PETITIONER:
STATE OF MADHYA PRADESH & ORS.
Vs.
RESPONDENT:
SARDAR D. K. JADHAV
DATE OF JUDGMENT14/12/1971
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
MATHEW, KUTTYIL KURIEN
CITATION:
1972 AIR 1530 1972 SCR (2) 864
1972 SCC (1) 402
ACT:
Madhya Bharat Abolition of Jagirs Act Samvat 2008. (Act 28
of 1951), ss. 2(1)(ix) and 5(c)-’Occupied land’ what is-
Protection of s, 5(c) whether available where area of tanks
is partly occupied by Jagirdar and ,partly by tenants.
HEADNOTE:
Under s. 5(c) of the Madhya Bharat Abolition of Jagirs Act
Samvat 2008 (Act 28 of 1951) all tanks, trees etc. in or on
‘occupied lands’ belonging to or held by the Jagirdar or any
other person were excluded from vesting in the State by
virtue of s. 4. The respondent filed a writ petition in the
High Court claiming that certain tanks built by himself and
his predecessor-in-title were on ‘occupied land’ and
therefore came within the protection of s. 5(c). The
original order passed by the High Court in the writ petition
was set aside, by this Court and the High Court was directed
to decide afresh the claim made by the writ petitioners
under s. 5(c) of the Act. After considering the evidence
before it on this question the High Court held that the’
tanks in question were saved under s. 5(c) and they had not
vested in the State under the Abolition Act. In appeal by
the State to this Court,
HELD: ‘Occupied land’ as defined in s. 2(1) (ix) of
the Act comprises broadly two types of lands : (1) four
categories of land held under the tenures enumerated in sub-
clauses (a) to (d); and (2) comprised in Khud-Kasht and
‘homestead’. To attract cl. (c) of s. 5 the tank must be
shown in the first instance to be on occupied land that is
on land comprised under the tenures enumerated in sub-
clauses (a) to (d) or in the land held as Khud-kasht and
homestead. It is not necessary that the entire tank should
be exclusively situated in the land held as khud-kasht and
land comprised in homestead. The requirement of “he tanks
in question being an occupied land will be satisfied even if
part of the tank is situated in one or the other of the
tenures mentioned in sub-clause,,; (a) to (d) of cl. (ix) of
s. 2(1) and the rest or it is included in the land held as
khud-kasht and the land comprised in a homestead. That is,
the ,entire area of the tank must be comprised in either the
tenures or the khud-kasht or homestead or in both.
Therefore it was not possible to accept the contention
advanced on behalf of the appellant State that only those
tanks which are on khud-kasht land of the Jagirdar are saved
to him. Acceptance of such a contention will be ignoring
the clear working of cl. (ix) of s. 2(1) which takes in also
lands held on the various tenures referred to therein. [871
D-G]
Therefore in the present case the mere fact that a part of
the tanks was in the occupation of the tenants as tenure-
holders did not detract from the operation of the saving cl.
(c) of s. 5. The expression ‘any other person’ is
comprehensive enough to take in the persons who were holding
the land on one or the other of the tenures enumerated in
subclauses (a) to (d) of s. 2(1)(ix) of the Abolition Act.
Whatever may be the extent of the tanks in the possession of
the respondent, as his khud-kasht or homestead and in the
possession of the tenure-holders the position ultimately was
that the entire extent of the tanks was in 
ccupied land’
belonging to or held by the Jagirdar or any other person.
[872 H,873 B]
865
The judgment of the High Court must accordingly be upheld.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
32 of 1971.
Appeal from the judgment and order dated March 12, 1970 of
the Madhya Pradesh High Court in Miscellaneous Petition No.
184 of 1965.
I. N. Shroff, for the appellants.
V. S. Desai, S. K. Mehta, K. L. Mehta, V. K. Sapre and K. R.
Nagaraja, for the respondent.
The Judgment of the Court was delivered by
Vaidialingam, J. The short question that arises for
consideration in this appeal, on certificate, is whether the
High Court has complied with the directions given by this
Court in its judgment dated January 25, 1968 in Civil
Appeals Nos. 1244 and 1245 of 1967 and adjudicated upon the
question whether the claim made by the respondent that the
tanks and wells in question were constructed on “occupied I-
and” belonging to the Jagirdar within the meaning of s. 5(c)
of the Madhya Bharat Abolition of Jagirs Acts, Samvat 2008
(Act 28 of 1951) (hereinafter to be referred as the
Abolition Act).
The facts leading up to the present decision of the High
Court may be stated: In Samvat 1885 the Ruler of the
erstwhile Gwalior State conferred on the predecessor in
title of the respondent the Jagir of Mauza Siroli situated
in Pargana Gwalior. The Abolition Act came into force on
December 4, 1952. Section 3 provides for resumption of
Jagir-lands by the Government. Under sub-section (3), the
date appointed under s. 3 as the date for resumption of
Jagir-lands is “the date of resumption’. After the issue of
notification under s. 3, appointing a date for resumption,
all the property in the Jagirdar including Jagir-lands,
forest, trees, fisheries, wells, tanks, ponds etc. stood
vested in the State under s. 4 of the Abolition Act. But
under s. 5 (c) all tanks, trees, private wells and buildings
in or on the occupied lands, belonging or held by the
Jagirdar or any other person, were excluded from vesting.
After the abolition of Jagirs under the Abolition Act,
proceedings were initiated for determining the compensation
payable to the respondent and the same was determined. Out
of the amount, so determined, certain loans were deducted
and the balance amount was paid. The Madhya Pradesh Land
Revenue position ultimately was that the entire extent of
the tanks was in ‘occupied as the Code) came into force on
October 2, 1959. Section 251
866
of the Code provided for vesting in the State Government all
ranks situated on unoccupied lands, in the circumstances
mentioned therein. The said section made provision for
claiming compensation in the manner laid down therein.
