ZAHIRABI Vs. SHAIKH IMAM

JUDGEMENT

(1.) The suit giving rise to this appeal was filed by the respondent, who would hereafter be called the plaintiff, for possession of survey No. 29/1 situated at Lakhamapur, taluq Akot, district Akola. The material facts may be set out as follows; Survey No. 29 measures 7 acres and 31 gunthas. It appears that sometime in 1911 or 1912, the land was split into two parts, 29/1 and 29/2, survey No. 29/1 measuring 3 acres and 30 gunthas, assessed at Rs. 6-12-0, and survey No. 29/2 measuring 3 acres and 10 gunthas assessed at Rs. 6-4-0. Prior to 1911 or 1912, Government granted survey No. 29/1 as Inam to Nuruddin in consideration of his rendering services as Kazi to the village community. The remaining portion of the land, that is, survey No. 29/2 was treated as Khalsa land. Nuruddin had five sons Imamoddin, Murshuddin, Nizamoddin, Najmoddin and Shahabuddin. On Nuruddin's death, Imamoddin became the certificate-holder in respect of the Inam land. Imamoddin died on 23-6-1942. Murshuddin, Nizamoddin and Shahabuddin had predeceased Imamoddin. Nizamoddin, therefore, succeeded to the property in 1942 and as such became the certificate-holder. On 13-9-1948 Nizamoddin passed a sale deed in favour of Sheikh Imam, the plaintiff, in respect of 4 acres and 12 gunthas out of survey No. 29. At the time of the sale deed, the land was in the possession of Mahadeo Kalu as a tenant and the sale deed recited that Mahadeo Kalu was to surrender possession to the plaintiff at the termination of the period of the lease. It is the plaintiff's case that he obtained possession from Mahadeo Kalu in 1952. In 1953 he leased the land to one Abdul Sattar on the strength of a registered lease deed. The plaintiff avers that in about 1955 the defendant dispossessed him and hence the plaintiff has filed this suit for the recovery of the possession on the basis of title.

(2.) The defendant claimed that she had purchased the land on 23-5-1955 from Mohammad Yakub and Mohammad Yusuf, brothers; that these two brothers had obtained the sale deed on 31-1-1949 from Nizamoddin (Exh. D-28). According to the defendant, Abdul Sattar was her lessee. The defendant contended that survey No. 29/1, being an Inam land, could not be alienated by Nazamoddin and, therefore, the plaintiff could not obtain any title on the basis of the sale deed of 1948. She further contended that the sale deed in favour of the plaintiff was a nominal and colourable transaction. No consideration passed under the sale deed and, therefore, the plaintiff could not claim title on that basis. The trial Court held that the sale deed in favour of the plaintiff was void and could not create any title in the suit land inasmuch the land was absolutely inalienable. Consequently, it dismissed the plaintiff's suit. The plaintiff went up in appeal to the District Court. The District Judge came to the conclusion that the sale deed in favour of the plaintiff was not void, that as a result of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (Act No. 1 of 1951) the land became an unalienated holding and since the land was cultivated by home-farm the plaintiff acquired title to the same by virtue of the provisions of section 68 of the said Act. Consequently, the appellate Court decreed the plaintiff's suit so far as survey No. 29/1 was concerned. It dismissed the plaintiff's claim with regard to a piece of 22 gunthas in survey No. 29/2. Against that decision, the defendant has now come up in second appeal. The plaintiff has neither preferred any appeal nor has he filed any cross-objections on that part of the decree disallowing his claim in respect of 22 gunthas of land.

(3.) It is common ground that survey No. 29/1 was an Inam for the services rendered to the village community and, therefore, fell within class 5 of the Classification of inams under Rule II of the Inam Rules. Rule XIV(2) of the Inam Rules provides: