Allahabad High Court
Brij Bhushan Singh And Others vs Lalta Prasad And Others on 22 April, 2024
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:30956 Reserved Court No. 14 Case :- WRIT - B No. - 996 of 1981 Petitioner :- Brij Bhushan Singh And Others Respondent :- Lalta Prasad And Others Counsel for Petitioner :- H.A.Husain,D.K.Dixit,Dr. G.P. Tripathi,Prabhat Kumar Upadhyay,Prasiddha Narayan Singh,Pratibha Shukla,Prem Shanker Shukla,Satish Kumar Tripathi,Shrikant Maishra Counsel for Respondent :- C.S.C.,H.S.Sahai,Nagendra B. Singh,Niranjan Singh,R.L. Ojha,R.N. Shukla,U.S.Sahi Along with Case :- WRIT - B No. - 643 of 2008 Petitioner :- Ram Narayan Singh Respondent :- Deputy Director Of Consolidation Pratapgarh Counsel for Petitioner :- V.B.Verma,Niranjan Singh,R.K.Singh Counsel for Respondent :- C.S.C.,Nagendra B. Singh,R.N. Shukla,Salik Ram Tiwari Hon'ble Jaspreet Singh,J.
1. These are a batch of two writ petitions whereby the petitioners in their respective petitions assail the order of the Settlement Officer of Consolidation dated 26.04.1971 and the order passed by the Deputy Director of Consolidation dated 24.12.1975 affirming the order of the Settlement Officer of Consolidation.
2. An additional fact in W.P. No. 643 of 2008 is that Ram Narayan Singh had assailed the order dated 26.04.1971 passed by the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation dated 24.12.1975 in the year 2008, hence, the DDC by means of its order dated 30th June, 2008 rejected the revision inter alia on the ground that by virtue of Section 52 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act of 1953) the proceedings were not pending on the said date of the notification, hence, the revision was dismissed. It is also significant to notice that Ram Narayan Singh, the petitioner of W.P. No. 643 of 2008 was also the respondent no. 8 in the leading petition bearing No. 996 of 1981 (earlier numbered as W.P. No. 3219 (MS) of 1975) and he was issued notice in the said petition but he filed his petition in the year 2008 i.e. after 33 years.
3. Since the issue is common in both the petitions, hence, they were connected and are being decided by this common judgment. During the pendency of two petitions, few of the parties, had died and the learned counsel for the petitioner has moved an application for substitution which was allowed and substitution has been carried out. However, this Court shall refer to the parties as they were originally impleaded in the writ petition.
4. In order to appreciate the controversy involved in the instant petitions, certain brief facts giving rise to the instant petitions, are being noticed hereinafter first:-
5. The dispute in question relates to Khata No. 43 and 46 situate in Village Shivrajpur, Pargana, Tehsil and District Pratapgarh.
6. Upon the commencement of the consolidation operations in the village in question, the aforesaid Khata Nos. 43 and 46 were recorded in the name of the petitioner and the contesting respondents.
7. The petitioners have given a pedigree in paragraph 2 of the petition which is primarily not disputed by the contesting respondents. It has been indicated that Sri Devi Dayal Singh was the common ancestor who was survived by his 6 sons namely Ganga Deen Singh, Mata Badal, Surya Pal, Dan Pal, Chandra Pal and Ram Niwas.
8. In order to connect the parties appropriately, this Court shall be taking note of the parties as they were originally impleaded in the leading petition no. 996 of 1981.
9. The petitioners are from the branch of Ram Niwas whereas the respondent nos. 1, 2 and 8 are from the branch of Ram Pal, the respondent no. 3, 4 and 5 are from the branch of Ganga Deen and respondent nos. 6 and 7 are from the branch of Mata Badal.
10. A number of objections were filed before the Assistant Consolidation Officer regarding title and in the same vein the petitioners too filed their separate objections. The ground of contest of the petitioners was that Smt. Bhuvraji wife of Chandra Pal had executed a lease dated 10.12.1945 in favour of the petitioners of her entire interest in the property and had also delivered its possession to the petitioner on the same date.
11. It was thus contended that on the basis of the aforesaid lease, the petitioners were in exclusive possession of the entire share of Smt. Bhuvraji and alternatively it was also contended that they had perfected their rights by adverse possession as they continued to be in possession since 1945 to the exclusion of all others and in knowledge of the remaining co-sharers including its original owner Smt. Bhuvraji.
12. The other limb of contest, on behalf of the petitioners, was to the effect that after the death of their father Ram Niwas, the petitioners have inherited the rights from their father too.
13. In order to support his contentions apart from oral evidence, the petitioners had filed the Khewat from 1354 Fasli to 1357 Fasli wherein the name of the petitioners as well as his father Ram Niwas was recorded over the land in question. The petitioner had also filed the extracts of Khatauni of 1359 Fasli, Khasra of 1357 Fasli to 1366 Fasli.
14. Upon considering the objections of the respective parties, the Consolidation Officer framed two issues (i) whether Ram Karan Singh and others had any right as a co-tenure holder in Khata Nos. 43 and 46 and if so, their share; (ii) Whether Sant Baksh Singh and others had any share as co-tenure holder in Khata Nos. 43 and if so, their share.
15. It will be relevant to clarify here that Ram Karan Singh and others who have been mentioned in the preceding paragraph are from the branch of Ganga Deen whereas Sant Baksh Singh and others are from the branch of Ram Pal.
16. Upon due contest, the Consolidation Officer found that the heirs of Ganga Deen would get an extra share on the basis of custom of 'Jetanshi' (a privilege of having an extra share for being the eldest in the family). It was also found that even previously the Branch of Ganga Deen always had an extra share on the aforesaid basis, accordingly, the remaining area was determined and it was divided amongst the other co-sharers after providing an extra share to the heirs of Ganga Deen.
17. In so far as the case of the petitioners is concerned, it was found that upon the death of Ram Niwas, the entire share would vest with the petitioner being his son. The Consolidation Officer also found that since the lease executed by Smt. Bhuvraji in the year 1945 was in the name of the petitioner which came to be duly recorded in the revenue records and for more than 23 years the name of Bhabhuti Singh continued to be recorded as its lessee, hence, he would have full rights on the basis of the lease and even otherwise, he had perfected his rights by adverse possession, hence, the petitioner succeeded in his objections.
