- (1.) S. R. Singh, J. This writ petition is directed against the judgment and order dated 16-5-1995 rendered by the Joint Director of Consolidation, Saharanpur in a revision under Section 48 of the U. P. Consolidation of Holdings Act, 1953, between Ram Singh and another on one hand and Ram Lai and others on the other. The land in dispute comprises of basic Khatauni Khata Nos. 54 and 39 situate in village Chakram Wadi, pargana and tehsil Deoband, district Saharanpur.
(2.) PETITIONERS are the sons of Ram Lai. In the basis year Smt. Nihali widow of Nakli, Hardva, Ram Singh and Ram Lai sons of Nakli were jointly recorded as bhumidhars of the land in dispute. Smt. Nihali w/o Nakli had died before the commencement of the dispute giving rise to this petition. Hardva, Ram Singh and Ram Lai were reported to be her heirs. On publication of statement of principle in H. Form 5-B, first set of objection n. ed under Section 9 (2) of the U. P. Consolidation of Holdings Act, 1953 (in short the Act') was on behalf of the petitioners. They claimed succession to Smt. Nihali on the basis of a Will said to have been executed by her in their favour on 7-5-1981. That Smt. Nihali died on 22-2-1987 is not in dispute. In their objection the petitioners claimed that Smt. Nihali had 1/4 share in the entire land in dispute and after her death they had been in possession over l/4th share of the entire land in dispute on the basis of a registered Will dated 7-5-1981. Accordingly they challenged the correctness of entry in C. H. Form 5-B which showed sons of Nihali to be her heirs. Second set of objection was the one filed by respondent Ram Singh and Hardeva in respect of the land comprising of basic Khatauni Khata No. 39. According to them the name of their mother Smt. Nihali was wrongly entered as cotenureholder of Khatauni Khata No. 39 which was exclusively acquired by them by means of a sale-deed executed in their favour by one Multan Singh son of Sahi Ram. They also contested the objection filed by petitioners and denied the execution of any Will by Smt. Nihali in favour of petitioners. They also alleged in their written statement that Smt. Nihali had no transferable right in the land in dispute and as such she was incompetent to execute the Will being relied on by petitioner. According to them Smt. Nihali had a limited interest in respect of a part of the land in dispute under a deed of gift dated 4-2-1935 admittedly executed in her favour by her father Mai Dayal who was admittedly the last male tenant of the lands covered by the deed of gift dated 4-2-1935. The Consolidation Officer, Deoband held by his order dated 18-9-1992 that execution of the Will by Smt. Nihali could not be proved as none of the two attesting witnesses Ami Singh and Padam Sen, though alive, were examined and further that Smt. Nihali being a limited owner had no right to execute the Will. Petitioners' objection was accordingly rejected and the entire land in dispute was divided equally amongst Hardeva, Ram Singh and Ram Lai sons of Smt. Nihali. The petitioners challenged the above order in appeal before the Settlement Officer, Consolidation, Saharanpur. The respondents Ram Singh and Hardeva too preferred an appeal against the said order of the Consolidation Officer in that they felt aggrieved by division of the entire land in dispute into three equal shares. Their grievance was that shares of all the three sons of Smt. Nihali ought to have been determined in accordance with the orders passed in the previous consolidation proceedings. The Settlement Officer, Consolidation allowed the appeals vide judgment and order dated 17-6-1993, set aside the order dated 18-9-1992 passed by the Consolidation Officer and remanded the matter to the Consolidation Officer with a view to giving an opportunity to the petitioners afresh to prove due execution and attestation of Will by examining the attesting witnesses and also to examining the evidence led by Ram Singh and Hardeva in justification of their claim. Aggrieved by the order of remand both the parties went up in revision. The Deputy Director of Consolidation allowed the revision preferred by respondents Ram Singh and Hardeva and dismissed the one filed by petitioners and set aside the order of remand passed by the Settlement Officer, Consolidation and restored the one passed by the Consolidation Officer, with a slight modification, vide judgment and order dated 18-5-1995. The Deputy Director of Consolidation held Ram Singh to be exclusive tenure-holder of plot No. 2125 admeasuring 2 Bighas and 9 Biswa of basic Khatauni Khatta No. 65. The lends comprising of basic Khatauni