1. This appeal arises out of consolidation proceedings. Mustafa Khan the appellant was the occupancy tenant of the plots in dispute. The appellant instituted a suit under Section 180, U. P. Tenancy Act, for ejectment of one Najib Khan on the allegation that Najib Khan was a trespasser. The suit was decreed on October 23, 1944. In execution of the decree, possession was restored to the appellant on August 26, 1945.
2. Soon thereafter, two sons of Najib Khan, namely Mahboob Khan, respondent No. 4 and Vakil Khan, father of respondents Nos. 5 (1) and (11), filed an objection under Order 21, Rule 300. Civil Procedure Code, claiming that they were in possession of the plots in their own rights and they were illegally dispossessed in execution of the decree. They claimed that they were the donees of the mortgagee of the proprietary rights in relation to the plots in dispute and were in possession as such. The objection was allowed by the Execution Court, and in consequence, the two objectors were put in possession on June 19, 1946.
3. Mustafa Khan, the appellant, then filed a suit under Section 183, U. P. Tenancy Act, against, inter alia, the objectors. The suit was decreed on May 31, 1949. In execution of' the decree Mustafa Khan appellant was put in possession of the plots on November 13, 1949. Evidently, between 19th June, 1946 and 13th November, 1949 Mahboob Khan and Vakil Khan were in possession. They were recorded in the revenue papers of 1356 Fasli. On that basis the two objectors moved an application for restoration of possession under Section 232 of the Zamindari Abolition Act. They claimed that they had acquired adhivasi rights on the grounds that they were recorded occupants in 1356 Fasli. During the pendency of this application the plots in dispute came under consolidation operations with the result that the proceedings were stayed. Mahboob Khan and Vakil Khan filed an objection in, consolidation proceedings and claimed that they had become adhivasis because they were recorded as occupants in 1356 Fasli. The Consolidation Officer upheld their claim. His finding that the two objectors had become adhivasis was upheld in appeal as well as in revision. The appellant challenged these orders in a writ petition which, however, failed and was dismissed, leading to the present appeal.
4. The principal submission of the learned counsel for the appellant was that Mahboob Khan and Vakil Khan were intermediaries within meaning of Explanation IV to Section 20 and hence no adivasi rights accrued to them. In the alternative, learned counsel submitted that the objectors were not in law recorded as occupants in 1356 Fasli. They did not become adhivasis. It was also urged that the decree in the suit under Section 183, U. P. Tenancy Act, will be deemed to have corrected the entry of 1356 Fasli within meaning of Explanation III to Section 20 of the Act
5. The first submission is concluded by a Division Bench of this Court in Bhagwati v. Board of Revenue, 1959 All LJ 479. In that case, the Bench held that a mortgagee is not an intermediary according to the definition of the word as given in the Act because 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. This Bench decision is binding on us.
6. The next point is if the mortgagees were recorded as occupants in 1356 F. within meaning of Section 20 (b) (i) of the Act.
7. It appears that one Smt. Mashihan Bibi was one of the mortgagees of proprietary rights in respect of the plots in dispute. She gifted her mortgagee rights to Mahboob Khan and Vakil Khan (vide paragraph 3 of the writ petition). These averments were admitted in the counter-affidavit. The findings of the authorities below are also to that effect. In 1356 F. Mahboob Khan and Vakil Khan were entered in Khatauni under Clause (2-A), which is meant for mortgagees or Thekedars. In the Khasra, they were recorded in column 5 meant for tenure-holders etc. The position is that in 1356 F., these persons were mortgagees. They claimed to be in possession as such. They were recorded in the Khasra and Khatauni as mortgagees in possession.
8. In 1959 All LJ 479, after considering all relevant aspects, the bench held that a mortgagee in possession occupies the land on behalf of the mortgagor as security for the money advanced by him. He is not covered by the expression 'occupant' occurring in Clause (a) of Section 20 of the Act. On this point, we are unable to agree with the contrary view taken in the judgment under appeal before us, which is also reported in 1965 All LJ 1013. In Swarm Prasad v. Board of Revenue, 1960 All LJ 241. A full Bench held that an occupant should be in possession on his behalf and not on behalf of some one else. Applying this test, a mortgagee is not an occupant, because he holds on behalf of the mortgagor.
9. Learned Counsel placed reliance upon the Supreme Court decision in Upper Ganges Sugar Mills v. Khalil-ul-Rahman, AIR 1961 SC 143. There, the Unper Ganges Mills were the Thekedars. The Theka came to an end in 1355 Fasli. Khalil-ul-Rehman, the landholder, had given notice terminating the Theka and intimating that it shall not be renewed after 1355 Fasli. But, the Sugar Mills were recorded in the revenue Papers of 1356 Fasli as Thekedars. The Supreme Court held that since in 1356 Fasli, the Mill was not a Thekedar, the record of its name in 1356 F. must be deemed to be as an occupant within meaning of Clause (b) (i) of Section 20. In the present case, the question does not arise in respect of a Thekedar. In the next place, Mahboob Khan and Vakil Khan were in 1356 F., in fact in law, mortgagees of the proprietary interest. The mortgage had not come to an end prior to 1356 F. The decision in Upper Ganges Sugar Mills' case is hence inapplicable.
10. Learned counsel for the respondents submitted that in the suit for possession filed by the appellant under Section 183, Tenancy Act, it was finally held that the appellant was the occupancy tenant and that the respondents, who were only the mortgagees of the proprietary interest, had no right to dispossess him. The possession of the respondents in 1356 F. would, in view of these findings, be as a trespasser as against the occupancy tenant. The respondents being trespassers in 1356 F., the record of their possession in the Khasra and Kha-tauni of 1356 F., was as an occupant. According to learned counsel, it was open to the court to investigate and find the true nature of the occupancy and construe the entry in the light of the findings. In support, reliance was placed on the following observations of the Supreme Court in the Upper Ganges case AIR 1961 SC 143:--
'(a). The words in Section 20 (b) (i) only speak of a person being recorded as occupant and there is nothing in that section as to the nature of the occupancy, namely, whether it is on behalf of the person recorded or on behalf of somebody else.
(b) That Is a matter which, in our opinion, must always be decided on other evidence.
(c). Neither the Act nor the rules made under it prescribe the form in which the entry specified by Section 20 (b) should be made.'
11. The rigour of the observation that the Court is to decide the nature of occupancy is mitigated by a later decision of the Supreme Court in Smt. Sonavati v. Sri Ram, AIR 1968 SC 466. In this case, with reference to Section 20 (b), the Court held that the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant (vide paragraph 3). In paragraph 9, the Court observed,
'under Act I of 1951 the entry is made evidence without further enquiry as to his right or the status of the person who is recorded as an occupant. .....'
This case is a direct authority for the proposition that the court is not to adjudge whether the person had the right or status as an occupant. The entry has to be taken as it is. In our opinion, the entry cannot be read or construed in the light of findings subsequently given on evidence which was not before the patwari when he made the entry.
12. The observation in the Upper Ganges case AIR 1961 SC 143 that there is no form prescribed for making the entry specified by Section 20 (b) as to the nature of occupancy has to be read in the light of the Supreme Court decision in Bachan v. Kankar, 1972 RD 219 = (AIR 1972 SC 2157). In Bachan's case, the Court mentioned the provisions of Chapter A-V of the U. P. Land Records Manual in some detail, and held that in this contest, Section 20 (b) (i), Zamindari Abolition Act, which speaks of the recorded 'as occupant' in the Khasra or Khatauni of 1356 F., refers to the khasra or Khatauni being prepared in accordance with the provisions of the Land Revenue Act, 1901, and the entry must be made accordingly. It was observed in this case that the form of Khasra is prescribed by paragraph A-89.
13. It seems that by some inadvertence, the attention of the Supreme Court was invited to Chapter A-V of the Land Records Manual. This Chapter was introduced in the Manual after the Zamindari Abolition Act came into force (1359 F). For the preparation of Khasra or Khautauni of 1356 F., the relevant provisions are in Chapter V of the Manual.
14. It appears that in Upper Ganges case, the Supreme Court's attention was not invited to the provisions of the Land Revenue Act or the Rules contained in the Land Records Manual. That is why the court observed that there was no prescribed form for making the entry or specifying the nature of the occupancy. We find that there are detailed provisions for specifying the nature and class of tenure of the persons cultivating or otherwise occupying land.
15. Section 20 (b) (i) of the Act requires the recording as occupant in the Khasra and Khatauni of 1356 Fasli 'prepared under Sections 28 and 33 respectively of the U. P. Land Revenue Act, 1901'. Section 28 of the Land Revenue Act provides that the Collector shall maintain the Khasra in accordance with rules made under Section 234 of the Act. Section 33 requires the Collector to maintain the record of rights, and for that purpose to prepare annually an amended set of registers enumerated in Section 32. Clause (a) of Section 32 refers to 'a register of all persons cultivating or otherwise occupying land specifying the particulars required by Section 55.' This register is called the Khatauni. Section 55 provides:--
'55. The register of persons cultivating or otherwise occupying land prescribed by Clause (e) of Section 32 shall specify as to each, tenant the following particulars:--
(a) the nature and class of his tenure as determined by the United Provinces Tenancy Act, 1939,
(b) the rent payable,
(d) any other condition of the tenure which the Provincial Government may, by rules made under Section 234, require to be recorded.'
