Nandkishore and others vs Dabole and others

Ram Murti Rustogi, J.

This is defendants'' second appeal.

Necessary facts for the disposal of this appeal are: The plaintiffs/respondents, who are all real brothers, filed a suit for declaration of title and possession of the suit-land, consisting of Khasra No. 479, area 3 bigha and 13 biswa, situate at village Kakardha, Tahsil Dabra, District Gwalior. They were granted Patta of the suit-land on 8-12-1958, vide Ext. P-2. They were put in its possession on 26-7-1963, but were dispossessed by the appellants/defendants on 9-7-1964. (For convenience, the parties are referred to here-in-after as the plaintiffs and defendants). The defendants resisted the suit on the ground that their forefathers were the Zamindars of the suit-land and it had been in their possession from much before the abolition of the Zamindari. At the time of the abolition of the Zamindari by the Madhya Bharat Zamindari Abolition Act, 1951 (for short, the ''Act''), the suit-land was in their ''khudkasht'' and for that reason it was saved to them and had not vested in the State on the date of vesting, 2-10-1951.

The trial Court dismissed the suit, accepting the defendants'' case that the suit- land was their ''Khudkasht'' land. It had not vested in the State. The State had, therefore, no right to grant Patta to the plaintiffs.

The plaintiffs went in appeal, and the lower appellate Court reversing the findings of the trial Court, decreed the suit. It held that the suit-land was not the ''Khudkasht'' land of the defendants. It had, therefore, vested in the State and the Patta (Ext. P-2) granted to the plaintiffs is valid.

The very short question which calls for determination in this appeal is what is meant by ''Khudkasht'' land. Section 4(2) of the Act which saved the ''Khudkasht'' land to an ex-Zamindar, is in the following terms:--

S. 4 (2). Notwithstanding anything contained in sub-section (1), the proprietor shall continue to remain in possession of his Khudkasht land so recorded in the annual village papers before the date of vesting.

Section 2(c) of the Act defined ''Khudkasht'' as follows :--

S. 2(c). "Khudkasht" means land cultivated by the Zamindar himself or through employees or hired labourers and includes ''Sir'' lands.

Interpreting the provisions of Sections 2(c) and 4(2) of the Act, A.P. Sen, J. (as he then was), speaking for the Division Bench, laid down in Khuman Singh vs. Dhan Singh, 1971 MPLJ 750 : 1971 JLJ 577, that emphasis is laid on personal cultivation and the words "so recorded" imply that the land must not only be "Khudkasht" within the meaning of Section 2(c) but must also be ''so recorded'' immediately before the date of vesting within the meaning of Section 4(2). (Please also see State of M.P. vs. Ramratan 1984 RN 171 and Vishal Singh vs. Brijraj Singh, 1964 JLJ SN 5 (HC)).

There is no denying the fact that the defendants'' ancestors were the Zamindars. The question would be whether at the time of the abolition of the Zamindari the suit-land was personally cultivated by the defendants and it was recorded as the ''Khudkasht'' of the defendants. 2-10-1951 was the date of vesting under the Act. The law required that the land should be actually recorded as ''Khudkasht'' before the date of vesting.

As to the personal cultivation of the suit-land by the defendants, it is sought to be made out that grass was being grown on it at the relevant time, i.e., before the date of vesting. It would be pertinent to note that the defendants had not come to the Court with such a case by way of their pleadings in the written statement. What is to be seen is whether in and before Samvat 2007 was the suit-land recorded as ''Khudkasht'' ? The Khasra for Samvat 2007, Ext. C-1, had been totally misread and misconstrued by the trial Court, when it said that the defendants'' ancestor Mst. Bitto Bai''s name was recorded in column 5 of the Khasra as cultivator. This is totally wrong. Column No. 5 of that Khasra (for Samvat 2007) wherein ought to be recorded the name of the cultivator, is blank. Instead, Mst. Bitto Bai''s name is recorded in column 3 which is the column for recording the name of the owner of the land. Moreover, in column No. 23 the suit-land is recorded to be ''Kadim'', which meant that it was lying fallow, that is, not cultivated. No ''Khasras have been produced for the period prior to Samvat 2007. The relevant record thus shows that before the date of vesting the suit-land was not recorded as ''Khudkasht'' land of the defendants or their ancestors.

The learned lower appellate Court has rightly held that there was absolutely no evidence that the suit-land was personally cultivated by the defendants at the relevant time. No agricultural operations had been undertaken by the defendants in relation to the suit-land before the date of vesting. As held in Commissioner of Income Tax, West Bengal, Calcutta Vs. Raja Benoy Kumar Sahas Roy, , a wild, spontaneous growth of weed, not involving any human labour or human skill upon the land and not raised by any process of agriculture, did not amount to cultivation of grass. In this view of the matter, the defendants totally failed to establish that the suit-land was personally cultivated by them before the date of vesting. The decree of the trial Court was rightly set aside by the lower appellate Court.

Learned counsel for the appellants referred to the Khasras, Exts. C-2 and C-3, for Samvat 2006 and 2009, respectively, wherein the name of the defendant Ram Singh''s father Janved is recorded in column No. 9, and the crops of sesame and millet are shown to have been raised. As these entries relate to the period after the date of vesting, they do not constitute relevant material for determining the question in controversy and are irrelevant for that purpose. Section 4(2) of the Act is not attracted by them.

The plaintiffs/respondents have filed cross-objection, claiming mesne profits. The trial Court had framed issue No. 9 on this point and it, in para 19 of its judgments held that the plaintiffs would be entitled to Rs. 700/- per annum as mesne profits. Since the learned lower appellate Court did not make any order as to the granting of mesne profits, the cross-objection of the plaintiffs/respondents deserves to be allowed.

In the result, this appeal fails and is hereby dismissed with costs throughout. The cross-objection filed by the plaintiffs/respondents is allowed and it is ordered that the defendants/appellants shall pay Rs. 700/- per year as mesne profits from the year 1964 till the possession of the suit-land is restored back to the plaintiffs/respondents, on payment of proper court-fees. Counsel''s fee according to schedule, if certified.