JUDGMENT Kaushal Kishore, Member - These are ten connected second appeals against the order and decree dated 27-7-1973 by the leanred Additional Commissioner, Rohilkhand Division, Bareilly, arising out of nine suits under Section 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act, five of which were dismissed, three decreed and one partly dismissed and partly decreed by the learned trial Court vide order and decree dated 4-8-1971 and all the suits decreed vide order dated 27-7-1973 of the learned Additional Commissioner. 2. I have heard the learned counsels for both the parties and have also perused the record. 3. The main point of dispute in these cases is whether Sri Mohabbey Ali Khan would inherit after the death of Smt. Ajuban, being husband, or the appellant, Smt. Amrican, being daughter of Smt. Ajuban by her first husband, Abdul Nasib Khan would inherit the bhumidhari and sirdari left by Smt. Ajuban. 4. The facts of the case in brief are that the original tenant was abdul Nasib Khan alias Kallan Khan. Smt. Ajuban Bibi was his wife, Sri Shamsher Khan was his son and Smt. Amrican Bibi is his daughter. There is no dispute about that Abdul Nasib Khan died before 1946, his son, Shamsher Khan inherited the tenancy after him and on his death in 1946, Ajuban Bibi inherited as mother and remarried the plaintiff, Mohabbey Ali Khan in 1950. Smt. Ajuban Bibi continued to be tenant upto 1968 when she died and then the plaintiff, Mohabbey Ali Khan filed nine suits numbers 187 to 195. Smt. Ajuban Bibi continued to be tenant upto 1968 when she died and then the plaintiff, Mohabbey Ali Khan filed nine suits numbers 187 to 195. The learned trial Court dismissed the suit numbers 1987, 190, 191, 192, 194 and partly number 193 in respect of khata number 2244 only, on the finding that the sirdari land in these suits was formerly hereditary tenancy and Smt. Ajuban Bibi had inherited this land under Section 34 of the U.P. Tenancy Act from Shamsher Khan before vesting, hence after her death, succession would be governed by Section 172 (2) (b) of the U.P. Z.A. and L.R. Act in accordance with Section 171, Smt. Amrican Bibi would be the heir, Suit numbers 188, 189, 195 and partly 193 in respect of khata 312 were decreed on the finding that the land in these suits were originally Sir and KHUDKASHT before vesting and Smt. Ajuban Bibi was absolute owner of this bhumidhari land, hence in accordance with the Muslim Law, her husband, Mohabbey Ali Khan was the heir. The learned first appellate Court has held that in respect of the original Sir and KHUDKASHT land which became bhumidhari, Stm. Ajuban Bibi had absolute interest in the land and succession would be governed by Section 172 (2) (a) (ii) of the U.P. Z.A. and L.R. Act and not as pleaded by Smt. Amrican Bibi and so Section 174 of the U.P. Zamindari Abolition and Land Reforms Act would apply according to which Mohabbey Ali Khan, the second husband of Smt. Ajuban Bibi would inherit. However, in respect of sirdari land, the learned first appellate Court held that after the U.P. Zamindari Abolition and Land Reforms Act came into force on 1-7-1952, Smt. Ajuban Bibi had lost her sirdari rights on account of her second marriage and whoever were the heirs had to take action for ejectment of Smt. Ajuban Bibi. In the absence of such action, after the expiry of the period of limitation, Smt. Ajuban Bibi matured her own rights in the sirdari land and so succession would be governed by Section 174 of the U.P. Z.A and L.R. Act. Thus, the suits dismissed by the learned trial court were also decreed by the learned first appellate Court. 5. The learned counsel for the appellant has argued that the law has not been correctly understood by the Courts below resulting in wrong findings. Thus, the suits dismissed by the learned trial court were also decreed by the learned first appellate Court. 