IMPORTANT POINT
Expression "personal cultivation" means not merely bodily cultivation but constructively also and also the right to possess against a trespasser.

ORDER

The plaintiffs are in appeal before us. They brought a suit for possession in respect of certain parcels of agricultural land and for recovery of mesne profits. Their case is that one Madhorao had effected a mortgage of the suit lands in their favour and he brought a suit for redemption which was decreed and on his filing execution petition the same was resisted by the appellants on the ground that it was barred by limitation. The executing court however overruled the objections raised by the appellants and in execution of the aforesaid decree delivered possession of the suit lands to Madhorao on 15-7-1949. On appeal filed by the appellants the Addl. District Judge, Garoth, reversed that order of the executing court and held that the application for execution was barred by time. When the matter was carried further by Madhorao the order passed by Addl. Distt. Judge was upheld.

2. The appellants filed an application for restitution on 12.5.1953. That application was rejected on an objection being raised by one Kishan Lal stating that he was in possession of the lands in question, who was not a party to earlier proceedings. So the present suit has been filed by the appellants against Kishan Lal for recovery of possession of the suit lands. The stand of Kishan Lal in the suit is that he has been in possession of the suit lands as a tenant of the Zamindar on 2.10.1951 when the M.B. Zamindari Abolition Act (hereinafter referred to as the Act ) came into force and hence he became a pucca tenant of the State Government under Section 38 of the Act. However the trial Court decreed the appellants suit. On appeal the lower appellate court held that on 2.10.1951 when the propriety rights in the suit lands vested in the State under the Act the appellants had lost all interest in the same and that the said Kishan Lal had become a pucca tenant of the suit lands by virtue of the provisions of Section 38 of the Act and thus the appellant was not entitled to any relief. On this basis the lower appellate court allowed the appeal and dismissed the suit filed by the plaintiffs-appellants. Thereafter, the appellants carried the matter unsuccessfully in second appeal. Hence this appeal by special leave.

3. The suit land was situated in a village which was settled under the Zamindari System in the erstwhile State of Gwarlior when Madhorao was Malguzar of the said village and appellants were mortgagees who could be described in the category of Malguzars as defined by Section 2(12) of Qanoon Mal, Gwalior and, therefore, could be treated to be proprietors as defined by Section 2(a) of the Act.

4. Even after giving such a finding the High Court is of the view, that on the vesting of the land rights of the proprietor in respect of the suit land ceased. It was held after 2.10.1951 the right to possession of suit land from the said Kishan Lal even assuming him to be a trespasser could not be claimed by the appellants as their rights were lost having vested in the State. It is on that basis the High Court took the view the suit was filed having no right to possess the suit lands and therefore, no relief could be granted.

Section 41 reads as under:-

"41. Tenant to be deemed to be a Government s tenant from the date of vesting and Revenue Administration and Ryotwari Act to apply to the vested land. When the propriety rights in any village, Muhal, land, chak or block are vested in the State under Section 3 of this Act, every Sakitulmilkiyat, Pacca Maurusi, Mamuli Maurusi, Gair Maurusi tenant of such village muhal land, chak or block who was in possession of any holding shall from the date of vesting, be deemed to be a tenant of the Govt. and the proprietor shall also likewise, in respect of the holding of his Khud-Kasht or Sir, be deemed to be a tenant of the Government from the date of vesting and all provisions of Part II of Madhya Bharat Revenue Administration and Ryotwari land Revenue and Tenancy Act, Samvat 2007, shall, subject to other provisions of thi