{"id":2695,"date":"1980-10-07T00:00:00","date_gmt":"1980-10-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/karbalai-begum-vs-mohd-sayeed-and-anr-on-7-october-1980"},"modified":"2016-03-20T18:17:06","modified_gmt":"2016-03-20T12:47:06","slug":"karbalai-begum-vs-mohd-sayeed-and-anr-on-7-october-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/karbalai-begum-vs-mohd-sayeed-and-anr-on-7-october-1980","title":{"rendered":"Karbalai Begum vs Mohd. Sayeed And Anr on 7 October, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Karbalai Begum vs Mohd. Sayeed And Anr on 7 October, 1980<\/div>\n
Equivalent citations: 1981 AIR 77, \t\t 1981 SCR (1) 863<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nKARBALAI BEGUM\n\n\tVs.\n\nRESPONDENT:\nMOHD. SAYEED AND ANR.\n\nDATE OF JUDGMENT07\/10\/1980\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nBHAGWATI, P.N.\n\nCITATION:\n 1981 AIR   77\t\t  1981 SCR  (1) 863\n 1980 SCC  (4) 396\n\n\nACT:\n     U.P. Consolidation\t of Holdings Act, 1953, sections 9 &\n49-Non-Participation by\t a co-sharer in rents and profits of\nland-Whether amounts  to an  ouster-Whether other  co-sharer\nobtains title by adverse possession.\n\n\n\nHEADNOTE:\n     The appellant  a widow and defendants nos. 1 and 2 were\nher husband's  cousins. They were in joint possession of the\nplots in  dispute, being  co-bhumidars. The  parties  had  a\njoint Khewat upto 1359 Fasli. The plaintiff filed a suit for\njoint possession  over her  share contending  that  she\t was\nliving with  her sons at Lucknow and defendants were looking\nafter the  agricultural land  and groves  and that  she\t was\ngiven her share by the defendant from time to time. She also\nwent to the village from time to time and got her share. She\nalleged that the defendants assured her that her share would\nbe  properly   looked  after  and  protected  by  them.\t The\nplaintiff further  alleged that\t it was\t only 3 years before\nthe suit  that she  came to  know that\ther  name  had\tbeen\ndeleted from the Khewat, and the entire property was mutated\nin the\tconsolidation of holding proceedings, in the name of\ndefendants of  which she  was never informed. The defendants\ncontested the  suit  on\t the  grounds  that,  they  were  in\nseparate occupation  of the  land in  dispute, the  plots in\ndispute were  occupied by  Adhivasi who\t acquired the Sirdar\nrights under  the U. P. Zamindari Abolition and Land Reforms\nAct, 1950, the plaintiff lost her title by operation of law,\nand denied the allegation of fraud.\n     The trial\tcourt dismissed\t the suit  but on appeal the\nDistrict Judge\tdecreed the  suit for  joint  possession  in\nfavour of the plaintiff in respect of two plots of the land.\nThe High Court accepted the appeal of the defendants.\n     Allowing the appeal this Court,\n^\n     HELD: 1.  The grounds  on which the High Court reversed\nthe decision  of the  District Judge  are not sustainable in\nlaw and\t the judgment of the High Court cannot be allowed to\nstand. [869F]\n     2.\t Another   fact\t which\temerges\t from  the  admitted\nposition is  that if  defendants 1  and 2 were co-bhumidhars\nwith the  plaintiff in\tthe  Khewat  and  had  also  sirdari\ntenants under them, how could the sirdari tenants occupy the\nland of\t one of\t the co-sharers leaving the defendants alone\nso that the plots were reallotted to them. [867C]\n864\n     3. It  is well  settled that  mere non-participation in\nthe rent  and profits  of the  land of\ta co-sharer does not\namount\tto  an\touster\tso  as\tto  give  title\t by  adverse\npossession to  the other  co-sharer in\tpossession. Even  if\nthis fact be admitted, then the legal position would be that\ndefendants nos.\t 1 and\t2 being co-sharers of the plaintiff,\nwould  become\tconstructive  trustees\t on  behalf  of\t the\nplaintiff and  the right of the plaintiff would be deemed to\nbe protected by the trustees. [867D]\n     In the instant case it is manifest that the position of\nthe  defendants\t  apart,  from\t being\tin   the  nature  of\nconstructive trustees, would be in law the possession of the\nplaintiff. [867E]\n     4.(i) The\tfinding of the District Judge that a planned\nfraud was made to drop the appellant's name from the revenue\nrecords was a clear finding of fact and even if it was wrong\n(though it  is absolutely  correct) it\twas not\t open to the\nHigh Court  to interfere  with the finding of fact in second\nappeal. [868B]\n     4.