The respondent on April 5, 1961 made an application to the
Collector, Gwalior under s. 251 of the Code claiming com-
pensation for tanks which, according to him, had been built
by himself and his predecessor in title over an area of 1679
bighas and 18 biswas of land. There were various orders
passed by the authorities in connection with the said claim
for compensation.
The respondent moved the Madhya Pradesh High Court under
Art. 226 of the Constitution by two writ petitions to quash
two orders of the Collector of Gwalior and two orders of the
Additional Commissioner, Gwalior Division. The writ
petitions were opposed by the State on the ground that the
four tanks claimed by the writ petitioner were really not
tanks and in any case the tanks were not on “occupied land”
within the meaning ,of s. 5 (c) of the Abolition Act and the
wells claimed by him had also vested in the State under S.
4(1)(a) of the Abolition Act.
The High Court by its judgment dated November 30, 1966
allowed the writ petitions and quashed the four orders,
referred to above, on the ground that the claim made by the
respondent that the tanks were on “occupied land” under s.
5(c) of the Abolition Act, has to be decided by the Jagir
Commissioner in the manner required under s. 17 of the said
Act.
The State challenged before this Court in Civil Appeals Nos.
1244 and 1245 of 1967, the decision of the Madhya Pradesh
High Court. ‘Me contention raised on behalf of the State
was that s. 17 of the Abolition Act had no application and
that it was the function of the Jagir Commissioner alone to
inquire whether the claim of the writ petitioner under s.
5(c) of the Abolition Act was well founded on merits and
then refer the matter for the final decision of the
Government under s. 17 of the Abolition Act. After a
consideration of the scheme of the Abolition Act and in
particular of s. 17, this Court accepted the contention of
the State and held that the inquiry contemplated under s. 17
by the Jagir Commissioner relates to compensation to be paid
to the Jagirdar whose Jagir is vested in the State
Government and once the compensation is determined and paid,
no further inquiry under s. 17 is contemplated. In this
view, by its judgment dated January 25, 1968, this Court set
aside the orders passed by the High Court.
This Court further held that the writ petitioner, namely,
the present appellant before us” is, not left without any
remedy to
867
agitate his claim that the, tanks and wells claimed by him
were constructed on occupied land and that they have been
saved from vesting in the Government under s. 5(c) of the
Abolition Act. It was held that if the writ petitioner was
able to establish this plea, the State Government will have
no power or authority to take possession of such tanks and
wells, as the title thereto did not vest in it in view of s.
5 (c) of the Abolition Act. It was further held that s. 5
(c) has an over-riding effect on s. 4 of the Abolition Art.
In this view this Court held that it was the duty of the
High Court to have decided the jurisdictional fact as to
whether the tanks and wells claimed by the present respon-
dent belonged to the Jagirdar within the meaning of s. 5(c)
of the Abolition Act and that, if the High Court accepted
the said contention, the High Court was competent to issue a
writ under Art. 226 of the Constitution directing the State
to hand over possession of the said tanks and wells to the
writ petitioner. Ultimately, for all the reasons given in
its judgment, this Court set aside the decision of the High
Court and remanded the proceedings for deciding afresh the
claim made by the writ petitioner under s. 5(c) of the
Abolition Act. Liberty was given to the parties to place
before the High Court such further evidence, oral and
documentary, as they may desire to give on the point at
issue. The main judgment was given in Civil Appeal No. 1245
of 1967. For the same reasons given in the said judgment,
Civil Appeal 1244 of 1967 was also remanded in accordance
with the directions given in Civil Appeal No. 1245 of 1967.
The said decision of this Court is reported in State of
Madhya Pradesh and others v. Sardar D. K. Jadhav(1).
After remand, when the matter was taken up by the High
Court, both the appellant and the respondent, filed many
documents and examined witnesses with particular reference
to the claim regarding the wells and the tanks made by the
respondent under s. 5(c) of the Abolition Act.
The respondent laid his claim on the ground that the tanks
and wells had been constructed on lands which were his Khud-
kasht lands as also on lands held on tenure by other
persons. But ultimately his claim was on the basis that the
wells and tanks were all on occupied land belonging to the
Jagirdar or any other person, as laid down under s. 5(c) of
the Abolition Act.
The State, on the other hand, denied the right of the
respondent to claim any right in the said tanks and wells on
the ground that they were not located on occupied land
belonging to the Jagirdar, but were situated on lands which
were in the possession ,of tenants. Hence, according to the
State, the said tanks and
(1) [1968] 2 S.C.R 823.
868
wells were not saved to the respondent under s. 5 (c) of the
Abolition Act, and that they have vested in the State, as
rightly held by the Revenue authorities. In short, the
contention of the State appears to have been that only those
tanks and wells, which are on occupied land belonging to the
Jagirdar and in his possession as Khudkasht land alone are
saved under s. 5 (c) of the Abolition Act.
At this stage we may mention that though the respondent laid
claim to certain wells also in addition to the tanks, it is
seen from the judgment of the High Court that during the
stage of arguments, it was represented on his behalf that
three out of five wells were already in his possession and
that no adjudication is necessary regarding those wells.
Regarding the other two wells, it is also seen that the
respondent abandoned his claim before the High Court.
Therefore, the entire controversy, which the High Court had
to decide centred round the claim, regarding the tanks, made
by the respondent under s. 5 (c) of the Abolition Act.
