ivil Appeal No 955 of 1981
From the Judgment and Order dated 11579 of the Allaha bad High Court in WP No 3048 of 1973
PN Lekhi and MK Garg for the Appellant
KM Sinha Deepak Jaiswal and Pramod Swarup for the Respondents
The Judgment of the Court was delivered by VERMA J
This appeal by special leave under Article 136 of the Constitution of India is against the judgment of a learned Single Judge of the Allahabad High Court in Writ Petition No 3048 of 1973 decided on May 11 1979
The subject matter of the dispute is a holding compris ing of Khata No 141 in village Khera Laxmipur Pargana Kashipur in District Naimtal of which one Chain Sukh was initially the occupancy tenant
The said Chain Sukh died issueless prior to the date of vesting that is 171952 under the UP Zamindari Abolition and Land Reforms Act 1950 hereinafter referred to as the Zamindari Abolition Act survived by his widow Smt
Sukhia
The interest of Chain Sukh as the occupancy tenant of the holding devolved upon his widow Smt
Sukhia in accordance with section 35 of the United Provinces Tenancy Act 1939 hereinafter referred to as the Tenancy Act in the absence of any male lineal descendant of Chain Sukh
The appellant Smt
Mainia is the sister of deceased Chain Sukh
Even according to the appellant Smt
Mainia Chain Sukh s widow Smt
Sukhia remarried Gopal Singh in Karwa form according to the caste custom about two years after the death of Chain Sukh and a son Chander Pal respondent No 4 was born to Sukhia during her wedlock with Gopal Singh
Sukhia continued to remain in possession of this holding till her death in 1965
A dispute arose between appellant Smt
Mainia and respondent No 4 Chander Pal during the consolidation proceedings under the UP Consolidation of Land Holdings Act in respect of this holding each of them claiming sole interest therein to the exclusion of the other
Ultimately the Consolidation Officer Afzalgarh by his order dated 2911972 Annexure III passed under section 9 A of the Act 689 dismissed Chander Pal s claim to the holding
The Consolida tion Officer held that Smt
Sukhia on her remarriage with Gopal Singh lost her interest in the holding and by virtue of section 171 of the Zamindari Abolition Act appellant Smt
Mainia being the sister of Chain Sukh inherited the interest in the holding
It was held that Chander Pal not being the son of Smt
Sukhia from Chain Sukh but the son born to Smt
Sukhia after her remarriage with Gopal Singh could not inherit as a heir of Chain Sukh
The Settlement Officer Consolidation Nainital dismissed Chander Pal s appeal under Section 11 against the order of the Consolida tion Officer by order dated 1421972 Annexure IV
Howev er the Settlement Officer held that even though Smt
Sukhia lived in the house of Gopal Singh for several years there is no positive evidence of her remarriage with Gopal Singh and therefore a legal marriage of Smt
Sukhia with Gopal Singh is not proved
It was held that Smt
Sukhia cultivated the land throughout as the widow of Chain Sukh and therefore Chain Sukh s sister Smt
Mainia inherited it after the death of Smt
Sukhia
A revision by Chander Pal to the Deputy Director Consolidation Moradabad Camp Kashipur under Section 48 was also dismissed by order dated 15111972 Annexure V
It was observed that Smt
Mainia in her reply dated 10121970 had stated that Smt
Sukhia did Karwa with Gopal Singh but Smt
Sukhia had been shown in the family register as widow of Chain Sukh which shows that Smt
Sukhia was treated as a widow of Chain Sukh till the time of her death
It was held that Smt
Sukhia s Karwa with Gopal Singh not being proved to be a legal marriage the succes sion would be governed on the basis that she
was Chain Sukh s widow at the time of her death
A writ petition under Article 226 of the Constitution was then filed by Chander Pal in the High Court which has been allowed by the impugned judgment dated May 11 1979
The High Court has quashed the orders passed by the Consoli dation Authorities and directed the Deputy Director Consol idation to decide the revision of Chander Pal afresh on the basis of the decision given in the writ petition
The High Court has held that the consolidation authorities erred in deciding the matter on the basis that Smt
Sukhia s marriage with Gopal Singh was not proved to be legal and therefore Smt
Sukhia s possession of the holding till the time of her death was merely as widow of Chain Sukh
It was pointed out that in view of appellant Smt
Mainia s clear admission that Smt
Sukhia was remarried to Gopal Singh in Karwa form according to caste custom after Chain Sukh s death and that they had been living together as husband and wife for sever al years no further proof of legality of the remarriage was necessary
Reliance was placed 690 by the High Court on a decision of the Supreme Court in Badri Prasad vs Deputy Director Consolidation  for reaching its conclusion and it was held that this strong presumption of validity of Smt
Sukhia s remar riage with Gopal Singh was not rebutted by the entry in the family register which continued to show Smt
