TOOFANI Vs. ADDITIONAL DIRECTOR OF CONSOLIDATION DEORIA

JUDGEMENT

(1.) The short facts are these. Ram Lagan was the original owner of the property covered by the Civil. On his death Bhojia, his wife became the tenureholder. However, she got married to Rajmani through whom a son Toofani was begotten. The said Toofani is the appellant before us. In relation to consolidation proceedings both the original officer as well as the appellate authority held that Toofani was entitled to succeed as the heir of Bhojia. In revision that was set aside holding that the respondents who are the heirs of the last male holder Respondents 2 and 3, namely, Shankar and Mangal will be the tenureholders. The reasons which prompted the Revisional Authority to hold so are two (1 Section 36 of the U. P. Tenancy Act of 1939 which takes away the right of the widow on remarriage. Secondly, the earlier proceedings initiated by Toofani got terminated against him as early as on 16/7/1978. Thereafter, there was no evidence whatever by way of rent receipts to prove the appellant's right. Against this order a writ petition was unsuccessfully preferred. The review thereof was also dismissed. Aggrieved by these orders, the Civil.

(2.) It is strenuously urged on behalf of the appellant by Mr Swarup learned counsel for the appellant that having regard to the categorical ruling of this court reported in Mainia v. Deputy Director of Consolidation though no doubt by reason of Section 36 Bhojia as a widow lost her right on remarriage yet where she continued to be in possession, she would be tenureholder in her own independent right in view of Section 180 which has been dealt with in the case. The case Fits in squarely with this ruling and the appellant is entitled to succeed. In opposition Mr Ranjit Kumar submits that when admittedly Bhojia married Rajmani Section 36 will come into play. As a result whatever right Bhojia had as a widow came to be extinguished by the operation of the said section. Thereafter, there is nothing further to indicate as to the application of Section 180. This fact will distinguish the case from ruling relied on by the appellant.

(3.) On a careful consideration of the above, we are inclined to accept the contention advanced on behalf of the respondents. The very ruling relied on by the appellant in Mainia case in our view concludes the issue as to the scope of Section 36. We hold the same is the position here. What distinguishes the case on hand from the ruling cited is the applicability of Section 180. Section 180 of the Act will apply only if the Zamindar took any proceedings against the widow, Presently, we are not confronted with such a situation. The dispute is between two sets of heirs (1 the appellant claiming as the son of widow who got married to Rajmani and (2 the other (Respondents 2 and 3 claiming as the heirs of the last male holder namely Ram Lagan. Therefore, this case could easily be distinguished. As held by the Revisional Authority which is confirmed both in the writ petition as well as in review petition, the rights of the appellant-Toofani came to an end as early as on 16/7/1978. It matters very little whether those proceedings are summary in nature. If he is claiming an independent right he should have let in evidence in this regard which evidence is lacking in this case. Accordingly agreeing with the Revisional Authority and High court we conclude that the Civil carries no merit and is dismissed. No costs.