- (1.) THIS second execution decree appeal is directed against the judg ment and decree of Temporary Civil and Sessions Judge, Mathura. Respondent Dec ree-holder Babu Singh had advanced some loan to Smt. Padam Kuer and on her death a decree was obtained against the assets of Smt. Padam Kuer deceased, in the hands of respondent Kishan Singh. In execution of the decree the decree-holder respondent got the bhumidhari plots attached. Appellant Kishan Singh then filed an objection and denied that the plots were the assets of the deceased Padam Kuer. The trial Court al lowed the objection but in appeal the lower appellate Court allowed the appeal and dis missed the objection holding that the pro perty was liable to be attached as shown in the decree as the assets of Smt. Padam Kuer, hence this second execution decree appeal.
(2.) IT is not disputed that the plots originally belonged to Doongar Singh, hus band of Smt. Padam Kuer. On the death of Doongar Singh succession was claimed by Kishan Singh as the adopted son of Doon gar Singh. Smt. Padam Kuer on the other hand claimed succession denying that Kishan Singh was the adopted son of Doongar Singh. A suit under Section 59 of the U. P. Tenan cy Act for a declaration was also filed by Kishan Singh. That suit was finally decreed by the learned Commissioner and the second appeal was dismissed in the year 1954 with the result that the finding that Kishan Singh was the adopted son became final. Some time afterwards the village was notified under the Consolidation of Holdings Act and the dispute again arose in proceedings under the said Act. The Assistant Director of Consolidation held that Padam Kuer had been in possession of the plots in dispute and had acquired bhumidhari sanads. The Assistant Director of Consolidation consequently upheld the objection of Padam Kuer and rejected the claim of Kishan Singh on the basis of possession and acquisition of bhumidhari sanad. A writ petition against the order of the Assistant Director of Con solidation was dismissed by this Court on 3-11-58 (Hon'ble James, J.). Smt. Padam Kuer died sometime after 1959, when the decree-holder in execution of his decree sought to execute the decree against the bhumidhari plots in the hands of Kishan Singh as assets of Smt. Padam Kuer, Kishan Singh filed objection under Section 47 of the Civil Procedure Code. The executing Court allowed the objection. In appeal the objec tion was dismissed by the lowei appellate Court Learned counsel for the judgment-debtor Kishan Singh has contended that under Section 172 (2) (b) of the Zamindarl Abolition and Land Reforms Act the pro perty held by Smt. Padam Kuer was as a Hindu widow and Kishan Singh on the death of Padam Kuer did not succeed as an heir of Padam Kuer but as an heir of the last male-holder. His contention is that the property in his hands could not be termed to be the assets of the deceased Padam Kuer. On the other hand learned counsel for the, respondent has contended that Padam Kuol having acquired bhumidhari rights and hav ing been recognised by the Consolidation authorities as owner of the property, the property, after her death in the hands of Kishan Singh was an asset of the deceased Padam Kuer. The contention of the learn ed counsel for the respondent has force. The Consolidation Courts after the final adjudi cation of the title by a competent Court were not competent to decide the title other wise than the final decision of the compe tent Court, but the Consolidation Court were quite competent to hold that irrespec tive of the fact that Kishan Singh was the adopted son, Padam Kuer having remained in possession acquired title to the property and having acquired bhumidhari sanad ac quired full right in the land in dispute. The finding of the Consolidation autho rities holding that Padam Kuer by remain ing in exclusive possession and acquiring bhumidhari sanad had a preferential title against Kishan Singh cannot be challenged at this stage and this appeal has to be dis missed on the short finding that Padam Kuer in the lifetime of Kishan Singh had acquired full title to the property and on her death Kishan Singh could only succeed through her and the property in his hand could not be anything but the asset of Padam Kuer.
(3.) THE contention of the learned counsel for the appellant on the facts of the present case will also not entitle him to con tend that the property in his hand is not the assets of the deceased Padam Kuer. Sec tion 172 (2) (b) reads as under:- "172 (2) Where a bhumidhar or sirdai who has before the date of vesting inherit ed an interest in any holding as a widow, widow of a male lineal descendant, in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half-sister being the daughter of the same father as the deceased- (b) dies, abandons, or surrenders and in the case of a widow, widow of a male lineal descendant in the male line of descent, mother, father's mother, marries, such bhumi dhar or sirdar on the date immediately be fore the said date held the holding otherwise than as an intermediary or tenant, referred to in plause (a), the holding shall devolve upon the nearest surviving heir (such heif being ascertained in accordance with the provisions of Section 171) of the last male tenant." ;