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Rajasthan High Court · body

1961 DIGILAW 208 (RAJ)

Dalichand v. Khurja

1961-09-30

R.N.MADHOK, S.L.KAKAR

body1961
This appeal has been preferred to the Board as Director of Land Records against the order of the Collector, Chittorgarh, dated 13.4.61. The facts in brief are that in village Hathiyana, during the settlement operation, fields No. 372 to 386 were entered in the name of Khurja, Chunilal, Champalal and Dulichand. Shri Khuraja and Chunilal respondents applied for correction of this entry on the ground that the land in dispute was in their physical possession. The Assistant Settlement Officer dismissed this application on the ground that in the previous settlement as per agreement between the parties the land had been correctly entered in l/4th share in favour of Khurja, Chunilal, Champalal and Dalichand. An appeal was filed against this order before the Settlement Officer who remanded the case with the direction that issues be framed and the case be decided in accordance with law. During the course of these proceedings the survey and settlement operations were closed and the case was sent to the Collector, Chittorgarh under sec. 127 of the Land Revenue Act. The parties produced oral and documentary evidence. The learned Collector, however, accepted the application and ordered the entries to be made only in the name of Khurja and Chunilal respondent. It is this order of the Collector which is now being challenged before us. We have heard the counsel for the parties and have also gone through the record. The reason which found favour with the learned Collector was that even if it be admitted that the constructive possession was that of the appellants, it would not be proper to concede that the appellants would also be in possession on the basis of their constructive possession. In the opinion of the learned Collector, so far as the entries in the record of rights are concerned they should be made on the basis of the actual physical possession, and as admittedly the actual physical possession was of the respondents, the entries cannot be made in favour of the appellants. The learned Collector relied on RRD 1960 page 60 in support of his decision. In this case it is an admitted fact that Khurja, Dulichand and Chunnilal respondents and Gokal deceased the father of Champalal appellants were four brothers. The appellants contested that he and Dulichand were also co-sharers in the family property. The learned Collector relied on RRD 1960 page 60 in support of his decision. In this case it is an admitted fact that Khurja, Dulichand and Chunnilal respondents and Gokal deceased the father of Champalal appellants were four brothers. The appellants contested that he and Dulichand were also co-sharers in the family property. Khurja and Chunnilal on the other hand contested that the land was not a family property. The learned Collector has not given any finding on this issue, but decided the case in favour of the respondent on the ground that the entries in the settlement records have to be made on the basis of the actual physical possession, and not constructive possession. The question in this case boils down to whether a co-sharer if he is not in actual physical possession of the land is entitled to get bis name entered in the record of rights. Sec. 125 which relates to the settlement of the disputes as to the entry in the record of rights states as under— "125. Settlement of disputes as to entries in record of rights— (1) All other disputes regarding entries in the record of rights shall be decided on the basis of possession. (2) If in the course of inquiry into a dispute under this section the Land Records Officer is unable to satisfy himself as to which party is in possession, he shall ascertain by summery enquiry who is the person best entitled to possession and shall decide the dispute accordingly. I (3) An order as to possession passed under the section shall debar a person from establishing his right to the property in any civil or revenue court having jurisdiction. "Possession" has been laid down as the basis of decision with regard to the dispute covered under sec. 125 regarding entries on the record of rights. "Possession" as defined by Prof. Salmond is "The continuing exercise of a claim to the exclusive use of it. "It expresses the simple notion of physical capacity to deal with a thing as he likes to the exclusion of every one else. As a physical fact, therefore, possession does not easily admit either of division or participation. Possession is said to be exclusive because two persons cannot be in physical occupation of the same point of space at the same time. As a physical fact, therefore, possession does not easily admit either of division or participation. Possession is said to be exclusive because two persons cannot be in physical occupation of the same point of space at the same time. But from this it does not follow that two or more persons cannot sue or exercise dominion, over the same property at the same time. It is in this context that we have to bear in mind the two concepts of "possession in fact" and possession in law". To quote Prof. Salmond again, we have to remember the possibility of more or less serious divergences between legal principle and the truth of thing. Not everything which is recognised as possession by the law need be such in truth and in fact. And conversely, the law by reasons good or bad, may be moved to exclude from the limits of the conceptions facts which rightly fall in them." There are three possible cases in this respect. First, possession may and usually does exist both in fact and in law. Secondly, it may exist in fact and not in law viz. possession by a servant of his masters property, or of an agent. Thirdly, possession may exist in law but not in fact. It is this possession which is called constructive, but law has attributed advantages and results of possession to some one who as a matter of fact does not possess it. Co-sharers under both Mitakashara and Dayabhaga systems of Hindu Law, are said to be "seized per meet per tout", that is, each of them has the entire possession as well as on every parcel of the whole. A co-sharer therefore, would be in juridical possession of a land even . if he may not be in physical possession of it. It appears to us that the learned Collector has been misled in holding that the term possession used in sec. 125 means actual physical possession and not the juridical possession of a co-sharer by the wording of sec. 145 of the Criminal Procedure Code. In proceedings under that Section the Magistrate has to determine actual physical possession, not necessarily lawful possession. It may even include the possession of a mere trespasser. The words used in sec. 145 of the Criminal Procedure Code are actual possession; and not possession; as in sec. 125. 145 of the Criminal Procedure Code. In proceedings under that Section the Magistrate has to determine actual physical possession, not necessarily lawful possession. It may even include the possession of a mere trespasser. The words used in sec. 145 of the Criminal Procedure Code are actual possession; and not possession; as in sec. 125. In civil law constructive possession is nothing more than a right to take a physical possession and as stated by Pollock in his book on Possession, the correct use of term constructive possession" would be co-extensive with and limited to those cases where a person entitled to possession is allowed the same remedies as if he had been really in possession. So far as the claim of getting entries made in the record of rights in concerned we are of the opinion that the guiding factor is juridical possession which may include possession in law wherever recognised and not necessarily the actual possession. Actual physical possession of a trespasser will obviously find no place in the record of rights. This is in line with the wording of sec. 125(2) of the Act. It stares that the Land Records Officer if he is unable to satisfy himself as to which party is in possession shall ascertain which side is best entitled to possession. His enquiry therefore, cannot be said to be confined only to actual physical possession. RRD 1960 p. 16 which has been relied on by the learned Collector and RRD 1958 page 63 which were cited by the learned counsel for the respondents are not relevant to the point at issue. They state that the basis for making entries is the factum of possession. They do not say that a co-sharer who is in possession in law is not entitled to be entered in the record of rights. A co-sharer as we have explained above is entitled to possession on every portion of the land. The facts in those cases were entirely different as the dispute did not relate to any person claiming on the basis of possession in law and we do not think that they can be quoted as authorities for the proposition that a person entitled to juridical possession on a piece of land cannot get his name entered in the record of rights. If that proposition were to be held good, no absentee co-owner would have his right recorded in land records, whereas a trespasser would have such a right. This can never be the intention of law. We, therefore, think that the learned Addl. Collector has erred in holding that even if the appellant was a co-sharer in the land in dispute, he was not entitled to get his name entered in the record of rights. As we have stated about the learned Collector has not given any categorical finding on the fact whether the appellant is a co-sharer or not. This claim is being denied by the opposite party. We, therefore partly accept the appeal set aside the order of the Collector and remand the case to him with the direction that he should first find out from the evidence on record, and on such other evidence as may be produced, whether the appellant is a co-sharer or not, and then decide the case in accordance with the observa-tions made above.