To begin with on the death of Smt.
a married daughter on the death of Smt.
This mutation appears to have been challenged by Smt.
Menda.
There after Jit moved the High Court for granting leave to appeal to this Court and the same having been refused the present appeal by special leave has been filed in this Court.
Appeal by special leave from the judgment and order dated the 5 10 1966 of the High Court of Judicature at Allahabad in Special Appeal No.
Thereafter Jit filed a writ petition before the Allahabad High Court on December 21, 1962 and the writ petition was allowed by the Single Judge on August 6, 1965.
The U.P. Tenancy Act 17 of 1939 was passed on December 16, 1939 and by s. 2 there of the Agra Tenancy Act, 1926 and the Oudh Rent Act, 1886 were repealed.
The mutation was made by the Tahsilder Maharajgunj on July 30, 1954.
Thereafter Jit filed a second appeal be fore the District Deputy Director of Consolidation, Rae Bareli, which was permitted under the U.P. Consolidation of Holdings Act as it was in force then.
In the meanwhile in 1961 a numberification under s. 4 of the Consolidation Act was issued bringing village Bishunpur m which the lands in dispute were situate under the companysolidation operations.
Phoola was Second Appeal No.421 of 1943 decided on 20 12 48.
At the time of the death of Ramadhin in 1916 the tenancy of the lands in dispute was governed by the provisions of the Oudh Rent Act, 1886 hereinafter referred to J as the Rent Act of 1886.
Phoola and he accordingly struck off the name of it from the Khattas and directed that Smt.
Phoola was entitled to succeed to the property left by Smt.
Ramcharan appears to have died issueless but Ramadhin died leaving a widow Smt.
Phoola being the legal heir of Smt.
Phoolas name may be mutated therein.
Accordingly Smt.
Menda.
Phoola who was respondent No.
Explanation.
36 and 37 applied would be deemed to be a statutory tenant.
97 of 1965.
Section 36 of the Rent Act of 1886 runs thus Every tenant, number being a tenant with a right of occupancy or a sub tenant, shall be entitled to retain possession of the holding occupied by him at the companymencement of the Oudh Rent Amendment Act, 1921, at the rent then payable by him, for a period of ten years from the date of the last change in his rent or the last alteration in the area of the holding, or where numbersuch change or alteration has taken place, from the date on which the tenant was admitted to the occupation of the holding.
Under the provisions of the Rent Act of 1886 Smt.
The U.P. Tenancy Act 17 of 1939 appears to have companysolidated the tenancies in the whole of the Province and the legislature passed one Act which would govern all the tenancies in the entire Province.
The dispute refers to lands companyprised in Khata Nos.
Menda.
The District Deputy Director of Consolidation upheld the plea of Smt.
Meanwhile five years later the Rent Act of 1886 was amended by U.P. Act 4 of 1921 under which the status of a statutory tenant was company feared on a person who was in possession of the lands on the date when the amendment came into force.
Menda was in possession of the holding at the date when the amendment came into force, she would be clearly governed by s. 36 and number s. 37 of the Rent Act of 1886 which deals with tenants who were admitted to the occupation of the holding after the companying into force of the amendment.
A person who succeeds as an heir of a 1 statutory tenant under section 48 shall number be deemed to be a statutory tenant unless he has obtained a patta from the landlord or has remained in occupation of the holding for three years after the expiration of the period for which he is entitled to retain occupation of the holding under section 48 Provided that when a holding is held by two or more companytenants numberperson who succeeds as an heir of any such companytenant under section 48 shall be deemed to be a statutory tenant of the holding unless he has obtained a patta from the landlord, or has remained in occupation of the holding for three years after the expiration of the period for which the heir of the last surviving companytenant is entitled to retain occupation of the holding under section 48.
Menda and a daughter from her Smt.
During the pendency of the present proceedings Jit also died and the proceedings have been companytinued by his son Ram Jivan Lallu.
The Settlement officer by his order dated December 26, 1961 dismissed the appeal and upheld the order of the Consolidation officer.
The dispute between the parties appears to have arisen on the death of Ramadhin one of the sons of Harbans who died in 1916 leaving behind his widow Smt.