16. It will thus be seen that the khatauni has also to be prepared in accordance with the rules framed under Section 234. It has, inter alia, to specify the nature and class of tenure of the person cultivating or otherwise occupying land (emphasis provided).
17. Section 234 of the Land Revenue Act conferred rule-making power on the Local Government. Clause (d) thereof, inter alia, provides for prescribing the form, contents, method of preparation etc., and maintenance of the record of rights and other records, maps, field-books, registers and lists made or kept under the Act. The Land Records Manual is a collection of rules framed under Section 234 of the Land Revenue Act as well as the instructions issued by the State Government in relation to various matters. Chapter V of Part I of the Manual relates to the map and khasra. Chapter VIII deals with the Khatauni. The preface to the Manual shows that Chapters III to XI of Part 1 of the Manual have been framed under Clause (d) of Section 234, Land Revenue Act. So, the rules contained in Chapters V and VIII of Manual are statutory rules made under Section 234. Chapter V dealing, inter alia with Khasra consists of paragraphs 55 to 102. Chapter VIII relates to Khatauni and consists of Paragraphs 121 to 160. Paragraph 60 provides that Khasra shall be prepared in form No. P-3. Form P-3 consists of 21 columns. Column No. 5 is meant for the name of the cultivator. In column No. 6 are to be entered the names of sub-tenants or tenants of Sir, or tenants of permanent tenure-holders, or rent free grantee or grantees at a favourable rate of rent, or _occupiers of land without the consent of the persons entitled to admit such subtenants with cost and rent if charged. Column No. 21 is the remarks column. Paragraph 71 provides for entry in column No. 5. in it, not only the name of the cultivator, but also the 'nature of his rights, i.e., the class of his tenure, and. where necessary, the term of cultivation have to be entered. These entries are to be made in accordance with paragraphs 72 to 86, 124 and 124-A and 126 to 129, as the case may be. Paragraphs 124 to 129 are in Chapter VIII dealing with Khatauni. It is evident that Khasra has to be in consonance with the Khatauni in this respect. Paragraph 78 deals with the cultivation of Thekedars and mortgagees of proprietor's interest. Under it, if a mortgagee is in possession, he is to be shown as Kast Murtahin Paragraph 79 provides for usufructuary mortgagees of tenants
18. Paragraph 124 provides for the arrangement of holdings in the Khathuni in Agra, while Paragraph 124-A deals with arrangement of land in the Khatauni in Oudh. A perusal of Paragraph 124 shows that it divides land into 20 categories depending on the nature of the rights possessed by the cultivators. Class (1) is of sir of landlords. Class (2) deals with Khudkasht Class (2-A) relates to Thekedars or mortgagees' cultivation. Classes (3) to (9) refer to different kinds of tenants. Class (10) relates to land held by non-occupancy tenants. Class (10-A) provides:--
'(10-A) Occupiers of lands without title when there is no one already recorded in column 5 of the Xhasra.
Note-- When no rent has been fixed and any person has been admitted to the occupation of land or permitted to retain possession of land by any one having a right to admit or permit him, with the intention that a contract of tenancy should thereby be effected, he is a hereditary tenant and his proper place is under class (3). But before any person who claims to be a tenant of this description is entered as hereditary tenant, the Patwari shall record the statement of the zamindar and such person in his diary and obtain their signatures and make ths entry under class (8) only if the case is undisputed. If the zamindar denies admission to temncy or recognition of such person as tenant, such person shall be entered under class (10-A).'
Class (11) consists of rent free grantees while class (12) deals with grove-holders. Class (16) is of tenants under permanent tenure holders. Class (17) is of tenants of Sir and tenants of Khudknsht. Class (18) deals with tenants under rent free grantees. Class (18-A) is of lessees under Section 252, U. P. Tenancy Act.
19. Class (19) is of sub-tenants, while class (20) is:--
'(20) Occupiers of lands without the consent of the person if any entered in column 5 of the Khasra.
Notes -- (1) When no rent has been fixed and any person has been admitted to the occupation of land or permitted to retain possession of land by a tenant, with the intention that a contract of sub-tenancy should thereby be affected, be is a sub-tenant and his proper place is under class (19). But before any person, who claims to be a sub-tenant by virtue of such admission without rent or recognition as sub-tenant, is entered as sub-tenant, the patwari shall record the statements of the tenant and such person in his diary and obtain signatures and make he entry under class (19) only if the case is undisputed. Tf the tenant denies admission to tenancy or recognition of such person as sub-tenant, such person shall be entered under class (20).