Though various maters have been adverted to by the High
Court in its judgment, its material findings are as follows
: That the four tanks_ as also the pick-up weir are tanks
within the meaning of the Abolition Act. The four tanks as
also the pick-up weir belonged to the respondent at the time
of the resumption of Jagirs under the Abolition Act, namely,
December 4, 1952; Section 5 (c) is clearly attracted it the
right of ownership or possession of the tanks belonged
either to the Jagirdar or to any other person as against the
said right belonging to the community at large or the State.
The fact that a part of the bed of the tanks may be in the
occupation of tenants is of no consequence in holding in
favour of the respondent under s. 5 (c) of the Abolition
Act; The entire area of the tanks in the possession of the
respondent must as his Khud Kasht land and also in the
occupation of the tenants are both saved under s. 5 (c) and
do not vest in the State under s. 4 of the Abolition Act.
On these findings, the High Court accepted the contention of
the respondent and held that the tanks claimed by him are
saved under s. 5 (c) and they have not vested in the State
under the Abolition Act.
We may state at this stage that the High Court has not
thought it necessary to consider the precise area of each
one of the tanks as the tenants were not parties to the
proceedings. Ultimately, the High Court held that on
resumption of Jagirs under the Abolition Act, the four tanks
and the pick-up weir are saved to the respondent under s.
5(c) of the Abolition Act, subject to certain observations
contained in the judgment. In consequence, the High Court
quashed the four orders of the Revenue authorities, referred
to, in the judgment.
869
Though Mr. I.N.Shroff, learned counsel for. the State, has
raised several contentions, in our view, most of them do not
survive in view of the specific directions contained in the
order of remand passed by this Court. The only two
contentions that have been advanced by him and require to-be
considered are : (1) That the High Court has not complied
with the directions given by this Court in its order of
remand; and (2) The High Court has not found that the said
tanks are situated on “occupied land” so as to be saved
under s. 5(c)of the Abolition Act. The counsel has, no
doubt, pointed out certain other circumstances, which,
,according to him, constitute an infirmity in the judgment
of the High Court.
On the other hand, Mr. V., S. Desai, learned counsel for the
respondent, has pointed out that the directions of this
Court have been fully complied with and that after a very
elaborate consideration of the materials placed before it
by both the parties, the High Court has recorded a finding
that the tanks claimed by the respondent are on “occupied
land” belonging to or held by the Jagirdar or any other
person as required under s. 5 (c) of the Abolition’ Act.
The fact that the High Court has not considered is necessary
to adjudicate upon the exact area of the tanks is of no
consequence because that is a matter to be decided as
between the Jagirdar and the other tenure-holders, if any.
Once the requirement that the tanks are on occupied land and
that they belong to the Jagirdar or to,any other person is
satisfied they are saved under s. 5(c) of the Abolition Act.
That was the only point that the High Court was, directed to
adjudicate upon and on. that aspect clear findings have been
recorded by it.
Before we deal with the contentions of the learned
counsel on both sides, it is necessary to refer the material
provisions of the Abolition” Act. The expressions
“Homestead” and “Occupied land” are defined in sub-clauses
(iv) and (ix) of s. 2(1) and they are as follows:
“2 In this Act unless the: context
otherwise requires-
(iv)”Homestead” means a dwelling-house
together with any court-yard, compound or
attached garden or bari and includes any out-
building used for agricultural purposes and
any tank or well appertaining to the dwelling-
house.
(ix) “Occupied land” means land held
immediately the following tenures, namely,
-L36 SupCI/72
870
(a) Ex-proprietary;
(b) Pukhta Maurusi;
(c) Mamuli Maurusi;
(d) Gair Maurusi;
and includes land-held as Khud-kasht and land comprised in a
homestead;”
Section 3 deals with resumption of Jagir lands by the
Government. As we have already mentioned the date of
resumption is December 4, 1952. Section 4 enumerates the
various items which vest in the State, unless the contrary
has been provided in the Abolition Act. Section 5 saves,
from vesting certain items arid clause (c), which is
material is as follows:
“Section 5 : Private wells, trees, buildings,
house-sites and enclosures.-Notwithstanding
anything contained in the last preceding
section-
(c) all tanks, trees, private wells and
buildings in or on occupied land belonging to
or held by the Jagirdar or any other person
shall continue to belong to or, be held by
such Jagirdar or other person.
Regarding the first contention we are satisfied that the
High Court has complied with the directions given by this
Court in its remand order. The High Court was directed to
decide the jurisdictional fact as to whether the tanks and
wells claimed by the respondent belonged to the Jagirdar and
were saved under S. 5(c) of the Abolition Act. Therefore,
the only investigation that had to be made by the High Court
was on the point, referred to above. In fact, it is seen
that the High Court has been very considerate when it
allowed the appellant to raise various other questions, such
as, the locus standi of the respondent, to file the writ
petition, the question of non-impleading of the tenants in
possession of lands over which part of the tanks are
situated and the undue delay in filing the writ petition.
Further, the High Court has allowed the appellant to raise
the question that the respondent is estopped from seeking
relief regarding the tanks under s. 5(c) in view of the
stand taken by him before the Revenue authorities in his
application for award of compensation. These matters should
not have been permitted to have been raised by the
appellant. If these contentions were available to the
appellant, they should have been raised be-fore this Court
in the appeals, referred to earlier. Any how the High Court
has gone into those matters and held against the appellant.
Therefore, far from not complying with
871
the directions given by this Court, it has even allowed the
appellant to raise certain contentions which were. not
available to it at the stage when the matter was being
considered after remand. Therefore, the first contention
will have to be rejected straightaway.
