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5. The cause of action for this exordium arose on 1.9.1961 when Tehsildar, Ujjain disputed the ownership of the plaintiff over the 'Suit lands' by treating them as an encroacher and issued notice u/s. 248 of M.P. Lands Revenue Code (MPLRC). Later on, the said notice was cancelled and in Case No.2/61/59 another notice dated 23.6.1961 was issued u/s. 181 and 172 of MPLRC read with Section 39 of The Madhya Bharat Zamindari Abolition Act, 1951(13 of 1951) (hereinafter, for short, Zamindari Abolition Act) . The enquiry was initiated before the Tehsildar and meanwhile, Late Abdul Hussain submitted two applications dated 4.8.1963 and 26.12.1963 respectively before the Collector for allotment of Category 1 to 3 lands on fresh Special lease. The Collector, Ujjain vide order dated 2.12.1070 recorded the findings that the Category 2 lands was purchased by Abdul Hussain hence he is entitled for mutation in his name . In respect of 'suit lands', the Collector held that after abolition of 'Zamindari' system, after Zamindari Abolition Act w.e.f 2.10.1951 the suit lands of both Category 1 & 3 had already been vested in the Government of M.P.

15. Shri Vivek Dalal, learned counsel appearing for the appellants/plaintiffs, contended that the father of the plaintiff became partner of the firm and thereafter, in the year 1963 he became exclusive owner of the firm and the lands comprising Category 1 to 3 when Abdul Hussain left the firm. By virtue of Section 38 of the Act of 1959, the plaintiffs became 'Pakka' tenant or Mourushi Kashtakar and thereafter, by virtue of Section 185 of the MPLRC 1951, they have acquired the title of the lands in question as "Bhoomi Swami". Even if the ancestors of the plaintiffs did not apply for grant of lease under the Zamindar Abolition Act , but they remained in possession of the suit lands in question till MPLRC 1959 came into force and became lessee of the Government . The learned trial Court has wrongly held that the suit lands had vested in the Government and the plaintiffs became encroacher on the same. When the defendants had found title of the plaintiffs over Category 2 lands, then they are also entitled for declaration of title of the suit lands because the source of all the three lands was same as all the lands were given to the ancestors by the then 'Zamindar'. The defendant has failed to produce any document in respect of grant of suit lands by way of lease. In support of his contention, he has placed reliance over the judgment of The Supreme Court of India passed in the case of Badrilal V/s. Muniaipal Corporation : 1973 JLJ 1018, in which, it has been held that the tenant continuing into possession after determination of the term will not become trespasser.

30. So far as applicability of Section 185 of the MPLRC is concerned, every person who at the time of coming into force of this Code holds the lands of a proprietor as defined in Madhya Bharat Zamindari Abolition Act, 1951 as a sub-tenant or as a tenant of a sub-tenant, would be called as "Occupancy Tenant".. Therefore, u/s. 185 of the MPLRC, only a sub-tenant or the tenant of sub-tenant of a property is entitled to get the status of "occupancy tenant".

31. Section 38 of Zamindari Abolition Act, 1951 confers power of 'Pakka' tenancy, right of the tenant and sub-tenant. As held above, these rights are available only to 'Krishak' if the lands is held for agricultural purposes as tenant or sub-tenant. Therefore, the lands held u/s. 39 of the Zamindari Abolition Act, 1951 for other than the agricultural purposes is excluded from Section 185 of the MPLRC. The person who had taken the lands on lease from the proprietor is neither a tenant nor a sub-tenant, therefore, the plaintiffs have no right to claim the status of "occupancy tenant" u/s. 185 of the MPLRC.

35. In the case of Gwalior Sugar Co. Ltd. (supra), the name of the company was recorded as "Ger Maurushi" in the revenue record, therefore, it was held that the company has acquired the status of 'Pakka' tenant and became "Bhumiswami" under the MPLRC. In Para 15 of the aforesaid judgment, the Apex court made it clear that the provisions of Zamindari Abolition Act, 1951 have been pressed into service for the first time in the present appeal, there is no pleading, no arguments made before the High Court on behalf of the State in respect of procedure for grant of lease as contemplated u/s. 39. But in the present case in hand, a specific application was moved in the year 1963 for allotment of lands by Abdul Hussain and that was considered by the defendants and rejected. There is absolutely, no admission on the part of defendants in respect of conferral of "Bhumiswami" right in favour of the plaintiffs. Therefore, the facts of Gwalior Sugar Mill (supra) are distinguishable from the facts of the present case. Here, the plaintiffs have gone through the entire procedure under the MPLRC and thereafter filed the suit and failed to establish "Bhumiswami" right over the lands in question.