S.N. Singh, J.
1. This petition under Article 226 of the Constitution arises out of a suit instituted by the plaintiff petitioner under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act.
2. The facts giving rise to this petition are that Mohammad Hanif and Abdul Majid were two co-bhumidhars of the land in suit in equal shares. Mohammad Hanif sold his half share to the defendants opposite parties Mir Ahmad, Shaukat, Nizamuddin and Mohammad Ali. It appears that the other co-tenure-holder Abdul Majid executed an agreement to sell his half share of the property in favour of the plaintiff petitioner. Thereafter he did not execute the sale deed with the result that the plaintiff petitioner had to institute a suit for specific performance of the contract. Thai suit was finally decreed by the civil court and in pursuance of that decree on failure of Abdul Majid a sate deed was executed by the court on 25th September 1958. It is after the execution of this sale deed by the court that the present suit was instituted by Ram Das for partition of his half share.
3. This claim of the plaintiff petitioner was contested by the vendees of Mohammad Hanif who alleged that they had entered into possession over half share by virtue of a sale deed executed in their favour by Mohammad Hanif and that over the other half they entered into possession by virtue of an agreement to sell by Abdul Majid on 12th April 1955. It was alleged that Abdul Majid having accepted Rs. 100 as advance had put the vendees in possession over the other half belonging to Abdul Majid.
They further alleged that in accordance with the agreement the vendees had to pay a further amount of Rs. 300 to get the sale completed. According to the defence since the defendants had entered into possession over the disputed property after having advanced Rs. 100 they were entitled to the benefit of Section 164 of the U.P. Zamindari Abolition and Land Reforms Act and an alternative case was also set up that in any case the defendants were in possession from 1361 F onwards and their possession being otherwise than in accordance with law they prescribed a title as a sirdar over the other half share of Abdul Majid.
4. On the pleadings of the parties relevant issues were framed and the first two revenue courts decreed the plaintiff's suit holding that by virtue of the sale executed by the court in favour of the plaintiff petitioner he became a co-sharer to the extent of half and was entitled to the division claimed. The plea of the defendants that they had entered into possession by virtue of an agreement on the advancement of Rs. 100 was negatived The concurrent finding of the two first courts was that the defendants had entered into possession after the execution of the sale deed in respect of half of the property in their favour. The plea of limitation raised by the defendants was overruled on the ground that possession of one co-tenure-holder was possession of other, since ouster had not been proved the suit was well within time.
5. The defendants preferred an appeal before the Board of Revenue. The Board of Revenue set aside the two concurrent decisions and dismissed the suit. The Board, however, accepted the findings of the two courts below that the vendees of Mohammad Hanif, that is the contesting defendants entered into possession over the entire property belonging to Mohammad Hanif and Abdul Majid after the execution of the sale deed in their favour on 25th April 1955. The Board further accepted the concurrent findings of the two courts below that the vendees did not enter into possession by virtue of an agreement as alleged by the contesting defendants.
It, however, dismissed the suit of the plaintiff on the ground that the plaintiff had entered into possession in the year 1362 F. and vendees possession was adverse to the plaintiff and since the suit had been instituted more than three years after entering into possession of the vendees it was time barred. The Board further held that the U.P. State being a necessary party non-impleadment of U.P. State also made the suit non-maintainable. The last point found against the plaintiff petitioner was that the plaintiff had instituted the suit on the basis of a sale deed executed by the court and had not proved the document in accordance with law.
6. The petitioner has filed the present writ petition and challenged the decision of the Board of Revenue as manifestly erroneous on the face of the record. On a previous occasion I had heard this writ petition and had heard the petitioner's learned counsel and Sri Sharafat Husain holding the brief of Sri Mawaziz Abbas. After having heard the learned counsel I had directed the petitioner to file the decree of the suit decreeing the claim of the petitioner for specific performance of the contract in order to see whether all the vendees defendants were parties to the suit for specific performance of the contract. The said document although not filed was shown to me at the time of the hearing of this writ petition and it disclosed that all the defendants vendees were not parties to the suit for specific performance of the contract.
7. When this case was taken up for hearing yesterday the learned counsel for the petitioner was heard, Sri Tripurari Nath one of the counsel for the opposite parties made a statement that he had no instructions in the case. No other counsel appeared to oppose the petition with the result that I had not the advantage of hearing the learned counsel for the opposite parties any further after the arguments of the petitioner's counsel had closed.
