Shiv Dayal, C. J. -

l. Dhaniram, non-applicant No.1, instituted a suit for possession under S. 325 of the Quanoon Mal Gwalior State on the allegation that he was wrongfully dispossed by the defendants on July 18, 1950, of his Khud-Kasht land in Khasra Nos. 211/1, 212/2 and 199 of village Khoyala, Tahsil Ambah, District Morena. This suit was instituted on July 12, 1951, in the Court of Tahsildar, Ambah. The Tahsildar passed a decree in favour of the plaintiff and that decree was upheld in all the higher Courts, i.e. the sub-Divisional Officer, the Additional Commissioner and the Board of Revenue.

2. The defence was that Khasra Nos. 211/1 and 212/2 were held by the defendants in Batai from the plaintiff; while Khasra No. 199 was held by the defendant under a Patta from one Ramsanehi, Co-sharer of the plaintiff.

3. The revenue Courts rejected the defence story and held that the lands in dispute were the Khud-Kasht lands of Dhaniram, who was the Zamindar of the village. Thy were recorded as Khud-Kasht in the revenue records of Samvat year 2006, which is the material year.

4. The only contention before us was, as was before the Board of Revenue, that since by virtue of the Abolition of Zamindari Act all land vested in the State on October 2, 1951. Dhaniram as an ex-proprieter, could only retain his Khud-Kasht lands, as defined in Sec. 4(2) of that Act. Since Dhaniram was not recorded as in possession in the revenue records of Samvat year 2006, and as the land was not in his possession before the date of vesting. he was not entitled to a decree for possession. As already pointed out Dhaniram was in cultivating possession up to July 18, 1950, when he was dispossessed by the defendants. The lands were recorded as Dhaniram's Khud-Kasht in Samvat year, 2006. Dhaniram had also instituted a suit for possession on July 12, 1951. It was during the pendency of the suit that the Madhya Bharat Zamindari Abolition Act, 1951, came into force i.e. on October 2, 1951 (Samvat year 2008). Section 3 of that Act provides for vesting of proprietary rights in the State as follows :

"(1) Save as otherwise provided in this Act and subject to the provisions of section 8, on and from a date to be specified by a notification by the Government in this behalf (hereinafter referred to as the date of vesting) all proprietary rights in a village Muhal land, chak or block in Madhya Bharat vesting in proprietor of such village, muhal, land chak or block as the case may be, or in a person having interest in such proprietary rights through the proprietor shall pass from such proprietor or such other person to and vest in the State free of all encumbrances.

(2) After issue of a notification under sub-section (1) no right shall be acquired in or over the land to which the said notification relates except by succession or under a decree or order of a Court or under a grant or contract in writing made or entered into by or on behalf of the Government; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the Government in this behalf.

(3) The Government may by notification published in the Gazette vary the date specified under sub-section (1) at any time before such date."

Then the consequences of the vesting are indicated in section 4 of that Act, It reads thus :-

"(1) Save as otherwise provided in this Act when the notification under section 3 in respect of any area has been published in the gazette, then notwithstanding anything contained in any contract, gram of document or in any other law for the time being in force, the con-sequences as hereinafter set forth shall from the beginning of the date specified in such notification (hereinafter referred to as the date of veeting) ensue, namely :-

(a) all rights, title and interest of the proprietor in such area including land (cultivable, barren or bir), forests, trees, fisheries wells (other than private wells), tanks, ponds, water c