JUDGMENT S. P. Srivastava, J.
1. Feeling aggrieved by the order passed by the Deputy Director of Consolidation whereunder allowing the revision filed under Section 48 of the U. P. Consolidation of Holdings Act by the contesting respondent and upholding the claim of the objectors in respect of the agricultural holdings pertaining to Khata No. 31, the name of the petitioners were directed to be expunged from the basic year khatauni determining the shares of Deo Narain and Surendra Kumar Lo be one half share each, they have now approached this Court seeking redress praying for the quashing of the revisional order.
2. 1 have heard Shri N. Lal, learned counsel for the petitioners and Shrl G. N. Verma, learned counsel representing the contesting respondents and have carefully perused the record.
3. The facts in brief shorn of details and necessary for the disposal of this case lie in a narrow compass. In the basic year Khatauni, the plots in dispute were recorded in the names of Deo Narain. Raj Karan S/o Ram Pal. Satya Narain and Ashok Kumar. An objection under Section 9A (2) of the U. P. Consolidation of Holdings Act was filed by Deo Narain and Surendra Kumar S/o Raj Karan raising a dispute that the entry of the names of Ashok Kumar and Satya Narain in the basic year Khatauni showing them to be co-tenure holders was incorrect asserting that the plots in dispute exclusively belonged to these objectors having equal shares therein praying that the names of Ashok Kumar and Satya Narain be expunged. This objection was contested by Ashok Kumar and Satya Narain claiming that they had half share in the plots in dispute and the basic year entry so far as it disclosed their names as co-tenure holders was not liable to be disturbed, asserting further that Deo Narain and Surendra Kumar were entitled to only 1/4 share each in the land in dispute.
4. The contesting respondents had set-up a claim that their predecessor in interest Ram Pal Singh had obtained a lease in respect of the land in dispute from Smt. Thakurain Kubera Kunwar on 8th May, 1943. It was further claimed that the plots in dispute had fallen in the share of Kubera Kunwar who was the Zamindar and she had become exclusive owner thereof in which capacity she had executed the Patta in favour of Ram Pal Singh. It was further claimed that the agricultural holdings in dispute pertained to the exclusive share of Smt. Thakurain Kubera Kunwar and was in her exclusive possession at time of the execution of the Patta in favour of Ram Pat Singh. It was on the strength of this Patta claimed to have been executed by Smt. Thakurain Kubera Kunwar that the descendants of the Ram Pal Singh claimed to be the exclusive tenure-holders of the land in dispute. Ashok Kumar and Satya Narain claimed to be the successor in interest of one of the Co-Zamindar and Co-Sir holder. Smt. Thakurain Kubera Kunwar had filed a suit for partition wherein vide order of the Collector dated 15.1.86 separate Qurras were prepared and separate Patti was carved out in the names of Smt. Kubera Kunwar and Smt. Chavinathi Kunwar. The petitioners claimed that in fact the land in dispute remained unaffected either by the partition suit or the family settlement as the husband of Smt. Thakurain Kubera Kunwar had died much before the enforcement of U. P. Tenancy Act and after the death of her husband, the name of Smt. Thakurain Kubera Kunwar was recorded as a widow for the sake of consolation and the right of Smt. Thakurain Kubera Kunwar as well Smt. Chavinathi Kunwar on account of death of their husband having taken place much before the year 1937 could only be that of a widow of a joint Hindu family having only a right of maintenance and could not go beyond that. She had no right whatsoever in the property as a co-sharer proprietor or co-sir holder. It was also claimed that the Patta which was being set up as the basis of title by Deo Narain and another was invalid and ineffective in law. The invalidity of the Patta is based on the assertions that 'Sir' could not have been transferred.