Regarding the second contention, it is also clear from the
judgment of the High Court that it has very elaborately
considered the various aspects presented; to it, both by the
appellant as well as the respondent. After a consideration
of the materials so placed before it and having due regard
to the provisions of the Abolition Act, the High Court, as
we, have pointed out earlier, has considered, as directed by
this Court, the main question whether the tanks are saved
under s. 5(c) of the Abolition Act. In that connection the
High Court had naturally to consider the scope of the
definition of ”Occupied land” under s. 2 (1) (ix) of the
Abolition Act. It is after a consideration of all these
aspects that the High Court has found that the four tanks
belonged to the respondent at the time of resumption. and
the said tanks were on occupied land belonging to the
Jagirdar or any other person. Therefore, it considered the
question properly as per the remand order and has given a
finding on the same. As to whether the said finding is
correct or not, is a different matter. But the criticism
that it has not considered the point regarding the saving of
the tanks under s. 5(c) of the Abolition Act, cannot be
accepted.
Now coming to the merits, it is clear that as and from the
date of resumption, the consequences enumerated under s. 4
will have full effect. Except as otherwise provided in the
Abolition Act, normally under cl. (a) of Section 4(1) the
right, title and interest of every Jagirdar and of every
other person claiming through him in his Jagir lands
including among other items, tanks, shall stand resumed to
the State. The saving is provided under s. 5. If the
respondent is able to establish that the tanks in question
are on occupied land belonging or hold by the Jagirdar or
any other person, then those tanks are saved in favour of
the respondent under s. 5 (c) of the Abolition Act. It may
be mentioned at this stage that though the items are, all
described as tanks, it is in evidence that they get
submerged at times and at other times portions of the same
are being cultivated either by the respondent or by other s
under certain tenures. That is, parts of the tanks are
included and held by the respondent as khud kasht and rest
of it is held by the tenure-holders, who have got tenancy
rights over them.
As the other tenure-holders, namely, the tenants, were not
parties before the High Court, the question of the extent of
the area of the tanks was not decided and it was left open.
But the
872
entire extent of the tanks had been given by the respondent
as 1679 bighas and 18 biswas of land and this claim was
fully known to the Revenue authorities, who raised the
specific plea that the said tanks are not on occupied land.
Therefore, the circumstance that the High Court did not
adjudicate upon the question of the extent of the tanks, is
of no consequence and it is not material for the point in
dispute.
In order to get the tanks in question saved under S. 5 (c)
of the Abolition Act, the respondent will have to establish
They were on occupied land; and (b) They belonged to or were
held by the Jagirdar or any other person.
We have already extracted the definition of “occupied land’.
The essential ingredient of such land is that it must have
been held immediately before the commencement of the
Abolition Act under one or other of the four tenures
mentioned in sub-cls. (a) to (d). We have not been shown
about the, existence of any other type of tenure. The
occupied land will also include as per the definition lands
held by the Jagirdar as khud kasht as well as the land com-
prised in a homestead. Therefore, occupied land comprises
broadly of two types of lands: (1) four categories of land
held under the tenures enumerated in sub-clauses (a) to (d);
and (2) comprised in khud-kasht and “Homestead”. To
attracted cl. (c) of S. 5, the tank must be shown’ in the
first instance, to be on occupied land, that is, on land
comprised under the tenures enumerated in sub-clauses (a) to
(d) or in the land held, as khud-kasht and homestead. In
our opinion, it is not necessary that the entire tank should
be exclusively situated in one or other of the tenures
enumerated in sub-clauses (a), to (d) of s.2 (1) (ix) on
exclusively in the land herd as khud-kasht and land-
comprised’ in homestead. The requirement of the tanks in
question being ;on occupied land, will be satisfied even if,
part; of the: tanks is situated in one or other of the
tenures mentioned in sub-clauses (a) to (d) of cl. (ix) of
s. 2 (1 ) and the rest of it is included in, the land held
;Is khud-kasht and land comprised in a homestead. That is
the entire area of the tank must be comprised in either the
tennures of the khudkasht and homestead or in both.
Therefore, it is not. possible, to: accept the contention
advanced: on behalf if the appellant State that only those
tanks’, which are on khud-kasht land of the Jagirdar are
saved to him.’ Acceptance of such a contention will be
ignoring the clear wording of cl (ix) of s. 2(1), which
takes in also lands held on the various tenures referred to
therein.
From this, it follows that the mere fact that a part of the
tanks is in the occupation of ‘the tenants as’ tenure-
holders does not detract from operation of the saving cl.(c)
of’s. 5. There is no controversy that at the material date
the occupied lands on which
873
tanks are situated belonged to or were held by the Jagirdar
or any other person. The expression “any other person” is
comprehensive enough to take in the persons who were holding
the land on one or other of the. tenures, enumerated.in sub-
clauses (a) to (id) of s. 2(1) (ix) of the Abolition Act.
Whatever may be the extent of the tanks in the possession of
the respondent, as his khud-kasht or homestead and in the
possession of the tenure-holders, the position ultimately
is, that the-entire extent of the tanks is in “occupied
land” belonging to or held by the Jagirdar or any other
person. The actual extent and the area held by the Jagirdar
and the tenure holders can be worked out only in the
presence of both those parties.
To conclude, we are satisfied that the High Court has
appealed the correct test. to find out whether the. tanks
are saved under s. ) of the Abolition Act. We, are also in
agreement with the finding of the High Court that the four
tanks and the pick-up weir are saved to the respondent under
s. 5(c) of the Abolition Act.
In the result, the judgment and order of the High Court are
confirmed and this,appeal dismissed with costs
G. C. Appeal dismissed.
874
STATE OF MADHYA PRADESH & ORS.
