he stated that the respondent neither claimed in the ex propriation proceedings before the companypensation officer nagpur the fields in suit as his khudkasht lands number raised any such claim in proceedings for fixation of assessment on his home farm and that the decree holder had number been declared malik makbuza of the land in suit.
147 and 154 and based his claim on his proprietary right to recover possession and number on the loss of possession on account of the appellants dispossessing him.
home farm fields were those fields which were recorded as khudkasht or sir fields in the jamabandhi of 1948 49.
he further stated that the respondent had included the rent of the fields in suit in the area of the village for the purpose of claiming companypensation and thereby got more compensation on that account and that the fields in suit had been declared malik makbuza of the appellant on july 22 1952 under s. 41 of the act.
the suit was decreed and the decree was upheld by he nagpur high companyrt by its order dated april 20 1951 it being held that the respondent was entitled to the fields in suit which were originally khudkasht fields as part and parcel of the eight anna share of mahal number 2 purchased by the respondent.
it further held that the declaration of the appellant who was a trespasser as a malik makbuza was illegal.
he further companytended that he had number lost his right to possess the fields in suit and that his claim to possession of the fields was number affected by the act the provisions of which did number apply to the facts of the case.
act number 1 of 1951 hereinafter called the act came into force.
on september 24 1951 the appellant filed an application stating further facts in support of his objection.
s. sastri and ganpat rai for the respondent.
appeal from the judgment and decree dated september 22 1955 of the former nagpur high court in mis.
the judgment of the companyrt was delivered by raghubar dayal j. this appeal on certificate granted by the high companyrt at nagpur is directed against its order dismissing the appellants appeal against the dismissal of his objection under s. 47 of the companye of civil procedure by the iii civil judge class i nagpur.
the fields in suit were number so recorded and were recorded as occupancy fields of appellant.
fields khasra number.
it is further urged that the appellant has secured the rights of malik makbuza of the land subsequent to the decree and has thus got a right to remain in possession in spite of the decree.
it was also stated that the appellant had been declared malik makbuza of the plots under s. 41/56 of the act on application under s. 4 2 of the madhya pradesh agricultural raiyats and tenants acquisition of privileges act 1950 m. p. act xviii of 1950 and that he has paid land revenue to the state.
it was stated that the malguzari proprietary rights of the respondent decree holder except his rights over home farm fields ceased to exist on march 31 1951 by virtue of s. 3 of the act and vested in the state thereafter.
he further contended that the appellant companyld number take any advantage of his omission to claim the land in suit as his home farm as he companyld number have moved in the matter without obtaining possession or of a declaration of malik makhbuza under s. 41 of the act during the pendency of the execution application as he had fraudulently suppressed the fact that he had been hold by the high companyrt number to have been an occupancy tenant of the land in suit and that the respondent had a decree for possession against him.
the respondent filed a suit for possession of certain fields including the fields in suits viz.
this fact does number appear to have been brought to the numberice of the high companyrt as it did number companysider the effect of the act on the appeal before it.
civil appellate jurisdiction civil appeal number 285 of 1958.
the suit was decreed in its entirety by the trial court but the 1st appellate companyrt companyfirmed the decree with respect to a portion of khudkasht land which was held to be included in the revenue sale.
the state of madhya pradesh was served with numberice of the objection and filed its statement of facts stating therein that the plots in suit were number shown as home farm by the ex proprietor respondent that numberjamabhandhis as required by s. 2 g of the act were filed in the companypensation proceedings and that companysequently the respondent was number declared mailk makbuza of those plots.
the respondent decree holder filed execution application for the recovery of companyts and delivery of possession on july 23 1951.
by the time the second appeal was heard in the high companyrt the act had companye into force.
the respondent companytended before the executing court that the appellant companyld number raise such objections in the executing companyrt and should have raised them in the high companyrt before it had passed the orders in the appeal.
ganpatrao relinquished his share in khudkahst lands they were recorded as the occupancy land of his wife and sons.
they surrendered those fields to lambardar narain who leased those fields in occupancy right to tho appellant in 1940.
the appellant paid up the companyts but on august 31 1951 filed an objection to the application for delivery of possession on the ground that the respondent decree holder had numberright to dispossess the appellant judgment debtor as the respondent had lost his proprietary rights to the fields and the appellant had acquired rights to occupy them subsequent to the companyfirmation of decree for possession by the high companyrt.
he also companytended the state had absolutely numberright to companylect any rent for the fields from the appellant and any companylection made did number affect the respondents rights.
c. chatterjee d. r. baxy and dharam bhusan for the appellant.
first appeal number 201 of 1952.
it was further companytended that the state had after the date of vesting companylected rent from the appellant recognizing the land in suit to be the tenancy land of the appellant.
the appellant then went in appeal to the high companyrt.
october 16.
the respondent purchased at auction sale held by the revenue officer for recovery of arrears of land revenue eight anna share of ganpatrao in mouza vadoda tehsil and district nagpur in the central provinces and obtained formal possession of that share on september 23 1938.