Accordingly Smt.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The areas in Agra were governed by the Agra Tenancy Act and those in Oudh by the Oudh Rent Act.
Phoola and held that she was entitled , to inherit the property of Smt.
The learned companynsel submitted that the present case squarely fell within the ambit of s. 172 of the Abolition Act since Smt.
The other son Gurdin died leaving a son Jit who had companytested the present proceedings against Smt.
As Smt.
But this was number the position prior to 1954 when the married daughter was companypletely excluded from inheritance.
901 of 1968.
Menda had originally inherited the property from her husband Ramadhin and, therefore, according to the order of succession provided in s. 171 of the Abolition Act which applied to s. 172, Jit who was the son of the brother of Ramadhin would succeed in preference to the daughter of Smt.
Menda.
The respondents despite service did number appear and we requested Mr. G. N. Dikshit to assist the Court amicus curiae and we are grateful to him for the valuable assistance he rendered to us in deciding the companyplicated issues of law involved in this appeal.
It is also number disputed that Smt.
Menda was to companytinue in possession of the lands as an heir of Ramadhin but only during the fixed period of the tenancy on the rent payable to the landlord and was number entitled to renewal of the same.
Menda being her legal heir in preference to Jit who was merely her husbands brothers son and relied upon s. 171 of the Abolition Act, and accordingly dismissed the appeal.
This order was passed by the Assistant Collector on June 4, 1926 and thereafter Smt.
Phoola who claimed to be the daughter of Smt.
In support of the appeal Mr. J. P. Goyal has submitted that the Division Bench as also the Revenue Courts had taken a wrong view of the law in holding that Smt.
Thereafter Jit filed a revision before the Joint Director of Consolidation who also dismissed the revision as being companycluded by a finding of fact.
Phoola, Jit was successful in getting his name mutated in respect of the Khattas in dispute as being the nearest heir to Smt.
The District of Rae Bareli fell in what was previously known as the Oudh Area of the United 1 Provinces.
Menda and therefore a preferential heir to the property as companypared to Jit.
Menda companytinued to occupy the lands after the death of her husband in 1916.
By virtue of the Explanation extracted above, a tenant to whom ss.
Phoola.
Menda her name be mutated in respect of the Khattas.
Phoola then filed a special appeal before a Division Bench of the Allahabad High Court which reversed the decision of the Sing Judge and dismissed the writ petition filed by Jit upholding the plea of Smt.
Thereafter Jit filed an appeal against the order of the Consolidation officer before the Settlement officer Consolidations , Tahsil Maharajgunj, District Rae Bareli.
The terms and companyditions of the tenancy at the time of the death of Ramadhin were governed by s.48 of the Rent Act of 1886 which applied to the oudh Area where the lands in dispute were situate.
172 and 174 of the P. Zamindari Abolition and Land Re forms Act, 1950 Act No.
N. Dikshit and M. V. Goswami for Respondents.
1 of 1951 . ,,
P. Goyal and A. G. Ratnaparkhi for the Appellant.
Menda.
Phoola.
In order to appreciate the point of law involved in this appeal, it may be necessary to give a resume of be facts which culminated is the judgment of the High Court under appeal.
J. This is an appeal by special leave against the judgment of a Division Bench of the High Court of Allahabad dated October 5, 1966, and raises a question of law regarding the applicability of ss.
Phoola.
The Judgment of the Court was delivered by FAZAL ALI.
It appears that the case had a checkered career and the dispute between the parties passed through several phases both before the Revenue Courts and in the High Court.
Phoola filed an application during the companysolidation operations before the Consolidation officer, Bachhrawan, for companyrection of the records under s. 10 1 of the U.P. Consolidation of Holdings Act and prayed that the name of Jit in the Khattas in dispute may be struck off and Smt.
In 1957 Smt Phoola filed a suit under s. 209 of the Abolition Act for the ejectment of Jit from the disputed lands, on the ground that she was the sole legal heir of the 3 L522SCI/76 property left by Smt.
The Consolidation officer accepted the plea of Smt.
1002, 1344 and 1411 of village Bishunpur in the District of Rae Bareli U.P. It is number disputed that these Khattas originally belonged to one Harbans who died leaving behind three sons, namely Gurdin, Ramcharan and Ramadhin.
