JUDGMENT S.U. Khan, J.
1. This writ petition arises out of consolidation proceedings and involves question of title.
2. Agricultural land in dispute is comprised in Plot No. 672 /5 area 4 bigha. In the basic year, petitioner was recorded Bhumidhar of the land in dispute and original contesting respondent No. 4 Ram Charitra as occupant (At least until 1370 fasli (1962-63 A.D) name of Ram Charitra was recorded as occupant in the revenue records). Objections were filed before C.O. I, Gyanpur by the petitioner. C.O through order dated 23.9.1968, decided the matter in favour of respondent No. 4 and directed that the name of petitioner shall be deleted from the revenue records and name of respondent No. 4 shall be entered as Sirdar. The objections had been registered as Case No. 7356 (by the same objections matter pertaining to plot No. 767/2 was also decided however in this writ petition the said plot is not involved as matter in respect thereof was decided in favour of the petitioner). Against the order passed by C.O. appeal was filed before the S.O.C being Appeal No. 4439 of 1968. ASOC, Varanasi dismissed the appeal on 27.10.1970. Against the said order, revision No. 728/ 11505 Bansh Narain v. Ram Charitra was filed which was dismissed on 10.9.1975 by D.D.C Varanasi Camp Gyanpur hence this writ petition. (Appeal and revision against order of C.O in respect of other plot being plot No. 767/2 were filed by respondent No. 4, which were dismissed).
3. Legal question involved in this writ petition is as to whether tenant/ sub-tenant from mortgagee gets any right in the agricultural property or not. The facts of the case are that Mata Avtar who was ancestor of the petitioner executed a mortgage with possession of the agricultural land in dispute on 2.2.1921 in favour of Gajadhar. After the death of Gajadhar his son Chandrika Prasad became the mortgagee. Chandrika Prasad in the year 1956 transferred his mortgagee rights in favour of Ram Prasad and Ram Khelawan. In the same year i.e. 1956, petitioner redeemed the mortgaged property in dispute from Chandrika Prasad and Ram Prasad through registered deed executed by them (It appears that Ram Khelawan father of the petitioner had died meanwhile). In the mortgage deed of 1921, Mata Avtar mentioned that the mortgaged property was his occupancy tenancy (Dakhildar). It has come in para 6 of the judgment of the Appellate Court that on the redemption deed respondent Ram Charitra signed as witness.
4. After discussing various provisions of U.P.Z.A.L.R Act thoroughly Supreme Court in Chandrika Prasad v. Pullu A.I.R 2000 SC 1785 : 2000(4) A.L.R 268 (S.C) has held that mortgagee of agricultural land has no right to sublet the same and any person who gets possession from mortgagee is not entitled to any benefit. It has further been held that mortgagee with possession could be treated to be Asami and any person sub-tenant in the real sense of the term and a person who has been given possession of the agricultural land from mortgagee in possession is merely a licencee.
5. In this regard, reference may also be made to another authority of the Supreme Court reported in Thakur Prasad v. Raj Koran AIR 2003 SC 1375. The said case like the present one also arose from Varanasi, which has got some special features, in view of the fact that it was a princely State and Zamindari in Varanasi was abolished in 1953-54. In the said authority it was held that even mortgagee did not have any right after redemption of mortgage (paragraph 16,18 and 19).
6. Learned Counsel for the respondent has also argued that mortgage of occupancy tenancy was not permissible. However, this point was not raised before any of the courts below and before the courts below all the parties accepted the mortgage of 1921 to be valid. Even otherwise the argument is not tenable. Learned Counsel for the respondent in support of his argument has placed reliance upon an authority of Supreme Court reported in Ram Adhar Singh v. Bansi AIR 1987 DV 987 : 1987 R.D 132. In that very authority, it has been held that usufructuary mortgage of an occupancy holding was not valid as a mortgage with all its incident and subject to the provisions of law relating to usufructuary mortgage but was valid only in qualified sense i.e. in the sense of subletting with the covenant that the mortgagor will not be entitled to recover possession without payment of the mortgage money. Supreme Court in the said authority referred to Section 21(1)(d) of U.P.Z.A.L.R Act. Section 21(1)(d) refers to mortgagee in actual possession from a person belonging to any of the classes mentioned in clause (b) to (e) of Section 18(1). Section 18(1)(d) mentions land held by occupancy tenant, hereditary tenant and tenant on patta Dawami or Istamrari. The only difference between the aforesaid authority of the Supreme Court reported in Thakur Prasad and in the instant case is that in the said authority mortgagor was rent free mortgagee covered by Section 18(1)(c) while in the instant case mortgagor was occupancy tenant covered by section 18(1)(d)(i). Other authority cited by learned Counsel for the respondent is Wali Mohammad v. Ram Surat . Both the authorities of Wali Mohammad and Ram Adhar have been considered by the Supreme Court in the aforesaid authority of Chandrika Prasad.
7. In view of the above, judgments passed by all the three courts below are liable to be set-aside as they are patently erroneous in law.
8. Accordingly writ petition is allowed. All the impugned judgments and orders are quashed.
9. Let the name of petitioner be recorded / continued as Bhoomidhar in the revenue records. Name of original respondent No. 4 (after his death his legal representative) should be scored off from the revenue records.