ORDER M.H. Beg, J. - This a writ petition directed against an order dated 24-1-1964 passed by the Dy. Director of Consolidation u/s 48 of the Up Consolidation of Holdings Act. The Petitioners stated that they were persons who had been given possession of the plots in dispute by Smt. Pramjoti Kunwar who had mortgaged her occupancy tenancy plots to Ram Saran Upadhya and Sheo La-khan Singh in 1919. The ancestors of the Petitioners, having paid off the mortgage money, obtained possession on 20-6-1920, with the consent of Smt. Pramjoti Kunwar. On 20-11-1944, Smt. Pramjoti Kunwar surrendered her rights to the Zamindar. The Zamindar then settled the plots in dispute with the father of contesting opposite parties Nos. 4 and 5 on 12-12-1944. It appears that the predecessors of the Petitioners filed a suit u/s 59/61 of the UP Tenancy Act for a declaration that they were cotenants with Smt. Pramjoti Kunwar, but this suit was dismissed. The contesting opposite parties had, almost simultaneously, filed a suit u/s 180 of the UP Tenancy Act. That suit was decreed by the trial court but was dismissed by the appellate court on 18-4-1952 on the ground that the Petitioners were not liable to ejectment as their ancestors were recorded as persons in possession as mortgagees. An appeal by the contesting opposite parties to the Board of Revenue was also dismissed on 7-5-1952. The Petitioners thus continued in possession. 2. The contesting opposite parties 4 and 5 having found themselves unable to eject the Petitioners u/s 180 of the UP Tenancy Act brought a suit u/s 202(c) of the UP ZA and LR Act, which had come into force, on the ground that the Petitioners were mortgagees liable to ejectment u/s 21(1)(d) of the UP ZA and LR Act. That suit had been rightly dismissed by the trial court on 21-2-1957. During the pendency of an appeal against that decision, the consolidation proceedings commenced in the village where the land in dispute is situate. 3. The contesting opposite parties were entered as Bhumidhars in the basic year. But, on an objection, the consolidation officer corrected the entry and ordered that the Petitioners be entered as sirdars. During the pendency of an appeal against that decision, the consolidation proceedings commenced in the village where the land in dispute is situate. 3. The contesting opposite parties were entered as Bhumidhars in the basic year. But, on an objection, the consolidation officer corrected the entry and ordered that the Petitioners be entered as sirdars. On an appeal from this order u/s 11(1) of the UP Consolidation of Holdings Act, the Settlement Officer held that the Petitioners could only be trespassers after the surrender of tenancy rights of Smt. Pramjoti Kunwar in 1944 and upheld entries in their favour. The Dy. Director of Consolidation, however, revised the order of the Settlement Officer. He purported to apply the principle laid down in Hamid Husain v. R.N. Mallah 1963 AWR 430 , where it was held by a Division Bench of this Court that a person who was in possession under a void mortgage does not get Asami rights but is only a licensee. Learned Counsel for the contesting opposite parties has, however, relied upon a Full Bench decision of this Court in Samharu v. Dharamraj Pandey 1969 AWR 714 , where it had been held that the word mortgagee as used u/s 21(1)(d) of the UP ZA and LR Act is comprehensive enough to cover even transactions wider than legally defined or valid mortgagees. This comprehensiveness, in my opinion, does not help the opposite parties in this case. 4. Section 21(1)(d) of the Act could only apply to cases where a person holds land on the date immediately preceding the date of vesting such as a mortgagees. It is quite clear that the possession of the Petitioners could not be that of any sort of mortgagee after the mortgagor tenant, namely, Smt. Pramjoti Kunwar, had surrendered her rights in favour of the Zamindar. With the cessation of her rights, the Petitioners rights also came to an end whether the Petitioners ancestors were holding as persons whose possession could be analogous to that of a mortgagee or were licensees. The provisions of Section 47(3) of the UP Tenancy Act are quite clear on the point. With the cessation of her rights, the Petitioners rights also came to an end whether the Petitioners ancestors were holding as persons whose possession could be analogous to that of a mortgagee or were licensees. The provisions of Section 47(3) of the UP Tenancy Act are quite clear on the point. Even if the term mortgagee could have been used in Section 21(1) of the UP ZA and LR Act in a wide sense so as to include equitable mortgagees, if one may use such a term here, who enter possession under transactions which are not legally valid mortgages, there is no ambiguity or doubt about the meaning of provisions of Section 47 Sub-section (3) of the UP Tenancy Act which lay down that the landholder of the surrendering tenant will be bound by the covenants of the surrendering tenant with a valid mortgagee or sub tenant only. Occupancy tenancy rights could not be mortgaged by Smt. Pramjoti Kunwar in 1920. Furthermore, the contesting opposite parties could not be the landholders of the Petitioners or their ancestors as the term landholder is defined in the UP Tenancy Act. Again, Section 21(1)(d) of the UP ZA and LR Act speaks of mortgagees from persons belonging to any of the classes mentioned in Clauses (b) to (e) of Sub-section (1) of Section 18 or Clauses (i) to (vii) and (ix) of Section 19 of this Act. The contesting opposite parties, who had no subsisting rights, could not belong to any of these classes. 5. Learned Counsel for the contesting opposite parties was compelled to put forward a desperate argument; that, even if the possession of the Petitioners became that of a trespassers in 1944, it was converted into the possession of a mortgagee when the UP ZA and LR Act came into force. I am unable to accept such a contention. If the Petitioners became trespassers qua the contesting opposite parties or retained possession, without lawful authority, of the land surrendered by Smt. Pramjoti Kunwar, a suit for their eviction would be time barred before the UP ZA and LR Act came into force. It may be that the contesting opposite parties failed to eject the Petitioners upon a wrong finding that the Petitioners were persons in possession as mortgagees. But, as the suit was totally dismissed, no incorrect finding given there could operate as res judicata against the Petitioners. It may be that the contesting opposite parties failed to eject the Petitioners upon a wrong finding that the Petitioners were persons in possession as mortgagees. But, as the suit was totally dismissed, no incorrect finding given there could operate as res judicata against the Petitioners. It is clear that no relationship even resembling a mortgage came into existence between the Petitioners or their predecessors in interest and the contesting opposite parties. 6. The view taken by the Settlement Officer that the Petitioners were trespassers was plainly correct. The order of the Dy. Director is patently erroneous. I, therefore, quash the order of the Dy. Director of Consolidation and restore the judgment and order of the Settleliient Officer. The Petitioners are entitled to their costs. Petition allowed.