K.L. Pandey, J.

This appeal by the plaintiff is directed against the reversing decree of the lower appeal Court by which his claim for possession of certain malik-makbuza plots specified in the plaint was dismissed.

Rani Mankunwarbai was the proprietor of Pandaria Zamindari. Pritram (defendant) held Patharra, a village in that Zamindari, as a thekadar with protected status. In that capacity, he was also in possession of 128.16 acres of home-farm land of the village. Under the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter called the Act), the proprietary rights vested in the State with effect from 31st March 1951. Thereupon, by an order dated 3rd September 1951, the Deputy Commissioner, Land Reforms, Bilaspur, reserved to Pritram the rights of an occupancy tenant in 95.48 acres of the home-farm land. By the same order, the remaining home-farm land was reserved to Rani Mankunwarbai, who was treated as malik-makbuza of the land which was accordingly assessed to land revenue under section 42 of the Act.

It is no longer disputed, though it was contested in the Court of first instance, that, by a sale deed dated 9th May 1953, Rani Mankunwarbai sold to the plaintiff 15.49 acres out of her malik-makbuza land of village Patharra. It has also been found that the plaintiff was placed in possession of the land sold to him and that, between November 1953 and February 1954, the defendant dispossessed him from that land. The plaintiff's claim for possession of the land was resisted on several other grounds only two of which were accepted by the lower appeal Court. In this appeal, the controversy is restricted to these two grounds.

Differing from the Court of first instance, it was held by the lower appeal Court that, before passing the impugned order dated 3rd September 1951, the Deputy Commissioner, Land Reforms, did not issue any notice to the defendant as required by rule 4 of the Rules framed under section 91(2)(i), read with section 38 of the Act, that the order did not, therefore, bind the defendant and that he was entitled to resist the plaintiff's claim for possession founded upon it. In my opinion, this contention, which the lower appeal Court was persuaded to accept, proceeds upon a misconception. Sub-section (2) of section 38 of the Act was not a provision which, by itself, gave any right in sir and khudkasht land to any one. It must be read in the light of the sections 4(2) and 38(1) of the Act which were as follows:

4(2). Notwithstanding anything contained in sub-section (1), the proprietor shall continue to retain the possession of his home-stead, home-farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting.

38(1). Every proprietor who is divested of his proprietary rights in an Estate or Mahal shall, with effect from the date of vesting, be a malik-makbuza of the home-farm land in his possession.

Sub-section (2) of section 38 merely provides for partition of sir and khudkasht land retained by the proprietor under section 4(2), which, by the operation of section 38(1), became malik-makbuza land. The condition essential for a partition under section 38(2) was the continuance of the right existing before the date of vesting to a share in such sir and khudkasht land. The expression "If there are more persons than one having interest in land held as sir or khudkasht immediately before the date of vesting" employed in section 38(2) referred to co-sharers and this was made clear when it was therein provided that such partition could be made "after hearing the objection of the co-sharers" and it was enacted in section 38(3) that all persons having, before the date of vesting, shares in the Estate or Mahal could be joined as parties to the partition proceedings. A person like the defendant here, who was not a co-sharer and who also ceased to have from the date of