N.D.Ojha, J. - (1.) THESE two appeals raise similar questions and are, therefore, being decided by a common judgment.
(2.) SPECIAL Appeal No. 257 of 1971 has been filed against the judgment of a learned Single Judge whereby the writ petition filed by the appellants with a prayer to quash the order of the Deputy Director of Consolidation and the Settlement Officer (Consolidation) was dismissed. The appellants claim to be tenure-holders of certain agricultural land. The contesting respondents on the other hand claim to have acquired adhivasi and thereafter sirdari rights in the said land. From a perusal of the order of the Assistant Settlement Officer (Consolidation) dated 3rd June, 1966, Annexure- 'B' to the writ petition, it appears that in the Khasras of 1356 Fasli and 1359 Fash Sri Narain and others were recorded as mortgagors, Murat Singh and others were recorded as mortgagees and Ram Harakh, father of respondents 4 and 5, was recorded in the column of sub-tenant. Sri Narain and others had transferred their interest in the land to one Manawan who in his turn had executed a sale deed in favour of the appellants on 10th February 1961. The appellants claim to be tenure holders on the basis of this sale deed. Ram Harakh on the other hand claimed to have acquired adhivasi rights in virtue of being sub- tenant of the mortgagees under Section 20 (a) of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) and in the alternative to have acquired the said right under Section 20 (b) of the Act in view of his entry as sub-tenant. The claim of Ram Harakh was repelled by the Consolidation Officer and the appellants were ordered to be recorded as bhumidhars of the land in dispute. This order was, however, set aside by the Settlement Officer (Consolidation) on 11th May, 1968, and Ram Harakh was ordered to be recorded as sirdar. This order was upheld by the Deputy Director of Consolidation on 23rd January, 1969. Special Appeal No. 332 of 1971 has been filed against the judgment of a learned Single Judge dismissing the writ petition filed by the appellant challenging an order passed by the Board of Revenue. The facts of this case are as follows:- The appellants were the fixed rate tenants of the land in dispute. One Prem Narain Agrawal, predecessor-in-interest of the respondents 2nd set obtained a self-liquidating mortgage of the land from the Civil Court on August 31, 1945, for a period of 20 years with effect from May in 1944, in lieu of his decretal debt. Prem Narain Agarwal subsequently died and the respondents 2nd set came in possession of the land as mortgagees. These respondents granted a lease of the land to the respondents 3rd set. A suit was filed by the appellants under Section 229-B of the Act for a declaration that they were bhumidhars. In defence it was asserted that the respondents 3rd set being the sub-tenants from the mortgagees had acquired adhivasi rights under Section 20 (a) and in the alternative under Section 20 (b) being recorded occupants in 1356 Fasli. Their claim was repelled by the trial court as well as by the Additional Commissioner who held that the appellants were bhumidhars of the land in dispute and that the respondents 3rd set had not acquired either adhivasi or sirdari rights. The Board of Revenue, however, set aside these orders and took the view that since the respondents 3rd set and acquired adhivasi and thereafter sirdari rights the appellants' interest in the land extinguished and they were not entitled to the declaration that they were bhumidhars of the said land.
(3.) FROM the various orders attached to the writ petition giving rise to the Special Appeal No. 332 of 1971 it was not clear as to in what capacity were the respondents 3rd set recorded in 1356 Fasli. A supplementary affidavit was filed on behalf of the appellants on 1st March, 1976, attaching thereto copies of the extracts of 1356 Fasli which had been filed on behalf of the contesting respondents before the revenue authorities. FROM their perusal it appears that the respondents 3rd set were recorded in column 6. It was not disputed by the learned counsel for the contesting respondents that if the copies filed along with the supplementary affidavit were correct the entries in 1356 Fasli in favour of the contesting respondents would be of sub-tenants or mortgagees recorded in column 6 as contemplated by paragraph 79 of the Land Records Manual. On 1st March, 1976, the arguments were concluded and judgment was reserved and the learned counsel for the contesting respondents was given time to verify as to whether the copies attached with the supplementary affidavit referred to above were correct or not. Learned counsel was required to inform us about the correct situation within ten days. It has, however, not been brought to our notice that these entries are not correct. It would thus be seen that in both these cases only two questions arise for consideration - (1) whether a lessee from a mortgagee would acquire adhivasi rights under Section 20 (a) of the Act, and (2) whether such lessee would acquire adhivasi rights by virtue of his being recorded as sub-tenant in column 6 of the relevant extracts of 1356 Fasli which entry is made in pursuance of paragraph 79 of the Land Records Manual.;