5. The claim of the petitioners had been contested asserting that the recording of the names of the petitioners in the basic year Khatauni was the result of an ex parts decree which had subsequently been set aside and the petitioners could not derive any advantage out of the same. It was asserted that there had been a partition between the co-sharers and a separate 'Patti' had been carved out in the name of Smt. Thakurain Kubera Kunwar who had executed the Patta in favour of Ram Pal Singh. So far as the family settlement is concerned it has been asserted that it was of no consequence as that family settlement related to the property of Smt. Chavinathi Kunwar and not the property of Smt. Thakurain Kubera Kunwar.
6. The Consolidation Officer found that the land in dispute was 'Sir' at the relevant time. He also recorded a finding that there had been family settlement in the year 1944 to which Laxman Prasad and Ram Pal Singh were parties wherein it had been mentioned that Jageshar Singh and Laxman had died as members of the joint family. In that family settlement so far as the proprietary right was concerned Shiv Babu was given 1 /4 share and Durg Vijay Singh and Shiv Bahadur and Tribhuwan were given 1 /4 share and Ram Pal and Rajwant were given 1/4 share and Ram Dular was given 1/4 share. It was indicated that Ashok Kumar and Satya Narain, Deo Narain and Surendra Kumar who were the descendants of Rajwant and Ram Pal were entitled to 1 /2 share of the land in dispute. Accordingly, the basic year entries were maintained rejecting the objections of Deo Narain and Surendra Kumar whose share was determined to be l/4th each.
7. The order of the Consolidation Officer was challenged in an appeal by Deo Narain. The said appeal was dismissed holding that the Patta executed in favour of Ram Pal Singh was invalid as the land in dispute constituted 'Sir' which could not be transferred. It was also observed that in the family settlement of 1944 Laxman Prasad and Ram Pal Singh were parties and taking into consideration the settlement reached thereunder, there was no Justification for disturbing the order passed by the Consolidation Officer.
8. The order dismissing the appeal passed by the Assistant Settlement Officer, Consolidation was an ex parte one since the appellant could not be present at the time of hearing of the appeal. The application for restoration of the appeal was, however, dismissed on 23.12.74.
9. The order passed by the Assistant Settlement Officer, Consolidation was challenged by Deo Narain and others in revision which has been disposed of under the impugned order. The Deputy Director of Consolidation has found that in 1334 Fasli Khatauni all the plots in dispute were recorded as the Sir Zaman 1 of Smt. Kubera Kunwar widow of Laxman Prasad and Smt. Chavinathi Kunwar having 3 shares and Tribhuwan Singh, Rajwant Singh having one share. In Khatauni 1342 Fasli, it has been found that Smt. Kubera Kunwar was recorded to be the proprietor of Patti showing the land in dispute as her Sir. In 1356 Fasli Khatauni all the plots in dispute stood recorded in the name of Ram Pal Singh in Zaman 17 showing duration of possession to be five years. In 1357 and 1359 Fasli Khatauni also the plots in dispute stood recorded in the name of Ram Pal Singh as Pattedar. The Director has found that by 1342 Fasli the Sir Khata in which the predecessor in interest of Ashok Kumar and Satya Narain were co-sharer, a new Patti had been carved out in the name of Smt. Kubera Kunwar with separate Sir. It has also been found that Smt. Kubera Kunwar had got her Sir separated and an area of 35.70 acres of the agricultural holdings had been demarcated as separate 'Sir' of Smt. Kubera Kunwar who had 6 annas share in the proprietary right and it was on account of this separation that in 1342 Fasli Khatauni a separate Patti of Smt. Kubera Kunwar was shown and the 'Sir' of Smt. Kubera Kunwar, was demarcated. The Deputy Director has found that after the year 1935 Smt. Kubera Kunwar had to be treated as a separate 'Sir' holder with which the other co-sharers ceased to have any concern. It was further found that all the plots in dispute stood recorded in the Patti of Smt. Kubera Kunwar and these plots were made the subject-matter of the Patta executed in favour of Ram Pal Singh on 28.5.43.
