PETITIONER:
KARBALAI BEGUM
Vs.
RESPONDENT:
MOHD. SAYEED AND ANR.
DATE OF JUDGMENT07/10/1980
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
BHAGWATI, P.N.
CITATION:
1981 AIR 77 1981 SCR (1) 863
1980 SCC (4) 396
ACT:
U.P. Consolidation of Holdings Act, 1953, sections 9 &
49-Non-Participation by a co-sharer in rents and profits of
land-Whether amounts to an ouster-Whether other co-sharer
obtains title by adverse possession.
HEADNOTE:
The appellant a widow and defendants nos. 1 and 2 were
her husband's cousins. They were in joint possession of the
plots in dispute, being co-bhumidars. The parties had a
joint Khewat upto 1359 Fasli. The plaintiff filed a suit for
joint possession over her share contending that she was
living with her sons at Lucknow and defendants were looking
after the agricultural land and groves and that she was
given her share by the defendant from time to time. She also
went to the village from time to time and got her share. She
alleged that the defendants assured her that her share would
be properly looked after and protected by them. The
plaintiff further alleged that it was only 3 years before
the suit that she came to know that her name had been
deleted from the Khewat, and the entire property was mutated
in the consolidation of holding proceedings, in the name of
defendants of which she was never informed. The defendants
contested the suit on the grounds that, they were in
separate occupation of the land in dispute, the plots in
dispute were occupied by Adhivasi who acquired the Sirdar
rights under the U. P. Zamindari Abolition and Land Reforms
Act, 1950, the plaintiff lost her title by operation of law,
and denied the allegation of fraud.
The trial court dismissed the suit but on appeal the
District Judge decreed the suit for joint possession in
favour of the plaintiff in respect of two plots of the land.
The High Court accepted the appeal of the defendants.
Allowing the appeal this Court,
^
HELD: 1. The grounds on which the High Court reversed
the decision of the District Judge are not sustainable in
law and the judgment of the High Court cannot be allowed to
stand. [869F]
2. Another fact which emerges from the admitted
position is that if defendants 1 and 2 were co-bhumidhars
with the plaintiff in the Khewat and had also sirdari
tenants under them, how could the sirdari tenants occupy the
land of one of the co-sharers leaving the defendants alone
so that the plots were reallotted to them. [867C]
864
3. It is well settled that mere non-participation in
the rent and profits of the land of a co-sharer does not
amount to an ouster so as to give title by adverse
possession to the other co-sharer in possession. Even if
this fact be admitted, then the legal position would be that
defendants nos. 1 and 2 being co-sharers of the plaintiff,
would become constructive trustees on behalf of the
plaintiff and the right of the plaintiff would be deemed to
be protected by the trustees. [867D]
In the instant case it is manifest that the position of
the defendants apart, from being in the nature of
constructive trustees, would be in law the possession of the
plaintiff. [867E]
4.(i) The finding of the District Judge that a planned
fraud was made to drop the appellant's name from the revenue
records was a clear finding of fact and even if it was wrong
(though it is absolutely correct) it was not open to the
High Court to interfere with the finding of fact in second
appeal. [868B]
4.(ii) The High Court proceeded on the basis that there
was nothing to show that any fraud was practised upon the
consolidation authorities so as to make the order a nullity.
The High Court here completely misunderstood the case made
out by the plaintiff. [868G]
5. The finding of fact of the District Judge that there
was no evidence on the record to prove that the plaintiff
was not given any share out of the produce and, therefore,
the conclusion that the plaintiff should be deemed to be
ousted from possession, was binding in second appeal. [868C-
D]
6. The High Court committed an error of record because
the clear evidence of the appellant is to the effect that
she was not at all informed about the consolidation
proceedings and was assured by the defendants that they
would take proper care of her share in any proceedings that
may be instituted. [868F]
7. It is well settled that unless there is an express
provision in the statute barring a suit on the basis of
title, the courts will not easily infer a bar of suit to
establish the title of the parties. [869B]
Suba Singh v. Mahendra Singh and Ors. A.I.R. 1974 S. C.
1657 referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1204 of
1978.
Appeal by Special Leave from the Judgment and Order
dated 5-4-1978 of the Allahabad High Court (Lucknow Bench)
in Second Civil Appeal No. 90/75.
R. K. Garg, V. J. Francis and Sunil Kumar for the
Appellant.
Uma Datta, Prem Malhotra and Kishan Datt for the
Respondents.
The Judgment of the Court was delivered by
FAZAL ALI, J.-How dishonest cousins, looking after the
lands of their brother’s widow, situated far away from the
place where the widow was living, taking undue advantage of
the confi-
865
dence reposed in them by their widowed sister-in-law and
having painted a rosy picture of honestly managing the
property and giving her due share, cast covetous eyes on
their sister-in-law’s share and with a deplorable design,
seek to deprive her of her legal share and deny her legal
rights is not an uncommon feature of our village life. That
this is so is aptly illustrated by the facts of this case
where the sister-in-law was driven by the force of
circumstances to indulge in a long drawn litigation in order
to vindicate her legal rights in wresting her share of the
property from the hands of her cousins. This is the
unfortunate story of the poor and helpless appellant,
Karbalai Begum, who having failed to get justice from the
High Court of Allahabad was forced to knock the doors of the
highest Court in the country and has, therefore, filed the
present appeal in this Court after obtaining special leave.
