The court upheld the principle that the succession to property must follow the statutory order defined in the applicable act, and survivorship claims are only relevant in the absence of legal heirs.

JUDGMENT :

JASPREET SINGH, J.

1. Heard Shri Mohammad Arif Khan, learned Senior Counsel alongwith Shri Mohammad Aslam Khan for the petitioner and Shri Vijai Bahadur Verma, learned counsel for the private respondents, Dr. Krishna Singh, learned counsel for the State and Shri Pankaj Gupta, learned counsel for the Gaon Sabha.

2. The petitioner has approached this Court assailing the order passed by the Settlement Officer of Consolidation dated 31.10.1981 and the order passed by the Deputy Director of Consolidation dated 30.09.1982 whereby the claim of the petitioner has been turned down which was initially allowed by the Consolidation Officer vide his order dated 04.03.1978.

3. The fact in between the parties is not much in dispute. Primarily, the dispute related to the property of Khata No.237, situate in village Barhya Fard Khan, Pargana Sahadullah Nagar, Tehsil Utraula, District Gonda. The property in question was recorded in the name of Mahadev Singh, Jagdev Singh, Zamadar Singh and Taliqudar Singh, who are the respondents in the instant petition.

4. The petitioner claimed rights over the property in question being the nephews of Hirdai Singh. It has been the case of the petitioner that upon the death of Hirdai Singh who died issueless, the petitioner being the nephew would inherit the rights on the basis of succession. Moreover, the private respondents also claimed rights on the basis of succession.

5. It is not disputed between the parties that Hirdai Singh, whose property and share is the subject of dispute, died prior to the promulgation of the U.P. Z.A. & L.R. Act, 1950 (hereinafter referred to as the Act of 1950). It is also the admitted position that the succession would open on the death of Hirdai Singh and apparently since Hirdai Singh had died prior to the promulgation of the Act of 1950. The succession to the share of Hirdai Singh would be governed by the provisions of the United Provinces Tenancy Act, 1939 (hereinafter referred to as the Act of 1939).

6. The petitioner claimed that in terms of Section 35 of the Act of 1939, the petitioner would fall within the category of Section 35 (l) which relates to the order of succession and is applicable to brother sons, the brother having been a son of the same father as the deceased.

7. It is further contended by the petitioner that the private respondents are lower in the order of succession being father's brother's son, hence upon the death of Hirdai Singh, the property devolved and vested with the predecessor-in-interest of the present petitioner and the private respondents would have no right.

8. On the other hand, the private respondents submits that since upon the death of Hirdai Singh who died in the year 1950, he was survived by his cousin brother who was the son of Sanuman Singh hence the respondents would inherit the property.

9. The Consolidation Officer vide its judgment dated 04.03.1978 ruled in favour of the petitioner granting half rights in the share of Hirdai Singh. Against the order passed by the Consolidation Officer dated 04.03.1978, four appeals were filed which have been allowed by the Settlement Officer of Consolidation vide order dated 31.10.1981, as a consequence, the order of the Consolidation Officer was set aside. The petitioner has preferred a revision before the Deputy Director of Consolidation who also by means of order dated 30.09.1982 affirmed the order passed by the Settlement Officer of Consolidation, negativing the claim of the petitioner and in this view of the matter, the petitioner has approached this Court by filing the instant writ petition.

10. Shri