S. R. Misra, J. - (1.) BY means of the present writ petition, the petitioner seeks a writ in the nature of certiorari calling upon the respondent nos. 1 and 2 to produce record to the case for the purpose of quashing their orders, dated 18-10-1972 and 17-9-1976 respectively.
(2.) BRIEFLY stated the facts of the case are that in proceedings under section 9 of the U. P. Consolidation of Holdings Act, the petitioner claimed sirdari right along with Ram Adhar and Ram Autar over the land in dispute. In the basic year, the names of the respondents, were entered on the basis of an ex parte decree and the petitioner prayed for expunction of their names. It has been further alleged by the petitioner that there was a mortgage in favour of contesting respondents, and once they were entered as mortgagees, unless they surrender their actual physical possession, they cannot be entitled to get sirdari right, or, any adverse right. On the other hand, respondents denied the case set out by petitioner and claimed themselves to be the sirdar on the allegation that they were recorded as occupants in 1356 F and in cultivatory possession in 1359 F and thereafter, remained in possession for more than the statutory period. On 11-8-1972, the claim of the petitioner was allowed by the Consolidation Officer. However, appeal filed by respondents was allowed by Settlement Officer (Consolidation) on 18-10-1972. Thereafter, the petitioner went in revision which too was dismissed by the Dy. Director of Consolidation by his order dated 17-9-1976. Hence this petition.
(3.) THE main submission of Sri S. N. Singh, learned counsel for the petitioner is that since there was a mortgage and the document was more than 20 years old, as such there was no question at all for conferring any right, title or interest in favour of the respondents merely on the basis of erroneous entries of 1356 and 1359 F He contended that 'once a mortgage, always mortgage' and unless the contesting respondents prove to the satisfaction by document, or. positive oral evidence that they had delivered actual physical possession after satisfaction of mortgage, question of conferring of any right on the basis of aforesaid entries does not arise. He vehemently contended that any repetition of wrong entry, or, entry in the teeth of admitted fact that there was mortgage, if the respondents continued in possession, the same will not be permissible under law. At the most, they can get Assami right, but in no case, they can be held to be sirdars. He next urged that there was no tenancy in favour of the respondents and in the absence of any clear evidence that they had delivered possession to the tenure holder after redemption of mortgage, their claim of sirdari right was erroneous. I have given careful though to the submissions advanced by Sri Singh and have also gone through the record. In view of finding of fact having been recorded by the Deputy Director of Consolidation to the effect that the mortgage was satisfied in 1946, and there was no entry showing the possession of the parties as mortgagees. I am reluctant to agree with the submissions of learned counsel for the petitioner. Moreover, the Deputy Director of Consolidation has also recorded a finding of fact that entry of 1356 F was made in accordance with law and that the respondents are in actual physical possession. On account of terms of the so called mortgage, possession was not delivered in lieu of the said mortgage, as such, the Deputy Director of Consolidation rightly held that the respondents have become sirdars on the basis of entries recorded in 1356 and 1359 Faslis. These are clear findings of fact and cannot be interfered in the writ jurisdiction.;