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PETITIONER: KAILASH RAI

       Vs.

RESPONDENT: JAI JAI RAM & OTHERS

DATE OF JUDGMENT22/01/1973

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. DUA, I.D.

CITATION:  1973 AIR  893            1973 SCR  (3) 411  1973 SCC  (1) 527  CITATOR INFO :  RF         1975 SC2295  (11)  RF         1991 SC 663  (3,11)

ACT: U.P.  Zamindari  Abolition and Land Reforms  Act,  1950,  s. 18(1)(a)-’Possession’, ’held’, ’deemed to be held’,  meaning of.

HEADNOTE: The  appellant filed a suit against the respondents for  his sham  in  certain  property  and  the  decree  in  the  suit recognised   his  right  as  a  co-sharer  along  with   the respondents.   After the U. P. Zamindari Abolition and  Land Reforms  Act,  1950, came into force the appellant  filed  a suit for division of the holdings on the ground that all the plots  were  joint bhumidhari and that his share  should  be separated.   The  respondents  contested the  claim  on  the ground  that  they  alone  had  bhumidhari  rights  in   the properties.  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 a finding from the  first appellate court and the first appellate court submitted  its finding that the respondents word in exclusive possession of the  khudkasht  and  sir plots in  dispute.   Accepting  the finding, the High Court allowed the appeal and dismissed the suit. Allowing the appeal to this Court, HELD : (1) Under s. 18(1)(a) all lands in possession of,  or held,  or  deemed  to be held by  an  intermediary  as  sir, khudkasht  or  an intermediary’s grove on 30th  June,  1952, shall  he deemed to be settled by the State Government  with such  intermediary.   The said intermediary is  entitled  to take  or retain possession as bhumidhar.  In order to  claim the  rights under the clause it is necessary that the  lands should be (a) in possession of an intermediary as  Khudkasht or sir, or (b) held by an intermediary as khudkasht or  sir, or (c) deemed to be held by an intermediary as Khudkasht  or sir.   Khudkasht means land other than sir cultivated  by  a landlord  either  by  himself or by  servants  or  by  hired labour. [415D-F] (2)  In  law, the possession of one co-sharer is  possession

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both on his behalf as well as on behalf of all the other co- 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 no indication in the Act or the U.P.  Tenancy  Act,  1939, that bhumidhari  rights  are  not intended  to  be  conferred on all  the  co-sharers  or  co- proprietors who are entitled to the properties, though  only some of them may be in actual cultivation. [416A-C] (3)  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 ’Possession’  in  s.  18(1)(a)  takes  in  not  only  actual physical possession but also constructive possession that  a person has in law. [416C-E] (4)  Section  18(1)(a)  takes in  two  other  contingencies, namely,  lands held as khudkasht or lands deemed to be  held as  khudkasht.   Even 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,  nevertheless, the lands and could be considered to be held or deemed to be held  by  the  appellant also.   If  the  expression  ’held’ occurring in cl. (a) means 11-L796Sup.C.I./73 412 actual possession then the same meaning must be given to the same word occurring in (b) also.  But, in the latter part of cl.  (b) the Legislature has used the  expression  ’personal cultivation’  with  reference to Avadh, whereas it  has  not used  any  such  expression in the first part  of  cl.  (b). Therefore,  the  expression  ’held’  must  have  a   meaning different from’ personal cultivation;’ and can only taken to connote  the existence of a right or title in a person;  and the appellant’s right and title as holder of the lands  had already been declared. It   canalso  be  held  that  the lands can be considered to be ’deemed to beheld’  by   the appellant. The expression ’deemed to be held’ has beenused by  the  Legislature  to treat persons  like  the  appellant bhumidharsby   creating a fiction. [417A-D] Budhan Singh & Anr. v. Nabi Bux & Anr., [1970] 2 S..C.R.  10 followed. Rama   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.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1229  of 1967. Appeal by a special leave from the judgment and order  dated September  19,  1966 of the Allahabad High Court  in  Second Appeal No. 397 of 1966. J.   P. Goyal and G. S. Chatterjee, for the appellant. S.   K. Bagga, S. Bagga and M. Veerappa, for respondent  No. 3. The Judgment of the Court was delivered by. VAIDIALINGAM, 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,

