JUDGMENT S. N. Singh, J. - This petition under Art. 226 of the Constitution arises out of consolidation proceedings. 2. The dispute is in respect of plot No. 327 situate in village Rajlamai, Tahsil Kaimganj, District Farrukhabad. The contesting opposite parties were recorded as tenure-holders of the plot in dispute in the basic year. Jiwan the petitioner filed an objection under Section 9 of the U. P. Consolidation of Holdings Act on the allegation that he was recorded occupant in 1356-F. and that he acquired adhivasi rights by operation of Law. It was stated that he was ejected from the plot in dispute by a suit under Section 180 of the U. P. Tenancy Act which was decreed against him. It was further stated that after he was ejected he filed a suit under Section 212-B of the U. P. Zamindari Abolition and Land Re forms Act read with Section 234-A of the same Act within the period of limitation, but on the start of consolidation proceedings the suit under Section 212-B of the U. P. Zamindari Abolition and Land Reforms Act was stayed. 3. The Consolidation Officer rejected the claim of Jiwan the petitioner but his appeal was allowed by the Settlement Officer (Consolidation) . 4. Aggrieved with the order of the Settlement Officer (Consolidation) a revision was filed before the Deputy Director of Consolidation. The Deputy Director allowed the revision solely on the ground that the suit which had been filed against Jiwan under Section 180 of the U. P. Tenancy Act was decided in the year 1953 by which time the U. P. Zamindari Abolition and Land Reforms Act had come into force and in proceedings under Section 180 of the U. P. Tenancy Act the petitioner did not defend the suit on the ;round of his acquisition of. adhivasi right, It was held that since he had not defended the suit on the plea of adhivasi right he was debarred from taking the plea of adhivasi right by virtue of Section 11 explanation (IV) of the Civil Procedure Code. Having come to this conclusion the revision was allowed and the objection of Jiwan the petitioner was rejected. 5. adhivasi right, It was held that since he had not defended the suit on the plea of adhivasi right he was debarred from taking the plea of adhivasi right by virtue of Section 11 explanation (IV) of the Civil Procedure Code. Having come to this conclusion the revision was allowed and the objection of Jiwan the petitioner was rejected. 5. Aggrieved with this order the petitioner has filed the present writ petition and it has been argued that the Deputy Director of Consolidation has committed an error apparent on the face of the record in ignoring explanation (1) of Section 20 of the U. P. Zamindari Abolition and Land Reforms Act. 6. I have heard the learned counsel for the parties in support of their respective contentions and in my opinion this petition has force and should be allowed. The petitioner is a recorded occupant in 1356-F. A suit was instituted before the passing of the U. P. Zamindari Abolition and Land Reform., Act under Section 180 of the U. P. Tenancy Act for the ejectment of the petitioner. At that time when the suit was instituted the petitioner could not have taken the plea of adhivasi right. This plea of adhivasi right became available to the petitioner after the passing of the U. P. Zamindari Abolition and Land Re forms Act. He could have taken this plea but it appears that he did not resist the claim on the basis of his becoming an adhivasi under the Act. 7. In Kanamathareddi Seetamma v. Kanamathareddi Kotareddii, A.I.R. 1949 Madras 586 a Full Bench of the Madras High Court held that when a plaintiff acquires fresh cause of action during the pendency of the suit he is not bound to rely on any new right in pending suit. Subsequent suit on fresh cause of action is not barred by res judicata. The principle of this authority can be said to be well applicable in case of defence as well. During the pendency of suit under Section 180 .of the U. P. Tenancy Act when U. P. Zamindari Abolition and Land Reforms Act was passed a fresh right accrued to the petitioner. The principle of this authority can be said to be well applicable in case of defence as well. During the pendency of suit under Section 180 .of the U. P. Tenancy Act when U. P. Zamindari Abolition and Land Reforms Act was passed a fresh right accrued to the petitioner. He could have taken that plea in that very suit but if he did not take that plea it cannot be said that his subsequent suit which had nothing to do with the cause of action of the previous suit would be barred by Section 11 explanation (IV) of the Civil Procedure Code. There is yet another reason to hold that Section 11, C. P. C. is not applicable in the circumstances of this case. On the passing of the U. P. Zamindari