which we have given, it is clear that the matter must go back to the High Court for deciding the appeals before it on other merits. Dr. Barlingay, who appears for Laxman Vinayak, has said that he adopts the arguments addressed before us on behalf of Himatrao by Mr. S. T. Desai and has nothing to add. He said that he would be content with the order that the appeals be heard and decided on merits by the High Court.