SOBHARAM CHOUBE Vs. BHAGDEO CHANDU KAWAT

JUDGEMENT

(1.) THIS opinion will also govern Appeal No. 252/I -A -10/56 which has been referred to us on a similar point of law.

(2.) THE facts leading up to the present reference have been lucidly mentioned in the learned single Member's Reference Order dated 22 -6 -57 and need not be repeated. Briefly, the Board by its remand order dated 29 -10 -54 and 17 -11 -54 in the two cases directed the lower Court to apply the principles laid down by its Division Bench decision in Phulbai v. Rani Mankuwar Devi1954 NLJ 194for the settlement of Home -Farm land between the outgoing proprietor and the protected Thekadars. The Division Bench's decision was based on the interpretation of the meaning and scope of Section 38 (1) and Section 39 (1) of the M.P. A.P. R. Act, 1950 (1 of 1951).

(3.) SUBSEQUENTLY in a miscellaneous petition by one Ghassu Khan, under Article 227 of the Constitution of India, the High Court disagreeing with the interpretation of law given by the Division Bench in Phulbai's case held the view in1956 N.L.J299 that looking to the subject and the context section 38 (1) applied to the 'proprietor' in its primary sense and did not refer to persons included in the definition of 'proprietor' as given in Section 2 (m) ibid. Upon this construction, the High Court held that "Section 39 has an independent existence and need not be confused with Section 38 on a theory of constructive possession." The 'possession' must be actual and physical and in this view a proprietor or thekedar would be entitled to the whole or a part of the Home -Farm as may be in his actual possession. The order of the Board of Revenue in Ghassukhan's case was, therefore, set aside with the direction that that case be disposed of in the light of High Court's observations.