10. The Deputy Director of Consolidation has further found that 'Sir' rights were not transferable but the Patta in question amounted to a gift. It has also been found that in any view of the matter on account of continuous possession of Ram Pal Singh he had matured tenurial rights therein on account of adverse possession which possession continued undisturbed.
11. In view of the aforesaid findings, it was concluded that the land in dispute could not be deemed to be Joint 'Sir' as claimed by Ashok Kumar and Satya Narain and they could not be deemed to have any right therein on the basis of succession. He also concluded that the settlement of 1944 relied upon by Satya Narain and Ashok Kumar was not in respect of the land in dispute but related to some other property.
12. The question which arises for consideration in this case is as to whether the Patta executed by Smt. Thakurain Kubera Kunwar in favour of Ram Pal Singh was legally inoperative and ineffective and whether the 'Sir' in question could be taken to be a Joint Sir of the co-proprietor which included the predecessor in interest of Ashok Kumar and Satya Naratn. An other question which also arises for consideration ts as to whether on the findings recorded by the Deputy Director of Consolidation on the question of continuous exclusive possession over the land in dispute, irrespective of the execution of the Patta in favour of Ram Pal Singh, his descendant were entitled to be recorded exclusively as the only tenure-holders of the land in dispute excluding Ashok Kumar and Satya Narain.
13. 'Sir right' means the right conferred on 'Sir' holders under the provisions of U. P. Tenancy Act, 1939 and by the United Provinces Land Revenue Act, 1901 and includes the rights to exclusive possession of the 'Sir' against co-sharers of the Sir holder in the proprietary right, subject to a liability to account for profits. It may be noticed that the words "right to exclusive possession" of the 'Sir' against the co-sharer of the Sir-holder in the proprietary right an envisaged under Section 8 of the U. P. Tenancy Act, 1939 refers to a situation where the individual proprietor is in exclusive possession of Sir plots in joint village, Mahal or Patti in which the 'Sir' falls. This however, does not mean that the Sir-holder has a right to exclusive ownership which vests in all the proprietors, hence the liability to account for profits. On the partition of the Mahal, the right to the possession would be restricted to the extent of proprietary interest of Sir-holders. Under the provisions contained in Section 8 of the U. P. Tenancy Act, it is not contemplated that once an area becomes a 'Sir' of an individual, the Sir-holder becomes its owner irrespective of the interest he may have as a co-sharer.
14- In a joint Khewat, a Sir-holder is not exclusive owner of his Sir but he has a right to exclusive possession thereof against his co-sharers in proprietary interest so that he can let out his Sir and eject a tenant thereof without any reference to other co-owners. There can be no manner of doubt that a co-proprietor can have more 'Sir1 area than the area of his share in the proprietary interest but whether it be a joint 'Sir' or exclusive 'Sir1, there cannot be a transfer of specific 'Sir' plot except subject to the conditions prescribed under the Act.
15. The materials on the record as well as the facts proved and established as found by the respondent authorities indicate that the predecessor-in-interest of Satya Narain and Ashok Kumar were not co-sharers in Khewat as on the partition, separate Patti in the name of Smt. Kubera Kunwar had been carved out and the plots in dispute pertained to that Patti and were the "Sir" of Smt. Thakurain Kubera Kunwar. Ram Pal Singh claimed to be in possession as a perpetual lessee of 'Sir'. In the lease deed, a copy of which is on record executed on 28.5.43, it had been clearly mentioned by Smt. Thakurain Kubera Kunwar that the plots which were the subject-matter of the lease were her exclusive Sir. She had described the Patta as the Patta Istamarari. This lease had to be treated as a perpetual lease protecting the lessee's heirs from the ejectment. In view of the use of the expression 'Istamarari', the lessee's right was heritable. There being nothing in the pleadings to indicate any contrary custom, etc.
16. It may be noticed that the provision contained in Section 9 (2) of the U. P. Tenancy Act stipulates that 'Sir' rights are not transferable except by gift or exchange to a person to whom proprietary rights in the Sir is gifted but this prohibition has been made subject to an exception indicated in the proviso to Section 9, sub-clause (2) of the Act. The proviso stipulates that no Sir-holder shall exchange 'Sir' for 'Sir' in a Mahal in Which he is not co-sharer unless the proprietary rights in the 'Sir' are exchanged. Under the scheme of U. P. Tenancy Act, there was no impediment regarding letting out of 'Sir' land by the 'Sir' holder.
17. It may be noticed that the provision contained in Section 11 of the U. P. Tenancy Act is by no means exhaustive as regards the ways in which 'Sir' rights may be extinguished. There is nothing to prevent a landholder from conferring a perpetual lessee's rights in his 'Sir' land on a tenant. A perpetual lease of 'Sir' land is perfectly valid and enforceable under sub-section (4) of Section 4 of the Act.
18. The family settlement of 1944 which has been heavily relied upon by the petitioners, a true copy of which has been filed as Annexure-5 to the writ petition, indicates that it was in respect of the proprietary rights. There is, however, a mention therein to the effect that it covers the agricultural holdings situate in Sarai Ghatam to the extent of 12 annas but this reference to the agricultural holdings related to Mahal Chatrasal Singh and his Patti. There is nothing in the aforesaid Ikrarnama which could lead to an inference that the proprietary right or the 'Sir' rights relating to the agricultural holdings pertaining to Patti Smt. Kubera Kunwar were the subject-matter of the aforesaid deed of Ikrarnarna.
19. The Deputy Director of Consolidation has recorded a finding to ihe effect that Ram Pal Singh and thereafter his descendants continued to remain in exclusive possession of the land in dispute as 'Patta Dharak' right up to the date of vesting under the U. P. Zamindari Abolition and Land Reforms Act and also up to the date of basic year contemplated under the U. P. Consolidation of Holdings Act. The basic year entry in favour of the petitioners was found to be based on an ex parts decree which had been subsequently set aside. The partition of the joint 'Sir' and separation of the share of Smt. Kubera Kunwar and demarcation of her 'Sir' with the carvation of new Patti in her name was found to be established. The findings in regard to the above facts are based on an appraisal of evidence on the record which do not appear to suffer from any such legal infirmity which may justify any interference in the present proceedings.
20. The findings of the Deputy Director of Consolidation that the Patta in question really amounted to a gift is not liable to be sustained as Smt. Kubera Kunwar herself in clear and categorical manner had indicated that she was creating a perpetual lease in favour of Ram Pal Singh. This transaction could not amount to gift of 'Sir' as envisaged under Section 9 of the U. P. Tenancy Act. However, the occupancy rights stood secured in favour of Ram Pal Singh under the law and this occupancy right had to be taken, in the facts and Circumstances of the case brought on record, as sufficient to mature into the tenurial right in the land in dispute under the provisions of the U. P. Zarnindari Abolition and Land Reforms Act exclusively in favour of the heirs of the lessee excluding the petitioners. On the partition of the proprietary rights and carvation of a separate Patti in the name of Smt. Kubera Kunwar and the demarcation of 'Sir' pertaining to the aforesaid Patti, the other proprietors ceased to have any concern with the land in dispute and it was not permissible to treat the 'Sir' pertaining to the Patti of Smt. Kubera Kunwar as joint Sir of all the proprietors.
21. The exclusive possession of the contesting respondent in respect of the land in dispute clearly resulted in the extinguishment of the right to sue, if any, which could be claimed, if at all, by the petitioners, resulting in the accrual of tenurial rights in favour of contesting respondents.
22. In view of the conclusions indicated hereinabove, no justifiable ground has been made out for interference by this Court while exercising the extraordinary Jurisdiction envisaged under Article 226 of the Constitution of India.
23. The writ petition is accordingly dismissed. There shall, however, be no order as to costs.