(ii) The High Court proceeded on the basis that there\nwas nothing  to show  that any\tfraud was practised upon the\nconsolidation authorities so as to make the order a nullity.\nThe High  Court here  completely misunderstood the case made\nout by the plaintiff. [868G]\n     5. The finding of fact of the District Judge that there\nwas no\tevidence on  the record\t to prove that the plaintiff\nwas not\t given any  share out of the produce and, therefore,\nthe conclusion\tthat the  plaintiff should  be deemed  to be\nousted from possession, was binding in second appeal. [868C-\nD]\n     6. The  High Court committed an error of record because\nthe clear  evidence of\tthe appellant  is to the effect that\nshe  was   not\tat  all\t informed  about  the  consolidation\nproceedings and\t was assured  by the  defendants  that\tthey\nwould take  proper care of her share in any proceedings that\nmay be instituted. [868F]\n     7. It  is well  settled that unless there is an express\nprovision in  the statute  barring a  suit on  the basis  of\ntitle, the  courts will\t not easily  infer a  bar of suit to\nestablish the title of the parties. [869B]\n     Suba Singh v. Mahendra Singh and Ors. A.I.R.<\/a> 1974 S. C.\n1657 referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1204 of
\n1978.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  Order
\ndated 5-4-1978\tof the\tAllahabad High Court (Lucknow Bench)
\nin Second Civil Appeal No. 90\/75.\n<\/p>\n
     R. K.  Garg, V.  J. Francis  and Sunil  Kumar  for\t the
\nAppellant.\n<\/p>\n
     Uma Datta,\t Prem  Malhotra\t and  Kishan  Datt  for\t the
\nRespondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     FAZAL ALI,\t J.-How dishonest cousins, looking after the
\nlands of  their brother’s  widow, situated far away from the
\nplace where  the widow was living, taking undue advantage of
\nthe confi-\n<\/p>\n
865<\/span><\/p>\n
dence reposed  in them\tby their  widowed sister-in-law\t and
\nhaving painted\ta rosy\tpicture\t of  honestly  managing\t the
\nproperty and  giving her  due share,  cast covetous  eyes on
\ntheir sister-in-law’s  share and  with a  deplorable design,
\nseek to\t deprive her  of her  legal share and deny her legal
\nrights is  not an uncommon feature of our village life. That
\nthis is\t so is\taptly illustrated  by the facts of this case
\nwhere  the   sister-in-law  was\t  driven  by  the  force  of
\ncircumstances to indulge in a long drawn litigation in order
\nto vindicate  her legal\t rights in wresting her share of the
\nproperty  from\tthe  hands  of\ther  cousins.  This  is\t the
\nunfortunate  story  of\tthe  poor  and\thelpless  appellant,
\nKarbalai Begum,\t who having  failed to\tget justice from the
\nHigh Court of Allahabad was forced to knock the doors of the
\nhighest Court  in the  country and has, therefore, filed the
\npresent appeal in this Court after obtaining special leave.\n<\/p>\n
     In order to understand the facts of the case, it may be
\nnecessary to  give a  short genealogy  of the  parties which
\nwill be\t found in  the judgment of the District Judge and is
\nextracted below:\n<\/p>\n
\t       Mir Tafazzul Hussain
\n\t\t\t |
\n\t\t\t |
\n\t  _______________________________________
\n\t  |\t\t\t\t\t |
\n\t  |\t\t\t\t\t |
\n     Syed Khadin Husain\t\t\tSyed Sadiq Hussain
\n     __________________\t __________________________________
\n\t  |\t\t |\t\t\t  |
\n     Syed Lack Husain\t Mohd. Bashir\t     Modh. Rasheed
\n     (Widow Karbalai\t (Deftd. No. 1)\t  (Widow Smt Shakira
\n     Begum-Plaintiff)\t\t\t   Bano, Defdt No 2)
\n     The appellant Karbalai Begum was the widow of Syed Laek
\nHusain and  defendants\tNo.  1\tand  2\twere  her  husband’s
\ncousins.  The\tadmitted  position  seems  to  be  that\t the
\nplaintiff and the defendants were in joint possession of the
\nplots in  dispute, being  co-bhumidars,\t because  after\t the
\nabolition of  the zamindari  by the  Uttar Pradesh Zamindari
\nAbolition  and\t Land  Reforms\t Act,  1950  the  plaintiff-\n<\/p><\/blockquote>\n
appellant, Mohd.  Bashir and  Mohd. Rasheed became bhumidars
\nof the\tplots in  dispute. It is also not disputed that upto
\n1359 Fasli  both the  parties had  a joint  khewat, as would
\nappear from  the extract  of  the  khewat  produced  by\t the
\nappellant. The plaintiff’s case was that she was living with
\nher sons  at Lucknow  and her husband’s cousins were looking
\nafter the  lands which\tconsisted of  agricultural lands and
