CHOUDHARY UDAI SINGH D Vs. NARAYANIBAI

JUDGEMENT

(1.) The plaintiffs are in appeal before us. They brought a suit for possession in respect of certain practice of agricultural land and for recovery of mesne profits. Their case is that one Madhorao had effected a mortgage of the suit lands in their favour and he brought a suit for redemption which was decreed and on his filing execution petition the same was resisted by the appellants on the ground that it was barred by limitation. The executing court however overruled the objections raised by the appellants and in execution of the aforesaid decree delivered possession of the suit lands to Madhorao on 15.7.1949. On appeal filed by the appellants the Additional District Judge, Garoth, reversed that order of the executing court and held that the application for execution was barred by time. When the matter was carried further by Madhorao the order passed by Additional Distt. Judge was

(2.) The appellants filed an application for restitution on 12.5.1953. That application was rejected on an objection being raised by one Kishan Lal stating that he was in possession of the lands in question, who was not a party to earlier proceedings. So the present suit has been filed by the appellants against Kishan Lal for recovery of possession of the suit lands. The stand of Kishan Lal in the suit is that he has been in possession of the suit lands as a tenant of the Zamindar on 2.10. 1951 when the M. B. Zamindari Abolition Act (hereinafter referred to as 'the Act') came into force and hence he became a pucca tenant of the State Government under Section 38 of the Act. However the trial court decreed the appellants' suit. On appeal the lower appellate court held that on 2.10. 1951 when the propriety rights in the suit lands vested in the State under the Act the appellants had lost all interest in the same and that the said Kishan Lal had become a pucca tenant of the suit lands by virtue of the provisions of Section 38 of the Act and thus the appellant was not entitled to any relief. On this basis the lower appellate court allowed the appeal and dismissed the suit filed by the plaintiffs-appellants. Thereafter, the appellants carried the matter unsuccessfully in second appeal. Hence this appeal by special leave.

(3.) The suit land was situated in a village which was settled under the Zamindari System in the erstwhile State of Gwalior when Madhorao was Malguzar of the said village and appellants were mortgagees who could be described in the category of Malguzars as defined by Section 2 (12) of Qanoon Mal, Gwalior and, therefore, could be treated to be proprietors as defined by Section 2 (a) of the Act.