Vs.
RESPONDENT:
SARDAR D. K. JADHAV
DATE OF JUDGMENT14/12/1971
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
MATHEW, KUTTYIL KURIEN
CITATION:
1972 AIR 1530 1972 SCR (2) 864
1972 SCC (1) 402
ACT:
Madhya Bharat Abolition of Jagirs Act Samvat 2008. (Act 28
of 1951), ss. 2(1)(ix) and 5(c)-’Occupied land’ what is-
Protection of s, 5(c) whether available where area of tanks
is partly occupied by Jagirdar and ,partly by tenants.
HEADNOTE:
Under s. 5(c) of the Madhya Bharat Abolition of Jagirs Act
Samvat 2008 (Act 28 of 1951) all tanks, trees etc. in or on
‘occupied lands’ belonging to or held by the Jagirdar or any
other person were excluded from vesting in the State by
virtue of s. 4. The respondent filed a writ petition in the
High Court claiming that certain tanks built by himself and
his predecessor-in-title were on ‘occupied land’ and
therefore came within the protection of s. 5(c). The
original order passed by the High Court in the writ petition
was set aside, by this Court and the High Court was directed
to decide afresh the claim made by the writ petitioners
under s. 5(c) of the Act. After considering the evidence
before it on this question the High Court held that the’
tanks in question were saved under s. 5(c) and they had not
vested in the State under the Abolition Act. In appeal by
the State to this Court,
HELD: ‘Occupied land’ as defined in s. 2(1) (ix) of
the Act comprises broadly two types of lands : (1) four
categories of land held under the tenures enumerated in sub-
clauses (a) to (d); and (2) comprised in Khud-Kasht and
‘homestead’. To attract cl. (c) of s. 5 the tank must be
shown in the first instance to be on occupied land that is
on land comprised under the tenures enumerated in sub-
clauses (a) to (d) or in the land held as Khud-kasht and
homestead. It is not necessary that the entire tank should
be exclusively situated in the land held as khud-kasht and
land comprised in homestead. The requirement of “he tanks
in question being an occupied land will be satisfied even if
part of the tank is situated in one or the other of the
tenures mentioned in sub-clause,,; (a) to (d) of cl. (ix) of
s. 2(1) and the rest or it is included in the land held as
khud-kasht and the land comprised in a homestead. That is,
the ,entire area of the tank must be comprised in either the
tenures or the khud-kasht or homestead or in both.
Therefore it was not possible to accept the contention
advanced on behalf of the appellant State that only those
tanks which are on khud-kasht land of the Jagirdar are saved
to him. Acceptance of such a contention will be ignoring
the clear working of cl. (ix) of s. 2(1) which takes in also
lands held on the various tenures referred to therein. [871
D-G]
Therefore in the present case the mere fact that a part of
the tanks was in the occupation of the tenants as tenure-
holders did not detract from the operation of the saving cl.
(c) of s. 5. The expression ‘any other person’ is
comprehensive enough to take in the persons who were holding
the land on one or the other of the tenures enumerated in
subclauses (a) to (d) of s. 2(1)(ix) of the Abolition Act.
Whatever may be the extent of the tanks in the possession of
the respondent, as his khud-kasht or homestead and in the
possession of the tenure-holders the position ultimately was
that the entire extent of the tanks was in ccupied land’
belonging to or held by the Jagirdar or any other person.
[872 H,873 B]
865
The judgment of the High Court must accordingly be upheld.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
32 of 1971.
Appeal from the judgment and order dated March 12, 1970 of
the Madhya Pradesh High Court in Miscellaneous Petition No.
184 of 1965.
I. N. Shroff, for the appellants.
V. S. Desai, S. K. Mehta, K. L. Mehta, V. K. Sapre and K. R.
Nagaraja, for the respondent.
The Judgment of the Court was delivered by
Vaidialingam, J. The short question that arises for
consideration in this appeal, on certificate, is whether the
High Court has complied with the directions given by this
Court in its judgment dated January 25, 1968 in Civil
Appeals Nos. 1244 and 1245 of 1967 and adjudicated upon the
question whether the claim made by the respondent that the
tanks and wells in question were constructed on “occupied I-
and” belonging to the Jagirdar within the meaning of s. 5(c)
of the Madhya Bharat Abolition of Jagirs Acts, Samvat 2008
(Act 28 of 1951) (hereinafter to be referred as the
Abolition Act).
The facts leading up to the present decision of the High
Court may be stated: In Samvat 1885 the Ruler of the
erstwhile Gwalior State conferred on the predecessor in
title of the respondent the Jagir of Mauza Siroli situated
in Pargana Gwalior. The Abolition Act came into force on
December 4, 1952. Section 3 provides for resumption of
Jagir-lands by the Government. Under sub-section (3), the
date appointed under s. 3 as the date for resumption of
Jagir-lands is “the date of resumption’. After the issue of
notification under s. 3, appointing a date for resumption,
all the property in the Jagirdar including Jagir-lands,
forest, trees, fisheries, wells, tanks, ponds etc. stood
vested in the State under s. 4 of the Abolition Act. But
under s. 5 (c) all tanks, trees, private wells and buildings
in or on the occupied lands, belonging or held by the
Jagirdar or any other person, were excluded from vesting.
After the abolition of Jagirs under the Abolition Act,
proceedings were initiated for determining the compensation
payable to the respondent and the same was determined. Out
of the amount, so determined, certain loans were deducted
and the balance amount was paid. The Madhya Pradesh Land
Revenue position ultimately was that the entire extent of
the tanks was in ‘occupied as the Code) came into force on
October 2, 1959. Section 251
866
of the Code provided for vesting in the State Government all
ranks situated on unoccupied lands, in the circumstances
mentioned therein. The said section made provision for
claiming compensation in the manner laid down therein.
The respondent on April 5, 1961 made an application to the
Collector, Gwalior under s. 251 of the Code claiming com-
pensation for tanks which, according to him, had been built
by himself and his predecessor in title over an area of 1679
bighas and 18 biswas of land. There were various orders
passed by the authorities in connection with the said claim
for compensation.
The respondent moved the Madhya Pradesh High Court under
Art. 226 of the Constitution by two writ petitions to quash
two orders of the Collector of Gwalior and two orders of the
Additional Commissioner, Gwalior Division. The writ
petitions were opposed by the State on the ground that the
four tanks claimed by the writ petitioner were really not
tanks and in any case the tanks were not on “occupied land”
within the meaning ,of s. 5 (c) of the Abolition Act and the
wells claimed by him had also vested in the State under S.
4(1)(a) of the Abolition Act.
The High Court by its judgment dated November 30, 1966
allowed the writ petitions and quashed the four orders,
referred to above, on the ground that the claim made by the
respondent that the tanks were on “occupied land” under s.
5(c) of the Abolition Act, has to be decided by the Jagir
Commissioner in the manner required under s. 17 of the said
Act.
The State challenged before this Court in Civil Appeals Nos.
1244 and 1245 of 1967, the decision of the Madhya Pradesh
High Court. ‘Me contention raised on behalf of the State
was that s. 17 of the Abolition Act had no application and
that it was the function of the Jagir Commissioner alone to
inquire whether the claim of the writ petitioner under s.
5(c) of the Abolition Act was well founded on merits and
then refer the matter for the final decision of the
Government under s. 17 of the Abolition Act. After a
consideration of the scheme of the Abolition Act and in
particular of s. 17, this Court accepted the contention of
the State and held that the inquiry contemplated under s. 17
by the Jagir Commissioner relates to compensation to be paid
to the Jagirdar whose Jagir is vested in the State
Government and once the compensation is determined and paid,
no further inquiry under s. 17 is contemplated. In this
view, by its judgment dated January 25, 1968, this Court set
aside the orders passed by the High Court.
This Court further held that the writ petitioner, namely,
the present appellant before us” is, not left without any
remedy to
867
agitate his claim that the, tanks and wells claimed by him
were constructed on occupied land and that they have been
saved from vesting in the Government under s. 5(c) of the
Abolition Act. It was held that if the writ petitioner was
able to establish this plea, the State Government will have
no power or authority to take possession of such tanks and
wells, as the title thereto did not vest in it in view of s.
5 (c) of the Abolition Act. It was further held that s. 5
(c) has an over-riding effect on s. 4 of the Abolition Art.
In this view this Court held that it was the duty of the
High Court to have decided the jurisdictional fact as to
whether the tanks and wells claimed by the present respon-
dent belonged to the Jagirdar within the meaning of s. 5(c)
of the Abolition Act and that, if the High Court accepted
the said contention, the High Court was competent to issue a
writ under Art. 226 of the Constitution directing the State
to hand over possession of the said tanks and wells to the
writ petitioner. Ultimately, for all the reasons given in
its judgment, this Court set aside the decision of the High
Court and remanded the proceedings for deciding afresh the
claim made by the writ petitioner under s. 5(c) of the
Abolition Act. Liberty was given to the parties to place
before the High Court such further evidence, oral and
documentary, as they may desire to give on the point at
issue. The main judgment was given in Civil Appeal No. 1245
of 1967. For the same reasons given in the said judgment,
Civil Appeal 1244 of 1967 was also remanded in accordance
with the directions given in Civil Appeal No. 1245 of 1967.
The said decision of this Court is reported in State of
Madhya Pradesh and others v. Sardar D. K. Jadhav(1).
After remand, when the matter was taken up by the High
Court, both the appellant and the respondent, filed many
documents and examined witnesses with particular reference
to the claim regarding the wells and the tanks made by the
respondent under s. 5(c) of the Abolition Act.
The respondent laid his claim on the ground that the tanks
and wells had been constructed on lands which were his Khud-
kasht lands as also on lands held on tenure by other
persons. But ultimately his claim was on the basis that the
wells and tanks were all on occupied land belonging to the
Jagirdar or any other person, as laid down under s. 5(c) of
the Abolition Act.
The State, on the other hand, denied the right of the
respondent to claim any right in the said tanks and wells on
the ground that they were not located on occupied land
belonging to the Jagirdar, but were situated on lands which
were in the possession ,of tenants. Hence, according to the
State, the said tanks and
(1) [1968] 2 S.C.R 823.
868
wells were not saved to the respondent under s. 5 (c) of the
Abolition Act, and that they have vested in the State, as
rightly held by the Revenue authorities. In short, the
contention of the State appears to have been that only those
tanks and wells, which are on occupied land belonging to the
Jagirdar and in his possession as Khudkasht land alone are
saved under s. 5 (c) of the Abolition Act.
At this stage we may mention that though the respondent laid
claim to certain wells also in addition to the tanks, it is
seen from the judgment of the High Court that during the
stage of arguments, it was represented on his behalf that
three out of five wells were already in his possession and
that no adjudication is necessary regarding those wells.
Regarding the other two wells, it is also seen that the
respondent abandoned his claim before the High Court.
Therefore, the entire controversy, which the High Court had
to decide centred round the claim, regarding the tanks, made
by the respondent under s. 5 (c) of the Abolition Act.