5. The learned counsel for the appellant has argued that the law has not been correctly understood by the Courts below resulting in wrong findings. Since the remarriage occurred in 1950, much before vesting, the U.P. Tenancy Act was applicable and the rights of Smt. Ajuban Bibi who inherited as mother from Shamsher Khan, did not extinguish as is clear from Section 36 of the U.P. Tenancy Act. This section provides only that a tenant inheriting as a widow or as a daughter if marriage, such holding would devolve in accordance with Section 35 of the U.P. Tenancy Act. Obviously, if the mother marries again, her right does extinguish. This is borne by the facts also since during the lifetime of Smt. Ajuban, there was no dispute as to her rights in the tenancy. The view taken by the learned first appellate Court that on 1st July, 1952 when the U.P. Z.A and L.R. Act came into effect, the sirdari rights of Smt. Ajuban Bibi would extinguish since she had remarried, is not correct. If the rights would at all extinguish, it must be either on the date of remarriage, which could not be possible in view of the provisions contained in Section 36 of the U.P. Tenancy Act, or under any specific provisions of the U.P. Zamindari Abolition and Land Reforms Act. The relevant section in U.P. Zamindari Abolition and Land Reforms Act is 172 and under Section 172 (2) (b), the wordings used are: ".......in the case of a widow, widow of a male lineal descendant in the male line of descent, mother, father's mother, marries,.........the holding shall devolve upon the nearest surviving heir............." The interpretation of the word "marries" is very important. The learned counsel for the appellant has cited a ruling reported in 1945 RD 344 on this point, wherein it is clearly laid down that the word 'marries' contemplates a marriage after the Act has come into force. If it was intended to include a marriage before the Act came into force, the wording would have been "marries or has married". If it was intended to include a marriage before the Act came into force, the wording would have been "marries or has married". The learned counsel for the respondent has cited a ruling reported in 1963 RD 153 in support of his argument that the limited interest of Smt. Ajuban Bibi having extinguished, her possession was adverse possession and after the period of limitation expired without any suit filed for her ejectment, she became owner in her own right. However, the position is mis-conceived, as discussed above, the rights of Smt. Ajuban Bibi had not extinguished. The ruling reported in 1963 RD 153 speaks of remarriage of a widow while Smt. Ajuban Bibi remarried after having inherited as mother. This ruling therefore, does not apply. Similarly, the case in 1971 RD 185 has to be distinguished from the present case for the same reason. The rulings reported in 1964 RD 80 and 1968 RD 293 relate to bhumidhars and so would not apply to the sirdari land. 6. Then the question comes whether the right of mother would extinguish on remarriage. The remarriage took place in 1950 when the U.P. Tenancy Act was in force. The learned counsel has cited rulings reported in 1948 RD 143, 1955 RD 410 and 1956 RD 80 on this point. Smt. Ajuban Bibi has succeeded under Section 35 (d) of the U.P. Tenancy Act. The wordings are mother, being a widow. This means that at the time when succession opens, the mother should be a widow. It is not necessary that she should continue as a widow. Since the remarriage of Smt. Ajuban Bibi in 1950 was much after her inheriting from her son, Shamsher Khan, the re-marriage does not affect her rights. The same view is confirmed by the above quoted rulings, viz. "If she was a widow when the succession opened and inherited tenancy, the subsequent remarriage would not divest her of the rights already inherited. For Section 36 would not apply in that case." 7. Now it is to be seen which provisions of the U.P. Zamindari Abolition and Land Reforms Act apply in respect of the sirdari land when Smt. Ajuban Bibi having inherited as mother, dies in 1968. For Section 36 would not apply in that case." 7. Now it is to be seen which provisions of the U.P. Zamindari Abolition and Land Reforms Act apply in respect of the sirdari land when Smt. Ajuban Bibi having inherited as mother, dies in 1968. There is no doubt that Section 172 (2) (b) of the U.P. Zamindari Abolition and Land Reforms Act applies and succession would be governed by Section 171 according to which the successor of Shmesher Khan would be Smt. Amrican Bibi, his married sister. There is no place for the step-father, Mohabbey Ali Khan since it is a succession to Shamsher Khan and not to Smt. Ajuban Bibi as absolute sirdar in her own right. Since the claim of the plaintiff, Mohabbey Ali Khan is not proved, the suits in question were rightly dismissed by the learned trial Court and that decision has to be upheld. 