( 1 ) THIS appeal under Clause X of the Letters Patent by the plaintiff is directed against a judgment of Bishambhar Dayal, C. J. , dated 14-4-1971, affirming the judgment and decree of the 2nd Addl. District Judge, Satna, dated 11-11-1965, setting aside the judgment and decree of the Civil Judge, Class II, Satna, dated 17-4-1961, and dismissing the plaintiff's suit based on title for possession, of sir lands bearing khasra No. 332, area 11-64 acres, and khasra No. 551, area 0. 60 acre, total area 12. 24 acres, situate in village Dengrahat.

( 2 ) THE plaintiff, Lal Rangnath Singh was the ex-Jagirdar of Dengrahat in the erstwhile State of Vindhya Pradesh. He created a usufructuary mortgage of the suit lands by executing a registered mortgage-deed, dated 10-5-1951, in favour of the defendant, Sheo Mangal Prasad, to secure a loan of Rs. 1. 800. The Jagir was resumed by the then State Government of Vindhya Pradesh under the provisions of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952, w. e. f 1-1-1954. By virtue of Section 6 (1) (a) of the Act, as from the date of resumption, the right, title and interest of the plaintiff in the Jagir lands stood resumed to the State Government free from all encumbrances. Under Clause (g) thereof, the usufructuary mortgage was substituted by a simple mortgage and the defendant who was a mortgagee in possession ceased to have any right to possess the land. On 6-4-1958, the defendant consequently brought a suit for recovery of Rs. 2,074 on the basis of the registered mortgage-deed, being the amount due towards the principal amount and interest thereon. While this suit was pending, the plaintiff on 2-8-1958 made an application for allotment of the disputed sir lands under Section 22 of the Act.

( 3 ) THE State Government in the Land Reforms Department by its order, dated 3-4-1958. issued the following direction:

"govt. OF MADHYA PRADESH land REFORMS DEPARTMENT no. 2086/28/xxviii-58 Bhopal, dated 3-4-58, to the Director of Land Reforms, madhya Pradesh, Rewa. Subject:-- Settlement of mortgaged Jagir land in the possession of mortgagee. Ref:-- Your Memo No. 964/62 dated the , 25th May. 57. Under Section 6 (g) (i) of the Vindhya Pradesh Abolition of Jagirs and land Reforms Act. 1952, a mortgagee in possession of a Jagir, such land or part thereof ceases to have any right to possess such land or part thereof, and such mortgage with possession shall to the extent of the amount of security on the Jagir land and part thereof be deemed to have been substituted by simple mortgage. Government have decided that the said land should be settled with the Jagirdar as if it was under his cultivation. By order of the Governor Madhya Pradesh Sd/- M. P. Singh, under Secretary to Govt. M. P. Land Reforms Deptt. Bhopal. "

( 4 ) PURSUANT to the orders of the Government, the Tahsildar. Raghuraj Nagar, by his order dated 28-4-1958 allotted the sir lands to the plaintiff. In appeal, the collector, Satna. by his order dated 30-3-1959, upheld the order of allotment. Thereupon, on 18-7-1959 the defendant moved this Court under Article 226 of the Constitution challenging the order of allotment being Miscellaneous Petition no. 159 of 1959, Sheo Mangal Prasad v. Lal Rang Nath Singh. The allotment was challenged on the ground that the plaintiff not being in personal cultivation of the disputed lands on the date of resumption of Jagir, i. e. , on 1-1-1954, within the meaning of the expression 'personal cultivation' as defined in Section 2 (f), he could not derive any right of allotment under Section 22 of the Act. The order of allotment was also assailed on the ground that the Government could not by its order override the provisions of Section 22 nor could the government in the guise of interpretation provide that cultivation by a usufructuary mortgagee should be deemed to be personal cultivation by the jagirdar. It was, therefore, urged that the Government order was a nullity in all respects and,