State vs Narayandas

Bhutt, J.—This is an appeal by the State Government from the decree for possession and a consequential relief.

The property in dispute is mouza Dundal Kheda, Tahsil and district Seoni, It consists of forest area comprising 815.40 acres. Formerly the area was 803 acres, over which Raja Gokuldas and his nephew, Rai Bahadur (subsequently Diwan Bahadur) Seth Ballabhdas claimed proprietary interest. Their claim was negative by Government, Ultimately the dispute was settled, whereby they were granted perpetual lease of the area, subject to their payment of an annual premium. Subsequently the area was allotted to Raja Gokuldas in the family partition

In the settlement of 1918, the area was declared to be a village and named Dundal Kheda, The village was recorded as milkiyat Sarkar and was assessed to an annual jama or Rs. 40. The settlement was accepted by Rajkumarbai, mother of the plaintiffs. She was the daughter of Diwan Bahadur Seth Jeewandas, son of Raja Gokuldas, and was a beneficiary of the property under a trust-deed, dated 24-4-1915, which was executed by Diwan Bahadur Seth Jeewandas and his son Seth Govinddas constituting themselves as trustees thereof during her lifetime. The property vested in the plaintiffs when the trust terminated on her death.

On coming into force of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 1950 (I of 1951), the State Government took possession of the village and of the timber felled by the plaintiffs. Subsequently the State Government permitted the plaintiffs to remove the cut timber on payment of Rs. 1 per diem. They removed a part of the stock but did not appropriate the remainder. Thereafter they sued the State Government for possession of the village, and for recovery of Rs. 1,500 as the price of the remaining timber and of Rs. 400 as the estimated profits of the village for the year 1951-52. Barring the claim for Rs. 400, the plaintiffs'' suit was allowed by both the Courts below.

The question in this appeal is whether the plaintiffs were proprietors within the meaning of Act 1 of 1951. If the answer is in the affirmative, their interest in the property would vest in the State Government and the suit must fail. If not, their rights would not be affected. The position was not disputed before me and need not, therefore, be elaborated.

The term ''proprietor'' has been defined in Sec. 2 (m) of Act I of 1951 as below:-

"(m) ''Proprietor'' in relation to-

(i) the Central Provinces, includes an inferior proprietor, a protected Thekadar or other Thekadar, or a protected headman." It is not disputed that the plaintiffs do not fall within any of the categories enumerated above. The definition is, however, inclusive.

It is, therefore, to be seen whether the plaintiffs can be deemed to be proprietors under the general law.

A lease as defined in Sec. 105 of the Transfer of Property Act is a transfer of a right to enjoy property, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee. These are the essential characteristics of all kinds of leases even though they may be for an agricultural purpose. The lessor, therefore, remains the owner of the property, although he has parted with his right of enjoyment thereof.

Baden-Pawell, in his book on Land-systems of British India, Vol. I pages 217-218, has explained the expression ''Proprietary Rights'' as below:-

The first thing that will strike the student is the use of the term ''proprietary right'' in these pages and in Indian Revenue books generally. It does not occur in text-books on English Law or jurisprudence. I presume that the use of such a phrase is due to the feeling that we rarely acknowledge any thing like a complete unfettered right vested in any one person. The interest in the soil has come to be virtually shared between two or even more grades, the cause of which we just now discussed. It is true that, in many cases, only one person is called, ''landlord'' or ''actual proprietor'' but his right is limited; the rest of the right, so to speak, is in the hands of the other grades, even though they are called ''tenants'', or by some vague title such as, ''tenure-holders''. In many cases, as we have seen, this division of right is accentuated by the use of terms like ''sub proprietor'' or proprietor of his holding''. ''The proprietary night seems then a natural expression for the interest held by a landlord, when that interest is not the entire ''bundle of rights'' (which in the aggregate make up an absolute or complete estate.) but only some of them, the remainder being enjoyed by other persons.

This extract was referred to with approval by the Supreme Court in Firm Chhotabhai Jethabai Patel and Co. and Others Vs. The State of Madhya Pradesh, in which their Lordships observed that the definition given in Act I of 1951 does not abrogate or vary this meaning of a proprietary right. It thus appears that even though a person may transfer most of the incidents of ownership, he would still be the proprietor so long as he does not divest himself completely of all his proprietary interest. The State Government, therefore, continued to be the proprietor of the village, although the right of enjoyment thereof vested in the plaintiffs.

It was next urged that whatever the position initially, the plaintiffs became the proprietors after the area: was constituted into a village and settlement thereof was accepted by their mother. However, the Settlement Officer could not, under the C.P. Land Revenue Act, 1917, which governed the case create any rights not held by her; Chindhu vs. Indraraj ILR (1944) Nag. 431. Whatever status was conferred on the plaintiffs'' mother under the settlement, therefore, created in her only the right to manage the village vis-a-vis the State and did not raise her to the position of a proprietor. Consequently the plaintiffs also cannot be held to have proprietary rights in the village.

The quantum of damages was also disputed by the State Government. It is true that the plaintiffs were permitted to remove the felled timber on payment of Rs. 1 per diem, but this was not a valid condition and the plaintiffs were, therefore, not bound to accept it. In this view, the plaintiffs were rightly granted a decree for the price of the timber which remained with the State Government. It is, however, declared that the State Government would be entitled to appropriate the said timber if they pay the price thereof as determined by the Courts below,

Subject to the above modification in the decree, the appeal falls and is dismissed with costs.