JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri Nipun Singh, learned Counsel for the petitioners and learned Counsel appearing for the contesting respondents No. 2 and 3. 2. By this writ petition, the petitioners have prayed for quashing the judgment and order dated 11.3.2002, passed by the Deputy Director of Consolidation allowing the revision filed by the respondents No. 2 and 3. 3. Brief facts necessary for deciding the issues raised in the writ petition are; the dispute arose between the parties in the proceedings under Section 9-A (2) of the U.P. Consolidation of Holdings Act, 1953. In the basic year, the name of Smt. Gyano was recorded over the disputed Khata, who having died, a dispute regarding her succession was referred by Assistant Consolidation Officer to the Consolidation Officer. The case of the respondents No. 2 and 3 was that Smt. Gyano was the tenure holder and after her death, the respondents No. 2 and 3 being her sons will succeed to her and the petitioners being not sons of Smt. Gyano rather sons of Fattu and Smt. Bashiri had no right. The case of the petitioners before the Consolidation Officer was that Smt. Gyano, who was the wife of Karmu, remarried with Fattu after death of Karmu hence, all five sons of Fattu i.e. petitioners and the respondents No. 2 and 3 were entitled to be recorded over the land in dispute. Parties filed documentary as well as led oral evidence. The respondent No. 2 filed before the Consolidation Officer, the orders dated 30.4.1948 passed in case No. 59 and the order dated 16.10.1951 passed in case No. 173 under Section 49 of the U.P. Tenancy Act,1939 and the orders passed by the Consolidation Officer, Settlement Officer, Consolidation and the Deputy Director of Consolidation in earlier proceedings. The Consolidation Officer held that Smt. Gyano had succeeded the property from her first husband Karmu, after death of Karmu and after remarriage with Fattu, the property will revert back to Fattu being brother of Karmu, all sons of Fattu will inherit. It was further held that succession shall be governed by the provisions of Sections 171 and 172 of the U.P. Zamindari Abolition and Land Reforms Act. In place of Smt. Gyano deceased, names of petitioners and the respondents No. 2 and 3 were recorded by order dated 14.5.1998 of Consolidation Officer. It was further held that succession shall be governed by the provisions of Sections 171 and 172 of the U.P. Zamindari Abolition and Land Reforms Act. In place of Smt. Gyano deceased, names of petitioners and the respondents No. 2 and 3 were recorded by order dated 14.5.1998 of Consolidation Officer. An appeal was filed before the Settlement Officer, Consolidation which appeal was also dismissed taking the same view which was taken by the Consolidation Officer. A revision was filed by the respondents No. 2 and 3, which has been allowed. The Deputy Director of Consolidation held that in view of the litigation between the parties under the U.P. Tenancy Act, 1939, Smt. Gyano was held to be tenant in her own rights and after death of Smt. Gyano, the land in dispute should be inherited by the respondents No. 2 and 3 her sons. It was also held that earlier consolidation objection was raised by brothers of Karmu, claiming themselves to be co-tenure holders in the land in dispute, which objection was rejected and Smt. Gyano was held to be sole tenant, which orders cannot be challenged by the petitioners now. The Deputy Director of Consolidation by the impugned order has allowed the revision and directed that the name of respondents No. 2 and 3 be recorded over half and half share, against which the present writ petition has been filed. 4. Learned Counsel for the petitioners challenging the orders passed by the Deputy Director of Consolidation contended that Smt. Gyano having inherited the properties as widow of Karmu after death of Smt. Gyano, the property would devolve as per Sections 171 and 172 of the U.P. Zamindari Abolition and Land Reforms Act,1950. Learned Counsel for the petitioners submitted that Smt. Gyano inherited only a life estate from her husband Karmu and the petitioners as well as the respondents No. 2 and 3 being sons of Fattu, the brother of Karmu, shall inherit the property and orders of the Consolidation Officer and Settlement Officer, Consolidation were in accordance with law. Learned Counsel for the petitioners submitted that Smt. Gyano inherited only a life estate from her husband Karmu and the petitioners as well as the respondents No. 2 and 3 being sons of Fattu, the brother of Karmu, shall inherit the property and orders of the Consolidation Officer and Settlement Officer, Consolidation were in accordance with law. Reliance has been placed on the judgment of the Apex Court in the case of Ram Jivan v. Smt. Phoola, (1976) 1 SCC 852 ; Mool Chand v. Kedar (Deceased) By Lrs and others, (2000) 2 SCC 528 ; Lilawati and others v. Mangal Sen, 1964 R.D. 319; Munna Singh v. Deputy Director of Consolidation and others, 1969 R.D. 341 and Smt. Tilari v. Deputy Director of Consolidation and others, 1971 R.D. 232. 