Abolition and Land Reforms Act the petitioner being a recorded occupant became adhivasi under Section 20 (b) (I) of the U. P. Zamindari Abolition and Land Reforms Act. Explanation (i)' of this section is relevant for the purposes of this case. It reads "Where a person referred to in Clause (b) was evicted from the land after June 30, 1948, lie shall notwithstanding anything in any order or decree, be deemed to be a person entitled to regain possession of the land." 8. In view of this explanation it is clear that even it there is a decree passed against a person who is recorded occupant and who has acquired a right of adhivasi under Section 20 (b) (1) he would be entitled to recover possession from the person in possession. The Deputy Director appears to have entirely ignored this explanation while deciding the case. On the finding recorded by the Settlement Officer (Consolidation) the petitioner was recorded occupant and had become adhivasi on the passing of the U. P. Zamindari Abolition and Land Reforms Act. He was entitled to recover possession from the person whosoever was in possession after the passing of the U. P. Zamindari Abolition and Land Reforms Act. The petitioner appears to have instituted a suit under Section 212-B of the U. P. Zamindari Abolition and Land Reforms Act for regaining possession. It is argued for the contesting opposite parties that this suit of the petitioner was not maintainable. The petitioner appears to have instituted a suit under Section 212-B of the U. P. Zamindari Abolition and Land Reforms Act for regaining possession. It is argued for the contesting opposite parties that this suit of the petitioner was not maintainable. It was argued that the contesting opposite parties were put in possession through a decree of a competent court and the possession of the contesting opposite parties was not otherwise than in accordance with law, as such Section 212-B of the U. P. Zamindari Abolition and Land Reforms Act did not apply to the facts of the case. I am unable to accept this contention, Section 212-B reads as follows : "An asami ejected from or prevented from obtaining possession of any land forming a part of his holding otherwise than in accordance with the provisions of the law for the time being in force. by .............. This would show that it is not only when a person is ejected otherwise than in accordance with law but also if he is prevented from taking possession otherwise than in accordance with law that Section 212 (b) applies. In my opinion once it is accepted that the petitioner became adhivasi by virtue of his being occupant under section 20 (b) (1) he becomes entitled to get recovery of possession over the plot of which he became adhivasi on the passing of the U. P. Zamindari Abolition and Land Reforms Act, It can also be said that by the time suit tinder Section 212-B of the U. P. Zamindari Abolition and Land Reforms Act had been presented the petitioner had become sirdar and a suit under Section 212-B of the U. P. Zamindari Abolition and Land Reforms Act was not competent. But it is well settled that mere mention of wrong section will not disentitle him from getting the relief if under law he is entitled to have it. Even if his suit under Section 212-B was not maintainable the petitioner was entitled to get recovery of possession under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. Having been recorded occupant in 1356-F. the petitioner became adhivasi on the passing of the U. P. Zamindari Abolition and Land Reforms, Act. Even if his suit under Section 212-B was not maintainable the petitioner was entitled to get recovery of possession under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. Having been recorded occupant in 1356-F. the petitioner became adhivasi on the passing of the U. P. Zamindari Abolition and Land Reforms, Act. He became sirdar on the passing of Act 20 of 1954 and the right of the land-holder i.e. the contesting opposite parties was extinguished and the possession of the contesting opposite parties was only that of a trespasser, i.e. otherwise than in accordance with law. Taking any view of the matter the petitioner was entitled to get possession over the disputed plot and since the consolidation started before the expiry of the period of limitation the plot should have been held to be the sirdari- of the petitioner. It was rightly so held by the Settlement Officer (Consolidation). The Deputy Director on an erroneous view of law wrongly set aside the order of the Settlement Officer (Consolidation). 9. In view of the above discussion this petition succeeds and is hereby allowed. The order of the Deputy Director dated 14th December 1963 is hereby quashed. The petitioner is entitled to the cost of this petition.