FAZAL ALI, J. - (1.) HOW dishonest cousins, 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 confidence reposed in them by their widowed sister-in-law and having painted a rosy picture of honestly managing the property and giving her due share, cast covetous eyes on their sister-in-law's share and with a deplorable design, seek to deprive her of her legal share and deny her legal rights is not an uncommon feature of our village life. That this is 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 hands of her cousins. This 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.
(2.) IN order to understand the facts of the case, it may be necessary to give a short genealogy of the parties which will be found in the judgment of the District Judge and is extracted below : JUDGEMENT_396_4_1980Image1.jpg The appellant Karbalai Begum was the widow of Syed Laek Husain and defendants Nos. 1 and 2 were her husband's cousins. The admitted position seems to be that the plaintiff and the defendants were in joint possession of the plots in dispute, being co-bhumidhars 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 dispute. It is also not disputed that up to 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 cousins from time 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 were joint and used to give her share and assured her that her share would be properly looked after and protected by them. Thus, having gained the confidence of the plaintiff the first and the second defendants went on managing the properties and off and on gave her share so that she may not suspect their evil intentions. The plaintiff further alleged in her statement that during the consolidation proceedings, separate plots were carved out and she was never informed about any proceedings by the defendants and was under the impression that her share was being properly looked after. It was only three years 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. The suit was dismissed by the trial court but on appeal, the district Judge decreed the suit for joint possession in respect of Chakbandi plots Nos. 201 and 274 only. As regards plots Nos. 93, 94 and 106 the dismissal of the plaintiff's suit by the trial court was upheld. In the instant case, therefore, we are concerned only with Chakbandi plots Nos. 201 and 274, Plot No. 201 was carved out of plots Nos. 158, 159. 164, 165, 167, 166, 168 etc. and Plot No. 274 was formed out of plots Nos. 267, 268, 272, 273, 276, 277, 278, 279 and 280.
(3.) 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 allegations of the defendants and dismissed the case of the plaintiff. The District Judge, however, found that on the admitted facts even after the abolition of zamindari, the position was that in 1357 Fasli the plaintiffs name was clearly recorded as a co-sharer with the defendants and continued to be so until 1359 Fasli as would appear from Ex. 2. The learned District 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 plaintiff's name was suddenly deleted nor were there any judicial proceedings under which the name of the plaintiff as a co-bhumidar was deleted. The learned District Judge, after a careful consideration of the documentary evidence, 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 exclusively in the name of Mohd. Bashir and Mohd. Rasheed. Even if no share 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.;