Kailash Nath Misra, J. - (1.) THIS writ petition under Art. 226 of the Constitution is directed against the orders passed by opposite parties Nos. 1 and 2 in revision and appeal arising out of proceedings under Sec. 9 -A(2) of the U.P. Consolidation of Holdings Act (hereinafter to be referred to as the Act). Dispute in the present case pertains to Khata No. 145 situate in village Tribhawan Nagar Pargana Tahsil and District Gonda. In the basic year, land of aforesaid Khata was recorded in the names of Guptar. Sheo Ratan and Ram Ratan, sons of Pancham, Sant Ram and Raghu Ram sons of Kedar Nath as tenure holders. During verification of the Khatauni and partial made by the Consolidation staff, Sant Ram was reported to be dead leaving behind his widow Smt. Sukh Raji. Two sets of objections were filed. One set of objections was filed by Dhani Ram Nath son of Baleshwar and Ambar Nath son of Raghunandan claiming to be co -tenure holdings. They also claimed themselves to be heirs of Sant Ram and asserted that his widow Smt. Sukh Raji, petitioner No. 2 has re -married. Another objection was filed by Ram Sahad and Vishwa Nath sons of Mohan. They also claimed co -tenancy rights in the disputed holdings. The Consolidation Officer rejected the objections filed vide order dated 28th Dec., 1973, by holding that the land in dispute was neither acquired by a common ancestor nor is it coming down in the identical form. It was further held that in view of the entries in Khatauni of 1345 Fasli, it appears that the ex -intermediary had resettled the land on an enhanced rent to the recorded tenants in 1345 Fasli. Aggrieved by the said order the objectors Dhani Ram and others filed an appeal which was heard and allowed by the Settlement Officer, Consolidation, vide order dated 31 -1 -1975 holding that the land in dispute is ancestral coming down from the time of the common ancestor Udit whose name was recorded in 1306 Fasli. After considering the revenue record entries it was observed that the land in dispute is coming down in the identical form and the objectors are co -tenure -holders in the land in dispute. Aggrieved by the said order, the petitioners filed revision which was dismissed on 7 -2 -1978 confirming the finding recorded by the Settlement Officer, Consolidation.
(2.) LEARNED counsel for the petitioners contended that opposite parties Nos. 1 and 2 have wrongly held that the land in dispute is ancestral and is coming down in the identical form. He urged that in the year 1345 Fasli, the period of cultivation is noted as 9 years with an enhanced land revenue of Rs. 37/9/6. Learned counsel pointed out that in Khatauni of 1306 Fasli, area of the holding was 6.87 Acres with land revenue of Rs. 14/15. He thus contended that the land in dispute is not coming down in the identical form and it should be taken to have been settled afresh 9 years prior to 1345 Fasli because the rent has been changed and the period of cultivation of 9 years as referred to in Khatauni of 1345 Fasli indicates that it was settled afresh. I am unable to agree with this contention. The Settlement Officer, Consolidation, has referred to the revenue record entries in detail in the impugned judgment and has observed that in 1306 Fasli the name of Udit was recorded along with Devi on Khata No. 133 and the area of the holding was 6.87. Acres. He also pointed out that the said land is coming down in the identical form. In 1345 Fasli. Khatauni of Khata No. 68 the disputed land with an area of 6.87 Acres is recorded in the name of Kedar son of Udit. Lachman, Bharaman, Guptar and Sheo Din. Plots of this Khata tally with the plots recorded in 1306 Fasli and, thus, the land recorded in 1345 Fasli and 1306 Fasli is identical. It has further been observed that in 1345, Fasli Khata No. 165 is recorded in the names of Kedar son of Udit, Lachman, Gaptar and Sheo Din son of Devi Din. This goes to show that the land which was in the name of Udit and Devi Din in the second settlement, that very land measuring 6.87 Acres was recorded in the name of Kedar, son of Udit and Devi Din in 1345 Fasli. I do not find any infirmity in this finding No doubt there is a difference in the rent in the holding recorded in 1306 Fasli and 1345 Fasli, but mere difference in rent will not be taken to be a case of fresh settlement of land with the persons whose names were recorded in 1345 Fasli. Mere change of rent or duration in the Khatauni of 1345 Fasli does not necessarily indicate that the holding was settled afresh as there was no bar of enhancement of the rent by the landlord. The nature and character of the holding cannot be taken to have changed because of enhancement of rent by the landlord which could be done by him under Section 38 of Oudh Rent Act which provides that: - - Section 38: - - (1) A landlord may enhance the rent of a statutory tenant or of a person who succeeds as an heir of a statutory tenant under Section 48, either by written agreement or by notice as hereinafter provided. Sub -section (2) of Section 38 provides that: - - (2) provided that, where rent is paid in kind, the proportion of produce paid as rent by a tenant shall not be subject to increase except in accordance with an established custom of the pargana in which the land is situate. Section 39 provides that: - - Section 39: (1) If a landlord desires to enhance the rent of a statutory tenant on the expiration of the statutory period, or at any subsequent time if the rent was not enhanced on the expiration of the statutory period or at any time during the currency of the tenancy in the case mentioned in Section 50 he may cause a notice to that effect to be served under Section 42. (2) Notwithstanding anything in Section 48, if a landlord desires to enhance the rent of a person who succeeds as an heir of a statutory tenant under Section 46 he may cause a notice to that effect to be served upon the said person under Section 42: - - (a) at any time within the period for which the said person is entitled to retain occupation of the holding under Section 48, if the statutory period of the deceased tenant had expired before the date of his death, and if the rent of the deceased tenant was not enhanced on the expiration of that period or at any subsequent time before the date of his death, or (b) on the expiration of the statutory period of the deceased tenant or at any subsequent time, within the period for which the said person is entitled to retain occupation of the holding under Section 48, if the statutory period of the deceased tenant had not expired before the date of his death. In sub -section (1) of Section 48 it was provided that: - - Section 48: (1) When a statutory tenant dies, his heir shall be entitled to retain occupation of the holding at the rent payable by the deceased for a period of live years from the date of the tenant's death, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by his predecessor in interest, but shall not be entitled to a renewal of the tenancy: Provided that a person who succeeds as an heir of a deceased tenant to whom clause (c) of sub -section (1) of Section 62A applies shall be entitled to retain occupation of the holding at the rent payable by the deceased only for the unexpired portion of the statutory period of the deceased tenant.
(3.) ON a perusal of these provisions of Oudh Rent Act, it would be evident that the heirs of a statutory tenants were entitled to retain occupation of the holding on a rent payable by the deceased for a period of five years from the date of the tenant's death. The landlord could increase the rent of the statutory tenant as provided under Sections 38 and 39 of the Oudh Rent Act. Thus, enhancement of rent of the holding could not necessarily be taken to be a case of fresh contract in respect of the land in dispute. In absence of proof of a fact that after expiry of the statutory period of five years, as provided under Section 48, the heirs of the statutory tenant were either ejected or the land was resumed and let -out afresh with some of the heirs, it cannot be assumed that the holding was settled afresh merely on the enhancement of rent of the holding. The period of cultivation is noted to start from the time the rent is enhanced because within statutory period of ten years the rent could not be subsequently enhanced by the landlord of a holding of a statutory tenant as was provided under Section 36 of Oudh Rent Act. Therefore, whenever the rent was enhanced the period of cultivation, apparently on specified rent of the holding, was recorded as one so as to count the statutory period of ten years within which the landlord could not enhance the rent of the statutory holding.;