( 1 ) THIS judgment shall also dispose of L. P. A. No. 13 / 80 preferred by the present respondents. ( 2 ) THE two appeals have arisen out of the judgment dated 5-11-1980 of R. G. Mishra, J. , in Misc. Petition No. 14/72 (Motilal v. Anandi Lal, under Arts. 226 and 227 of the Constitution. ( 3 ) THE learned single Judge remanded a proceeding under S. 189 (1) of the M. P. Land Revenue Code, 1959 (for short "the Code") to the Revenue Commissioner Gwalior Division, Gwalior to decide afresh in advertence to the findings and directions given by the learned single Judge the matter of petitioner Motilal's application for the resumption of 12 bighas 8 biswas out of S. No. 437, with present respondents 1 and 2 (Anandilal and Pannalal) and their brother Rampratap (since deceased and now represented by his widow respondent No. 3 Kadam Bai and their minor son respondent No. 4 Narrotum) and the remaining 12 bighas 8 biswas out of S. No. 437 S. No. 464 (10 bighas 5 biswas), with present respondent No. 5 Prahlad. ( 4 ) INCIDENTALLY, the revenue proceeding in question relating to the resumption of S. No. 442 (16 bighas 13 biswas) with a Ramchand ended finally in favour of Motilal before the Board of Revenue with the rejection of Ramchand's revision (No. 173-III /70) preferred against the second appellate order dated 22-10-70 of the Commissioner, Gwalior, in appeal No. 23 / 66 / 67. This matter was not affected by the judgment of the learned single Judge as the matter had already attained finality between Motilal and Ramchand. ( 5 ) ADMITTEDLY, Motilal elder brother Kanhaiya Lal, an ex-muafidar, leased out S. Nos. 437 and 464 to Harsingh and S. No. 442 to Ramchand, more than 5 years next before 2-10-1959 when the M. P. Land Revenue Code, 1959 came into force, Narsingh sub-let survey No. 464 (10 bighas 5 biswas) and 12 bigas 8 biswas out of S. No. 437 to the present respondent No. 5 Prahlad but continued to be in possession of the remaining 12 bighas 8 biswas of S. No. 437. ( 6 ) KANHAIYALAL and Narsingh died well before 2-10-1959. Motilal was Kanhaiyalal's sole heir. Narsingh's heirs were his sons Anandilal, Pannalal and Ram Pratap. ( 6 ) KANHAIYALAL and Narsingh died well before 2-10-1959. Motilal was Kanhaiyalal's sole heir. Narsingh's heirs were his sons Anandilal, Pannalal and Ram Pratap. ( 7 ) NARSINGH's son were admittedly in possession of 12 bighas 8 biswas out of S. No. 437. The Revenue Court held that Prahlad was in possession of the remaining half area of S. No. 437 and S. No. 464 (10 bighas 5 biswas ). ( 8 ) WITH this fact-situation petitioner Motilal filed his application on 1-3-1960 under S. 189 (1) of the Code for the resumption of the aforementioned lands and S. No. 442 (with Ramchand ). ( 9 ) THE learned Sub-Divisional Officer, Sheopurkalan allowed the application (registered as Case No. 1/ 63 / 64/189) in toto on 19-3-1966. The learned Sub-Divisional Officer held that at the date of the application Motilal had only 1 bigha 12 biswas of land under his personal cultivation. ( 10 ) THE learned Sub-Divisional Officer further held that Narsingh's some Anandi Lal, Pannalal and Ram Pratap were in joint possession of 66 bighas and 3 biswas of land which, according to the learned Sub-Divisional Officer, amounted to 25. 69 acres of lands. ( 11 ) THE learned Sub-Divisional Officer, Sheopurkalan found respondent No. 5 Prahlad to be in possession of 48 bighas 18 biswas of land apart from the lands sub-let to him by Sarsingh. ( 12 ) SIMILARLY, Ramchand was found to be in possession of 7 bighas and 8 biswas of and - 38. 172 acres. ( 13 ) NOW sub-sections (1) and (2) of S. 189 of the Code and the explanation to the section are as follows:"189 Resumption by Bhumiswami in certain cases (1) A Bhumiswami whose land is held by an occupancy" tenant (belonging to any of the categories specified in sub-sec. (1) of S. 185 except 14 items (a) and (b) of Cl. (1) thereof) may, if the area of land under his personal cultivation is below twenty-five acres of unirrigated land, within one year of the coming into force of this Code make an application to the Sub-Divisional Officer for resumption of land held by his occupancy tenant for his personal cultivation. (1) thereof) may, if the area of land under his personal cultivation is below twenty-five acres of unirrigated land, within one year of the coming into force of this Code make an application to the Sub-Divisional Officer for resumption of land held by his occupancy tenant for his personal cultivation. (2) On receipt of the application, the Sub-Divisional Officer shall, after hearing the parties and making such further enquiry as may be necessary decide the application, provided that the right of resumption shall be limited to the area which together with the area already under the personal cultivation of the Bhumiswami shall not exceed twenty-five acres of unirrigated land - provided further that he resumption shall be allowed so as to reduce the total area of land in possession of the occupancy tenant below. (i) twenty-five years of unirrigated land if the occupancy tenant has been holding such land from a Bhumiswami not belonging to any of the clause mentioned in sub-sec. (2) of S. 168, for more than five years prior to the coming into force of this Code. (ii) ten acres in any other case. xx xx xx xx xx xx xx xx xx explanation - for the purpose of this section (l) the land under the personal cultivation of Bhumiswami shall include (a) any land transferred by him by sale or otherwise on or after 1/01/1959, and (b) any land allowed by him to lie follow. (2) one acre of irrigated land shall be deemed to be equal to two acres of unirrigated land and vice verse". ( 14 ) THE losers filed first appeal (No. 47/65-66) before the Collector, Morena, who affirmed the Sub-Divisional Officer's finding that Motilal had only 1 bigha and 12 biswas of land under his personal cultivation. He held that the resumption, of S. No. 442 with Ramchand was right because Ramchand had 76 bighas and 18 biswas of lands, other than S. No. 442. ( 15 ) THE learned Collector, however, held that Narsingh's sons Anandi Lal, Pannalal and Rampratap had 17 bighas and 4 biswas in Khata No. 16 and 14 bighas and 10 biswas in Khata No. 17, totalling 31 bighas and 10 biswas of lands, which was less than 26 acres. ( 15 ) THE learned Collector, however, held that Narsingh's sons Anandi Lal, Pannalal and Rampratap had 17 bighas and 4 biswas in Khata No. 16 and 14 bighas and 10 biswas in Khata No. 17, totalling 31 bighas and 10 biswas of lands, which was less than 26 acres. Thus, the learned Collector, in effect, set aside the learned Sub-Divisional Officer's findings that the three brothers had 66 bighas and 3 biswas of land in their joint possession. Motilal's prayer for resumption of 12 bighas and 8 biswas out of S. No. 437 was, therefore, held to be not permissible. ( 16 ) THE learned Collector further held that respondent No. 6 Prahlad and a Mohanlal were in joint possession of 48 bighas and 18 biswas, other than S. No. 464 and 12 biswas 8 biswas out of S. No. 437. Since Prahlad's half share in 48 bighas and 18 biswas of lands came to 24 bighas and 9 biswas, that is, less than 25 acres, Motilal's application for resumption was not entitled to succeed against Prahlad. ( 17 ) APPLICANT Motilal filed second appeal before the Commissioner, Gwalior, who by his order dated 22-10-79 (in appeal No. 23 / 6667) allowed the appeal and restored the order of Sub-Divisional Officer, Sheopur Kalan. ( 18 ) RESPONDENT No. 5 Prahlad and the sons of Narsingh preferred a revision (No. 239-III / 70), impleading Ramchand as a proforma non-applicant. ( 19 ) RAMCHAND filed a separate revision (No. 173-III / 70 ). ( 20 ) THE Board of Revenue M. P. Gwalior heard the revisions and dismissed Ramchand's revision on the merits. ( 21 ) THE Board of Revenue disposed of the revision of Prahlad and the sons of Narsingh on 29-4-71 (No. 239-III/70 ). The Board of Revenue held in effect that all lands. Whether in the Bhumiswami or occupancy rights held by the applicant-Bhumiswami, and also by his occupancy tenant as the date of the application under S. 189 were to be taken into consideration for the purpose, respectively, of the first proviso and the second proviso to sub-sec. (2) of S. 189. The Board of Revenue held in effect that all lands. Whether in the Bhumiswami or occupancy rights held by the applicant-Bhumiswami, and also by his occupancy tenant as the date of the application under S. 189 were to be taken into consideration for the purpose, respectively, of the first proviso and the second proviso to sub-sec. (2) of S. 189. In the result, the Board or Revenue reversed the order of resumption of 12 bighas and 8 biswas out of S. No. 437 with Narsingh's but affirmed the resumption granted to Motilal as against Prahlad in respect of S. No. 464 (10,bighas 8 biswas) 8 biswas out of S. No. 437. Similarly, the resumption allowed to Motilal against Ramchand in respect of S. No. 442 was also affirmed. ( 22 ) AGAINST this order dated 29-4-1971 Prahlad filed a review (No. 6 / 3 / 71) before the Board of Revenue. It was urged that he was entitled only to a half share of 48 bighas of lands, comprised in joint khata in his name and his brother Mohanlal's name. His entitlement in this land, as per his share therein was limited to 24 bighas which added to 12 bighas 8 biswas out of S. No. 437 and 10 bighas 8 biswas of S. No. 464, resulted in his having only 46 bighas 13 biswas of lands (for the purposes of second proviso to sub-sec. (2) of S. 189), and as such, no resumption should have been allowed against him. This stand was countered by Motilal by urging that since Prahlad and his brother Mohanlal jointly held 48 bighas of lands, Prahlad, as a co-share, between to be in possession of the entire 48 bighas of lands. ( 23 ) THE learned Member of the Board of Revenue up held the contention of Prahlad. He held that the second proviso to sub-sec. (2) of S. 189 in so far as it speaks of "the fatal area of land in possession of the occupancy tenant" was not meant to include the land held by the non-applicant occupancy tenant in Bhumiswami rights in a joint khata recorded in his name and his co-sharer's name. In the result, Prahlad's review petition was allowed on 148-1971. (2) of S. 189 in so far as it speaks of "the fatal area of land in possession of the occupancy tenant" was not meant to include the land held by the non-applicant occupancy tenant in Bhumiswami rights in a joint khata recorded in his name and his co-sharer's name. In the result, Prahlad's review petition was allowed on 148-1971. ( 24 ) MOTILAL filed M. P. No. 14/72 challenging the Collector's order and the order of the Board of Revenue and for restoration of the order of the Sub-Divisional Officer, Gwalior. Respondent No. 3 Ram Pratap and respondent No. 4 Ramchand died during the pendency of the miscellaneous petition. Their LRs were brought on record, of Ramchand's L. Rs. , his widow Kasturi and eldest son Chaturbhuj also died. Chaturbhuj's widow, their two sons and two daughters were impleaded. Ramchand and his L. Rs. did not file any reply. The contest case from Prahlad and Narsingh's sons. ( 25 ) THE contentions raised by petitioner Motilal are as follows. The Commissioner erred in rejecting his application for permission to file additional documentary, evidence in second appeal. It was further contened by Motilal that the three sons of Narsingh should have been treated as if they were a single tenant for working out the rights and liabilities of the parties with reference to the second proviso to sub-sec. (2) of S. 189. Thirdly, it was submitted by Motilal that the expression "land in possession" in second proviso to sub-sec. (2) of S. 189 meant not only the land in actual possession of the occupancy tenant but also such other land as was in his constructive possession so that lands held by him jointly with a co-sharer be treated in its entirety as land in possession at the occupancy tenant. It was further contended that the expression "land in possession" was wide enough to cover lands held by an occupancy tenant not only his occupancy tenancy rights but also in Bhumiswami tenure. ( 26 ) THE learned single Judge summed up his conclusions as follows: (I) For working out the first proviso to S. 189 (2) only land. . . . . ( 26 ) THE learned single Judge summed up his conclusions as follows: (I) For working out the first proviso to S. 189 (2) only land. . . . . which is held by Bhumiswami in Bhumiswami rights can be taken into consideration, land held by him as occupancy tenant from some other Bhumiswami cannot be taken into consideration (II) In case of lease by one or more Bhumiswami is in favour of one or more occupancy tenants, the former have to be considered as single lands holder and the letter have to be treated