GORDHAN DAS Vs. PIRKHAN

JUDGEMENT

(1.) In this appeal, by special leave, the appellant has impugned the judgment of the Madhya Pradesh High Court, Jabalpur Bench in Second Appeal No. 219 of 1975.

(2.) Allarakh was the brother of Naharkhan, who was a Maurusi tenant (occupancy tenant) of the erstwhile Zamindar.The Madhya Pradesh Zamindari Abolition Act, 1951 (for short 'the Zamindari Abolition Act') came into force on 2nd of October, 1951. Under the Zamindari Abolition Act, the intermediary was expropriated so that the tiller of the soil became tenant directly under the State Naharkhan was given status of Bhoomiswami under the Madhya Pradesh Land Revenue Code, 1959 . It was alleged that Naharkhan inducted Gulkhan as a tenant before coming into force of the Zamindari Abolition Act and therefore he became a Pacca tenant and continued possession by cultivating suit land. Gulkhan filed an application under Section 38 of the Zamindari Abolition Act before the revenue Court for being declared as a Pacca tenant. It was averred that Naharkhan filed an Iqbal Dava (consenting written statement) in the above proceeding before the revenue Court making admission of the fact of tenancy of Gulkhan. This application was dismissed for default. Naharkhan died on 14th November, 1954 and in his place the name of Allarakh was mutated in the revenue record. Subsequently, apprehending obstruction from Allarakh, Gulkhan filed another application under Section 38 of the Zamindari Abolition Act for being declared as a Pacca tenant, which was resisted by Allarakh. In the written statement of Allarakh, it was admitted that Gulkhan was in possession of the suit land for preceding four years but pleaded that he did not acquire any tenancy rights. The application filed by Gulkhan was allowed and he was declared as a Pacca tenant and accordingly direction was given to record his name in the revenue record. The appeal and the revision filed by Allarakh were dismissed. Thereafter Allarakh filed a civil suit in the Court of Civil Judge, Class II, Mandsaur for declaration that orders passed by the revenue Courts against him were inoperative and his name be recorded in revenue record as land owner and permanent cultivator. Prayer was also made for recovery of possession. In this suit Gulkhan was impleaded as defendant No. 1 and as the land was sold to other persons they were also impleaded as defendants Nos. 2 to 4. It was pleaded by Allahrakh that defendant No. 1 being the son of the sister of deceased Naharkhan was living jointly within and used to manage the cultivation of Naharkhan as a family member and, therefore, he did not acquire Pacca tenancy right over the suit land. The Trial Court decreed the suit, which was reversed by the First Appellate Court and affirmed by the High Court by the impugned judgment and hence this appeal.

(3.) The only question that needs our consideration is whether Gulkhan, whose possession over the suit land for about four years prior to the commencement of the filing of suit, was not disputed by the plaintiff, has acquired right of Pacca tenant over the suit land.