IMPORTANT POINT
Section 4(2) of Madhya Bharat Zamindari Abolition Act does not put an embargo on the right of the person whose possession of the Suit land is recorded in the khasra of the years earlier to the date of vesting to recover possession of the land from a tresspasser, if he was subsequently dispossessed from the land.

Headnote:Madhya Bharat Zamindari Abolition Act, 1951-Section 4(2) r/w Section 2(a)-Owner s right to continue in possession-Suit for recovery of possession of khud-kasht land-Proprietor has to show that he was in possession of land as a khud-kasht cultivator and that fact is recorded in khasra-Section 4(2) put embargo on right of person whose possession is recorded in khasra of years earlier to date of vesting to recover possession of land from a tresspasser if he was subsequently dispossessed from land-Entries in khasra create presumption in favour of person whose name is recorded-Deletion of name of such person and entry of name of another person without following procedure laid down in law would not defeat right of such person.
       A proprietor claiming the right to continue to remain in possession of the khud-kasht land, has to show that he was in possession of the land as a khud-kasht cultivator and that fact is recorded in the khasra - the annual village papers - before the date of vesting. Section 4(2) of Madhya Bharat Zamindari Abolition Act does not put an embargo on the right of the person whose possession of the Suit land is recorded in the khasra of the years earlier to the date of vesting to recover possession of the land from a tresspasser, if he was subsequently dispossessed from the land. (Paras 8 and 9)
       The entries in annual village papers create presumption albeit rebuttable in favour of a person whose name is recorded. We find that a procedure is prescribed to challenge the entries made in the annual village papers. The procedure is contained in the Madhya Bharat Land Revenue and Tenancy Act of 1950 (for short Land Revenue Act ). Section 45 of that Land Revenue Act specifies that Khasra, Jamabandi or Khatoni and such other village papers as the Government may from time to time prescribe shall be annual village papers. Section 46 enjoins preparation of annual village papers each year for each village of a District in accordance with rules made under the Act. Section 52 embodies the presumption that all entries made under that Chapter in the annual village papers shall be presumed to be correct until the contrary is proved and Section 50 prescribes the method or procedure for correction of wrong entries in the annual village papers by superior officers. Thus it is clear that in the event of wrong entries in the annual village papers the same is liable to be corrected under Section 50 and unless they are so corrected the presumption under Section 52 will govern the position. (Para 16)
       In the instant case it is not in dispute that initially the names of the appellants were recorded. They were subsequently scored off by the Patwari and the name of Gayadeen was entered. There is nothing to show that this correction was made in accordance with the procedure prescribed under Section 50 of the Land Revenue Act. Indeed it is not the case of the respondent that correction was carried out under the said provisions. Therefore, the subsequent entry will be of no consequence and it confers no benefit either on Gayadeen or anybody claiming through him. (Para 17)

ORDER

This appeal is directed against the judgment and order of the High Court of Madhya Pradesh, Jabalpur Bench at Gwalior in Second Appeal No. 385 of 1973 dated March 13, 1987. The resolution of the controversy in this appeal depends upon the true interpretation of Section 4(2) of Madhya Bharat Zamindari Abolition Act, Samvat 2008 (Act 13 of 1951), referred to in this judgment as the Abolition Act.

2. The appellants are proprietors of the land in dispute within the meaning of Section 2(a) of the Abolition Act. The lands in dispute are Survey Nos. 2742, 3080 and 3105 of village Mehgaon, District Bhind (erstwhile Gwalior State) (for short the Suit Land). The appellants filed the Suit out of which the present appeal arises, for recovery of possession of the suit land against the original defendant (son of Gayadeen) on the allegation that in Samvat 2008 Gayadeen dispossessed them and therefore, they are entitled to recover possession after ejectment of the respondents. They say that in Samvat year 2005 one Balku was cultivating the Suit land. After that he abandoned it and the appellants cultivated the suit land (khud-kasht) during the Samvat years 2006, 2007 and 2008 and the same is so recorded in the annual village papers (khasra). They alleged that in the khasra of Samvat year 2008 their name was struck off and name of one Gayadeen was got written with the connivance of the Patwari. They claimed to have become permanent tenant and from October 10, 1959, Bhoomiswami.

3. The claim of the appellants was contested by the respondents by pleading that Balku had never abandoned the suit land. In Samvat year 2006 he gave the possession of the land to Gayadeen who remained in possession till his death and thereafter the defendant was cultivating the land. The respondents claimed to be the heirs of the sub-tenant of Balku, a gair maurusi kashtkar. On the date of vesting of the Abolition Act he was in possession and, therefore, he was entitled to all the rights under the Abolition Act. The appellants right, if any, was to continue in possession, if they were in possession on that date but as they were out of possession, they cannot seek recovery of possession from them.

4. On these pleadings the parties went on trial. The learned Trial Judge dismissed the Suit of the appellants. The appeal filed before the learned District Judge was also dismissed. The appellants prosecuted the case in the Second Appeal before the High Court which was also dismissed by the impugned order. That is how the appellants are in appeal before us. During the pendency of the appeal the second respondent died and the application for substitution of his legal representatives is ordered.

5. Mr. Shiv Dayal, the learned senior counsel for the appellants, submitted that all the Courts below proceeded on an erroneous construction of sub-section (2) of Section 4 and dismissed the Suit. According to the learned counsel, what is relevant for purposes of acquiring the right to continue to be in possession under Section 4(2) is the entries made in the khasra for the period earlier to the date of vesting but not the actual possession on the date of vesting. Even so the learned counsel submits that for the Samvat Year 2008 the appellants were in possession which was recorded in the khasra which was subsequently corrected and the name of Gayadeen, the predecessor in interest of the respondents, was entered. As the appellants were in possession of the suit land and the same is recorded in khasra of the earlier years 2006, 2007, they acquired the right under Section 4(2) to continue in possession and this aspect has been missed by the Courts below. Mr. Mehrotra, the learned senior counsel appearing for the respondents, submits that mere entry in the record is not material. What is important is, submits the learned counsel, the possession as on the date of vesting and as the Courts below found concurrently that on that date the appellants were not in possession, so they are not enti

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