as a single tenancy. This principle will also govern cases where after death of the Bhumiswami and / or the occupancy tenants, there are more than one heir either of the Bhumiswami or the occupancy tenant as the case may be. (III) For working out the second proviso to S. 189 (2) land hold by an occupancy tenant as an occupancy tenant can only be taken into consideration and the land held by him in Bhumiswami rights cannot be taken into consideration. (IV) In case of land held jointly by the occupancy tenant, it is only his share therein which can be taken into consideration for finding out whether minimum area is left with him on resumption or not. (V) The relevant time for working out the rights and liability of the parties will be 1-3l960, the date of submission of the application under S. 189 of the Code. " ( 27 ) THE learned single Judge ordered a remand of the case to the Commissioner on the following grounds. "19. Adjudged in the light of the aforesaid conclusions the approach of the Tribunal in excluding the land held by the contesting respondent as Bhumiswami's appear to be rights. But the conclusion reached by the Tribunal the three sons of Narsingh have to not treated as three occupancy tenants does not appear to be a conclusion warranted by correct construction of S. 189. But the conclusion reached by the Tribunal the three sons of Narsingh have to not treated as three occupancy tenants does not appear to be a conclusion warranted by correct construction of S. 189. The learned Commissioner appears to be right in holding that the three sons of Narsingh have to be treated as a single tenant for the present purposes, since the matter has not been dealt either by the Tribunal as well as the Commissioner in the light of the conclusions stated herein above, learned counsel for the parties made an agreed submission for remand of the case to the Court of Commissioner for deciding the case de now which appears to be reasonable. ( 28 ) THE order requires the Commissioner to decide the rights and liabilities of the parties afresh in advertence to the law laid down and the observations made in the order. ( 29 ) IN L. P. A. 13/80 Anandi Lal and his brothers have challenged the correctness of the finding of the learned single Judge which treats them as one unit for the purpose of working out their rights and liabilities in terms of the provisions of Cl. (1) of the second proviso to sub-sec. (1) of S. 189. ( 30 ) IN L. P. A. No. 12/80 Motilal and his legal representatives have prayed for setting aside the learned single Judge's finding that the lands held by the non-applicants occupancy tenants under the Bhumiswami tenure shall be excluded. The prayer is in effect that it be held that all the lands of non-applicant-occupancy tenants, whether in occupancy rights or in Bhumiswami rights, shall be taken into consideration for the purposes of a resumption proceeding under S. 189. ( 31 ) THE first point for determination is whether the learned single Judge was right in holding that Narsingh's three sons were to be treated as if they were a single occupancy tenant in respect and for the purposes, of the resumption of 12 bighas and 8 biswas of land out of S. No. 437 in their possession. ( 32 ) ADMITTEDLY Narsingh had held the lands from Kanhaiyalal under one lease on set of conditions on Narsingh's death the leasehold in the land, with the appurtenant set of conditions of the lease, devolved on his heirs, here his sons. ( 32 ) ADMITTEDLY Narsingh had held the lands from Kanhaiyalal under one lease on set of conditions on Narsingh's death the leasehold in the land, with the appurtenant set of conditions of the lease, devolved on his heirs, here his sons. The sons have not pleaded or proved that they and the lessor or his heir Motilal made a fresh contract converting the single tenancy into three separate tenancies. Hence the irrefutable conclusion is that Narsingh's sons continued to hold the leasehold in the lands under the original single tenancy and the original set of conditions see H. C. Pandey v. G. C. Paul 1989 MPLJ (SC) we, therefore, affirm the learned single Judge's finding on this count. ( 33 ) THE next point for determination is whether for the purposes of the first proviso below sub-sec. (2) of S. 189, the consideration of the area under the personal cultivation of the Bhumiswami has to be limited only to the lands held by him in the Bhumiswami tenure, and whether for the purposes of the second proviso below sub-sec. (2) of S. 189. That is, for determining the area of the lands in the possession of the son applicant-occupancy tenant the land in occupancy-rights only is to be considered and the area of land in his possession in the Bhumiswami tenure has to be excluded from such consideration. ( 34 ) IN fact, the Revenue Courts having held that applicant Motilal had only I bighas 12 biswas of land under his personal cultivation as the date of his application under S. 189, and it being nobody's case that he held the land as an occupancy-tenant of any other Bhumiswami, the question of law whether a consideration of the subject of the area of land under the personal cultivation of an applicant Bhumiswami is to be limited to a holding under the Bhumiswami tenure did not really fall for consideration in the writ proceeding. However, we shall consider the correctness or otherwise of the aforementioned proposition of law resulting from the learned single Judge's interpretation of the provisions of law in the first proviso below sub-sec. (2) of S. 189. ( 35 ) IN Kedarnath J. M. Co. Ltd. v. C. T. Officer, AIR 1966 SC 12 , the Court cited 'craies on Statute Law'. 6th Edition, p. 217 to lay down the effect of a proviso to an enactment. (2) of S. 189. ( 35 ) IN Kedarnath J. M. Co. Ltd. v. C. T. Officer, AIR 1966 SC 12 , the Court cited 'craies on Statute Law'. 