RAMPRAKASH v. MOHAMMAD ALI KHAN (DEAD) THROUGH L.R'S

Dw1vEDI, J.-In this appeal the bone of contention is a certain zamindari grove. The grove belonged to a number of co-sharers. But in a partition it fell to the share of one Sakhawat Ali and one Hafiz Ali. On Femruary 16, 1946 Hafiz Ali executed a composite the appellant, Ram document of lease and sale in favour of Praknsh. He let out his share in the grove land and sold his share in the standing trees to Ram Prakash. On the same day another similar document was executed in favour of the appellant by Smt. Abbj'.lsi, widow of Sakhawat Ali. She executed the document for self and as guardian of her minor son,s and daughters. The document was in respect of her share and her childrens share. Subsequent to the execution of those documents the proprietary right of some other co-sharers (presuma~y some successors of Sakhawat Ali) in the grove land was sold to one Mohammad Ali. The ~ppellant instiluted a suit some time in 1946 against Moham mad Ali and others for injunc<tion and alternatively for possession over the grove. Some time in 194 7 Mohammad Ali and others also ;nstituted a rival suit for cancellation of the aforesaid leases. Their ~ase was that the leases were invalid as section 246 of the U.P. Tenancy Act prohibited the execution of a lease by some of 1he co-sharers only. The two suits were tried together. The trial court dismissed the suit of the appellant and decreed the other suit. Two appeals were preferred against the· decree of the trial court. The lower appellate court granted a decree in favour of the appellant for joint possession over the share of Hafiz Ali .and Smt. Abbasi in the grove land. It was held that the lease executed by Smt. Abbasi as guardian of the minors was invalid. So no decree was passed in respect of their shares. The other appeal was disposed of on the same terms. Mohammad Ali then filed two second appeals in the Allahabad High Court. They were numbered 2350 and 2351 of 1953. Second appeal No. 2350 of 1953 was second filed against the decree passed in the appellant's suit; arpeal Xo. 2351 of 1953 was filed against the decree in his own suit. During the pendency of the appeals, Mohammad Ali died and his legal representatives were brought on record. Second appeal No. 2351 of 1953 was dismissed by a learned Judge of the· lUgh Court . Second Appeal No. 2350 of 1953 came up for RAM PRAKASH V. M.A. KHAN (Dwivedi, !.) 895 A B c D E F G H hearing before another learned Judge. The appeal was allowed with respect to the lease of grove land and' dismissed ss regards the sale 0£ trees. Hence this appeal b!Y special leave. We agree with the learned Judge that after the commencement of the U.P. Zamindari Abolition and Land Refonns Act (herein subsisting after referred to as the Act), the appellant has no interest in the grove land. Section l!f(l) of the Act provides that all lands in possession or held or deemed to be held by ·an intermediary as an intermediary's grove on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary. Section 2( 12) of the Act defines an intem1ediary as "a proprietor, under-proprietor, sub-proprietor, thekedar, permanent lessee in Avadh, permanent tenure-holder of an estate or part thereof." Section 2 ( 13) defines "intermediary's grove" as grove land held or occupied by an inter mediary as such. As the grove in dispute was an intermediary's grove Mohammad Ali and others, who were intennediaries on the relevant date, became its bhumidars. The lessee of an intermediary's grove land is not an inermediary because he does not fall within the definition of the word "intermediary". Ni;> other provision of the Act gives him ·any kind of interest in the intermediary's grove land. Accord' i.j)gly, the appellant gets no right in the grove land in dispute. The scheme of the Act is to createl new rights .in place of old rights. The old rights are dead and gone after the commencement (vide Rana Shea Ambar Singh v. Allahabad Bank of the Act. v. Ltd., Allahabad(1) and Jamshed Jahan Begam and others Lakhan Lal and others( 2 ). The decision of the High Court in second appeal No. 2351 of 1953 cannot operate as res judicata in this appeal. Second appeal No. 2351 of 1953 arose out of the suit instituted by Mohammad Ali and others. That suit was for cancellation of the leases on the ground that they were made in contravention of the provisions of s. 246 of the U.P. Tenancy Act. The question whether the Zamindari Abolition and Land Reforms Act gave any rights to the appellant in the grove land in dispute could not be and was in In that appeal the material fact not considered in that appeal. (1) [1962] 2 S. C. R. 441. (2) [1970] 2 S. C. R. 566. 896 SUPREME COURT REPORTS [1973] 3 s.c.a.. issue was whether the le.ases were void. The argument on 'behalf of Mohammad Ali and others in second appeal No. 2350 of 1953 now is thalt assuming that the leases are valid, the lessee has no subsisting right in the grove land after the enforcement of the Act. As the grove is land covered by the Act; it will be governed by the provisions of the Act and not by the provisions of the Trans fer of Property Act. We have already held that the appellant's lessee rights came to an end on die commencement of the Act. And the Act conferred on him no new rights. In the result, there is no force in this appeal. It is dismissed with costs. A B c G.C. Appeal dismissed.