SMT. BHURI Vs. SUNDER AND OTHERS

JUDGEMENT

(1.) ON the death of Girdhari Lal, the plots in dispute were mutated in the name of his son Phundan. When consolidation proceedings commenced, Phundan was the recorded tenure -holder. No objection as to his title having been filed, he was in due course allotted plot No. 25. It appears that soon after the consolidation scheme was finalised Under Section 23 of the U.P. Consolidation of Holdings Act. Thereafter Phundan died on 20 -9 -1958.

(2.) SUNDER the Respondent before us made an application for mutation of his name in place of Phundan. He claimed to be the brother of Phundan. His claim was disputed by Smt. Bhuri, the Appellant before us. She put forward a preferential claim on the ground that she was the sister of Phundan. The Consolidation Officer held that Sunder was a real brother of Phundan and as such he was a preferential heir to him. Smt. Bhuri filed an appeal which was dismissed by the SO (C) on 17 -1 -1959. Thereafter Smt. Bhuri filed a suit in the revenue court Under Section 209 of the U.P.Z.A. and L.R. Act for the ejectment of Sunder. The principal point that arose for consideration in that suit was whether Smt. Bhuri was the heir of Phundan. The trial court decreed the suit on the finding that Smt. Bhuri was the preferential heir because Sunder was not the brother of Phundan. Sunder filed an appeal.

(3.) IT is clear that when Phundan died on 20 -9 -1958, proceedings for the allotment of Chaks had been completed and finalised. The question is whether the Consolidation of Holdings Act as it stood after its amendment by U.P. Act No. XXXVIII of 1958, which came into force on 27 -11 -1958, would apply to the application for mutation made by Sunder. Section 49, which was a transitory provision under the Amending Act, provided - -