In order to understand the facts of the case, it may be
necessary to give a short genealogy of the parties which
will be found in the judgment of the District Judge and is
extracted below:
Mir Tafazzul Hussain
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_______________________________________
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Syed Khadin Husain Syed Sadiq Hussain
__________________ __________________________________
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Syed Lack Husain Mohd. Bashir Modh. Rasheed
(Widow Karbalai (Deftd. No. 1) (Widow Smt Shakira
Begum-Plaintiff) Bano, Defdt No 2)
The appellant Karbalai Begum was the widow of Syed Laek
Husain and defendants No. 1 and 2 were her husband’s
cousins. The admitted position seems to be that the
plaintiff and the defendants were in joint possession of the
plots in dispute, being co-bhumidars, because after the
abolition of the zamindari by the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 the plaintiff-
appellant, Mohd. Bashir and Mohd. Rasheed became bhumidars
of the plots in dispute. It is also not disputed that upto
1359 Fasli both the parties had a joint khewat, as would
appear from the extract of the khewat produced by the
appellant. The plaintiff’s case was that she was living with
her sons at Lucknow and her husband’s cousins were looking
after the lands which consisted of agricultural lands and
groves and she was given her share by her cousins from time
to time. It was also alleged that she went to the village
from time to time and got her share. In her statement before
the trial court, she has clearly stated that the defendants,
Mohd. Bashir and Mohd. Rasheed used to manage the properties
which were joint and used to give her share and assured her
that her share would be properly looked after and protected
by them. Thus,
866
having gained the confidence of the plaintiff the first and
the second defendants went on managing the properties and
off and on gave her share so that she may not suspect their
evil intentions. The plaintiff further alleged in her
statement that during the consolidation proceedings,
separate plots were carved out and she was never informed
about any proceedings by the defendants and was under the
Impression that her share was being properly looked after.
It was only three years before the suit that the plaintiff
came to know that her name had been deleted from the khewat
and the entire property was mutated in the consolidation of
holding proceedings in the name of the defendants. Hence,
the suit by the plaintiff for joint possession over the
share.
The suit was dismissed by the trial court but on
appeal, the district judge decreed the suit for joint
possession in respect of Chakbandi plot Nos. 201 and 274
only. As regards plot Nos. 93, 94 and 106 the dismissal of
the plaintiff’s suit by the trial court was upheld. In the
instant case, therefore, we are concerned only with
Chakbandi plot Nos. 201 and 274. Plot No. 201 was carved out
of plot Nos. 158, 159, 164, 165, 167, 166, 168, etc. and
plot No. 274 was formed out of plot Nos. 267, 268, 272, 273,
276, 277, 278, 279 and 280.
The suit was contested by the defendants mainly on the
ground that the defendants were in separate occupation of
the land or plots in dispute and the plaintiff had
absolutely no concern with them. It was further averred that
although at some time before, the lands in dispute were
joint but during the consolidation proceedings the plots in
possession of the plaintiff were occupied by Adhivasi who
having acquired the rights of a Sirdar under the Uttar
Pradesh Zamindari Abolition and Land Reforms Act, 1950, the
plaintiff lost her title by operation of law. The allegation
of the plaintiff that the defendants had committed fraud was
stoutly denied.
The learned trial court accepted the allegations of the
defendants and dismissed the case of the plaintiff. The
District Judge, however, found that on the admitted facts
even after the abolition of zamindari, the position was that
in 1357 Fasli the plaintiff’s name was clearly recorded as a
co-sharer with the defendants and continued to be so until
1359 Fasli as would appear from Ex. 2. The learned District
Judge further found that the name of the plaintiff was
suddenly deleted after 1359 Fasli and there was no order of
any authority or court to show the circumstances under which
the plaintiff’s name was suddenly deleted nor were there any
judicial proceedings under which the name of the plaintiff
as a co-bhumidar was
867
deleted. The learned District Judge, after a careful
consideration of the documentary evidence, came to the clear
conclusion that some sort of fraud must have been committed
by Mohd. Bashir, and Mohd. Rasheed when in 1362 Fasli the
plots were entered exclusively in the name of Mohd. Bashir
and Mohd. Rasheed. Even if no share was given to the
plaintiff by the defendants, as the defendants were co-
shares, unless a clear ouster was pleaded or proved the
possession of the defendants as co-sharers would be deemed
in law to be the possession of the plaintiff.
Another obvious fact which emerges from the admitted
position is that if Mohd. Bashir and Mohd. Rasheed were co-
bhumidars with the plaintiff in the khewat and had also
sirdari tenants under them, how could the sirdari tenants
occupy the land of one of the co-sharers leaving the
defendants alone so that the plots were re-allotted to them.
