Case: Karbalai Begum Vs. Mohd. Sayeed and Another

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 extractedTafazzul Hussain||| || |Syed Khadin Husain Syed Sadiq Hussain| | |Syed Lack Husain Mohd. Bashir Modh. Rasheed(Widow Karbalai (Deftd. No. 1) (Widow SmtBano, Defdt Noappellant Karbalai Begum was the widow of Syed Laek Husain and defendants No. 1 and 2 were her husbands cousins. The admitted position seems to be that the plaintiff and the defendants were in joint possession of the plots in dispute, beingbecause 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 husbands 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, 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 ma y 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 plaintiffs suit by the trial court was upheld. In the instant case, therefore, we are concerned only with Chakbandi plot Nos. 2 01 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 andlearned 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 plaintiffs name was clearly recorded as awith 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 plaintiffs name was suddenly deleted nor were there any judicial proceedings under which the name of the plaintiff as awas 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 wereunless a clear ouster was pleaded or proved the possession of the defendants aswould be deemed in law to be the possession of the plaintiff.Another obvious fact which emerges from the admitted position is t hat if Mohd. Bashir and Mohd. Rasheed were cobhumidars with the plaintiff in the khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of theleaving the defendants alone so that t he plots were

Reasoning: It is well settled that merein the rent and profits of the land of adoes not amount to an ouster so as to give title by adverse possession to the otherin possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Basir and Mohd. Rashid, beingof 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 thefrom 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 befinding 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 notwas also a finding o f 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 secondHigh 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 thewas never the case of the plaintiff that any fraud was committed on the consolidationshe 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 defendant s who also used to manage them. The trial court did not fully appreciate this part 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 Courtthe 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 theview 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 Holdingsthe 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.