MRITUNJAYAPRASAD SHITAL PRASAD SUBHEDAR Vs. STATE OF MADHYA PRADESH THROUGH THE COLLECTOR, HOSHANGABAD

JUDGEMENT

(1.) THIS appeal is by the plaintiffs in Civil Suit No. 12 -A of 1955 of the Court of Additional District Judge, Hoshangabad. That suit was filed by the appellants against the respondent State Government for a declaration that the suit lands became malih -makbuza lands of the plaintiffs after the Madbya Pradesh Abolition of Proprietary Bights (Estates, Mahals, Alienated Lands) Act, 1950 (No. I of 1951) -hereinafter referred to as the 'Abolition Act'. The plaintiffs were the Lambardars of the fourteen villages specified in the plaint. The total area of the lands which the plaintiffs claimed as their khudkasht lands is 2,040 acres. Lands detailed in Schedule B annexed to the plaint were khudkasht lands of the predecessors of the plaintiffs in the last Settlement which took place in 1917 -18. Lands shown in Schedule C were then recorded as the plaintiffs' khudkasht. Lands in Schedule D, which consist of 1220 acres, were recorded as "Chhota Ghas" at the time of the last Settlement and continue to be so recorded ever since. The lands in the first two schedules were also recorded as "Chhota Ghas'1 several years ago and were so recorded in 1948 -49. The plaintiffs' case is that in spite of the record in village papers, these lands continued to be their khudkasht lands. They stated that they cultivated these lands with crops occasionally and at times they cultivated grass on them. They plead that they were entitled to retain the lands as their "home -farm'' lands under the provisions of the Abolition Act. On behalf of the State, it was stated that the lands were not cultivated for many years before suit and they ceased to be khudkasht when the plaintiffs stopped cultivating them. Other pleas were raised to resist the claim; but it is not necessary to refer to them.

(2.) THE trial Court held that the lands in suit were not cultivated by the plaintiffs; that they were not lying fallow according to agricultural practice; that grass grew spontaneously on the lands and was not actively cultivated; and that the lands thus ceased to be the khudkasht lands of the plaintiffs long ago. Other issues framed on the defences raised by the State Government were also found against the plaintiffs. The suit was accordingly dismissed. We need not examine the correctness of the findings of the trial Court on all these issues; as we are of opinion that the suit must fail in view of the recent pronouncement of the Supreme Court in Haji Sk. Subban v. Madhorao : 1962 M P L J 265 (C. A. No. 286/58, D/ - 16 -10 -1961.). Section 2(g) of the Abolition Act defines "home -farm" for Central Provinces in sub -clause (1) as follows: (g) 'home -farm' means, - IN relation to the Central Provinces, - (i) land recorded as sir and khudkasht in the name of a proprietor in the annual papers for the year 1948 -49; and (ii) land acquired by a proprietor by surrender from tenants after the year 1948 -49 till the date of vesting. Under this definition, only that land can be considered to be the 'home -farm' land of the ex -proprietor which was recorded as such in the annual papers of 1948 -49. This definition was considered in Rahmatullah Khan v, Mahabirsingh, 1956 N L J 1 :, A I R 1956 Nag. 132 :, I L R 1955 Nag. 983 and it was held that an erroneous recording of khudkasht land as an occupancy land would not in law alter the real character of that land. Accordingly, it was laid down that not only land which was recorded but also land which should have been recorded as khudkaeht land fell within the definition of 'home -farm'. Following this pronouncement, quite a large number of suits were filed by ex -proprietors pressing their claim to retain lands which were not recorded as khudkasht but which should have been so recorded for one reason or another. In Haji Sk, Subban's case : 1962 M P L J 265(C. A. No. 285/58, D/ - 16 -10 -1961.), the question was considered in the light of the several provisions in the Abolition Act. After quoting the definition of "home -farm' land as given in section 2(g), their Lordships discussed the matter thus : It is significant to note in this connection that - sub -clause (i) refers to land actually recorded as sir end khudkasht in the annual papers of 1948 -49 and does not refer in terms to land which was the air and khudkasht of the proprietor in that year and which ought to have been recorded as such in those papers but had not been so recorded. Further:

(3.) SHRI Sharma contends that these instructions are not in consonance with section 2 (5) of the C. P. Land Revenue Act, 1917, which defines "khudkasht" as "that part of the home -farm of a Mahal which is cultivated by the proprietor as each and which is not sir land" and according to Explanation (I) following the definition: "Land allowed to lie fallow according to agricultural practice shall be deemed to be cultivated". It appears to us that the instructions were given in the light of the definition of kkudkasht land and the framers of that definition must have known full well the agricultural practice of allowing lands to He fallow for recuperation when they said that land which was not cultivated for four years or more should "be deemed to be out of occupation". Any way, the intention of the Legislature in laying down a rough and ready test was, as their Lordships state, to remove the question from the sphere of litigation. An enquiry into the matter would obviously defeat this intention as the lengthy litigation in several cases in this Court and Courts below has demonstrated. The Legislature is deemed to have full knowledge of how village papers were prepared in the light of instructions and if it chose to confine the right to land recorded as "kkudkasht" only and did not extend it to land recorded as "Chhota Ghat", there is an end of the matter. Undoubtedly, annual village papers prepared under section 47 of the C P. Land Revenue Act did not have the same evidentiary value as record -of -rights prepared under section 45. They are not documents of title and do not create any title in land. In spite of these infirmities in village papers, the Legislature deliberately prescribed the annual papers of 1948 -49 as the basis for defining "home -farm" land. The choice of annual village papers of the year preceding the legislation is not confined to section 2(g) only. Reference to annual village papers is found at other places in the Abolition Act where it was intended to provide a swift and mechanical method for determining facts relevant to any provision. Thus, in Schedule I, which contains the Rules for determining compensation, we have reference to Jamabandi of the previous agricultural year for finding out the aggregate of rents and to transactions recorded in village papers for ten years for ascertaining income. It is not open to a proprietor in face of these provisions to contend that the rents were spore than the amount recorded in village papers or that the transactions leading to Sawai income were more than those recorded. The choice of the village papers for the purpose is deliberate and the parties cannot, therefore, say that the Tillage papers are unreliable and contain factually incorrect statements. As the lands are not entered as khudkasht in the annual village papers of 1048 -49, the appellants can lay no claim to them and are not entitled to any declaration. The appeal is dismissed with costs.