BRIJDEVI Vs. MANAKCHAND

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution by the Zamindars praying for the quashing of the order of the Additional Commissioner (ultimately upheld by the Board of Revenue in revision) that the opposite party Nos. 1 to 3 were entitled under section 38 (2) of the Madhya Bharat Zamindari Abolition Act, Samvat 2008 (Act 13 of 1951), to be recorded as the pacca tenant on payment of the compensation according to the prescribed formula. The opposite party No. 4 is a co -sharer, but it is common ground that the lands concerned have fallen to the shares of the petitioners. The petitioners opposed the Application on the ground that their predecessor Anandiprasad had inducted the opposite party Nos. 1 to 3 as his sub -tenants. He was one who on account of a bodily infirmity was incapable of personal cultivation of the lands. Accordingly, they took the position that they were entitled, under the proviso to section 74 (1) of the Madhya Bharat Land Revenue and Tenancy Act, to continue as pacca Ryots notwithstanding the sub -letting. The Revenue Courts however, held that on the facts, Anandiprasad was not incapable of cultivating personally as indeed he was cultivating other lands in this manner and was seeking to be appointed as 'vasulipatel'. In doing this, they had in effect understood "personal cultivation" or "cultivating personally" in terms of the definition contained in section 54 (xvii) of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950). Consequently, the opposite party were entered as pacca tenants as they had deposited the compensation and the objection of the petitioners was rejected.

(2.) IN this petition, the factual finding that Anandiprasad was not incapable, in spite of his alleged heart trouble, of doing personal cultivation cannot for obvious reasons be challenged as such in this Court. However, the petitioner interprete 'personal cultivation' narrowly to the effect that it should be cultivation done directly by the Zamindar himself and exclude cultivation with the assistance of paid labourers. Here again, the petitioners are up against the decision of a Divisional Bench of this Court in Misc. Petition No. 373 of 1962 (Jabalpur) decided on 6.3.1963 Mainabai vs. Raghunath 1963 JLJ SN 126. There also the Zamindar contended that he was incapable of doing personal cultivation, which was sought to be interpreted narrowly and on that basis claimed the exemption under the proviso to section 74 (1) Madhya Bharat Land Revenue and Tenancy Act. However, this Court held that 'cultivating personally' or 'personal cultivation' meant any of the three alternatives set out in section 54 (xvii). Since in that case the Zamindar was in a position to do cultivation in one of the three alternative manners, this Court held that he was disentitled to the benefit of the proviso. Faced with this, the present petitioners urged that the judgment in M.P. No. 323 of 1962 (Jabalpur) calls for reconsideration by a larger Bench because certain aspects of the problem have not been properly visualized and in particular, the effect of section 54 (xvii) has not been appreciated.

(3.) AS the matter stood before the Revenue Courts, there were two main questions. Firstly, whether Anandiprasad suffered from any physical infirmity worth mentioning and secondly, if he did suffer from any whether it was such as to render him incapable of personally cultivating these lands. On these questions the Additional Commissioner has given clear findings which the Board of Revenue has, after two hearings, confirmed and refused to modify in revision. Thus, whether or not the Board could have exercised its powers of revision, it did not actually do so and we have the Additional Commissioner's decision before us which is to the effect that even on the assumption that Anandiprasad did have physical infirmity of a weak or diseased heart, it was not such as to render him incapable of cultivating personally. These are findings of fact and we, in exercise of our powers under Article 227 of the Constitution, would not feel called upon to examine either the nature of the infirmity or its effect on the ability to cultivate personally but if we do, we have the indisputed fact that Anandiprasad was engaged in certain activities or was seeking to engage in them which by the very nature showed that he was capable of cultivating personally. This of course should be normally the end of the controversy here but the petitioners have advanced argument of a complicated nature regarding real purport of the phrase 'personal cultivation' or 'cultivating personally'. Even this has been settled by the Division Bench ruling but a case is sought to be made for further consideration. It, therefore, becomes necessary to consider the new arguments for what they are worth.