KAILASH RAL versus JAI JAI RAM & OTHERS

Citation: [1973] 3 S.C.R. 411 · Decided: 22-01-1973 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
H 
KAILASH RAl 
v. 
JAi JAi R.AM & OTHERS 
January 22, 1973 
(I. D. DUA AND C. A. VAIDIAL!NGAM, JJ.] 
4 11 
!J.P. Zamindari A.bolitio11 and Land Reforms A.ct, 1950, 
s. 18(1)-
(a)-'PosseS<ion', 'held', 'deemed to be held', meaning of. 
The appellant filed a suit against the respondents for his share 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 
resJ><1Ddents contested the claim on the ground that they 
alone had 
bhumidbari rights in the properti.S. 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 finding that the 
respondents 
were 
in exclusive 
possession of the khudkasht and sir plots in 
dispute. Accepthng 
the 
finding, the High Court allowed the appeal and dismissed the suit. 
Allowing the appeal to this Court, 
HELD: (I) Under s. lS(l)(a) all lands in possession of, or held, 
or deemed to be held by an intermediary as sir, khudkasht or en inter-
mediary's grove on 30th June, 1952, shall he deemed to be settled by 
the State Gove\tmnent with such intermediary. Tho said intermediary is 
entitled to take or retain possession as bhumidhar. 
In order to claim 
the rights under the clause it is necessary th1lt the lands should be (a) 
in possessi'on of an intermediary as K.hudkasht or sir, or (b) held by 
an intermediary as khudkasht or sir, or (c) deemed to be held by an 
intermediary as Khuclkasht or sir. Khudkasht means land other than 
sir cultivated by a Iandlprd either by himself or by servants or by hired 
labour. 
[4150-f] 
(2) In law, 
the possession of one co-sharer is possession botb 
on 
his 
behalf 
as 
well 
as 
on 
behalf of all 
the 
other 
oo-
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 IJlO indication in the Act or the U.P. Tenancy Act, 1939, that 
bhumidhari rights are not intended to be conferred on all the co-•harers 
or co-proprietors who are entitled to the pro~rties, though only some 
of them may be in actual cultivation. [416A-C] 
( 3) Even when one cc>-sharer is in possession of the land the other 
co-s}Jarers must be considered to b.e in CQMtructive 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 lS(l)(a) takes in two other 
contingencies, 
namely, 
lands held as khudkasbt or lands deemed to be beld as khudkasht. Enn 
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 nevertheleSI 
tho lands and could be considered to be held or deemed to be held by th~ 
appellant also. If the expression 'held' occurring 
in 
cl. (a) 
means 
11-4.796Sup.C.l./73 
H2 
SUPREME COURT REPORTS 
[1973) 3 S.C.R. 
actual possession then the same mcairring must be given to 
the 
same 
word occurring in (b) also. But, in the latter part 
of cl. (b) 
the 
Legislature has used the exprcssiun 'personal cultivation' with reference 
to Avadh, whereas it has not used any such cxprenion in the first part 
of cl. (b). Therefore, the expression 'held' 
must 
have 
a meaning 
different from' pcrsoinat 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 already been declared. It 
can 
also 
b.e 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 appellaint bhumldhars 
by 
creating a fiction. [417A-DJ 
Budhan Singh & A"'· v. Nabi Bux & f!nr., [1970] 2 S.C.R. 
10 
followed. 
Rania 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 app

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