RAM PRASAD Vs. ASSISTANT DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) The appellants are the legal representatives of Ram Prasad and successor to one Umrao Singh, brother of Bahadur Singh. Bahadur Singh and Umrao Singh were the sons of one Ganga Ram, residents of village Salarpur, Pargana Mooth, Tehsil Hapur, Dist. Meerut, U. P. The dispute relates to Khata No. 66 of that village. Bahadur Singh died intestate leaving behind his widow, Smt. Jivani. Bahadur Singh was in possession of the Khata No. 66 as a tenant under Chetan Prakash and Jiwan Lal, brothers, land holders at that relevant time. It is the appellants' case that Smt. Jivani had life estate in the agricultural lands in Khata No. 66. On her demise, being lineal descendants of Bahadur Singh, the appellants are entitled to succeed to his estate as owners of the land therein. The proceedings ultimately ended against them.

(2.) While Jivani was in possession and enjoyment of the lands, it would appear that the respondent, Jwala Singh made an application on July 9, 1951 along with an affidavit filed in the proceedings under S. 59 of U. P, Tenancy Act, 1939 for short. 'Tenancy Act' and an ex parte decree was obtained "that the parties had come to terms. The suit was therefore, decreed in terms of the compromise in favour of Sirdhari". Accordingly, the respondent is said to have continued in possession of the said lands as a co-tenant. Challenging the validity of the said decree, Ram Prasad, it appears, had filed 0.S. No. 624 of 1952 in the Court of Munsif, Haveli at Meerut which was decreed on August 28, 1964 declaring that the decree obtained under S. 59 was collusive and fraudulent. The same was confirmed in Civil Appeal No. 760 of 1964 dated 1-4-1965. While the second appeal was pending, notification under S. 5 of the U. P. Consolidation of Holdings Act, 1953 for short Consolidation Act was published. Consequently, the proceedings stood abated. In the consolidation proceedings the authorities found that the decree obtained by the respondent was a collusive and fraudulent decree and, therefore, it does not bind the appellants. Thus all the consolidation proceedings, the Original, Appellate and the Revisional, ended in favour of the appellants. Calling in question the said proceedings the respondent filed C.M.W.P. No. 3876/ 73 in the High Court and by judgment dated September 9, 1990, the learned single Judge allowed the writ petition and held that the consolidation orders were not legal and the respondent was entitled to be declared as a co-tenant with Jivani and was entitled to the half share therein. Thus this appeal by special leave.

(3.) Shri G. L. Sanghi, the learned Senior Counsel for the appellants contended that the decree made under S. 59 of the Tenancy Act was a fraudulent and collusive decree. The High Court, without adverting to that fact, relying upon the decree dated July 9, 1951, made under S. 59, concluded that the respondent is entitled to be declared as a co-tenant. That finding, therefore, is clearly vitiated by manifest error or law. Shri Satish Chandra, learned Senior counsel for the respondents contended that S. 7(1)(c) of the U. P. Agricultural Tenants Acquisition of Privileges Act, 1949 for short the Privileges Act which came into force with retrospective effect confers on Jivani, ownership of the cultivating tenant with right to alienate by transfer, etc. of her interest in the land. On and w.e.f. August 11, 1949, she became an absolute owner and was, therefore, competent to create co-tenancy in favour of Jwala Singh. Therefore, the decree is valid in law. It is further contended that after July 1, 1952 the date of vesting under the U. P. Zamindari Abolition and Land Reforms Act, 1951, Act 1 of 1952 for short the Abolition Act, she became an absolute owner. She died, admittedly, after the Hindu Succession Act, 1956 for short the Succession Act had come into force. Therefore, the right of co-tenancy created in favour of the respondent is legal and valid, though these contentions were not raised in the High Court, the conclusion reached by the High Court could be sustained on that premise. Therefore, it needs no interference by this Court.