RAM UDIT Vs. SHYAM KALI

JUDGEMENT

(1.) THIS second appeal raised an interesting question of law. In order that that question may be properly understood, it is necessary to set out the facts which have given rise to the appeal.

(2.) THE plaintiffs instituted the suit as members of a joint Hindu family for possession of certain zemindari and house property. Their case was that they were entitled to a two-thirds share of the property. The suit was resisted by the defendant who is the widow of the plaintiff's brother. Her case was that her husband was separate from the plaintiffs and that on his death, she became entitled to the property.

(3.) THE trial Court decreed the suit holding that the family was joint and not separate. The defendant went in appeal to the lower appellate Court. The learned Civil Judge allowed the appeal, dismissed the suit so far as the zemindari property is concerned and remanded the case for a fresh trial about property No. 6 mentioned in the list attached to the plaint. The plaintiffs have now come up in appeal to this Court against this order. The view taken by the learned Civil judge was that having regard to Sections 4 and 6 of the U. P. Zemindari Abolition and Land reforms Act (hereinafter called the Act), the plaintiffs could not claim possession of the zemindari property in suit. That property vested under Section 4 of the Act in the State of Uttar pradesh; and consequently the plaintiffs had no subsisting right or title in respect of it. The learned Judge was undoubtedly right in holding that under Section 4 of the Act after the notification all estates situate in Uttar Pradesh vested in the State. Further there is no doubt that as. a consequence of that vesting, all rights, title and interest of all intermediaries ceased and vested in the State of Uttar Pradesh free from all encumbrances on and from the date of the notification of vesting. The question, however, to 7 which the learned Judge did not address his attention at all was whether the fact that the plaintiffs could not claim a possessory title to the property and the relief of possession could not be given to them, had at all affected their right to establish their claim in respect of any estate or part thereof by due process of law in a Court having Jurisdiction. That they had this right assured to them is, in my opinion, clear from Section 34 of the Act. Section 34 is in the following terms: