Holding

Section 4(2) confers the right to continue possession based on the proprietor's name being recorded in the Khasra before the vesting date, and an unauthorised later entry without correction under Section 50 does not affect that right.

Summary

The appellants, proprietors of khud‑kasht land, filed a suit to recover possession of land recorded in the annual village papers (Khasra) as theirs for Samvat years 2006 and 2007, before the vesting date of 2 Oct 1951. The respondents later had the appellants' names struck off and their own entered in 2008 without following the correction procedure under Section 50 of the Madhya Bharat Land Revenue and Tenancy Act. Lower courts dismissed the suit, holding that the appellants were not in possession on the vesting date. The Supreme Court held that under Section 4(2) of the Madhya Bharat Zamindari Abolition Act, the decisive factor is the entry in the Khasra before the vesting date, not actual possession on that date, and that a later unauthorised alteration is ineffective. Consequently, the appellants were entitled to continue possession and recover it from the trespasser. The appeal was allowed and the original suit decreed.

Issues considered

What is the material requirement under Section 4(2) of the Madhya Bharat Zamindari Abolition Act for a proprietor to continue possession of khud‑kasht land?
Does a subsequent entry in the Khasra, not corrected under Section 50 of the Madhya Bharat Land Revenue and Tenancy Act, defeat the proprietor's right under Section 4(2)?

Legislation cited

Madhya Bharat Zamindari Abolition Act, 1951s. 4(2)

Subjects

Zamindari Abolitionkhud‑kashtpossessionKhasraland revenueSection 4(2)vesting datecorrection under Section 50property rights

Judgment

SHRI KASTURCHAND AND ANR. A
v.
SHRI HARBILASH AND ORS.

SEPTEMBER 14, 2000

[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] B

Madhya Bharat Zamindari Abolition Act, 1951 :

S.4(2)-Khud-kasht land-Proprietors of land filing suit for recovery
of possession stating that they were recorded in Samvat years 2006, 2007 C
and 2008 in possession before the date of vesting i.e. 2.10.1951 (Samvat year
2008)-In 2008 defendant got their names struck off and entered his name
with connivance of Patwari-Defendant claiming to be in possession as heir
of sub-tenant and on the date of vesting he was in possession-Plaintiffs
claim dismissed by all the courts below-Held, for purposes of s.4(2) what D
is relevant and material is the entries in khasra maintained by Revenue
department for the period earlier to date of vesting-Names of plaintiffs
having been recorded as Khud-kasht possessors in Samvat years 2006 and
2007, they were entitled to recover possession of the land-There is nothing
to show that subsequent correction was made u/s 50 of Land Revenue Act-
Finding recorded to the contrary by courts below being vitiated are not E
binding on Supreme Court-Plaintiffs' suit decreed-Madhya Bharat Land
Revenue and Tenancy Act, 1950-S.50.

Mehrabsing v. Nareshsing, [1970) 3 SCR 18, Meharban Singh v.
Bhagwant Singh, AIR (1980) SC 696, relied on.
F
· Deorao Jadhav v. Ramchandra & Ors., M.P.L.J. 414, approved.

Ramkhilawandhar & Ors. v. Gajodharprasad (dead) by 'Lrs. & Ors.,
[1985) 2 sec 58, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5392 of G
1990.

From the Judgment and Order dated 13.3.87 of the Madhya Pradesh
High Court in S.A. No. 385 of 1973.

Shiv Dayal Shrivastava, Sushi! K. Jain, A.P. Dhamija, A. Mishra, Ms. H
293
294 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A Anjali Doshi and Indra Makwana for the Appellants.
R.B. Mehrotra, Rajesh and Prakash Srivastava for the Respondents.

