SUBHANA Vs. DY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) THIS ap peal arises out of consolidation proceed ings. Mohammad Ahmad respondent No. 3, filed a suit for declaration under Section 63. U. P. Tenancy Act against the appellant Subhanna on the 14th June. 1949. The parties filed a compro mise. On the basis of that compromise, the suit was decreed on the 18th June, 1949. declaring the appellant Mohammad Ahmad to be khudkasht-holder of the plots in dispute. Subhana made an ap plication for review denying the com promise, but that application was dis missed on 16th July, 1951. On 7th Sep tember. 1950 Mohammad Ahmad filed a fresh suit under Section 180 of the U. P. Tenancy Act against Subhana on the al legation that he had trespassed over the land in dispute after the passing of the compromise decree. This suit was dis missed by the trial Court but on appeal it was decreed on 17th September. 1962. In execution of that decree possession was delivered to Mohammad Ahmad on 22nd October. 1962. Subhana. however, filed a second appeal, which was pend ing before the Board of Revenue when consolidation proceedings commenced.

(2.) SUBHANA filed an objection in the consolidation proceedings claimina to have -become sirdar of the land in dispute. Maqbool Ahmad and Mohammad Ayub. respondents 3 and 4 also filed an objection claiming to be mutated in place of Mohammad Ahmad by vir tue of a sale deed dated the 22nd Nov ember 1963 executed by Mohammad Ahmad in their favour. The Consolida tion Officer upheld the claim of Sub hana. On appeal, the Settlement Offi cer repelled the claim of Subhana and upheld the title of Mohammad Ahmad as khudkast-holder. He directed that his vendees Maqbool Ahmad and Mohammad Ayub be recorded as bhumi-dhars. Subhana filed a revision before the Deputy Director. Consolidation, who held that Subhana had become bhumi-dhar of the land in dispute and was en titled to be recorded as such. Aggriev ed. Maqbool Ahmad and Mohammad Ayub filed a writ petition in this Court.

(3.) IT was urged before the learn ed Single Judge that in view of the fact that Subhana had been in continuous possession till the execution of the de cree passed in the suit under Section 180 of the U. P. tenancy Act. and delivery of possession on the 22nd October, 1962 to Mohammad Ahmad, he (Subhana) by this time had become a hereditary tenant. The learned single Judge repel led this contention on the finding that since the suit for eiectment had been instituted within limitation no right could accrue to Subhana merely because he had been in possession during the pen dency of that suit.