JUDGMENT K.B. Asthana, J. - This petition under, Article 226 of the Constitution presented by Mustafa Khan seeks quashing of certain orders passed by theme consolidation authorities in proceedings arising out of objections filed by Mahboob Khan and Vakil Khan, opposite parties numbers 4 and 5 under sub-Sec. (2) of Section 20 of the U. P. Consolidation of Holdings Act, (hereinafter called the Act). 2. It is necessary to refer to certain salient facts in order to properly appreciate the controversy which has arisen between the parties. As many as eleven agricultural plots are in dispute. Mustafa Khan was the occupancy tenant of the disputed plots. Najibullah, father of Mahboob Khan and Vakil Khan, . opposite parties numbers 4 and 5, appear to have trespassed on the disputed plots and dispossessed Mustafa Khan. Accordingly Mustafa Khan, filed a suit under Section 180 of the U. P. Tenancy Act for ejectment of Najibullah. On 23-10-1944 this suit was decreed. In the execution of that decree it, appears that the decree holder Mustafa Khan obtained possession of the disputed plots from Najibullah. Then Mahboob Khan and Vakil Khan filed objections under Order 21, Rule 100 of the C. P. Code alleging that they were in possession of the disputed plots on their own account and they were not liable to be ejected in execution of the decree against their father Najibullah. The objections succeeded and order dated 23-3-1946 was passed restoring possession to Mahboob Khan and Vakil Khan. On 19-6-1946 Mahboob Khan and Vakil Khan obtained possession. Mustafa Khan then filed a suit under Section 183 of the U. P. Tenancy Act against Mahboob Khan and Vakil Khan alleging that he as land-holder had been wrongly dispossessed. This suit was decreed and Mustafa Khan obtained possession of the disputed plots. Mahboob Khan and Vakil Khan then made an application under Sections 20/232 of the U. P. Zamindari Abolition and Land Reforms Act for obtaining possession of the disputed plots on the ground that they having been recorded occupants in 1356F. in the Khasra and Khatauni became Adhivasi under Section 20(b) of the U. P. Zamindari Abolition and Land Reforms Act. Before this matter could be decided the village in which the disputed plots were situate came under consolidation operations under the Act. in the Khasra and Khatauni became Adhivasi under Section 20(b) of the U. P. Zamindari Abolition and Land Reforms Act. Before this matter could be decided the village in which the disputed plots were situate came under consolidation operations under the Act. In the statement of tenure holders prepared under Sec, 11 of the Act Mustafa Khan was entered as the Sirdar of the disputed plots. Mahboob Khan and Vakil Khan filed objections under Sections 12 of the Act mainly on the ground that they were the recorded occupants of 1356F. and became Adhivasis and thereafter Sir days. Their objection was dismissed by the Consolidation Officer. An appeal to the Settlement Officer (Consolidation) remained futile. However, the proceedings in revision filed by the aggrieved objectors against the appellate order of the Settlement Officer (Consolidation) was stayed inasmuch as the statement of proposals had been published under Section 19 of the Act in the village. On 30-4-1959 Mahboob Khan and Vaki] Khan filed an objection under Section 20 of the Act against the entry of the name of Mustafa Khan as Sirdar of the disputed plots. The objection was grounded on the same allegations as the one which was filed earlier under Sec, 12 of the Act. The Consolidation Officer dismissed the objection on the ground that it was time-barred. On appeal, however, the Settlement Officer, Consolidation, condoned the delay under Section 5 of the Limitation Act and remanded the matter to the Consolidation Officer for hearing on merits. A revision against this order of the Settlement Officer (Consolidation) was dismissed by the Deputy Director Consolidation. When the matter was considered by the Consolidation Officer on merits he accepted the objection of Mahboob Khan and Vakil Khan, having found that they were recorded occupants of the disputed plots in 1356F. and having become Adhivasi on the date of vesting acquired Sirdari rights. The name of Mustafa Khan was ordered to be expunged and in his place the name of 'Mahboob Khan and Vakil Khan was ordered to be substituted. Mustafa Khan's appeal from this order of the Consolidation Officer was dismissed by the Settlement Officer (Consolidation). The Deputy Director dismissed the revision preferred by Mustafa Khan against the appellate order. Now Mustafa Khan has come to this Court challenging the validity of the last mentioned three orders of the consolidation authorities. 3. Mustafa Khan's appeal from this order of the Consolidation Officer was dismissed by the Settlement Officer (Consolidation). The Deputy Director dismissed the revision preferred by Mustafa Khan against the appellate order. Now Mustafa Khan has come to this Court challenging the validity of the last mentioned three orders of the consolidation authorities. 