The following Order of the Court was delivered :

B This appeal is directed against the judgment and order of the High
Court of Madhya Pradesh, Jabalpur Bench at Gwalior in Second Appeal No ..
385of1973 dated March 13, 1987. The resolution of the controversy in this
appeal depends upon the true interpretation of Section 4(2) of Madhya Bharat
Zamindari Abolition Act, Samvat 2008 (Act 13 of 1951), referred to in this
judgment as the Abolition Act.
c
The appellants are proprietors of the land in dispute within the meaning
of Section 2(a) of the Abolition Act. The lands in dispute are Survey Nos.
2742, 3080 and 3105 of village Mehgaon, District Bhind (erstwhile Gwalior
State) (for short the Suit Land). The appellants filed the Suit out of which the
D present appeal arises, for recovery of possession of the suit land against the
original defendant (son of Gayadeen) on .the allegation that in Samvat 2008
Gayadeen dispossessed them and therefore they are entitled to recover
possession after ejectment of the respondents. They say that in Samvat year
2005 one Balku was cultivating the Suit land. After that he abandoned it and
the appellants cultivated the suit land (khud-kasht) during the Samvat years
E 2006, 2007 and 2008 and the same is so recorded in the annual village papers
(Khasra). They alleged that in the Khasra of Samvat year 2008 their name was
struck off and name of one Gayadeen was got written with the connivance
of the Patwari. They claimed to have become permanent tenant and from
October 10, 1959, Bhoomiswami.

F The claim of the appellants was contested by the respondents by
pleading that Balku had never abandoned the suit land. In Sam vat year 2006
he gave the possession of the .land to Gayadeen who remained in possession
till his death and thereafter the defendant was cultivating the land. The
respondents claimed to be the heirs of the sub-tenant of Balku, a gair maurusi
G Kashtkar. On the date of vesting of the Abolition Act he was in possession
and, therefore, he was entitled to all the rights under the Abolition Act. The .111
appellants' right, if any, was to continue in possession, if they were in
possession on that date but as they were out of possession, they cannot seek
recovery of-possession from them.

H On these pleading the parties went on trial. The learned trial Judge
KASTURCHAND v. HARBILASH 295.
dismissed the Suit of the appellants. The appeal filed before the learned A
District Judge was also dismissed. The appellants prosecuted the case in the
Second Appeal before the High Court which was also dismissed by the
impugned order. That is how the appellants are in appeal before us. During
the pendency of the appeal the second respondent died and the application
for substitution of his legal representatives is ordered.
B
Mr. Shiv Dayal the learned senior counsel for the appellants, submitted
that the all the Courts below proceeded on an erroneous construction of sub-
section (2) of Section 4 and dismissed the Suit. According to the learned
counsel, what is relevant for purposes of acquiring the right to continue to
be in possession under Section 4(2) is the entries made in the Khasra for the C
period earlier to the date of vesting but not the actual possession on the date
of vesting. Even so the learned counsel submits that for the Samvat year 2008
the appellants were in possession which was recorded in the Khasra which
was subsequently corre~ted and the name of Gayadeen, ·the predecessor in
interest of the respondents, was entered. As the appellants were in possession
of the suit land and the same is recorded in Khasra of the earlier years 2006, D
2007, they acquired the right under Section 4(2) to continue in possession an~
this aspect has been missed by the Courts below. Mr. Mehrotra, the learned
., senior counsel appearing for the respondents, submits that mere entry in the
record is not material. What is important is, submits the learned counsel, the
possession as on the date of vesting and as the Courts below found E
concurrently that on that date the appellants were not in possession, so they
are not entitled to any relief from this Court.

Now the point for determination is, what is the true interpretation of
Section 4(2) of the Abolition Act, which reads as follows:

"Section 4(2); "Not withstanding anything contained in sub-section F
(I), the proprietor shall continue to remain in possession of his khud-
kasht land, so recorded in the annual village papers before the date
of vesting."

Section 4(1) says, inter alia, that on publication of the notification
under Section 3 in respect of an area in the Gazette, notwithstanding anything G
contained in any contract; grant or document or in any other law for the time
being in force, the consequences mentioned in Clauses (a) to (f) thereof
would follow. This is subject to the other provisions of the Abolition Act.