(2) The above classification applies to the whole of the Agra Province except the areas specified in the first schedule of the Land Revenue Act, 1901.'
20. The arrangement of land in, Oudh is similar except that class (5-A) is equivalent to class (10-A) in Agra and class (12) is equivalent to class (20) mentioned above.
21. Paragraph 121 provides that the Khataum shall be prepared in form P-11. This form consists of 9 columns, of which column No, 2 deals with the name of the cultivator.
22. It will be seen that there is a] detailed provision for specifying the nature of the tenure under which a person is cultivating. The classification includes 'occupiers of land'. Classes (10-A) and (20) deal with them. In the context of this classification, it is apparent that the occupiers of land mentioned in classes (10-A) and (20) are those who are not the holders of any recognised enure. Such occupiers of land without title are recoreded in the khasra either in column 6 or in ths remarks column thereof, under paragraphs 84, 85 and 87 of the Manual. These paragraphs contain detailed instructions for dealing with various kinds of situations in relation to such persons.
23. These provisions clearly indicate that the entry as mortgagee is not intended to refer to occupants who are treated as a claw by themselves consisting of persons who are occupying land without title or without the consent of the person whose name is entered in column 5 of the Khasra. In Radha Kishori v. Joint Director of Consolidation, U. P. 1972 All WR (HC) 425 a bench held that an entry of Tenant of sir is not within Section 20 (b) (i).
24. Section 14 deals specifically with mortgagees of proprietary interest. Section 21 provides for mortgagees of tenants. Sections 18 and 19 confer rights on different kinds of tenure-holders. Section 20 (a) confers Adivasi rights on tenants of sir and sub-tenants. All these provisions will become otiose, if it is held that record as a tenant or sub-tenant, or mortgagee etc., is to be read as a record of occupant. When Section 20 (b) (i) speaks of recorded occupant under Sections 28 and 33 of the Land Revenue Act, it refers and points to occupiers of classes (10-A) and (20) only, which are dealt with in Paragraphs 84 to 87 of the Manual
25. In Amba Prasad's case AIR 1965 SC 54, the entry was as 'Qabiz' in the remarks column. It was held that the entry was made in accordance with Paragraph 85 of the Manual. The entry was thus clearly one of an occupant. The Court, however, observed that as between a proprietor and a tenant, the tenant, between a tenant and a sub-tenant, the sub-tenant and between a sub-tenant and a person recorded in the remarks column as 'Davedar Qabiz, the latter are the occupants That may be so But the Court did not go on to hold that the entry as tenant or sub-tenant would be a record as an occupant. The Court was emphasising the meaning and significance of the word 'occupant', and not of the phrase 'recorded as occupant'. A person in cultivatory possession may, in ordinary parlance, be an occupant of the land. But in the contest of the manual, that is a far different thing from being recorded as occupant. The phrase 'recorded as occupant' has, in view of the provisions of the Land Revenue Act and the Land Records Manual, a technical significance. We are aware that in Chobey Sunder Lal v. Sonu, 1967 All LJ 960 = (AIR 1969 All 304), a Full Bench of our Court interpreted this observation in Amba Prasad's case a little different in relation to an entry of sub-tenant. But, we are not disposed to refer the matter to a larger bench, because, in the present case, the question of interpretation of an entry as sub-tenant is not involved.
26. The respondents were recorded in class (2-A) in the Khatauni and in column 5 of the Khasra of 1356 F., that is as mortgagees. This record was not in Jaw the record as occupant within meaning of Clause (b) (i) of Section 20 They did not acquire Adhivasi rights thereunder
27. The third point that the entry should be deemed corrected by the decree in the suit under Section 183, has no substance We agree with the reasoning and conclusions of the learned Single Judge on this p int
28. It appears that at first objections were filed under Section 12 (2) of the Consolidation of Holdings Act. After the publication of the statement of principles under Section 19, these proceedings were stayed, and the same question of title was taken up in proceedings under Section 20. Learned counsel urged that these provisions were void, because the earlier proceedings under Section 12 were not liable to be stayed. We are not inclined to entertain this point, because it was never taken at any earlier stage, before the Consolidation authorities. The respondents having had their innings on the merits are, in our opinion, not entitled to turn round and take this technical plea for the first time in the writ petition.
29. In the result, the appeal succeeds and is allowed with costs. The judgment of the learned Single Judge is set aside, and the orders of the Consolidation authorities are all quashed. It is directed that the names of the respondents shall be expunged, and the appellant will be recorded as a sirdar over the plots in dispute.