Kania, J. - (1.) The appellants before us are the heirs and legal representatives of one Wali Mohammad. Respondents 1 and 2 are the sons of one Ram Kumar. Respondent 31st the Board of Revenue, Allahabad.
(2.) On May 22, 1928 Wali Mohammad executed a usufructuary mortgage in favour of Ram Kumar and Shiv Kumar in respect of two plots. According to Wali Mohammad, he redeemed the said mortgage and took possession of the said plots in the beginning of Fasli Year 1354 (period from 1-7-1946 to 30-6-1947) and continued to be in possession thereof. On December 28, 1953 Ram Kumar moved an application under S. 232 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the said Act"), for getting possession of the said two plots from Wali Mohammad on the ground that his name was recorded in the Khasra and Khatauni of 1356 Fasli and, therefore, he was the Adhivasi of the said plots. This was contested by Wali Mohammad. The Sub-Divisional Officer found that Wali Mohammad was in possession of the said plots since the redemption of the said mortgage and dismissed the suit of Ram Kumar. That decision was confirmed by the Additional Commissioner on appeal holding that the entry in the Khasra relied on by Ram Kumar was fictitious. On second appeal, the Board of Revenue set aside the decision of the Sub-Divisional Officer and the Additional Commissioner and held that the entry in the Khasra to the effect that Ram Kumar was the occupant of the said plots in Khasra of Fasli Year 1356 was sufficient to confer Adhivasi rights on him and no further inquiry was called for to ascertain whether the said entry was correct or wrong. Wali Mohammad filed a writ petition in the Allahabad High Court, challenging the aforesaid decision of the Board of Revenue. The learned single Judge of the High Court, after hearing the arguments in the said writ petition, allowed the same and quashed the order of the Board of Revenue on the ground that the Board of Revenue had committed an error of jurisdiction. Ram Kumar preferred a Letters Patent Appeal against the said decision of the learned single Judge. The said appeal was allowed by a Division Bench of the said High Court. The Division Bench set aside the order of the learned single Judge, holding that the entry in the revenue records was enough to confer rights of Adhivasi under S. 20(b) of the said Act. That decision is challenged before us in this appeal by Special Leave granted on the application of Wali Mohammad. Wali Mohammad died during the pendency of the present appeal and his heirs and legal representatives have been brought on record in his place.
(3.) The relevant provision which falls for consideration is Cl. (i) of sub-sec. (b) of S. 20 of the said Act. The relevant part of S. 20 runs as follows: "20. Every person who- (a) ********** (b) was recorded as occupant, - (i) of any land other than grove land or land to which San grove land or land to which S. 16 applies or land referred to in the proviso to sub-sec. (3) of S. 27 of the U.P. Tenancy (Amendment) Act, 1947 in the khasra or khatauni of 1356 F. prepared under Ss. 28 and 33 respectively of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901), or who was on the date immediately preceding the date of vesting entitled to retain possession thereof under C1. (c) of sub-sec. (1) of S. 27 (Amendment) Act, 1947 (U.P. Act X of 1947), or (ii) ********** shall unless he has become a bhumidhar of the land under sub-sec. (2) of S. 18 or an assami under Cl. (h) of S. 21 be called Adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof'.;