N.D. Ojha, J. - (1.) This special appeal is directed against the judgment of a learned Single Judge whereby a writ petition filed by Respondents Nos. 1 and 2 was allowed. The land which is the subject matter of dispute was the occupancy tenancy of Raghunath father of Respondents Nos. 9 and 10. He deposited ten times rent of this land on May 30, 1951 and obtained a declaration Under Sec. 6 of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949, hereinafter referred to as the Acquisition of Privileges Act. Raghunath usufructuarily mortgaged the land in dispute in favour of the Appellants on May 31, 1951. Subsequently Raghunath died and his sons, namely Respondents Nos. 9 and 10 sold the land in dispute to the Respondents Nos. 1 and 2 on May 19, 1959. The village in which the land in dispute is situated was brought under consolidation operation and a dispute between the Appellants on the one hand and Respondents Nos. 1 and 2 on the other arose in regard to the title of the said land, both claiming to be bhumidhars. Respondents Nos. 1 and 2 claimed bhumidhari rights on the basis of the sale deed executed in their favour by Respondents Nos. 9 and 10, whereas Appellants' case was that oh a declaration being granted to Raghunath Under Sec. 6 of the Acquisition of Privileges Act he became a bhumidhar and the usufructuary mortgage executed by him on May 31, 1951 had the effect of a sale as contemplated by Sec. 164 of the UP ZA and LR Act (hereinafter referred to as the Act). On this basis the Appellants pleaded that the sale deed subsequently executed by Respondents Nos. 9 and 10 in favour of Respondents Nos. 1 and 2 was invalid and confers no rights upon the vendees. The Consolidation Officer accepted the claim of Respondents Nos. 1 and 2 and held them to be bhumidhars on the basis of the sale deed executed in their favour. He accordingly directed the names of Respondents Nos. 9 and 10 to be expunged and the names of Respondents Nos. 1 and 2 to be recorded as bhumidhars. He further ordered the Appellants to be recorded as asamis in class 3 of the Khatauni. This order was upheld by the Settlement Officer (Consolidation) on appeal. The Appellants took the matter up in second appeal and the Dy. Director of Consolidation giving the Appellants the benefit of Sec. 164 of the Act allowed their appeal directing them to be recorded as bhumidhars. The revision filed by Respondents Nos. 1 and 2 failed; whereupon they instituted a writ petition in this Court which as already observed above was allowed giving rise to the present special appeal.
(2.) The learned Counsel for the Appellants has reiterated his submission that the Appellants being usufructuary mortgagees from a bhumidhar were entitled to the land in dispute as bhumidhars inasmuch as the mortgage in their favour amounted to a sale as contemplated by Sec. 164 of the Act. In support of this submission it was urged that the Act came into force on January 26, 1951 and consequently Ss. 18 Sub -section (2) and 164 became operative with effect from the said date. Relying upon Sec. 340 of the Act and Schedule IV thereto it was urged that the amendments referred to in Schedule IV are to be read and construed as if they had been made in the Acquisition of Privileges Act and were enforced from the commencement of the said Act. So construed. Raghunath father of Respondents Nos. 9 and 10 became bhumidhar Under Sec. 18 Sub -section (2) of the Act on January 26, 1951 and he having executed a usufructuary mortgage in favour of the Appellants on May 30, 1951 the said mortgage has to be treated as a sale and on its basis the Appellants became bhumidhars.
(3.) Having heard learned Counsel for the parties we are unable to accept the Argument advanced on behalf of the Appellants. The preamble of the Act reads: Whereas it is expedient to provide for the abolition of the zamindari systems which involves intermediaries between the tiller of tie soil and the State in Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent on such abolition and acquisition and to make provision for other matters connected therewith. It is hereby enacted as follows: It would thus appear that the purpose of fee ZA Act was to abolish the zamindari system; to acquire rights, title and interest of the intermediaries and to reform the law relating to land tenure consequent on such abolition and acquisition. The Appellants would be entitled to the benefit of Sec. 164 of the Act only if their mortgagor Raghunath had become a bhumidhar on January 26, 1951. The only provision as already pointed out above under which Raghunath has claimed to have become a bhumidhar on the said date is Sec. 18(2) of the Act, The skid Sec. occurs in Ch. II of the Act which deals with acquisition of interest of intermediaries and its consequences. Sub -section (1) of Sec. 18 is specific on the point that the settlement of land as bhumidhars with the persons mentioned therein takes place after vesting. The provisions of Sub -section (2), however, are not specific and the learned Counsel for the Appellant on this basis urged that even though the persons mentioned in Sub -section (1) of Sec. 18 became bhumidhars on July 1, 1952 those covered by Sub -section (2) became bhumidhars on January 26, 1951.;