HAJI SK. SUBHAN versus MADHORAO

Citation: [1962] SUPP. 1 S.C.R. 123 · Decided: 16-10-1961 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Judgment (excerpt)

( 1) s.c.R. 
SUPREME COURT REPORTS 
123 
We therefore allow the appeal of Major Singh 
set aside the order of conviction and sentence 
ma.de against him by the High Court and restore 
the order of acquittal made by the Trial Court. The 
appeal of Harbans Singh is dismissed. Major Singh 
should be set at liberty at once. 
Appeal o.f appellant 2 allowed. 
Appeal of appellant 1 dismissed. 
HAJJ Sk. SUBHAN 
v. 
MADHORAO 
(K. N. WANCHOo, K. C. DAS GuPTA, J.C. SHAH and 
RAGHUBAR DAY.AL, JJ.) 
Execution Proc.eedings-Objection& t-0 executability-De.cree 
for po•se•sion-Enactment prot•iiing Jo1· ve<ting in the Stare of 
all proprietary right<J-Enactm.nt coming into force durin<J pen· 
de,.cy of appeal in High Goud-Effect on decree of High Oourt-
Executability of decree-Madhya Pradesh Abolition of Proprietary 
Rights (Estates, Mahals, Alienawd Lands) Act, 1950 (M. P. I 
of 1951), ss. 219), 2(k), 3, 4, 41-Code of Civil Procedure, 
1908 (Act 5 of l!J08,), s. 47. 
The respondent purchased at a revenue auction sale 
eight anna share of G and obtained formal possession of that 
share on September 23, 1938. G relinquished his share in 
Khudkaaht lands and they were recorded as the occupancy 
lands of his wife and sons. 
In 1940 the appellant got a lease 
of those fields. The respondent instituted a suit for possession 
of the lands against the appellant basing his claim on his pro· 
prietary right to recover possession, and obtained a decree on 
July 12, 1944. The trial court's decree was confirmed on April 
20, 1951, by the High Court which held that the respondent 
was entitled to the lands as they were originally Khudka8ht 
fields as part and parcel of the eight anna share purchased by 
him. In the meantime on March 31, 1951, the Madhya Pra-
desh Abolition of Proprietary Rights (Estates, Mahals, Alie-
nated Lands) Act, 1950, had come into force but the High 
Court did not consHer the effect of the Act on thC appeal 
before it. Under s. 3 of the Act the proprietory rights in an 
estate specified in the notification passed from the proprietor 
and became vasted in the State free from all encumbrance~, 
·and by s. 4, after the issue of the notification under s. 3 
1961 
Harhan11 Singh 
v. 
State of Punj•b 
D., Gupta ]. 
JHJ 
JUI 
H•ji Sk. Stlb/tott 
v. 
Alotlliiroo 
\ 
124 StJPREME COL!RT REPOR'IS [l962j SUPP. 
• 
uut\vithatanding anytldug contained in auy contract, ~tant or 
docurnent or any other law for the tiznc Lein.~ in force, all rights, 
title and interest \\•hich a proprietor pos::csscd on account of 
hi. proprietorship of the land within the estate became Hsted 
in the State, except, inter alia, Jiis home-fann land and 
vccupied land. l'nder s. 2(g) of the Act home-farm lands were 
tllr,:-c whicli n·crc recorded as Sir and K/,udka11ht in the name 
of a proprietor in the annual papers f<,r the year 1948-49, lmt 
in the present case the lands in respect of'' liich a <leer cc -ha<l 
been passed in favour of the respondent, \\·~re not so recorded. 
On the other hand, tire lands were declared Malil· Mukbuza 
of the appdlaut under s. 41 of the Act. 111 the execution appli-
caiion for the rccovr-ry of possession filed Uy the 1c~por.dcnt 
the appellant raised objections 1hat tLe respondent was not 
en tided to execute the c!ccrec for possession as his proprietary 
rights except his 11omc·farm lands, ceased to exist on March 
:; I, 1951, by virtue of ss. J and 4 of the Act and became 
ve,ted in the State thereafter, and that the State had, after the 
date of vesting recognized the lands in suit to Le tenancy land 
of the appellant. The respondent's plea was that the appel-
lant was not entitled lo raise such objections in the executing 
court, that the "xccutiug court could not go behind the decree 
and, therefore, must execute it and deliver possc~ion tu tlie 
respondent. The executing courr dismisst-d the objections raised 
by the appellant, and the High Court took the view, relying 
upon Ralrmatullah Klra11 v. Ma!.abir•ingh, I. L. R. [1955] Nag. 
IW3, that the lands in suit must be tttated as home-farm as it 
was the duty of reveuue authorities to make correct entries iu 
the village papers. 
Held, that: (1) the principle that the executing court 
canuot question the decree and has to execute the drcrcc has 
no operation on the facts of the present case because the objec· 
tion of tire appellant was based not ·with respect to the inva-
lidity of the decree but on the effect of the provisions of the 
Madhya Pradesh Abolition of P

Excerpt shown. Read the full judgment & AI analysis in Lexace.