M. Hameedullah Beg, J. - (1.) This a writ petition directed against an order dated 24 -1 -1964 passed by the Dy. Director of Consolidation Under Sec. 48 of the Up Consolidation of Holdings Act. The Petitioners stated that they were persons who had been given possession of the plots in dispute by Smt. Pramjoti Kunwar who had mortgaged her occupancy tenancy plots to Ram Saran Upadhya and Sheo La -khan Singh in 1919. The ancestors of the Petitioners, having paid off the mortgage money, obtained possession on 20 -6 -1920, with the consent of Smt. Pramjoti Kunwar. On 20 -11 -1944, Smt. Pramjoti Kunwar surrendered her rights to the Zamindar. The Zamindar then settled the plots in dispute with the father of contesting opposite parties Nos. 4 and 5 on 12 -12 -1944. It appears that the predecessors of the Petitioners filed a suit Under Sec. 59/61 of the UP Tenancy Act for a declaration that they were cotenants with Smt. Pramjoti Kunwar, but this suit was dismissed. The contesting opposite parties had, almost simultaneously, filed a suit Under Sec. 180 of the UP Tenancy Act. That suit was decreed by the trial court but was dismissed by the appellate court on 18 -4 -1952 on the ground that the Petitioners were not liable to ejectment as their ancestors were recorded as persons in possession as mortgagees. An appeal by the contesting opposite parties to the Board of Revenue was also dismissed on 7 -5 -1952. The Petitioners thus continued in possession.
(2.) The contesting opposite parties 4 and 5 having found themselves unable to eject the Petitioners Under Sec. 180 of the UP Tenancy Act brought a suit Under Sec. 202(c) of the UP ZA and LR Act, which had come into force, on the ground that the Petitioners were mortgagees liable to ejectment Under Sec. 21(1)(d) of the UP ZA and LR Act. That suit had been rightly dismissed by the trial court on 21 -2 -1957. During the pendency of an appeal against that decision, the consolidation proceedings commenced in the village where the land in dispute is situate.
(3.) The contesting opposite parties were entered as Bhumidhars in the basic year. But, on an objection, the consolidation officer corrected the entry and ordered that the Petitioners be entered as sirdars. On an appeal from this order Under Sec. 11(1) of the UP Consolidation of Holdings Act, the Settlement Officer held that the Petitioners could only be trespassers after the surrender of tenancy rights of Smt. Pramjoti Kunwar in 1944 and upheld entries in their favour. The Dy. Director of Consolidation, however, revised the order of the Settlement Officer. He purported to apply the principle laid down in Hamid Husain v/s. R.N. Mallah, 1963 AWR 430, where it was held by a Division Bench of this Court that a person who was in possession under a void mortgage does not get Asami rights but is only a licensee. Learned Counsel for the contesting opposite parties has, however, relied upon a Full Bench decision of this Court in Samharu v/s. Dharamraj Pandey, 1969 AWR 714, where it had been held that the word mortgagee as used Under Sec. 21(1)(d) of the UP ZA and LR Act is comprehensive enough to cover even transactions wider than legally defined or valid mortgagees. This comprehensiveness, in my opinion, does not help the opposite parties in this case.;