18. This judgment of the Consolidation Officer dated 17.08.1968 was assailed by the petitioner as well as the private respondents, inasmuch as, in so far as the petitioner is concerned, he assailed the finding relating to the grant of extra share on account of 'Jethanshi' stating that the aforesaid custom could not prevail after the promulgation of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Act of 1950) and moreover there was no evidence led by the parties which could establish the prevalence of the said custom from long period of time which had acquired recognition and for the aforesaid reasons, the finding given by the Consolidation Officer was erroneous and not based on evidence.
19. The private respondents who filed their appeal assailed the finding of the Consolidation Officer on both counts i.e. for grant of an extra share on the basis of jethanshi to the heirs of Ganga Deen as well as upholding the claim of the petitioner on the basis of the lease executed by Smt. Bhuvraji.
20. The ground of contest in the appeal before the SOC relating to Jethanshi was based on the submission that in order to grant an extra share on the basis of jethanshi, it ought to have been proved that there was such a custom which was prevalent amongst the family members and in their community and in absence thereof merely on the basis of entries in the revenue records, the extra share could not have been granted apart from the fact that post the Act of 1950 no such custom could prevail over the statutory law.
21. It was further contended before the SOC that by virtue of Section 9 of the United Provinces Tenancy Act, 1939 (hereinafter referred to as "the Act of 1939) which was in operation at the time when the said lease deed dated 10.12.1945 was executed which prohibited a transfer by lease of sir land, hence, no right could have accrued in favour of Bhabhuti Singh as his lease was invalid and the share of Smt. Bhuvraji would devolve on all the heirs and as such the determination of shares made by the Consolidation Officer was bad.
22. The Settlement Officer, Consolidation by means of its order dated 26.04.1971 allowed the appeal in part and the appeal of the petitioner was partly dismissed while the appeal of the private respondent was partly allowed as the findings regarding the grant of extra share to the heirs of Ganga Deen on the basis of custom of Jethanshi was upheld but it did not find favour with the validity of the lease deed dated 10.12.1945 executed by Smt. Bhuvraji in favour of Bhabhuti Singh and held that the said lease was hit by Section 9 (2) of the U.P. Tenancy Act, 1939 and no sir holder could transfer the sir land by lease. It also found that since Smt. Bhuvraji died in the year 1959 and since the date of death of Smt. Bhuvraji, 6 years had not lapsed, consequently, Bhabhuti Singh could not have acquired any right in the said property of Bhuvraji on the basis of adverse possession and consequently the share of Bhuvraji would devolve on all the co-sharers and not solely to the petitioners.
23. It is the petitioner, Bhabhuti Singh, in the first instance who assailed the order passed by the SOC by filing a revision before the DDC. The DDC while exercising its power under Section 48 (1) of the Act of 1953 upheld the findings recorded by the SOC and dismissed the revision by means of judgment dated 24.12.1975 and it is in this backdrop that Bhabhuti Singh preferred W.P. No. 996 of 1981 (earlier this petition was numbered as Civil Misc. Writ No. 3219 of 1975).
24. It is also to be noticed that Ram Narayan Singh who is the private respondent no. 8 in the leading petition bearing No. 996 of 1981 assailed the order passed by the SOC dated 26.04.1971 by filing a revision before the DDC on 10.06.2005 along with an application seeking condonation of delay of about 34 years. This revision of Ram Narayan Singh was dismissed by the Revisional Court by means of order dated 30th June, 2008 which has been challenged by Ram Narayan Singh in the connected petition bearing No. 643 of 2008 along with the orders of the DDC dated 24.12.1971 by which the revision of Bhabhuti Singh was also dismissed so also the order dated 26.04.1971 passed by the SOC.
25. Sri Prabhat Kumar Upadhyay, learned counsel for the petitioner in leading petition bearing No. 996 of 1981 had appeared to argue on behalf of the petitioner whereas Sri R.N. Shukla, learned counsel appeared on behalf of the private respondent no. 1 namely Lalta Prasad who is from the branch of Dan Pal. None appeared on behalf of the other respondents i.e. representing the branch of Ganga Deen and Mata Badal.
26. Even in the connected writ petition, none appeared to press the petitions of Ram Narayan Singh, who is from the branch of Mata Badal.
27. The learned counsel for the petitioner Sri Upadhyay has vehemently urged that the findings recorded by the SOC as well as the DDC is bad in the eyes of law for the reason that Section 9 of the U.P. Tenancy Act, 1939 did not create any embargo and moreover the lease deed executed by Smt. Bhuvraji dated 10.12.1945 was in the nature of Patta Istmarari (perpetual lease) and there is no legal bar for executing such a lease, hence, the finding recorded both by the SOC and the DDC was bad in the eyes of law on the aforesaid counts. He has also relied upon a decision of a coordinate Bench of this Court in Ashok Kumar @ Acchaibar and Another Vs. DDC, Jaunpur and Others 1998 RD 293 to urge that a sir holder can execute a lease and such a lease would not be barred.
28. It was also urged that once the lease is held to be valid, the petitioner would get exclusive right of the share of Smt. Bhuvraji and the share of the petitioner's father Ram Niwas was also required to be re-determined as the heirs of Ganga Deen would not get any preferential extra share on the basis of 'jethanshi' especially when no such custom was specifically pleaded and proved and in absence of any proof that such a custom was prevalent since long in the community of the petitioners and the contesting respondents, hence, it could not be accepted for determining the shares of the co-sharers to their detriment.
29. It was also urged that the alleged custom of 'jethansi' was not proved and even otherwise once the U.P. Z.A. & L.R. Act, 1950 was enforced, the rights and determination of the shares of the respective parties would be governed in terms of the order of succession provided in Section 171 of the U.P.Z.A.&L.R. Act, 1950 which has not been done and by ignoring the aforesaid aspect both the SOC as well as the DDC have committed an error.
