KARBALAI BEGUM v. MOHD. SAYEED & Anr.

#2. Another fact which emerges from the ·admitted position is that if de fendants 1 and 2 were co·Lhumidha1 s wiih the plaintiff in the Khewat and had also sirdari tenants .under them, how co.uld the sirdari tenants occupy the land of one of the co-sharers leaving the defendants alone so that the plots were reallotted to them. [8fi7C] A B c D E F G H 864 A B c D E F G SUPREME COURT REPORTS [1981] 1 S.C.R.

#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 a~ to give title by adverse possession to the other co-sharer in possession. Even if thi' fact be· admitted, then the legal position would be that defendants nos. I and 2 being co-sharers of the plaintiff, would become eonstructive 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]

4.(i) 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]

4.(ii) 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. [8680] ·

#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 evid ence of the appellant i;; to the effect that she was not at al! 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 v. Mahendra Singh and Ors. A.LR. 1974 S. C. 1657 refer red to. CrvrL APPELLATE JURISDICTION : Civil Appeal No. 1204 of

#1978. Appeal by Special Leave from the Judgment and Order dated 5-4-1978 of the Allahabad Hfgh Court (Lucknow Bench) in Second Civil Appeal No. 90/75. 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 Au, J.-How dishonest coµsins, looking after lands of their ·brother's widow, situated far away from the place where the widow was living, taking undue advantage of· the confi- KARBALAI BEGUM v. MOHD. SAYEED (Fazal Ali, !.) ·dence reposed in them by their widowed sister-in-law and having ·painted a rosy picture of honestly mana~ng the property and giving ·her due share, cast covetous eyes on their sister-in-law's share and ·with a deplorable design, s·eek to deprive her of her legal share and ·deny her legal rights is not an uncommon feature of our village life. That this rs 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 hand& of her cousins. ThTs 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. '}t' In order to understand the facts of the case, it may ·be neces- sary to give a short genealogy of the parties which wrII be found in ·the judgment of the District Judge and is extracted below : Syed Khadin Husain I Syed Laek Husain (widow Karbalai Begum ·-Plaintiff) Mir Tafazzul Hussain I . I Mohd. Baslur (Defdt. No. l) Syed Sadiq Husain I Mohd. Rasheed (widow Smt. Shakira Bano, Defdt. No. 2) The appellant Karbalai Begum was the widow of Syed Laek 1Iusain and defendants No. 1 and 2 were her husband's cousins. The admitted position seems to be that the plaintiff and the defen . dants were in joint possessron 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 drspute. 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 It was also alleged that she went to the ·cousins from trme to time. 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 them. Thus, -would be properly looked after and protected by

#865. A B c D E F G H 866 A B c D E F G H SUPREME COURT REPORTS [1981] 1 S.C.R. having gained the confidence of tlie plaintiff the first and the second· ·defendants went on managing the properties and off and on gave her share so that sh<: may not suspect their evil intentions. The plaintiff further alleged in her &tatement that during the consolidation pro ceedings, separat1~ plots were carved out and she was never informed about any proceedings by the defendants and was under the impres sion that her share was being properly looked after. It was only three yearn 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. judge decreed the suit for joint possession The suit was dismissed by the trial court but on appeal, the district in respect of Cbakbandi plot Nos. 201 and 274 only. As regards plot Nos. 93, 94 and 106 the dismissai of the plaintiff's suit by the trial court was In the instant case, therefore, we are concerned only with upheld. Chakbandi plon. Jos. 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, 273, 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 allegation!> of the defendants and dismissed the case of the plantiff. The District Judge, however, found that on the admitted facts even after the abolition of zamin dari, 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 13:59 Fasli as would appear from Ex. 2. The learned· Di&trict 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 plain tiff's name was suddenly deleted nor were there any judicial proceed-· ings under which the name of the plaintiff as a co-bhumidar was· l l KARBALAI BEGUM v. MOHD. SAYEED (Fazal Ali, !.) deleted. The learned District Judge, after a careful consideration of the documentary evrdence, 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 exclusi vely in the name of Mohd. Bashir and Mohd. Rasheed. Even if no sh are was ·given to the plaintiff by the. defendants, as the defendants were co-sharers, 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 n 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 1 rent and profits of the land· of a co-sharer does not amount to an ouster so <is to give title by adverse possession to the other co-sharer in posses sion. Indeed even if this fact be admitted, then the legal position would be that Mohd. Basir and Mohd. Rashid, being co-sharers of pfaintiff, 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 appearmg 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 evrdence 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 connection, the learned Drstrict Judge found as follows· : - to be extinguished. In "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 extinguished litigation and the plaintiff's right . during the consolidation proceedings. There is, no evidence before me to show that there was any litigition wrth the sub tenants and the defendants acquired the plots exclusively. Even through 867 A B c D E F G H 868 A B c D E F SUPREME COURT REPORTS [1981] 1 S.C.R. 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 1he plaintiff's rights· extinguished." This finding of the learned District Judge was a clear finding of fact and even iif it was wrong (though in our opinion it is abso lutely 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 obs1rved as follows : - "The argument advanced by the counsel for the respon dents that there is no evidence on the record that the plaintiff was given any share out of the produce and, therefore, the plain from possession, is tiff should be deemed fallacious.'' to be ousted This was also a finding of fact -which was binding m 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 mstituted. This was accepted by the District Judge and should not have been interferred with by the High Court in second appeal. G The High Court proceeded on the basis that there was nothing to show that any fraud was practised upon the consolidation autho- rities so as to make the order a nullity. Here the High Court com pletely mrsunderstood the case ma.de 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 H , after by them and on this distinct understandmg 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 KARBALAI BEGUM v. MOHD. SAYEED (Fazal Ali,!.) of the case made out by the plaintiff and the District Judge in clear therefore, the terms accepted the same. finding of the High Court regarding fraud having been committed in the consolidation proceedings wa& not legally sound. In these circumstances, 869 A The last ground on which the High Court non-suited the appel lant was that after the chakbandi was completed under the U.P. Consolidation of Holdings Act, the suit was barred by s. 49 of the It is well settled that unless there is an express provision said Act. 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 v. this Court made the following observa Mahendra Singh & Orn.( 1 ) tions:- B c l "It was thus aboundantly 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 applicati:on could be filed "under the provisions of this Act" within meaning of clause 2 of Section 49. Thus, the other limb of Section 49, also is not attracted. The resulHs that the piea of · the bar of the civi:l courts' jurisdiction to investigate and adjudi cate upon the title to the land or the sonship of the plaintiff has no substance." t_ 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 s. 49 of the U.P. Consolidation of Holdings Act. ·Thus, the grounds' on whi:ch the High Court reversed the deci sion 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 joiti.t possession as far as plots Nos'. 201 and 274 are concerned and-r~~re the judgment of the District Judge. The cost allowed by this Court would be set-off agai:nst the sum of Rs. 15,000/- (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'. F G N.K.A. - - - - - - - - (1) A.LR. 1974 SC 1657. Appeal allowed. H