\ngroves and  she was given her share by her cousins from time
\nto time.  It was  also alleged\tthat she went to the village
\nfrom time to time and got her share. In her statement before
\nthe trial court, she has clearly stated that the defendants,
\nMohd. Bashir and Mohd. Rasheed used to manage the properties
\nwhich were  joint and used to give her share and assured her
\nthat her  share would be properly looked after and protected
\nby them. Thus,
\n866<\/span>
\nhaving gained  the confidence of the plaintiff the first and
\nthe second  defendants went  on managing  the properties and
\noff and\t on gave her share so that she may not suspect their
\nevil  intentions.  The\tplaintiff  further  alleged  in\t her
\nstatement  that\t  during  the\tconsolidation\tproceedings,
\nseparate plots\twere carved  out and  she was never informed
\nabout any  proceedings by  the defendants  and was under the
\nImpression that\t her share  was being properly looked after.
\nIt was\tonly three  years before the suit that the plaintiff
\ncame to\t know that her name had been deleted from the khewat
\nand the\t entire property was mutated in the consolidation of
\nholding proceedings  in the  name of  the defendants. Hence,
\nthe suit  by the  plaintiff for\t joint possession  over\t the
\nshare.\n<\/p>\n
     The suit  was dismissed  by  the  trial  court  but  on
\nappeal, the  district  judge  decreed  the  suit  for  joint
\npossession in  respect of  Chakbandi plot  Nos. 201  and 274
\nonly. As  regards plot\tNos. 93, 94 and 106 the dismissal of
\nthe plaintiff’s\t suit by  the trial court was upheld. In the
\ninstant\t case,\t therefore,  we\t  are  concerned  only\twith
\nChakbandi plot Nos. 201 and 274. Plot No. 201 was carved out
\nof plot\t Nos. 158,  159, 164,  165, 167,  166, 168, etc. and
\nplot No. 274 was formed out of plot Nos. 267, 268, 272, 273,
\n276, 277, 278, 279 and 280.\n<\/p>\n
     The suit  was contested by the defendants mainly on the
\nground that  the defendants  were in  separate occupation of
\nthe  land   or\tplots  in  dispute  and\t the  plaintiff\t had
\nabsolutely no concern with them. It was further averred that
\nalthough at  some time\tbefore, the  lands in  dispute\twere
\njoint but  during the consolidation proceedings the plots in
\npossession of  the plaintiff  were occupied  by Adhivasi who
\nhaving acquired\t the rights  of a  Sirdar  under  the  Uttar
\nPradesh Zamindari  Abolition and Land Reforms Act, 1950, the
\nplaintiff lost her title by operation of law. The allegation
\nof the plaintiff that the defendants had committed fraud was
\nstoutly denied.\n<\/p>\n
     The learned trial court accepted the allegations of the
\ndefendants and\tdismissed the  case of\tthe  plaintiff.\t The
\nDistrict Judge,\t however, found\t that on  the admitted facts
\neven after the abolition of zamindari, the position was that
\nin 1357 Fasli the plaintiff’s name was clearly recorded as a
\nco-sharer with\tthe defendants\tand continued to be so until
\n1359 Fasli  as would appear from Ex. 2. The learned District
\nJudge further  found that  the name  of\t the  plaintiff\t was
\nsuddenly deleted  after 1359 Fasli and there was no order of
\nany authority or court to show the circumstances under which
\nthe plaintiff’s name was suddenly deleted nor were there any
\njudicial proceedings  under which  the name of the plaintiff
\nas a co-bhumidar was
\n867<\/span>
\ndeleted.  The\tlearned\t District  Judge,  after  a  careful
\nconsideration of the documentary evidence, came to the clear
\nconclusion that\t some sort of fraud must have been committed
\nby Mohd.  Bashir, and  Mohd. Rasheed  when in 1362 Fasli the
\nplots were  entered exclusively\t in the name of Mohd. Bashir
\nand Mohd.  Rasheed. Even  if  no  share\t was  given  to\t the
\nplaintiff by  the defendants,  as the  defendants  were\t co-
\nshares, unless\ta clear\t ouster was  pleaded or\t proved\t the
\npossession of  the defendants  as co-sharers would be deemed
\nin law to be the possession of the plaintiff.\n<\/p>\n
     Another obvious  fact which  emerges from\tthe admitted
\nposition is  that if Mohd. Bashir and Mohd. Rasheed were co-
\nbhumidars with\tthe plaintiff  in the  khewat and  had\talso
\nsirdari tenants\t under them,  how could\t the sirdari tenants
\noccupy the  land  of  one  of  the  co-sharers\tleaving\t the
\ndefendants alone so that the plots were re-allotted to them.
