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  • S. Mubarak Hasan, Member
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  • provisions contained in Section 172(1)(b)
  • Order 18 Rules 4 and 5 C.P.C
  • 18 Rules 4 and 5 C.P.C
  • XLI Rule 31 C.P.C
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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • S. Mubarak Hasan, Member
Acts
  • provisions contained in Section 172(1)(b)
  • Order 18 Rules 4 and 5 C.P.C
  • 18 Rules 4 and 5 C.P.C
  • XLI Rule 31 C.P.C
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Smart Summary

Concise Analytical Summary of the Opinion (S. Mubarak Hasan, M.)

Factual and Procedural Background

These are two connected second appeals against the judgment and decree dated May 25, 1971 passed by the Additional Commissioner, Varanasi, in appeals from the judgment and decree dated Nov. 15, 1969 passed by the Judicial Officer, Mirzapur, in two suits under sections 229-B and 176 of the U.P. Z.A. & L.R. Act.

In Suit No. 5 the plaintiffs claimed to be co-bhumidhars to the extent of three-fourths (¾) and in Suit No. 6 they claimed to be co-bhumidhars and co-sirdars to the extent of three-eighths (⅜). Plaintiffs alleged the land originally belonged to Ram Prasad and passed to his widow Mst. Chaurasi; on her death the daughters (including Mst. Dukhni, defendant) inherited; because Mst. Dukhni was unmarried until 1966 she initially succeeded but after her marriage in 1966 all sisters became entitled.

The defendant (Mst. Dukhni) contested, denied plaintiff's allegations, alleged that the plaintiffs were not daughters of Ram Prasad, alleged that Mst. Chaurasi remarried Sheo Shanker and that the plaintiffs were Sheo Shanker's daughters, and claimed to be sole heir and to have acquired sirdari rights by adverse possession. Other defendants filed similar pleas in one suit.

At trial the Judicial Officer, Mirzapur, decreed the plaintiffs' suits on Nov. 15, 1969, finding the plaintiffs to be daughters of Ram Prasad and co-tenureholders and holding that the defendant appellant had not been in adverse possession. The lower appellate court, on May 25, 1971, affirmed the trial court's judgment and decree and dismissed the appeal. The present opinion disposes of the second appeals and related procedural objections raised subsequently on the record.

Legal Issues Presented

  1. Whether the plaintiffs were the daughters of Ram Prasad and therefore entitled to inherit the disputed land as co-bhumidhars and/or co-sirdars.
  2. Whether the defendant-appellant had acquired sirdari (vested) rights or title by adverse possession prior to or after succession opening, such that subsequent changes in the law (or amendment of limitation) could not divest that right.
  3. Whether the statements of certain witnesses (P.W.1 Hori Lal; P.W.2 Mst. Tijiya; D.W.1 Ram Nath; D.W.2 Nachkau; D.W.3 Ramadhar) were recorded in accordance with Order 18 Rules 4 and 5 C.P.C. (i.e., in the presence of and on the dictation of the Presiding Officer), and if defects existed whether those defects vitiated the proceedings or evidence.
  4. Whether the suits were premature because they were filed before the expiry of the period of notice to the State (i.e., whether notice requirements under the relevant statutes were complied with and whether filing dates rendered the suits barred or premature).
  5. Whether the lower appellate court's judgment complied with the requirements of Order XLI Rule 31 C.P.C., i.e., whether it was a proper judgment of affirmance that need not discuss every piece of evidence in detail.

