DEORAO JADHAV Vs. RAMCHANDRA

JUDGEMENT

(1.) CERTAIN questions which are enumerated hereinafter, have been referred to the Full Bench for its opinion. It is mainly concerning interpretation of the word 'actual possession' in Explanation (1) to section 38 of the Madhya Bharat Zamindari Abolition Act, 1951 (hereinafter referred to as the Act) under which Pucca tenancy rights are conferred on tenants, sub-tenants and tenants of sub-tenants and the explanation clarifies that the pucca tenancy right shall accrue or be acquired in respect of such land only as may be in the actual possession of the tenants or sub-tenants or tenant of a sub-tenant. The learned single Judge also noted that the Single Bench decisions in Kanal Singh v. Anandlal (1967 RN 20) of Niwaskar J. and in Dhapu Bai v. Samandar (Second Appeal No. 488 of 1966 decided on 2-3-1977 at Indore) of Sohani J. to be in conflict with the earlier decision of this court in Dimansingh v. Rameshwar (1964jlj 279) of Shivdayal J. (as he then was) and also the Division Bench decision in Pancham Singh v. Dhani Ram (1977 MPLJ 787) affirming the decision in Dimansingh's case (supra ).

(2.) THE facts of the case are to be stated in order to properly appreciate the questions, which have been referred to the Full Bench. The facts not in dispute are that Khasra Nos. 1577, 1578, 1605, 1610, 1611, 1612, 1702 and 1703 measuring 18 Bighas and four Biswas, in Mouza Gospura, Tahsil and district Gwalior, originally belonged to one Narayandas who was a Pukhta mouroosi tenant and by a registered sale-deed dated 21-10-1944 he sold the same to defendant No. 1 Ramchandrarao for a consideration of Rs. 2500. It was then a Zamindari village and after abolition of the Zamindari, it became a Ryotwari village. After the Zamindari Abolition Act came into force, the original defendant No. 2 Devlal was shown as a Pucca tenant. Defendant no. 1 Ramchandrarao filed an application under section 91 of the Act before the Additional Tahsildar for restoration of possession against the defendant no. 2 Devlal, which was registered as Revenue Case;no. 53 of 1954 and it was dismissed on 7-8-1956 and the appeal before the Collector also failed. It was held in those cases that since Devlal was recorded as sub-tenant, he cannot be evicted after the Act came into force. Thereafrer defendant No. 2 devlal filed an application under section 38 of the Act for conferral of Pucca tenancy rights and the same is pending. During the pendency of this suit devlal died and his three sons have been brought on record. Defendant No. 3 balkisan is alleged to have purchased the suit Khata during the pendency of the suit from the heirs of deceased Devlal and so he was joined as a party to the suit as per direction of this Court. It appears that the aforesaid lands of khasra Nos. 1610, 1611, 1612, 1702 and 1703 were acquired by the State government under the Land Acquisition Act. So in fact the dispute now remains of Khasra Nos. 1577, 1578, 1604 and 1605.

(3.) PLAINTIFF Sardar Deorao Jadhav's case is that by a registered sale deed dated 21-10-1944, in fact, he had purchased the suit Khasra numbers from Narayandas and defendant No. 1 Ramchandrarao was his Benamidar. Taking advantage of the fact that the plaintiff was residing at Gwalior and defendant No. 1 Ramchandrarao was also serving at Gwalior, original defendant No. 2 Devlal unauthorisedly trespassed into the suit lands and fraudulently got his name entered in the revenue papers as a sub-tenant in the year 1952 or so. Since defendant No. 1 Ramchandrarao was recorded as a pucca tenant, the plaintiff is entitled to a declaration that he is in fact the pucca tenant of the suit lands and defendant No. 2 Devlal has no right whatsoever in the suit lands and also claimed mesne profits at the rate of Rs. 100 per annum for two years and future mesne profits at the rate of Rs. 300 per annum till delivery of possession. The plaintiff reserves his right of legal action against the State of Madhya Pradesh in respect of those Khasra numbers which have been acquired. Defendant No. 1 Ramchandrarao, in fact, supported the case of the plaintiff and submitted that defendant No. 2 Devlal is in unauthorised possession, he was not a sub-tenant and the revenue entries have been unauthorisedly made in collusion with the Patwari. According to defendant No. 2 Devlal, he is in occupation of the suit lands as the sub-tenant and has been paying land revenue to defendant No. 1 Ramchandrarao. The plaintiff has no title over the suit lands and defendant No. 1 Ramchandrarao is not his Benamidar. It is denied that defendant No. 2 Devlal trespassed into the suit lands in the year 1952 and got his name fraudulently recorded in the revenue papers as a sub-tenant. In fact he is in occupation of the suit lands prior to 1950 as a sub-tenant of defendant No. 1 Ramchandrarao and these facts have been established in the Revenue Case No. 53 of 1954 by the additional Tahsildar which has been affirmed by the Collector. He has also applied under section 38 of the Act for conferral of Pucca tenancy rights on him. The suit is, therefore, liable to be dismissed.