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High Court Of Madhya Pradesh
T. C. Shrivastava, J.
MANIRAM MAKSUDAN - Appellant
Versus
RAMDAYAL MAKSUDAN - Respondents
Second Appeal 323 Of 1956
Decided On : 02/11/1959
THEKEDARI RIGHTS - C. P. LAND REVENUE ACT, 1917, SECTION 109 - JOINT FAMILY PROPERTY - PARTITION - ABOLITION OF PROPRIETARY RIGHTS - EFFECT.
Fact of the Case:
The plaintiff, a protected thekedar, filed a suit for exclusive possession of certain lands that were given to a washerman on the condition that he would render service to the family. The washerman surrendered the lands in 1948, and the plaintiff claimed exclusive possession. The defendants, the plaintiff's brothers, claimed joint possession.
Finding of the Court:
The trial court and the lower appellate court dismissed the plaintiff's suit, holding that the lands were joint family property and that the plaintiff was not entitled to exclusive possession. The plaintiff appealed to the High Court.
Issues: 1. Whether the plaintiff, as a protected thekedar, was entitled to exclusive possession of the lands. 2. Whether the lands were joint family property. 3. Whether the abolition of proprietary rights in 1950 affected the plaintiff's claim for exclusive possession.
Ratio Decidendi: 1. The court held that the plaintiff, as a protected thekedar, was not entitled to exclusive possession of the lands. The court relied on the provisions of Section 109 of the C. P. Land Revenue Act, 1917, which states that a theka shall descend by primogeniture. However, the court also held that the rights of the other members of the Hindu family in the theka continue, though they cannot obtain a partition of the lands in the theka or claim to be in possession of any lands pertaining to the theka in the absence of any arrangement between them. 2. The court held that the lands were joint family property. The court relied on the fact that the lands were given to the washerman for services to be rendered to the joint family of the parties. The court also noted that the plaintiff and the defendants had been in joint possession of the lands since 1948. 3. The court held that the abolition of proprietary rights in 1950 affected the plaintiff's claim for exclusive possession. The court held that after the abolition of the proprietary rights, the lands became partible between the co-sharers.
Final Decision: The court dismissed the plaintiff's appeal.
( 1 ) THIS second appeal has been filed by the plaintiff against the judgment dated 14-10-1955 in Civil Appeal No. 54-A of 1954, delivered by the 2nd Additional District Judge, Bilaspur, reversing the judgment of the Civil Judge (Class II), Janjgir, dated 15-4-1953.
( 2 ) THE facts of the case are mostly undisputed. The appellant-plaintiff Maniram and the respondents-defendants Ramdayal and Hariram are the sons of one Maksudan, The village Bade Sipat, Tahsil Janjgir, District Bilaspur, was held in protected thekedari rights by the family. The theka was recorded in the name of the plaintiff Maniram. In 1935 there was a partition in the family in which the sir and the Khudkasht lands attached to the theka and other properties belonging to the family were divided between the three brothers.
( 3 ) THE suit lands totalling to an area of 11. 18 acres in that village had been given to one Budga, who was working as a washerman for the family, on the condition that the lands would be retained by him so long as he rendered service. In the year 1948, he ceased to render service and gave back the lands on 25-3-1948. According to the plaintiff he is exclusively entitled to these lands; but according to the defendants, all the three brothers are jointly entitled to continue in their possession. Admittedly, after the lands were given up by Budga, they have been in possession of the three brothers jointly. The plaintiff, however, brought the suit claiming exclusive possession. The suit was dismissed by the trial Court. The lower appellate Court has upheld the findings of the trial Court, but the plaintiff has been granted a decree for joint possession.
( 4 ) THE findings of the trial Court are based on the evidence of Maniram (P. W. 1) himself, who has admitted that the theka was granted originally to the ancestors of the parties. Although it was recorded in the name or the plaintiff alone according to the provisions of the Land Revenue Act, the family treated the property as joint and the lands attached to it were divided in 1935. The plaintiff Maniram has also admitted that when Budga was given the lands in suit, he was working for the joint family as a washerman and continued to do so. It appears that nothing was mentioned about these lands at the time of partition.
( 5 ) THE question now is whether on the surrender of the lands by Budga they passed only to the plaintiff, as he was the protected thekedar, or they passed to, the three brothers jointly. On this point, Shri Y. P. Verma for the appellant contends that the property in the theka being inalienable and impartible under Section 109 of the C. P. Land Revenue Act, 1917, the other co-sharers have no interest and cannot claim to retain possession either jointly or exclusively of any lands with the protected thekedar. ( 6 ) THE position of a protected thekedar has been examined in several cases. I would refer only to Chandanlal v. Pushkar Raj, ILR 1952 Nag 318: (AIR 1952 Nag 271) where it has been stated: "it has always been the accepted view that the grant of protected status to a thekedar did not make the theka the exclusive property of the person on whom the protected status is conferred. . . . The nature and incidence of protected thekedari tenure came up for consideration by their Lordships of the Privy Council in Thakur Bhagwan Singh v. Darbar Singh 24 Nag LR 179: (AIR 1928 PC 96 ). Their Lordships observed that the Land Revenue Act, 1917, recognises that the leasehold interest, though impartible, may nevertheless be the joint property of the thekedar and his family. " In Letters Patent Appeal No. 19 of 1949 (Sheo Prasad Sao v. Mst. Sukhambai), decided on 30-11-54 (Nag) the implications of Section 109 (1) (A) of the C. P. Land Revenue Act, 1917 were examined and it was observed: "the conferral of protected status does not disturb the rights of the members inter se though they may not be recognised by the State. As between members the rights of any particular
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