\nIt is  well settled  that mere non-participation in the rent
\nand profits of the land of a co-sharer does not amount to an
\nouster so  as to  give title  by adverse  possession to\t the
\nother co-sharer\t in possession.\t Indeed even if this fact be
\nadmitted, then\tthe legal position would be that Mohd. Basir
\nand Mohd.  Rashid,  being  co-sharers  of  plaintiff,  would
\nbecome constructive  trustees on behalf of the plaintiff and
\nthe right  of the  plaintiff would be deemed to be protected
\nby the\ttrustees. The  learned\tcounsel\t appearing  for\t the
\nrespondent was\tunable to  contest this\t position of law. In
\nthe  present   case,  it  is  therefore\t manifest  that\t the
\npossession of the defendants, apart from being in the nature
\nof constructive\t trustees, would be in law the possession of
\nthe plaintiff.\n<\/p>\n
     Apart from\t this, the  fact remains  that the  District
\nJudge  has   come  to\ta  clear   finding  of\t fact  after
\nconsideration  of  the\tevidence  that\ta  clear  fraud\t was
\ncommitted during  the consolidation  operation either by the
\ndefendants or  by somebody  else as  a result  of which\t the
\nrights of  the plaintiff  were sought to be extinguished. In
\nthis  connection,   the\t learned  District  Judge  found  as
\nfollows:-\n<\/p>\n
\t  “This shows  that a planned fraud was made to drop
\n     the appellant’s  name from the revenue records and full
\n     advantage was  taken of the consolidation operations in
\n     the village  by the  respondents. In  para\t 20  of\t the
\n     written statement,\t paper 31A,  it was  pleaded by\t the
\n     respondents that  they acquired  the suit\tplot through
\n     litigation\t and   the  plaintiff’s\t right\textinguished
\n     during  the  consolidation\t proceedings.  There  is  no
\n     evidence  before\tme  to\t show  that  there  was\t any
\n     litigation\t with  the  subtenants\tand  the  defendants
\n     acquired the plots exclusively. Even
\n868<\/span>
\n     if it  is accepted\t for the  sake of arguments that the
\n     respondents did  obtain the  plots through\t litigation,
\n     even then it cannot be said that the plaintiff’s rights
\n     extinguished.”<\/p><\/blockquote>\n
     This finding  of the learned District Judge was a clear
\nfinding of  fact and  even if  it was  wrong (though  in our
\nopinion it  is absolutely  correct) it\twas not\t open to the
\nHigh Court  to interfere with this finding of fact in second
\nappeal. Furthermore,  the District  Judge at  another  place
\nfound that there was no evidence on the record to prove that
\nthe plaintiff  was not\tgiven any  share out  of the produce
\nand, therefore,\t the conclusion that the plaintiff should be
\ndeemed to  be ousted  from possession,\twas not\t correct. In
\nthis connection, the learned Judge observed as follows:-\n<\/p>\n
\t  “The argument\t advanced by  the  counsel  for\t the
\n     respondents that  there is\t no evidence  on the  record
\n     that the  plaintiff was  given any\t share\tout  of\t the
\n     produce and,  therefore, the plaintiff should be deemed
\n     to be ousted from possession, is fallacious.”<\/p><\/blockquote>\n
     This was  also a  finding of  fact which was binding in
\nsecond appeal.\tThe High  Court seems  to have relied on the
\nfact that  there was no evidence to prove that the plaintiff
\nwas prevented  from filing a petition under s. 9 of the U.P.
