( 1 ) THIS appeal under the Letters Patent arises out of a judgment delivered by singh J. in Second Appeal No. 636 of 1964 dated August 12, 1968 whereby a suit for possession of an abadi site situate in village Durg was dismissed.

( 2 ) THE material facts, which are no longer in dispute, are these, Ghanshyamsingh (plaintiff 3), who was the proprietor of village Durg, leased out to the defendants, by a document Ex. P-15 dated July 10, 1947, the disputed abadi site for building their house in return for Rs 2. 50 as monthly rent on condition that they would deliver vacant possession of the site on fifteen days notice. Thereupon, the defendants built on the site a house which they continue to occupy. Subsequently, by a registered document Exhibit P-16 dated May 24, 1948, Ghanshyamsingh transferred to his wife Smt. Jaidevi, without any consideration, all the house sites in the abadi of village Durg on terms and conditions therein stated. On the death of Smt. Jaidevi on March 7, 1950, Raghvendra Singh and Jitendrasingh (plaintiffs 1 and 2) succeeded to her interest by virtue of a will made by her. After the requisite notice, they brought the suit, out of which this appeal arises, for vacant possession of the abadi site. The Court of first instance dismissed the suit on the view that the document dated May 24, 1948 did not affect the rights created by the lease Ex. P-15 dated July 10, 1947. The lower appeal Court found that the defendants had executed the aforesaid lease and Ghanshyamsingh had executed the document dated May 24, 1948 by which he transferred all the house sites of village Durg to his wife Smt. Jaidevi. According to the lower appeal Court, the defendants became tenants of the transferee by operation of law as well as by subsequently paving rent to her. On the basis of these conclusions, the claim for possession was decreed. The learned Single Judge took a different view on the ground that Smt. Jaidevi was, by virtue of the document Ex. P-16 dated May 24, 1948, a transferee of proprietary rights in respect of the abadi land of village Durg and that, on the vesting of the proprietary rights in the State, she or her successors in interest ceased to be entitled to recover possession of any abadi site of the village in occupation of another person.

( 3 ) HAVING heard the counsel, we have reached the conclusion that, on the facts found, the decision of the learned Single Judge should be affirmed, though for different reasons. It is true that in the case of Mahadeo v. State of Bombay, AIR 1959 SC 735, their Lordships observed that there was a transfer of items of proprietary rights when agreements like those reproduced in paragraph 12 of the judgment in that case were made by proprietors in regard to Tendu leaves But their Lordships also observed in paragraph 29 of the judgment as follows:

"even assuming that the documents in question do not amount to grant of any proprietary right by the proprietors to the petitioners, the latter can have only the benefit of their respective contracts or licenses. In either case, the State has not, by the Act, acquired or taken possession of such contracts or licenses and consequently, there has been no infringement of the petitioners' fundamental right which alone can support a petition under Article 32 of the Constitution. "

It is not necessary for us to go to the extent of holding that the transferee of an abadi site from the proprietor is a transferee of a proprietary right. It would, we think, be enough to consider this case in the light of the provisions of Clause (a) of section 4 (1) and Clause (a) of Section 5 of the M. P. Abolition of Proprietary rights (Estates, Mahals, Alienated Lands) Act, 1951, hereinafter called for brevity the Abolition Act-Under Clause (a) of Section 4 (1) of the Abolition Act, all abadi sites "save as otherwise provided" in that Act vest in the State. The saving provision is contained in Clause (a) of Section 5 of this Act which reads:" (a) all open