JUDGMENT :

1. Heard Sri R.C. Singh for the petitioners. Respondents had been heard on the previous occasion.

2. The instant writ petition arises out of an objection under Section 9-A (2) filed by Naresh Bahadur Singh, respondent no.4, claiming co-tenancy to the extent of 1/4th share, on the ground that he was the daughter's son of Mst. Dashraja. It was the case in the objection that the land in dispute was ancestral acquisition of Bal Karan Singh, who had four sons and that Smt. Dasraja was widow of one of the four sons, namely, Bhanu Pratap Singh. Bhanu Pratap Singh left behind, apart from his widown, a daughter, Dittan and Naresh Bahadur Singh is the son of Dittan.

3. It appears that another objection was filed but the same appears to be of no consequence, in so far as this writ petition is concerned. Therefore, the same is not being adverted to.

4. In the basic year record, the land in issue was recorded in the name of Sita Saran, Gulab Singh and Birendra sons of Rudra Pratap and Kallu son of Ram Pratap.

5. The Consolidation Officer vide order dated 25.08.1982, allowed the objection of Naresh Bahadur regarding khata no.14 and 185 of village Mishirpur as also regarding khata no.5 of village Nagwari. It was however, rejected with regard to khata no.5 and 154 of village Mishirpur and regarding khata no.85 of village Nagwari.

6. The objector did not prefer any appeal.

7. However, four other appeals were filed, including an appeal by the petitioners. All the appeals are stated to have been dismissed vide order dated 23.01.1985. In so far as the appeal filed by the petitioners is concerned, the same was dismissed as not pressed by recording that the lawyer, Madsudan Dubey had made a statement that he had no instructions in the matter.

8. It is submitted that Madsudan Dubey was not Counsel for the petitioner. Therefore, a restoration application was filed which was dismissed, vide order dated 26.10.1985, by a wholly non-speaking order.

9. The petitioners thereafter, filed a revision which has been dismissed on merits vide order dated 06.04.2004. Hence this writ petition, challenging the impugned orders of the three courts below which grant co-tenancy to Naresh Bahardur Singh, respondent no.4, in two khatas of village Mishirpur and one khata of village Nagwari.

10. The submission of counsel for the petitioners is that it is admitted position that the tenancy of the land in dispute was a fixed rate tenancy. It is also contended that the dispute relates to the share of Bhanu Pratap, one of the four sons of Bal Karan Singh. Bhanu Pratap Singh died on 10.03.2026 and his widow Smt. Dasraji is alleged to have died in the year 1935. It is submitted that the date of death of Bhanu Pratap is material and that on that date, the Agra Tenancy Act was applicable. The observation to the contrary made in the order of the Deputy Director of Consolidation that the U.P. Tenancy Act was applicable is factually, incorrect.

11. He has referred to Section 12 of the Agra Tenancy Act, which defines a fixed rate tenancy and also provides that such tenancy is heritable and transferable and that succession to such land is to be governed by personal law. It is also submitted that under the provisions of the Agra Tenancy Act, succession is governed by Section 24 but therein, a fixed rate tenancy, is specifically excluded.

12. On the strength of the afore-noted, it is submitted that the widow of a fixed rate tenant would not inherit his share as per the personal law and in holding to the contrary, the courts below have committed manifest illegality. Therefore, the impugned orders are liable to be set aside to the extend they grant cotenancy in favour of respondent no.4.

13. The contention of counsel for the respondent is that the dates of death of Bhanu Pratap and his widow are both incorrectly mentioned in the impugned orders. In so far as the widow is concerned, he submits that a supplementary affidavit has been filed mentioning therein that she died in the year 1944. He