It is well settled that mere non-participation in the rent
and profits of the land of a co-sharer does not amount to an
ouster so as to give title by adverse possession to the
other co-sharer in possession. Indeed even if this fact be
admitted, then the legal position would be that Mohd. Basir
and Mohd. Rashid, being co-sharers of plaintiff, would
become constructive trustees on behalf of the plaintiff and
the right of the plaintiff would be deemed to be protected
by the trustees. The learned counsel appearing for the
respondent was unable to contest this position of law. In
the present case, it is therefore manifest that the
possession of the defendants, apart from being in the nature
of constructive trustees, would be in law the possession of
the plaintiff.
Apart from this, the fact remains that the District
Judge has come to a clear finding of fact after
consideration of the evidence that a clear fraud was
committed during the consolidation operation either by the
defendants or by somebody else as a result of which the
rights of the plaintiff were sought to be extinguished. In
this connection, the learned District Judge found as
follows:-
“This shows that a planned fraud was made to drop
the appellant’s name from the revenue records and full
advantage was taken of the consolidation operations in
the village by the respondents. In para 20 of the
written statement, paper 31A, it was pleaded by the
respondents that they acquired the suit plot through
litigation and the plaintiff’s right extinguished
during the consolidation proceedings. There is no
evidence before me to show that there was any
litigation with the subtenants and the defendants
acquired the plots exclusively. Even
868
if it is accepted for the sake of arguments that the
respondents did obtain the plots through litigation,
even then it cannot be said that the plaintiff’s rights
extinguished.”
This finding of the learned District Judge was a clear
finding of fact and even if it was wrong (though in our
opinion it is absolutely correct) it was not open to the
High Court to interfere with this finding of fact in second
appeal. Furthermore, the District Judge at another place
found that there was no evidence on the record to prove that
the plaintiff was not given any share out of the produce
and, therefore, the conclusion that the plaintiff should be
deemed to be ousted from possession, was not correct. In
this connection, the learned Judge observed as follows:-
“The argument advanced by the counsel for the
respondents that there is no evidence on the record
that the plaintiff was given any share out of the
produce and, therefore, the plaintiff should be deemed
to be ousted from possession, is fallacious.”
This was also a finding of fact which was binding in
second appeal. The High Court seems to have relied on the
fact that there was no evidence to prove that the plaintiff
was prevented from filing a petition under s. 9 of the U.P.
Consolidation of Holdings Act, 1953 or that the defendants
assured the plaintiff that her name shall be entered in the
record during the consolidation proceedings. Here also, the
High Court committed an error of record because the clear
evidence of PW, Karbalai Begum, is to the effect that she
was not at all informed about the consolidation proceedings
and was assured by the defendants that they would take
proper care of her share in any proceedings that may be
instituted. This was accepted by the District Judge and
should not have been interfered with by the High Court in
second appeal.
The High Court proceeded on the basis that there was
nothing to show that any fraud was practised upon the
consolidation authorities so as to make the order a nullity.
Here the High Court completely misunderstood the case made
out by the plaintiff. It was never the case of the plaintiff
that any fraud was committed on the consolidation
authorities. What she had stated in her plaint and in her
evidence was that the defendants had practised a fraud on
her by giving her an assurance that her share would be
properly looked after by them and on this distinct
understanding she had left the entire management of the
properties to the defendants who also used to manage them.
The trial court did not fully appreciate this part
869
of the case made out by the plaintiff and the District Judge
in clear terms accepted the same. In these circumstances,
therefore, the finding of the High Court regarding fraud
having been committed in the consolidation proceedings was
not legally sound.
The last ground on which the High Court non-suited the
appellant was that after the chakbandi was completed under
the U.P. Consolidation of Holdings Act, the suit was barred
by s. 49 of the said Act. It is well settled that unless
there is an express provision barring a suit on the basis of
title, the courts will not easily infer a bar of suit to
establish the title of the parties. In Subha Singh v.
Mahendra Singh & Ors. this Court made the following
observations:-
“It was thus abundantly clear that an application
for mutation on the basis of inheritance when the cause
of action arose, after the finalisation and publication
of the scheme under Section 23, is not a matter in
regard to which an application could be filed “under
the provisions of this Act” within the meaning of
clause 2 of Section 49. Thus, the other limb of Section
49, also is not attracted. The result is that the plea
of the bar of the civil courts’ jurisdiction to
investigate and adjudicate upon the title to the land
or the sonship of the plaintiff has no substance.”
In view of the clear decision of this Court, referred
to above, the High Court erred in law in holding that the
present suit was barred by s. 49 of the U.P. Consolidation
of Holdings Act.
Thus, the grounds on which the High Court reversed the
decision of the District Judge are not sustainable in law
and the judgment of the High Court cannot be allowed to
stand.
We, therefore, allow the appeal with costs throughout,
set aside the judgment of the High Court, decree the
plaintiff’s suit for joint possession as far as plots Nos.
201 and 274 are concerned and restore the judgment of the
District Judge. The cost allowed by this Court would be set-
off against the sum of Rs. 15,000/- (fifteen thousand only)
deposited by the respondents in the High Court and paid to
the appellant and the balance may be refunded to the
respondents.
N.K.A. Appeal allowed.
870