6th Edition, p. 217 to lay down the effect of a proviso to an enactment. "it is well settled that "the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted thereunder, which but for the proviso would be within it. " ( 36 ) THERE is an Explanation appended to S. 189. Items (a) and (b) of Cl. (1) of the Explanation having a bearing on the meaning of the expression "the land under the personal cultivation" used in sub-sec. (1) of S. 189 and in the first proviso to it. ( 37 ) IN controller of Estate Duty v. Shri Kantilal Trikamlal, AIR 1976 SC 1935 . It was pointed out that an Explanation may added to include something within or excluded something from the ambit of the main enactment or the connotation of some word occurring in it. ( 38 ) NOW, we may extract sub-sec. (1) of S. 189 and the first proviso there to and the Explanation clause. "189. Resumption by Bhumiswami in certain cases- (i) A Bhumiswami whose land is held by an occupancy tenant (belonging to any of the categories specified in sub-sec. (1) of S. 185 except in items (a) and (b) of C1. (i) thereof) may, if the area of land under his personal cultivation is below twenty-five acres of unirrigated land, within one year of the coming into force of this Code, make an application to the Sub-Divisional Officer for resumption of land held by his occupancy tenant for his personal cultivation. (2) xx xx xx xx xx provided that the right of resumption shall be limited to the area which together with the area already under the personal cultivation of the Bhumiswami shall not exceed twenty-five acres of unirrigated land. xx xx xx xx xx explanation- For the purpose of this section - (l) the land under the personal cultivation of Bhumiswami shall include (a) any land transferred by him by sale or otherwise on or after the Ist January,1989 and (b) any land allowed by him to lie fellow. xx xx xx xx xx explanation- For the purpose of this section - (l) the land under the personal cultivation of Bhumiswami shall include (a) any land transferred by him by sale or otherwise on or after the Ist January,1989 and (b) any land allowed by him to lie fellow. (2) one acre of irrigated land shall be deemed to be equal to two acres of unirrigated land and vice versa. ( 39 ) NO sub-sec. (1) of S. 189 does not say that the land under the personal cultivation of an applicant at the date of his application under S. 189 is to be the land held by the applicant in Bhumiswami tenure. ( 40 ) THE first proviso restricts the extent of the right of resumption by saying that the area of the land sought to be resumed shall be limited to the extent it - on being added to the area under the personal cultivation of the applicant Bhumiswami at the date of his application under S. 189 - does not result in the applicant having more than 25 acres of unirrigated land. ( 41 ) IT is significant that, as in the provisions of sub-sec. (1) of S. 189 so also in the first proviso, there is not a word that the land already under the personal cultivation of the applicant Bhumiswami has to be the land held under the Bhumiswami tenure alone. It is, therefore, clear that the legislature was concerned with only one thing, what was the area of the land already under the personal cultivation of the applicant Bhumiswami, the tenure or the right under which the land was held by the applicant was not a matter engaging the attention of the legislature. ( 42 ) THE learned single Judge imported the notion by the reasoning that the applicant Bhumiswami may himself have land under his personal cultivation as an occupancy tenant and such land being liable to be resumed under S. 189. This consideration cannot be spelled out from the provisions of sub-sec. (1) of S. 189 of the first proviso or the Explanation. In fact, the interpretation placed by the learned single Judge goes against the grain of the first proviso read with Cl. (1) of the Explanation. This consideration cannot be spelled out from the provisions of sub-sec. (1) of S. 189 of the first proviso or the Explanation. In fact, the interpretation placed by the learned single Judge goes against the grain of the first proviso read with Cl. (1) of the Explanation. The Explanation had the effect of giving an extended meaning to the concept of the area of the land under the personal cultivation by including the area of such land as may have been transferred by applicant Bhumiswami by sale or otherwise on or after the 1st January, 1959 and also by including in it the area of such land as was allowed by him to lie fallow. If the interpretation of the learned single Judge were to prevail the legislative limitation as to the area resumable under S. 189 with reference to the area of the land under the personal cultivation of applicant Bhumiswami set out in the first proviso read with the Explanation would be set at nought. ( 43 ) WE, therefore, hold that there is no warrant for reading into the first proviso, as controlled by the Explanation, a concession in favour of an applicant Bhumiswami that the land held by him (at the date of application under S. 189) as an occupancy tenant shall not be taken into consideration for working out the provisions of the first proviso in considering his own application for resumption under S. 189 (1 ). ( 44 ) WE therefore, overruled the aforementioned view of the learned single Judge. ( 45 ) CONSEQUENTLY, a Bhumiswami applying for resumption under S. 189 has to show the area of all land (including the land held as an occupancy tenant) under his actual personal cultivation and such lands as are covered by items (a) and (b) of Cl. (1) of the Explanation. To the extent the total area of these lands falls short of 25 acres of unirrigated lands is the maximum extent of his entitlement in terms of area of land sought to be resumed by him. This is, however, not an end of the matter of the area of the land allowable on resumption. ( 46 ) HERE we reproduce second proviso now. This is, however, not an end of the matter of the area of the land allowable on resumption. ( 46 ) HERE we reproduce second proviso now. It reads.-"provided further that no resumption shall be allowed so as to reduce the total area of land in possession of the occupancy tenant below- (i) twenty-five acres of unirrigated land if the occupancy tenant has been holding such land from a Bhumiswami not belonging to any of the clauses mentioned in sub-sec. (2) of S. 168, for more than five years prior to the coming into force of the Code, (ii) ten acres in any other case. "we may to complete the picture-supplement the subject matter of Cl. (1) by reproducing the material portion of sub-sec. (1) and the entire sub-sec. (2) of S. 168. "168. Lease - Except in cases provided for in sub-sec. (2) no Bhumiswami shall lease any land comprised in his holding for more than one year curing any consecutive period of three years. Provided that nothing in this sub-section shall apply to the lease of any land- (1) made by Bhumiswami who is member of a registered co-operative framing society to such society. (ii) held by a Bhumiswami for non-agricultural purposes. (2) A Bhumiswami who is (i) a widow, or (ii) an unmarried woman or (iii) a married woman who has been deserved by her husband or (iv) a minor, or (v) a person subject to physical or mental disability due to old age or otherwise, or (vi) a person detained or imprisoned under any proceeds of law or (vii) a person the service of the Armed forces of the Union, or (viii) a public, charitable or religious institution, or (ix) a local authority or co-operative society, may lease the whole or part of his holding provided that where a holding is held jointly by more persons than one the provisions of this sub-section shall not be applicable unless all such persons belong to any one or more of the clauses aforesaid, provided further that any lease made in pursuance of this sub-section shall cease to be in force after one year of the determination of the disability by death of otherwise. " ( 47 ) SO, second proviso deals with an application by Bhumiswami, not belonging to any of the clauses mentioned in sub-sec. (2 ). " ( 47 ) SO, second proviso deals with an application by Bhumiswami, not belonging to any of the clauses mentioned in sub-sec. (2 ). The non-applicant (occupancy tenant), desirous of availing the benefit of second proviso has to show that whether or not he had held the land (sought to be resumed) for more than five years prior to the coming into force of the M. P. Land Revenue Code 1959. If he had held the land for more than 5 years, Bhumiswami's entitlement to the area resumable in accordance with first proviso must not result in reducing the area of the land in possession of the occupancy tenant to the extent of 25 acres of unirrigated land. If the occupancy tenant had held the land sought to be resumed for five years or less, all he could claim to be left in possession (on resumption) was an area of ten unirrigated land. It is clear that the occupancy tenant had to show the area of the land other than the land sought to be resumed in his possession. The learned single Judge says that the occupancy tenant was not required to include such area of the land (in his possession) as was held by him under Bhumiswami tenure. This view is contradicted by the unqualified use of the expression "the land in possession of the occupancy tenant", in fact it amounts to qualifying the expression by adding to it, other than the land held by the occupancy tenant under Bhumiswami tenure. What is more, the view of the learned single Judge results in cutting down the entitlement of the applicant-Bhumiswami and in the increase of the entitlement of the non-applicant-occupancy tenant beyond the limits set by the expression "the land in possession of the occupancy tenant. " In other words the occupancy tenant is permitted to save the area of the land held by him in Bhumiswami tenure from being placed into the hotehpot envisaged in Second proviso. The learned single Judge was led astray by his delinking the expression, twenty-five acres of unirrigated land occurring in item No. (i) of second proviso from the first paragraph ofsecond proviso and in linking it with the expression "if the occupancy tenant has been holding such land from a Bhumiswami. . . . The learned single Judge was led astray by his delinking the expression, twenty-five acres of unirrigated land occurring in item No. (i) of second proviso from the first paragraph ofsecond proviso and in linking it with the expression "if the occupancy tenant has been holding such land from a Bhumiswami. . . . "in fact, a meaningful reading of the first paragraph of second proviso and item No. (i) and item No. (ii) below it shows that the expression "twenty-five acres of unirrigated land" in item No. (i) is to be read as a part and in continuation of the expression "so as to reduce the total area of land in possession of the occupancy tenant below. " and not as governing the expression "if the occupancy tenant has been holding such land from a Bhumiswami for more than five years prior to the coming into force of this Code. " The expression such land is clearly meant for the land held by the occupancy tenant from applicant Bhumiswami and the resumption whereof is the relief by the latter and not to all lands in possession of the occupancy tenant at the date of the application under S. 189. Where, therefore, of the view that the learned single Judge with utmost respect-miscomprehended the meaning of second proviso by delinking the expression "twenty-five acres of unirrigated lands "from the first paragraph of second proviso and by reading it as qualifying the expression beginning from 'if the occupancy tenant has been holding' onwards. ( 48 ) WE are of the view that this amounted to a tinkering not only with the plain meaning of the expression the land in the possession of the occupancy tenant, but also with the object of S. 189 viz. the applicant Bhumiswami's exercise of statutory right of resumption of the land held by his occupancy tenant - a right liable to a statutory lapse at the expiration of one year from the coming into force of the Code. In our view the learned Judge's view -- with respect is unsustainable we over-rule his finding on this count. The result is that the occupancy tenant has to show the land held by him under Bhumiswami tenure as well while claiming the benefit of the provisions of second proviso. In our view the learned Judge's view -- with respect is unsustainable we over-rule his finding on this count. The result is that the occupancy tenant has to show the land held by him under Bhumiswami tenure as well while claiming the benefit of the provisions of second proviso. ( 49 ) THE next point for determination is the correctness of learned single Judge's view that "in case of land held jointly by the occupancy tenant, it is only his share therein which can be taken into consideration for finding out whether minimum area is left with him on resumption or not. ( 50 ) THE finding given with reference to the case of Prahlad, is relevant to the case of Narsingh's sons as well. . ( 51 ) BEFORE proceeding, we would do well to clear some ground. ( 52 ) PRAHLAD's written statement before the S. D. O. , Sheopur Kalan did not contain any averment is to the land (other than the land sought to be resumed) in his possession. ( 53 ) ON 12-8-80 Motilal filed an application (with an affidavit) in M. P. No. 14/1972, praying for summoning of the original record. In it amongst other things, it was stated at paragraphs 4 and 5 as follows- Prahlad and his natural brother Mohanlal jointly held lands at Ajpura compressed in Khata No. 61 which contained S. No. 15 (16 bighas 19 biswas), S. No 88 (15 bighas 1 biswas), S. No. 181 (10bighas) and S. No. 355 (7 bighas 8 biswas ). The total area 49 bighas 8 biswas was stated to be equal to 25. 