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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

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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

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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                          |                          |           _______________________________________           |                                      |           |                                      |      Syed Khadin Husain                 Syed Sadiq Hussain      __________________  __________________________________           |              |                        |      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

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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

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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

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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