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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 :-                            Baijnath Ram Prasad        Bishnudat        Hanuman        Manudat chirkut           Balkaran         Chulai         Canri                              = Mst. RetrajiI Ganpat             Ram Adhare        - - - - - - - - - - - - (Defdts-Respt)   =Mst. Pharamdei    Pateshari     Jaijai Ram                                      (Defdts-Respdts)                    Mst.Ramrati                      Kailash                    (Piff-Applt.) 413 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  recorded  over  the  properties  on   the allegation  that Ram Adhare was a member of a  joint  family with  them.  Mst.  Ramrati, mother of the  appellant,  filed suit  No.  918  of 1945 in the court of Civil  Judge  for  a declaration that she was entitled to the property  inherited from  her father, Ram Adhare.  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, 1947, the  Additional 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  1, 1952, the Abolition Act came into  force.   The appellant  filed suit No. 11 32 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 properties 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 a finding from the  District Court on the following question               "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 its finding to the effect  that the defendants were in exclusive possession of the khudkasht and  sir  plots  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 ,,round 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 admiitted IV co-sharers and the appellant’s right, title and interest  have  been declared in suit No. 918 of  1945,  the

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possession by the defen- 414 dants,  who  are some of the co-sharers, is, in the  eye  of law, possession for and on behalf of the appellant also.  If so,  the appellant is a person, who is in possession of  the lands  as  khudkasht.   In  any event,  the  lands  must  be considered to be held or deemed to be held by the  appellant as  khudkasht so as to attract section 1 8 ( 1 ) (a) of  the Abolition Act.  His further contention is that suit No. 1132 of  1953 out of which these proceedings arise, is  really  a suit under section 176 of the Abolition Act for partition of the bhumidhari rights as 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  a  finding regarding  the possession  of the properties.  Not having  challenged  that order, the counsel ursed, it is longer open to the appellant to challenge the final order of the High Court accepting the finding  submitted  by  the  District  Court.   The  counsel further contended that the decision of the High Court is  in accordance  with  the  view  held  in  a  previous  decision reported in Rama Kant Singh and others v. Deputy Director of Consolidation and others(1).  When the defendants have  been found  to be in cultivatory 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 provisions  of  the Abolition Act.  Section  3  defines  the various  expressions.   In clause 26, it  is  provided  that certain  other  expressions 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- vated  by  a landlard, and under-proprietor or  a  permanent tenure-holder  as such either himself or by servants  or  by hired  labour".   Sir is defined in section 6  occurring  in chapter  11 of the Tenancy Act.  Section 4 of the  Abolition Act  provides  for  vesting of estates. from a  date  to  be specified by notification.  Section 1 8 (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) subject to the provisions 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 intermediary’s grove,               (b)   held  as a grove by, or in the  personal               cultivation of a permanent lessee in Avadh. (1) A.I.R. 1966 All. 173 415 (c), held by a fixed-rate tenant or a rentfree grantee as such, or (d)  held as such by- (i)  an occupany tenant,         Possessing the right to (ii) a hereditary tenant,        transfer the holding by (iii)     a tenant on patta      sale. dawami or istaim rari referred to in section 17. (e) held by a grove holder, .lm15         on  the  date  immediately  preceding  the  date  of vesting  shall  be  deemed  to  be  settled  by  the   State Government  with such intermediary, lessee, tenant,  grantee

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or  grove-holder, as the case may be, who shall, subject  to the  provisions of this Act, be entitled to take  or  retain possession 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 30-6-1952.   Under section 18 (1) (a), broadly speaking,  it will be seen, all lands in possession of, or held, or deemed to  be  held  by an intermediary as  sir,  khudkasht  or  an intermediary’s  grove  on 30-61952, 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 subject to the provisions of the Abolition  Act. In  order to claim rights under clause (a), it is  necessary 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  khudkasht  or sir.  If any  one  of  these alternatives   is  established,  clause  (a),   will   stand attracted.  Khudkasht, as we have already pointed out, means land,  other  than  sir cultivated  a  landlord  ’either  by himself or by servants or by hired labour. 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 Court, as possession  is with the defendants, the plaintiff-appellant cannot get  any relief. It should be remembered that the District Court has recorded a  definite finding that the defendants have not set up  any plea  of ouster.  This finding, so far as we would see,  has not  been disturbed by the High Court.  The decree  in  suit No. 918 of 1945 clearly 416 recognises  the right of the appellant as a co-sharer  along with the defendants.  In law the possession of one co-sharer is possession 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 conferred  on all the co-sharers or co-proprietors, who  are entitled to the properties, though only some of them may  be in actual cultivation.  One can very well visualise a family consisting of father and two sons, both of whom are  minors. Normally,  the cultivation 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  is  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 ’possession’ in clause (a),  in our  opinion, takes in not only actual physical  possession, but  also constructive possession that a person has in  law. If  so, when the defendants were in possession of the  lands and  when no plea of ouster had been raised or  established, such  possession  is  also  on  behalf  of  the   plaintiff-

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appellant.   Under  such  circumstances, 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 contingencies also, namely, lands held as khudkasht or lands deemed to be held as khudkasht.  Even 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, the 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 the Abolition Act.  In interpreting  the  said expression,  this court in Budhan Singh & Anr. v. Nab Bux  & Anr. (1) has held that it means ’lawfully held’.  This court has further observed that-               "According to Webster’s New Twentieth  Century               Dictionary  the  word  ’held’  is  technically               understood to mean to possess by legal  title.               Therefore  by interpreting the word ’held’  as               ’lawfully  held’ there was no addition of  any               word  to the section.  According to the  words               of  s. 9 and in the context of the  scheme  of               the  Act It is, proper to construe  the  ’word               ’held’ in the section as ’lawfully held’." (1)  [1970] 2 S.C.R. 10. 417 Mr. Bagga, however, contended that the expression ’held’  in clause  (a)  denotes actual possession.  As the  finding  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  the  words ’held’ as a grow by’.  If the expression ’held’ occurring 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   legislature   has  used   the   expression   ’personal cultivation with reference to Avadh, whereas it has not used any  such  expression  in  the first  part  of  clause  (b). Therefore,  the  expression  ’held’  must  have  a   meaning different  from personal cultivation.  In our  opinion,  the expression ’held’ can only be taken to connote the existence of a right or title in a person.  The appellant’s right  and title  as holder of the 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 held’ has been used by  the  legislature  to treat persons  like  the  appellant bhumidhars by creating a fiction. We cannot accept the contention of Mr. Bagga that the appel- lant  should  have challenged the order of  the  High  Court dated July     27,  1965,  calling for a  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 given. It  is  now  necessary  to  consider  the  decision  of  the Allahabad High Court in Rama Kant Singh and others v. Deputy Director of Consolidation and others(1) following which  the present decision    under appeal has been rendered. It is no doubt   true  that  the  said  decision  does  support   the respondents  in the sense that it holds that only  that  co- proprietor   who  is  in  cultivatory  possession,   becomes khudkasht holder and that possession over proprietary rights by  itself  does not confer khudkasht holder’s  rights.  The said   decision,  we  find,  has  laid  undue  emphasis   on

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cultivatory possession, which alone will attract clause  (a) of  section  18(1). There is no consideration  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 set aside land the decision of the District Judge, Gorakhpur, in Civil Appeal No. 494 of 1955 will stand restored. There will be no order as to costs in this appeal. V.P.S. (1)  A.I.R. 1966 All. 172. 418