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 9075
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   _______________________________________     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 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 exhibit 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 section 9 of the UP 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 UP Consolidation of Holdings Act the suit was barred by section 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 vs 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 section 49 of the UP 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 15000 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
NKA Appeal allowed


Summary:
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 4i 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 4ii 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 vs Mahendra Singh and Ors
AIR 1974 section C 1657 referred to