KARBALAI BEGUM versus MOHD. SAYEED AND ANR.

Citation: [1981] 1 S.C.R. 863 · Decided: 07-10-1980 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

KARBALAI BEGUM 
v. 
MOHD. SAYEED AND ANR. 
October 7, 1980 
[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.] 
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-
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 
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 
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, 
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 
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 
SUPREME COURT REPORTS 
[1981] 1 S.C.R. 
A 
3. It is well settled that mere non-participation in the rent and profits 
B 
c 
D 
E 
F 
G 
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 wil

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