P. K. Tare, J.

(After stating the facts in paragraphs 1 to 4 the judgment proceeds-)

The learned counsel for either of the side did not challenge any finding of fact, but confined their arguments to the question of law mentioned above. The learned Single Judge had allowed the appeal mainly on the consideration, that section 185(1)(ii)(b) of the M. P. Land Revenue Code, 1959 was not attracted. As regards the applicability of section 185(1)(ii)(d) of the said Code, the learned Single Judge held that as Rughunathsingh was subject to a physical disability as contemplated under clause (v) of subsection (2) of section 168 of the said Code, it was sub-section (3) of section 185, of the Code, which was attracted and for that reason the present appellant Could not acquire the status of an occupancy tenant. For that position reliance was placed on the pronouncement of their Lordships of the Supreme Court of Rao Nihalkaran v. Ramgopal 1966 MPLJ 712 (SC) : AIR 1966 SC 1485.

The respondents 1 and 2, namely, Jagatsingh and Mansingh, filed the present suit for partition and separate possession of their 2/5th share in the property left by Raghunathsingh. That claim of theirs was contested by the defendants on the ground that Gajrajsingh became an occupancy tenant. It is not necessary to examine the reasoning of the trial Judge or the first appellate Judge. But we may mention one material fact which was not specifically pointed out to the learned Single Judge that Raghunathsingh died in the year 1957; and at the time the M. P. Land Revenue Code, 1959 came into force, Raghunathsingh not being alive, the position of Gajrajsingh would be that of a trespasser, as per section 76 of the Madhya Bharat Land Revenue and Tenancy Act, 1950. Therefore, the question arises whether Gajrajsingh could acquire occupancy rights under section 185 of the M.P. Land Revenue : Code, 1959.

Before considering the development of the legislation about abolition of zamindari and regulations of tenancy rights, it is pertinent to note that the object of the Legislature was not only to abolish the vested rights of zamindars and Jagirdars, but also to abolish the intermediaries and to make the actual tillers of the soil Bhumiswamis, which object was ultimately achieved by enacting the M.P. Land Revenue Code, 1959. This area, namely, District Vidisha, formerly formed part of the princely State of Gwalior, where the zamindari and jagirdari system was in force. Under the Qanoon Mal Gwalior State, Samvat 1983, a sub-lease of occupancy land by a tenant of the zamindar was permissible and was valid under the law. That situation obtained till the Madhya Bharat, as Part B State, was formed under the Constitution with effect from 26-1-1950. After the formation of Madhya Bharat, which was formerly known, as the United State of Gwalior, Indore and Malwa, which was a federation of some princely States, the Madhya Bharat Land Revenue and Tenancy Act, 1950 (No. 66 of 1950) was passed. Sub-section (4) of section 1 of the Act provided that it would come into force one month after its publication in the Government Gazette. As the Act was published in the Madhya Bharat Government Gazette, dated 15-7-1950, it came into force with effect from 15-8-1950. Sub-section (2) of section 1 of the Act provided that the Act would extend to the whole of the United State of Gwalior, Indore and Malwa (Madhya Bharat), but provisions of Part II of the Act shall not apply to villages which had been settled on zamindari system. The provisions of Part II, in which are contained the relevant sections 74, 75 and 76, which we propose to consider, were not applicable to villages situated in zamindari areas. However, the Madhya Bharat State Legislature afterwards passed another Act known as Madhya Bharat Zamindari Abolition Act, Samvat 2008 (Act: No. 13 of 1951). Sub-section (3) of section I of the Act provided that it would come into force on and from such date as may be notified by the Government in that behalf