JUDGMENT

UNTWALIA, J. :— Diwan Ram Rao Palshikar, the appellant in this appeal by special leave directed from the judgment of the Madhya Pradesh High Court was a minor in the year 1947. The suit land bearing Khasra No. 92/93 measuring 1.10 acres was his Inam land situated in mouza Palsia-Hana now within the municipal limits of Indore City. During the appellants minority his estate was under the management of the Court of Wards of the Holkar State. The Manager of the Court of Wards had give the land in dispute on lease to Shri Mohanlal Kimti, the defendant-respondent in the appeal, for one year i.e. fasli year 1357, equivalent to 1947-48, for agricultural purpose. That was the case of the appellant and according to his further case the lease expired on 5th June, 1948. He attained majority on the 15th June, 1948. Even so the respondent failed to deliver possession of the suit land either to the Court of Wards or to the appellant. He, therefore, served on respondent No. 2 registered notices, one dated 7-9-1948 and the other dated 30-4-1951, calling upon him to deliver possession of the agricultural land in dispute. He brought the suit on 27-6-1952 for possession and for recovery of Rs. 150/- by way of mesne profits for three years as also for future damages at the rate of Rs. 50/- per year till delivery of possession. It may be noticed here that the amounts claimed by the appellant were exactly at the rate of Rs. 50/- per year, the rate at which the tenancy had been given to the respondent.

2. The defendant in his original written statement filed on 2-9-1952 contested the claim of the appellant on various grounds asserting that he had taken the land for construction of huts and had built upon it. This was in reply to the appellants assertion that the land had been given for agricultural purposes but had been misused for building purposes. During the pendency of the suit in the Trial Court the Madhya Bharat Muafi and Inam Tenants and Sub-Tenants Protection Act, 1954 (Madhya Bharat Act 32 of 1954) was passed and came into force on 15-12-1954. In accordance with the provision contained in the said Act the respondent applied to the Court where the suit was pending to stay it under Sections 3 and 4 of the said Act. In spite of opposition by the appellant the Court allowed the prayer of the respondent and stayed the suit by its order dated 31-8-1955.

3. Madhya Bharat Act 32 of 1954 expired on 2-10-1959 on coming into force of the Madhya Pradesh Land Revenue Code, 1959 (Madhya Pradesh Act 20 of 1959). The appellant, thereupon, filed an application on 2-2-1960 for resuming the proceedings of the suit. The proceedings were resumed. On 22-11-1960, however, the respondent filed an application for amendment of the written statement and claimed to resist the suit on the ground that he had become an occupancy tenant of the disputed land under Section 185 of the Land Revenue Code. In spite of the objection by the appellant, amendment was allowed and a new issue being Issue No. 12 was framed in the following terms :-

"Has the defendant become occupancy tenant in view of Section 185 (2) of M. P. Land Revenue Code? If so, effect?"

4. The Trial Court took up the 12th issue aforesaid for trial as a preliminary issue in the suit and held that since the land in dispute was the Inam land of the appellant and the same was leased out to the respondent for agricultural purpose wherein he was inducted as an ordinary tenant he continued to hold it as such on 2-10-1959 when the Land Revenue Code came into force and, therefore, he became an occupancy tenant under Section 185 (1) (ii) (a) of the Land Revenue Code. The appellant was, therefore, not entitled to dispossess him. The claim for money was decreed to the tune of Rs. 150/- for the past three years and at the rate of Rs. 50/- per year in future. No eviction decree was granted. The decree of the Trial Court has been maintained by the first Appellate Court as also by the High Court in second appeal. On grant