8. Coming to the other land being Sir and KHUDKASHT before vesting and bhumidhari after vesting which is the subject matter of the dispute in suit numbers 188, 189, 195 and partly number 193 in respect of khata 312, it must be said that the finding of the learned Additional Commissioner that Section 172 (2) (a) (ii) of the U.P. Zamindari Abolition and Land Reforms Act would apply is based on the facts. This section applied only when the bhumidhar immediately before the date of vesting was an intermediary or held the holdings as a fixed-rate tenant of an ex-proprietary or occupancy tenant in Avadh, or a tenant on special terms in Avadh. No doubt, since this land was Sir and KHUDKASHT, Smt. Ajuban Bibi was an intermediary before vesting and this provision would apply. The learned counsel for the appellant has argued that the learned Additional Commissioner did not discuss this point. However, even a brief discussion by the learned first appellate Court should be deemed sufficient since it agreed with the findings of the learned trial Court on the point. As the learned counsel for the respondent has argued, Daud Khan had filed objection against Smt. Ajuban Bibi and Smt. Amrican Bibi was also a party when the consolidation officer decided by his order dated 6-3-1965 that Smt. Amrican Bibi had no rights. Before her death in 1968 no one other than Smt. Ajuban Bibi can be held to be the heir. Before her death in 1968 no one other than Smt. Ajuban Bibi can be held to be the heir. It is claimed by the appellant's counsel that on the death of Abdul Nasib Khan, Smt. Ajuban Bibi, Shemsher Khan and Smt. Amrican Bibi jointly inherited according to the personal law prevailing at the time. On the death of Shamsher Khan also, Smt. Amrican Bibi would inherit. In any case, the rights to Amrican Bibi which could have been acquired though both these successions before vesting had been finally settled by the consolidation Court in 1965 against Amrican Bibi and she does not have any locus-standi now. In respect of this bhumidhari, land, I would, therefore, agree with the concurrent findings of the leaned trial court and the first appellate Court and appeals relating to these must be dismissed. 9. The last objection by the learned counsel for the appellant is that the learned first appellate Court could not have passed a conditional order of ejectment. In fact, the prayer was that the defendant be ejected in case found in possession on any land in dispute and unless the Court reached a finding that on any particular land in suits the plaintiff had been dispossessed unauthorisedly, no general or conditional order of ejectment was possible or legal. It was further argued that such order is not covered by Order. XLI Rule 33 Civil Procedure Code Again, it was not a case of unauthorised possession of Smt. Ajuban Bibi since upto 30-6-1952 admittedly she remained a tenant and her rights continued even after vesting and she became sirdar of her erstwhile occupancy holding under Section 19 of the U.P. Zamindari Abolition and Land Reforms Act. Hence no both unauthorised occupant and a conditional order of ejectment being inconsistent with law, such an order cannot be sustained and has to be set aside. The learned counsel has cited a ruling reported in 1971 RD 232 wherein the applicability of various provisions under Section 172 of the U.P. Zamindari Abolition and Land Reforms Act is clarified. There is no doubt that the present case is covered by Section 172 (2) (b) of the U.P. Zamindari Abolition and Land Reforms Act since Smt. Ajuban Bibi inherited the tenancy before vesting from her son. The consolidation Court had also held that mother's rights do no extinguish. There is no doubt that the present case is covered by Section 172 (2) (b) of the U.P. Zamindari Abolition and Land Reforms Act since Smt. Ajuban Bibi inherited the tenancy before vesting from her son. The consolidation Court had also held that mother's rights do no extinguish. Hence there was no question of any ejectment order against Smt. Ajuban Bibi. 10. In the result, the second appeal numbers 370, 373, 376, 381, 375 (in respect of khata 2244 only,) and 382 are hereby allowed and the respective judgement and decree dated 27-7-1973 by the learned Additional Commissioner are set aside while the remaining second appeal numbers 377, 378 374 and 380 (in respect of khata number 312 only) are dismissed and the judgement and decree dated 27-7-1973 by the learned Additional Commissioner relating to these also confirmed thereby agreeing with and confirming the judgement and decree by the learned trail Court dated 4-8-1971 in toto. 11. This order will govern second appeal nos. 373 to 382 of 1972-73/Budaun.