Nos. 39 and 54 were divided equally amongst three brothers, viz. Ram Singh, Hardeva and Ram Lai. The property other than plot No. 2129 are 2 bigha 9 biswa of Khata No. 65 comprised of the plots of land originally held by Mai Dayal as also the lands acquired subsequently by Ram Singh, Hardeva and Ram Lai but merged and amalgamated in the lands which originally belonged to Mai Dayal. As regards claim of the petitioners based on Will executed in their favour by Smt. Nihali, the Deputy Director of Consolidation held that she did not have a transferable right in the property in dispute and as such the Will executed by her was void ab initio. It was also held that since the petitioners had failed to prove the due execution and attestation of the Will before the Consolidation Officer, the Settlement Officer Consoldiation was not justified in remanding the matter to the Consolidation Officer merely on the strength of the affidavits by the attesting witnesses filed for the time in appeal. With a view to completing the chain of facts it may be stated that Smt. Nihali had executed a deed of gift dated 18-2- 1935 in favour of one Hardeva son of Mohan-the nephew of Mai Dayal. After the death of Mai Dayal, a suit being Suit No. 355 of 1941 was filed by Hardeva, Ram Singh and Ram Lai against Hardeva son of Mohan and Mst. Nihali for cancelling the gift deed dated 18-2-1935, inter alia, the ground that Mst. Nihali had only a limited interest in the suit property as per deed of gift dated 04-2- 1935 and as such the deed of gift dated 18-2-1935 executed by her was liable to be cancelled. Another suit, it being Suit No. 369 of 1941, was filed for possession by Hardeva son of Mohan alleging himself to be the adopted son of Mai Dayal. Both the suit were consolidated. Suit No. 355 of 1941 for cancellation of gift deed dated 18-2-1935 was decreed while Suit No. 369 of 1941 dismissed vide judgment and decree dated 30-5-1942 holding that adoption of Hardeva son of Mohan by Mai Dayal was not proved and further that Smt. Nihali was "a limited owner of the property and she had no absolute interest in the property. " Hardeva son of Mohan is now not in picture.
(3.) IT appears front the record that Mai Dayal, the father of Smt. Nihali had died around 1935 that is to say while Agra Tenancy Act, 1926 was in force. According to Section 22 of the Agra Tenancy Act the interest of a permanent tenure-holder and of a fixed-rate tenant was both heritable and transferable. Succession to these tenancies was governed by Personal Law. While succession to ex-proprietary, occupancy, statutory and non-occupancy tenancies was governed by Section 24 of the said Act. Interests in these tenancies, according to Section 23 of the said Act, were heritable but not transferable. That Mai Dayal executed a deed of gift is indicative of the fact that he was either a permanent tenure-holder or a fixed rate tenant of the land which was the subject-matter of the gift-deed dated 4-2-1935. Though there is no material on record of the writ petition on the basis of which it could be ascertained as to what was the nature of the land covered by the deed of gift dated 4-2-1935, but it was admitted that the interest of Mai Dayal in the lands covered by the deed of gift was both heritable and transferable. Sri G. N. Verma, learned counsel appearing for the petitioners urged, relying on Section 6 of the U. P. Act No. 1 of 1951, that not withstanding anything to the contrary contained in the deed of gift dated 4- 2-1935 Smt. Nihali acquired bhumindhari rights under Section 18 of the U. P. Act No. 1 of 1951 with effect from the date of vesting. It was also urged by the learned counsel that the order of remand being an interlocutory order was not revisable under Section 48 of the U. P. Consolidation of Holdings Act, Sri B. P. Singh, learned counsel appearing for the contesting respondents submitted that the plea as to maintainability of the revision having not been raised before the revisional court cannot be allowed to be raised for the first time in writ jurisdiction and that too during the course of arguments. Sri B. P. Singh further urged that Smt. Nihali did not acquire, under the deed of gift, the status and interest possessed of by her father Mai Dayal and she never became a tenant of the category specified in Section 18 of the U. P. Act No. 1 of 1951 and, therefore, she could not have acquired bhumidhari right to be entitled to execute a Will. According to him the view taken by the Deputy Director of Consoldiation does not suffer from any manifest error of law warranting interference under Article 226 of the Constitution.;