30. It was further argued by Sri Upadhyay that even otherwise, it is to be noticed that the lease executed by Smt. Bhuvraji was of the year 1945 and by then the Hindu Women Right to Property Act, 1937 had already come into force. It was further urged that by virtue of Section 9 (1) of the U.P. Tenancy Act, 1939, the devolution of the rights of a sir holder would be in accordance with the personal law to which the deceased was subject, hence, it is urged that since the Hindu Women Rights to Property Act, 1937 was applicable to Smt. Bhuvraji and she had the right to execute the lease, consequently, upon the death of Smt. Bhuvraji in 1959, her rights would devolve only on the petitioner which has also not been noticed, accordingly for all the reasons, the writ petitions deserve to be allowed after setting aside the judgment of the SOC as well as the DDC.
31. Sri R.N. Shukla, learned counsel appearing for the private respondent no. 1 has urged that in so far as the issue of grant of an extra share on the basis of custom of 'Jethansi' is concerned, all the three courts have upheld the said finding which is a finding of pure fact, hence, the same cannot be assailed in the instant petition and the contention of the learned counsel for the petitioner on the aforesaid issue deserves to be ignored.
32. Sri Shukla has further urged that in so far as the family pedigree is concerned, there is no dispute between the parties. In so far as the execution of the lease dated 10.12.1945 is concerned, the said document was legally inoperative since in view of Section 9 of the Act of 1939, the 'sir' land could not be transferred by way of a lease.
33. It is also urged that admittedly, the land in question was not divided as per Section 15 of the U.P. Tenancy Act, 1939, hence, Smt. Bhuvraji could not execute the said lease.
34. It is also stated that Smt. Bhuvraji had expired only in the year 1959, hence, the petitioner Bhabhuti Singh could not have acquired any right on the basis of adverse possession, hence, the contention of learned counsel for the petitioner is not backed by any provision of law rather the basis for the right claimed by the petitioners is a lease dated10.12.1945 which was invalid and legally inoperative in terms of Section 9 of the U.P. Tenancy Act, 1939, thus, if the foundation itself is bad, the petitioners would get no right, consequently, the writ petitions deserve to be dismissed.
35. The Court has heard the learned counsel for the parties and also perused the material on record.
36. The two issues which require the attention of this Court are (i) whether the plea of getting an extra share by virtue of custom of 'jethansi' is validly proved and if so then whether on the aforesaid basis an extra share could be given to the heirs of Ganga Deen; (ii) whether the petitioner could claim any right on the basis of the lease dated 10.12.1945 which is in the nature of Patta Istmarari (perpetual lease) or the lease was bad and inoperative in light of Section 9 (2) of the U.P. Tenancy Act, 1939.
37. In so far as the first question relating to the custom of Jethansi is concerned, it will first be seen as to how the right claimed on the basis of custom of jethansi has been pleaded and proved.
38. At the outset, it will be relevant to notice the decision of the Apex Court in Ratanlal Alias Babulal Chunilal Samsuka Vs. Sundarbai Govardhandas Samsuka; (2018) 11 SCC 119 where the plea of custom was considered and how is required to be proved has been clarified and the relevant portion there of reads as under:-
"13. India has a strong tradition of respect for difference and diversity which is reflected under the Hindu Family Laws as it is applicable to diverse communities living from the southern tip to northern mountains, from western plains to eastern hills. Diversity in our country brings along various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to be governed by customs within the foundation of law. It is well known that a custom commands legitimacy not by an authority of law formed by the State rather from the public acceptance and acknowledgment. This Court in Gokal Chand v. Parvin Kumari [Gokal Chand v. Parvin Kumari, (1952) 1 SCC 713 : AIR 1952 SC 231] , has explained the ingredients of a valid custom in the following manner: (AIR p. 234, para 14) "14. ... (3) A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality."
Black's Law Dictionary defines customary law as:
"customs that are accepted as legal requirements or obligatory rules of conduct, practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they are laws". [ Bryan A. Garner, Black's Law Dictionary (10th Edn.) p. 468.] The Privy Council in Collector of Madura v. Moottoo Ramalinga Sathupathy [Collector of Madura v. Moottoo Ramalinga Sathupathy, 1868 SCC OnLine PC 3 : (1867-69) 12 Moo IA 397.] , has observed that:
"under the Hindu system of law, clear proof of usage will outweigh the written text of law". (SCC OnLine PC) 14 [Ed.: Para 14 corrected vide Official Corrigendum No. F.3/Ed.B.J./105/2017 dated 15-2-2018.] . As per the settled law under Section 3(a) of the Act, the following ingredients are necessary for establishing a valid custom:
(a) Continuity
(b) Certainty
(c) Long usage
(d) Reasonability As customs, when pleaded are mostly at variance with the general law, they should be strictly proved. Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the satisfaction of the court in a most clear and unambiguous manner. It should be noted that, there are many types of customs to name a few--general customs, local customs and tribal customs, etc. and the burden of proof for establishing a type of custom depends on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine custom viz. that it is accepted wilfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant.
15. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognising a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration. In this case at hand there was no pleading or proof which could justify that the above standards were met."
39. From the perusal of the aforesaid, it would be clear that in so far as the plea of custom to be successfully proved it first necessarily needs to be pleaded that a particular custom is prevalent in a particular community to which the person claiming the benefit of the custom is part of and it has by long usage acquired a force of law and thereafter by appropriate proof it is required to be substantiated and proved.
40. In the instant case at hand, it would be clear that there was no clear pleading regarding the custom of jethanshi. The only evidence on record was certain revenue entries which indicated that in the said revenue records which are prior to 1950, the heirs of Ganga Deen had an extra share. No oral evidence was led in this regard by either of the parties to establish the custom and its prevalence and practice in the family of the parties and that since long the custom was in practice and acquired force of law.
41. Apparently, there was no effort made to produce the Wazibh-urj to substantiate the said custom. The Wazibh-urj is a record of custom and in absence thereof merely on the basis of certain revenue entries, the plea of jethansi could not have been held to be proved in accordance with law especially in absence of material pleadings and oral evidence to substantiate the prevalence and practice of the said custom with long usage acquiring the force of law.