Arguments of the Parties

Appellant's Arguments

  • The statements of Ram Nath (D.W.1) and Nachkau (D.W.2) (and later other witnesses) did not bear the certificate that they were recorded on the Presiding Officer's dictation and in his presence; thus Order 18 Rules 4 & 5 C.P.C. were not complied with and the matter should be remanded for re-recording of those statements.
  • The trial-court reader had recorded parts of statements; the reader's statement was relied upon by the trial court but the appellant was not given opportunity to cross-examine the reader (Shambhoo Nath Pandey), making the report unsafe.
  • The judgment of the lower appellate court was contrary to Order XLI Rule 31 C.P.C and hence was no valid judgment in law.
  • The defendant-appellant, being the only unmarried daughter at Mst. Chaurasi's death (1953), became preferential heir and her name was mutated in the village records in 1953; having remained in possession until 1966, she acquired vested sirdari rights by adverse possession which could not be divested by subsequent change in law—relying on authorities (1961 R.D p.380; 1970 R.D p.249; 1964 R.D p.312 (as cited)).
  • The suits were premature because they were filed before the expiry of the period of notice to the State; relied on 1969 A.L.J (S.C) p.570.
  • The courts below did not consider the evidence judicially; the finding that Mst. Chaurasi did not remarry Shiva Shanker was perverse.

Respondents' Arguments

  • The witnesses in question were examined in the presence of the Presiding Officer and there is no evidence of any third person recording statements; the plaintiffs had no objection at trial and no prejudice is shown.
  • The appellant did not seek or request the opportunity to cross-examine the reader before the trial court; objections now raised are new and should not be permitted at this stage.
  • The trial court and the lower appellate court considered oral and documentary evidence; the lower appellate court, in affirming, was not obliged to discuss every item of evidence in detail.
  • Succession opened on the date of the appellant's marriage (June 8, 1966) and by Section 172(1)(b) of the U.P.Z.A & L.R. Act the four married daughters became entitled to inherit; possession before 1966 was irrelevant and the appellant had not acquired vested rights by adverse possession, nor completed 12 years' adverse possession after 1966 by the time suits were filed.
  • The authorities relied upon by the appellant (Uchan Singh v. Board of Revenue (1961 R.D p.380), Smt. Ram Kuar v. Jangi (p.310), Puri v. Dy. Director of Consolidation U.P. (1970 R.D p.249)) do not apply on the facts of the present case.
  • Registered notice to the U.P. State was sent June 12, 1968 and the suits were filed Oct. 11, 1968; the suits were not premature, and no notice objection was previously raised by the appellant before lower courts.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Uchan Singh v. Board of Revenue (1961 R.D at page 380) Cited by appellant for the general proposition that if a vested right was acquired by any party, a subsequent amendment in the law of limitation will not affect that vested right. The court considered the principle but distinguished the present facts: no vested right had been acquired by appellant; succession opened afresh in 1966, making pre-1966 possession irrelevant. The precedent was held not to apply.
Puri v. Dy. Director of Consolidation, U.P., Lucknow (1970 R.D at page 249) Cited by appellant in support of the contention that vested rights once acquired are not affected by subsequent changes in law and in relation to adverse possession/sirdari claims. The court held the authority inapplicable on the facts: there was no vested right to protect here, and the appellant had not completed requisite possession after succession opened in 1966.
1964 R.D at page 312 (as cited in the record) Cited by appellant along with other R.D. authorities to support protection of vested rights against later amendments. The court recorded that the rulings in these R.D. reports stand for the vested-right principle but found them inapplicable because the appellant had not acquired a vested right prior to the change in succession law; consequently they did not assist the appellant.
1964 R.D at page 310 (alternate citation appearing in the record) Same family of R.D. authorities cited by parties; used to argue protection of vested rights. Court treated the cited R.D. authorities as addressing the vested-right principle but again distinguished them on facts: no vested right was shown in the present case.
1969 A.L.J (S.C) at page 570 Cited by appellant for the proposition that suits filed before the expiry of notice to the State may be premature. The court rejected the contention of prematurity on the facts: registered notice was sent June 12, 1968; suits were filed Oct. 11, 1968; the court found the suits were not premature and, in addition, noted no earlier objection on this point below.
Smt. Ram Kuar v. Jangi… (as cited in the record; page indicated at or about 310) Cited among authorities by the parties (context: cases on proprietary/vested right and limitation/adverse possession). The court observed the decision but concluded it did not apply to the facts of this case (i.e., appellant had not established the kind of vested right that would invoke the authority).

