The cultivating rights in the sir lands, which became the home-farm of the proprietor under the Abolition Act, were protected against sale except where those cultivating rights were the subject of a mortgage or a charge created by the proprietor.

Judgment

HIDAYATULLAH, J. : One Mohd Yusaf obtained a money decree for Rupees 1,277-7-0 against the appellant, Ahmad Hafiz Khan, on January 14, 1950. In execution of the decree Mohd. Yusaf attached two annas and 5-7/45 pies share of the appellant in Mouza Tumhari, Tahsil Sakti, District Bilaspur, along with sir and Khudkasht lands appurtenant thereto. The attachment was made on September 28, 1950. On March 31, 1951, before the sale took place, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M. P. Act No. 1 of 1951) was made applicable to that area. In view of the provisions of the Abolition Act the proprietary rights in the village vested in the State. Thus far there is no dispute.

2. On October 1, 1951, the fields under attachment were put to sale and were purchased by the respondent, Mohd. Hasan Khan. The appellant filed an application setting forth objections under O. 21, R. 90 of the Code of Civil Procedure but the application was dismissed and the sale was confirmed on February 1, 1952. The Judgment-debtor appealed against the order dismissing the application and on May 1, 1952, the Additional District Judge, Bilaspur, set aside the sale, and possession of the property was restored to the appellant. On further appeal by the auction purchaser the order of the Additional District Judge was reversed and the auction purchaser was put in possession of the property on April l6, 1955. Both the appellant and the auction purchaser applied to the executing Court. The appellant raised further objection while the auction purchaser asked for mesne profits under S. 144 of the Code of Civil Procedure. We are concerned with the application of the appellant. The objection of the appellant was dismissed by the Civil Judge and his successive appeals to the District Judge and the High Court also failed. The judgment of the High Court was passed on December 24, 1959, and the present appeal is filed against that judgment with the special leave of this Court. The contention of the appellant is that the cultivating rights in the sir lands could not be the subject-matter of sale in execution of the decree in view of S. 43 of the Abolition Act. This argument was not accepted by the High Court and it is contended that the decision of the High Court is erroneous. In our opinion the contention must be sustained.

3. Under the Central Provinces Tenancy Act, 1920, a proprietor losing his right to occupy sir land, as a proprietor, became from the date of such loss of right an occupancy tenant of sir lands. This was provided by S. 49 of the Act which, in so far as relevant to the present purpose, read as follows :

"49. (l) A proprietor, who temporarily or permanently loses, whether under a decree or order of a Civil Court or a transfer or otherwise, his right to occupy his sir land, in whole or in part, as a proprietor, shall, at the date of such loss, become an occupancy tenant of such sir land except in the following cases,-

(a) when a transfer of such sir land is made by him expressly agreeing to transfer his right to cultivate such sir land; or

(b) when such sir land is sold in execution of, or foreclosed under a decree of a Civil Court which expressly directs the sale or foreclosure of his right to cultivate such sir land".

(The other sub-sections are not relevant).

4. The effect of the loss of proprietorship by reason of the Abolition Act is almost the same except that a new right is created in the quondam proprietor in respect of his sir lands. On the passing of the proprietary interest to the State what remains to the proprietor is his cultivating rights in the sir fields and the Abolition Act provides in S. 4 (2) that the proprietor "shall continue to retain the possession of his ....... home-farm land." "Home-farm" is defined by S. 2 (g) (i) as

"land recorded as sir and Khudkasht in the name of the proprietor in the annual papers for the year 1948-49."

Thus by the operation of the Abolition Act, the proprie