Janardan Sahai, J. - (1.) A suit under section 176 of the U.P. Zamindari Abolition and Land Reforms Act was filed by Bhi-kambar, Har Prasad and Babu the original respondents 4, 5 and 6 in this writ petition. Har Prasad and Babu have since died and have been substituted by their heirs. The defendant in the suit was the petitioner Khem Chand alias Khemi. The only dispute in this petition relates to the shares of the parties. In order to appreciate the controversy involved in this petition the admitted pedigree between the parties is being set out below: ...[VERNACULAR TEXT OMITTED]...
(2.) The Trial Court held that the land in dispute was acquired by the ancestor of the defendant Khem Chand alias Khemi as well as by the ancestors of the plaintiff in equal share. It decreed the suit for division of the holding but gave the plaintiffs 5/8 share and to the defendant-petitioner 3/8 share. The finding of the Trial Court is that Chajjan who had 1/4 share died in the year 1934 when the Agra Tenancy Act was in force and his share went to Ram Prasad and Nathan. Later Ram Prasad died issueless when the U.P. Tenancy Act was in force. Ram Prasad's own share was 1/8 on the basis of the pedigree and he had inherited 1/8 share on the death of Chajjan. Thus, Ram Prasad had 1/4 share. According to the Trial Court Ram Prasad's share devolved equally upon Bola and Nathan. Nathan's share was 1/8 on the basis of the pedigree plus 1 /8, which he inherited from Chajjan-1/4 plus 1/8 of Ram Prasad's share-3/8, which was inherited by Khemi. The plaintiff's share was the 1/2 share of their father Bola on the basis of the pedigree plus 1/8 share of Ram Prasad, which Bola inherited from Ram Prasad. Thus, the plaintiffs share became 5/8. The petitioner preferred an appeal, which was dismissed by the Commissioner by order dated 8.7.1975. It was held that when Ram Prasad died U.P. Tenancy Act was in force and Khemi could not be his heir. Ram Prasad's share devolved on Khemi and Bola by survivorship. A second appeal filed by the petitioner was dismissed by the Board of Revenue by order dated 30.10.1980.
(3.) I have heard Sri G.N. Verma, learned Senior Counsel assisted by Sri M.K. Tripathi, Advocate and Sri Neeraj Agarwal, learned Counsel for the respondents 4, 5 and 6 since substituted by their heirs. It was submitted by Sri G.N. Verma, learned Counsel for the petitioner that the plaintiff had claimed in the suit only 1/2 share and was entitled to no more than that. He also submitted that the finding of the Courts below that Ram Prasad died at the time when U.P. Tenancy Act was in force is erroneous and in fact Ram Prasad had died when the Agra Tenancy Act was in force and in view of the fact that Khem Chand alias Khemi the defendant was the nearest collateral sharing in the cultivation Ram Prasad's share was inherited solely by Khem Chand alias Khemi. The finding of the Courts below that Ram Prasad' share was inherited by Bola father of the plaintiff is based upon an admission made by Khem Chand alias Khemi that Ram Prasad died about 25 years ago (when his statement was recorded in the year 1969), which therefore indicates that Ram Prasad died in the year 1944 and consequently the U.P. Tenancy Act was applicable and therefore the share of Ram Prasad would devolve equally upon Khem Chand alias Khemi and Bola. A supplementary affidavit has been filed in the writ petition in which the khatauni of 1346 Fasali and 1347 Fasali have been annexed. In both these khataunis the khata is entered in the name of Bola and Khem Chand alias Khemi. On the basis of these khatauni entries it is submitted by Sri G.N, Verma that in 1346 Fasali, which pertains to the year 1938 Ram Prasad had died and the Agra Tenancy Act was in force and the succession would be governed by section 24 of the Agra Tenancy Act. A counter-affidavit to the supplemen-tary-affidavit has been filed. In which it is stated that khatauni of 1346 Fasali is not on the record of the Courts below. The khatauni of 1347 Fasali pertains to the year 1939 when the U.P. Tenancy Act had come into force. Even if the U.P. Tenancy Act is applicable the question as to whether Khem Chand alias Khemi and Bola had succeeded to Ram Prasad's share would depend upon the further question as to whether Nathan in fact was alive on the date when Ram Prasad died. It is conceded by the Counsel for the respondents that there is no direct evidence on the record on the basis of which the date of death of Nathan can be fixed. The result, therefore, is that if Nathan was alive when Ram Prasad died the share of Ram Prasad would if provision of section 35 of the U.P. Tenancy Act are applicable devolve upon Nathan, he being the father brother's son of Ram Prasad. The share of the parties therefore could not have been determined without determining the sequence of deaths of Ram Prasad and Nathan and of the year when they died.;