51 acres. In his written reply dated 28-8-80 Prahlad did not deny any of the aforementioned averments. In fact, he stated. "that the land to the extent of 49 bighas 8 biswas has already been taken into account by all the Courts, though no part of it could be taken into account while considering the application under S. 189 of the M. P. Land Revenue Code 1959. " ( 54 ) THUS, Prahlad's case is that he be taken to being possession of half of the area of the land of Khata No. 61 because he had half share in the lands jointly held by him and his natural brother. " ( 54 ) THUS, Prahlad's case is that he be taken to being possession of half of the area of the land of Khata No. 61 because he had half share in the lands jointly held by him and his natural brother. That is, it is not his case that he was in exclusive actual possession of lands of or out of such and such survey numbers contained in Khata No. 61. ( 55 ) NARSINGH's three sons averred in their written statement dated 12-9-60 before the S. D. O. , Sheopurkalan that they held 1/3rd share in Khata No. 16 (51 bighas 13 biswas) revenue Rs. 102. 36, and they held Khata No. 17 (14 bighas 10 biswas), revenue Rs. 30. 81. They went on to say. "hamare pass kul arazi 31 (bighas) 20 (biswas) rah jaati hai jo pratyak bhai ke hisse men 10 (bighas) (biswas) aati hai. " ( 56 ) PETITIONER Motilal's case that 66 bighas and odd biswas of the lands recorded in Khata Nos. 16 and 17 be taken to be the land (other than the land sought to be resumed) in possession of Anand's sons was upheld by the S. D. O. The learned Collector, however, upheld the case of Anand's sons saying. "khata No. 16, raqba 51 bibhas 14 biswa pratham teen appealarthion ke naam 1/3 hissa hai arthat 17 bigha 4 bigwa inke naam darz hai. Khata No. 15 raqba 14 bigha 10 biswa hai. Is prakar prathan teen appealarathion men 31 bigha 10 biswa bhumi hai jo 25 acre se kam hai. ' ( 57 ) THE learned commissioner, however, recorded the following finding in respect of khata No. 16, reversing the collector's finding. "khata ki jo pratilipiyan upkhandiya pradhikari ke nyayalaya ke prakranmen lagi hui hain unke anusar khata number 16 men Anandilal Pannalal aur Rampratap ka naam sanyukta roop se likhna hua hai, Ateva unhone koi batwara nahin kuya hai. " ( 58 ) IN his order dated 29-4-1971, the learned Member of the Board of Revenue did not discuss, Let alone reverse, the Commissioner's finding that Khata No. 16 (51 bigha 14 biswa) was jointly recorded in the names of Narshing's sons Anandilal, Pannalal and Rampratap. The learned member, however ordered in effect that the application for resumption must fail in respect of the land held (as occupancy tenants) by Anandi's son. The learned member, however ordered in effect that the application for resumption must fail in respect of the land held (as occupancy tenants) by Anandi's son. ( 59 ) THE learned single Judge recorded no findings on the point how much area of lands (other than the lands sought to be resumed) was with Anandilal, Pannalal and Ram Pratap and with Prahlad. ( 60 ) THE relevant discussion (at paragraph 12) in the order of the learned single Judge is as follows: "it is true that a co-owner is owner of every inch of the land held jointly, Even then he will be deemed to hold land which corresponds to his share only and not that of the share of Mohanlal. " ( 61 ) THE learned single Judge's view was expressed without interpreting Section 189 in general, second proviso in particular and without stating any authority or case-law. With respect, the finding is as a bare assertion, and nothing more. ( 62 ) WE have already painted out that Section 189 allows a Bhumiswami, with less than 25 acres of unirrigated land under his personal cultivation to make an application under Section 189 for resumption of lands held by his occupancy tenant so as to enable him to have with him 25 acres of unirrigated lands for personal cultivation. He has to show not only the land under his actual personal cultivation but also the land allowed by him to lie fallow in addition he has to show the land sold or transferred by him on or after Ist January, 1959,in order to quantify the area of the land resumable at his instance. Even so, the resumption even to this extent was permissible only if, or to the extent, it left 25 acres of unirrigated land with the non-applicant-occupancy tenant as laid down in second proviso. We have held that in computing the area of the land that has to be left with the occupancy tenant (on resumption) the land in his possession shall include land, if any, held by him under Bhumiswami tenure. It is in this context that we have to examine the correctness of the view of the learned single Judge. We have held that in computing the area of the land that has to be left with the occupancy tenant (on resumption) the land in his possession shall include land, if any, held by him under Bhumiswami tenure. It is in this context that we have to examine the correctness of the view of the learned single Judge. ( 63 ) FIRST, the relevant portion of second proviso to sub-section (1) of Section 189 repetition being unavoidable runs as follows-"provided further that no resumption shall be allowed so as to reduce the total area of land in possession of the occupancy tenant below- (i) Twenty-five acres of unirrigated land- (ii) Ten acres in any other case. " ( 64 ) NARSINGH's sons and so also Prahlad and his brother Mohanlal are governed by the Mitakshara School or Hindu Law. We therefore, go to their personal law. ( 65 ) IN sub-section (2) of Section 235 of Mulla's Principles of Hindu Law, the learned author says.