BANS ALI Vs. MOHAMMAD ALI

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for recovery of possession of two holdings, one in village Lauki and the other in village Shekhapur. The plaintiffs' case was that one Habi was originally a tenant of these holdings. He left three sons, Karimullah, Fakhrullah and Akbar all who succeeded him on his death. After the death of Akbar Ali, Mst. Muliman his widow succeeded him as his heir and remained in possession of the property till her death in 1943. The plaintiffs 1 and 2 being the sons of Karimullah and Fakhrullah respectively and plaintiff No. 3 being the grandson of Fakhrullah are now entitled to the holdings on the death of Mst. Muliman, as the reversioners of her husband, Akbar Ali. The suit was instituted in 1945. The plaintiffs claim that the succession to the tenancy was governed by Section 36, U. P. Tenancy Act.

(2.) THE defendants are the sons of Malka daughter of Muliman. Their defence was that Mst. Muliman was a tenant of the holdings in her own right and did not hold possession as an heir of akbar Ali. They further state that she had obtained two pattas of the holdings in the year 1330f for ten years ending at the end of 1339f and that in whatever capacity she might have entered into possession of the holdings in the beginning she became a tenant in her own right by reason of these two pattas.

(3.) THE trial Court dismissed the suit with regard to the holding in village Lauki but decreed it with regard to the holding in village Shekhapur. The defendants were satisfied with this decree and did not appeal. The plaintiffs being dissatisfied with the dismissal of the suit in respect of the holding in village Lauki appealed to the lower appellate Court and succeeded. During the pendency of the appeal in that Court, Majeed defendant, son of Malka died and his heirs were brought on the record. The lower appellate Court held that Muliman entered into possession of the holding as an heir of Akbar Ali, that the patta executed in her favour in the year 1330f was merely a conversion of grain, rent into cash rent and did not confer on her any new rights or make her a tenant in her own right. Against this decree the defendants have appealed.