42. It will also be relevant to notice that with the promulgation of the U.P.Z.A. & L.R. Act, 1950, it had a fundamental impact on the rights of the tenure holders and all their previous rights came to be extinguished and all rights vested in the State. It is only in furtherance thereof that fresh rights came to be created, vested, settled and recognized with the land holders as provided in the Act of 1950. It is from this point of time, when the U.P.Z.A.& L.R. Act, 1950 came into force, all earlier rights claimed would have no impact as fresh rights were created and settled with the persons who were in possession. Any right devolved on any party post the enactment of the Act of 1950 was governed by the order of succession provided in Section 171 of the U.P.Z.A. & L.R. Act, 1950.
43. Moreover, though, there is no material evidence to substantiate the prevalence of the said custom and that it was proved in accordance with law yet even if at all there was any custom, the same could not have an overriding effect on the Act of 1950. The issue regarding the determination of respective shares of the co-sharers, upon the commencement of consolidation operations in the village would be governed by the U.P.Z.A. & L.R. Act which was in operation and binding on the parties.
44. In light of the above, this Court finds that the findings returned by the three consolidation courts on the issue of jethanshi, the same was not appropriately considered as there was not enough pleading and evidence to suggest that the said custom was prevalent in the community to which the petitioners belonged nor any evidence to the aforesaid effect was led to establish that it was practiced in the family and with long usage it had acquired the force of law. The three Consolidation Courts have committed an error in accepting the custom of 'jethanshi' without appropriate evidence and proof in this regard and the essentials of proving a custom was conscipicuoulsy absent.
45. The entries made in the revenue record which has been relied upon to accept the said custom, even though, there is a presumption in respect of the revenue entries but it has to be appropriately proved and for which the private respondent who had raised the plea of custom of jethansi ought to have led proper proof to establish it but it is conspicuously absent in the instant case. Thus, an extra share given to the heirs of Ganga Deen on the basis of the said custom which could not be proved. Merely, an entry in the revenue record, without any other corroborating evidence relating to proving the essential of the custom, was not enough to uphold the plea of custom of Jethanshi.
46. In so far as the issue regarding the share of Smt. Bhuvraji is concerned, in this regard too, it would be noticed that the said lease is dated 10.12.1945. It is no doubt true that on the date of the execution of the said lease, the Hindu Women Right to Property Act, 1937 was in operation but the fact remains that there is nothing on record to indicate that Smt. Bhuvraji got the right from her deceased husband Chandra Pal prior to 1937 as there is no date regarding the death of Chandra Pal available on record.
47. This is relevant for the reason that in case if Chandra Pal had died prior to the Act of 1937 then by that point of time, neither the Hindu Womens Right of Property Act, 1937 would have been in force nor the U.P. Tenancy Act, 1939 would be in force and in this context, it would also be seen that the Oudh Rent Act, 1886 would have been in operation and in the Oudh Rent Act, 1886, the law regarding devolution of rights was different. Thus, the contention of the learned counsel for the petitioner regarding rights of Smt. Bhuvraji to execute the lease in terms of the Act of 1937 cannot be appreciated as the ingredients necessary to examine the said plea would emanate only if the date of death of Chandra Pal (the husband of Bhuvraji) is known, thus, for the aforesaid reason, this plea does not find favour with this Court. Moreover, this plea was neither raised before the three courts of Consolidation nor it has the necessary foundation and no proof, hence, the said plea is turned down.
48. In so far as the rights of the petitioners on the basis of lease of 1945 is concerned, it would be seen that Section 9 of the U.P. Tenancy Act, 1939 which is relied upon by the learned counsel for the respondent to indicate that Smt. Bhuvraji could not execute the lease, if examined, would reveal that Section 9 of the U.P. Tenancy Act, 1939 provides that on the death of a sir holder, the rights would devolve in accordance with the personal law to which the deceased was subject.
49. Sub Section 2 of Section 9 of the said Act of 1939 prohibits the transfer of sir rights except by a gift to a person to whom proprietary right in the sir is gift or by exchange. For better appreciation, Section 9 of the U.P. Tenancy Act, 1939 is being reproduced hereinafter for ready reference:-
"9. [Succession to, and transfer of sir right.] -
(1) On the death of a sir-holder sir right shall not devolve except in accordance with the personal law to which the deceased was subject.
(2) sir right is not transferable except, - (a) by gift to a person to whom the proprietary right in the sir is gift, or (b) by exchange :
Provided that no sir-holder shall exchange sir for sir in a mahal in which he is not a co-sharer unless the proprietary rights in the sir are exchanged."
50. Much emphasis was laid by the learned counsel for the private respondent no. 1 that by virtue of Sub Section 2 of Section 9 of the Act of 1939, the sir rights could not be transferred except by a gift or by exchange and in the case at hand admittedly, Smt. Bhuvraji, the sir holder executed a lease in favour of Bhabhuti Singh, hence, it was inoperative.
51. Before considering the aforesaid aspect, it will be relevant to notice certain other provisions of the U.P. Tenancy Act, 1939 i.e. Section 6, 11, 12, 14, 16, 19, 20, 20-A, 26 and Section 45 and the same are reproduced hereinafter:-
6. [U.P. Ill of 1926. XXII of 1886] [Definition of Sir.] - "Sir" means -
(a) land which immediately before the commencement of this Act was sir under the provisions of the Agra Tenancy Act, 1926, or the Oudh Rent Act, 1886;
Provided that if, at the commencement of this Act, the sir holder is assessed in Uttar Pradesh to a local rate of more than twenty-five rupees, land which was sir under the provisions of clause (d) or clause (e) of Section 4 of the Agra Tenancy Act, 1926, or of clause
(c) or clause (d) of sub-section (17) of Section 3 of the Oudh Rent Act, 1886, shall on this Act coming into force cease to be sir unless it was-
(i) [U.P. Ill of 1926. XXII of 1886 U.P. Ill of 1901] before the first day of July, 1938, received otherwise than in accordance with the provisions of Section 122 of the United Provinces Land Revenue Act, 1901, or
(ii) before the commencement of this Act, received in accordance with the provisions of that section, in exchange for land which was sir under the provisions of clause (a) or clause (b) or clause (c) of Section 4 of the Agra Tenancy Act, 1926, or of clause (a) or clause (b) of-sub-
section (17) of Section 3 of the Oudh Rent Act, 1886 :
[U.P. Ill of 1926 XXII of 1886] Provided further that the provisions of the first proviso shall apply to a sir-holder who was not at the commencement of this Act assessed into Uttar Pradesh to a local rate of more than twenty-five rupees, if he or his predecessor in-interest was so assessed on the 30th June, 1938, unless the local rate assessed on him has been decreased by resettlement or by revision of settlement or unless since that day he obtained his sir rights by succession or survivorship:
Provided also that if the land to which the provisions of the first proviso apply was joint sir of several sir holders and all such joint sir holders are not sir holders to whom such provisions apply, such land shall not cease to be sir at the commencement of this Act, but shall remain sir until that portion of it which is the sir of those joint holders to whom such provision apply is demarcated under the provisions of this Act;
(b) land which was khudkasht and which is demarcated as sir under the provisions of this Act.
