This appeal arises from the order of the Nistar Officer-cum-Additional Deputy Commissioner, Durg, vesting khasra Nos. 143/1-3, 251/1 and 251/2 in the State.
2. Khasra No. 143/1-3 is claimed by appellant No. 2 Mansingh. It may be pointed out that this kharsra number has been wrongly referred to in the impugned order as khasra No. 145/1-2. The case of Mansingh appellant is that this land was received in proprietary rights by virtue of a registered gift-deed executed by his father, the ex-proprietor, in the year 1948 and could not be vested in the State by the impugned order.
3. Khasra No. 251/2 is claimed by Govind Prasad appellant No. 1, presumably u/s 40 of the Madhya Pradesh Abolition of Proprietary Rights Act.
4. The claim of Mansingh on khasra No. 143/1-3 (wrongly shown as 145/1-2) was rejected by the lower Court on the grounds that (i) this land remained fallow till the year 1953, (ii) that this was a 'Benami' transaction apparently "to save some grass land from vesting in the State", the transaction having been made "when the Madhya Pradesh Abolition of Proprietary Rights Act was already on the anvil", (iii) that although the conferral of occupancy rights in favour of Mansingh was itself not in order, the ex-proprietor subsequently managed to get his son declared as malik-makbuza.
5. I regret to observe that the lower Court dealt with the case in a very cursory and slip-shod manner, the khasra number of the land in question has been differently mentioned at different places, causing no little amount of confusion. In the order-sheet dated 15-1-55, it is referred to as khasra No. 142/10, in the report of the Assistant Superintendent Land Records on page 7 of the record it is mentioned as 142/1-3 while in the statement of Govind Prasad and in the order of the lower Court yet another number is given as 145/2. It was, therefore, with some difficulty that the correct number viz., 143/1-3 was traced. This correct number is indicated when we read Assistant Superintendent Land Records' report on page 7 wherein it is mentioned that this khasra number was declared malik-makbuza vide orders of the Deputy Commissioner in Revenue Case No. 16/1-2 dated 16-8-51. In the order of the Deputy Commissioner the khasra No. is 143/1-3.
6. A reference to Deputy Commissioner's revenue case cited above,, however, gives an entirely different picture so far as the nature of right of the appellant on khasra No. 143/1-3 is concerned. It appears from the record of the Deputy Commissioner's case that khasra No. 143/1-3, area 14'00 acres, was 'khudkasht' land of Govind Prasad, the ex-proprietor, and was transferred to Mansingh in complete proprietary rights. In other words, as early as 1948, appellant No. 2 was created a plot-proprietor and, consistently with the instructions of the Government contained in Revenue Book Circular I-II, the Deputy Commissioner declared Mansingh as malik-makbuza u/s 106 (c) of the Land Revenue Act. This was a perfectly normal proceeding and Mansingh duly acquired malik-makbuza rights in the year 1948. Such a gift-deed in favour of Mansingh cannot be vitiated because of his minority. In a gift to a minor there is no promise on behalf of the minor and there does not arise the question of contract which, in the case of a minor, is not binding on him.
7. In the face of above facts, it is clear that the observations of the lower Court to the effect that occupancy rights were created in favour of Man-singh on the eve of passing of the Madhya Pradesh Abolition of Proprietary Rights Act and that subsequently his father ex-proprietor managed to gel him declared malik-makbuza are entirely without foundation. The rights malik-makbuza cannot be lost if Mansingh allowed the land to remain fallow. The Madhya Pradesh Abolition of Proprietary Rights Act has nothing to ' with the plot-proprietors or with the malik-makbuzas. The Nistar either as Compensation Officer or as Additional Deputy Commissioner had no jurisdiction whatsoever to set aside the order passed by the Deputy Commissioner in 1951 us 106 (c) of the Land Revenue Act. Obviously the impugned order, being wholly illegal in this respect, deserves to be set aside.
8. With regard to the claim of Govind Prasad appellant No. 1, the learned counsel for him failed to point out any ground on which his right on khasra No. 251/2 could be substantiated u/s 40 of the Madhya Pradesh Abolition of Proprietary Rights Act. His claim, being entirely unsupportable, was rightly rejected by the lower Court.
9. In the result the appeal succeeds only partly. Khasra No. 143/1-3 shall continue to be recorded in malik-makbuza rights (now Bhumiswami) of appellant Mansingh. The appeal of Govind Parasad in respect of khasra No. 251/2 having no force is dismissed. Ordered accordingly.
Appeal dismissed.