M.H. Beg, J. - (1.) This is a defendant's appeal arising out of a suit for the recovery of possession over four plots of land in respect of which the plaintiff's father executed a usufructuary mortgage deed on 1-6-1920 in favour of the defendant's predecessor-in-chief-interest. It was alleged that the plots in suit were the sir of the mortgagor at the time of the purported mortgage. In 1359F. the defendants were, according to the plaintiff, in possession of these plots as mortgagees. It was alleged that, by virtue of Section 14 of the U.P. Zamindari Abolition and Land Reforms Act I of 1951 (hereinafter referred to as the Act) the mortgage had come to an end, and that the plaintiff was entitled to obtain possession of the plots in dispute. Hence, the suit under Section 209 of the Act. The trial court held that plots Nos. 61 and 81 and 86 were the "sir" of the plaintiff validly mortgaged on 1st of June 1920. The mortgage having come to an end under the provisions of Section 14(2) (a), the plaintiff became the Bhumidhar of these plots. Consequently, the suit for possession was decreed in respect of these three plots. The trial court, however, held that plot No. 115 was "Mandadari" of the plaintiff's father, which results in an "occupancy tenancy" under the U.P. Tenancy Act. The mortgage of occupancy tenancy rights is prohibited by law. The defendant-appellant could not acquire the rights of a mortgagee over this plot under Section 14(2) (b) of the U.P. Zamindari Abolition and Land Reforms Act. Nevertheless, the trial court held that the defendant-appellant acquired sirdari rights as he had deposited five times the rent in respect of plot No. 115. The trial court, therefore, dismissed the plaintiff's claim in respect of plot No. 115.
(2.) The lower appellate court maintained the decree of the trial court with respect to plot Nos. 61, 81 and 86, but it allowed the plaintiff's appeal as regards plot No. 115 and decreed the plaintiff's suit in to to. The lower appellate court followed the view taken in Kidar Nath Kasaundhan v. Naipal Singh, ALJ 8 1308 in holding that a "mandadari" tenure was really an occupancy tenancy. It also followed the view taken by a Full Bench of this Court in Mahabal Singh v. Ram Raj Singh, 1950 ALJ 713 and held that, since the purported mortgage of occupancy tenancy rights was void, the possession of the defendant-appellant was no better than that of a licensee. This licence having been revoked by the filing of a suit, the plaintiff was, according to the view taken by the lower appellate court, entitled to get his decree in respect of plot No. 115 also.
(3.) On behalf of the defendant-appellant, it has been argued before me by Mr. Vindeshwari Prasad that the lower appellate court has overlooked the provisions of Section 14(2) (b) of the Act which conferred upon the mortgagee the right of paying five times the rent calculated at the hereditary rights applicable and being treated as a hereditary tenant under the provisions of U.P. Tenancy Act, for the purposes of acquiring sirdari rights under Section 19 of the Act. It was also argued for the appellant that he had acquired rights under Section 3 of the U.P. Land Reforms (Supplementary) Act XXXI, 1950, the relevant part of which runs as follows:- "(1) Every person who was in cultivatory possession of any land during the year 1359 Fasli but is not a person who as a consequence of vesting under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the said Act) has become a bhumidhar, sirdar, adhivasi or asami, under Sections 18 to 21 of the said Act, shall be and is hereby declared to be, with effect from the appointed date - (a) if the bhumidhar or sirdar of the land was, or where the land belongs jointly to two or more bhumidhars or sirdars, all of them were, on the appointed date person or persons referred to in items (i) to (vi) of sub-Section (2) of Section 10 of the said act, as asami from year to year, or (b) if the bhumidhar or sirdar was not such a person, an adhivasi and shall be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi, as the case may be, by or under the said Act. Explanation - A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar, sirdar, adhivasi or asami concerned in the actual performance of agricultural operations.;