Judgement

MUDHOLKAR, J.: Both these appeals arise out of a suit instituted by Himmatrao, appellant in C. A. 1034 of 1963 for declaration that he is owner of 1 anna 5 pies share in the village Mozara, District Yeotmal and for partition and separate possession of the property that would fall to the aforesaid share. Certain other reliefs were also prayed for by him; but it is not necessary to refer to them for the purpose of deciding these appeals. To this suit he joined other co-sharers in the village as well as alienees from some of their co-sharers. This suit was instituted by him on December 7, 1939 and was partially decreed on July 31, 1944 by the court of Sub-Judge, second class, Darwha. He preferred an appeal from the decree of the trial court. So also Pusaram, one of the defendants to the partition suit preferred an appeal from the decree of the trial court and some other defendants preferred cross-objection against that decree. The appeal of Himmatrao was allowed while that of Pusaram was dismissed. The cross-objections of Jugalkishore and Jaykumar succeeded while that of Laxman Vinayak who is the appellant s brother in C. A. 1035 of 1963 was dismissed. Pusaram preferred two appeals before the High Court from the judgment of the lower appellate court, Second Appeal No. 574 of 1946 and Second Appeal No. 576 of 1946. Laxman Vinayak preferred Second Appeal No. 608 of 1946. All these appeals were heard together and disposed of by a common judgment. It was urged before the High Court on behalf of Pusaram that the suit for partition had become infructuous because of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Aliendated Lands) Act, 1950 (No. 1 of 1951) and, therefore, as held in Chhote Khan v. Mohammad Obedullakhan, ILR 1953 Nag 702 (FB), the suit should be dismissed. This contention was upheld by the High Court and an order to this effect was made in all the appeals.

2. The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereafter referred to as the Act for brevity) was enacted, as the long title thereof shows, to provide for the acquisition of the rights of proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith. It was not intended to take away each and every kind of right possessed by a person in immovable property situate in such villages. The vesting Section is S. 3. Sub-section (1) thereof makes it clear that the rights which were acquired by the State were proprietary rights save as otherwise provided in the Act, but not any other kind of right possessed by an owner of property. The consequences of vesting are dealt with by S. 4 of the Act, sub-s. (2) of which reads thus:

"Notwithstanding anything contained in sub-section (1), the proprietor shall continue to retain the possession of his home-stead, home-farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting"

It is not disputed on behalf of the respondents and indeed it cannot be disputed that home-farm land is not affected by the provisions of the Act. In other words, such land was not acquired by the State but was left with the owners thereof. The definition of home-farm is given in S. 2 (g) of the Act. Clauses (i) and (ii) of this provision give the definition of home-farm in relation to the Central Provinces. But with that definition we are not concerned. The village Mozara was not situate in that part of the former Madhya Pradesh which was within the area of the still earlier Central Provinces of the British times. It is situate in that part of the former Madhya Pradesh which was and still is known as Berar. Clause (3) of that definition gives the definition of home-farm in relation to Berar. According to this definition all land included in holdings which is "(i) under the personal cultivation