Explanation - if any portion of the land revenue assessed on the sir holder's land has been remitted owing to fall in the price of agricultural produce, the local rate payable by him shall, for the purposes of this section, be deemed to have been reduced in the same proportion.
"11. [Extinction of sir right.] -
Land shall cease to be sir, -
(a) when the sir-holder becomes an ex-proprietary tenant of such land; or
(b) when under the provisions of this Act, hereditary rights accrue in such land; or
(c) when being grove-land, it is transferred otherwise than in accordance with the provisions of sub-section (2) of Section 9.
Provided that if an ex-proprietary tenant regains his proprietary right in the land held by him as ex-proprietary tenant such land shall again become his sir :
Provided further that if, on redemption of a mortgage, the mortgagor regains possession of land which under the provisions of the Agra Tenancy Act, 1926, ceased to be sir and to which the provisions of the second paragraph of sub-section (5) of Section 15 of that Act applied, such land shall again become his sir. [U.P. Ill of 1926]
12. [Hereditary rights of sir-holder's heir on whom proprietary rights do not devolve.] -
(1) If on the death of sir-holder the proprietary right in his sir does not devolve according to the personal law' to which the deceased was subject, every person on whom no such right devolves but on whom no such right would have devolved in accordance with that law, shall become a hereditary tenant of so much of such sir as corresponds with the share in such right as would have devolved on him according to that law.
(2) When proprietary right in sir devolves on a person on whom it would have devolved under the personal law to which the deceased was subject and hereditary rights accrue in favour of other persons under the provisions of sub-section (1), the Assistant Collector incharge of the sub-division shall demarcate and divide off the area in which hereditary rights accrue and shall, in accordance with rules made by the Board, determine the rent payable for such area.
Explanation - In this section and in Section 9 the expression "personal law" in the case of Muslims shall mean the Muslim law, of inheritance.
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14. [Rights of certain tenants of sir.] -
Any person who, at the commencement of this Act, is a tenant of land which ceased to be sir under the provisions of Section 6 shall become a hereditary tenant of his holding.
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16. [Hereditary rights in sir and demarcation of sir which is let.] -
(1) Every person who, at the commencement of this Act, is a tenant of sir-holding from a sir-holder to whom the provision of the first proviso to clause (a) of Section 6 apply shall, at such commencement, become a hereditary tenant of his holding if at such commencement such sir-holder possess fifty acres or more than fifty acres of sir which is not let, and which did not cease to be sir under any of the previous provisions of this Act.
(2) If at such commencement such sir-holder possesses less than fifty acres of such sir, such person shall become a hereditary tenant only in accordance with a declaration to that effect made under the provisions of sub-section (3).
(3) In a case to which the provisions of sub-section (2) apply the Assistant Collector may of his own motion, and shall, on the application either of sir-holder or the tenant, demarcate the sir of the sir-holder and shall declare that any tenant of land situated in the area not so demarcated shall be a hereditary tenant of his holding or of such person thereof as is situated in such area.
(4) In demarcating sir under the provisions of sub-section (3), the Assistant Collector shall demarcate as sir so much of the sir-holder's sir and of his khudkasht as amounts to fifty acres, or the area of the sir-holder's sir, whichever is less :
Provided that only so much of the sir-holder's sir which is let shall be demarcated as sir as is necessary to make the total area demarcated as sir equal to fifty acres or the area of the sir-holder's sir, whichever is less.
(5) If, in accordance with the provisions of sub-section (3), the Assistant Collector orders that a tenant be the hereditary tenant of a part only of his holding, he shall divide off such portion and shall determine the rent of such portion and of the remainder.
(6) Before passing order under sub-section (3) the Assistant Collector may make, such inquiry as he considers necessary and shall give the sir-holder and the tenants of sir an opportunity to show cause why the demarcation should be made in a particular way.
(7) For the purposes of this section, an acre situated in Bundelkhand or in the trans Jamuna portion of the Allahabad, Etawah, Agra and the Mathura districts and in such areas as the State Government may specify by notification in the official Gazette shall be deemed to be half an acre.
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19. [Sir-holder not to eject a tenant in certain circumstances.] -
(1) In a suit or proceeding for the ejectment of a tenant of sir, the sir-holder shall, before the first date fixed for recording evidence, furnish to the Court such particulars as the Board may by rule made in this behalf prescribe for ascertaining, -
(a) whether the sir-holder is a person to whom the provisions of the first proviso to clause (a) of Section 6 apply; and
(b) the total area and nature of the sir-holder's sir and Khudkasht:
Provided that if the sir-holder satisfies the Court that he had sufficient cause for not filing the particulars before the date fixed, it may, subject to the payment of costs to the opposite party, extend the time.
(2) If the sir-holder does not file the particulars mentioned in subsection (1) within the time fixed thereunder, or deliberately furnishes inaccurate particulars, the Court shall dismiss the suit or proceeding, as the case may be, and shall declare the tenant to be a hereditary tenant.
(3) If the Court finds is that the sir-holder could apply under the provisions of Section 15 or Section 16, it shall, before deciding such suit or proceeding, take action under Section 15 or Section 16, as the case may be, and if it declares or orders that the tenant is a hereditary tenant of the whole or any part of his holding, it shall dismiss the suit or proceeding:
Provided that if the Court is not empowered to take action under the provisions of Section 15 or Section 16, it shall forward the case to the Assistant Collector in-charge of the sub-division who shall decide it is accordance with the provisions of this section.
