USMAN GHANI Vs. TAUFIQ ALI

JUDGEMENT

(1.) THIS writ petition is directed against the orders passed by opposite parties Nos. 4 and 5 in appeal and revision arising out of proceedings under Section 9A(2) of the U.P. Consolidation of Holdings Act.

(2.) DISPUTE in the present case relates to land of Khata No. 179 situated in village Dandupur, Pargana and Tehsil Patti, District Pratapgarh. In the basic year Khatauni, the names of Petitioners Nos. 1 and 2 were recorded. Opposite Parties Nos. 1, 2 and 3 filed objection under Section 9 -A(2) of the U.P. Consolidation of Holdings Act claiming co -tenancy rights along with the Petitioners with the allegation that the land in dispute belonged to Ami Mohammad, the common ancestor who had two daughters ; Hakimunnisan and Habibunnisan. Petitioner No. 1 is son of Habibunnisan and Petitioner No. 2 is her grand -son. Opposite parties Nos. 1, 2 and 3 are the daughter's sons of Hakimunnisan. The pedigree mentioned in para 3 of the writ petition is not disputed. The Petitioners contested the claim of opposite parties Nos. 1, 2 and 3 asserting that after death of Ami Mohammad, the land in dispute was settled with their mother Habibunnisan and her name was also recorded as sole -tenant and she remained in exclusive possession and after her death the Petitioners continued in possession. They asserted that opposite parties Nos. 1, 2 and 3 are not co -tenure holders nor they have ever been in possession over the land in dispute. The Consolidation Officer, after taking evidence of parties dismissed the objection by order dated 15 -5 -1976 holding that after death of Ami Mohammad his both daughters Hakimunnisan and Habibunnisan inherited the land in dispute and when Hakimunnisan died Habibunnisan was alive and as such she, being sister, she inherited the interest of the deceased sister in the holding in question and the Petitioners are the sole tenure holders. Aggrieved by this order, appeal was preferred by opposite parties Nos. 1, 2 and and 3 which was allowed by Assistant Settlement Officer, Consolidation by order dated 20 -12 -1978 and it was held that Hakimunnisan and Habibunnisan were tenure holders of the land in dispute and both were in possession. For recording the finding on the material question of possession, statement of Ibraheem husband of Habibunnisan was relied upon, who had deposed that both the sisters were in possession and after death of Hakimunnisan her daughter's sons are in possession. The Petitioners and opposite parties Nos. 1, 2 and 3 were thus held to be co -tenure holders in the land in dispute. Against the said order, Petitioners preferred revision which was dismissed by the Deputy Director of Consolidation by order dated 16 -9 -1981 and the findings recorded by the Assistant Settlement Officer, Consolidation, was confirmed. The Petitioners have challenged these orders passed by the opposite parties Nos. 4 and 5 in the present writ petition. Learned Counsel for the Petitioner contended that after death of Hakimunnisan, succession in the case will be governed by provisions of Section 172 read with Section 171(2) of U.P. Zamindari Abolition and Land Reforms Act and Habibunnisan, who was alive at the time of the death of Hakimunnisan inherited her interest in the land in dispute being sister. I am unable to agree with this contention. Statutory tenancy in holding under Oudh Rent Act was not heritable. Heirs of statutory tenants were entitled to remain in occupation for a period of five years from the date of the tenant's death at the rent payable by the deceased but they were not entitled to renewal of the tenancy. This is apparent from the provisions contained under Section 48 of Oudh Rent Act which provides as under:

(3.) IN view of said provision it is clear that the heirs of the statutory tenant were only entitled to remain in occupation for a period of five years, but they were not entitled to renewal of tenancy. After expiry of said statutory period, it was f or the landlord to settle the land in question with the heirs or with one of them or to resume the land and settle it afresh with some other person. In case the heirs in occupation were not ejected within a period of three years after expiry of the statutory period of five years, they became statutory tenants themselves as is evident from the provisions contained in Section 3 Sub -section (18) of the Oudh Rent Act, which defines the term 'statutory tenant and reads as follows: