Lakshmi Prasad, J. - (1.) This is a petition Under Article 226 of the Constitution. The dispute in the case relates to certain tenancy plots which stood recorded in the name of Ghanshyam, opposite party No. 5, in the basic year. The Petitioner preferred an objection Under Sec. 9 of the UP Consolidation of Holdings Act claiming herself to be a sirdar of the disputed plots on the ground that these were the tenancy plots of her father Sheo Balak. It may here be mentioned that Ghanshyam is the grandson of Bala Prasad, own brother of Sheo Balak. The Consolidation Officer allowed her objection. Ghanshyam went in appeal which was allowed by the Settlement Officer, Consolidation. The Settlement Officer, Consolidation found that the disputed tenancy was of Sheo Balak, that the Petitioner was the daughter of Sheo Balak, that Sheo Balak died sometime, in the year 1942 and that the Petitioner was married sometime prior to 1949 when father of Ghanshyam was alive. On these findings he held that even though the Petitioner inherited the tenancy on the death of her father she lost it on her marriage and the same passed to Ghanshyams father, the then nearest collateral of the last male tenure holder . Aggrieved by the finding that the Petitioner is the daughter of Sheo Balak, Ghanshyam preferred a revision. The Petitioner preferred a revision against the order allowing the appeal of Ghanshyam. Both the revisions were heard by the Deputy Director and disposed of by a common judgment dated 20 -7 -1966, a certified copy of which is Annexure 2. He dismissed both the revisions, even though he reversed the finding of the Settlement Officer, Consolidation, regarding the time of marriage of the Petitioner. The Petitioner alleges that the Deputy Director relying on the statement of the Petitioner held that the marriage of the Petitioner took place near about May 1954. Still he rejected her claim on the ground that a married daughter became an heir under the provisions of the UP ZA and LR Act only by an amendment which came in December, 1954 and since the Petitioner was married prior to the commencement of the Amendment Act she could not be the heir of her father. It is in these circumstances that this petition is preferred with a prayer that the impugned order Annexure 2 be quashed on the ground that the view of law taken by the Deputy Director is manifestly erroneous having regard to the finding of fact recorded by him.
(2.) The petition is opposed by Ghanshyam, opposite party No. 5.
(3.) I have heard learned Counsel for the contesting parties. The sole point raised by the learned Counsel for the Petitioner is that the Deputy Director committed a manifest error in laying down that the Petitioner has no right to inherit because on her own showing she was married ten to eleven years prior to her statement made in May 1965 and a married daughter could inherit under the provisions of the Zamindari Abolition and Land Reforms Act only since after the amendment introduced in it in December, 1954. As against that the contention on behalf of the contesting opposite party is that even if the aforesaid observations of the Deputy Director are legally incorrect the final decision given by him can be sustained on the ground that the Petitioner having inherited from her father under the provisions of the UP Tenancy Act, lost her right because of her marriage under the provisions of the UP Tenancy Act, viz., Sec. 36 thereof, in case it be found that she married prior to 1949, as is the finding given by the Settlement Officer, Consolidation and under the provisions of the UP Zamindari Abolition and Land Reforms Act, viz., Clause (b) of Sub -section (2) of Sec. 172 thereof, in case it be found, as is said to have been held by the Deputy Director that she married near about May 1954, because Clause (b) of Sub -section (2) of Sec. 172 of the UP ZA and LR Act till before the amendment introduced in it by UP Act XX of 1954, which came into force on 10 -10 -1954, did envisage that a sirdar inheriting as a daughter would lose her right on marriage. On being confronted with the position as raised by the learned Counsel for opposite party, learned Counsel for the Petitioner has raised two points. His first contention is that a perusal of the impugned order passed by the Dy. Director shows that there is no clear cut finding given by him in regard to the time of marriage. A perusal of the judgment passed by the Dy. Director does show that he has relied on the statement of the Petitioner made in May 1965, to the effect that she was married ten or eleven years ago. This statement by itself does not appear to lead to a definite conclusion because, if it is interpreted to mean that her marriage took place ten years ago, then it would be subsequent to the amendment introduced by UP Act XX of 1954. As against that, if it is taken to mean that she was married eleven years ago then of course, it would mean that the marriage took place near about May 1954, i.e. prior to the amendment introduced by UP Act XX of 1954. So, there appears to be some substance in the contention of the learned Counsel for the Petitioner that in the absence of a clear cut finding given by the Dy. Director, it is not possible to conclude as to whether unamended Sec. 172 of the UP ZA and LR Act or amended Sec. 172 thereof would apply to the case. In that view of the matter, I am inclined to accept his contention that the impugned order be quashed with the direction to decide the revision afresh in the light of the observations made above after giving a definite finding, on a consideration of the entire evidence on the record, on the question as to when the marriage of the Petitioner actually took place.;