R.M. Sahai, J. - (1.) GAJA Singh had two sons Mata Din Singh and Ram Din Singh who were entered as coproprietors with one half in the khewat to which land of khata No. 850 belonged. Petitioners are the sons of Ram Din Singh whereas opposite parties are sons of Mata Din Singh. In consolidation proceedings opposite parties filed an objection claiming that the land of khata No. 850 was their exclusive khudkasht. The objection was rejected by the Consolidation Officer but the order was set aside in appeal. The appellate authority found that the separation in the family took place some time in 1331 F and the khudkasht of this khata was acquired between 1333 F and 1334 F. The name of the Petitioners were never recorded prior to the date of vesting. It was added for the first time in 1362 F. The finding recorded by the consolidation authorities have not been challenged nor could they be challenged as they are based on consideration of evidence on record. It was however argued by the learned Counsel for Petitioner that they being admittedly co -proprietors with the opposite parties it shall be deemed that they were co -khudkasht holders. In support of this argument the learned Counsel has relied on Kailash Rai v. Jai Jai Ram : AIR 1973 SC 893. He has laid great emphasis on para 9 of the judgment and has urged that the following observation: Even when one cosharer is in possession of the land the other cosharers must be considered to be in constructive possession of the land has to be applied to co -proprietors as well as they are mentioned in the earlier part of the paragraph. He has emphasised that the Supreme Court having overruled a Division Bench decision of this Court reported in Rama Kant v. Deputy Director of Consolidation : AIR 1966 All 173, it shall be deemed that the law laid down by this Court that khudkasht belongs to the person who cultivates it stands overruled. He has also relied on the definition of the word 'khudkasht' and has urged that in view of Section 180 of the U.P. Tenancy Act it was for the opposite parties to establish that they were cultivating the land to the ouster of other cosharers and unless this is established they cannot deny the right of the Petitioners. From this he also sought to argue that it was an indication that except in a case where a cosharer cultivated by ousting other cosharers cultivation by one cosharer shall be deemed to be the possession and cultivation of all the cosharers.
(2.) FROM the facts in Kailash Rai's case it is clear that mother of Kailash Rai had obtained a decree in 1945 and her right and title was declared and it was held that she was entitled to the property inherited from her father. In pursuance of the decree, possession was also obtained. After coming into force of the U.P. Zamindari Abolition and Land Reforms Act Kailash Rai filed a suit for division of holding which was resisted and Jai Jai Ram and others claimed to be sole bhumidhars. It is thus clear that Kailash Rai's ancestor was held to be cosharer along with Jai Jai Ram and others. Once the title was established his claim could not be resisted on the ground that it was cultivated exclusively by Jai Jai Ram. It was in this context that the Supreme Court held: "The Appellant's right and title as holder of the land has been declared and settled in Suit No. 918 of 1945. It can also be held that the land 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 Appellant bhumidhars by creating a fiction." (Italicised by me). This sentence appears to be the key of the decision, and it is in this sense that the Supreme Court did not agree with the Division Bench decision of this Court. In this view of the matter the Supreme Court's decision is not at all helpful. A proprietor has both proprietary and cultivatory rights. A proprietor does not become entitled to share cultivatory rights merely by reason of being a proprietor. It is a different thing that he may be entitled to a declaration of ownership as held by the Privy Council in ILR 1918 Cal. 10 or compensation as held in, 1949 ALJ 19 but unless the title to the khudkasht is established a co -proprietor cannot claim co -khudkasht rights. Even under Section 18 of U.P. Zamindari Abolition and Land Reforms Act I of 1951 bhumidhari rights had been conferred on a person who was in possession or held or deemed to be held as sir or khudkasht. The word 'as' is significant. A proprietor cannot claim to be co -bhumidhar of sir or khudkasht unless he was in possession or held it as sir or khudkasht on the date of vesting A proprietor cannot be said to hold sir or khudkasht belonging to another proprietor. To claim such rights he must be cosharer in sir and khudkasht and not a cosharer in proprietary right only.
(3.) THE result is that the petition fails and is dismissed. But the parties shall bear their own costs.;