B. L. Yadav, J.- - (1.) BY the present petition under Article 226 of the constitution of India the prayer is that the order dated 22-7-89 passed by the Deputy Director of Consolidation under section 48 of the consolidation of Holdings Act, (for short the Act), the order dated 18-12-84 passed by the Settlement Officer (Consolidation) and the order dated 30-3-81 passed by the Consolidation Officer may be quashed by issuing a writ of certiorari.
(2.) THE facts of the case lie in a narrow compass and they are these. One Bhujbal was the Sir and Khudkasht holder. He gifted his Sir and Khudkasht land contained in the plots in dispute (khata nos. 394 and 105) in village Adta, Pargana Garotha, district Jhansi in favour of Smt. Mahrani. In the basic year the petitioner Pholl Kunwar and respondent no. 4 Nanoo Singh were recorded as co-bhumidhars to the extent of 1/2 share. An objection under Section 9-A (2) of the Act was filed by the petitioner claiming the sole bhumidari rights on the averment that one Bhujbal was the Sir and Khudkasht holder who executed the gift deed in favour of Smt. Maharani, his daughter-in-law before the date of vesting. Smt. Maharani died in 1943 before the date of vesting and after her death the petitioner as her daughter and Smt. Lalla Beti, another daughter of Smt. Maharani, sister of the petitioner, inherited the interest of Smt. Maharani as his daughter and after the death of Lalla Beti on 30-11-52 after the date of vesting, her interest was inherited by her son Veer Singh and after his death the same was inherited by his son Haiku Singh and thereafter by his son Nanoo Singh, respondent no. 4. THE petitioner's case was that after the death of Lalla Beti her interest would devolve on her sister Smt. Phool Kunwar, the petitioner and would not be inherited by her son (son Lalla Beti). As Smt. Lalla Beti was the limited owner and consequently the name of respondent no. 4 may be expunged and that of the petitioner may be recorded as sole bhumidar. It was also urged that there was a suit for partition which was pending between the parties, but the same was abated on account of notification under section 4 of the Act. The respondents contested the case set up by the petitioner and alleged that as Smt. Maharani has obtained the Sir and Kudkasht land on the basis of gift deed executed by Bhujbal, the Sir and Khudkasht holder, she became the independent owner and was not a limited owner as she did not inherit it, rather she got it by gift deed and this property was her self acquired property and in any case she died in 1943 and her interest was inherited by the petitioner and her sister Smt. Lalla Beti and after the death of latter by her son Veer Singh and after his death by his son Haiku Singh and thereafter by Nanoo Singh, respondent no. 4, his son. When Smt. Lalla Beti acquired interest as co-sharer alongwith his sister Smt. Phool Kunwar, the petitioner, neither the U.P. ZA and LR Act nor the Hindu Succession Act had come into force. But at the time of the death of Smt. Lalla Beti on 30-11-52 both the Acts, namely U.P. ZA and LR Act and the Hindu Succession Act had come into force, hence she became the absolute owner and bhumidhar and did not remain limited owner or limited Bhumidar, After her death, her interest would devolve on her son Veer Singh, and it would not be inherited by her sister Smt. Phool Kunwar, her sister, and after the death of Veer Singh his son Haiku and thereafter his son Nanoo Singh, respondent no. 4 would inherit the same. In any case by estoppel and acquiescence respondent no. 4 became the co-bhumidar alongwith Smt. Phool Kunwar. As since the death of Smt. Lalla Beti no suit for ejectment was tiled by the petitioner, and Smt. Lalla Beti remained in possession and thereafter her son, grand son and great grand son continued in peaceful possession and the petitioner accepted the interest of respondent no. 4, as his predecessor-in-interest, the objection of petitioner was liable to be dismissed. The consolidation officer rejected the claim of the petitioner, who unsuccessfully went in appeal and also in revision. The present petition has been filed against these orders. On 15-11-89 the petitioner was dismissed and reasons were to follow. Now these are the detailed reasons.
(3.) SRI N. B. Nigam, learned counsel for the petitioner urged that Smt. Lalla Beti was the limited owner and after her death her interest would devolve on her sister, the petitioner and thereafter the same would not be inherited by Smt. Lalla Beti's son Veer Singh and thereafter by his son Haiku and thereafter by his son Nanoo Singh, the respondent no. 4. As Smt. Lalla Beti inherited the interest before the date of vesting, after her death succession would be governed by Section 172 and not by Section 174 of the U.P. ZA and LR Act as Smt. Lalla Beti was not the full fledged owner nor a bhumidar in her own rights. In order to determine the submission of the learned counsel for the petitioner the provisions of Section 172 (2) of the U.P. ZA and LR Act may be extracted as follows, to the extent it is relevant : "172 (2) Where a bhumidar who has before the date of vesting inherited an interest in any holding as a widow, widow of a male lineal descendant in the male lineal of descent, mother, daughter, father's mother, son's daughter sister or half sister being the daughter of the same father as the deceased- (a) dies, and such bhumidar was on the date immediately before the said date an intermediary of the land comprised in the holding or held the holding as a fixed rate tenant, or an exproprietary or occupancy tenant in Avadh or as a tenant on special terms in Avadh and- (i) she was in accordance with the personal law applicable to her entitled to a life state only in the holding, the holding shall devolve upon the nearest surviving their (such heir being ascertained in accordance with the provisions of Section 171) of the last male intermediary or tenant aforesaid " ;