Sukhia as the widow of Chain Sukh
Consequently it was held by the High Court that the finding of the consolidation authorities that Smt
Sukhia s interest in the holding continued to be as widow of Chain Sukh was a manifest error of law
The High Court then proceeded to examine the legal consequences of Smt
Sukhia remarriage with Gopal Singh prior to the date of vesting ie 171952 under the Zamindari Abolition Act and her continuous possession over the holding after her remar riage
It was held by the High Court that the effect of the provisions of the Tenancy Act was that her interest in the holding after her remarriage was in her own right and not as widow of Chain Sukh and therefore by virtue of section 1802 of the Tenancy Act she acquired an independent right which did not devolve upon her death to Chain Sukh s sister appellant Smt
Mainia but to her son Chander Pal born to her after her remarriage with Gopal Singh
It is on this basis that the High Court has directed the Deputy Director Consolidation to decide respondent No 4 Chander Pal s revision afresh
Hence this appeal by special leave
Shri PN Lekhi learned counsel for the appellant Smt
Mainia has assailed the decision of the High Court substan tially on the ground that Smt
Sukhia s interest in the holding continued till her death only as widow of Chain Sukh since her initial interest in the holding was by revolution as widow of Chain Sukh under section 35 of the Tenancy Act
Learned Counsel for the appellant also contended before us that Smt
Sukhia s remarriage with Gopal Singh was not proved and therefore the consequences of remarriage if any did not arise
He argued that Smt
Sukhia s name was recorded throughout only as the widow of Chain Sukh which negatived the case of her remarriage with Gopal Singh after the death of Chain Sukh
He argued that since the possession of Smt
Sukhia till her death in 1965 was as widow of Chain Sukh there was no occasion for attracting the provisions contained in section 1802 of the Tenancy Act
It was urged that on the death of Smt
Sukhia in 1965 the succession was governed by section 172 read with section 171 of the Zamind ari Abolition Act on account of which by virtue of clause m of section 171 appellant Smt
Mainia being the married sister of Chain Sukh inherited the interest in the holding instead of respondent No 4 Chander Pal by virtue of sec tion 174 of that Act
691 In reply Shri KM Sinha learned counsel for re spondent No 4 contended that remarriage of Smt
Sukhia with Gopal Singh after the death of Chain Sukh prior to the date of vesting ie 17 1952 under the Zamindari Abolition Act being the admitted case of appellant Smt
Mainia herself the appellant cannot now be permitted to take a contrary stand
It was urged that the conclusion of the High Court is correct and that consequence is obvious from the provisions of the Tenancy Act
On this basis it was urged that the possession of Smt
Sukhia in the holding at the time of her death not being as a widow of Chain Sukh but in her own right the succession is governed not by section 172 but by section 174 of the Zamindari Abolition Act under which respondent No 4 Chander Pal inherited Smt
Sukhia s interest in the holding as her son
In our opinion the contention of learned counsel for the appellant cannot be accepted and on the case set up by Smt
Mainia herself no fault can be found with the reasoning or conclusion of the High Court
It is obvious even from the orders of the consolida tion authorities that Smt
Sukhia s remarriage in Karwa form according to the caste custom with Gopal Singh a couple of years after the death of Chain Sukh was pleaded by Smt
Mainia herself in her reply dated 10121970 as mentioned in the order dated 15111972 Annexure V by the Deputy Direc tor Consolidation while deciding Chander Pal s revision
The controversy between the parties before the consolidation authorities was at best only about the validity of the remarriage and not its factum
Moreover the order of the Consolidation Officer dated 291
1972 Annexure III also indicates that before the Consolidation Officer appellant Smt
Mainia did not dispute even the validity of Smt
Sukhia s remarriage with Gopal Singh and the case of the appellant before the Consolidation Officer was put on the basis of Smt
Sukhia being remarried to Gopal Singh and Chander Pal being the son born to Smt
Sukhia after her remarriage so that Chander Pal could not claim to be a legal heir of Smt
Sukhia s first husband Chain Sukh
The High Court was therefore right in taking the view that the matter must be decided on the basis of Smt
Sukhia being remarried to Gopal Singh a couple of years after the death of her first husband Chain Sukh and the question of factum or validity of Smt
Sukhia s remarriage with Gopal Singh did not really arise
This being so the mere fact of Smt
Sukhia s name being shown in the family register as widow of Chain Sukh till the time of her death in 1965 did not have the effect of continuing Smt
