AJAB SINGH Vs. JOINT DIRECTOR OF CONSOLIDATION SAHARANPUR

JUDGEMENT

(1.) S. R. Singh, J. This writ petition is directed against the judgment and order dated 16-5-1995 rendered by the Joint Director of Consolidation, Saharanpur in a revision under Section 48 of the U. P. Consolidation of Holdings Act, 1953, between Ram Singh and another on one hand and Ram Lai and others on the other. The land in dispute comprises of basic Khatauni Khata Nos. 54 and 39 situate in village Chakram Wadi, pargana and tehsil Deoband, district Saharanpur.

(2.) PETITIONERS are the sons of Ram Lai. In the basis year Smt. Nihali widow of Nakli, Hardva, Ram Singh and Ram Lai sons of Nakli were jointly recorded as bhumidhars of the land in dispute. Smt. Nihali w/o Nakli had died before the commencement of the dispute giving rise to this petition. Hardva, Ram Singh and Ram Lai were reported to be her heirs. On publication of statement of principle in H. Form 5-B, first set of objection n. ed under Section 9 (2) of the U. P. Consolidation of Holdings Act, 1953 (in short the Act') was on behalf of the petitioners. They claimed succession to Smt. Nihali on the basis of a Will said to have been executed by her in their favour on 7-5-1981. That Smt. Nihali died on 22-2-1987 is not in dispute. In their objection the petitioners claimed that Smt. Nihali had 1/4 share in the entire land in dispute and after her death they had been in possession over l/4th share of the entire land in dispute on the basis of a registered Will dated 7-5-1981. Accordingly they challenged the correctness of entry in C. H. Form 5-B which showed sons of Nihali to be her heirs. Second set of objection was the one filed by respondent Ram Singh and Hardeva in respect of the land comprising of basic Khatauni Khata No. 39. According to them the name of their mother Smt. Nihali was wrongly entered as cotenureholder of Khatauni Khata No. 39 which was exclusively acquired by them by means of a sale-deed executed in their favour by one Multan Singh son of Sahi Ram. They also contested the objection filed by petitioners and denied the execution of any Will by Smt. Nihali in favour of petitioners. They also alleged in their written statement that Smt. Nihali had no transferable right in the land in dispute and as such she was incompetent to execute the Will being relied on by petitioner. According to them Smt. Nihali had a limited interest in respect of a part of the land in dispute under a deed of gift dated 4-2-1935 admittedly executed in her favour by her father Mai Dayal who was admittedly the last male tenant of the lands covered by the deed of gift dated 4-2-1935.

(3.) IT appears front the record that Mai Dayal, the father of Smt. Nihali had died around 1935 that is to say while Agra Tenancy Act, 1926 was in force. According to Section 22 of the Agra Tenancy Act the interest of a permanent tenure-holder and of a fixed-rate tenant was both heritable and transferable. Succession to these tenancies was governed by Personal Law. While succession to ex-proprietary, occupancy, statutory and non-occupancy tenancies was governed by Section 24 of the said Act. Interests in these tenancies, according to Section 23 of the said Act, were heritable but not transferable. That Mai Dayal executed a deed of gift is indicative of the fact that he was either a permanent tenure-holder or a fixed rate tenant of the land which was the subject-matter of the gift-deed dated 4-2-1935. Though there is no material on record of the writ petition on the basis of which it could be ascertained as to what was the nature of the land covered by the deed of gift dated 4-2-1935, but it was admitted that the interest of Mai Dayal in the lands covered by the deed of gift was both heritable and transferable.