JUDGMENT-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, 9/1 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 Nuruddins death, lmamoddin 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 plaintiffs 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 lnam 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. D-28). According to the defendant, Abdul Sattar was her lessee. The defendant contended that survey No. 29/1, being an lnam 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 tp.a1r 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 trail 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 plaintiffs 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. I 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 plaintiffs suit so far as survey No. 29/1 was concerned. It dismissed the plaintiffs 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 dis. allowing 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 50f the Classification of inams under Rule II of the Inam Rules. Rule XIV (2) of the In am Rules provides: "But service grants are not liable to be alienated by purchase or otherwise." Mr. Padhye contended that in view of rule XIV(2), Inam land, survey No. 29/1, was absolutely inalienable and, therefore, no title is conferred upon the plaintiff by reason of the sale deed effected by Nizamoddin on 13-9.1948. On the other hand Mr. Bobde contended that rule XIV (2) cannot be interpreted as amounting to an absolute prohibition to alienate the property. Padhye contended that in view of rule XIV(2), Inam land, survey No. 29/1, was absolutely inalienable and, therefore, no title is conferred upon the plaintiff by reason of the sale deed effected by Nizamoddin on 13-9.1948. On the other hand Mr. Bobde contended that rule XIV (2) cannot be interpreted as amounting to an absolute prohibition to alienate the property. He argued, all that rule II provides is that if the land is alienated, then the grant becomes liable to be resumed by the State under certain circumstances. He suggested that alienation for the life-time of the holder is not prohibited under this rule. Mr. Bobdes argument was mainly based on section 190 of the Berar Land Revenue Code which, in effect, lays down: "If alienated land has been granted on condition that the holder shall render certain services and the holder fails to render such services or if the holder transfers the land in such a manner that, in the opinion of the Deputy Commissioner, the purpose of the grant is likely to be defeated, the Deputy Commissioner may declare such land to be forfeited. “ 4. Mr. Bobde, therefore, contended that in order to incur the penalty of resumption or forfeiture, the transfer must be of such a character that as a result of the transfer the very object of the grant would be frustrated. According to Mr. Bobde, this implies that under certain circumstances the transfer may be tolerated which means that there is no absolute prohibition on transfer of Inam property. This argument finds support from the decision of Mr. Justice Vivian Bose, as he then was, reported in Bhagwandas v. Prayagdatta (I). Mr. Justice Vivian Bose has observed: "It is true, Rule 14 (2) states that service grants are not liable to be alienated; but the interpretation which those who framed this rule have placed upon it is clearly that such alienations may be allowed in suitable cases." The same view was taken in a subsequent decision by Justice Pollock in Digambar v. Kishandas (2). Justice Pollock has observed: "Under Berar Revenue Book Circular, Volume 2, S. 1, Serial No.2; it is contemplated that service inam fields may be alienated and all that the Government will ordinarily do in such cases is to resume the grant or in other words impose the full assessment.” In view of the established legal position I am unable to accept the contention urged by Mr. Padhye, namely, that the alienation was void from its inception and was, therefore, incapable of conferring any right upon the plaintiff. 5. Now Nizamoddin died on 13-4-1952. Till his death, the question of resumption of this land could not possibly have arisen. In between the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahala, Alienated Lands) Act, 1950 (Act No.1 of 1951), came to be passed. Under section 3 of the Act, all proprietary rights in an estate, mahal, alienated village or alienated land etc. would become vested in the State on a date to be specified by the State Government by a notification. The date fixed by the notification was 14-3-1951, on which the proprietary rights in alienated lands etc. came to be vested in the State Government. Under section 67 of the said Act, from the date of vesting, all lands in Berar classed as alienated lands shall be deemed to be unalienated lands and shall be held by persons in accordance with the provisions contained in section 68. It is therefore, clear that from 14-3-1951 the Inam land became an ordinary occupancy land and can be held by persons entitled to hold them according to the provisions of section 68. That takes us to section 68. Sub-section (1) of section 68 provides: "The home-farm land held by a superior holder or the land held by a plot-holder on the first day of October 1949 shall on and from the date of vesting be held by him as an occupant and he shall subject to any orders which may be passed under section 7 of the Central Provinces and Berar Revocation of Land Revenue Exemptions Act, 1948, be liable to the payment of land revenue equal to the fair assessment thereon." This provision makes it clear that the land held as home farm by the superior holder shall be treated as an occupancy land. 6. 