-a member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. " the learned author says in Section 306, "every coparcener is entitled to a share upon partition. The learned author goes on to say in sub-section (2a) of Section 235. "each coparcener is entitled to joint possession and enjoyment of the family property. If any co-parcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition. " ( 66 ) IN Mulla's Principles of Hindu Law' (l5th Edition) the following observations of the Privy Council in 'katama Natchiar v. Rajah of Shi Vagunga', (1863) 9 MIA 539 were cited. "there is community of interest and unity of possession between all the members of the family. " ( 67 ) IN State Bank of India v. Chamandi Ram, AIR 1969 SC 1330 (1333), it was pointed out that as a result of co-ownership the possession and enjoyment of the properties is common. ( 68 ) IN P. L. Lakshmi Reddy v. L. Lakshmi, AIR 1957 SC 314 ,it is held. "the possession of one co-heir is considered, in law as possession of all the co-heirs. ( 68 ) IN P. L. Lakshmi Reddy v. L. Lakshmi, AIR 1957 SC 314 ,it is held. "the possession of one co-heir is considered, in law as possession of all the co-heirs. ( 69 ) THE 'pleading' of Prahlad as set out at paragraphs 52 to 54 (supra) and the 'pleading' of Narsingh at paragraph 55 (supra) show that it was not their case that there had been any partition of their respective jointly held holdings. ( 70 ) HENCE, the law set out at paragraphs 65 to 68 (supra) becomes applicable for determining the extent of the occupancy-tenant's possession in their joint holdings in question. Each co-sharer is entitled to a joint possession and enjoyment of the entire land in the joint holding and that no co-sharer can predicate at any given moment what his share in the joint family property is. Every co-parcener is, however, entitled to a share upon partition. (Emphasis supplied) ( 71 ) THUS, the proposition laid down by the learned single Judge that every co-owner will be deemed to hold land which corresponds to his share only is against the settled law on the subject. Besides, the proposition of the learned single Judge does not touch, let alone - solve, the question which in the contest of second proviso stands, thus can a co-owner of a jointly held) holding, within the meaning of Section 2 (1) (i) of the M. P. Land Revenue Code, 1959, be allowed to say that though there has been no partition of the land in the holding and no specific area of the land has been allotted to him as the land falling to his share upon a partition, he be deemed-in-law to be in possession of only that much area in the holding which, upon a partition taking place at a given moment, may be allotted to him as his share of the erstwhile jointly held holding. In our view, the answer is "no" because every co-owner is entitled to joint possession and enjoyment of the entire land in the joint holding and no co-owner is entitled to any share in the land until and unless the holding is partitioned. Accordingly, we overrule the learned single Judge's view, which was set out at the beginning of paragraph 49 (supra ). Accordingly, we overrule the learned single Judge's view, which was set out at the beginning of paragraph 49 (supra ). ( 72 ) WE have scrutinised Devlal v Kadu AIR 1957 Bombay 68, Balmukund v. Gendalal, 1966 N I64 (HC) and Kundan Singh v. Kunnu 1969 RN 264 (HC), cited by Shri V. K. Sapre, learned counsel for the Bhumiswami and 'k. K. Handique v. Agr. I. T. Board, Assam, AIR 1966 SC 1191 and Tunda v. State of M. P. I97i RN 391 (HC), placed by Shri R. K. Dixit, learned counsel for the occupancy tenants. ( 73 ) FIRST, we take up the rulings cited by Shri R. K. Dixit. In K. K. Handique's case, (AIR 1966 SC l191), the Supreme Court, was interpreting Sections 12 and 13 of the Assam Agricultural Income-tax Act. The Court held that in the expression a person holds land. . . . partly for his own benefit and partly for the benefit of beneficiaries" in Section 12 (1) and the expression in S. 13 where any person holds land as a common manager appointed under any law for the time being in force or under any agreement or as receiver, administrator, or the like on behalf or persons jointly interested land or in the agricultural income deprived there from the expression holds includes a two-fold idea of the actual possession of a thing and also of being invested with the legal title. It is, therefore, clear that the question dealt with in this ruling is of no aid in interpreting the question before us, as posited by us at paragraph 71 (supra ). ( 74 ) IN Tunda v. State of M. P. , 1969 RN 391,a Division Bench this court, 251/2 acres of land stand recorded in the name of the joint family of which petitioner Tunda was a member. He applied for allotment of lands under Section 62 of the M. B. Land Revenue and Tenancy Act under the Allotment Rules sub-rule (2) of Rule 7 made the first category. The first category consisted of a person who had no land as a pacca tenant or where he held less than 15 acres as a pakka tenant. This class was to be preferred to the applicant in the second category of pakka tenants holding 15 acres or mare land but below 50 acres. The first category consisted of a person who had no land as a pacca tenant or where he held less than 15 acres as a pakka tenant. This class was to be preferred to the applicant in the second category of pakka tenants holding 15 acres or mare land but below 50 acres. The point for consideration was whether petitioner Tunda could be said to hold land more than 15 acres in area, only because he was a member of a joint family (consisting of his father and his two brothers) which holds in all 251/2 acres of land. ( 75 ) THE court held that through only on a partition with an individual member of a co-parcenery becomes entitled to a definite share. It did not follow that each member holds the entire property. The court, however did not cite any authority for the latter proposition. However, the Court did concede that an individual member of a coparcener may be in the joint possession of the entire property as member. Since the point be before us is trial of possession, this ruling does not held the cause of the occupancy tenants because the learned Judge in Thunda's case did hold that each co-parcener may be in the joint possession of the entire property. In fact, it was held in Tunda's case that the Allotment Rules, being applicable not only to Hindus but also to members of other communities, the Allotment Rules could not be construed on the rules of Hindu Law alone. ( 76 ) IT is, therefore, clear that the question in Tunda's case, (1971 RN 391) was different from the facts of the present case. The ruling, therefore, is of no help to the cause of