JUDGMENT :- This appeal arises out of consolidation proceedings. Mustafa Khan the appellant was the occupancy tenant of the plots in dispute. The appellant instituted a suit under Section 180, U. P. Tenancy Act, for ejectment of one Najib Khan on the allegation that Najib Khan was a trespasser. The suit was decreed on October 23, 1944. In execution of the decree, possession was restored to the appellant on August 26, 1945.

2. Soon thereafter, two sons of Najib Khan, namely Mahboob Khan, respondent No. 4 and Vakil Khan, father of respondents Nos. 5 (I) and (II), filed an objection under Order 21, Rule 100, Civil Procedure Code, claiming that they were in possession of the plots in their own rights and they were illegally dispossessed in execution of the decree. They claimed that they were the donees of the mortgagee of the proprietary rights in relation to the plots in dispute and were in possession as such. The objection was allowed by the Execution Court, and in consequence, the two objectors were put in possession on June 19, 1946.

3. Mustafa Khan, the appellant, then filed a suit under Section 183, U. P. Tenancy Act, against, inter alia, the objectors. The suit was decreed on May 31, 1949. In execution of the decree Mustafa Khan appellant was put in possession of the plots on November 13, 1949. Evidently, between 19th June, 1946 and 13th November, 1949 Mahboob Khan and Vakil Khan were in possession. They were recorded in the revenue papers of 1356 Fasli. On that basis the two objectors moved an application for restoration of possession under Section 232 of the Zamindari Abolition Act. They claimed that they had acquired adhivasi rights on the grounds that they were recorded occupants in 1356 Fasli. During the pendency of this application the plots in dispute came under consolidation operations with the result that the proceedings were stayed. Mahboob Khan and Vakil Khan filed an objection in consolidation proceedings and claimed that they had become adhivasis because they were recorded as occupants in 1356 Fasli. The Consolidation Officer upheld their claim. His finding that the two objectors had become adhivasis was upheld in appeal as well as in revision. The appellant challenged these orders in a writ petition which, however, failed and was dismissed, leading to the present appeal.

4. The principal submission of the learned counsel for the appellant was that Mahboob Khan and Vakil Khan were intermediaries within meaning of Explanation IV to Section 20 and hence no adivasi rights accrued to them. In the alternative, learned counsel submitted that the objectors were not in law recorded as occupants in 1356 Fasli. They did not become adhivasis. It was also urged that the decree in the suit under Section 183, U. P. Tenancy Act, will be deemed to have corrected the entry of 1356 Fasli within meaning of Explanation III to Section 20 of the Act.

5. The first submission is concluded by a Division Bench of this Court in Bhagwati v. Board of Revenue, 1959 All LJ 479. In that case, the Bench held that a mortgagee is not an intermediary according to the definition of the word as given in the Act because he occupies the land on behalf of the mortgagor as security for the money advanced by him. He does not hold it in any other capacity. This Bench decision is binding on us.

6. The next point is if the mortgagees were recorded as occupants in 1356 F. within meaning of Section 20 (b) (i) of the Act.

7. It appears that one Smt. Mashihan Bibi was one of the mortgagees of proprietary rights in respect of the plots in dispute. She gifted her mortgagee rights to Mahboob Khan and Vakil Khan (vide paragraph 3 of the writ petition). These averments were admitted in the counter-affidavit. The findings of the authorities below are also to that effect. In 1356 F. Mahboob Khan and Vakil Khan were entered in Khatauni under clause (2-A), which is meant for mortgagees or Thekedars. In the Khasra, they were recorded in column 5 meant for tenure-holders etc

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