JUDGMENT S.U. Khan, J.
1. These writ petitions arise out of consolidation proceedings and involves' question of title. All the three courts i.e. Consolidation Officer (CO), Settlement Officer Consolidation (SCO) and Deputy Director of Consolidation (DDC) decided the matter against the petitioners.
2. One Govind Kunwar was tenant of the plots in dispute. She sublet the plots to the petitioners. She died on 7.9.1949 (1957 fasli) without leaving any heirs. By two lease deeds dated 11.9.1949 and 14.9.1949, Zamindar let out the plots in dispute to the contesting respondents. On 21.7.1951 the contesting respondents / new lessees filed two suits under Section 180 of UP. Tenancy Act 1939 for eviction of the petitioners from the plots in dispute The suits were dismissed by the trial court however Additional Commissioner in First Appeal decreed the suits. The said judgment was maintained by the Board of Revenue. Writ petitions filed by the petitioners in this Court were also dismissed by Single Judge. Against the said decisions, petitioners filed two Special Appeals being Special Appeal No. 1099 of 1967 and Special Appeal No. 1100 of 1967. Special Appeals were allowed on 10.5.1973 i.e. after filing of the instant writ petitions, which were filed in January 1973.
3. The Consolidation Courts on the basis of the aforesaid judgment of Additional Commissioner as maintained by Board of Revenue and Single Judge of this Court in writ petition, decided the matter in favour of the contesting respondents.
4. The cases before CO Kishmi, Mainpuri were registered as Case Nos. 1299 and 8 others and were decided on 20.12.1971. 12 Appeals were filed against the said order being appeal No. 479 and others. S.O.C Mainpuri dismissed, nine appeals filed by the petitioners through judgment and order dated 6.4.1972. Nine revisions being Revision Nos. 2191 and others were filed, which were also dismissed by D.D.C Mainpuri on 30.8.1972, hence these writ petitions.
5. After decision of the aforesaid special appeals copies of their judgments were also filed in these writ petitions along with supplementary affidavit.
6. In the judgments of the Special Appeals, two questions were considered namely:
(1) That by virtue of the provisions of Section 295-A of the UP. Tenancy Act the petitioners who were sub-tenants at the time when the U.P. Tenancy (Amendment) Act No. 10 of 1947 was enacted were entitled to retain possession as sub-tenant for the period of five years from the date of enforcement of that Act and were not liable to eviction within this period of five years and (2) That since the petitioners had been inducted as subtenants by a tenant who was a disabled person they on the date of vesting became Asami under Section 21 (h) of U.P.Z.A.L.R Act(Para 3).
7. In the same para of the judgment of Special Appeals, it was held that "so far as the second question is concerned the matter is concluded against the appellants by the decision of full bench of this Court in Smt Maya v. Raja Dulajji and Ors. 1970 A.L.J. 476. It is therefore necessary only to examine first question raised".
8. It may be mentioned that full bench authority of Smt. Maya was later on overruled by a five judges full bench of this Court reported in Dwarika Singh v. D.D.C. 1981 RD 166 and the Supreme Court in R. Singh v. D.R. Singh 1981 RD 284 approved the five judges full bench decision of Dwarika Singh.
9. I am of the opinion that even though full bench of Smt Maya has been overruled still on the facts and circumstances of the case provisions of Section 21(h) are not applicable. However, as the decisions of Special Appeals operate as res judicata in between the parties hence I need not consider that question. Even learned Counsel for the petitioner during his argument has not based the claim of the petitioners on Section 21(h) of U.P.Z.A.L.R. Act.
10. Learned Counsel for the petitioners has argued that petitioners are entitled to continue in possession either on the basis of Section 20(b) or in the alternative under Section 21(1)(c) of UPZALR Act. In this regard, it is important to note that in the Special Appeals and before the revenue courts or Single Judge of the High Court whose decisions were challenged in the Special Appeals no reliance was placed upon the said provisions. This plea is therefore barred on the principles of constructive res judicata.
11. Even otherwise, in my opinion the aforesaid two provisions are not applicable to the facts of the instant case. By virtue of Section 20(b) of the Act, a person who was recorded as occupant in Khasra or Khatauni of 1356 fasli (1.7.1948 to 30.6.1949) prepared under Section 28 and 33 of U.P. Land Revenue Act 1901 shall be called Aadivasi and be entitled to take or retain possession of the said land. Interpreting the said provision, Supreme Court in several authorities has held that even incorrect entry in Khasra or Khatauni of 1356 Fasli is sufficient to confer right under the said sub-section upon the recorded occupant. However, it has been further held that if the entry is fraudulent or utterly illegal then benefit under the said sub-section will not be available to the recorded occupant. In this regard reference may be made to the authority of the Supreme Court reported in Chandrika Prasad v. Pullo AIR 2000 SC 1785. In the said authority several other earlier authorities have also been noticed. In the instant case, proceedings for eviction had been initiated before enforcement of U.P.Z.A.L.R. Act hence decision in favour of plaintiff in the said proceedings even if decided after enforcement of U.P. Z.A.L.R Act would relate back to the date since when occupation became unauthorized even though eviction for a certain period was not possible. Suit for eviction filed by the contesting respondents against the petitioners on 21st July 1951 were dismissed only on the ground that when suits were filed, liability to eviction had accrued but it could not be enforced for a certain period. The effect of the judgment of Special Appeal is that for five years from the date on which U.P. Tenancy (Amendment) Act, 1947 was passed, petitioners could not be evicted, however, possession of the petitioners became unauthorized from the date of death of original tenant and fresh lease in favour of the contesting respondents. In view of this Section 20(b) was not attracted to the facts of the case.
12. Under Section 21(1) (c) of the Act any person who on the date immediately preceding the date of vesting occupied or held the land as a sub-tenant referred to proviso to Section 27(3) U.P. Tenancy (Amendment) Act 1947 shall be deemed to be Asami. By the same amendment Act 1947. Section 295-A was added in UP Tenancy Act, 1939 and the said section referred to the proviso introduced by the same amendment Act to Section 27 (3) of U.P. Tenancy Act 1939. Section 295-A was thoroughly considered in the judgment of Special Appeals. Combined effect of proviso to Section 27(3) and introduction of Section 295-A to U.P. Tenancy Act 1937 and Section 21 (1) (c) of U.P. Z.A. & L.R. Act is that sub-tenants like petitioners became Asami for five years and beyond five years they did not retain any right.
13. In the judgment of the Special Appeals, it had categorically been held that petitioners were liable to eviction only after five years from the date of enforcement of U.P Tenancy (Amendment) Act 1947 and suit for eviction filed by the contesting respondents was liable to be dismissed only on the ground that it had been filed before expiry of the aforesaid period of five years. Consolidation proceedings started after five years from the date of enforcement of the said Amendment Act hence the orders of consolidation courts which have got the effect of eviction of petitioners are perfectly correct and in accordance with the judgment of the Special Appeals instead of being contrary to the said judgment.
14. Accordingly there is no merit hence these writ petitions are dismissed.