OAK, J. : This petition under Art. 226 of the Constitution arises out of a proceeding under para 6 of Sch. V to U.P. Act No. 1 of 1951.

2. Jhaman Lal and two others are petitioners before this Court. Girdhari Lal and four others are respondents Nos. 2 to 6. The dispute between the parties relates to 32 plots situate in village of, district Mathura. At one time one Syed Mahammad was the tenant of these 32 plots. He migrated to Pakistan. The plots were declared as evacuee property. The evacuee property Department allotted the plots to respondent Nos. 2 to 6. The petitioners claim that they are Adhivasis of these 32 plots. So on 17-11-1954 they filed an application under S. 232 of the Act to recover possession over the plots. They claimed Adhivasi rights under Section 20(b)(i) of the Act on the ground that, they were recorded as 'occupants' in the village records for 1356 fassil. The revenue Court directed the petitioners to get a declaration of their alleged Adhivasi rights from the Custodian under para. 6 of Sch. v to the Act. In pursuance of that direction, the petitioners filed on 25-7-1956 an application in the Court of the Assistant Custodian of Evacuee Property, Agra Circle for the necessary declaration. The application was opposed by the allottees, Girdhari Lal and others. The Assistant Custodian was satisfied that the petitioners were Adhivasis of the 32 plots. A declaration was granted accordingly. Respondent Nos. 2 to 4 filed a revision. The revision was allowed by the Deputy Custodian General of Evacuee Property, Mussoorie by his order dated 23-6-1958. He held that, for various reasons, the petitioners' claim to Adhivasi rights could not he accepted. This writ petition by Jhamman Lal and others is directed against the order of respondent no. 1 dated 23-6-1958.

3. When the writ petition came up before a learned Single Judge of this Court, be noticed a conflict between two decisions by different Benches of this Court, in view of that conflict, he referred the case to a larger Bench.

4. The 32 plots in dispute may be divided into two groups. The first group consists of 13 plots. At one time the petitioners surrendered these plots in favour of the then zamindar. The remaining group consists of 17 plots. The petitioners appear to have been ejected from these 17 plots in the year 1953 or 1954.

5. Respondent No. 1 rejected the petitioners' claim to 15 plots on the ground of the surrender. It was held that, in view of the surrender, any rights under Sec. 20(b)(1) of the Act should be deemed to have been extinguished. Mr. H.C. Sharma appearing for the petitioners challenged that view.

6. He relied upon a decision by a Division Bench of this Court in Dwarika Prasad v. Board of Revenue, 1957 All LJ 593. In that case there was a compromise between the parties in a suit under Sec. 180, U.P. Tenancy Act. The compromise was dated 19-2-1951. It was agreed that the respondents should surrender certain plots to the applicants, it was held by the Bench that, notwithstanding the compromise dated 19-2-1951, it was open to the respondents to recover those plots on an application under Sec. 232 of the Act.

7. A different view was, however, taken by another Division Bench of this Court in Jain v. Board of Revenue, Civil Misc. Writ No. 2023 of 1953, D/-22-07-1958 (All). In that case a party had voluntarily surrendered possession over a plot in the year 1359 fasil, it was held that be was thereby precluded from recovering that plot under Sec. 232 of the Act. The judgment is brief, and makes no reference to the previous judgment of another Bench dated 9-4-1957 in Dwarika Prasad's case, 1957 All LJ 593. Different considerations arise depending on whether such a surrender took place before or after the date of vesting (1-7-1952). If an Adhivasi surrenders his rights after the date of vesting, that would be a good ground for not recognising the Adhivasi rights after such, surrender. But bearing in mind that the Adhivasi rights did not accrue ti