R.M. Sahai, J. - (1.) IN basic year records prepared under U.P. Consolidation of Holdings Act both Petitioner and opposite parties were entered as co -tenants over Khata Nos. 132 and 113 which comprises of fourteen plots. Both parties filed objection Under Section 9 and claimed to be exclusive tenant of entire khata. The objection of Petitioner is understandable but the claim of opposite parties for all the plots was wholly misconceived as shall be clear by the facts which shall be narrated hereafter. It is not disputed that Petitioners ancestors were occupancy tenants of all the 14 plots. Some of these plots were mortgaged with ancestor of opposite parties. In 1909 suit for redemption and possession was filed. It was dismissed as barred by time. Probably as a consequence in it mutation proceedings started which were compromised in 1926 and it was agreed that apart from plots in respect of which suit for redemption was dismissed opposite party shall be entered over plot No. 946. Since then, that is, 1926 both Petitioner and opposite parties are entered as co -tenants. The Consolidation Officer held Petitioners to be sole sirdar of 8 plots but in respect of six plots, which according to Consolidation Officer, were subject matter of redemption suit both parties were held co -tenants. In appeal filed by both parties the order in favour of Petitioners for 8 plots was upheld but in respect of 6 plots it was modified. The appeal of opposite party was allowed in part and they were held exclusive tenants of these plots. Both parties filed revision. The revision of Petitioners was dismissed. But that of opposite party was allowed further. It was held that in redemption suit there were 8 plots and one more plot was given in compromise in correction proceedings. Thereafter opposite parties were entitled to be recorded as exclusive tenants over nine plots. It is against this order that Petitioner have come to this Court.
(2.) IT has been argued that as opposite parties had claimed six plots in their objection filed Under Section 9 the Deputy Director committed an error of law in allowing their claim for 9 plots. The argument appears to be devoid of any substance. It is not claimed that in the redemption suit there were less than 8 plots nor is the compromise in mutation proceedings challenged. Learned Counsel for opposite parties pointed out that subsequently by an application the claim was extended to nine plots. Even if it would not have been there the order could not be interfered unless it was found that the decree in redemption suit was for 6 plots only. It is then argued that as land in dispute was admittedly occupancy tenancy, no mortgage could be made of it. According to learned Counsel, opposite parties continued to be licensee and after coming into force of Z. A. Act they lost right, title and interest and the Petitioners became sole Sirdar of it. On the question of law there can hardly be any dispute that no mortgage could have been made of occupancy tenancy. Nor there can be any dispute that the suit for redemption and dismissal could not bring any change in law and the opposite parties could have been deemed to have continued as licensee only. But the effect of filing of the redemption suit was that licence stood terminated. The possession of opposite parties therefore from the date of filing of the suit could not be considered to be that of licensee. In any case even assuming all these to be correct the parties having remained in possession for more than 50 years over land In dispute as tenant it is not a fit case in which any writ can be issued in favour of Petitioners so far 8 plots are concerned.
(3.) AS regards 9th plot No. 946, it is not mentioned in the decree prepared in the civil court, copy of which has been filed as CA 1 to the counter affidavit. The claim of opposite parties was accepted because this plot was mentioned in the compromise entered in mutation proceedings. Learned Counsel for Petitioners rightly relied on Chandra Bhan Datt Ram Pandey v. Jagdish Datt Pandey, 1962 ALJ 404 in support of his submission that a compromise entered in mutation proceedings should be registered otherwise it is not admissible in evidence. The submission of learned Counsel for opposite parties that in view of Kale v. Deputy Director of Consolidation AIR 1976 SC 807 this decision should be deemed to have been overruled is not correct. That was a case of compromise by family settlement in which no right or interest was created therefore it was held such compromise did not need registration.;