20. [Rights of tenants of sir.] - Every person, who is a tenant ofsirat the commencement of this Act and who does not become a hereditary tenant under the provisions of Section 14 or Section 15 or Section 16 or whom is admitted thereafter as a tenant of sir, shall be entitled to retain possession of his holding for a period of five years from the date of the commencement of this Act or of admission, as the case may be.
20-A. [Every person who, on the date of the commencement of the United Provinces Tenancy (Amendment) Act, 1947, is a tenant of sir-holding from a sir-holder to whom the provisions of the first proviso to clause (a) of Section 6 apply, and who does not become a hereditary tenant under the provisions of Section 14 or Section 15 or section 16, shall be entitled to retain possession of his holding for a period of five years from that date.]
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26. [Exproprietary tenants.] -
(1) When the landlord of the whole of a mahal or of a specific area in a mahal transfers the whole of his proprietary right in such mahal or area by voluntary alienation otherwise than under the provisions of sub-section (2) of Section 9, or when the whole of such landlord's right in such mahal or area is transferred by foreclosure or sale in execution of a decree or order of a civil or revenue Court, the landlord shall become an exproprietary tenant of his sirand of such portion of his khudkashtas he has cultivated continuously for three years at the date of transfer.
(2) When the landlord of a share in a mahal or in a specific area in a mahal so transfers the whole of such share or when such share is so transferred the landlord shall become an exproprietary tenant of his sirand of such portion of his khudkashtas he has cultivated continuously for three years at the date of the transfer and which, in the case of joint sir or joint knudkasht is demarcated by the officer empowered to fix the rent of the holding under the provisions of Section 36 of the United Provinces Land Revenue Act, 1901.
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45. [Tenancy when extinguished.] - The interest of tenant shall be extinguished, -
(a) when he dies, leaving no heir entitled to inherit, in accordance with the provisions of this Act; (b) in land, which has been sold in execution of a decree for arrears of rent, or from which he has been ejected in execution Of a decree or order of a Court;
(c) subject to the provisions of Sections 82 to 88, by surrender, or by abandonment:
(d) in land which has been acquired under the provisions of the Land Acquisition Act, 1894;
(e) subject to the proviso to Section 46, by merger;
(f) where the tenant has been deprived of possession and his right to recover possession is barred by limitation.
52. From the perusal of the aforesaid sections, it would indicate that Section 11 relates to extinction of sir rights. At this stage, it will also be necessary to notice that though Sub Section 2 of Section 9 states that the sir right is not transferrable except by gift or by exchange but its consequence is not mentioned rather Section 11 of the Act of 1939 which relates to sir right does not provide that in case if any sir right is transferred other than by a gift or exchange then the sir rights would stand extinguished and moreover Section 11 (c) relates to grove land and its provisions also clarifies the above position.
53. Moreover, Section 14 refers to a right of certain tenants of sir who are the persons in whose favour a lease is executed by a sir holder. A person in whose favour a lease is executed by a sir holder is termed as a 'tenant of sir' and their rights have also been elucidated in Section 20 of the Act of 1939 as well as the right of a tenant of sir to retain possession is provided in Section 20-A of the Act of 1939. Section 19 also provides the procedure for ejectment of a tenant of sir.
54. Even Section 45 which deals with extinguishment of tenancy does not provide that in case any lease is executed by a sir holder then his tenancy or the such tenancy shall stand extinguished.
55. In absence of any indication regarding the consequence of transferring a sir land other than by the two modes provided in Section 9 of the Act of 1939, it cannot be said that the deed itself would be void.
56. Now, in the aforesaid context where the Act of 1939 does not provide for a consequence relating to a deed which is not in consonance with Section 9 (2) of the Act of 1939 being void, then it would reveal that the said lease continues to subsist and upon the promulgation of the U.P. Zamindari and Land Reforms Act, 1950 its Section 10 provides that every tenant of land recorded as sir would be deemed to be a hereditary tenant.
57. Similarly, Section 17 of the U.P.Z.A. & L.R. Act, 1950 provides that any land which was sir on the date immediately preceding the date of vesting but was held on the said date by a tenant on 'Patta Dawami or Istmarari' shall not for the purposes of Section 18 be deemed to be the sir of such intermediary. This particular section clarifies that if the said land is held by the tenant on the basis of 'Patta Istmarari' then the said land would not be treated that of the intermediary but its effect has been mentioned in Section 18 of the Act of 1950 which reads as under:-
"17. Sir land held by tenant on Patta Dawami or Istamrari.--Any land which was sir of an intermediary on the date immediately preceding the date of vesting but was held on the said date by a tenant on Patta Dawami or Istamrari shall not, for the purpose of Section 18 [* * *] be deemed to be the sir of such intermediary.
18. Settlement of certain lands with intermediaries or cultivators as Bhumidhar.--(1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands--
(a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove,
(b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh
(c) held by a fixed-rate tenant or a rent-free grantee as such, or
(d) held as such by--
(i) an occupancy tenant,
(ii) a hereditary tenant, possessing the right to transfer the holding by sale,
(iii) a tenant on Patta Dawami or Istamrari referred to in Section 17, [(e) held by a grove holder,] on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, [lessee, tenant, grantee or grove-holder,] as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a bhumidhar thereof.
(2) Every person belonging the class mentioned in [Section 3 or sub-section (2) of Section 3-A] of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949 (U.P. Act X of 1949), who has been granted the declaration referred to in Section 6 of the said Act in respect of any holding or share thereof shall, unless the declaration is subsequently set aside, be deemed to be the bhumidhar of the holding or the share in respect of which the declaration has been made and continues in force.
(3) Notwithstanding anything contained in the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949 (U.P. Act X of 1949), any declaration granted under Section 6 of the said Act in favour of a tenant whom sub-section (2) of Section 10 applies, shall be and is hereby cancelled and the amount deposited by him under Section 3 or 6 of the said Act shall, after deducting the amount which might have been paid or be payable by the State Government to his landholder under Sections 7 and 8 of the said Act, be refunded to the person entitled in such manner as may be prescribed."
