AYYUB KHAN JABARKHAN Vs. PUNDILAL BAXILAL
LAWS(MPH)-1967-7-7
HIGH COURT OF MADHYA PRADESH
Decided on July 31,1967

AYYUB KHAN JABARKHAN Appellant
VERSUS
PUNDILAL BAXILAL Respondents

JUDGEMENT

- (1.) THIS matter is before us in the following circumstances: The non-petitioner filed an application under Section 38 of the Madhya Bharat Zamindari Abolition Act before the Additional Naib-Tehsildar of Shujalpur for conferring of pucca-tenancy rights on him. The petitioner resisted the claim on various grounds, namely, that the the non-petitioner was not a sub-tenant, that he was in possession of the land only as a trespasser and, therefore, was not entitled to become a pucca-tenant; that the applicant was a weak and infirm person incapable of cultivating the land personally within the meaning of the Section 74 of the Madhya Bharat Land Revenue and Tenancy Act, 1950, and, therefore, even if the non-petitioner were held to be a sub-tenant of the land he could only continue in his capacity of a sub-tenant and could not be recognised or declared as a pucca-tenant and that the amount deposited by him was insufficient. The Additional Naib-Tehsildar recorded evidence adduced by the parties in respect of the aforesaid objections and by his order dated 28-2-1958 conferred the rights of pucca-tenant on the non-petitioner over the land in question excepting two Khasra numbers.
(2.) THE applicant succeeded in his appeal before the Sub-Divisional Officer. The non-petitioner's further appeal before the Commissioner, Bhopal Division, was allowed and the decision of the Additional Naib-Tehsildar was restored. The revision filed by the applicant before the Board of Revenue remained unsuccessful.
(3.) THE applicant then filed a petition under Article 227 of the Constitution of India in this Court. When the matter was argued before a Division Bench of this Court it considered it fit to refer the question to a larger Bench. It appeared to the referring Bench that there was nothing in Section 33 (2) of the Madhya Bharat Zamindari Abolition Act (hereinafter called "the Act") which gave powers to the Tehsildar to determine the disputed status of a person as a sub-tenant or as a tenant of a subtenant and that reference to the Tehsildar in that sub-section was merely to nominate the authority with whom the requisite deposit was to be made. The question raised before the referring Bench was whether the Additional Naib-Tehsildar had no jurisdiction to determine the status of the tenant as a pucca-tenant under Section 38 of the Act. It was in that context that this reference has been made. The referring Bench formulated a question by reference to the contention raised before in it these words: "that the Additional Naib-Tehsildar had no jurisdiction to determine the status of the opponent as a Pucca Krishak under Section 38 of the Madhya Bharat Zamindari Abolition Act. ";


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