Sukhia s status as widow of Chain Sukh even after she 692 had become the wife of Gopal Singh as a result of her remar riage
The effect of the statutory provisions on the continued possession of Smt
Sukhia in this altered status has there fore to be examined
The relevant provisions of the Tenancy Act may now be noticed
Admittedly succession to the interest of Chain Sukh on his death was governed by section 35 of the Tenancy Act according to which the interest of Chain Sukh in the holding devolved upon Smt
Sukhia as his widow in the ab sence of any male lineal descendant in the male line of descendant
Section 36 of the Tenancy Act is as under 361 When a female tenant other than a tenant mentioned in section 34 who either before or after the commencement of this Act has inherited an interest in a holding as a widow as a mother asa step mother as a father s mother or as a daughter dies or abandons such holding or surrenders such holding or a part of such holding or in the case of a tenant inheriting as a widow or as a daughter marries such holding or such part of such holding shall notwithstanding anything in section 45 devolve in accordance with the order of succession laid down in section 35 on the heir of the last male tenant other than a tenant who inherited as a father s father under the provisions of that section   emphasis supplied The applicability of section 36 in the present case was disputed by the learned counsel for the appellant
We are unable to agree
Section 36 clearly provides for succession to a female tenant holding an interest inherited as a widow in the case of her marriage thereafter or in other words remarriage
The learned counsel for the appellant contends that this is not so
In our opinion the argument overlooks the clear words in the case of a tenant inheriting as a widow  marries which show that the situation where a female tenant who inherited as a widow marries or in other words remarries is specifically covered by section 36
The contrary construction placed on section 36 by the learned counsel for the appellant would render these words redun dant
The word marries  instead of the word remarries  has been used for the obvious reason that it refers both to a widow as well as a daughter
We have therefore no doubt that section 36 was attracted in the 693 present case when Smt
Sukhia remarried Gopal Singh after the death of Chain Sukh
Section 36 also overrides section 45 since it clearly says notwithstanding anything in section 45 which provides generally for extinguishment of the interest of a tenant in the manner specified therein
The argument of the learned counsel for the appellant that clause a of section 45 deals with the situation of death of a tenant and therefore attracted in the present case on the death of Smt
Sukhia in 1965 is untenable in view of the express provision made in section 36
The result is that according to section 36 on the remar riage of Sukhia with Gopal Singh the interest devolved in accordance with the order of succession laid down in section 35 on the heir of the last male descendant that is Chain Sukh but appellant Smt
Mainia married sister of Chain Sukh not being one of the heirs of Chain Sukh according to section 35 of the Tenancy Act the interest did not devolve on Smt
Mainia
The continued possession of Smt
Sukhia thereafter attracted section 180 of the Tenancy Act the relevant portion of which is as under 1801 A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accord ance with the provisions of the law for the time being in force shall be liable to eject ment under the section on the suit of the person so entitled and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants XXX XXX XXX 2 If no suit is brought under this section or if a decree obtained under this section is not executed the person in possession shall become a hereditary tenant of such plot or if such person is a co sharer he shall become a khudkashtholder on the expiry of the period of limitation prescribed for such suit or for the execution of such decree as the case may be XXX XXX XXX
 694 Admittedly no suit as contemplated by sub section 2 of section 180 of the Tenancy Act was brought at any time against Smt
Sukhia and the prescribed period of limitation for such a suit expired prior to her death in 1965
Sub section 2 of section 180 was therefore clearly attracted and Smt
Sukhia had become a hereditary tenant by virtue of section 1802 of the Tenancy Act with the further conse quences flowing therefrom
The case of the appellant is based on the applicability of section 172 of the Zamindari Abolition Act which governs succession in the case of a woman holding an interest inherited as a widow etc on the ground that Smt
Sukhia s interest upto the time of her death was only as the widow of Chain Sukh
It is by virtue of section 172 that the claim is made by the appellant
Mainia as the married sister of Chain Sukh under clause m of section 171
We have already indicated that the founda tion of Smt
Mainia s claim is non existent
If such a situation the appellant s claim was rightly negatived by the High Court
