GAYA SINGH Vs. DEPUTY DIRECTOR OF CONSOLIDATION ETAH

JUDGEMENT

(1.) ON 13-4-1976 we heard this reference and delivered our opinion answering the question referred in the affirmative but reserved pronouncing the reasons which we do now.

(2.) FINDING that there was some conflict of opinion on the question whether co-tenancy rights could be acquired in an ex-proprietary holding in any manner other than laid down in the proviso to Section 33 of the U. P. Tenancy Act, 1939, a learned single Judge referred the following question to a Division Bench:-

(3.) IN Irshad Ahmad v. Joint Director of Consolidation (1968 R D 129) (supra) M. H. Beg, J. as he then was held that in view of the nature of exproprietary rights and the law relating to extinction of those rights, the proviso to Section 33 of the U. P. Tenancy Act, 1939 could not be so interpreted as to operate as a means of creation of co-tenency right in ex-proprietary tenancies since ex-proprietary tenancy rights do not arise by agreement or by recognition by the land-holder. It was urged on behalf of the respondents that ex-proprietary right being purely a creature of Statute and not of contract or agreement, it follows that co-tenancy right could not be created in ex-proprietary tenancy by contract or agreement, thus there will be no scope for applying the principles of estoppel and acquiescence for creating co-tenancy rights in ex-proprietary holdings. The cases of Deo Narain v. Aditya Prasad (AIR 1971 All 415) (supra), decided by K. N. Srivastava, J. and the case of Dudh Nath v. Smt. Dharrajja (1964 R D 324) (All) (supra), decided by Gangeshwar Prasad, J. were sought to be distinguished on the ground that they did not relate to ex-proprietary tenancy.