58. Section 20 of the Act of 1950 also indicates that a tenant of sir, a sub tenant or an occupant to be an Adhiwasi and it reads as under:-
"20. A tenant of Sir, sub-tenant or an occupant to be an adhivasi. - [Every person who-(a) on the date immediately preceding the date of vesting was or has been deemed to be in accordance with the provisions of this Act]-
(i) except as provided in [sub-clause (i) of Clause (b)], a tenant of sir other than a tenant referred to in Clause (ix) of Section 19 or in whose favour hereditary rights accrue in accordance with the provisions of Section 10; or
(ii) except as provided in [sub-clause (i) of Clause (b)], a sub-tenant other than a sub-tenant referred to in proviso to sub-section (3) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947), or in sub-section (4) of Section 47 of the United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939) of any land other than grove land,
(b) was recorded as occupant,-
(i) of any land [other than grove land or land to which Section 16 applies or land referred to in the proviso to sub-section (3) of Section 27 of the U.P. Tenancy (Amendment) Act, 1947] in the khasra or khatauni of 1356-F prepared under Section 28[33] respectively of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901), or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under Clause (c) of sub-section (1) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947); or
(ii) of any land to which Section 16 applies, in the [khasra or khatauni of 1356 fasli prepared under Sections 28 and 33 respectively of] the United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901), but who was not in possession in the year 1356-F;shall, unless he has become a bhumidhar of the land under sub-section (2) of Section 18 or an asami under Clause (h) of Section 21, be called adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof.
Explanation I. - Where a person referred to in Clause (b) was evicted from the land after June 30, 1948, he shall notwithstanding anything in any order, be deemed to be a person entitled to regain possession of the land Explanation II. - Where any entry in the records referred to in Clause (b) has been corrected before the date of vesting under or in accordance with the provisions of the U.P. Land Revenue Act, 1901 (U P. Act III of 1901), the entry so corrected shall for the purposes of the said clause, prevail].
[Explanation III. - For the purposes of Explanation II an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent Court requiring any correction in records had been made before the said date and had become final even though the correction may not have been incorporated in the record.
Explanation IV. - For purposes of this section 'occupant' as respects any land does not include a person who was entitled as an intermediary to the land or any share therein in the Year 1356 fasli.]"
59. In light of the above, it would be seen that primarily, even if at all, the lease deed was executed in 1945 by Smt. Bhuvraji, the same would not have any impact on Bhabhuti Singh rather from the perusal of the aforesaid provision, it would indicate that Smt. Bhuvraji would lose her right over the said land and she would become an ex-proprietary tenant but none of the provisions indicate that the deed of such a lease would be void and the lease would be invalid and no rights would be conferred on the lessee rather the said lessee is treated as 'a tenant of sir'.
60. Significantly, what is also relevant to notice that since the execution of the lease in 1945, the name of Bhabhuti Singh was duly recorded in the revenue records and Smt. Bhuvraji till the time she died in the year 1959, she made no effort to challenge the said entry nor she instituted any suit to eject Sri Bhabhuti. Even otherwise the Act of 1950 came into force and the rights of Bhabhuti was protected in terms of Section 17, 18, 19 and 20 of the U.P.Z.A. & L.R. Act, 1950. At this stage, it will be also be relevant to notice the decision of this Court in Ashok Kumar @ Acchaibar (supra) and paragraph, 9 and 10 to 17 are being reproduced hereinafter for ready reference:-
"9. The Deputy Director of Consolidation has further found that 'Sir' rights were not transferable but the Patta in question amounted to a gift. It has also been found that in any view of the matter on account of continuous possession of Ram Pal Singh he had matured tenurial rights therein on account of adverse possession which possession continued undisturbed.
10. In view of the aforesaid findings, it was concluded that the land in dispute could not be deemed to be joint 'Sir' as claimed by Ashok Kumar and Satya Narain and they could not be deemed to have any right therein on the basis of succession. He also concluded that the settlement of 1944 relied upon by Satya Narain and Ashok Kumar was not in respect of the laijd in dispute but related to some other property.
11. The question which arises for consideration in this case is as to whether the Patta executed by Smt. Thakurain Kubera Kunwar in favour of Ram Pal Singh was legally inoperative and ineffective and whether the 'Sir' in question could be taken to be a joint Sir of the co-proprietor which included the predecessor in interest of Ashok Kumar and Satya Narain. An other question which also arises for consideration is as to whether on the findings recorded by the Deputy Director of Consolidation on the question of continuous exclusive possession over the land in dispute, irrespective of the execution of the Patta in favour of Ram Pal Singh, his descendant were entitled to be recorded exclusively as the only tenure-holders of the land in dispute excluding Ashok Kumar and Satya Narain.
12. 'Sir right' means the right conferred on 'Sir' holders under the provisions of U.P. Tenancy Act, 1939 and by the United Provinces Land Revenue Act, 1901 and includes the rights to exclusive possession of the 'Sir' against co-sharers of the Sir holder in the proprietary right, subject to a liability to account for profits. It may be noticed that the words "right to exclusive possession" of the 'Sir' against the co-sharer of the Sir-holder in the proprietary right an envisaged under Section 8 of the U.P. Tenancy Act, 1939 refers to a situation where the individual proprietor is in exclusive possession of Sir plots in joint village, Mahal or Patti in which the 'Sir' falls. This however, does not mean that the Sir-holder has a right to exclusive ownership which vests in all the proprietors, hence the liability to account for profits. On the partition of the Mahal, the right to the possession would be restricted to the extent of proprietary interest of Sir-holders. Under the provisions contained in Section 8 of the U.P. Tenancy Act, it is not contemplated that once an area becomes a 'Sir' of an individual, the Sir-holder becomes its owner irrespective of the interest he may have as a co-sharer.
13. In a joint Khewat, a Sir-holder is not exclusive owner of his Sir but he has a right to exclusive possession thereof against his co-sharers in proprietary interest so that he can let out his Sir and eject a tenant thereof without any reference to other co-owners. There can be no manner of doubt that a co-proprietor can have more 'Sir' area than the area of his share in the proprietary interest but whether it be a joint 'Sir' or exclusive 'Sir', there cannot be a transfer of specific 'Sir' plot except subject to the conditions prescribed under the Act.