\nConsolidation of  Holdings Act,\t 1953 or that the defendants
\nassured the  plaintiff that her name shall be entered in the
\nrecord during  the consolidation proceedings. Here also, the
\nHigh Court  committed an  error of  record because the clear
\nevidence of  PW, Karbalai  Begum, is  to the effect that she
\nwas not\t at all informed about the consolidation proceedings
\nand was\t assured by  the defendants  that  they\t would\ttake
\nproper care  of her  share in  any proceedings\tthat may  be
\ninstituted. This  was accepted\tby the\tDistrict  Judge\t and
\nshould not  have been  interfered with\tby the High Court in
\nsecond appeal.\n<\/p>\n
     The High  Court proceeded\ton the\tbasis that there was
\nnothing to  show that  any  fraud  was\tpractised  upon\t the
\nconsolidation authorities so as to make the order a nullity.
\nHere the  High Court  completely misunderstood the case made
\nout by the plaintiff. It was never the case of the plaintiff
\nthat  any   fraud  was\t committed  on\t the   consolidation
\nauthorities. What  she had  stated in  her plaint and in her
\nevidence was  that the\tdefendants had\tpractised a fraud on
\nher by\tgiving her  an assurance  that her  share  would  be
\nproperly  looked   after  by   them  and  on  this  distinct
\nunderstanding she  had left  the entire\t management  of\t the
\nproperties to  the defendants  who also used to manage them.
\nThe trial court did not fully appreciate this part
\n869<\/span>
\nof the case made out by the plaintiff and the District Judge
\nin clear  terms accepted  the same.  In these circumstances,
\ntherefore, the\tfinding of  the High  Court regarding  fraud
\nhaving been  committed in  the consolidation proceedings was
\nnot legally sound.\n<\/p>\n
     The last  ground on which the High Court non-suited the
\nappellant was  that after  the chakbandi was completed under
\nthe U.P.  Consolidation of Holdings Act, the suit was barred
\nby s.  49 of  the said\tAct. It\t is well settled that unless
\nthere is an express provision barring a suit on the basis of
\ntitle, the  courts will\t not easily  infer a  bar of suit to
\nestablish the  title of\t the  parties.\tIn  Subha  Singh  v.
\nMahendra  Singh\t  &  Ors.  this\t Court\tmade  the  following
\nobservations:-\n<\/p>\n
\t  “It was  thus abundantly clear that an application
\n     for mutation on the basis of inheritance when the cause
\n     of action arose, after the finalisation and publication
\n     of the  scheme under  Section 23,\tis not\ta matter  in
\n     regard to\twhich an  application could  be filed “under
\n     the provisions  of this  Act”  within  the\t meaning  of
\n     clause 2 of Section 49. Thus, the other limb of Section
\n     49, also  is not attracted. The result is that the plea
\n     of\t the  bar  of  the  civil  courts’  jurisdiction  to
\n     investigate and  adjudicate upon  the title to the land
\n     or the sonship of the plaintiff has no substance.”<\/p><\/blockquote>\n
     In view  of the  clear decision of this Court, referred
\nto above,  the High  Court erred  in law in holding that the
\npresent suit  was barred  by s. 49 of the U.P. Consolidation
\nof Holdings Act.\n<\/p>\n
     Thus, the\tgrounds on which the High Court reversed the
\ndecision of  the District  Judge are  not sustainable in law
\nand the\t judgment of  the High\tCourt cannot  be allowed  to
\nstand.\n<\/p>\n
     We, therefore,  allow the appeal with costs throughout,
\nset aside  the\tjudgment  of  the  High\t Court,\t decree\t the
\nplaintiff’s suit  for joint  possession as far as plots Nos.
\n201 and\t 274 are  concerned and\t restore the judgment of the
\nDistrict Judge. The cost allowed by this Court would be set-
\noff against  the sum of Rs. 15,000\/- (fifteen thousand only)
\ndeposited by  the respondents  in the High Court and paid to
\nthe appellant  and  the\t balance  may  be  refunded  to\t the
\nrespondents.\n<\/p>\n
N.K.A.\t\t\t\t\t     Appeal allowed.\n870<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Karbalai Begum vs Mohd. Sayeed And Anr on 7 October, 1980 Equivalent citations: 1981 AIR 77, 1981 SCR (1) 863 Author: S M Fazalali Bench: Fazalali, Syed Murtaza 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-2695","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKarbalai Begum vs Mohd. 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