JUDGMENT B.D. Agrawal, J. - This is defendants' appeal. 2. The following pedigree will serve to elucidate the facts of the case :- 3. Peer Bux was the occupancy tenant of the land specified in Schedules A and B to the plaint. He was succeeded by his son Sardar Khan. Sardar Khan died on July 7, 1912. Smt. Bandi was recorded in the Khatauni of 1320 Fasli as occupancy tenant. The plaintiffs' case is that on the date of vesting Smt. Bandi was the sirdar of this land and she acquired Bhumidari Sanad on deposit of ten times of the rent. On March 27, 1967, it is alleged, Smt. Bandi executed a registered deed of gift in respect of the entire land comprised in Schedule A and one-half share in the land of Schedule B in favour of the plaintiffs (sons of Hubdar Khan). Smt. Bandi died about 6 or 7 months after the execution of this deed. The plaintiffs acquired by inheritance one-fourth share in the land in Schedule B in capacity as the grandsons of Smt. Bandi. In this manner they claimed to be Bhumidars of the entire land of Schedule A and to the extent of three-fourth in Schedule B. On June 18, 1971, defendant No.1 Sadloo Khan executed a gift by registered deed in respect of half share in Schedules A and B in favour of his daughters impleaded as defendants 2 to 5. This gift, according to the plaintiffs, was incompetent. The defendant No. 1 had no interest in the land in Schedule A and in Schedule B his interest was to the extent of one-fourth only. The relief claimed accordingly is cancellation of the deed of gift dated June 18, 1971 made by the defendant No. 1 in favour of his daughters. 4. In defence it was asserted by defendant No. 1 that on the death of Sardar Khan the tenancy devolved by inheritance upon the defendant No. 1 and his brother Hubdar Khan. Both of them were then minors under the guardianship of their mother, Smt. Bandi. The entry of 1320 fasli in favour of Smt. Bandi was incorrect. The deed of gift dated 27th March, 1968 executed by her is of no effect in law. At the time of her death she was about 80-90 years old besides being illiterate and disabled. The gift was obtained by fraud against her. The entry of 1320 fasli in favour of Smt. Bandi was incorrect. The deed of gift dated 27th March, 1968 executed by her is of no effect in law. At the time of her death she was about 80-90 years old besides being illiterate and disabled. The gift was obtained by fraud against her. The defendant No. 1 was competent to make the gift of his share to the extent of one-half in favour of his daughters which he did on June 18, 1971. 5. The trial court decreed the suit on January 1, 1974 being of the view that Sardar Khan gave the land in suit to his wife Smt. Bandi in his lifetime and abandoned his interest and the name of Smt. Bandi came in 1320 fasli as occupancy tenant in her own right with the consent of the then zamindar who had the right to confer the tenancy on Smt. Bandi. The appeal by the defendants was dismissed by the X Additional District Judge, Allahabad on September 5, 1974. It was held that there was presumption of correctness in relation to the entry of the Settlement year 1320 fasli in the name of Smt. Bandi and that the defendant No. 1, who is also an attesting witness to the deed of gift dated 27th March, 1968, is estopped from challenging that she had the interest exclusively as tenant. The gift made by her was of freewill and understanding. Aggrieved against the decree passed in the suit and confirmed in appeal, the defendants have preferred this second appeal. The original record was burnt due to fire in the record room of the District Court, Allahabad. Under the direction of this Court, the record was got reconstructed by the District Court. 6. Sri Sankatha Rai, learned counsel for the appellants, urged that there is absolutely no evidence of surrender or abandonment by Sardar Khan of his occupancy tenancy rights in his lifetime nor is there evidence of Smt. Bandi having been admitted as tenant. The courts below have acted upon surmises and guesswork. Under the law of inheritance the sons of Sardar Khan stepped in upon their father's death and the presumption referred to in relation to the entry of 1320 fasli is plainly rebutted. The entry was incorrect. That gift from Smt. Bandi was obtained by fraud taking advantage of her age and disability. Under the law of inheritance the sons of Sardar Khan stepped in upon their father's death and the presumption referred to in relation to the entry of 1320 fasli is plainly rebutted. The entry was incorrect. That gift from Smt. Bandi was obtained by fraud taking advantage of her age and disability. It is also argued that the suit was not within the jurisdiction of the civil court. 