Asthana, J. - (1.) ON 13-4-1976 we heard this reference and delivered our opinion answering the question referred in the affirmative but reserved pronouncing the reasons which we do now.
(2.) FINDING that there was some conflict of opinion on the question whether co-tenancy rights could be acquired in an ex-proprietary holding in any manner other than laid down in the proviso to Section 33 of the U. P. Tenancy Act, 1939, a learned single Judge referred the following question to a Division Bench:- "Whether co-tenancy rights can in law be acquired in an ex-proprietary holding by estoppel or acquiescence?" Hari Singh, Kundan Singh and Dular Singh were three real brothers. Hari Singh died in the year 1946, Dular Singh had predeceased him leaving a son Gaya Singh, Hari Singh was an ex-proprietary tenant of the holding. It is not disputed that under the U. P. Tenancy Act, 1939, Gaya Singh could not inherit the tenancy as his father Dular had predeceased Hari Singh, Kundan Singh and his sons were thus the only heirs. However, Gaya Singh's name was also mutated along with Kundan Singh and he always co-shared the tenancy, having paid rent to the Zamindar of his share. On the death of Kundan Singh the names of his sons were also mutated along with that of Gaya Singh. When the consolidation proceedings started a controversy arose between Gaya Singh and the sons of Kundan Singh, the latter claiming to be the sole tenure-holders to the exclusion of Gaya Singh on the ground that the holding being an ex-proprietary tenancy Gaya Singh could not legally acquire any co-tenancy rights as he was neither a co-tenant from the commencement of the tenancy nor could he become a co-tenant by succession nor he had been specifically recognized as such in writing by the land-holder. Reliance was placed on the proviso to Section 33 of the U. P. Tenancy Act. The Deputy Director of Consolidation affirming the view of the Settlement Officer (Consolidation) that co-tenancy rights could not be created by estoppel and acquiescence and Gaya Singh having no right to succeed to the holding of his uncle Hari Singh, directed his name to be expunged from the revenue records. Gaya Singh then came to this Court by way of a writ petition under Article 226 of the Constitution for quashing of the orders of the Consolidation Authorities. The learned single Judge before whom the writ petition came up for hearing finding that the decisions of this Court in the cases of Dudh Nath v. Smt. Dharrajja (1964 R D 324) (All) and Deo Narain v. Aditya Prasad, 1971 All LJ 700 : (AIR 1971 All 415) favouring the case of Gaya Singh, being in conflict with the decision in the case of Irshad Ahmad v. Joint Director (1968 R D 129) (All) referred the abovementioned question. This is how the case came before us.
(3.) IN Irshad Ahmad v. Joint Director of Consolidation (1968 R D 129) (supra) M. H. Beg, J. as he then was held that in view of the nature of exproprietary rights and the law relating to extinction of those rights, the proviso to Section 33 of the U. P. Tenancy Act, 1939 could not be so interpreted as to operate as a means of creation of co-tenency right in ex-proprietary tenancies since ex-proprietary tenancy rights do not arise by agreement or by recognition by the land-holder. It was urged on behalf of the respondents that ex-proprietary right being purely a creature of Statute and not of contract or agreement, it follows that co-tenancy right could not be created in ex-proprietary tenancy by contract or agreement, thus there will be no scope for applying the principles of estoppel and acquiescence for creating co-tenancy rights in ex-proprietary holdings. The cases of Deo Narain v. Aditya Prasad (AIR 1971 All 415) (supra), decided by K. N. Srivastava, J. and the case of Dudh Nath v. Smt. Dharrajja (1964 R D 324) (All) (supra), decided by Gangeshwar Prasad, J. were sought to be distinguished on the ground that they did not relate to ex-proprietary tenancy.;