SHEO DAYAL Vs. RAM HARAKH

JUDGEMENT

(1.) THIS second appeal arises out of a suit for possession over certain tenancy plots.

(2.) THE facts found by the lower appellate Court are that some of the plots in suit were originally the tenancy of Ram Padarath upto the year 1328 Fasli; that some time during 1328 Fasii Bam padarath died so that, in 1329 Fasli, those plots were shown as being in the possession of his widow, Shrimati Maharaj Dei; that in 1331 Fasli Shrimati Maharaj Dei obtained a lease of all the plots in suit, which included the plots which had been shown in the name of Ram Padarath in 1328 Fasli, from the landlord and she was granted the rights of a statutory tenant; and that shrimati Maharaj Dei died in 1945 and then a dispute arose as to who was entitled to succeed to the tenancy Tights in those plots. The plaintiffs-appellants are the sons of the daughter of Ram padarath and Shrimati Maharaj Dei whereas the respondents are the brother and the brother's son of Ram Padarath. The appellants claimed that, by virtue of the lease of 1331 Fasli, Shrimati maharaj Dei had become a tenant of those plots in suit in her own rights and, consequently, under Section 37, U. P. Tenancy Act, which was applicable when Shrimati Maharaj Dei died, they were entitled to succeed to her tenancy. On behalf of the respondents the contention was that Shrimati Maharal Dei had originally acquired tenancy rights in the plots in suit as a widow and consequently, on her death, succession would be governed by Sections 35 and 36, U. P. Tenancy Act, so that respondent 1, Ram Harakh, brother of Ram Padarath deceased, had a right to succeed, in preference to the daughter's sons. The lower appellate Court, following two decisions of the Board of Revenue, held that Shrimati Maharaj Dei succeeded to the tenancy rights in the plots in suit as a widow and the succession, was consequently governed by Sections 35 and 36, U. P. Tenancy Act. Consequently, the lower appellate Court decided the suit in favour of the respondents and dismissed the suit of the appellants.

(3.) SECTION 37, U. P. Tenancy Act has been made applicable only to such female tenants who are-not mentioned in Section 34 or Section 36 of the Act so that it is a residuary section and, in order to apply this section, it is necessary to interpret Sections 34 and 36 of the Act. Section 34 is, in this case, not applicable at all and need not be mentioned. Section 36 is as follows :