Court's Reasoning and Analysis

The court proceeded through a sequence of procedural and substantive analyses based strictly on the record:

  1. Procedural complaints about witness statements: The appellant initially objected that D.W.1 and D.W.2 statements lacked the Presiding Officer's certificate that they were recorded on his dictation and in his presence. The court ordered reports from the trial court which stated that the first five lines of those statements were recorded by the reader and the remainder by the Presiding Officer. A subsequent trial-court report (after examination of the reader) reaffirmed the first report.
  2. Affidavits and afterthoughts: The appellant repeatedly altered and expanded objections (filing affidavits alleging many witness statements were not recorded by the Presiding Officer). The respondents filed counter-affidavits denying these allegations and asserting that the Presiding Officer was present and personally recorded the statements. The court characterized the appellant's changing allegations as afterthoughts and frivolous, noting the appellant had not sought to cross-examine the reader at trial or earlier.
  3. Non-raised objections and waiver: The court emphasized that the specific objection under Order 18 Rules 4 & 5 C.P.C. was not raised at trial, before the lower appellate court, or in the grounds of appeal to this court. On that basis the court held the appellant could not be permitted to raise the objection for the first time at final hearing of the second appeal.
  4. Credibility of the trial-court reports and affidavits: Based on the trial-court reports and the respondents' affidavits (including a deponent's statement that he saw the Presiding Officer personally write certain statements), the court was inclined to accept that the statements were recorded in the presence of the Presiding Officer and found no procedural defect in the recording of witness statements.
  5. Merits — concurrent findings of fact: The trial court had considered oral and documentary evidence in detail and found (inter alia) that Mst. Chaurasi did not remarry Shiva Shanker, that the plaintiffs were daughters of Ram Prasad, and that the defendant-appellant had not been in adverse possession. The lower appellate court affirmed those findings. The court held the concurrent findings of fact were based on proper appraisal of evidence and were not perverse.
  6. Succession and timing: The court applied Section 172(1)(b) of the U.P. Z.A. & L.R. Act and held that succession "opened" anew on the appellant's marriage date (June 8, 1966), thereby entitling the married daughters to inherit by operation of law. Because succession opened in 1966, any possession by the appellant prior to 1966 was irrelevant to establish a vested possession-based right that could survive subsequent legal changes.
  7. Vested right argument and precedents: The court acknowledged the authorities cited by appellant (R.D. and other reports) establishing that a vested right, once acquired, is not affected by later amendments to the law of limitation. However, it distinguished those authorities on facts: there was no proof that the appellant had acquired such a vested right prior to the change; therefore the cited authorities did not assist the appellant.
  8. Adverse possession and limitation: The court accepted the concurrent factual finding that the defendant had not been in adverse possession; moreover, the appellant had not completed the requisite period (12 years) of possession after succession opened in 1966 by the time the suits were filed. Thus there was no basis for vesting sirdari rights in the appellant.
  9. Prematurity and notice to State: The court examined the notice chronology — registered notice to the U.P. State sent on June 12, 1968 and suits filed on Oct. 11, 1968 — and concluded the suits were not premature. Additionally, it noted the appellant had not earlier raised objections regarding notice, and therefore could not raise them at this stage.
  10. Properness of the lower appellate judgment: The court found the lower appellate court's judgment to be a proper judgment of affirmance under Order XLI Rule 31 C.P.C., and therefore not defective merely because it did not recite or analyze every piece of evidence.

Holding and Implications

Holding (core ruling): The appeals are dismissed with costs.

