Bhargava, J. - (1.) WE have heard learned Counsel for the Petitioner and are unable to find any error of law in the decision of the Deputy Director of Consolidation. The Petitioner was no doubt entered as a sub -tenant in 1355 Fasli and continued as such in 1357 Fasli. In 1358 Fasli and 1359 Fasli he ceased to be the sub -tenant. The question is whether in these circumstances the Petitioner acquired any rights. He could not become an Adhivasi under Section 20 (b) (ii) of the U.P. Zamin -dari Abolition and Land Reforms Act because in 1359 Fasli his entry was in the capacity of a subtenant and not as an occupant and he was also, in fact, a subtenant.
(2.) LEARN d counsel for the Petitioner on this point has relied on the decision of the Supreme Court in Amba Prasad v. Mahboob A!i Shah (1)(1964 AWR 541). In that case it has been hold by the Supreme Court that by the word 'occupant' is meat the person in actual possession, and consequently it is clear that between a proprietor and a tenant the tenant, and between the tenant and a sub tenant the latter and between him and a person recorded in the remarks column as Dawedar Qabiz the Dawedar Qabiz are the occupants. The Court held that this is the only logical way to interpret the section which does away with all intermediaries. The Court, however, further proceeded to make the following qualification: The word 'occupant' thus signifies occupancy and enjoyment. Mediate possession (except where the immediate possessor holds on behalf of the mediate possessor is of no consequence. The question is whether the case of the Petitioner is covered by this qualification laid down by the Supreme Court. In this connection we may take notice of the remarks made by the Supreme Court in the earlier case of Upper Ganges Sugar Mills Ltd. v. Khalil -ul -feahman and Ors. (2) (1961 AWR 78). In that case also this very principle was applied that a person cannot be treated as an occupant in case he is in possession on behalf of another. That was a case where a thekedar whose theka had expired was claiming Adhivasi rights on the basis of being an occupant. The Supreme Court accepted the contention of the thekedar on the ground that in 1356 Fasli the thekedar had in fact ceased to be a thekedar and to hold the land in that capacity, so that he was no longer holding on behalf of the proprietor. His possession was consequently independent of the proprietor and he, therefore, satisfied the requirement of being entered as an occupant as laid down in section 20 (b) of the U.P. Zamindari Abolition" and Land Reforms Act. In dealing with this aspect their Lordships of the Supreme Court pointed it out 'hat the thekedar had become an occupant only because his theka had expired and his capacity as thekedar had ceased to exist. It was implied that a thekedar, if he is in possession under a valid and running theka, would be held to be a person holding the land on behalf of the proprietor from whom he had obtained the theka, and in such a case he could not be treated as an occupant.
(3.) THIS very principle has been accepted again in the subsequent case of Amba Prasad (1) (supra). In the case before us the question, therefore, that arises for decision is whether a sub -tenant can be said to be a person holding on behalf of the Chief tenant or not. We find no difficulty in holding that a sub tenant must be held to be a person holding on behalf of the chief tenant. There are various transfers under which a transferee can hold on behalf of his transferor. One is a case where there may be a mortgage executed by a zamindar who was holding the land as his khudkasht. On execution of the usufructuary mortgage the mortgagee comes into posses ion and starts cultivating the land. In such a case Section 14 of the U.P. Zamindari Abolition and Land Reforms Act makes a specific provision that the mortgage would cease to exist. The mortgagee would acquire no right and it is the mortgagor who would acquire bhumidhari rights. If in such a case it were to be held that a mortgagee holds in his own right by virtue of the transfer made to him under the mortgage deed, the mortgagee could claim to be an Adhivasi on the principle laid down in these cases. Thus the case of a mortgagee has to be held to be clear case where he holds the land on behalf of the proprietor from whom he holds the mortgage and not in his own right.;