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

2. 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 is the son of Mst. Ramrati and the grandson of Ram Adhare. After the death of Ram Adhare, the defendants-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 Adhere. Relief for possession of the properties was also claimed. As she died during the pendency of the suit, the appellant before us, Kailash Rai, got himself substituted as heir-son of Ramrati. On May 16, 1947, the Additional Civil Judge decreed the appellants claim. On June 13, 1947, the plaintiff obtained dakhal dahani through Court. The respondents, who are defendants in the said suit, filed an appeal in the High Court which was dismissed on March 18, 1952.3. On July 1, 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 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 S. 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 Allahabad 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 questionthe defendants-appellants were in exclusive possession of the khudkasht and sir plots in dispute and if so, since whenDistrict 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, 1956, allowed the defendants appeal and dismissed the plaintiffs 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.

Reasoning:
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.