- (1.) B. Dikshit, J. Short question involved in this case is if the cultivation by one of the brother will become co-khudkasht of all the brothers on the date of vesting, who are co-sharers in proprietory rights. The admitted pedigree of the parties is as follows:- Sattar Singh Chattar Singh Babu Ram Rohtas Raghubir
(2.) RAGHUBIR alone was recorded in basic year during consolidation operation. The petitioners, who are brothers of RAGHUBIR filed an objection that the land in dispute was acquired by their common ancestor Sattar Singh which was inherited by their father Chattar Singh and after the death of father they alongwith RAGHUBIR became co-sharers. The petitioners claimed that they are in joint cultivatory possession and their names have wrongly been dropped from 1350f in revenue records as co-khudkasht holder. The land in dispute is plot No. 1083 of the year 1336 F Tins plot was recorded as Khudkasht of Chattar Singh with an area of 4 biswas of Khewat Khata No. 1 with duration of one year while the rest area of 15 biswas was also recorded as Khudkasht of class 2 (3) of Chhatar Singh as part of Khewat Khata No. 2. In 1349 F the land was recorded in Khewat Khata No. 1 and 2 with an areas of 4 biswas and 15 biswas respectively in the name of petitioners and RAGHUBIR Singh as co-khudkasht of class 2 (3) with duration of 4 years. In 1350 F, 19 biswas of land of plot No. 1083, which is subject-matter of present dispute, was recorded solely in the name of RAGHUBIR as khudkasht with 14 years duration but so far crops are concerned it was recorded as 'parti zadid'. In this year, an area of 3 biswas of Plot No. 1083 was also recorded as occupancy tenancy of Baburam, Rohtash and RAGHUBIR. The Consolidation Officer held petitioners as co-khudkasht holders with RAGHUBIR on date of vesting and therefore co-bhumidhar after the date of vesting,-allowed the objection of petitioners and held that Babu Ram, Rohtas and RAGHUBIR have equal share. Feeling aggrieved, RAGHUBIR filed an appeal. The Settlement Officer Consolidation, after considering the case of parties, held that the name of RAGHUBIR was not recorded in the representative capacity and the khudkasht of 1336 F came to an end in 1349 F which was again acquired as khudkasht by RAGHUBIR and therefore it was sole khudkasht of RAGHUBIR and he alone became bhumidhar. The Settlement Officer Consolidation did not accept the contention advanced on behalf of petitioner who relied upon the case of Kailash v. Jai Jai Ram, 1973 RD 183 to establish that even if RAGHUBIR alone cultivated disputed land yet it will be khudkasht of all the co-harers. For said reason the appellate authority held RAGHUBIR as sole khudkasht 1 older. The petitioners felt aggrieved by order of appellate authority and preferred a revision. The Revisional authority by a short judgment dismissed the revision holding that the petitioners failed to prove that they were jointly in possession together with RAGHUBIR. He also held that land was khudkasht and subsequently when it became 'zadid' in 1349 F, it ceased to be Khudkasht. He further held that in 1350 F it became Khudkasht of RAGHUBIR alone as he cultivated it and made it khudkasht land of his. The learned counsel for petitioners argued that the petitioners are recorded as co-sharers of 2/3 shares in Khewat 1359 F and as the petitioners are brothers of Raghubir, they are to be considered as co-Khudkasht holder and therefore on the date of vesting the petitioners became co-Bhumidhar. He further contended that Raghubir could not be entered as sole khudkasht-holder in 1350 F as the entry coming down from before 1349 F could not be changed in favour of one of the person who was cultivating the disputed land from before together with other co-sharers merely it was recorded 'zadid' in a year. The argument is that if khudkasht land is not cultivated in one year then it does not cease to be khudkasht. He further argued that so far the entry from 1350 F onward is concerned, it recorded Raghubir as sole khudkasht holder only in a representative capacity and petitioners are to be considered co-khudkasht holder with Raghubir. The learned counsel for contesting respondent argued that petitioners did not become co-bhumidhar, merely because they were co-sharers. He submitted that unless co-sharers were in cultivatory possession of disputed land on the date of vesting, they did not become co-bhumidhars with contesting respondent Raghubir. He further submitted that each brother was living separately and had also acquired land separately in village and therefore there was a separation in the family and therefore merely by being co-sharers in proprietary rights they did not get bhumidhari rights. He reiterated that Raghubir, who actually cultivated the land in dispute on the date immediately before date of vesting along was khudkasht-holder and he alone became bhumidhar on the date of vesting.
(3.) THERE is no dispute between the parties that petitioners are co-sharers in respect of proprietary rights with Raghubir and each of them had 1/3rd share. The only dispute is if petitioners, who are co-sharers with contesting opposite party, were co-khudkasht holder with contesting opposite party Raghubir immediately before the date of vesting even when Raghubir alone was cultivating disputed land i. e. will they be deemed to be co-khudkasht holder to become bhumidhar on the date of vesting. It has been held in the case of Kailash v. Jai Jai Ram 1973 RD 183 that if one co-sharer is in possession of the land then the other co-sharers must be considered to be in constructive possession of that land which means that the co-sharer who is not cultivating will be deemed to be co-khudkasht holder for the purpose of acquiring bhumidhari rights under Section 18 (l) (a) of U. P. Zamindari Abolition and Land Reforms Act. This is for the reason that expression possession in clause (a) Section 18 (1) takes into consideration not only actual physical possession but also constructive possession that a person has in law.;