LexAHMAD HAFIZ KHAN versus MOHAMMAD HASAN KHAN
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
- 2 S.C.R. SUPREME COURT REPORTS 191 AHMAD HAFIZ KHAN ' v. MOHAMMAD HASAN KHAN (P. B. GAJENDRAGADKAR, M. HIDAYATULLAH and J.C. SHAH JJ). Proprietary Right, Abolition of-Operation of enactment- Validity-Oultivating right.• in sir and khudkasht land, if and when protected against sale in execution of the decree-Madh11a Pradesh Abolition of Proprietary Rights (Estates, Mahala, Alie- nated fonds) Act, 1950 (M. P. 1of1951), ss. 43, 49. One Mohd Yusuf, in execution of a money decree against the appellant, attached the appellant's share in a village along with sir and khudkasht lands appurtenant thereto. Before the sale took place, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 M. P. I of 1951) was made applicable to that area, and the proprietary rights in the village vested in the State. On October, 1951, the respondent purchased the sir khudkasht fields in auction sale and the appellant's objection therein having been dismissed, the sale was confirmed. On appeal, the Additional District Judge set aside the sale and the property was restored to the appellant. On further appeal, that order was reversed and the auction purchaser was again put in possession of the property. The appellant then applied to the executing Court objecting that there was no jurisdiction to sell the fields. The objection of the appellant was dismissed by the Civiljudge and his successive appeals to the District Judge and the High Court also failed. On appeal by special leave, the appellant's main contention was that the cultivating rights in the sir lands could not be the subject matter of sale in execution of the decree in view of s, 43 of the Abolition Act. Held, that by the operation of the' Abolition Act, the proprietor ceases to Le the proprietor of the estate or village including the sir lands appurtenant to the proprietorship. But the cultivating rights in the sir lands which were his home. farm are saved to him and under s. 38 of the Aboliti011 Act he becomes a malik makbuza of these fields. The Abolition Act having deprived the proprietors of their property interest gives protection to them in respect of their new rights in the home ... farm which has become the malik makbuza of the proprietor. The words of s. 43 are quite clear and the cultivating rights in the sir and Khw!kas/11 land wl;iich became under the 1963 March 4 1963 A""'ad Hofi: KNvi v. Mohi. JIGJan KAon i92 SUPREME COURT REPORTS [1964] vot. Act the home-farm of the proprietor are protected against sale except where those cultivating rights were the subject of a mart· gage or a charge created by the proprietor. That condition did not exist in the present case and the sale, therefore, must be declared to be without jurisdiction and ordered to be set aside. Goi·ind Prasad v. Pawan Kumar, J9j5 X L. ]. 678 distinguished. CIVIL APPELLATE jURISl>W'l'lON : Civil Appeal No. 293 of 1961. Appeal by special leave from the judgment and order dated December 24, I !!59 of the Madhya Pradesh High Court in Misc. Second Appeal No. 3 of l!J5!l. II'. S. Bar/ingay and A. G. RatTW.pru1chi, for the appellant. Ganpat Rai, for the respondent. 1!163. March 4. The .Judgment of the Court was delivered by Htu:1obdlah J. HUJAYATt;LLAH J.-One l\fohd. Yusaf obtain-:d a money decree for Rs. l 2i7 i7 / - against the appellant, Ahmad Hafiz Khan, on January 14, l!JiiO. In execution of the decree !vfohd. Yusaf attached two annas and 5-7/4.) pies share of the appellant in Mouza Tumhari, Tahsil Sakti, District Bilaspur, alongwith sir and khudl.-asht lands appurtenant thereto. The attachment was made on Septem· bcr 28, 1950. On March 31, 1951, before the sale took place, the yfadhya Pradesh Abolition of Proprie- tary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M. P. Act No. I of 1951) was made appli- cable to that area. In view of the provisions of the Abolition Act the proprietary rights in the village vested in the State. Thus far there is no dispute. On October J, l!l51, the fields under attach· ment were put to sale and were purchased by the - 2 S.C.R. · SUPREME COURT REPORTS 193 respondent, Mohd. Hasan Khan. The appellant filed an application setting forth objections under Order 21 Rule 90 of the Code of Civil Procedure but the application was dismissed and the sale was con- firmed on February 1, 1952. The judgment-debtor appealed against the or
Excerpt shown. Read the full judgment & AI analysis in Lexace.