Kailash Rai vs Jai Jai Ram & Others on 22 January, 1973 Equivalent citations: 1973 AIR 893, 1973 SCR (3) 411, AIR 1973 SUPREME COURT 893, 1973 (1) SCC 527, 1973 SCD 318, 1973 3 SCR 411 PETITIONER: KAILASH RAI Vs. RESPONDENT: JAI JAI RAM & OTHERS DATE OF JUDGMENT22/01/1973 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. DUA, I.D. CITATION: 1973 AIR 893 1973 SCR (3) 411 1973 SCC (1) 527 CITATOR INFO : RF 1975 SC2295 (11) RF 1991 SC 663 (3,11) ACT: U.P. Zamindari Abolition and Land Reforms Act, 1950, s. 18(1)(a)-'Possession', 'held', 'deemed to be held', meaning of. HEADNOTE: The appellant filed a suit against the respondents for his sham in certain property and the decree in the suit recognised his right as a co-sharer along with the respondents. After the U. P. Zamindari Abolition and Land Reforms Act, 1950, came into force the appellant filed a suit for division of the holdings on the ground that all the plots were joint bhumidhari and that his share should be separated. The respondents contested the claim on the ground that they alone had bhumidhari rights in the properties. The trial court dismissed the suit. The first appellate court upheld the appellant's claim under s.,18(1)(a) of the Act and decreed the suit. In second appeal, the High Court called for a finding from the first appellate court and the first appellate court submitted its Kailash Rai vs Jai Jai Ram & Others on 22 January, 1973  1 finding that the respondents word in exclusive possession of the khudkasht and sir plots in dispute. Accepting the finding, the High Court allowed the appeal and dismissed the suit. Allowing the appeal to this Court, HELD : (1) Under s. 18(1)(a) all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove on 30th June, 1952, shall he deemed to be settled by the State Government with such intermediary. The said intermediary is entitled to take or retain possession as bhumidhar. In order to claim the rights under the clause it is necessary that the lands should be (a) in possession of an intermediary as Khudkasht or sir, or (b) held by an intermediary as khudkasht or sir, or (c) deemed to be held by an intermediary as Khudkasht or sir. Khudkasht means land other than sir cultivated by a landlord either by himself or by servants or by hired labour. [415D-F] (2) 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, the finding is that the respondents had not raised the plea of ouster, and there is no indication in the Act or the U.P. Tenancy Act, 1939, 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. [416A-C] (3) 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 s. 18(1)(a) takes in not only actual physical possession but also constructive possession that a person has in law. [416C-E] (4) Section 18(1)(a) takes in two other contingencies, namely, lands held as khudkasht or lands deemed to be held as khudkasht. Even assuming that in view of the finding submitted by the first appellate court that the respondents were in possession, and on that basis, the appellant could not be considered to be also in possession, nevertheless, the lands and could be considered to be held or deemed to be held by the appellant also. If the expression 'held' occurring in cl. (a) means 11-L796Sup.C.I./73 412 actual possession then the same meaning must be given to the same word occurring in (b) also. But, 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 cl. (b). Therefore, the expression 'held' must have a meaning different from' personal cultivation;' and can only taken to connote the existence of a right or title in a person; and the appellant's right and title as holder of the lands had Kailash Rai vs Jai Jai Ram & Others on 22 January, 1973  2 already been declared. It canalso be held that the lands can be considered to be 'deemed to beheld' by the appellant. The expression 'deemed to be held' has beenused by the Legislature to treat persons like the appellant bhumidharsby creating a fiction. [417A-D] Budhan Singh & Anr. v. Nabi Bux & Anr., [1970] 2 S..C.R. 10 followed. Rama Kant Singh and others v. Deputy Director of Consolidation and others, A.I.R. 1966 All. 172 over ruled. (5)It was not necessary for the appellant to file an appeal against the order of the High Court calling for a finding from the first appellate court. That order was passed at an intermediary stage and the appellant was justified in waiting for the final decision of the High Court. JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1229 of 1967. Appeal by a special leave from the judgment and order dated September 19, 1966 of the Allahabad High Court in Second Appeal No. 397 of 1966. J. P. Goyal and G. S. Chatterjee, for the appellant. S. K. Bagga, S. Bagga and M. Veerappa, for respondent No. 3. The Judgment of the Court was delivered by. VAIDIALINGAM, J. The question that arises for consideration in this appeal, by special leave, relates to the proper interpretation to be placed on section 18, sub-section 1, clause (a) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951 ) hereinafter. referred to as the Abolition Act. 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 :- Baijnath Ram Prasad Bishnudat Hanuman Manudat chirkut Balkaran Chulai Canri = Mst. RetrajiI Ganpat Ram Adhare - - - - - - - - - - - - (Defdts-Respt) =Mst. Pharamdei Pateshari Jaijai Ram (Defdts-Respdts) Mst.Ramrati Kailash (Piff-Applt.) It will be noted from the, above pedigree that the plaintiff in the son of Ms. Ramrati and the grandson of Ram Adhare. After the death of Ram Adhare, the defendents 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 Adhare. Relief for possession of the properties was also claimed. As she died during Kailash Rai vs Jai Jai Ram & Others on 22 January, 1973  3 the pen- dency of the suit, the appellant before us, Kailash Rai, got himself substituted as heirson of Ramrati. On May 16, 1947, the Additional Civil Judge decreed the appellant's claim. On June 13, 1947, the plaintiff obtained dakhaldahani 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. On July 1, 1952, the Abolition Act came into force. The appellant filed suit No. 11 32 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 section 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 Allahbad 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 question "Whether the defendant-appellant were in exclusive possession of the khudkasht and sir plots in dispute and if so, since when The District 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, 1966, allowed the defendants' appeal and dismissed the plaintiff's suit on the ,,round that he was not in cultivatory possession of the plots in dispute. This appeal is against the said judgment of the High Court. The contention of Mr. J, P. Goyal, learned