GUDDAN Vs. BOARD OF REVENUE U P

JUDGEMENT

(1.) THE dispute in this peti tion relates to an agricultural holding. The petition arises out of a suit institut ed in the revenue Court by the peti tioners 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 mort gagees and that the respondents second set granted a lease of the plots to the res pondents third set. It was alleged that the lease was fictitious and that the respondents second set, the mortgagees, were in actual posses sion and that they accordingly became Asamis. The respondents third set con tested 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 Ad ditional Commissioner dismissed the ap peal 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 peti tioners. Hence this petition.

(2.) IT has been found that the peti tioners were originally the fixed-rate ten ants of the plots. It has also been found that the predecessor-in-interest of the res pondents 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 res pondents 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 dis puted 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. Zamlndari 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 posses sion and that accordingly he would become 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, over ridden by the express language of Sec tion 20 (b) of the U. P. Zamindari Aboli tion and Land Reforms Act.

(3.) 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 thie 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.