3. Sri S. N. Singh, learned counsel for the petitioner, raised the following main contentions. His first contention was that the possession of the opposite parties Mahboob Khan and Vakil Khan on the disputed plots being under the orders of the court the entry of occupancy in 1356F. in their name would not, in law, ensure for their benefit and they could not become Adhivasi under Section 20 (b) of the U. P. Zamindari Abolition and Land Reforms Act. The second contention was that the entry in the Khasra and Khatauni of 1356F. being an entry not of an occupant as trespasser or without right fan entry as being in possession as a mortgagee would be of no avail for the purposes of Section 20(b) of U. P. Zamindari Abolition and Land Reforms Act. The third contention was that assuming that the entry in the Khasra or Khatauni of 1356F. was that of an occupant the opposite parties being intermediaries within the meaning of the U. P. Zamindari Abolition and Land Reforms Act the provisions of section 20(b) of that Act would not apply and the opposite parties could not claim Adhivasi rights. The fourth contention was that the objection under Section 20(2) of the Act was incompetent as the statement of proposals did not contain anything new so as to effect the rights of the opposite parties in the disputed plots. 4. In support of his first contention the learned counsel for the petitioner relied upon a decision of this Court in the case of Fatta v. Board of Revenue U.P., 1956 A.L.J. 351. 4. In support of his first contention the learned counsel for the petitioner relied upon a decision of this Court in the case of Fatta v. Board of Revenue U.P., 1956 A.L.J. 351. On the facts of that case the learned Judges held that the entry in the record of rights as an occupant envisaged in Section 20 of the Zamindari Abolition and Land Reforms Act is an entry made in the ordinary course of business by the Patwari and not an entry which has been made by reason of an order of a court which is subsequently reversed and with the annulment of that order in pursuance of which the entry was made the entry itself must be deemed to have ceased to exist, The submission was that the opposite parties came into possession of the disputed plots on the basis of the order of the executing court dated 23-3-1946 passed on the objection under Order 21 Rule 100, C. P. Code and since this order was ultimately set aside by the decree dated 31-5-1949 in suit under Section 183 of the U. P. Tenancy Act and possession taken back actually on 13-11-1949 the entry made in 1356F. cannot be said to be an entry made in the ordinary course of business by the Patwari and no benefit could be derived from that entry by the opposite parties in order to claim Adhivasi rights under Section 20(b) of the U. P. Zamindari Abolition and Land Reforms Act. Having given my due considerations to the submissions made, I do not think the learned counsel can derive any assistance from the ratio of the decision in Fatta's case,' referred to above, as the decision in that case turned on the peculiar facts established. I agree with the submission of Sri Sharafat Ali, learned counsel for the opposite parties that in Fatta's case' actually a decree had' been passed before the beginning of 1356F. directing possession to be handed over but before that decree' could be executed Fatta's obtained a stay order of delivery of possession from the Board of Revenue pending a second appeal. That appeal before the Board remained pending throughout the year 1356F. The appeal was ultimately dismissed by the Board and the stay order was vacated. It was in those circumstances that . That appeal before the Board remained pending throughout the year 1356F. The appeal was ultimately dismissed by the Board and the stay order was vacated. It was in those circumstances that . the learned Judges held that but for the order of the Court Fatta would not have remained in possession in 1356F. and the entry made by the Patwari in those circumstances could not be said to be an entry made in the ordinary course of business. In the instant case, it is pointed out by the learned counsel for the opposite parties, the possession of the opposite parties in 1356F. was not on the basis of any interim order or any stay order of court nor was there any decree in favour of the petitioner Mustafa Khan requiring possession to be handed over to him by the opposite parties before the beginning of 1356F. A reference was made by the learned counsel to a decision of the Supreme Court in the case of Uppey Ganges Sugar Mills v. Khalil-ul-Rehman, 1961 A.L.J. 27 and it was submitted on the basis of certain observations of their Lordships of the Supreme Court at page 28 of the report that it is only when the possession of the parties is on behalf of the Court as a receiver or custodian that the benefit cannot be obtained from the provisions of Section 20 (b) of the Act, but if a person had been in possession from before asserting a right on his own behalf and that possession is simply preserved by court, then the benefit of the provisions of Section 20(b) must be given to such person who would be an occupant within the meaning of those provisions. Learned counsel in this respect even submitted that the principle of law laid down by this Court in Fatta's