counsel for the appellant, is that as the plaintiff and the defendants were admiitted IV co-sharers and the appellant's right, title and interest have been declared in suit No. 918 of 1945, the possession by the defen- dants, who are some of the co-sharers, is, in the eye of law, possession for and on behalf of the appellant also. If so, the appellant is a person, who is in possession of the lands as khudkasht. In any event, the lands must be considered to be held or deemed to be held by the appellant as khudkasht so as to attract section 1 8 ( 1 ) (a) of the Abolition Act. His further contention is that suit No. 1132 of 1953 out of which these proceedings arise, is really a suit under section 176 of the Abolition Act for partition of the bhumidhari rights as between the co-sharers. Mr. S. K. Bagga, learned counsel for the defendants, urged that the appellant should have really filed an appeal against the order of the High Court dated July 27, 1965, in and by which it called for a finding regarding the possession of the properties. Not having challenged that order, the counsel ursed, it is longer open to the appellant to challenge the final order of the High Court accepting the finding submitted by the District Court. The counsel further contended that the decision of the High Court is in accordance with the view held in a previous decision reported in Rama Kant Singh and others v. Deputy Director of Consolidation and others(1). When the defendants have been found to be in cultivatory possession of the, properties, the view of the High Court negativing the Kailash Rai vs Jai Jai Ram & Others on 22 January, 1973  4 appellant's claim is, according to Mr. Bagga, fully justified. This will be the convenient stage to refer to the, material provisions of the Abolition Act. Section 3 defines the various expressions. In clause 26, it is provided that certain other expressions referred to therein, including khudkasht and sir, shall have the, meaning assigned to them in the United Provinces Tenancy Act, 1939 (hereinafter referred to as the Tenancy Act). Section 3(9) of the Tenancy Act defines khudkasht as "land other than sir culti- vated by a landlard, and under-proprietor or a permanent tenure-holder as such either himself or by servants or by hired labour". Sir is defined in section 6 occurring in chapter 11 of the Tenancy Act. Section 4 of the Abolition Act provides for vesting of estates. from a date to be specified by notification. Section 1 8 (1) of the Abolition Act, which is relevant for our purpose, runs as follows :- "18. Settlement of certain lands with intermediaries or cultivators as bhumidhars- (1) subject to the provisions of sections 10, 15, 16 and 17, all lands- (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove, (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh. (1) A.I.R. 1966 All. 173 (c), held by a fixed-rate tenant or a rentfree grantee as such, or (d) held as such by- (i) an occupany tenant, Possessing the right to (ii) a hereditary tenant, transfer the holding by (iii) a tenant on patta sale. dawami or istaim rari referred to in section 17. (e) held by a grove holder, .lm15 on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof." There is no controversy that the date of vesting is 1-7-1952 and the date immediately Preceding the date of vesting is 30-6-1952. Under section 18 (1) (a), broadly speaking, it will be seen, all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove on 30-61952, shall be deemed to be settled by the State Government with such intermediary. The said intermediary is entitled to take or retain possession as bhumidar subject to Kailash Rai vs Jai Jai Ram & Others on 22 January, 1973  5 the provisions of the Abolition Act. In order to claim rights under clause (a), it is necessary that the lands should be, (1) in possession of an inter- mediary as khudkanst or sir or (2) held by an intermediary as khudkasht or sir or (3) deemed to be held by an intermediary as khudkasht or sir. If any one of these alternatives is established, clause (a), will stand attracted. Khudkasht, as we have already pointed out, means land, other than sir cultivated a landlord 'either by himself or by servants or by hired labour. The question is whether the appellant can be considered to be in "possession' of the lands as khudkasht or whether it can be considered that the lands are "held or deemed to be held by him" as khudkasht. The finding 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, the plaintiff-appellant cannot get any relief. 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 would 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 bhumidari 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 principal 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 the possession of the appellant or, at any rate, in his constructive possession. 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 section 9 of the Abolition Act. In interpreting the said expression, this court in Budhan Singh & Anr. v. Nab Bux & Anr. (1) has held that it means 'lawfully held'. This court has further observed that- Kailash Rai vs Jai Jai Ram & Others on 22 January, 1973  6 "According to Webster's New Twentieth Century Dictionary the word 'held' 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'." (1) [1970] 2 S.C.R. 10. 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 grow 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 clause (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 cultivation. In our opinion, the expression 'held' can only be taken to connote the existence of a right or title in a person. The appellant's 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. We cannot accept the contention of Mr. Bagga that the appel- lant should have challenged the order of the High Court dated July 27, 1965, calling for a finding from the first appellants court. That order was passed at an intermediary stage and the appellant was justified in waiting for the final decision of the High Court to be given. It is now necessary to consider the decision of the Allahabad High Court in Rama Kant Singh and others v. Deputy Director of Consolidation and others(1) 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 holder's rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which alone will attract clause (a) of section 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. In the result, the judgment and order of the High Court under appeal are set aside land the decision of the District Judge, Gorakhpur, in Civil Appeal No. 494 of 1955 will stand restored. There will be no order as to costs in this appeal. V.P.S. (1) A.I.R. 1966 All. 172. Kailash Rai vs Jai Jai Ram & Others on 22 January, 1973  7