KASTURCHAND Vs. HARBILASH

JUDGEMENT

(1.) This appeal is directed against the judgment and order of the High Court of Madhya Pradesh, Jabalpur Bench at Gwallor in Second Appeal No. 385 of 1973 dated March 13, 1987. The resolution of the controversy in this appeal depends upon the true Interpretation of Section 4(2) of Madhya Bharat Zamindari Abolition Act, Samvat 2008 (Act 13 of 1951), referred to in this judgment as the Abolition Act.

(2.) The appellants are proprietors of the land in dispute within the meaning of Section 2(a) of the Abolition Act. The lands in dispute are Survey Nos. 2742, 3080 and 3105 of village Mehgaon, District Bhind (erstwhile Gwalior State) (for short the Suit Land).The appellants filed the suit out of which the present appeal arises, for recovery of possession of the suit land against the original defendant (son of Gayadeen) on the allegation that in Samvat 2008 Gayadeen dispossessed them and therefore, they are entitled to recover possession after ejectment of the respondents. They say that in Samvat year 2005 one Balku was cultivating the suit land. After that he abandoned it and the appellants cultivated the suit land (khud-kasht) during the Samvat years 2006, 2007 and 2008 and the same is so recorded in the annual village papers (Khasra). They alleged that in the khasra of Samvat year 2008 their name was struck off and name of one Gayadeen was got written with the connivance of the Patwari. They claimed to have become permanent tenant and from October 10, 1959, Bhoomiswami.

(3.) The claim of the appellants was contested by the respondents by pleading that Balku had never abandoned the suit land. In Samvat year 2008 he gave the possession of the land to Gayadeen who remained in possession till his death and thereafter the defendant was cultivating the land. The respondents claimed to be the heirs of the sub-tenant of Balku, a gair maurusi kashtkar. On the date of vesting of the Abolition Act he was in possession and, therefore, he was entitled to all the rights under the Abolition Act. The appellants' right, if any, was to continue in possession, if they were in possession on that date but as they were out of possession, they cannot seek recovery of possession from them.