Though various maters have been adverted to by the High
Court in its judgment, its material findings are as follows
: That the four tanks_ as also the pick-up weir are tanks
within the meaning of the Abolition Act. The four tanks as
also the pick-up weir belonged to the respondent at the time
of the resumption of Jagirs under the Abolition Act, namely,
December 4, 1952; Section 5 (c) is clearly attracted it the
right of ownership or possession of the tanks belonged
either to the Jagirdar or to any other person as against the
said right belonging to the community at large or the State.
The fact that a part of the bed of the tanks may be in the
occupation of tenants is of no consequence in holding in
favour of the respondent under s. 5 (c) of the Abolition
Act; The entire area of the tanks in the possession of the
respondent must as his Khud Kasht land and also in the
occupation of the tenants are both saved under s. 5 (c) and
do not vest in the State under s. 4 of the Abolition Act.
On these findings, the High Court accepted the contention of
the respondent and held that the tanks claimed by him are
saved under s. 5 (c) and they have not vested in the State
under the Abolition Act.
We may state at this stage that the High Court has not
thought it necessary to consider the precise area of each
one of the tanks as the tenants were not parties to the
proceedings. Ultimately, the High Court held that on
resumption of Jagirs under the Abolition Act, the four tanks
and the pick-up weir are saved to the respondent under s.
5(c) of the Abolition Act, subject to certain observations
contained in the judgment. In consequence, the High Court
quashed the four orders of the Revenue authorities, referred
to, in the judgment.
869
Though Mr. I.N.Shroff, learned counsel for. the State, has
raised several contentions, in our view, most of them do not
survive in view of the specific directions contained in the
order of remand passed by this Court. The only two
contentions that have been advanced by him and require to-be
considered are : (1) That the High Court has not complied
with the directions given by this Court in its order of
remand; and (2) The High Court has not found that the said
tanks are situated on “occupied land” so as to be saved
under s. 5(c)of the Abolition Act. The counsel has, no
doubt, pointed out certain other circumstances, which,
,according to him, constitute an infirmity in the judgment
of the High Court.
On the other hand, Mr. V., S. Desai, learned counsel for the
respondent, has pointed out that the directions of this
Court have been fully complied with and that after a very
elaborate consideration of the materials placed before it
by both the parties, the High Court has recorded a finding
that the tanks claimed by the respondent are on “occupied
land” belonging to or held by the Jagirdar or any other
person as required under s. 5 (c) of the Abolition’ Act.
The fact that the High Court has not considered is necessary
to adjudicate upon the exact area of the tanks is of no
consequence because that is a matter to be decided as
between the Jagirdar and the other tenure-holders, if any.
Once the requirement that the tanks are on occupied land and
that they belong to the Jagirdar or to,any other person is
satisfied they are saved under s. 5(c) of the Abolition Act.
That was the only point that the High Court was, directed to
adjudicate upon and on. that aspect clear findings have been
recorded by it.
Before we deal with the contentions of the learned
counsel on both sides, it is necessary to refer the material
provisions of the Abolition” Act. The expressions
“Homestead” and “Occupied land” are defined in sub-clauses
(iv) and (ix) of s. 2(1) and they are as follows:
“2 In this Act unless the: context
otherwise requires-
(iv)”Homestead” means a dwelling-house
together with any court-yard, compound or
attached garden or bari and includes any out-
building used for agricultural purposes and
any tank or well appertaining to the dwelling-
house.
(ix) “Occupied land” means land held
immediately the following tenures, namely,
-L36 SupCI/72
870
(a) Ex-proprietary;
(b) Pukhta Maurusi;
(c) Mamuli Maurusi;
(d) Gair Maurusi;
and includes land-held as Khud-kasht and land comprised in a
homestead;”
Section 3 deals with resumption of Jagir lands by the
Government. As we have already mentioned the date of
resumption is December 4, 1952. Section 4 enumerates the
various items which vest in the State, unless the contrary
has been provided in the Abolition Act. Section 5 saves,
from vesting certain items arid clause (c), which is
material is as follows:
“Section 5 : Private wells, trees, buildings,
house-sites and enclosures.-Notwithstanding
anything contained in the last preceding
section-
(c) all tanks, trees, private wells and
buildings in or on occupied land belonging to
or held by the Jagirdar or any other person
shall continue to belong to or, be held by
such Jagirdar or other person.
Regarding the first contention we are satisfied that the
High Court has complied with the directions given by this
Court in its remand order. The High Court was directed to
decide the jurisdictional fact as to whether the tanks and
wells claimed by the respondent belonged to the Jagirdar and
were saved under S. 5(c) of the Abolition Act. Therefore,
the only investigation that had to be made by the High Court
was on the point, referred to above. In fact, it is seen
that the High Court has been very considerate when it
allowed the appellant to raise various other questions, such
as, the locus standi of the respondent, to file the writ
petition, the question of non-impleading of the tenants in
possession of lands over which part of the tanks are
situated and the undue delay in filing the writ petition.
Further, the High Court has allowed the appellant to raise
the question that the respondent is estopped from seeking
relief regarding the tanks under s. 5(c) in view of the
stand taken by him before the Revenue authorities in his
application for award of compensation. These matters should
not have been permitted to have been raised by the
appellant. If these contentions were available to the
appellant, they should have been raised be-fore this Court
in the appeals, referred to earlier. Any how the High Court
has gone into those matters and held against the appellant.
Therefore, far from not complying with
871
the directions given by this Court, it has even allowed the
appellant to raise certain contentions which were. not
available to it at the stage when the matter was being
considered after remand. Therefore, the first contention
will have to be rejected straightaway.
