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On July 1, 1952, the Abolition Act came into force. The appellant filed suit No. 11 32 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 section 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 Allahbad 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 defendant-appellant 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, 1966, allowed the defendants' appeal and dismissed the plaintiff's suit on the ,,round that he was not in cultivatory possession of the plots in dispute. This appeal is against the said judgment of the High Court. The contention of Mr. J, P. Goyal, learned counsel for the appellant, is that as the plaintiff and the defendants were admiitted IV co-sharers and the appellant's right, title and interest have been declared in suit No. 918 of 1945, the possession by the defen-
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dants, 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 section 1 8 ( 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. 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. Not having challenged that order, the counsel ursed, it is longer open to the appellant to challenge the final order of the High Court accepting the finding submitted by the District Court. The counsel further contended that the decision of the High Court is in accordance with the view held in a previous decision reported in Rama Kant Singh and others v. Deputy Director of Consolidation and others(1). When the defendants have been found to be in cultivatory possession of the, properties, the view of the High Court negativing the appellant's claim is, according to Mr. Bagga, fully justified. This will be the convenient stage to refer to the, material provisions of the Abolition Act. Section 3 defines the various expressions. In clause 26, it is provided that certain other expressions referred to therein, including khudkasht and sir, shall have the, meaning assigned to them in the United Provinces Tenancy Act, 1939 (hereinafter referred to as the Tenancy Act). Section 3(9) of the Tenancy Act defines khudkasht as "land other than sir culti- vated by a landlard, and under-proprietor or a permanent tenure-holder as such either himself or by servants or by hired labour". Sir is defined in section 6 occurring in chapter 11 of the Tenancy Act. Section 4 of the Abolition Act provides for vesting of estates. from a date to be specified by notification. Section 1 8 (1) of the Abolition Act, which is relevant for our purpose, runs as follows :-

There is no controversy that the date of vesting is 1-7-1952 and the date immediately Preceding the date of vesting is 30-6-1952. Under section 18 (1) (a), broadly speaking, it will be seen, all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove on 30-61952, shall be deemed to be settled by the State Government with such intermediary. The said intermediary is entitled to take or retain possession as bhumidar subject to the provisions of the Abolition Act. In order to claim rights under clause (a), it is necessary that the lands should be, (1) in possession of an inter- mediary as khudkanst or sir or (2) held by an intermediary as khudkasht or sir or (3) deemed to be held by an intermediary as khudkasht or sir. If any one of these alternatives is established, clause (a), will stand attracted. Khudkasht, as we have already pointed out, means land, other than sir cultivated a landlord 'either by himself or by servants or by hired labour.

The question is whether the appellant can be considered to be in "possession' of the lands as khudkasht or whether it can be considered that the lands are "held or deemed to be held by him" as khudkasht. The finding sent by the District Court is no doubt prima-facie against the appellant. But we cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. According to the High Court, as possession is with the defendants, the plaintiff-appellant cannot get any relief.