7. In reply Sri K. B. L Gaur, learned counsel for the plaintiff-respondents submitted that there is presumption attaching to the Settlement Entry of 1320 fasli in favour of Smt. Bandi and it was up to the defendants to have rebutted the same which they failed to do. 8. From this narration of facts it is manifest that the title claimed by the plaintiff-respondents is founded on alleged deed of gift dated March 27, 1968 executed in their favour by their grandmother, Smt. Bandi. There is no dispute that the mere fact that Smt. Bandi had obtained Sanad under section 134/137 of the U.P. Zamindari Abolition and Land Reforms Act will not by itself make her the bhumidar. It had to be shown that she was sirdar under S. 19 of this Act. The basis on which it is asserted that she became sirdar on the date of vesting is that she was the occupancy tenant of this land immediately preceding the vesting. It is undeniable in my view that the burden to establish title asserted in the plaint lay upon the plaintiff-respondents. The relief sought is cancellation of the gift which the defendant No. 1 appellant made on June 13, 1971 to his daughters but that cannot succeed unless it is proved by the plaintiff- respondents that Smt. Bandi was under the law bhumidhar of this land. 9. Both the parties admitted that Sardar Khan was the occupancy tenant of the entire land. It is common ground that he died on July 7, 1912. That was just the beginning of 1320 fasli. The year 1320 fasli commenced on July 1, 1912. The parties were then governed by the North Western Provinces Tenancy Act, 1901 (hereinafter referred to as the Act). Section 22 of the Act provided for succession to tenancies governed thereunder. It is common ground that he died on July 7, 1912. That was just the beginning of 1320 fasli. The year 1320 fasli commenced on July 1, 1912. The parties were then governed by the North Western Provinces Tenancy Act, 1901 (hereinafter referred to as the Act). Section 22 of the Act provided for succession to tenancies governed thereunder. On the death of an occupancy tenant his interest in the holding devolved on his male lineal descendants in the male line of descent and failing such descendants, on his widow. Therefore, when Sardar Khan died the heirs to the tenancy were the two sons. namely, Sadloo Khan, defendant-appellant No. 1 and his brother Hubdar Khan (now dead) and not Smt. Bandi - the widow. Section 18 of the Act made provision for extinction of occupancy right and stated : "18. A right of occupancy shall be extinguished (a) when the tenant dies leaving no heir entitled under this Act to inherit it; (b) in land from which the tenant has been ejected in execution of a decree or order of a Court : (c) in a holding, which the tenant has abandoned or surrendered after service upon the landholder of a notice of surrender; (d) in land which has been acquired for a public purpose, or a work of public utility." 10. None of the clauses (a),(b) and (d) is relevant. Sardar Khan had not died heirless, he was not ejected in execution of any decree or order of a court, the land in question was not acquired for any public purpose or work of public utility. There is not an iota of evidence documentary or oral to show that the holding was abandoned by Sardar Khan or surrendered after service upon the landholder of a notice of a surrender as contemplated under Cl. (c) above mentioned or in any other manner for that matter. P. W. Saheb, plaintiff- respondent No. 1, the only witness on the point for the plaintiffs was aged nearly 40 years when he came to the witness-box in the year 1973. He admits naturally that Sardar Khan his grandfather, had died before he was born. The trial court has lost sight even of this fact and seems to have assumed surrender by Sardar Khan on the strength of the testimony of this witness alone. He admits naturally that Sardar Khan his grandfather, had died before he was born. The trial court has lost sight even of this fact and seems to have assumed surrender by Sardar Khan on the strength of the testimony of this witness alone. The ordinary presumption is that Sardar Khan retained his right, title and interest in the holding till his death and upon his death the land devolved as per law of inheritance governing the matter. 