5. Learned Counsel for the respondents refuting the submissions of learned Counsel for the petitioners, contended that although after the death of Karmu, which took place on 29.4.1941, Smt. Gyano remarried with Fattu but she continued to be in possession of the land in dispute and was recognized as tenant by the Zamindar as such she became tenant in her own rights. Thus, on her death, the land would devolve according to Section 174 of the U.P. Zamindari Abolition and Land Reforms Act. A suit for ejectment under Section 180 of the U.P. Tenancy Act, 1939 was filed against Smt. Gyano by Gajju, the brother of Karmu which was dismissed on 30.9.1948. Further a suit was filed under Section 49 of the U.P. Tenancy Act for division of holding by Gajju and another brother of Karmu against Smt. Gyano, claiming themselves to be co-tenants, the suit was dismissed on 16.10.1951, holding that the plaintiffs had no right as Smt. Gyano was the tenant of the land in dispute. It is further submitted that in earlier consolidation proceedings, the objection was filed by Azimuddin the brother of Karmu and others claiming rights in the land in dispute which objections were rejected and the said order was confirmed by Settlement Officer, Consolidation and Deputy Director of Consolidation vide order dated 15.9.1960 hence, no rights can be claimed by the petitioners in the land in dispute. Learned Counsel for the respondents has also relied on Division Bench judgment of this Court in Smt. Tilari, Lilawati and Munna Singh (supra) as well as judgment of the Apex Court in the case of Smt. Mainia v. Deputy Director of Consolidation and others, 1989 R.D. 353. 6. I have considered the submissions of counsel for both the parties and perused the record. 7. The family pedigree of the parties as admitted to both the parties is as follows : Ajimuddin Gajjudin Karmu(Gyano) Fattu Bashiri (died issue less) Jamshad Yasin Abdul Rahman Abbas Illiyas (sons of Fattu (son of Fattu & Bashiri petitioner) & Gyano respondent 2 & 3) 8. Karmu died issueless on 29.4.1941, leaving behind his wife Smt. Gyano. Smt. Gyano remarried with Fattu, the brother of Karmu. Smt. Bashiri was the first wife of Fattu and petitioners are the sons of Fattu and Smt. Bashiri. From the wedlock of Smt. Gyano and Fattu, the respondents No. 2 and 3 were born. After the death of Karmu, Smt. Gyano was ejected from Khata No. 559 and 408, which were being cultivated by her husband. 9. The thrust of the submission of learned Counsel for the petitioners is that Smt. Gyano having inherited the land in dispute from her first husband Karmu as a widow and since she has remarried with Fattu her rights came to an end and even if, any compromise has been entered before date of vesting in favour of Smt. Gyano that is void and her rights in the land in dispute are rights by virtue of her being widow of Karmu and after her death all the sons of Fattu will succeed. It is submitted that same land is continuing from the time of Karmu and it is not the case of creation of any fresh rights in favour of Smt. Gyano. The main dispute between the parties is regarding the nature of rights of Smt. Gyano after her remarriage with Fattu and regarding the nature of the rights of Smt. Gyano over the land in dispute. In the present case, the respondents before the consolidation Courts have brought on record copy of the judgment of the earlier litigation between Smt. Gyano and brothers of Karmu. In counter affidavit filed by the respondent Nos. In the present case, the respondents before the consolidation Courts have brought on record copy of the judgment of the earlier litigation between Smt. Gyano and brothers of Karmu. In counter affidavit filed by the respondent Nos. 2 and 3, the orders passed on 30.9.1948 in suit under Section 180 of the U.P. Tenancy Act, the appellate order dated 5.2.1949 and the order of the Revenue Officer dated 16.10.1951 in suit filed under Section 49 of the U.P. Tenancy Act have been brought on record as well as order of the Deputy Director of Consolidation dated 15.9.1960, upholding the rights of Smt. Gyano, who was ejected from the land in dispute after the death of Karmu and reinstatement of possession which was allowed by order passed under Section 27 of the U.P. Tenancy Act as amended. Reinstatement was also claimed by brothers on the ground that she had remarried with Fattu but ultimately the reinstatement was allowed on compromise in favour of Smt. Gyano. A suit under Section 180 of the U.P. Tenancy Act for ejectment was filed by Gazzu, the brother of Karmu which was dismissed on 30.9.1948, copy of which has been filed as Annexure- C.A. 2 to the counter affidavit. Another order which is relevant is the order of the Revenue Court passed in suit under Section 49 of the U.P. Tenancy Act filed by Gazzu. In the suit under Section 49 of the U.P. Tenancy Act, the plaintiff’s case was that Smt. Gyano, the defendant No. 3 had no interest in the land in dispute and it was the plaintiff and defendants No. 1 and 2, the other two brothers of Karmu who were co-tenants. The revenue Court dismissed the suit and while dismissing the suit recorded findings in the order, copy of which has been filed as Annexure-C.A-4, to the following effect : (1) Smt. Gyano had been in possession throughout and the Zamindar admitted Smt. Gyano as tenant of the land in dispute after the death of her former husband Karmu. (2) The continuous possession of Smt. Gyano over the land in dispute after remarriage and admission by Zamindar as tenant created new rights independently of the compromise dated 17.12.1941. (3) On the basis of possession, Smt. Gyano became tenant of the land in dispute and plaintiff, if he had any right, lost the same by being out of possession for so many years. (3) On the basis of possession, Smt. Gyano became tenant of the land in dispute and plaintiff, if he had any right, lost the same by being out of possession for so many years. 10. Thus, the issues whether Smt. Gyano was tenant in her own rights after death of Karmu was gone into and decided in suit under Section 49 of the U.P. Tenancy Act filed by brothers of Karmu, claiming right therein on the ground that Smt. Gyano after remarriage with Fattu lost her rights. The issue was decided in favour of Smt. Gyano and against the brother of Karmu. 11. It is relevant to note that in the first consolidation, objection was again raised by Azimuddin and other brothers of Karmu basing their rights on the same ground that Smt. Gyano lost her rights after remarriage with Fattu. All the consolidation Courts rejected the claim of the brothers and upheld the claim of Smt. Gyano and rejected the objection. The order of the Deputy Director of Consolidation dated 15.9.1960 has been brought on record as Annexure-C.A. 5. The Deputy Director of Consolidation also affirmed the findings of revenue Courts that she had remarried before the compromise, which took place on 17.12.1941. In the earlier consolidation proceedings, the issues which are relevant for determination of the present case were also raised and answered in favour of Smt. Gyano and the claim of the brothers of Karmu was rejected. Thus, in view of the decision of the suit under Section 49 of the U.P. Tenancy Act, it is apparent that the rights of Smt. Gyano were accepted independently and it was held that after remarriage her rights were not lost in the land in dispute and she continued to be as tenant. Thus, Smt. Gyano was recorded on the land in dispute in her own rights and her rights cannot be said to be rights which were inherited as widow of Karmu. The Zamindar accepted Smt. Gyano as tenant after death of Karmu, specific finding in that regard had been recorded by the revenue Courts. In the proceedings under Section 9-A (2), the same objections have been sought to be re-agitated by the petitioners that Smt. Gyano lost her rights after remarriage with Fattu. The Zamindar accepted Smt. Gyano as tenant after death of Karmu, specific finding in that regard had been recorded by the revenue Courts. In the proceedings under Section 9-A (2), the same objections have been sought to be re-agitated by the petitioners that Smt. Gyano lost her rights after remarriage with Fattu. The said issue had been gone into and decided earlier in consolidation proceedings which culminated in the order of the Deputy Director of Consolidation dated 15.9.1960. The petitioners, sons of Fattu claim their right through Fattu, who was brother of Karmu. When it had been held that after death of Karmu, Smt. Gyano became entitled to hold the property in her own rights and her rights had not been lost on account of her remarriage with Fattu, the petitioners’ claim to the contrary has rightly been not accepted by the Deputy Director of Consolidation. The Deputy Director of Consolidation after considering earlier orders passed under Section 49 of the U.P. Tenancy Act and the orders passed in earlier consolidation proceedings, has rightly held that name of Smt. Gyano was continuing on record in her own rights and after her death, her sons will succeed. The submission of learned Counsel for the petitioners is that the successions are to be governed by Section 172 read with Sections 171 and 172 of the U.P. Zamindari Abolition and Land Reforms Act. Sections 171 and 172 being relevant are quoted as follows : "171. The submission of learned Counsel for the petitioners is that the successions are to be governed by Section 172 read with Sections 171 and 172 of the U.P. Zamindari Abolition and Land Reforms Act. Sections 171 and 172 being relevant are quoted as follows : "171. General order of succession.—(1) Subject to the provisions of Section 169, when a bhumidhar or asami being a male dies, his interest in his holding shall devolve upon his heirs being the relatives specified in sub-section (2) in accordance with the following principles namely— (i) the heirs specified in any one clause of sub-section (2) shall take simultaneously in equal shares; (ii) the heirs specified in any preceding clause of sub-section (2) shall take to the exclusion of all heirs specified in succeeding clauses, that is to say, those in Clause (a) shall be preferred to those in Clause (b), those in Clause (b) shall be preferred to those in Clause (c), and so on, in succession; (iii) if there are more widow than one, of the bhumidhar or asami, or of any predeceased male lineal descendant, who would have been an heir, if alive, all such widows together shall take one