A person who is a sub-tenant of a mortgagee is not entitled to adhivasi rights under Section 240-B of the U.P. Zamindari Abolition and Land Reforms Act, 1951.

R.M. Sahai, J.

The facts giving rise to this writ petition directed against the order of the consolidation authorities in brief are that the land in dispute was mortgaged by the Petitioners in favour of one Udit Narain Singh and it was got redeemed in 1354F. The father of the opposite parties Balli was entered in 1356F, in Zaman (10) and continued to be recorded in 1359F. as well. In 1362 F. he was entered as sirdar. The Petitioners filed a suit u/s 63/180 of U.P. Tenancy Act which was decreed on 28th June, 1948. The decree was ex-parte. After the enforcement of U.P. Zamindari Abolition and Land Reforms Act I of 1951 they again filed a suit u/s 229-B which was ultimately abated u/s 5 of the U.P. Consolidation of Holdings Act. During consolidation proceedings they claimed to be bhumidhars and prayed for expunction of the entries in favour of opposite parties. The objection was dismissed by the consolidation officer but in appeal the order was set aside and it was held that the opposite party being entered in 1356 F. with a duration of 3 years his occupation seems to have started at a time when the mortgage was in force. Prom this he inferred that the land was let out to the opposite parties by the mortgagee. As Balli was Sub-tenant of mortgagee he did not acquire adhivasi rights. He was further of the opinion that the ex-parte decree dated 28th June, 1948 may not have the force of resjudicata but it certainly operated as estoppel. This order was set aside in revision and the Deputy Director found that Balli continued in possession since 1356 F. He set aside the finding recorded by the Settlement Officer Consolidation that the land was let out by Udit Narain to Balli as this was never the case of the Petitioners in the objection. Moreover he found that as the mortgage had been redeemed in 1354 F. and Balli was entered in 1356 F. he cannot be considered to be a Sub-tenant of mortgagee. In respect of the ex-parte decree the Deputy Director examined the summons and recorded a finding that Balli was never served and this ex-parte decree had neither the effect of resjudicata nor estoppel. He further found that the decree, having not been given effect to in revenue record cannot be successfully taken advantage by the Petitioner.

2. The learned Counsel for the Petitioners reiterated the argument advanced before the consolidation authorities that the ex-parte decree even if did not operate as resjudicata has the force of estoppel and the opposite party cannot be permitted to take benefit of his own default. The argument cannot be accepted as it would have operated as estoppel against Balli if summons was served on him. For the applicability of the principle of estoppel the essential ingredient is that the person against whom estoppel is pleaded.must have represented and due to representation the person claiming estoppel must have altered his position. In view of the finding that the summons were never served and that the decree was never given effect to in revenue records and that Balli had no knowledge of it, it cannot be said that Balli conducted himself in a manner which would give rise to estoppel against him.

3. It was then argued that Balli being a Sub-tenant of a mortgagee he was not entitled to adhivasi rights. Reliance has been placed on Pulloo and Another Vs. Dy. Director of Consolidation, U.P. and Another, AIR 1976 All 343. For the applicability of this decision the first essential is that it should be found whether Balli was a Sub-tenant of the mortgagee. The finding of the Settlement Officer, Consolidation, that Udit Narain let out the land to Balli has been set aside by the Deputy Director. The reason for setting aside the finding is that the Petitioner never pleaded this case and further the entry having been started in 1356 F. the occupation did not start during the period of mortgage. The finding recorded by the Deputy Director does not appear to suffer from any manifest error of law. The mere fact that the perio