8. After hearing the learned counsel for the petitioner I am of opinion that this petition should succeed The facts stated above would show that there were two co-tenure-holders Mohammad Hanif and Abdul Majid Mohammad Hanif's share was purchased by the contesting defendants who according to the findings of fact recorded by the revenue courts entered into possession over the entire property belonging to Mohammad Hanif and Abdul Majid. The question for determination is as to whether this possession of the vendees was lawful or otherwise than in accordance with law. A co-sharer unless there is a division of that property is entitled to half of every inch of the plot. Therefore, if the vendees entered into possession of the property it cannot be said that their possession was otherwise than in accordance with law. The Board of Revenue has dismissed the suit on the ground that the possession of the defendants was adverse to the plaintiff. There appears to be some confusion when the Board says that the possession of the vendees was adverse to the plaintiff when the plaintiff had not come on the scene at all.
At the time when the vendees entered into possession it was Abdul Majid who was the other co-tenure-holder and it had not been shown as to whether the defendants entered into possession in spite of the protest by Abdul Majid. The Board of Revenue had not at all considered whether the possession of the defendants vendees was without the consent of Abdul Majid or not. A suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act is a suit for ejectment of a person who is in possession otherwise than in accordance with law and also without the consent of the bhumidhar, sirdar or asami as the case may be.
In the case of a co-tenure-holder there cannot he his ejectment by another co-tenure-holder. The other co-tenure-holder can get a decree for joint possession only and further his possession cannot be said to be otherwise than in accordance with law because he has a right to be in possession by virtue of his title as a co-tenure-holder. In order to establish his possession as otherwise than in accordance with law it has to be proved that he was in possession over the share of the other without his consent which has not been proved in this case. The language of Section 209 of the U.P. Zamindari Abolition and Land Reforms Act is similar to the language of Section 180 of the U.P. Tenancy Act before the amendment by Act X of 1947.
Before this amendment this Court always held that a co-sharer could not be ejected under Section 180 of the U.P. Tenancy Act on the suit of another co-sharer, the proper remedy was held to be a suit for joint possession in civil court or partition. After the amendment of this section by Act X of 1947 the situation changed in view of the explanation I added to the section. Since the language of Section 209 of the U.P. Zamindari Abolition and Land Reforms Act is similar to the unamended Section 180 of the U. P. Tenancy Act in my opinion a suit by one co-tenure-holder against another co-tenure-holder cannot lie under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act. If such is the position in law the right of a co-tenure-holder cannot be said to have been extinguished by lapse of three years.
To such a case in my opinion twelve years period of limitation will apply in order to extinguish the right of such a co-tenure-holder. In this case the Board appears to have committed a mistake in applying three years rule of limitation. Since in my opinion Section 209 of the U.P. Zamindari Abolition and Land Reforms Act did not apply to the facts of such a case the right of Abdul Majid did not extinguish by the vendees remaining in possession for three years. Firstly because such a suit as already stated above did not lie under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act. Secondly it has not been proved in this case that the vendees entered into possession without the consent of Abdul Majid the other co-tenure-holder. The first two courts in my opinion were right in holding that the possession of one co-tenure-holder could not be accepted to be adverse unless ouster was proved, the Board in taking a contrary view has erred in law.
9. The second point which the Board has decided against the petitioner is that the petitioner did not implead the State of U.P. as a party to the suit. It was observed by the Board that in a case where rival question of tenure-holdership is involved U.P. State was a necessary party. It may be said that U.P. State in such cases may be a proper party but there was no statutory provision for impleading the State of U.P in a case under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act. In absence of such statutory provision it can only be said that the State was a proper party and non-impleadment of the U. P. State could not be held to be a fatal defect.
10. Coming to the last point which the Board has decided against the petitioner it has to be remembered that after the filing of the sale deed in court the two courts, the trial court as well as the first appellate court, acted upon the document without any objection by the defendants. No objection was taken by the defendants, in the trial court nor in the first appellate court about insufficiency of proof of the document. In such circumstance it was not open to the Board in second appeal to have allowed the defendants to take this plea. Learned counsel for the petitioner has very rightly relied on Behari Lal v. Amin Chand AIR 1924 All. 918, Ajodhya Prasad Dube v. Mahabir : AIR1935All293 and Gopal Das v. Sri Thakurji for the proposition that such an objection cannot be taken in appeal much less in second appeal. The document accepted being a registered document and executed by the court and acted upon by the first two courts could not be held to be inadmissible for lack of proof. If the defendants had taken that objection the formal proof would have been offered in the first court. This in my opinion could not be a ground for reversing the judgment of the two courts as held in the above cases cited by the learned counsel for the petitioner.
11. For the reasons given above it is clear that the Board has committed a mistake apparent on the face of the record in reversing the judgments of the two courts below. Accordingly this petition succeeds and the judgment of the Board dated the 18th of January 1963/ 29th of January 1963 is hereby quashed. The petitioner is entitled to his costs of this petition.