A mortgagee in possession of Sir land does not acquire Adhivasi rights under Section 20 of the U. P. Zamindari Abolition and Land Reforms Act, 1950.

This is a plaintiffs second appeal in a suit for injunction restraining the defendants from interfering with the plaintiffs possession over the plot of land in suit with the declaration that the plaintiffs were Bhumidhars thereof, and, in the alternative, in case the Court found that the plaintiffs were out of possession of any part or portion of the land in suit, for possession over the same.

The suit was instituted in the year 1956. There were two sets of defendants. The plaintiffs claimed that the defendants second set were the Sir-holders of the land in suit. They mortgaged it with possession on the 21st day of Jeth of the year 1251-F. Equivalent to the year 1844-AD to the predecessor-in-interest of the plaintiffs who, in their turn, mortgaged it with possession with the predecessor-in-interest of the defendants first set by two deeds of mortgage, dated the 21st day of Sawan of the year 12 89-F and 6th day of Magh of the year 1291 F. A further loan of Rs. 67/- was taken by the plaintiffs predecessor-in- interest and tacked on to the said mortgagee by a bond dated the 28th July, 1900. The plaintiffs became the Sir-holders by lapse of time when the limitation for redemption of the mortgage made by the defendants second set in their favour expired in the year 1904 and on the 9th June 1952 a few days before the date of vesting fixed by the U. P. Zamindari Abolition and Land Reforms Act, the plaintiffs redeemed the mortgagees and the tacking on bond from the defendants first set and also obtained possession over the land in suit, the same day. It is witnessed by the Bharpai endorse ments on the back of the tacking on bond of 1900 and the two mortgage bonds of 1289 and 1291-F and all the three of them were returned in original to the plaintiffs. The plaintiffs filed the original mortgage bond of 1844 AD in their favour (Ext 4) in the mortgage bonds of 1289-F (Ext. 5), 1291-F (Ext. 6) and the tacking on bond with the Bharpai endorsement on the back (Ext. 7) and claimed that on the abolition of the zamindari they became the Bhumidhars of the land in suit and were in possession on the date of vesting and thereafter, but the deiendants disturbed their possession and threatened to dispossess them on the basis of the entries upto 1359-F in their favour on the basis of the mortgage under which they were in possession, but were wrongly recorded as sub-tenants. . The defendants first set, namely, Chandrika Pandey defendant No. 1 and Smt Duiari defendant No. 2 alone contested the suit by filing two separate written statements. They completely denied the mortgage in their favour or its redemption and instead claimed Adhivasi rights on the basis of the entries in 1350-F and 1359-F in their favour.

The following eight issues were framed on the 10th September, 1959 by thetrial Court.

1. Whether plaintiffs are Bhumidhars of the plots in suit and are in possession as such ?

2. Whether the defendant No. 1 was adhivasi of plot No, 313/2 in suit on 20 10-1954?

3. Whether the defendant No. 1 is Sirdar of the plot No. 313/2 ?

4. Whether defendant No. 2 was adhivasi of plot No. 313/1 and 312 in suit ?

5. Whether the defendant, No. 2 is sirdar of plot No. 312 ?

6. If suit is barred by time ?

7. Is the suit under-valued and Court fee paid insufficient ?

8. To what relief, if any, are the plaintiffs entitled ?

On 14th October, 1959, the seventh issue was given as not pressed and a reference was made to the revenue Court for findings on issues Nos. 2, 3, 4 and 5. It was later on found that, in view of a Full Bench decision of this Court, no reference could have been made to the revenue Court after the 7th November, 1958 and the reference made on the 14th November, 1959 was incompetent. The file was accordingly received back without any finding from the revenue Court. By judgment dated 19th December, 1963 the trial Court dismissed the suit. On appeal, the Court of the Civil Judge, Ballia, set aside the dismissal of the suit and remanded the case f