A perusal of sub-section (2) makes it clear that it vests a right in the
proprietor to continue to remain in possession of his khud-kasht land, so H
296 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A recorded in the appeal, village papers before the date of vesting. This
conferment of the right to remain in possession of the Khud-kasht land is
notwithstanding the vesting of the land in sub-section (I) of Section 4. A
proprietor claiming the right to continue to remain in possession of the khud-
kasht land, has to show that he was in possession of the land as a khud-kasht
B cultivator and that fact is recorded in the Khasra- the annual village papers-
before the date of vesting. The date of vesting, as noted above is October
2, 1951 which falls in Samvat year 2008. Obviously for purposes of sub-
section (2) the entries in the Khasra of the Samvat year 2007 would be
relevant. The legislative policy behind. this Section appears to be that when
the rights are being conferred on cultivators of land on the principle of land
C for the tiller a proprietor should not be deprived of the same if he is also in
personal cultivation of the land and that he should be conferred the same
benefits as are available to other tillers of the soil under the Act. Because the
date of vesting falls in the middle of Sam vat year 2008, the legislature deemed
it fit to place reliance on the records of the annual village papers before the
date of vesting. Thus, it follows that for purpose of Section 4(2) of the
D Abolition Act what is relevant and material is the entries in the Khasra
maintained by the Revenue department for the period earlier to the date of
vesting.

There is no dispute in this case that for the Samvat years 2006 and 2007
E (Exhibits P2 and P3) the names of the appellants are recorded as khud-kasht
possessors. Though according to the respondents Gayadeen was in
possession of the suit land in those years yet admittedly his name was not
recorded in Khasra of Samvat years 2006 and 2007 which is a significant fact
to belie the case of the respondents. If that be so, the appellants are entitled
to continue in possession of the suit land under Section 4(2) of the Abolition
F Act. However, if they are dispossessed thereafter as they claim, their rights
extends to recover the possession from the persons in un.authorised occupation
thereof so that they can continue in possession of the suit land. Section 4(2),
in our view, does not put an embargo on the right of the person whose
possession of the Suit land is recorded in the Khasra of the years earlier to
G the date of vesting to recover possession of the land from a tresspasser, if
he was subsequently dispossessed from the land.

The learned counsel for the respondents Mr. Mehrotra relied on a
judgment of this Court in Ramkhi/lawandhar and Ors. v. Gajodharprasad
(dead) by Lrs. & Others, (1985] 2 SCC 58 to contend that as the plaintiffs
H were not in possession of the land in dispute on the date of vesting, they
KASTURCHAND v. HARBILASH 297
cannot succeed in a Suit for recovery of possession. That case arose under A
Madhya Pradesh Abolition of Proprietary Rights (Estates Mahals, Alienated
Lands) Act, 1950 (for short the M.P. Act). Section 4(2) of the M.P. Act reads
as follows:

Sec. 4(2): "Nothwithstanding anything contained in sub-section (1).
the proprietor shall continue to retain the possession of his homestead, B
home-farmland, and in the Central Provinces also of land brought
under cultivation by him after the agricultural year 1948-49 but before
the date of vesting."

1 It is true that the expression, the proprietor shall continue to retain the
• possession in Section 4(2) of the M.P. Act and the expression 'the proprietor C
shall continue to remain in 'possession' in Section 4(2) of the Abolition Act
convey the same meanings but the requirement of these provisions to continue
in such possession are different. The provisions of Section 4(2) of the two
Acts are not in haec verba; whereas under the M.P. Act bringing the land
under cultivation after the agriculture year 1948-49 but before the date of D
vesting is a prerequisite, under the Abolition Act, the criteria are:

(I) Khud-kasht of the land (2) entry of the khud-kasht of land in the
annual village papers before the date of vesting. Therefore under the Abolition
Act the fact of khud-kasht of the land, has to be ascertained from the entries
recorded in the annual village papers before the date of vesting. That this is E
the import of Section 4(2) of the Abolition Act, derives support from the
following observations of this Court in Mehrabsingh v. Nareshsing, (1970] 3
SCR 18 which also arose under the Abolition Act.

