KAILASH RAL versus JAI JAI RAM & OTHERS

KAILASH RAl

JAi JAi R.AM & OTHERS

January 22, 1973

(I. D. DUA AND C. A. VAIDIAL!NGAM, JJ.]

!J.P. Zamindari A.bolitio11 and Land Reforms A.ct, 1950, s. 18(1)-

(a)-'PosseS<ion', 'held', 'deemed to be held', meaning of.

The appellant filed suit against the respondents for his share in certain property and the decree in the suit recognised his right as co·sharer along with the respondents. After the U. P. Zamindari Abolition and Land Reforms Act, 1950, came 'into force the appellant filed suit for division of the holdings on the ground that all the plots were joint bhumidhari and that his share should be separated. The resJ><1Ddents contested the claim on the ground that they alone had bhumidbari rights in the properti.S. The trial court dismissed the suit. The first appellate court upheld the appellant's claim under s.18(1) (a) of the Act and decreed the suit. In second appeal, the High Court called for finding from the first appellate court and the first. appellate court submitted its finding that the respondents were in exclusive possession of the khudkasht and sir plots in dispute. Accepthng the finding, the High Court allowed the appeal and dismissed the suit.

Allowing the appeal to this Court,

HELD: (I) Under s. lS(l)(a) all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or en inter-mediary's grove on 30th June, 1952, shall he deemed to be settled by the State Gove\tmnent with such intermediary. Tho said intermediary is entitled to take or retain possession as bhumidhar. In order to claim the rights under the clause it is necessary th1lt the lands should be (a) in possessi'on of an intermediary as K.hudkasht or sir, or (b) held by an intermediary as khudkasht or sir, or (c) deemed to be held by an intermediary as Khuclkasht or sir. Khudkasht means land other than sir cultivated by Iandlprd either by himself or by servants or by hired labour. [4150-f]

(2) In law, the possession of one co-sharer is possession botb on his behalf as well as on behalf of all the other oo-sharers, unless ouster is pleaded and established. In this case, the finding is that the respondents had not raised the plea of ouster, and there is IJlO indication in the Act or the U.P. Tenancy Act, 1939, that bhumidhari rights are not intended to be conferred on all the co-•harers or co-proprietors who are entitled to the pro~rties, though only some of them may be in actual cultivation. [416A-C] ( 3) Even when one cc>-sharer is in possession of the land the other co-s}Jarers must be considered to b.e in CQMtructive possession of the land. The expression 'possession' in s.18(1)(a) takes in not only actual physical possession but also constructive possession that person has in law. [416C·E] (4) Section lS(l)(a) takes in two other contingencies, namely, lands held as khudkasbt or lands deemed to be beld as khudkasht. Enn assuming that in view of the finding submitted by the first appellate court that the respondents were in possession, and on that basis, the appellant could not be considered to be also in possession nevertheleSI tho lands and could be considered to be held or deemed to be held by th~ appellant also. If the expression 'held' occurring in cl. (a) means 11-4.796Sup.C.l./73

H2 SUPREME COURT REPORTS

actual possession then the same mcairring must be given to the same word occurring in (b) also. But, in the latter part of cl. (b) the Legislature has used the exprcssiun 'personal cultivation' with reference to Avadh, whereas it has not used any such cxprenion in the first part of cl. (b). Therefore, the expression 'held' must have meaning different from' pcrsoinat cultivation;' and can only taken to .connote the existence of right or title in person~ and the appellant's right and title as holder of the lands had already been declared. It can also b.e held that the lands can be considered to be 'deemed to be held'. by the appellant. The expression 'deemed to be held' has been used by the Legislature to treat persons like the appellaint bhumldhars by creating fiction. [417A-DJ

Budhan Singh & A"'· v. Nabi Bux & f!nr., [1970] 2 S.C.R. 10 followed.

Rania Kant Singh and others v. Deputy Director of Consolidation and others, A. I. R. 1966 All. 172 over ruled.

(5) It was not necessary for the appellant to file an appeal against the order of the High Court calling for a. finding from the first appellate court. That order was passed at an intermediary stage and the appellant was justified In waiting for the final decision of the High Court.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1229 of 1967.

Appeal by special leave from the judgment and order dated September 19, 1966 of the Allahabad High Court in Second Appeal No. 397 of 1966.

I. P. Goyal and G. S. Chatter;ee, for llhe appellant.

S. K. Bagga, S. Bagga and M. Veerappa, for respondent No. 3.

The Judgment of the Court was delivered by.

VAIDIALINOAM, J. The question that arises for consideration in this appeal, by special leave, relates to the proper interpretation to be placed on section 18, sub-section 1, clause (a) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) hereinafter referred to as the Abolition Act.

