Judgment

VAIDIALINGAM, J. :- The question that arises for consideration in this appeal, by special leave, relates to the proper interpretation to be placed on S. 18, sub-section (1) cl. (2) 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.

2. 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 :

It will be noted from the above pedigree that the plaintiff is the son of Mst. Ramrati and the grandson of Ram Adhare. After the death of Ram Adhare, the defendants-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 Adhere. Relief for possession of the properties was also claimed. As she died during the pendency of the suit, the appellant before us, Kailash Rai, got himself substituted as heir-son of Ramrati. On May 16, 1947, the Additional Civil Judge decreed the appellant s claim. On June 13, 1947, the plaintiff obtained dakhal dahani 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.

3. On July 1, 1952, the Abolition Act came into force. The appellant filed suit No. 1132 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 S. 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 Allahabad 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 defendants-appellants 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, 1956, allowed the defendants appeal and dismissed the plaintiff s suit on the ground that he was not in cultivatory possession of the plots in dispute. This appeal is against the said judgment of the High Court.

4. The contention of Mr. J. P. Goyal, learned counsel for the appellant, is that as the plaintiff and the defendants were admittedly co-sharers and the appellant s right, title and interest have been declared in suit No. 918 of 1945, the possession by the defendants, 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 S. 18 (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.

5. 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.