share; (iv) the widow or widowed mother or the widow of any predeceased male lineal descendant who would have been an heir, if alive, shall inherit only if she has not remarried. (2) the following relatives of the male bhumidhar or asami are heirs subject to the provisions of sub-section (1) namely— (a) widow and the male lineal descendant per strips : Provided that the widow and the son of a predeceased son how low-so-ever per strips shall inherit the share which would have devolved upon the predeceased son had he been alive; (b) mother and father; (c) unmarried daughter; (d) married daughter; (e) brother and unmarried sister being respectively the son and the daughter of the same father as the deceased; and son of a predeceased brother, the predeceased brother having been the son of the same father as the deceased; (f) son’s daughter; (g) father’s mother and father’s father; (h) daughter’s son; (i) married sister; (j) half sister, being the daughter of the same father as the deceased; (k) sister’s son; (l) half sister’s son, the sister having been the daughter of the same father as the deceased; (m) brother’s son’s son; (n) mother’s mother’s son; (o) father’s father’s son’s son.” 172. Succession in the case of a woman holding an interest inherited as a widow, mother, daughter, etc.—(1) When a bhumidar, or asami who has after the date of vesting, inherited an interest in any holding– (a) as a widow, widow of a male lineal descendant, in the male line of descent, mother or father’s mother dies, marries, abandons or surrenders such holding or part thereof, or (b) as a daughter, son’s daughter, sister or half-sister being the daughter of the same father as the deceased [marries] dies, abandons or surrenders such holding or part thereof, the holding or the part shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171 of the last male bhumidar, or asami. (2) Where a bhumidar who has before the date of vesting inherited an interest in any holding as a widow, widow of a male lineal descendant in the male line of descent, mother, daughter, father’s mother, son’s daughter, sister or half sister being the daughter of the same father as the deceased— (a) dies, and such bhumidhar was on the date immediately before the said date an intermediary of the land comprised in the holding or held the holding as a fixed rate tenant, or an exproprietary or occupancy tenant in Avadh or as a tenant on special terms in Avadh and– (i) she was in accordance with the personal law applicable to her entitled to a life estate only in the holding, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male intermediary or tenant aforesaid; and if; (ii) she was in accordance with the personal law applicable to her entitled to the holding absolutely the holding shall devolve in accordance with the table mentioned in Section 174; (b) dies, abandons or surrenders and in the case of a widow, widow of a male lineal descendant in the male line of descent, mother, father’s mother, marries such bhumidar on the date intermediary or tenant referred to in clause (a), the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male tenant. (3) The provisions of sub-section (1) mutatis mutandis apply to an asami who inherited the holding before the date of vesting. (4) Nothing in sub-section (1) shall apply to a person succeeding to an interest in any holding under the provisions of Section 174. Explanation.—For the purposes of this section the expression “last male bhumidhar, or asami” includes the last male tenant, grove-holder, permanent lessee in Avadh, grantee or sir or khudkasht holder, as the case may be." 12. The reliance has been placed on the judgment of the Apex Court in Ramjiavan’s case (supra). In the aforesaid case, the dispute arose between daughter of widow of the last tenure holders and the son of brother of last tenure holder Ramadhin. Ramadhin had died in 1916 which was succeeded by her widow Smt. Menda. Smt. Menda, the widow died on September, 1952 i.e. after the date of vesting. In the aforesaid case, the dispute arose between daughter of widow of the last tenure holders and the son of brother of last tenure holder Ramadhin. Ramadhin had died in 1916 which was succeeded by her widow Smt. Menda. Smt. Menda, the widow died on September, 1952 i.e. after the date of vesting. The issue arose as to whether succession will be governed by 172 (1)(a) or by Section 174. Smt. Menda continued in occupation and became statutory tenant after abolition of Zamindari. The apex Court laid down that Smt. Menda retained the occupation after death of her husband only as an heir of her husband, her occupation on the land was on the basis of her husband’ title and was not in her individual or independent capacity nor the possession was amounted to self acquired property hence, Section 174, naturally be not applicable. Following was laid down in paragraph 10 : “Section 172 of the Abolition Act as extracted above provides that when a bhumidhar who has after the date of vesting inherited an interest in any holding dies the holding would devolve upon the heirs in accordance with the order of succession mentioned in Section 171 of the Abolition Act. It is manifest