MALIK MOHAMMAD HANIF Vs. MOHAMMAD SALEEM KHAN

JUDGEMENT

(1.) THIS second appeal is by defendant No. 1. The only point raised before the lower appellate Court, where also the appeal had been filed by the same defendant, was that the transfer in favour of the plaintiff, who claimed possession over the land, was invalid because it was in contravention of section 165 of the M. P. Land Revenue Code, 1959. The facts, which are not in dispute, are that the plaintiff purchased the whole holding of 7. 66 acres from defendant No. 2 and thereupon wanted to take possession from the defendant no. 2, but in a criminal proceeding under section 145 of the Code of Criminal procedure it was held that defendant No. 1 was in possession. Consequently, the present suit was filed for declaration of title and possession. The suit has been decreed by the lower appellate Court on the ground that the transfer of this whole holding in favour of the plaintiff, though less than 10 acres of un-irrigated land, was not in contravention of section 165 (4) (b) of the Code.

(2.) AFTER hearing learned counsel for both the parties, I find that the decision of the Court below is quite correct. Although this sub-section has now been omitted, but it was in force at the time of the disputed sale and was in the following words :-

(3.) LEARNED counsel, appearing for the appellant, relied upon Ravishankar v. State of M. P. (1964 0 MPLJ 756 ). That was a case in which a person who had less than 10 acres of land transferred 0. 20 acre out of it. In that case, as a result of the transfer, a new holding comprising of 0. 20 acre in the hands of the purchaser and another new holding comprising of the previous holding minus 0. 20 acre would have come into existence. It was in those circumstances that it was held that the transfer was invalid and hit by section 165 (4) (b) of the Code. The facts of the present case are entirely different.