Appeal No. 100 of 1962

15th April, 1968.

Petitioner Counsel: B.A. Udhoji
Respondent Counsel: M.M. Quazi

Cases Cited:
1962 NLJ 1.

JUDGMENT

JUDGMENT:- This is a plaintiffs' second appeal in which they are challenging the decisions of the Courts below holding that they are not entitled to a declaration that Khasra Nos. 59, 91, 92, 93 and 63 in Mhatardevi village were their Khudkast lands before the date of vesting.

2. The first 4 of these fields were obtained by one Girjashankar who is the predecessor-in-title of the present plaintiffs in pre-emption proceedings by virtue of his sale deed dated 15th July 1942 executed in his favour by the then Sub-Divisional Officer, Chanda. The 5th field khasra No. 63 came to Girjashankar as a result of surrender deed dated 24th June 1941. These lands which measure 13.74 acres became his Khudkast lands. The lands, however, came to be recorded as grass in the year 1948-49, as they remained fallow for a period of 3 years. As a result of the abolition of proprietary rights, these lands were declared to have vested in the State of Madhya Pradesh, with effect from the date of vesting which was 31st March 1951 in the region in which the fields are situated.

3. Girjashankar, thereafter, made an application on 18th November 1952 for a relief that the fields should be recorded as Malik-makbuza as they were his Khudkast. This application was rejected by the Additional Deputy Commissioner who was also Nistar Officer, and appeal from that order was also rejected by the Revenue Tribunal on 16th January 1957.

4. In the mean time Girjashankar died on 6-6-1957 and the present suit was instituted by the present appellants on 7-10-1958 after serving a notice under section 80 of the Civil Procedure Code on 10-7-1958. In the plaint the plaintiffs' case was that the fields were in cultivation of the deceased Girjashankar since 1940-41 and they had, therefore, acquired the character of a Khudkast land. It is necessary here to reproduce the exact plea raised by the plaintiffs as to why this land should not vest in the State. This plea is raised in paragraph 4(h) of the plaint in the following words:

"For some period, the aforesaid lands were reserved for growing grass and fodder for the grazing of deceased's agricultural cattle used for his cultivation of said mouza; according to the usual agricultural practice and that these lands were never lying fallow, nor were they used for communal purposes. But the Patwari wrongly recorded these fields of the plaintiffs as grass in khasra papers; and relying on these wrong entries, all this land was treated as vested in the State after the Madhya Pradesh Abolition of Proprietary Rights Act I of 1951 came into force."

The plaintiffs, therefore, sought a declaration that they were the Malik-makbuza, Bhumiswami and occupancy Bhumidhari tenants of the lands and a consequential relief of perpetual injunction restraining the defendant-State and its Officers from interfering with the possession of the plaintiffs over the said lands was also claimed. The defendant the then State of Bombay, justified the entries in the Khasras which showed that the lands were recorded as grass and the claim of the plaintiffs that the lands were not liable to vest in the State was contested. Oral evidence was led by the plaintiffs substantially to prove the plea that though the land was reserved for growing grass, it was reserved by way of or in accordance with the usual agricultural practice. When the evidence was appreciated by the trial Court, the trial Court found that the evidence led was completely in variance with the plea raised by the plaintiffs. While the plea was that the land was allowed to lie fallow by way of agricultural practice, the evidence was that it was never so fallow and was all along cultivated. Thus the trial Court came to a finding that the fields were never cultivated by the plaintiffs during the years 1944-45 to 1948-49. The trial Court further found that the record made by the Patwari in the Khasras that these fields were fallow and therefore were liable to be recorded as grass, was perfectly correct. As these fields did not fall within the provisions contained in section 2(g) of the Madhya Pradesh Abolition of Proprietary Rights Act (hereinafter referred to as the Act), the trial Court found that the land had properly vested in the State. Against this decision, the plaintiffs appealed and the lower appellate Court affirmed the finding of the trial Court that the land was fallow in the years 1944-15 to 1948-49, and in view of this state of record, the lower appellate Court also came to the conclusion that the plaintiffs were not entitled to any declaration as prayed for by them. The plaintiffs are challenging this decision in this second appeal.

5. The learned counsel for the appellants Shri Udhoji fairly accepted the finding of fact given by the two Courts below that the land was fallow in the years 1944-45 to 1948-49 and that since it was fallow, it was rightly recorded as grass. But he raised another contention based on this record that even assuming that it was recorded as grass land, the lower Courts ought to have held that it was so allowed to lie fallow as a result of agricultural practice and growing grass in accordance with such agricultural practice was included in the

definition of agriculture as given in section 2(2) of the Central Provinces Tenancy Act, 1920, which was then in force. According to him, since the land was thus used for agriculture, the entries showing that as grass land could not change the nature of the use to which the land was being put, namely, agricultural use, and therefore, this land must also be included in his home-farm land. In order to appreciate this contention, it is necessary to refer to the definition of home-farm in section 2(g) of the Act which is as under:

"2(g)"home farm"means:

(1) in relation to the Central Provinces,- (i) land recorded as sir and khudkast in the name of a proprietor in the annual papers for the year 1948-49, and (ii) land acquired by a proprietor by surrender from tenants after the year 1948-49 till the date of vesting.

(2) in relation to merged territories, that part of the land under the personal cultivation of the proprietor on the date of vesting which was similarly under cultivation in the agricultural year 1949-50 and which he is entitled to retain on the termination of proprietary tenure under any instrument having the force of law and applicable to such tenure.

Explanation: Land under personal cultivation includes land allowed to lie fallow in accordance with the usual agricultural practice, but does not include any land in lawful possession of a raiyat or tenant;"

The learned counsel was also relying on the Explanation which is incorporated in the definition of "home-farm." As a result of the Explanation which is added after sub-clause (2) of the definition of "home-farm", land which is allowed to lie fallow in accordance with usual agricultural practice is to be treated as "land under personal cultivation". Now this phrase "land under personal cultivation" is not to be found in sub-clause (1) of the definition of 'home-farm' which defines the meaning of 'home-farm' in relation to Central Provinces. The phrase "land under personal cultivation" is to be found only in sub-clause (2) of the definition and this sub-clause (2) refers to the meaning of 'home-farm' only in relation to merged territories. The Explanation, therefore, cannot be said to govern the definition of 'home-farm' of sub-clause (1) and it only governs the definition of home-farm in relation to merged territories. It is only by virtue of the Explanation applicable only in case of merged territories that the land which is allowed to lie fallow in accordance with the usual agricultural practice, which would not otherwise have been included in the normal meaning of "land under personal cultivation", is included within that phrase. The suit land is admittedly not situated in the merged territories. I am unable to see how the plaintiffs whose fields are situated in the region formerly known as the Central Provinces, are entitled to take advantage of this explanation and urge that the land which was fallow, even assuming that it was allowed to lie fallow by way of agricultural practice, must be included within the definition of home-farm in sub-clause (1) of clause (g) of section 2 of the Act. Accepting this contention would be amending the definition of home-farm in sub-clause (1) which is certainly not permissible.

6. The definition of 'home-farm' has now been construed by the Supreme Court in Haji Sk. Subhan v. Madhorao Narayanrao Ghatate1 and the Supreme Court has laid down- "The only condition requisite for the proprietor having certain land treated as his home-farm was the fact that the annual papers of 1948-49 recorded that land as his sir and khudkast. The basis was the record and not the fact of actual cultivation or his title to that land".

Dealing with the definition of 'home-farm' the Supreme Court has further observed in paragraph 22 of the judgment as follows:

"The definition evidences the intention of the Legislature to remove the question of certain land being 'home-farm' or not from the sphere of litigation. Recorded entry was treated to be the basis for adjudging the land to be 'home-farm'."It is thus now beyond controversy that if land is not recorded as sir or khudkast in the name of the proprietor in the year 1948-49 then that land cannot become the home-farm of the ex-proprietor and enquiry is clearly ruled out as to whether the land should have been recorded as khudkast or not. Admittedly in the instant case the annual papers for the year 1948-49 show that this land is recorded as grass because it has been lying fallow for more than 3 years. If, therefore, the question whether it ought to have been recorded as khudkast or whether it was wrongly recorded as grass or whether though it is recorded as grass it was used for agriculture or not, is a question which cannot be enquired into because such an enquiry is bound to result in litigation which, as observed by the Supreme Court, it was the intention of the Legislature to avoid. It is, therefore, difficult to appreciate the contention of the learned counsel that though the land was recorded as grass it was used for agricultural purpose, and therefore, the land must become his khudkast and should not have vested in the State.

7. Since the land was not recorded as khudkast in the Annual papers for the year 1948-49 it had rightly vested in the State and the plaintiffs were, therefore, not entitled to any declaration as prayed for by them. The result, therefore, is that this appeal fails and is dismissed with costs.

Appeal dismissed.