11. There is another reason why I am of the view that Smt. Bandi cannot be said to have become an occupancy tenant in her own right at any point of time. Section 16 of the Act defines `occupancy tenant' saying : "Every tenant having a right of occupancy under section 11, or under the corresponding provisions of Act X of 1859. Act XVIII of 1873, or Act XII of 1881, or under any other enactment for the time being in force. shall be called an occupancy tenant, and shall have all the rights and be subject, to all the liabilities conferred and imposed on occupancy tenants by this Act." 12. The Act came in force on January 1, 1902. Smt. Bandi was not then in picture. Sardar Khan admittedly continued to be the tenant and is recorded also in the revenue papers of 1319 fasli as such. For purposes of acquisition of occupancy tenancy under S. 11 of the Act, it was provided : "11. A tenant who has held the same land continuously for a period of twelve years shall have a right of occupancy in such land. For purposes of acquisition of occupancy tenancy under S. 11 of the Act, it was provided : "11. A tenant who has held the same land continuously for a period of twelve years shall have a right of occupancy in such land. Provided that no tenant shall acquire under this section a right of occupancy in any land which he holds : (a) as a lessee holding under the registered lease for a term of not less than seven years, or (b) as a the kadar, or (c) as a sub-tenant; and no right of occupancy shall be acquired; (d) in sir land, or (e) in any land which is or forms part in a military encamping ground or other area acquired or held for a public purpose, or a work of public utility; Provided, also, that in computing the period of twelve years, any time for which the land has been sublet, or otherwise transferred, in contravention of the provisions of this Act, shall be excluded, but shall not be deemed to break the continuity of the tenant's holding". 13. Section 16 read with S. 11 are exhaustive of the manner in which occupancy tenancy can be created under the Act. Smt. Bandi is not alleged or shown to have, held this land continuously for a period of twelve years preceding the death of her husband. There is no question for this reason also or occupancy tenancy rights being deemed to be created in her favour in or about 1320 fasli. The courts below have proceeded on mere conjecture and guesswork. There is no basis for the trial court to have assumed that the land in question was given by Sardar Khan to his wife in his lifetime and that was abandoned by him or that Smt. Bandi was taken in as tenant by the Zamindar with his consent. The lower appellate court observed : "It is thus clear that Sardar Khan died on 7-7-1912 that is just in the beginning of 1320F., the Settlement Year. It is equally possible that the name of Bandi Bibi could be recorded either in place of Sardar Khan or in her own rights. Of course there is no direct evidence to support the plaintiffs' contention that Sardar Khan had in his lifetime surrendered the land and the zamindar conferred occupancy tenancy on Bandi Bibi. There is no documentary evidence to that effect. Of course there is no direct evidence to support the plaintiffs' contention that Sardar Khan had in his lifetime surrendered the land and the zamindar conferred occupancy tenancy on Bandi Bibi. There is no documentary evidence to that effect. The oral evidence in this respect is of no value. P. W. 1 Sahabdar Khan, the plaintiff No. 1 has stated so but he is only 40 years old and was not even born when Sardar Khan died. No other witness was produced on this point. Thus we are left only to guess what occurred which resulted in the record of Bandi Bibi's name." Further, it observed : "Anything might have happened before the entry of the settlement year was made. It is quite likely that Sardar Khan might have surrendered the plots and the Zamindar might have conferred the tenancy rights on Bandi Bibi." 14. Sri Gaur the respondents' learned counsel laid stress on the entry of 1320 fasli. The argument is that this being the entry of the Settlement Year, there is strong presumption of its accuracy and the burden lay upon the defendants which they did not rebut. It is submitted also that defendant No. 1 appellant did not take steps in the lifetime of Smt. Bandi to get her name deleted from the revenue papers. The presumption referred to by the learned counsel is not conclusive. Certainly no settlement could be accomplished within first seven days of the 1320 fasli. There is no dispute that when Sardar Khan died, both his sons were minors being under the guardianship of their mother, Smt. Bandi. The defendant No. 1 appellant was then only about three years old, his brother Hubdar Khan was about five years in age. It is not correct to say moreover that defendant No. 1 did not assert that the entry in the name of Smt. Bandi was incorrect. He has asserted this and also given the background by way of explanation in which the entry came to be recorded. The rent was paid throughout by the two brothers - the sons of Sardar Khan, though the receipts were issued in the name of Smt. Bandi since her name appeared in the revenue papers. He has asserted this and also given the background by way of explanation in which the entry came to be recorded. The rent was paid throughout by the two brothers - the sons of Sardar Khan, though the receipts were issued in the name of Smt. Bandi since her name appeared in the revenue papers. It is true that defendant No. 1 did not apply in the lifetime of Smt. Bandi for her name being deleted, but this is explained reasonably by the fact that the sons were living with the mother under the same roof. They did not conceive of any right arising. It has been stated also by defendant No. 1 that the actual cultivation was done by both of them and all of them were maintained from the earning of this land. It is not right, therefore, to contend in face of these attending circumstances of unimpeachable character that the presumption attaching to the entry of 1320 fasli is not rebutted. 