Implications and consequences:

  • The judgments and decrees of the trial court (Judicial Officer, Mirzapur dated Nov. 15, 1969) and the lower appellate court (Additional Commissioner, Varanasi dated May 25, 1971) are affirmed.
  • The court found no procedural defect in the recording of witness statements sufficient to vitiate the proceedings, and held the objections on this point were raised late and were afterthoughts; therefore the evidence stands as admissible and relied on by the courts below.
  • The court held that succession opened on the defendant-appellant's marriage (June 8, 1966) and that pre-1966 possession by the appellant did not create a vested right immune from subsequent legal change; the appellant had not established adverse possession sufficient to vest sirdari rights by the time suits were filed.
  • No new legal principle or departure from existing authorities was established; the court distinguished the authorities cited by the appellant on the facts and applied established procedural and evidentiary rules (including the bar against raising belated objections and the scope of appellate affirmance under Order XLI Rule 31 C.P.C.).
  • The order also governs Second Appeal No. 206 of 1970–71 Mirzapur (i.e., the same disposition applies to the connected appeal).

Note: The summary above is strictly confined to statements, findings and citations expressly contained in the provided opinion. No additional facts, filings or external materials have been relied upon or introduced.

Show full summary ...

    Mst. Dukhni v. Mst. Tijia

    S. Mubarak Hasan, M.:— These are the two connected Second appeal against the judgment and decree dated May 25, 1971 passed by Additional Commissioner Varanasi in appeals against the judgment and decree dated Nov. 15, 1969 passed by Judicial Officer, Mirzapur in two suits u/s 229-B 176 of the U.P.Z A and L.R Act.

    2. In suit No. 5, the plaintiffs claimed to be co-bhumidhars to the extent of ¾th share and in suit no. 6 they claimed to be co-bhumidhars and cosirdars to the extent of ⅜th share. Plaintiffs alleged in both the suits that the land in suit originally belonged to Ram Prasad and after his death it was inherited by his widow Mst. Chaurasi. They also alleged that Mst. Chaurasi died leaving behind her four daughters namely Mst. Tijiya, Mst. Naurangia, Mst. Gidri and Mst. Dukhni. They further alleged that Mst. Dukhni being unmarried daughter she inherited the entire property after the death of Mst. Chaurasi. They further alleged that Mst. Dukhni was married in 1966 and consequently all the sisters became entitled to inherit the land which originally belonged to Ram Parsad Mst. Dukhni defendant only contested both the suits. She denied the plaint allega tions and alleged that the plaintiffs were not the daughters of Ram Prasad. She also alleged that Mst. Chaurasi had remarried one Sheo Shanker during the lifetime of her first husband Ram Prasad and that the plaintiffs, were the daughters of Sheo Shanker. She (defendant) claimed to be the sole heir of Ram Prasad. She also claimed to have acquired sirdari rights in the disputed land on the basis of adverse possession. The defendants Ram Nath and Deo Nath also filed written state ment in suit no. 6 on similar lines. On Nov. 15, 1969, the Judicial Officer, Mirzapur decreed the plaintiff's suits holding that the plaintiff's were the daughters of Ram Prasad and were co-tenureholders alongwith the defen dant. It also held that the defendant appellant had not been in adverse possession.

    3. On May 25, 1971 the lower appellate court affirmed the judgment and decree passed by the trial court and dismissed the appeal.

    4. On one of the dates fixed for hearing of the appeals, the learned counsel for the appellant argued that the statements of Ram Nath D.W 1 and Nachkau D.W 2 did not bear the certificate of the Presiding Officer to the effect that their statements were recorded on his dictation and in his presence. A report was then called for from the trial court on April 2, 1975 Sri S.N Rai, S.D.M Sadar Mirzapur reported on May 12, 1975 that the first 5 lines of the statements of both D. Ws. 1 and 2 were recorded by the Reader and the rest of the statements were recorded by the Presiding Officer himself. Thereafter the appellant's counsel raised objection against the report dated May 12, 1975. Another report was then called for from the trial court. The trial court examined the reader of the court and submitted report dated Dec. 23, 1975 affirming the earlier report. The learned counsel for the appellant submitted that the report dated Dec. 23, 1975 was based on the statement of Shambhoo Nath Pandey the Reader of the court. He contended that the appellant had not been given opportunity to cross-examine the reader and therefore, it was unsafe to presume that Sri Singhal Judicial Officer recorded the statements of D. Ws. 1 and 2. He further contended that compliance of Order 18 Rules 4 and 5 C.P.C had not been done and, therefore, the cases be remanded to the trial court for decision afresh after recording the statements of D. Ws. 1 and 2. The learned counsel for the respondents argued that the D. Ws. 1 and 2 were examined by the defendant-appellant himself. He further argued that the plaintiff has no objection to their statements. He further argued that it is not the case of the parties that any third person besides the reader and the Presiding Officer of the court recorded the statements. He further argued that the defendant appellant did not seek any opportunity to cross-examine the reader. He contended that there is no prejudice to the appellant. He further contended that the statements of D. Ws. 1 and 2 were recorded according to law and there is no defect in them. Lastly, he argued that the objections raised by the learned counsel for the appellant now were never raised before the trial court or before the lower appellate court or in the grounds of appeal before this court. He contended that the appellant should not be permitted to raise this objection now.

    5. On March 10, 1976 an affidavit of Ram Narain alleged to be Pairokar of the appellant was filed on behalf of the appellant. It was alleged in the affidavit that the statements of P.W 1 Horilal, P.W 2 Mst. Tijiya, D.W 1 Ram Nath D.W 2, Nachkau and D.W 3 Ramadhar were not recorded by the Presiding Officer and that he (Presiding Officer) was absent when their statements were recorded. On the same date a counter affidavit was filed by Kalindri Prasad on behalf of the respondents in which the allegations in the affidavit of Ram Nath dated March 10, 1976 were denied and it was alleged that the statements of the witnesses produced on behalf of the parties were recorded in the presence of the Presiding Officer. It was also alleged that the deponent was present all the time when the aforesaid statements were being recorded in the court room of Sri Singhal and he had seen Mr. Singhal personally writing the statements of Nachkau and Ram Nath. It was also alleged that the statements of all the witnesses were admissible and were not vitiated by any defect of procedure. Thereafter on March 24, 1971 an affidavit of Ram Narain was again filed in which the allegations made in the counter affidavit of Kalindri Prasad were denied.

    6. On March 25, 1975, when the appeals were finally heard on merits, the learned counsel for the appellant argued that no certificate had been given by the Presiding Officer on the statement of P.W 1 Hori Lal. He further argued that on the thumb mark below the statement of Mst. Tijiya it is not noted as to whose thumb impression it was. He further argued that each page of the statement of D.W 1 Ram Nath had not been signed and it is not noted on the thumb impression below his statement as to whose thumb impression it was. He further argued that each page of the statement of Nachkau D.W 2 had not been signed and there is nothing to show as to whose thumb impression was affixed below his statement. He further argued that a thumb impression was affixed below the statement of Ramadhar but it had not been noted as to whose thumb impression it was. The learned counsel for the respondents argued that the objection regarding the alleged defects in the statements of witnesses was not raised by the appellant before the trial court or before the lower appellants court or in the grounds of appeal. He contended that this objection should not be permitted to be raised now.