therefore that in order to determine the applicability of Section 172 of the Abolition Act we must go to the origin of the title of the bhumidhar or the main source from “which the bhumidhar has derived interest in the holding. It may be pertinent to note here that the statute uses the words “the holding or the part shall devolve” to denote that if it is found that a widow has inherited an interest in the holding from her husband, then it is the holding that devolves and not interest of the widow which ceased after her death. Thus the statute seeks to make a clear-cut distinction between a widow who has inherited an interest from her husband which is dealt with by Section 172 of the Abolition Act and a widow who has acquired an independent interest in the holding which is covered by Section 172 of the Abolition Act. Thus the statute seeks to make a clear-cut distinction between a widow who has inherited an interest from her husband which is dealt with by Section 172 of the Abolition Act and a widow who has acquired an independent interest in the holding which is covered by Section 172 of the Abolition Act. The High Court appears to have overlooked the fact that merely because Smt. Menda having initially inherited possession or occupation of the holding from her husband acquired other types of interests merely by operation of law, that could not destroy the origin or the source of her title which was inheritance from her husband. Nor can we regard the conferment of the status of a statutory tenant or a hereditary tenant or a bhumidhar under the various laws passed by the U.P. Legislature as amounting to an acquisition of a self-acquired interest by the widow.” 13. In the above case of the apex Court, Smt. Menda widow of last tenure holders came in occupation as widow and continued to be in occupation in the same capacity although she acquired Bhumidhari under Section 18 after abolition of zamindari. The apex Court held that rights of Smt. Menda were rights only as a widow hence, succession will not be governed by Section 174 but shall be governed by Section 172 read with Section 171. There cannot be any dispute with the proposition of law laid down by the Apex Court in the aforesaid case. However, the present case is clearly distinguishable due to more than one reason. In the present case, after death of her first husband Smt. Gyano remarried and was also ejected from the land in dispute. She was reinstated and dispute arose between brothers of Karmu and Smt. Gyano, in which she was held to be tenant in her own rights. The possession of Smt. Gyano was found throughout and suit of ejectment filed under Section 180 had been dismissed by the lower court and it was held that by being in possession, she also acquired the right independently. The Zamindar appeared in that litigation and admitted Smt. Gyano as tenant in her own right. The revenue court had already determined the issue and held that she was tenant in her own rights and her rights were not continuing as widow. The Zamindar appeared in that litigation and admitted Smt. Gyano as tenant in her own right. The revenue court had already determined the issue and held that she was tenant in her own rights and her rights were not continuing as widow. The remarriage of Smt. Gyano was not denied and rights of widow had come to an end after remarriage but she continued in possession and was accepted to be tenant in her own rights. 14. The judgment of the Apex Court in Mool Chand (supra) was also a case where the question arose as to whether after death of widow, the property will devolve on her husband or on heirs of last male tenure holders. It was held by the apex Court that widow had only a life estate and after her death succession will be governed by Section 171 of the U.P. Zamindari Abolition and Land Reforms Act. The judgment of Lilawati, Munna Singh and Smt. Mainia are also cases taking the same view that a widow inheriting from her husband when U.P. Tenancy Act, 1939 was in force, after her death succession will be governed by Section 172 (2) (a) (i) of the Act. As observed above, there cannot be any dispute to the proposition laid down by this Court in the above cases but present is not a case where the rights of Smt. Gyano which continued were the rights acquired from her husband Karmu but after death of Karmu, she became tenant in her own rights as already held by the revenue court in suit under Section 49 of the U.P. Tenancy Act. The Deputy Director of Consolidation in the impugned order has referred to earlier decision of the revenue court as well as the consolidation court and has rightly come to the conclusion that Smt. Gyano was tenant in her own right after death of her husband and after her death her sons the respondents No. 3 and 4 shall succeed to her in accordance with Section 174 of the U.P. Zamindari Abolition and Land Reforms Act. There is no error in the judgment of the Deputy Director of Consolidation. The judgment is based on consideration of relevant facts and evidence on record, which does not suffer from any infirmity. No interference is called in the impugned order in this writ petition. 15. The writ petition is dismissed. ————