"The proprietor, however, notwithstanding other consequences of
the vesting in a State, is entitled .to continue to remain in possession F
of his khud-kasht land which is so recorded in the annual village
papers before the date of vesting."
(emphasis supplied)

The same view is reiterated in a later decision between the same parties
Meharban Singh v. Bhagwant Singh, AIR (1980) SC 696, thus: G
It would follow that if, in a given case, it was shown that a
proprietor had khud-kasht land which was so recorded in the annual
village papers before the date of vesting of the lands in the State,
he was entitled to continue to remain in possession of those lands ..... "
(emphasis supplied) H
298 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A A full bench of the Madhya Pradesh High Court in Deorao Jadhav v.
Ramchandra & Others, (1982) M.P.L.J. 414 at Page 425 relying on the afore-
mentioned observation of this Court in Meharban Singh v. Bhagwant Singh,
AIR (1980) SC 696 (supra) concluded as follows:

"The determining factor is khas possession under section 6,
B whereas under Section 4(2) the determining factor is record, i.e. khud-
kasht land so recorded in the annual village papers before the date
of vesting although the definition ofkhud-kasht in Section 2(c) of the
M.B. Act is similar to the definition ofkhas possession in Section 2(k)
of the Bihar Act."
c This being the position, the Courts below as well as the High Court
have misdirected themselves in not placing reliance on the entries in the
khasras of Samvat years 2006 and 2007, (Exhibits P2 and P3 ), recorded, earlier
to the date of vesting, Therefore, the findings recorded by them are vitiated
and not binding on this Court.
D
Mr. Mehrotra next contends that entries in the Khasra cannot be regarded
as sacrosanct as to be binding on the parties with regard to the actual
position. We cannot accept this broad contention.

The entries in annual village papers create presumption albeit rebuttable
E in favour of a person whose name is recorded. We find that a procedure is
prescribed to challenge the entries made in the annual village papers. The
procedure is contained in the Madhya Bharat Land Revenue and Tenancy
. Act of 1950 (for short 'Land Revenue Act'). Section 45 of that Land Revenue
Act specifies that Khasra, Jarnabandi or Khatoni and such other village
papers as the Government may from time to time prescribe shall be annual
F village papers. Section 46 enjoins preparation of annual village papers each
year for each village of a District in accordance with rules made under the A.ct.
Section 52 embodies the presumption that all entries made under that Chapter
in the annual village papers shall be presumed to be correct until the contrary
is proved and Section 50 prescribes the method or procedure for correction
G of wrong entries in the annual village papers by superior officers. Thus it is
clear that in the event of wrong entries in the annual village papers the same
is liable to be corrected under Sec.tion 50 and unless they are so corrected
the presumption under Section 52 will govern the position.

Insofar as Samvat year 2008 is concerned it is not in dispute that
H initially the names of the appellants were recorded. They were subsequently
KASTURCHAND v. HARBILASH 299
scored off by the Patwari and the name of Gayadeen was entered. There is A
nothing to show that this correction was made in accordance with the procedure
prescribed under Section 50 of the Land Revenue Act. Indeed it is not the
case of the r~spondent that correction was carried out under the said provisions.
Therefore, the subsequent entry will be of no consequence and it confers no
benefit either on Gayadeen or anybody claiming through him.
B
For all these reasons we hold that the judgment and decree of the High
Court under appeal cannot be sustained. Accordingly, the judgment and
decree of the High Court confirming the judgment of the 1st Appellate Court
and that of the Trial Court, are set aside. The appeal is accordingly allowed
and the Original Suit is decreed. Having regard to the circumstances of the C
case we direct the parties to bear their own costs.

RP. Appeal allowed.