HAJI SK SUBHAN Vs. MADHORAO

JUDGEMENT

(1.) This appeal, on certificate granted by the High Court at Nagpur, is directed against its order dismissing the appellant's appeal against the dismissal of his objection, under S. 47 of the Code. of Civil procedure, by the III Civil Judge, Class I, Nagpur.

(2.) The respondent purchased at auction sale, held by the Revenue officer for recovery of arrears of land revenue, eight anna share of Ganpatrao in mouza Vadoda, Tehsil and District Nagpur, in the Central Provinces, and obtained formal possession of that share on September 23, 1938. Ganpatrao relinquished his share in khudkasht lands and they were recorded as the occupancy lands of his wife and sons. They surrendered those fields to lambardar Narain, who leased those fields in occupancy right to the appellant in 1940. The respondent filed a suit for possession of certain fields including the fields in suit viz., fields khasra nos. 147 and 154, and based his claim on his proprietary right to recover possession and not on the loss of possession on account of the appellant's dispossessing him. The suit was decreed and the decree was upheld by the Nagpur High Court by its order dated April 20, 1951, it being held that the respondent was entitled to the fields in suit which were originally khudkasht fields as part and parcel of the eight anna share of Mahal No. 2 purchased by the respondent.

(3.) It so happened that between the closing of the arguments in the appeal before the High Court, some time before March 31, 1951, and the delivery of judgment on April 20, 1951, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M. P. Act No. I of 1951), hereinafter called the Act, came into force. This fact does not appear to have been brought to the notice of the High Court as it did not consider the effect of the Act on the appeal before it.