The learned counsel for the appellant referred to the decision of this Court in Ram Jivan vs Smt
Phoola dead by Lrs  Ors
 In view of the above conclu sion obviously that decision has no application
The learned counsel also referred to two Single Bench decisions of the Allahabad High Court namely Jaganath and others vs Deputy Director of Consolidation Gorakhpur and others 1976 AWC 654 and Chhiddoo Singh vs Deputy Director of Consolidation  others 1976 AWC 809
The first decision did not involve this point
The learned single Judge in the other decision under provisions of the Agra Tenancy Act took the view that when a widow initially enters into possession as a limited owner the character of her subsequent posses sion after remarriage cannot change in the absence of evi dence of a change in her animus
It was held that in such a case it is for the widow to show that later she had asserted her absolute right and was possessing adversely as an abso lute owner in order to prescribe for absolute ownership
It is sufficient for us to say that the legal consequence flowing from sections 36 and 180 of the UP Tenancy Act is enough to indicate that the character of widow s possession after her remarriage altered by operation of law and any further animus is not required to bring about the effect of the statutory provisions which ensue on expiry of the limi tation prescribed for a suit to evict her
That decision does not indicate consideration of the effect of a provision like section 1802 of the Tenancy Act assuming there was such a provision in the Agra Tenancy Act and also that section 24 of the Agra Tenancy Act was similar to section 36 of the UP Tenancy Act
These decisions are clearly distin guishable
However if the other decision 695 under the Agra Tenancy Act is read as taking a contrary view we are unable to subscribe to that view
In the result the appeal fails and is dismissed
Howev er in the circumstances of the case we make no order as to costs
RSS Appeal dis missed


Summary:
The appellant while working in the Police Department as a clerk was selected and subsequently appointed as Excise Sub Inspector
After several years he was reverted and sent back to his parent department
He challenged the reversion order before the Sub Judge who allowed him to continue in the Excise Department where he was holding a substantive post
After a decade he was compulsorily retired by the Excise Commissioner
The appellant moved the High Court by way of a writ petition challenging the said order and con tending that the Excise Commissioner was not competent to pass the order as the appellant belonged to the Police Department where his lien continued
The High Court rejected the writ petition
This appeal by special leave is against the said deci sion of the High Court
It was contended that the lien against original post in the police Department could not vanish even though the appellant was holding a substantive post in the Excise Department
Dismissing the appeal HELD 1
Rule 314 of the Punjab Service Rules provides that a competent authority shall suspend the lien of a Government servant when he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne
This rule cannot be operated to the prejudice of a Government servant who on his own has acquired legal right to an ex cadre post
Indeed the rule is for the benefit of a Government servant who intends to return back to his parent department
But the appellant never wanted to return back to his parent department
He was stoutly opposing repatriation and asserting his right to remain in the ex cadre post
He has thus denied himself of the benefit of that rule
683F H 681 TC Sharma vs Prithvi Singh  Ors 16 referred to
Lien is not a word of article It just connotes the right of a civil servant to hold the post substantively to which he is appointed
Generally when a person with a lien against a post is appointed substantively to another post he ac quires a lien against the latter post
Then the lien against his previous post automatically disappears
It is a well accepted principle of service jurisprudence that no Govern ment servant can have simultaneously two liens against two posts in two different cadres
684A B 3
In the instant case the civil court has already ruled that the appellant had a right to continue in his substantive appointment as Excise Sub Inspector
He secured that declaration when the Excise Department repatriated him to his parent department
Alter obtaining that decree from a court of competent jurisdiction he could not turn round and say that he still retained lien against his post in the parent department
The lien in his parent department must be held to have been cancelled consequent on the decree of the civil court
Therefore the Excise Commissioner seems to be the only competent authority to pass the order compulsorily retiring him from service
689C D This Court directed the respondent to determine the pensionary benefits of the appellant and pay the same to his legal heirs within three months if not already paid