MOIN UDDIN Vs. DY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) This special appeal is directed against the judgment of a learned single Judge dismissing a writ petition.

(2.) The writ petition was directed against the judgment of the Deputy Director of Consolidation upholding the right of the Respondents to be the sirdars of the plots in dispute. The plots in dispute were at one time the sir and Khudkasht of Kulsum Bibi, a widow. In 1930 she executed a waqf. alalaulad and thereafter she became an exproprietary tenant of the plots in dispute. In 1940 she executed a Theka in favour of Abdul Hasan for five years. This was renewed for another five years in 1945. Abdul Hasan was authorised to cultivate the plots OF to sublet them. In his turn Abdul Hasan engrafted the predecessor-in-interest of the contesting Respondents on the plots. At first they cultivated the plots on Batai but in 1949 they executed Qabuliats in favour of Abdul Hasan agreeing to pay cash rent. This transaction was in law a lease by a sub-tenant, which was prohibited by Sec. 39 of the U.P. Tenancy Act.

(3.) In due course consolidation proceedings commenced. In the basic year the contesting Respondents, namely, the sub-tenants of Abdul Hasan, were recorded as sirdars of the plots in dispute. The Appellants, who were the grandsons of Kulsum Bibi, filed objections, claiming to be Sirdars. Their case was that Smt. Kulsum Bibi had become an exproprietary tenant. On abolition of Zamindari she became a sirdar. The status of the Respondents was merely that of asamis, because they were lessees of a disabled person. The findings ate that the plots in dispute were sir and Khudkasht of Kulsum Bibi. Even after the waqf deed the plots continued to be recorded as such. The Thekedar sublet the plots to the Respondents, and since 1949 he was not in possession, and he did not claim or assert any right over the plots. The contesting Respondents remained in cultivatory possession throughout. Kulsum Bibi died in 1958. She did not challenge the title of the contesting Respondents in her lifetime. The objectors did not also file any suit for the ejectment of the Respondents. Sec. 39 of the U.P. Tenancy Act barred sub-letting by a subtenant. The possession of the Respondents was hence adverse even against Smt. Kulsum Bibi. The contesting Respondents were in cultivatory possession in 1356 Fasli as well as in 1359 Fasli. They became Adhivasis and then sirdars. In any event, they being trespassers in possession, they matured title as sirdars.