14. The materials on the record as well as the facts proved and established as found by the respondent authorities indicate that the predecessor-in-interest of Satya Narain and Ashok Kumar were not co-sharers in Khewat as on the partition, separate Patti in the name of Smt. Kubera Kunwar had been carved out and the plots in dispute pertained to that Patti and were the "Sir" of Smt. Thakurain Kubera Kunwar. Ram Pal Singh claimed to be in possession as a perpetual lessee of 'Sir'. In the lease deed, a copy of which is on record executed on 28.5.43, it had been clearly mentioned by Smt. Thakurain Kubera Kunwar that the plots which were the subject-matter of the lease were her exclusive Sir. She had described the Patta as the Patta Istamarari. This lease had to be treated as a perpetual lease protecting the lessee's heirs from the ejectment. In view of the use of the expression 'Istamarari', the lessee's right was heritable. There being nothing in the pleadings to indicate any contrary custom, etc.
15. It may be noticed that the provision contained in Section 9(2) of the U.P. Tenancy Act stipulates that 'Sir' rights are not transferable except by gift or exchange to a person to whom proprietary rights in the Sir is gifted but this prohibition has been made subject to an exception indicated in the proviso to Section 9, sub-clause (2) of the Act. The proviso stipulates that no Sir-holder shall exchange Sir' for 'Sir' in a Mahal in Which he is not co-sharer unless the proprietary rights in the 'Sir' are exchanged. Under the scheme of U.P. Tenancy Act, there was no impediment regarding letting out of 'Sir' land by the 'Sir' holder.
16.It may be noticed that the provision contained in Section 11 of the U.P. Tenancy Act is by no means exhaustive as regards the ways in which 'Sir' rights may be extinguished. There is nothing to prevent a landholder from conferring a perpeual lessee's rights in his 'Sir' land on a tenant. A perpetual lease of 'Sir' land is perfectly valid and enforceable under sub-section (4) of Section 4 of the Act.
17. The family settlement of 1944 which has been heavily relied upon by the petitioners, a true copy of which has been filed as Annexure-5 to the writ petition, indicates that it was in respect of the proprietary rights. There is, however, a mention therein to the effect that it covers the agricultural holdings situate in Sarai Ghatam to the extent of 12 annas but this reference to the agricultural holdings related to Mahal Chatrasal Singh and his Patti. There is nothing in the aforesaid Ikrarnama which could lead to an inference that the proprietary right or the 'Sir' rights relating to the agricultural holdings pertaining to Patti Smt. Kubera Kunwar were the subject-matter of the aforesaid deed of Ikrarnama."
61. In light of the above, it cannot be said that the lease dated 10.12.1945 was bad in the eyes of law or that no rights could be conferred upon Bhabhuti Singh on the basis of the said lease.
62. There is another way to look at the said issue and that would be that admittedly the land was sir of Smt. Bhuvraji. Even if she executed the lease in 1945 and for the sake of argument if it is noticed that the said lease was void even then the implication would be that Bhabhuti would not have any right in the said land but there is no dispute to the fact that he was in possession of the said land from the date of the execution of that lease in the year 1945 and during the lifetime of Bhuvraji, she never assailed the said lease nor the other co-sharers, at the relevant time, raised any objection nor took recourse to any legal proceedings either assailing the lease deed or for seeking eviction of Bhabhuti.
63. In the aforesaid circumstances, when the possession of Bhabhuti Singh was not disputed and he remained in possession then upon promulgation of the U.P. Zamindari Abolition and Land Reforms Act, 1950, the impact of his possession is governed in terms of Section 18 to 20 of the U.P.Z.A.& L.R. Act, 1950 which confer rights upon the petitioners.
64. Apparently, as already noticed above, upon the promulgation of the Act of 1950, all the land vested with the State and the legal consequence as noticed above in Sections 18 to 20 of the U.P.Z.A. & L.R. Act, 1950 would indicate that even on the basis of possession or a person holding rights under Patta Dawami or Patta Istmarari and such rights were on the basis of such a document or possession then he would get fresh rights conferred on him under the Act of 1950. Any defect in the transfer on the basis of the said lease of 1945 would not be carried forward after the Act of 1950 especially when Smt. Bhuvraji did not assail the same nor the other co-sharers. Once, fresh rights were conferred in terms of Section 18 to 20 of the Act of 1950 then merely because, for the sake of arguments, the lease deed of 1945 was invalid yet the possession of Bhabhuti was established, he still would be conferred with rights which were new rights in terms of Act of 1950 and therefore it cannot be said that he would not get the right over the share and its area which came into his hands on the basis of the lease of 1945.
65. This aspect has been completely ignored by the three courts and the findings returned by three courts without considering the aforesaid legal provisions and its effect, hence, cannot be sustained as they are perverse and are liable to be set aside.
66. In the aforesaid facts and circumstances, there can be no manner of doubt that the two courts of SOC and the DDC have ignored the relevant provisions and have returned a finding which is not legally tenable and as such are liable to be set aside.
67. For all the aforesaid reasons recorded hereinabove, this Court is of the firm opinion that the order passed by the Consolidation Officer dated 17.08.1968 is partly set aside in so far as it relates to grant of extra share on the basis of custom of 'jethanshi' to the heirs of Ganga Deen is concerned. The order passed by the Settlement Officer of Consolidation dated 26.04.1971 as well as the order passed by the Deputy Director of Consolidation dated 24.12.1975 are set aside and quashed. The rights and share of the parties will be re-determined ignoring the custom of jethansi and the rights of the petitioners shall be re-determined having due regard to the fact that the petitioner would get rights over the entire share as held by Smt. Bhuvraji and also the share they would inherit from their late father Ram Niwas, as mentioned above.
68. The aforesaid writ petition is allowed in the aforesaid terms and this order shall also be placed on the record of the connected writ petition which shall also stand disposed of in terms of this judgment. Costs are made easy.
Order Date :- 22nd April, 2024 Asheesh (Jaspreet Singh, J.)