    7. The learned counsel for the appellant argued that the judgment of the lower appellants court is against the provisions of order XLI R. 31 C.P.C He contended that the judgment of the lower appellate court is no judgment in the eye of law. He further argued that at the time of death of Mst. Chaurasi in 1953 the defendant appellant being the only unmarried daughter was preferential heir and her name was mutated in the village records over the disputed land in 1953. He further argued that the defendant-appellant remained in possession throughout till 1966. He contended that the property once vested in the defendant-appellant it could not be divested as a consequence of subsequent change in law. He placed reliaance on the cases reported in 1961 R.D at page 380. 1970 R.D at page 249 and 1964 R.D at page 312. He further argued that the defendant-appellant having remained in adverse possession from 1953 to 1966 acquired sirdari rights in the land in dispute. He placed reliance on the cases reported in 1961 R.D at page 380 and 1970 R.D at page 249. He further argued that the suits were filed before the expiry of the period of notice to the State and hence they were premature. He placed reliance on the case reported in 1969 A.L.J (S.C) at page 570. He further argued that the courts below did not consider the evidence judicially. He contended that the finding of the courts below that Mst. Chaurasi did not remarry Shiva Shanker is perverse.

    8. The learned counsel for the respondents argued that the trial court discussed and considered the entire oral and documentary evidence on record in detail. He further argued that the lower appellate court considered the relevant evidence on record and having applied its mind to the case, affirmed the judgment and decree passed by the trial court. He contended that the judgment of the lower appellate court being of affirmance it was not necessary for it to discuss all the evidence on record in detail. He further contended that the judgment of the lower appellate court does not suffer from any illegality or irregularity. He further argued that the defendant-appellant was admittedly married on June 8, 1966. He contended that succession opend on June 8, 1966 and by virtue of the provisions contained in Section 172(1)(b) of the U.P.Z.A & L.R Act all the four married daughters became entitled to inherit the property left by the last male tenant Ram Prasad. He further argued that possession before 1966 was irrelevant as succession opend in 1966. He contended that there was no question of the defendant-appellants acquiring vested rights in the disputed land. He further contended that the cases Uchan Singh v. Board of Revenue ( 1961 R.D at page 380), Smt. Ram Kuar…Plaintiff- v. Jangi…Defendant-. at page 310) and Puri v. Dy. Director of consolidation U.P Lucknow( 1970 R.D at page 249) do not apply to the facts of the present case. He further argued that after 1966 the defendant-appellant had not completed 12 years of possession by the time when the present suits were filed. He further argued that both the courts below have given concurrent finding of fact that the defendant-appellant had not been in adverse possession. He contended that the finding of fact in this regard cannot be assailed. He further argued that both the courts below after considering the relevant evidence on record gave finding of fact that Mst. Chaurasi did not remarry Shiva Shanker. He contended that the finding of fact in this regard is not perverse. He further argued that notice to the U.P State was sent by registered post on June 12, 1968 and the suits were filed on Oct. 11, 1968. He contended that the suit were not premature. He further argued that in any case no objection regarding notice was raised by the appellant before the trial court or before the lower appellate court or in the grounds of appeal before this court. He contended that this point should not now be permitted to be raised at this stage in arguments.

