DEVI PRASAD NANHELAL Vs. MAHESH PRASAD JIYALAL

JUDGEMENT

(1.) The applicant in this case is a transferee of the land held in malikmakbuza rights by the predecessor -in -title of the non -applicant Mahesh Prasad. The land was originally held in tenancy rights by one Kallu and was sold to Kapporchand who, in turn, sold it to the present applicant on 29 -7 -56 i.e. after the Land Revenue Code came into force. The non -applicant claimed ejectment of the applicant under Section 176 of the Land Revenue Code. The Sub -Divisional Officer allowed the claim but his order was reversed by the Additional Collector. The learned Commissioner in second appeal restored the order of the Sub -Divisional Officer. Hence this revision.

(2.) AS the learned Commissioner has stated in para. 4 of his order the point for determination is whether after the introduction of the M.P. Code occupancy tenants of the disputed lands would be governed by Section 147 or by Section 169 of the Madhya Pradesh Land Revenue Code (hereinafter called the Code). The contention of the learned Counsel for the non -applicant is - -as it was before the lower Courts that the expression "every person", who has been declared an occupancy tenant of a "malik -makbuza'" occurring in Section 169(1) of the Code is significant. This expression indicates that Section 169 refers only to such persons who have been declared tenants under Section 41 of the C.P. Tenancy Act. According to Section 37 of the Tenancy Act a person who holds, as a tenant, land from a malik -makbuza has to be deemed to be a sub -tenant, of that land. Such a person can be declared tenant only under Section 41 of the Tenancy Act. It, therefore, follows that a declaration under Section 41 is necessary before a sub -tenant is raised to the status of an occupancy tenant of the land held by him from a malik -makbuza. In his opinion, therefore, the word 'declared' has significantly been used in Section 169(1) of the Code to limit its application only to such persons who were initially sub -tenants but became occupancy tenants as a result of declaration under Section 41 ibid. In the instant case, the learned Counsel pointed out that even at the time of settlement of 1911 the applicant was recorded as tenant of the land and it was only at a later date that the predecessor in -title of the non -applicant came to be recorded as malik -makbuza. In other words, the land was held in tenancy rights much before the malik -makbuza came on the scene. On the introduction of the Code, the applicant being a successor -in -title of the original tenant of the disputed land became Bhumidhari by operation of law (Section 147). As such, the sale of the land of the non -applicant by the last tenant cannot be challenged under Section 176 of the Code.

(3.) IN view of the above discussion the transferor of the disputed land had no better status than that of an occupancy tenant of a malik -makbuza and would fall within the ambit of Section 169 of the M.P. Code. I therefore see no reason to interfere with the order of the learned Commissioner. The revision Petition is rejected accordingly Petition dismissed.