HIMATRAO versus JAIKISHANDAS AND ORS.

Citation: [1966] 3 S.C.R. 815 · Decided: 04-03-1966 · Supreme Court of India · Bench: A.K. SARKAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
HIMATRAO 
v. 
JAIKISHANDAS AND ORS. 
March 4, 1966 
B 
[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.] 
c 
D 
E 
F 
G 
The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahai.f, 
Alienated Lands) Act, 1950 (! of 1951), ss. 3· and 4-Vesting of pro-
prietary interest in land in State-Right to claim partition of 'home-farm' 
land whether affected by such vesting. 
The appellant's suit for partition of his share of 'homt>-farm' land in 
the Berar area of Madhya Pradesh was partly decreed by the trial court. 
Both sides filed appeals and the first 
appellate court also 
decid*1 in 
favour of the appellant. The High Court however dismissed the suit as 
infructuous on the ground that by virtue of the Madhya Pradesh Abolition 
of Proprietary Rights (Estate, Mahals Alienated Lands) Act, 1950 the 
land stood vo;ted in the State. The appellant came to this Court. 
HELD : (i) It is no doubt true that so far as the proprietary intercot 
in. the village is concerned the whole of it has now been acquired by 
the State and vests in it. 
The acquisition of such interest by the State 
would not, however, put an end to the various rights of ex-proprietors 
in their capacity aa owners of property. 
Thus every co~harer could 
despite the acquisition of his proprietary right obtain a declaration from 
a civil court as to the fact and extent of bis share in the pre-existing 
proprietary rights of that v:Jlage so that he could lay claim to a propor-
tionate extent of 'home-farm' land in the village. [819 A-CJ 
(ii) A distinction has to be drawn between a suit brought by a 
proprietor in his character as proprietor for possession of property which 
the Jaw then in force authorised him to claim by a suit for the benefit 
of the entire body of proprietors and a suit based upon trespass upon 
his individual rights obtained by him irrespective of his character as 
such proprietor. 
If this distinction had been borne in mind by the 
High Court it would not have dismissed the present suit as wholly infruc-
tuous for a number of relief' had been sought by the plaintiff-appellant 
with respect to property wh'ch not vested in the State. [819 GJ 
(iii) 
Tho village in question being still undivided every bit of land 
which was in the cultivating posse3sion of any of the co-shares in the 
village would be deemed to be in the poosession of the entire body of 
CCH1harers. 
Tho same would apply to land in the possesoion of lessees or 
ordinary tenants. The right to enforce claims to a 
partition of this 
land was in no way affected by any of the provisions of the Act. [319 Dl 
Chhot~ Khan v. Mohammad Obedullakhan, I.LR. [1953) Nag. 702 
(F.B.), distinguished. 
Rahmatullah Khan v. Mahabirsingh, I.L.R. [1955] Nag. 983 refer-
H 
red to. 
CIVIL APPELLATE JuR1smcnoN : Civil Appeals Nos. 1034 and 
1035 of 1963. 
815 
816 
SUPREME COURT 
REPORTS 
(1966] 3 S.C.R. 
Appeals from the judgment and decrees dated July 17, 1956 
of the former Nagpur High Court in Appeals Nos. 574 and 575 
and 608 of 1946 respectively. 
S. T. Desai, G. l. Sanghi and A. C. Ratnaparkhi, for the ap-
pellants (in C. A. No. 1034 of 1963). 
W. S. Barlingay, G. l. Sanghi and A. G. Ratnaparkhi, for the 
appellant (in C. A. No. 1035 of 1963). 
S. G. Patwardhan and M. R. K. Pillai, for respondent No. 4. 
The Judgment of the Court was delivered by 
Mudbolkar, J, Both these appeals arise out of a suit instituted 
by Himatrao, appellant in C. A. 1034 of 1963 for declaration that 
he is owner of 1 anna 5 pies share in the village Mozara, District 
Yeotmal and for partition and separate possession of the property 
that would fall to the a~oresaid share. Certain other reliefs were 
also prayed for by him; but it is not necessary to refer to them 
for the purpose of deciding these appeals. To this suit he joined 
other co-sharers in the village as well as alienees from some of 
the co-sharers. 
This suit was instituted by him on December 7, 
I 939 and was partially decreed on July 31, I 944 by the court of 
Sub-Judge, second class, Darwha. He preferred an appeal from 
the decree of the trial court. So also Pusaram one of the defendants 
to the partition suit preferred an appeal from the decree of the 
trial court and some other defendants preferred a cross-objection 
against that decree. The appeal of Himatrao was allowed while 
that of Pusaram was dismissed. The cross-objections of Jugal-
kishore and Jaykumar succeeded while that of Laxman Vinayak 
who is the appellant's brother in
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