    9. I have considered the arguments of the learned counsels of these parties and have perused the record.

    10. The only objection raised on behalf of the defendant-appellant at the time of the initial hearing of the appeals was that the statements of Nachkau and Ram Nath D. Ws. did not bear the certificate of Presiding Officer to the effect that their statements were recorded on his dictation and in his presence. A report was then called for from the trial court on April 2, 1975 and it reported on May 12, 1975 that the first 5 lines of the statements of both these witnesses were recorded by the reader and the rest of the statements were recorded by the Presiding Officer himself. The appellants' counsel raised objection against this report and consequently another report was called for from the trial court and it reported on Dec. 23, 1975 affirming the earlier report. This report was also assailed by the learned counsel for the appellant. He submitted that this report was based on the statement of Shambhoo Nath Pandey reader. He contended that the appellant was not given any opportunity to cross-examine him. This allegation appears to be an after thought. It does not appear from the record that the appellant sought any opportunity before the trial court to cross-examine Shambhoo Nath Pandey. Thereafter the appellant changed his stand. On 10-3-1976 an affidavit was filed on behalf of the appellant in which it was alleged that the statements of P.W 1 Hori Lal, P.W 2 Mst. Tijiya, D.W 1 Ram Nath, D.W 2 Nachkau and D.W 3 Ramadhar were not recorded by the Presiding Officer and that he (the presiding officer) was absent when their statements were recorded. This allegation of the appellant in the affidavit was clearly as after thought. Thereafter a counter affidavit was filed on behalf of the respondent on March 10, 1976 disputing the allegations contained in the affidavit filed on behalf of the appellant. On March 24, 1976 another affidavit was filed on behalf of the appellant in which the allegations in the affidavit filed on behalf of the respondents were denied. On March 25, 1976 when final arguments were being heard in the appeals, the appellants counsel raised fresh objections regarding the statements of witnesses. The appellant has been changing his stand with regard to the alleged defects in the statements of witnesses on every date. The objection that the statements of witnesses were not recorded as contemplated u/o 18 Rules 4 and 5 C.P.C was never raised by the appellants before the trial court or before the lower appellate court or in the grounds of appeal in this court. He cannot be permitted to raise this objection now in the course of arguments. From the reports of the trial court and so also from the affidavit filed on behalf of the respondents. I am inclined to think that the statements of witnesses were recorded in presence of the Presiding Officer, Sri Singhal and that there is no defect in them. The allegations in this regard made by the appellant are frivolous.

    11. The trial court discussed and considered the oral and documentary evidence on record in detail. The lower appellate court considered the relevant oral and documentary evidence and having applied its mind to the case affirmed the judgment and decree passed by the trial court. The judgment of the lower appellate court being of affirmance, it was not necessary for it to discuss all the evidence on record in detail. The judgment of the lower appellate court is a proper judgment as contemplated u/o XLI Rule 31 C.P.C Registered notice was sent to the U.P State on June 12, 1968 and the suits were filed on Oct. 11, 1968. The suits were not premature. In any case no objection regarding notice was raised by the appellant before the trial court or before the lower appellate court or in the grounds of appeal before this court. This objection cannot now be permitted to be raised at the stage of arguments.

    12. After considering the entire evidence on record the trial court gave finding of fact that Chaurasi did not remarry Shiva Shankar. The lower appellate court affirmed this finding. The finding of fact in this regard being based on correct appraisal of evidence on record cannot be assailed. The contention of the learned counsel for the appellant that this finding of fact is preverse is without any substance. It is proved that the plaintiffs were also the daughters of Ram Prasad and Mst. Chaurasi. Mst. Chaurasi died in 1953. Mst. Dukhni defendant-appellant being the only unmarried daughter at that time was the preferential heir. She accordingly succeeded Mst. Chaurasi and her name was mutated over the disputed land in the village records. She (Mst. Dukhni, defendant-appellant) was married on June 8, 1966 and, therefore, succession opend afresh and the plaintiffs who were also married daughters became entitled to inherit the property left by the last male tenant Ram Prasad u/s 172(1)(b) of the U.P.Z.A & L.R Act. In the cases reported in 1961 R.D at page 380 : 1964 R.D at page 310 and 1970 R.D at page 249 it was held that if a vested right was acquired by any party then a subsequent amendment in the law of limitation will not affect that vested right. In the present cases the position is quite different. There was no question of divesting of any alleged vested right acquired by the appellant. The rulings cited above do not apply to the facts of the present cases. Succession having opened in 1966 the period of possession of the appellant over the disputed land before 1966 was irrelevant. Both the courts below have given concurrent finding of fact that the defendant-appellant had not been in adverse possession. The finding of fact in this regard cannot be assailed. After 1966 the defendant appellant had not completed 12 years of possession by the time when the present suits were filed. The suits filed by the plaintiffs were well within time. There is no illegality in the judgment and decree passed by the lower appellate court. The appeals are, accordingly, dismissed with costs. This order will govern Second Appeal No. 206 of 1970–71 Mirzapur also.

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    Mst. Dukhni v. Mst. Tijia
    (Mar 31, 1976)