Judgment

FATHIMA BEEVI, J.:- This appeal is directed against the judgment dated 28-9-1981 of the High court of Allahabad in Second Appeal No. 1874 of 1970: (reported in AIR 1982 NOC 32).

2. The plaintiff-respondent filed the suit alleging inter alia that before enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, hereinafter referred to as "Zamindari Abolition Act", defendants Nos. 3 to 25 were the tenants-in-chief of the plots in suit and his father Munni Lal was their subtenant, that Munni Lal died in 1951 leaving behind four sons including the plaintiff respondent; that remaining three brothers of the plaintiff had separated and. consequently the plaintiff became sole-tenant; that Munni Lal was recorded occupant in Khasra 1356 Fasli and in cultivatory possession in Khasra 1359 Fasli and consequentially he acquired adhivasi rights and then sirdari rights, the rights of defendants 3 to 25 extinguished under Section 240-A of the Zamindari Abolition Act; that in 1968, however, defendants Nos. 1 and 2 obtained fictitious sale deed from defendants Nos. 3 to 25 in respect of the plots in suit. They had started interfering with the plaintiffs possession and, hence, the plaintiff respondent filed the suit for permanent injunction.

3. Defendants Nos. 1 to 3, 5, to 7, 13 and 14 contested the suit. They denied the plaintiffs claim and disputed that the plaintiffs father, Munni Lal, was the sub-tenant or that he acquired adhivasi rights or sirdari rights. It was further pleaded that the plaintiff or his father was never in possession of the plots in suit. The suit for permanent injunction was dismissed.

4. Against the judgment of the trial court, the plaintiff-respondent preferred Appeal No. 321 of 1969 which was dismissed by the first appellate court. The Second Appeal No. 1874 of 1970, filed before the High Court of Allahabad against the judgment of the first appellate court, was allowed on 28-9-1981.

5. The respondent based his title on three grounds, namely, (1) that his father Munni Lal was recorded occupant in Khasra 1356 Fasli (beginning from 1-7-1948 and ending with 30-6-1949) and became adhivasi under Section 20(b)(i) of the Zamindari Abolition Act; (2) that his father Munni Lal was in cultivatory possession of the disputed land in Khasra 1359 Fasli (beginning from 1-7-1951 and ending with 30-6-1952) and consequently he became adhivasi under Section 3 of the UP. Land Reforms (Supplementary) Act, (UP. Act No. 31 of 1952); and (3) that his father Munni Lal was sub-tenant over the disputed land and therefore, he became an adhivasi and consequently the sirdar under the provisions of the Zamindari Abolition Act.

6. The trial court and the first appellate Court recorded finding of facts to the effect that the plaintiffs father Munni Lal was not in cultivatory possession of 1359 Fasli and therefore he could not get adhivasi rights under Section 3 of the U.P. Land Reforms (Supplementary) Act, 1952. Both the courts further observed that the plaintiffs father was not a recorded occupant within the meaning of Section 20(b)(i) of the Zamindari Abolition Act, as the entry of his name in column 6 of the Khasra 1356 Fasli was suspicious, not being supported by Khatauni entry. It was further held that as his father died in 1951 before the date of vesting i.e. 1-7-1952 (when the zamindari was abolished in U.P. under the provisions of Zamindari Abolition Act), the plaintiff is not entitled to the benefit of becoming adhivasi under Section 20(b)(i) of the Zamindari Abolition Act.

7. The trial court and the first appellate court also found that no contract or subtenancy between Munni Lal and the pro forma defendants was proved. The High Court held the view that the approach made by the courts below was wrong. The question that arose for decision in the suit was whether the appellants father was a sub-tenant? The learned single Judge noticed that if Munni Lal was a sub-tenant, his heir being the adhivasi and the appellant must, therefor