R. Dayal, J. - (1.) This is a petition under Article 226 of the Constitution praying the quashing of the orders of the Board of Revenue and the Additional Commissioner dated the 11th of October 1958 and the 22nd of August 1957 respectively.. The petitioners were usufructuary mortgagees of certain land from the proprietor. They were redeemed in 1951. They applied under Sec. 232 of the U. P. Zamindari Abolition and Land Reforms Act for the recovery of possession. The Sub Divisional Officer decreed the suit ordering the delivery of possession to the petitioners. This order was set aside on appeal. They went up in revision to the Board of Revenue and failed. They therefore filed this petition to get the orders against them quashed.
(2.) The contention for the petitioners is based on the fact that the khasra of 1356F recorded them in possession. It is urged that they were thus recorded occupants of the land in suit in 1356F and became adhivasis under Sec. 20 (b) (i) of the U. P. Zamindari Abolition and Land Reforms Act. This contention was not accepted by the Board of Revenue and has therefore been urged here. We have heard learned counsel for the petitioners and are of opinion that this contention has no force. The mortgagee from the proprietor land holder is in possession as a representative of the proprietor himself. He is not in possession in any subordinate right like that of tenancy; nor is he in possession as a trespasser. The entry with respect to his possession of the mortgaged land is not such an entry as appears to be contemplated by the provisions of Sec. 20 of the Zamindari Abolition and Land Reforms Act. According to its heading the section provides for the tenant of sir, sub tenant or an occupant who are to be adhivasis. It lays down who would be the adhivasis. 'Occupant' in this context should be a person who actually occupies the land in a capacity analogous to or comparable with that of a tenant or sub tenant. The proprietor land holder who is an intermediary under the Act is not covered by the word 'occupant' on account of his actual possession in view of Exp. IV to Sec. 20 of the Act. The mortgagee is certainly not an intermediary according to the definition of the word as given in the Act but he occupies the land on behalf of the mortgagor as security for the money advanced by him. He does not hold it in any other capacity. We are therefore of opinion that keeping in view the language of Sec. 20 and the provision of Exp. IV a mortgagee in possession will not be covered by the expression 'occupant' in Cl. (b) of Sec. 20 of the Act.
(3.) A similar inference is to be deduced on the reasoning of the case reported in Jagdish Prasad v. Board of Revenue, 1956 A.L.J. 317 where it was held that the word 'occupant' having regard to the context in which it is used in Sec. 20, refers to a person who claims an exclusive right of occupancy on his own behalf to the exclusion of others and that therefore the persons who were recorded merely as sajhidars or marfatdars or licensees were not included within the term 'occupant.' In the same connection reference may be made to the various requirements for an application under Sec. 232 of the Act. They also lead to a similar conclusion. Sub-Sec. (2) provides that an application shall contain such particulars as may be prescribed. Rule 183 of the Zamindari Abolition and Land Reforms Rules requires that the application will mention the date on which the applicant was evicted from the land. The recovery of possession by the mortgagor from the mortgagee on the payment of the amount due under the mortgage does not appear to be covered by the word 'eviction'. Dispossession of the mortgagee is really the corollary of the mortgagee being paid up. Sub-Sec. (3) of Sec. 232 of the Act requires a notice to be given to the land holder and any other person who may be in possession of the land over which the applicant claims possession. The mortgagor cannot be said to be the land holder of the mortgagee. These considerations also confirm the view that adhivasi rights were being conferred on a person who occupied the land at the prescribed time in some capacity which was not that of a land holder or his representative. It is also significant to note that if these mortgagees had not been redeemed in 1951 but had continued in possession up to the 30th of June 1952, the date immediately preceding the vesting, they would have lost all possessoly rights on the land in view of Sec. 14 of the Act. The relevant portion of Sec. 14 are:- "14 (1) Subject to the provision of sub-sec. (2), mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate. (2) 'Where any such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting - (a) If it was sir or khudkasht of the mortgagor on the date of the mortgage, the mortgagee shall, subject to his paying to the State Government, within six months from the date of vesting an amount equal to five times the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting, be deemed, for purposes of Sec. 19, to have held such land on the date aforesaid as a hereditary tenant thereof at the said rate of rent. The land in suit was Sir land and therefore the mortgagee could not have obtained any right which were available to a mortgagee of the land which was not sir or khudkasht. The rights of the petitioners to hold or possess any land ceased in view of sub-sec. (1) of Sec. 14 of the Act. Surely these mortgagees who had been redeemed prior to the vesting could not claim a better position under this Act on account of this earlier redemption. By Sec. 3 of the Uttar Pradesh Land Reforms (Supplementary) Act 1932 an additional ground was enacted for the acquisition of adhivasi rights and it was provided that if a person was in cultivatory possession of any land in the year 1359F, but had not become a bhumidhar, sirdar, adhivasi or asami under Secs. 16 to 21 of the Act he would acquire adhivasi rights subject to the limitations mentioned in the section. It in significant that an Explanation was added to sub Sec. (1) of Sec. 3 of the Act which provided as follows:- "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 thekadar or he was merely assisting or participating with a bhumidhar, strdar, adhivasi, asami concerned in the actual performance of the agricultural operations.";