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Judgment
B. Dikshit, J.—Short question involved in this case is if the cultivation by one of the brother will become cokhudkasht of all the brothers on the date of vesting, who are cosharers in proprietory rights. The admitted pedigree of the parties is as follows:
Sattar Singh
Chattar Singh
Babu Ram
Rohtas Raghubir
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 cosharers. The petitioners claimed that they are in joint cultivatory possession and their names have wrongly been dropped from 1350F in revenue records as cokhudkasht holder.
The land in dispute is plot No. 1083 of the year 1336 F. This 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 cokhudkasht of class 2(3) with duration of 4 years. In 1350 F, 19 biswas of land of plot No. 1083, which is subjectmatter 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 cokhudkasht holders with Raghubir on date of vesting and therefore cobhumidhar 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 Rpghubir 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 cosharers. For said reason the appellate authority held Raghubir as sole khudkasht holder. 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 cosharers of 2/3 shares in Khewat 1359 F and as the petitioners are brothers of Raghubir, they are to be considered as coKhudkasht holder and therefore on the date of vesting the petitioners became coBhumidhar. 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 cokhudkasht holder with Raghubir.
The learned counsel for contesting respondent argued that petitioners did not become cobhumidhar, merely because they were cosharers. He submitted that unless cosharers were in cultivatory possession of disputed land on the date of vesting, they did not become cobhumidhars 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 cosharers 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 khudkashtholder and he alone became bhumidhar on the date ofvesting.
There is no dispute between the parties that petitioners are cosharers in respect of proprietary rights with Raghubir and each of them had l/3rd share. The only dispute is if petitioners, who are cosharers with contesting opposite party, were cokhudkasht 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 ofvesting.
It has been held in the case of Kailash v. Jai Jai Ram 1973 RD 183 that if one cosharer is in possession of the land then the other cosharers 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 cokhudkasht 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.
The learned counsel for contesting opposite party tried to distinguish the case of Kailasn v. Jai Jai Ram (supra) seeking help from following observation made by this Court inPrabhu Singh v. Deputy Director Consolidation, 1979 RD 158:
"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 ILR1918 Cal. 10 or compensation as held in 1949 ALJ 19 but unless the title to the Khudkasht is established a coproprietor cannot claim cokhudkasht 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 cobhumidhar 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."
While considering the applicability of Section 18(l)(a) of U. P. Zamindari Abolition and Land Reforms Act, the Supreme Court of India has held in case of Kailash (supra) that a person who is deemed to have been in possession shall also be khudkasht holder. In case in land the petitioners were admittedly khudkashtholder till 1349 F. The contesting respondent claimed that the land was recorded ''Zadid'' in 1349 F and therefore it ceased to be khudkasht. This argument is untenable. A khudkasht cannot cease to be khudkasht merely because it was not actually cultivated in one year. It is not unknown in this part of country that agriculturist leave land fallow at times for a year or so, from time to time, to recover lost productivity of soil which stands reduced by cultivating land continuously for years together. The entry of ''Zadid'' indicates that no crop was grown on land in that particular year when entry was made. But such a entry does not change the nature of the land merely because it is not cultivated in a year. It remains khudkasht if it had been coming down as khudkasht.
The contesting opposite party relied in this case on a partition also but it failed to establish the same. He relied on separate living of parties in support of his case of partition. Living separately is different from partition between members of a family. It appears in this case that petitioner did not lead evidence of partition by metes and bound. In absence of such evidence to establish partition of disputed land, which is coming down from ancestor of parties, the case of petitioner of partition cannot be accepted.
Be it as it is, as the Supreme Court of India has declared in the case of Kailash v. JaiJai Ram (supra) that a co sharer became bhumidhar of land which was being cultivated by one of the cosharer, it need not detain us any further so far the claim of contesting oppositeparty in respect of partition is concerned as even if there had been partition in the family yet petitioners and contesting respondents being cosharers in proprietary rights are deemed to be cokhudkasht holder for becoming bhumidhar under Section 18(1) (a) of U. P. Zamindari and Land Reforms Act.
For the aforesaid reasons writ petition succeeds and is allowed, order of Additional Director of Consolidation, Meerut dated 26.7.1976 (Annexure 3 to the writ petition) and order of Assistant Settlement Officer Consolidation dated 23.12.1975 (Annexure 2 to the writ petition) is quashed and that of Consolidation Officer. Kharkhauda, district Meerut dated 16.5.1975 (Annexure 1 to the writ petition) is restored.
There shall be no order as to costs. Petition allowed.