6. The crucial questions, therefore to be decided in this case are whether the plaintiff could he considered as the superior holder and whether the land in question could be considered as a home-farm land. Section 2 (2) of the Berar Land Revenue Code defines the expressions "alienated land" and also "superior holder". "Alienated Land" means land in respect of which the Crown has assigned in whole or in part its right to receive land revenue equal in amount to the fair assessment, and the person to whom such assignment is made is called the "superior holder". Mr. Padhye contended that, by no stretch of imagination, the transferee from Nizamoddin could be regarded as a superior holder. According to Mr. Padhye, superior holder must be a person in whoso favour the Crown has assigned the right to receive land revenue either in whole or in part. It is difficult to accept this line of reasoning. The assignment of the land revenue, either in whole or in part, is a description of an alienated land and that description cannot be attached to the superior holder. The first thing to be found is whether the land in question is an alienated land. There is no dispute in the present case that the land is an alienated land. The next question thereafter to be considered is who is holding this land. If it is found that the transferee is holding the land, he must be treated as a superior holder within the meaning of section 2 (2) of the Berar Land Revenue Code. 7. Section 2 (g) (3) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (Act No.1 of 1951), has defined the expression "home-farm" to mean "in relation to Berar, all land included in holdings which is (i) …; (ii) held by a lessee from the superior holder." According to the plaintiff, the land was being cultivated by him through his tenants and the trial Court has accepted this position, at any rate, till the crucial date, namely, the date of vesting. That means that the land in question must be treated as a home-farm land. It is in this way that the tenure would fall within the exception laid down in section 68(1) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (Act No.1 of 1951). That means that the land in question must be treated as a home-farm land. It is in this way that the tenure would fall within the exception laid down in section 68(1) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (Act No.1 of 1951). In other words, the plaintiff would be entitled to hold the land as an un-alienated land with effect from the date of vesting, that is, 14-3-1951. 8. It would be useful to refer to the decision in Abdul v. President and Members, Board of Revenue (1). In that case, the Division Bench held: "Inam lands which continued to be alienated in spite of the provisions of section 3(5) of the C. P. and Berar Revocation of Land Revenue Exemptions Act, 1948, became un-alienated and vested in the State on the coming into force of the Madhya Pradesh Abolition of Proprietary Rights Act, the State having become the proprietor of all such lands. The provisions of section 190 of the Berar Land Revenue Code have ceased to apply and have become obsolete on the commencement of the Abolition of Proprietary Rights Act." Their Lordships have explained the double effect of the Madhya Pradesh Abolition of Proprietary Rights Act. On the one hand, an alienated holding is turned into an un-alienated holding and, on the other, the right of the Government to levy full assessment or effecting a settlement has also been taken away. It would thus be clear that after 14-3-1951 the plaintiff became the full owner of the land, survey No. 29/1. It is necessary to note that Nizamoddin was alive till this date. Assuming, therefore, that the alienation of 1948 was void and Nizamoddin was the superior holder at the relevant time at the date of vesting, still the plaintiff would be entitled to succeed. It would not have been open to Nizamoddin to contend that because the sale deed was invalid in 1948, the plaintiff would not get title even after 1951 when he became competent to transfer the property and confer full title upon the plaintiff. 9. Mr. Padhye contended that the sale deed did not specify the land, which was intended to be conveyed thereunder. Admittedly, at the time of the sale deed the land was split up into two parts, survey No. 29/1 and survey No. 29/2. 9. Mr. Padhye contended that the sale deed did not specify the land, which was intended to be conveyed thereunder. Admittedly, at the time of the sale deed the land was split up into two parts, survey No. 29/1 and survey No. 29/2. Even so, the sale deed referred to an area of 4 acres and 12 gunthas as being conveyed under the sale deed and stated that this was the undivided portion of the entire survey number. Mr. Padhye contended that there is no indication in the sale deed to show that what was conveyed to the plaintiff was survey No. 29/1 plus some area from survey No. 29/2. According to the plaintiff, what was sold to him was the entire survey No. 29/1 plus 22 gunthas out of survey No. 29/2. The plaintiff specifically put forward this case in the plaint. Mr. Padhye contended that there is no evidence to show that survey No. 29/1 plus 22 gunthas out of survey No. 29/2 was the property comprised in the sale deed. As stated above, although the sale deed is somewhat vague, the plaintiffs case in the plaint was quite clear and specific. It was for the defendants to deny in so many terms that what was meant to be sold to the plaintiff was not survey No. 29/1 but survey No. 29/2 or survey No. 29/2 and some portion from survey No. 29/1. Mr. Padhye relied upon certain statements contained in paragraph 3 of the written statement to suggest that such denial was made in the Written statement. The sentence on which he relies ran thus: "But it is denied that Kazi Nizamoddin sold 3 acres 30 gunthas Inam land out of survey No. 29/1 to the plaintiff. As stated already above the said Nizamoddin could not sell the Inam land as it was a service Inam and was not transferable. The sale of land in favour of the plaintiff, if any, is denied. Even if it is proved, it was an illegal and void transaction." In particular Mr. Padhye ,relied upon the first sentence cited above. In my view, the emphasis in the first sentence " not on the Inam part of the land but on the question as to whether the sale was effective. This is clear, from the sentence which fellow the first sentence. Padhye ,relied upon the first sentence cited above. In my view, the emphasis in the first sentence " not on the Inam part of the land but on the question as to whether the sale was effective. This is clear, from the sentence which fellow the first sentence. Reading the statement as a whole, I am satisfied that it was never contended on behalf of the defendants that survey No. 29/1 was not included in the sale deed. No issue was framed on that point, no, was the point urged before either the trial Court or the appellate Court. This question, therefore, cannot be allowed to be taken for the first time in second appeal. 10. The result is that the appeal fails and is dismissed with costs. Appeal dismissed.