ALOOP KAHAR Vs. MUSAFIR MALLAH

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal in a suit for possession over certain plots of land and for damages. The first plaintiff appears to have entered into compromise with defendants Nos. 1 to 4 in the trial Court. The suit was dismissed as against the remaining plaintiffs No. 2 and in favour of defendants No. 1 to 4. The appeal to the District Judge was dismissed ; hence this second appeal. The question raised by the learned counsel for the appellants before me is that the appellants are that tranferees of the land, the transfer in their favour having been made by the occupancy tenants of their 1/3 share of the land on 2nd November, 1961, after obtaining bhumidhari rights under Section 3 of the U. P. Agricultural 1 Tenants (Acquisition of Priviliges) Act, 1949 and that, therefore, the appellants were entitled to the benefit of clause (c) of sub-section (1) of Section 7 of that Act which lays down that "The applicant shall, except as hereinafter be entitled notwithstanding anything contained in the U. P. Tenancy Act, 1939 or any contract to bequeath by will or transfer by way of sale. Simple mortgage or gift his interest in the holding or his share therein." It was urged that the appellants' vendors had the right to make the transfer in their favour and the view taken by the two Courts below to the contrary is erroneous in law. The ground on which the lower appellate Court has proceeded that the land in suit was situated within the limits of a Town Area. Bhumidhari rights could be acquired under Section 3 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 only by : (a) a tenant holding on special terms in Avadh, (b) an exproprietary tenant, (c) an occupancy tenant, (d) a hereditary tenant, or (e) an occupier, (f) a sub- tenant referred to in sub section (4) of Section 47 of the United Provinces Tenancy Act, 1939, of land (other than land specified in the schedule) on payment of the specified amount to the credit of the State Government. Clause (c) of the Schedule to that Act specifies the land comprised in any area included in a.........Municipality or notified area............It is, therefore, clear that the appellants' vendors had no right to acquire bhumidhari rights under Section 3 of that Act because the land in suit was situated within the limits of a Town Area. That being so there is no error in the finding of the lower appellate Court that the plaintiff's vendors had no right, as occupancy tenants of the land, to transfer their share in the same to the plaintiff appellants. No other point was pressed before me. The appeal fails and is dismissed with costs.