- (1.) In this petition directed against the orders passed by consolidation authorities, the facts are that one Ram Naresh and Narain Upadhya were occupancy tenants. They mortgaged the land in favour of Sripat Narain father of the Petitioner in 1898. The mortgagors died heirless. A dispute arose between the Zamindar and mortgagee before the Civil Court in a suit for injunction. The mortgagee's possession was upheld. In 1959 the erstwhile Zamindar sold the land in favour of opposite party as Bhumidhar. During consolidation proceedings Petitioner filed an objection under Section 9-A of the U.P. Consolidation of Holdings Act and sought expunction of opposite party's name from basic year records. The opposite party contested and alleged that Petitioner could utmost be asami. They also claimed to be in possession. The objection was allowed by the Consolidation Officer. But in appeal the order was set aside. The appellate authority found that mortgagors died heir less before 1347 Fasli and the disputed plot which was grove, vested in the Zamindar and the Petitioner being mortgagee was an asami of tenants grove. It further found that Petitioner was in possession since 1347 Fasli and as the Zamindar did not recover possession his rights extinguished. The Deputy Director dismissed the revision. The finding on possession was not set aside. In respect of death of mortgagors he observed that no extract of death was filed and there was no evidence to prove the date of death. He however did not consider this aspect very material as the mortgage having been executed in 1896 and sixty years having elapsed only in 1956. The Petitioner was mortgagee in 1952 and he became asami after abolition of Zamindari. In this view of the matter he did not find any illegality in the order of the appellate authority.
(2.) The appellate authorities finding, that mortgagors died prior to 1347F was based on the entry in 1347 Fasli wherein the land was shown as grove malikan of the Zamindar. This coupled with the oral evidence furnished enough material to conclude that the mortgagors died heirless prior to 1347 Fasli. A copy of death extract is not conclusive evidence. It is a piece of evidence. The Deputy Director's observation, therefore, that as no certificate was filed there was no evidence to establish death of mortgagor was incorrect in law. In refusing to examine the oral evidence due to non-filing of death extract he committed a manifest error of law. Moreover in the civil litigation which took place in 1942 between Zamindar and Petitioner it was found that the tenancy reverted to Zamindar. The copy of the judgment is not on the record of the writ petition. But from his observation in the appellate judgment it is clear that mortgagors must have died heirless prior to 1942. The observation of the Deputy Director, therefore, that there was no evidence to establish when did the mortgagor died cannot be maintained. The finding of the appellate authority in this regard is accepted as correct. It may therefore be assumed that the mortgagor died heirless prior to 1347 Fasli.
(3.) The interest of a tenant extinguished under Section 35(a) of Agra Tenancy Act, 1926, or under Section 45(c) of the U.P. Tenancy Act, 1939, as he died without any heir entitled to succeed him. If the tenancy was not transferable and occupancy tenancy was not, then the extinction of tenant's interest operated to extinguish the interest of any tenant holding under him under Section 32(1) of Agra Tenancy Act and Section 47(1) of U.P. Tenancy Act except as otherwise provided under Sub-sections (2) and (3) of Agra Tenancy Act and Sub-sections (3) and (4) of U.P. Tenancy Act. As there is no difference in the language of Sub-sections (2) and (3) of Agra Tenancy Act and Sub-sections (3) and (4) of U.P. Tenancy Act Sub-sections (2) and (3) of Agra Tenancy Act are quoted below. S. 32(2) Where, sit the time of the extinction by surrender of abandonment of the interest in a holding of a tenant whose interest is not transferable there is in existence a valid sublease or mortgage of the whole of a portion of the holding executed before the first day of January, 1902, all covenants binding and enforceable as between the tenant and the subtenant or mortgagee, as the case may be, shall, subject to Sub-section (4), be binding and enforceable as between the tenant's landholder and the subtenant or mortgagee for the remainder of the term of the sublease or mortgage, or for the lifetime of the tenant, or for ten years, whichever period may be shortest." S. 32(3) Where, at the time of the extinction by surrender or abandonment, or by death without any heir entitled to inherit such interest, of the interest in a holding of a tenant whose interest is not transferable, there is in existence a valid sublease of the whole or of a portion of the holding, executed on or after the first day of January, 1902, all covenants, binding and enforceable as between the tenant and the subtenant shall, subject to Sub-section (4), be binding and enforceable as between the tenant's landholder and the subtenant for the remainder of the term of the sublease or for five years, whichever period may be the shorter.;