In order to appreciate the claim of the plaintiff based upon the proVision quoted above, it is necessary to set out the pedigree which is as follows :-

It will be noted from the above pedigree that the plaintiff in the son of Ms. Ramrati and the grandson of Ram Adhare. After the death of Ram Adhare, the defendents-respondents got their names rocorded over the properties on the allegation that Ram Adhare was member of joint family with them. Mst. Ramrati, mother of the appellant, filed suit No. 918 of 1945 in the court of Civil Judge for declaration that she was entitled to the prope1;ty in-herited from her father, Ram Adharc. Relief for possession of the properties was also claimed. As she died during the pen-dency of the suit, the appellant before us, Kailash Rai, got himself substituted as heirson of Ramrati. On May 16, 194 7, the Addi-tional Civil Judge decreed the appellant's claim. On June 13, 1947, the plaintiff obtained dakhaldahani through court. The respondents, who are defendants in the said suit, filed an appeal in the High Court which was dismissed on March 18, 1952.On July l, 1952, the Abolition Act came into force. The appellant filed suit No. 1132 of 1953 in the court of the Munsif. Gorakhpur for the division of the holdings on the ground that all the plots were joint bhumidhari and that his one-fourth share should be separated. The defendants contested the claim on the ground that they alone have got bhumidhari rights in the pro--perties and the plaintiff has no right, title or interest. The learned Munsif accepting the defence dismissed the suit. On appeal by Kailash Rai, the learned District Judge of Gorakhpur upheld his claim under section 18(1) (a) and decreed his suit, thus reversing the judgment of the trial court. The defendants carried the matter in Second Appeal No. 397 of 1956 to the Allahbad High Court. In the first instance, the High Court by its order dated July 27, 1965, called for finding from the District Court on the following question:-F ''Whether the defendant-appellant were in exclusive possession of the khudkasht and sir plots in dispute and if so, since when ?"

The District Court submitted i•q finding to the effect that the de-fendants were in exclusive possession of the khudkasht and sir plot~ in dispute since 1947. The High Court accepted the finding; and by its judgment and order dated September 19, 1966, allowed the defendants' appeal and dismissed the plaintiff's suit on the ground that he was not in cultivatory possession of the plots in dispute. This appeal is against the said judgment of the High Court.

The contention of Mr. J. P. Goyal, learned counsel for the appellant, is that as the plaintiff and the defendants were admitted-ly co-sharers and the appellant's right, title and interest have been declared in suit No. 918 of 1945, the possession by the defen-

dants, who are some of the co-sharers, is, in the eye of law, posses-sion for and on behalf of the appellant also. If so, the appellant is person, who is in possession of the lands as khudkasht. In any event, the Jands must be considered to be held or deemed to be held' by the appellant as khudkasht so as to attract section 18 ( 1 ) -(a) of the Abolition Act. His further contention is that suit No. 1132 of 1953 out of which these proceedings arise, is really suit under section 176 of the Abolition Act for partition of the bhumidhari rights 1as between the co-sharers.

Mr. S. K. Bagga, learned counsel for the defendants, urged that the appellant should have really filed an appeal against the order of the High Court dated July 27, 1965, in and by which .it called for finding regarding the possession of the properties. Not hav·· ing challenged that order, the counsel ursed, it is longer open to the appellant to challenge the final order of the High Court ac-cepting the finding submitted by the District Court. The counsel further contended that the decision of the High Court is in accor-dance with the view held in previous decision reported in Rama Kant Singh and others v. Deputy Director of Consolidation and others('). When Uie defendants have been found to be in culti-vatory possession of the. properties, the view of the High Court negativing the appellant"s claim is, according to Mr. Bagga, fully justified.

This will be the convenient stage to. refer to the material pro-visions of the Abolition Act. Section 3 defines the various expres-sions. In clause 26, it is provided that certain other eitpressions referred to therein, including khudkasht and sir, shall have the meaning assigned to them in the United Provinces Tenancy Act, 1939 (hereinafter referred to as the Tenancy Act). Section 3(9) of the Tenancy Act defines khudkasht as "land other than sir culti-•akd by landlard, and under-proprietor or permanent tenure-holder as 1>UCh either himself or by servants or by hired labour". Sir is defined in section 6 occurring in chapter II of the Tenancy Act. Section 4 of the Abolition Act provides for vesting of estates from date to be specified by notification. Section 18 ( 1) of the Abolition Act, which is relevant for our purpose, runs as follows:-"18. Settlement of certain lands with intermediaries or cultivators as bhumidhars-(1) $Ubject to the pro-visions of sections 10, 15, 16 and 17, all lands-

(a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an inter-mediary's grove,

(b) held as grove by, or in the personal cultiva-tion of permanent lessee in Avadh,

-~~~~~~--:

( c) held by fixed-rate tenant or rentfree grantee as such, or

( e) held by grove-holder,

,on the date immediately preceding t!ie date of vesting shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the pro-c visions of this Act, be entitled to take or retain posses-sion as bhumidhar thereof." • • * • * ,._

There is no controversy that the date of vesting is 1-7-1952 and the date immediately preceding the date of vesting is 30-6--D 1952. Under section 18(l)(a), broadly speaking, it will be seen, all lands in possession of, or held, or deemed to be held by an in-termediary as sir, khudkasht or an intermediary's grove on 30-6-1952, shall be deemed to be settled by the State Government with such intermediary. The said intermediary is entitled to take or retain possession as bhumidar subjei:t to the provisions of the Abolition Act. In order to claim rights under clause (a), it is nece!isary that the lands should be (1 ) in possession of an inter-mediary as khudkanst or sir or ( 2) held by an intermediary as khudkasht or sir or ( 3) deemed to be held by an intermediary as :l::hudkasht or sir. If any one of these alternatives is established, clause (a J, will stand attracted. Khudkasht, as We have already pointed out, means land, other than sir cultivated landlord 'either by himself or by servants or by hired Jabour.