Regarding the second contention, it is also clear from the
judgment of the High Court that it has very elaborately
considered the various aspects presented; to it, both by the
appellant as well as the respondent. After a consideration
of the materials so placed before it and having due regard
to the provisions of the Abolition Act, the High Court, as
we, have pointed out earlier, has considered, as directed by
this Court, the main question whether the tanks are saved
under s. 5(c) of the Abolition Act. In that connection the
High Court had naturally to consider the scope of the
definition of ”Occupied land” under s. 2 (1) (ix) of the
Abolition Act. It is after a consideration of all these
aspects that the High Court has found that the four tanks
belonged to the respondent at the time of resumption. and
the said tanks were on occupied land belonging to the
Jagirdar or any other person. Therefore, it considered the
question properly as per the remand order and has given a
finding on the same. As to whether the said finding is
correct or not, is a different matter. But the criticism
that it has not considered the point regarding the saving of
the tanks under s. 5(c) of the Abolition Act, cannot be
accepted.
Now coming to the merits, it is clear that as and from the
date of resumption, the consequences enumerated under s. 4
will have full effect. Except as otherwise provided in the
Abolition Act, normally under cl. (a) of Section 4(1) the
right, title and interest of every Jagirdar and of every
other person claiming through him in his Jagir lands
including among other items, tanks, shall stand resumed to
the State. The saving is provided under s. 5. If the
respondent is able to establish that the tanks in question
are on occupied land belonging or hold by the Jagirdar or
any other person, then those tanks are saved in favour of
the respondent under s. 5 (c) of the Abolition Act. It may
be mentioned at this stage that though the items are, all
described as tanks, it is in evidence that they get
submerged at times and at other times portions of the same
are being cultivated either by the respondent or by other s
under certain tenures. That is, parts of the tanks are
included and held by the respondent as khud kasht and rest
of it is held by the tenure-holders, who have got tenancy
rights over them.
As the other tenure-holders, namely, the tenants, were not
parties before the High Court, the question of the extent of
the area of the tanks was not decided and it was left open.
But the
872
entire extent of the tanks had been given by the respondent
as 1679 bighas and 18 biswas of land and this claim was
fully known to the Revenue authorities, who raised the
specific plea that the said tanks are not on occupied land.
Therefore, the circumstance that the High Court did not
adjudicate upon the question of the extent of the tanks, is
of no consequence and it is not material for the point in
dispute.
In order to get the tanks in question saved under S. 5 (c)
of the Abolition Act, the respondent will have to establish
They were on occupied land; and (b) They belonged to or were
held by the Jagirdar or any other person.
We have already extracted the definition of “occupied land’.
The essential ingredient of such land is that it must have
been held immediately before the commencement of the
Abolition Act under one or other of the four tenures
mentioned in sub-cls. (a) to (d). We have not been shown
about the, existence of any other type of tenure. The
occupied land will also include as per the definition lands
held by the Jagirdar as khud kasht as well as the land com-
prised in a homestead. Therefore, occupied land comprises
broadly of two types of lands: (1) four categories of land
held under the tenures enumerated in sub-clauses (a) to (d);
and (2) comprised in khud-kasht and “Homestead”. To
attracted cl. (c) of S. 5, the tank must be shown’ in the
first instance, to be on occupied land, that is, on land
comprised under the tenures enumerated in sub-clauses (a) to
(d) or in the land held, as khud-kasht and homestead. In
our opinion, it is not necessary that the entire tank should
be exclusively situated in one or other of the tenures
enumerated in sub-clauses (a), to (d) of s.2 (1) (ix) on
exclusively in the land herd as khud-kasht and land-
comprised’ in homestead. The requirement of the tanks in
question being ;on occupied land, will be satisfied even if,
part; of the: tanks is situated in one or other of the
tenures mentioned in sub-clauses (a) to (d) of cl. (ix) of
s. 2 (1 ) and the rest of it is included in, the land held
;Is khud-kasht and land comprised in a homestead. That is
the entire area of the tank must be comprised in either the
tennures of the khudkasht and homestead or in both.
Therefore, it is not. possible, to: accept the contention
advanced: on behalf if the appellant State that only those
tanks’, which are on khud-kasht land of the Jagirdar are
saved to him.’ Acceptance of such a contention will be
ignoring the clear wording of cl (ix) of s. 2(1), which
takes in also lands held on the various tenures referred to
therein.
From this, it follows that the mere fact that a part of the
tanks is in the occupation of ‘the tenants as’ tenure-
holders does not detract from operation of the saving cl.(c)
of’s. 5. There is no controversy that at the material date
the occupied lands on which
873
tanks are situated belonged to or were held by the Jagirdar
or any other person. The expression “any other person” is
comprehensive enough to take in the persons who were holding
the land on one or other of the. tenures, enumerated.in sub-
clauses (a) to (id) of s. 2(1) (ix) of the Abolition Act.
Whatever may be the extent of the tanks in the possession of
the respondent, as his khud-kasht or homestead and in the
possession of the tenure-holders, the position ultimately
is, that the-entire extent of the tanks is in “occupied
land” belonging to or held by the Jagirdar or any other
person. The actual extent and the area held by the Jagirdar
and the tenure holders can be worked out only in the
presence of both those parties.
To conclude, we are satisfied that the High Court has
appealed the correct test. to find out whether the. tanks
are saved under s. ) of the Abolition Act. We, are also in
agreement with the finding of the High Court that the four
tanks and the pick-up weir are saved to the respondent under
s. 5(c) of the Abolition Act.
In the result, the judgment and order of the High Court are
confirmed and this,appeal dismissed with costs
G. C. Appeal dismissed.
874