S.N. Dwivedi, J.
1. The dispute in this petition relates to an agricultural holding. The petition arises out of a suit instituted in the revenue Court by the petitioners under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act. They prayed for a declaration that they were the bhumidhars of the plots. In the plaint they alleged that they were originally the fixed rate tenants of the plots that after the vesting of the Zamindari in the State they became bhumidhars of the plots, that the predecessor-in-interest of the respondents second set, Prem Narain Agarwal, obtained a self liquidating mortgage of the plots from the Civil Court on August 31, 1945 for a period of 20 years with effect from May 1, 1944 in lieu of his decretal debt, that on the death of the said Prem Narain Agarwal, the respondents second set came into possession over the plots as mortgagees and that the respondents second set granted a lease of the plots to the respondents third set.
It was alleged that the lease was fictitious and that the respondents second set, the mortgagees, were in actual possession and that they accordingly became Asamis. The respondents third set contested the suit. Their case was that the lease was genuine and not fictitious, that they were in possession over the plots in 1356 Fasli and have become adhivasis and now sirdars and that the petitioners were not the bhumidhars of the plots. The trial Court decreed the suit. The Additional Commissioner dismissed the appeal of the respondents third set. But in Second Appeal the Board of Revenue upheld the claim of the respondents third set and dismissed the suit of the petitioners. Hence this petition.
2. It has been found that the petitioners were originally the fixed-rate tenants of the plots. It has also been found that the predecessor-in-interest of the respondents second set, Prem Narain Agarwal, obtained a self liquidating mortgage for a period of 20 years in lieu of his decretal debt against the petitioners. The mortgage came into effect from May, 1944. It came to an end in 1964 on the expiry of 20 years. It has also been found that during the currency of the mortgage, the mortgagee let out the plots to the respondents third set. The lease has been found to be genuine and not fictitious. So the respondents third set become lessees of the mortgagees. It has further been found that the respondents third set, as lessees are recorded occupants in 1356 Fasli'.
On these findings, which are not disputed before me, the trial Court and the Commissioner held that the respondents third set became asamis and not adhivasis. A mortgagee in actual possession becomes an asami under Section 21 of the U. P.Zamindari Abolition and Land Reforms Act. The trial Court and the Additional Commissioner took the view that a lessee of a mortgagee would not derive a greater right than the mortgagee in actual possession and that accordingly he would be-come only asami. The Board of Revenue did not agree with this view. The Board of Revenue has taken the view that as the respondents third set, as lessees of the mortgagees are recorded as occupants in 1356 Fasli, they become adhivasis. The normal rule that a derivative title cannot rank higher than the parent title is, according to the Board of Revenue, overridden by the express language of Section 20 (b) of the U. P. Zamindari Abolition and Land Reforms Act.
3. The crucial question before me Is whether the Board's view is correct. A learned single Judge has already taken the view that the lessee of a mortgagee becomes an adhivasi under Section 20 (b) of the said Act. (Kalp Nath Shukul v. Basantu, 1963 RD 152). The same view has also been taken by a Division Bench in Second Appeal No. 944 of 1959. Birju v. Sheopher decided on 23-5-1963 (All). When these decisions were cited before me during arguments, I felt that they require reconsideration. But on further reflection I have changed my mind to the view taken in those decisions. I am now of opinion that the lessee of a mortgagee acquires the right of adhivasi if he is recorded as occupant in 1356 Fasli.
4. Counsel for the petitioners has urged that a lessee of a mortgagee is a mere licencee. I do not agree. The lessee of a mortgagee has the right to occupy the plots during the subsistence of the mortgage. On the other hand a licencee has no right to occupy. He remains in occupation only at the will of the licenser. So the lessee of the mortgagee is the tenure-holder of the mortgagee.
5. It is true that if the mortgagee himself had remained in actual possession he would acquire only the right of an asami under Section 21. But the lessee of a mortgagee is not the mortgagee in actual possession. So necessarily he would become an adhivasi under Section 20 (b) if he is recorded as an occupant in 1356 Fasli.
6. Where a mortgagee lets out the holding In the course of prudent management, the lessee's rights do not cease on the expiry of the mortgage; he becomes the lessee of the mortgagor after the expiry of the mortgage. I have little doubt in my mind that such a lessee would be adhivasi under Section 20 (b) if he is recorded as an occupant in 1356 Fasli. It would necessarily follow that a lessee of a mortgagee, who has been inducted even otherwise than in the course of prudent management, would be an adhivasi under Section 20 (b) if he is recorded as an occupant in 1356 Fasli. Section 20 (b) is intended to confer rights on the actual tiller of the soil.
7. In the result the petition is dismissed with costs.