AHMAD HAFIZ KHAN Vs. MOHAMMAD HASAN KHAN

JUDGEMENT

(1.) One Mohd Yusaf obtained a money decree for Rupees 1,277-7-0 against the appellant, Ahmad Hafiz Khan, on January 14, 1950. In execution of the decree Mohd. Yusaf attached two annas and 5-7/45 pies share of the appellant in Mouza Tumhari, Tahsil Sakti, District Bilaspur, along with sir and Khudkasht lands appurtenant thereto. The attachment was made on September 28, 1950. On March 31, 1951, before the sale took place, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M. P. Act No. 1 of 1951) was made applicable to that area. In view of the provisions of the Abolition Act the proprietary rights in the village vested in the State. Thus far there is no dispute.

(2.) On October 1, 1951, the fields under attachment were put to sale and were purchased by the respondent, Mohd. Hasan Khan. The appellant filed an application setting forth objections under O. 21, R. 90 of the Code of Civil Procedure but the application was dismissed and the sale was confirmed on February 1, 1952. The Judgment-debtor appealed against the order dismissing the application and on May 1, 1952, the Additional District Judge, Bilaspur, set aside the sale, and possession of the property was restored to the appellant. On further appeal by the auction purchaser the order of the Additional District Judge was reversed and the auction purchaser was put in possession of the property on April l6, 1955. Both the appellant and the auction purchaser applied to the executing Court. The appellant raised further objection while the auction purchaser asked for mesne profits under S. 144 of the Code of Civil Procedure. We are concerned with the application of the appellant. The objection of the appellant was dismissed by the Civil Judge and his successive appeals to the District Judge and the High Court also failed. The judgment of the High Court was passed on December 24, 1959, and the present appeal is filed against that judgment with the special leave of this Court. The contention of the appellant is that the cultivating rights in the sir lands could not be the subject-matter of sale in execution of the decree in view of S. 43 of the Abolition Act. This argument was not accepted by the High Court and it is contended that the decision of the High Court is erroneous. In our opinion the contention must be sustained.

(3.) Under the Central Provinces Tenancy Act, 1920, a proprietor losing his right to occupy sir land, as a proprietor, became from the date of such loss of right an occupancy tenant of sir lands. This was provided by S. 49 of the Act which, in so far as relevant to the present purpose, read as follows: