Case: Kailash Rai Vs. Jai Jai Ram &amp; Others

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.9. 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 could see has not been disturbed by the High Court. The decree in suit No. 918 of 1945 clearly 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 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. 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 principle 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-appellant. Under such circumstances, the lands can be considered to be in the possession of the appellant or, at any rate, in his constructive possession.10.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 S. 9 of the Abolition Act. In interpreting the said expression, this Court in Budhan Singh v. Nabi Bux, (1970) 2 SCR 10 = (AIR 1970 SC 1880 ) has held that it means lawfully held. This Court has further observed that -"According to Websters New Twentieth Century Dictionary the word hold 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."11. 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 grove 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 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 clause (b). Therefore, the expression held must have a meaning different from personal cultiviation. In our opinion the expression held can only be taken to connote the existence of a right or title in a person. The appellants 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.12. We cannot accept the contention of Mr. Bagga that the appellant should have challenged the order of the High Court dated July 27, 1965, calling for a finding from the first appellate Court. That other was passed at an intermediary stage and the appellant was justified in waiting for the final decision of the High Court to be given.13. It is now necessary to consider the decision of the Allahabad High Court in AIR 1966 All 173 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 holders rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which alone will attract clause (a) of S. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our opinion, the normal principle 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-appellant. Under such circumstances, the lands can be considered to be in the possession of the appellant or, at any rate, in his constructive possession.10.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 appellantare not inclined to accept this contention. In clause (b) occurs the words held as a grove 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 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 clause (b). Therefore, the expression held must have a meaning different from personal cultiviation. In our opinion the expression held can only be taken to connote the existence of a right or title in a person. The appellants 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.12. We cannot accept the contention of Mr. Bagga that the appellant should have challenged the order of the High Court dated July 27, 1965, calling for a finding from the first appellate Court. That other was passed at an intermediary stage and the appellant was justified in waiting for the final decision of the High Court to be given.13. It is now necessary to consider the decision of the Allahabad High Court in AIR 1966 All 173  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 holders rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which alone will attract clause (a) of S. 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 saidfinding 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, thecannot get any relief.