case' would be deemed to have been impliedly overruled by the observations of the learned Judges of the Supreme Court in Upper Ganges Sugar Mills case. I am not called upon in this case to express any final opinion on this aspect. I am not called upon in this case to express any final opinion on this aspect. It appears from the copy of the order of the execution court dated 23-3-1946 which has been annexed to the affidavit filed on this petition that the opposite parties Mahboob Khan and Vakil Khan had been found in possession of the disputed plots from before the date of the decree in the suit under Section 180 of the Act obtained by Mustafa Khan against Najibullah and further that their possession was on the basis of some gift in their favour, that is on their own account. If in those circumstances the execution court allowed the objections and ordered the possession to be given back to the objectors the court was preserving their previous possession which was based on an assertion of a right and title. It cannot be said that the order dated 23-3-1946 for the first time conferred any right upon the opposite parties to obtain possession or to retain possession of the disputed plots. The court only recognised their antecedent rights and by passing the order as it did on 23-3-1946 preserved that right and their possession. In Fatta's case' a kcree had been obtained for ejectment of Fatta and the decree holder on the basis of the decree got the right to eject Fatta but for the reason that an interim order had been passed by the Court the right of the decree. holder to secure possession from Fatta before 1356 was temporarily suspended. In the instant case there was no such right in the petitioner to obtain possession by ejecting opposite parties. The petitioner having been driven to take proceedings under Order 21 Rule 103 of the C. P. Code had yet to establish his right and title as against the opposite parties numbers 4 and 5 before possession could be obtained. When in these circumstances the opposite parties Nos. 4 and 5 continued to remain in possession throughout 1356F the entry made by the Patwari in the Khasra and Khatauni of that year would be in the ordinary course of business and could be made a foundation for claiming rights of Adhivasi under Section 20(b) of the U. P. Zamindari Abolition and Land Reforms Act. 5. 4 and 5 continued to remain in possession throughout 1356F the entry made by the Patwari in the Khasra and Khatauni of that year would be in the ordinary course of business and could be made a foundation for claiming rights of Adhivasi under Section 20(b) of the U. P. Zamindari Abolition and Land Reforms Act. 5. As regards the second contention it appears to me that the Consolidation authorities have interpreted the relevant entries as that of an occupant within the meaning of Section 20 (b) of the U. P. Zarnindari Abolition and Land Reforms Act. The plots in dispute admittedly were the occupancy tenancy of the petitioner. Najibullah, father of opposite parties numbers 4 and 5 had admittedly been a mortgagee of the proprietary holding in the Khewat. The occupancy tenancy itself was not the subject of mortgage. The entries in the Khatauni of 1356 F in the name of Najibullah in Cl. 2 (a) is by no means clear for it finds a place below the general heading Thekedar or mortgagee. There is nothing on the record to show as to when the mortgage of proprietary rights was executed. Even assuming that Najibullah was a mortgagee he would be the mortgagee of the proprietary rights and not the mortgagee of the occupancy tenancy. It was open to the consolidation authorities to interpret the entry and if they found that the entry in the Khasra and Khatauni of 1356F showed that Najibullah was a recorded occupant it cannot be said that those authorities manifestly erred. 6. The third contention of the learned counsel for the petitioner proceeded on the basis of that Najibullah being a mortgagee of proprietary rights would be covered by the explanation to Section 32 of the Land Revenue Act and his name must find a place amongst the proprietors in the annual registers maintained under Section 32 of the Act and therefore he would be an intermediary as defined under sub-Sec. 12 of the Section 3 of the U, P. Zamindari Abolition and Land Reforms Act, thus the opposite parties numbers 4 and 5 were not entitled to take any benefit from the provisions of Section 20 (b) of that Act. This contention does not appear to be sound. The definition of 'intermediary' in the U. P. Zamindari Abolition and Land Reforms Act, worded as it is, is exclusive and not inclusive. This contention does not appear to be sound. The definition of 'intermediary' in the U. P. Zamindari Abolition and Land Reforms Act, worded as it is, is exclusive and not inclusive. The intermediary with reference to any estate means a proprietor, under-proprietor, sub-proprietor, Thekedar, permanent lessee in Oudh and permanent tenure holder of such estate or part thereof. It would be seen that the definition is confined to the class of persons mentioned therein. A mortgagee in possession does not find any, place. No doubt Section 32 of the Land Revenue Act read with explanation lays down that the name of the mortgagee in possession of a proprietary right should also be recorded in the relevant registers but that is for the purpose of that section alone. The word 'estate' in the U. P. Zamindari Abolition and Land Reforms Act means an area included under one entry in any of the registers described in section 32 of the U. P. Land Revenue Act. The proprietor of an area included under one entry in any of the registers described in Sec 32 of the U. P. Land Revenue Act as also the other class of persons mentioned in the definition of intermediary in Cl. (2) of Section............ would be intermediary. When the provisions of the U. P. Zamindari Abolition and Land Reforms Act were enacted by the legislature it must be presumed that a mortgagee in possession of any area under one entry in any of the registers described in Sec, 32 of the U. P. Land Revenue Act was also required to be mentioned in the proprietary list along with the proprietors, under-proprietors, sub-proprietors, Thekedars etc. Therefore, non-inclusion of the mortgagee in possession in the definition of intermediary would be deliberate. Moreover, Section 14 of the U. P. Zamindari Abolition and Land Reforms Act extinguishes the mortgagee right on any land in an estate. If the mortgagee in possession was contemplated to be an intermediary within the meaning of the U. P. Zamindari Abolition and Land Reforms Act a provision must have been made under that Act for awarding compensation for acquisition of his proprietary rights. But the provisions of that Act converted him into a simple creditor with right to recover the mortgage debt as simple money debt. But the provisions of that Act converted him into a simple creditor with right to recover the mortgage debt as simple money debt. It is clear that the framers of the U. P. Zamindari Abolition and Land Reforms Act never contemplated that the right of a mortgagee in possession was a proprietary right in respect of an estate. I am, therefore, unable to agree with this contention of the learned counsel. I am supported in this view by a decision of this Court in the case of Bhagwati v. State of U.P., 1959 A. L. J. 479, wherein at page 479 of the report it has been observed that a mortgagee is certainly not an intermediary according to the definition of the word as given in the U. P. Zamindari Abolition and Land Reforms Act. 7. In support of his fourth contention learned counsel for the petitioner relied on the case of Roop Narain v. State, 1962 ALJ 888 and submitted that by the publication of statement of proposals containing the name of the petitioner as Sirdar the rights of the opposite parties numbers 4 and 5 were not for the first time affected for the entry of the same nature in the statement of tenure holders published under Section 11 of the Act had already affected their rights at the earlier stage, there was thus nothing new in the statement of proposals published under Section 19 of the Act in the nature of any entry which affected the rights of the opposite parties numbers 4 and 5. 1 find some difficulty in applying the ratio of the decision of the case cited to the facts of the present case. It would be seen that in Rood Narain's case 1962 A.L.J. 888 this Court and dealing with the case of grove land which under the scheme of the Act has to be excluded from consolidation and the decision mainly turned on the provisions relating to the statement of principles published under the Act. In the instant case there is a dispute inter-se as to Sirdari rights and an objection having been taken under Section 12 of the Act which could not be finally decided as the statement of proposals was published under Section 19 of the Act the opposite parties numbers 4 and 5 reiterated that objection under sub-Sec. (2) of Section 20 of the Act. In the case of Ganga Singh v. Deputy Director of Consolidations, 1962 RD 107, this Court had taken the view that if an order under Section 12 of the Act had not become final the same point could be raised in the objection under Section 20 of the Act. The decision in Ganga Singh's case 1962 R. D. 107 was noticed by the learned Judges in Roop Narain's case'. It was not disapproved, or dissented from or overruled. For these rea sons I find that there is no substance in this contention either. 8. Lastly the learned counsel for the petitioner tried to urge that in their objections under Order 21 Rule 100, C. P. Code the opposite parties numbers 4 and 5 had taken up the position that they had Malkana rights in the disputed plot and claimed to remain in possession on that basis and now they should not be allowed in the proceedings before the consolidation authorities to claim possession as trespassers and securing on that basis tenancy rights in themselves. This was a matter which could have been considered by the consolidation authorities if raised before them. The contention so raised before me cannot be entertained for the first time in this writ petition for the simple reason that it does not involve any jurisdictional issue going to root of the matter. 9. For that sons given above I do not fin any merits in this petitioned it with costs.