Holding

Mere non‑participation does not constitute ouster; co‑sharers are constructive trustees, the fraud in the consolidation proceedings invalidates the mutation, and Section 49 does not bar the suit, so the plaintiff’s claim for joint possession is upheld.

Summary

Karbalai Begum, a widow, claimed joint possession of two plots of land that she and her late husband's cousins (Mohd. Bashir and Mohd. Rasheed) owned as co‑sharers after the Uttar Pradesh Zamindari Abolition Act. She alleged that the defendants, who managed the land while she lived in Lucknow, fraudulently caused her name to be deleted from the revenue records during the consolidation of holdings, resulting in mutation of the plots in their names. The trial court dismissed her suit, but the District Judge awarded her joint possession of plots 201 and 274, finding fraud and that the defendants, as co‑sharers, were constructive trustees of her interest. The High Court reversed, holding the suit barred under Section 49 of the U.P. Consolidation of Holdings Act. The Supreme Court held that non‑participation in rent does not amount to ouster, co‑sharers are constructive trustees, the fraud invalidated the mutation, and Section 49 does not bar the suit. The appeal was allowed, setting aside the High Court and confirming the District Judge’s decree for joint possession.

Issues considered

Whether mere non‑participation in the rent and profits of a co‑sharer amounts to ouster and gives title by adverse possession to the other co‑sharer.
Whether co‑sharers become constructive trustees of each other's interests.
Whether the deletion of the plaintiff's name from the revenue records during consolidation constitutes fraud that vitiates the mutation.
Whether Section 49 of the U.P. Consolidation of Holdings Act bars a suit for title after chakbandi.
Whether the High Court was entitled to interfere with the District Judge’s findings of fact.

Legislation cited

Subjects

co‑sharersconstructive trustadverse possessionfraudconsolidation of holdingsmutationSection 49joint possessionzamindari abolitionland reforms

Judgment

A

KARBALAI BEGUM

v. B
MOHD. SAYEED AND ANR.

October 7, 1980

[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]
c
U.P. Consolidation of Holdings Act, 1953, sections 9 & 49-Nnn·Partici-
pation by a co-sharer in rents and profits of land-Whether amounts to an
011ster--Whether other co-sharer obtains title by adverse possession.

The appeUant a widow and defendants nos. 1 and 2 were her husband's
· cousins. They were in joint possession of the plots in dispute, being co-bhumi- D
dars. The parties had a joint Khewat upto 1359 Fasli. The plaintiff filed a
suit for joint possession over her share contending that she was living with
her sons at Lucknow and defendants were looking after the agricultural land
and groves and that she was given her share by the defendant from time to
time. She also went to the village from time to time and got her share. She
alleged that the defendants assured her that her share would be properly looked
after and protected by them. The plaintiff further alleged that it was only 3 E
years before the suit thai she 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 defendants of which she was ne•ver
informed. The defendants contested the suit on the grounds that, they were
in separate occupation of the land in dispute, the plots in disput" were occupied
by Adhivasi who acquired the Sirdar rights under the U. P. Zamindari Aboli-
tion and Land Reforms Act, 1950, the plaintiff lost her title by operation of F
law, and denied the allegation of fraud.

The trial court dismissed the suit but on appeal the District Judge decreed
the suit for joint possession in favour of the plaintiff in respect of two plots
of the land. The High Court accepted the appeal gf the defendants.

Allowing the appeal this Court,
G
HELD: I. The 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. [869F]

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
H
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]
864 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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]
B
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
c 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
D
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
E 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-
F 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
G 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 the
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, !.) 865.

·dence reposed in them by their widowed sister-in-law and having A
·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 B
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 c
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 :
D
Mir Tafazzul Hussain
I
Syed Khadin Husain Syed Sadiq Husain
I I . I
Syed Laek Husain Mohd. Baslur Mohd. Rasheed
(widow Karbalai Begum (Defdt. No. l) (widow Smt. Shakira
·-Plaintiff) Bano,Defdt. No. 2) E
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
F
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 G
her husband's cousins were looking after the lands which consisted.
·of agricultural lands and groves and she was given her share by her
·cousins from trme 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 H
·were joint and used to give her share and assured her that her share
-would be properly looked after and protected by them. Thus,
866 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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-
B 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.
c
The suit was dismissed by the trial court but on appeal, the
district judge decreed the suit for joint possession 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
upheld. In the instant case, therefore, we are concerned only with
D
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
E 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
F 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,
G 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
H 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·
KARBALAI BEGUM v. MOHD. SAYEED (Fazal Ali, !.) 867

deleted. The learned District Judge, after a careful consideration A
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 B
possession of the defendants as co-sharers would be deemed in law
to be the possession of the plaintiff.

l 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-
c
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- D
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 E
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.

l 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
F

either by the defendants or by somebody else as a result of which the
rights of the plaintiff were sought to be extinguished. In this
connection, the learned Drstrict Judge found as follows· : -

"This shows that a planned fraud was made to drop the G
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
plot through litigation and the plaintiff's right extinguished
. during the consolidation proceedings. There is, no evidence H
before me to show that there was any litigition wrth the sub-
tenants and the defendants acquired the plots exclusively. Even
868 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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-
B 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
c 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-
tiff should be deemed to be ousted from possession, is
D fallacious.''
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,
E 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·
F 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.

The High Court proceeded on the basis that there was nothing
to show that any fraud was practised upon the consolidation autho-
G 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,!.) 869

of the case made out by the plaintiff and the District Judge in clear A
terms accepted the same. In these circumstances, therefore, the
finding of the High Court regarding fraud having been committed in
the consolidation proceedings wa& not legally sound.

The last ground on which the High Court non-suited the appel-
B
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
said Act. It is well settled that unless there is an express provision

l 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.
Mahendra Singh & Orn.( 1 ) this Court made the following observa-
tions:-
c
"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 the
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."

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.
t_ ·Thus, the grounds' on whi:ch the High Court reversed the deci-
F
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 G
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'.

N.K.A. Appeal allowed. H
--------
(1) A.LR. 1974 SC 1657.