The question is whether the appellant can be considered to be in "possession" of the lands as khudkasht or whether it can be considered that the lands are "held or deemed to be held by him" as khudkasht. The finding sent by the District Court is no doubt prima-facie against the appellant. But we cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. According to the High ~ourt, as possession is with the defendants, the plaintiff-appellant cannot get any relief.

It should be remembered that the District Court has recorded definite finding that the defendants have not set up any plea of ouster. This finding, so far as we would see, has not been disturb-ed by the High Court. The decree in suit No. 918 of 1045 clearly

recognises the right of the appellant as co-sharer along with the defendants. In law the possession of one co-sharer is posession both on his behalf as well as on behalf of all the other co-sharers.. unless ouster is pleaded and established. In this case, as pointed! out by us earlier, the finding is that the defendants have not raised'. the plea of ouster. There is no indication in the Abolition Act or the Tenancy Act that bhumidari rights are not intended to be con-ferred on all the co-sharers or co-proprietors, who are entitled to the properties, though only some of them may be in actual culti-vation. One can very we!l visualise family consisting of father and two sons, both of whom are minors. Normally, the cultiva-tion will be done only by the father. Does it mean that when the father is found to be cultivating the land on 30-6-1952, he alone i~ entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights ? In our opinion. the normal principal that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to· be in constructive possession of the land. The expression 'posses-sion' in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that person has in law. If so, when the defendants were in possession of t11e lands and when no plea of ouster had been raised or established, such posses&on is also on behalf of the plaintiff-appellant. Under such c$'c11m.stances, the lands can be considered to be the possession of the appellant or, at any rate, in his constructive possession.

Clause (a), as we have pointed out, takes in two other conti-gencies also, namely, lands held as khudkasht or lands deemed to be held as khndkasht. Evea assuming that, in view of the finding of the District Court, the defendants are in possession and on that 'basis the plaintiff cannot be considered to be also in possession, nevertheless, tlie lands in question can be considered to be held or deemed to be held by the appellant also. The expression 'held' occurs in section 9 of ilie Abolition Act. In interpreting the said expression, this court in Budhan Singh & Anr. v. Nabi "Bux & nr. ([1 ]) has held tliat it means 'lawfully held'. This court has further observed that-·

"According to Webster's New Twentieth Century l[)ictionary tl!e word 'held' is technically understood to mean to possess by lep;al title. Therefore by interpret-ing the word 'held' as 'lawfully held' tliere was no addi-tion of any word to tlie section. According to tlie words of s. 9 and in tl!e context of ilie scheme of the Act it is proocr to construe tl!e word 'held' in the section as !lawfully held'."

Mr. Bagga, however, contended that the expression 'held' in clause (a) denotes actual possession. As the fincling on that point is against. the appellant, the lands cannot be considered to be 'held' by him. We are not inclined to accept this contention. In clause ( b) occurs tho words 'held' as grow by'. If the expression 'held' occuring in clause (a) means actual possession, then the same meaning must be given to the same word occurring in clause (b) also. But it will be seen that in the latter part of clause (b), the leplature has used the expression 'personal cultivation' with re-ference to vadh, whereas it has not used any such expression in tho first part of clause (b). Therefore, the expression 'held' must have meaning different from personal cultivation. In our opinion, the expression 'held' can only be taken to connote the existence of right or title in person. The appellant's right and title as holder of tlie lands has been declared and settled in suit No. 918 of 1945. It can also be held that the lands can be considered to be 'deemed to be held' by the appellant. The expression 'deemed to be beid' has been used by the legislature to treat persons like tho appellant bhumidhars by creating fiction.

We cannot accept the contention of Mr. Bagga that tho appel-lant should have challenged the order of the High Court dated July 27, 1965, calling for finding from the first appellants court. That order was passed at an intermediary stage and the. appellant was justified in waiting for the final decision of the High Court to be i:iven. ·

It is now necessary to consider tho decision of the Allahabad High CoUrt in Rama Kant Singh and other.s v. Deputy Director of Consolidation and others(') following which the present decision under appeal has been rendered. It is no doubt true that the ~aid decision does support the respondents in the sense that it holds that only that co-proprietor who is in cultivatory possession, becomes k.hudkasht holder and that possession over proprietary rights by il.!elf does not confer khudkasht flolder's rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which alone will attract clause (a) of section 18(1). There is no .:onsi-dcration in the said decision of the various aspects referred to by us and we are not inclined to agree with the view taken by the High Court in the said decision.

In the result, the judgment and order of the High Court under appeal are s~t as!d? and the decision of . the District Judge, Gorakhpur, m Civil Appeal No. 494 of 1955 will stand restored. There will be no order as to c_osts in this appeal.

(I) A.l.R. 1966 All. 172.