15. Learned counsel for the respondents referred also to the attestation made by defendant No. 1 appellant to the deed of gift dated 27th of March, 1968 claimed to have been executed by Smt. Bandi in favour of her grandsons, Smt. Bandi was admittedly aged about 80-90 years old at the relevant time. She was a rustic, illiterate Pardahnashin village woman. She had been ailing and was disabled being lame, hard of hearing and of poor eyesight. Without disturbing still the finding of the courts below in regard to the alleged deed of gift being made by her of free-will and understanding, it is not possible to loose sight of the salient features of the case, namely, (1) The tenancy would devolve according to the relevant law of tenancy as specified in section 22 of the Act. In the absence of anything to show that the interest of Sardar Khan had extinguished in his lifetime in any of the modes referred to in section 18 under the rules of inheritance all male lineal descendants were preferential heirs in comparison to the widow. (ii) The consent of defendant No. 1 appellant or the plaintiffs, assuming that this was there, would not serve to make Smt. Bandi the occupancy tenant of this land. Sections 16/11 of the Act are exhaustive as explained above of the manner in which occupancy tenancy can be created. (ii) The consent of defendant No. 1 appellant or the plaintiffs, assuming that this was there, would not serve to make Smt. Bandi the occupancy tenant of this land. Sections 16/11 of the Act are exhaustive as explained above of the manner in which occupancy tenancy can be created. There is nothing to suggest that the land in question had been held by Smt. Bandi for the requisite period of twelve years and estoppel cannot operate against statute, nor is there evidence of the land having been settled by the Zamindar with Smt. Bandi in any other manner. (iii) The entry found in the Settlement Year does not by itself create title. It is made for revenue purposes and may at the best speak of possession. The defendant No. 1 appellant and his brother having been infants when Sardar Khan died, it is not surprising that Smt. Bandi came to be recorded in the revenue papers as explained above. In the complete absence of anything to infer extinction of tenancy held by Sardar Khan and the creation of occupancy tenancy rights in favour of Smt. Bandi, the courts below were not justified in concluding that she be deemed to have been the occupancy tenant. 16. For the reasons given above, the deed of gift dated 27th March, 1968, claimed to have been executed by Smt. Bandi, did not create any right in favour of the plaintiff- respondents since this was incompetent as Smt. Bandi was not the bhumidhar of the land under the law. The tenancy devolved upon the two sons of Sardar Khan on his death. Defendant No. 1 appellant held half share which he was competent to gift as he did in favour of his daughters on June 18, 1971. The other half belongs to the plaintiff-respondents being the grand sons of Sardar Khan deceased. 17. Learned counsel for the appellants also urged that the suit did not lie within the jurisdiction of the civil court. This was, however, not pursued further for obvious reasons. In view of Explanation 1-A to S. 331(1) of the U.P. Zamindari Abolition and Land Reforms Act, the question relating to the jurisdiction could not be adjudicated at this stage in the absence of anything to suggest that there has been failure of justice caused. This was, however, not pursued further for obvious reasons. In view of Explanation 1-A to S. 331(1) of the U.P. Zamindari Abolition and Land Reforms Act, the question relating to the jurisdiction could not be adjudicated at this stage in the absence of anything to suggest that there has been failure of justice caused. On this account the provision is in pari materia with S. 21, Civil Procedure Code and section 11 of the Suits Valuation Act. There is nothing to infer failure of justice resulting on this account. 18. The appeal in the result succeeds. 19. The appeal is allowed. The judgment and decree of the courts below are set aside. The suit shall stand dismissed. In the circumstances the parties shall bear their own, costs throughout.