the occupancy tenant. ( 77 ) NOW, to the Rulings cited by Shri V. K. Sapre, Advocate. In Devlal's case, (AIR 1957 Bombay 68), the Court held that the expression "land held by the landlord (seeking resumption) meant "land possessed by the landlord for personal cultivation" and not "land owned by the landlord" it is clear the ruling gives no aid to us. ( 77 ) NOW, to the Rulings cited by Shri V. K. Sapre, Advocate. In Devlal's case, (AIR 1957 Bombay 68), the Court held that the expression "land held by the landlord (seeking resumption) meant "land possessed by the landlord for personal cultivation" and not "land owned by the landlord" it is clear the ruling gives no aid to us. ( 78 ) IN Balmukund v. Gendalal, (1966 RN 164) (HC), the Court held that when Section 165 (7) (a) of the M. P. Land Revenue Code, 1959 says that only 10 acres of unirrigated land held under the Bhumiswami tenure is exempted from attachment and sale, the exemption attached itself to the holding as a unit but not to the share of more than one joint holder of the holding. Thus, this ruling is also of no help for the interpretation of the expression "land in possession of occupancy tenants occurring in second proviso to subsection (1) of Section 189. ( 79 ) IN Kundan Singh v. Kunnu, 1969 RN 264 (HC) it was held that where a person has a holding to his name and is also a co-owner in another holding a joint family holding he will be regarded to be as much a holder of the joint family holding as he has been so regarded in respect of the holding recorded exclusively in his name. Hence, this ruling is also of no help to us. ( 80 ) THE next point for determination is whether the learned single Judge erred in affirming the commissioner's rejection of petitioner 'motilal's application for permission to file some jamabandis to show that Prahlad and his brother Mohanlal held the lands not only in Khata No. 61 but also in two or three Khatas as well. ( 81 ) HAVING considered the matter, we are of the view that the orders have to be affirmed. The reason is that it is only in dispute that the lands in Khata No. 61, had an area of 49 big has 8 biswas 25. 51 acres. Accordingly, we affirm the order of the learned single Judge on this point. ( 81 ) HAVING considered the matter, we are of the view that the orders have to be affirmed. The reason is that it is only in dispute that the lands in Khata No. 61, had an area of 49 big has 8 biswas 25. 51 acres. Accordingly, we affirm the order of the learned single Judge on this point. ( 82 ) TO recapitulate, we have held that for the purposes of the first proviso to sub-section (1) of section 189 all lands under the personal cultivation of an applicant-bhumiswami have to be taken into account, inclusive of lands if any, held by him as an occupancy tenant of some other bhumiswami. ( 83 ) WE have also held that for the purpose of second proviso to sub-section (1) of section 189 that is for determining the area of the land in possession of the occupancy tenant, all lands (inclusive of lands held under Bhumiswami tenure) have to be taken into account. ( 84 ) LASTLY, every non-applicant occupancy tenant is entitled to a joint possession and enjoyment of the entire land in a joint holding holding and hence he is to be regarded to be in possession of the entire area of the land in the joint holding. ( 85 ) NOW, the resumption of S. N. 442 (16 bighas 13 his, was) has become final as against Ramchand. ( 86 ) PRAHLAD cannot get any benefit of second proviso. Hence, the resumption of 12 bighas 8 biswas out of S. No. 437, and 10 bighas 5 biswas of S. No. 464 with Prahlad, has to be granted. ( 87 ) THE law m to the scope of second proviso to sub-section (1) of Section 189 having been laid down by us, all that remains to be done by the Revenue authorities is to find out the area in possession of Narsingh's sons Anandilal, pannalal and their deceased brother Rampratap's widow Badambai and son Narrotum. Our grounds for saying that this matter has not been finally decided are contained at paragraphs 57 and 58 (supra ). To repeat, the Board of Revenue did not discuss, let alone reverse, the Commissioner's finding that Khata No. 16 (51 bighas 4 biswas) was jointly' recorded in the names of Narsingh's three sons. Significantly, even then the learned Member of the Board of Revenue disallowed the resumption of lands with Narsingh's sons. To repeat, the Board of Revenue did not discuss, let alone reverse, the Commissioner's finding that Khata No. 16 (51 bighas 4 biswas) was jointly' recorded in the names of Narsingh's three sons. Significantly, even then the learned Member of the Board of Revenue disallowed the resumption of lands with Narsingh's sons. So, the case must go back on remand. but not to the Commissioner, Gwalior but to the Board of Revenue to dispose of the case finally. We have chosen the Board of Revenue as the appropriate forum because any order passed by the Commissioner (on a remand of the case to him) will leave room for the litigation to seep in to the Board of Revenue. ( 88 ) IN the result, we allow the L. P. A. No. 12 of 1980 and dismiss L. A. No. 13, 1980 (Anandilal and three v. Motilal ). ( 89 ) THE order dated 29/04/1971 passed by the Board of Revenue is Revision No. 239-III/70 and also the order dated 14/09/1971 passed by the Board of Revenue in Review Case No. 6-3/71, are here by set aside. ( 90 ) THE Board of Revenue shall register the case under the old Revision No. 239iii/170 and rehear the parties and dispose of the revision in advertence to the findings recorded by this Court at paragraphs 32, 43, 44, 48, 70, 71 and also in the light of our observations at paragraphs 50 to 59 (supra ). The matter to be disposed of is the resumption of 12 bighas 8 biswas out of S. No. 437 with Narsingh's three sons and the remaining 12 bighas 8 biswas out of S. No. 437, and bighas 5 biswas of S. No. 464 with present respondent No. 5 Prahlad. The matter of resumption of S. No. 442 (16 bighas 13 biswas) has already attained finality against Ramchand and in favour of deceased petitioner Motilal. ( 91 ) WE direct the parties of these appeals through their counsel to appear before the Board of Revenue, Madhya Pradesh, Gwalior, on 5-9-1989. ( 92 ) IN the particular circumstances of the case, we leave the parties to bear their own costs of these appeals as well as the costs incurred in Misc. petition No. 14 of 1972. Order accordingly. .