JUDGMENT Satish Chandra, J. - This special appeal arises out of consolidation proceedings. 2. The land in dispute has had a chequered litigation. 3. One Nathumal was the land holder. Habib was a tenant of the plots in dispute. Nathhu Mal obtained a decree for the ejectment of Habib u/s 171 of the UP Tenancy Act on 28th May, 1943. In execution of the decree Habib was dispossessed by the land holder on 20th June, 1943. Soon thereafter Natthu Mal executed a lease of the plots in favour of Banarsi Das, Respondent No. 6. Then, on 6th September, 1943, Nathu Mal sold his proprietory right to Kanched Mai, Nathumal the father and uncle of Banarsi Das. Ata Ullah, the present Appellant, was a co-sharer in the khewat. He filed a suit for pre-emption against Natthu Mai, the transferee and also Banarsi Das. Banarsi Das was impleaded as a party on the allegation that the lease in his favour was fictitious. The pre-emption suit was decreed on 4th February, 1946. The appeal etc. were also dismissed and ultimately the decree was affirmed by this Court on 19th September, 1948. 4. Meanwhile Habib, the erstwhile tenant, having died, his son Mohammad Umar filed an application for his reinstatement u/s 27 UP Tenancy (Amendment) Act, 1947. This application was allowed on 18th April, 1948. Banarsi Das who had taken the plots on lease from the erstwhile landlord, Nathhu Mai, filed an appeal. During the pendency of the appeal Banarsi Das obtained a fresh lease from Ata Ullah on 3rd January, 1949. It will be remembered that by this time Ata Ullah's pre-emption suit had been decreed. The earlier lease executed by Nathhu Mal in favour of Banarsi Das was held to be invalid. In order to substantiate his title Banarsi Das obtained a fresh lease from Ata Ullah. On the basis of this transaction, the appeal filed by Banarsi Das was allowed on 18th April, 1949 and the order of Mohammad Umar's re-instatement was set aside. Mohammad Umar had, however, taken possession of the plots on 23rd June, 1948 in pursuance of the re-instatement order in his favour. After the appeal was allowed, Banarsi Das obtained restitution of possession from Mohammad Umar in June, 1949. 5. At this stage Ata Ullah appears to have put his pre-emption decree in execution. At that time Banarsi Das was in effective possession. After the appeal was allowed, Banarsi Das obtained restitution of possession from Mohammad Umar in June, 1949. 5. At this stage Ata Ullah appears to have put his pre-emption decree in execution. At that time Banarsi Das was in effective possession. He raised an objection u/s 47 CPC basing his right to continue in possession on the fresh lease executed by Ata Ullah, the decree-holder on 3rd January, 1949. The Execution Court held that this lease could at best amount to an adjustment of the preemption decree but since it was not certified Under Order 21 Rule 2 CPC the Execution Court could not recognise it. This transaction hence could not be set up as a bar to the execution of the decree. He did not enter into the validity of this lease. He left the objection taken by the decree-holder that the lease was fictitious open. The objection was dismissed. Ata Ullah obtained possession of the plots on 17th December, 1950. 6. It appears that on 19th May, 1951 Ata Ullah executed a deed of gift in favour of his wife in lieu of dower debt, in respect of the plots in dispute. Banarsi Das on 8th October, 1952 instituted a suit for possession in the Civil Court against Ata Ullah. The suit was dismissed, but on appeal, it was decreed. Ata Ullah preferred a second appeal which is pending. 7. During the pendency of the second appeal, the plots in dispute came under consolidation operations; with the result that the hearing of the second appeal was stayed. In Consolidation proceedings the ultimate order of the Deputy Director holds that the lease executed by Ata Ullah in favour of Banarsi Das on 3rd January, 1949 was valid and operative and on that basis Banarsi Das became a sirdar. The claim of Ata Ullah to be a Bhumidhar of the plots was repelled. Against this decision Ata Ullah preferred a writ petition in this Court which was dismissed by a learned Single Judge. Hence the present appeal. 8. Learned Counsel for the Appellant has made the following submissions: (1) the lease dated 3rd January, 1949 was invalid because it was executed while Mohd. Against this decision Ata Ullah preferred a writ petition in this Court which was dismissed by a learned Single Judge. Hence the present appeal. 8. Learned Counsel for the Appellant has made the following submissions: (1) the lease dated 3rd January, 1949 was invalid because it was executed while Mohd. Umar was a sitting tenant of the plots; (2) the judgment of the Execution court dismissing the objections operates as res judicata; (3) the rights of Banarsi Das were extinguished u/s 45(b) U.P. Tenancy Act, 1939, and (4) that the Appellant Ata Ullah became an Adhivasi and then a sirdar under the Supplementary Act XXXI of 1952. 9. It is true that by the order dated 18th April, 1948 Mohammad Umar was re-instated as a tenant of the holding but this order having been set aside on 18th April, 1949 and his application for re-instatement having been dismissed the effect in law would be as if Mohd. Umar had never become a tenant. The order dated 18th April, 1949 would take effect right from the date of the institution of the application for re-instatement. As a consequence, in the eye of law there was no sitting tenant on 3rd of January, 1949 when the Appellant executed a lease in favour of Banarsi Das. There is thus no merit in the first submission. 10. The order of the execution Court specifically left open the question of the validity of the lease. It only held that the lease could at best amount to an adjustment of the decree but since it was not certified Under Order 21 Rule 22 CPC it could not be recognised by the execution court in view of Sub-clause (3) of Order 21 Rule 2 of the CPC which provides: (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree. 11. It is apparent that non-certification of an adjustment is not to be recognised by the execution court. The transaction does not lose its validity or become extinguished by the mere non certification. The only point which can operate as res judicata would be that the lease did not operate as an adjustment capable of being recognised by the execution court. It is apparent that non-certification of an adjustment is not to be recognised by the execution court. The transaction does not lose its validity or become extinguished by the mere non certification. The only point which can operate as res judicata would be that the lease did not operate as an adjustment capable of being recognised by the execution court. The question whether the lease was valid was not adjudicated by the execution court; hence this point cannot be barred under the doctrine of res judicata. 12. The third point relates to Section 45(b) and of the UP Tenancy Act which provides: 45. The interest of a tenant shall be extinguished- (a) when he dies leaving no heir entitled to inherit, in accordance with the provisions of this Act; (b) in land, which has been sold in execution of a decree for arrears of rent, or from which he has been ejected in execution of a decree or order of a court: ... ... ... Section 35(1)(a) and (b) of the Agra Tenancy Act, 1926 were in identical terms. That provision came up for consideration before a Division Bench in Baij Nath Pathak v. Gayadin Singh 1934 (3) AWR 792. The Bench held that the "court" in Sub-clause (b) must mean a competent court possessing jurisdiction to eject a tenant. It was observed that it was further dear that it is the interest of a tenant, who has been ejected by the court that is extinguished and it follows that the ejectment of the person must be in his capacity as a tenant and not as a mortgagee, lessee or licensee. That this is so is also apparent from the other clauses in Section 35 which deals with the death of a tenant or surrender by a tenant etc. These considerations necessarily follow an inference that the ejectment of a tenant within the meaning of Section 35 must be by a revenue court or the District Judge hearing a revenue appeal, who alone would be competent to eject a tenant as such. In such circumstances the ejectment would necessarily be in accordance with the provisions of this Act. It, therefore, follows that when the Plaintiff was formally dispossessed in execution of the pre-emption decree by the Civil Court he was dispossessed in his capacity as a mortgagee and not as a tenant. In such circumstances the ejectment would necessarily be in accordance with the provisions of this Act. It, therefore, follows that when the Plaintiff was formally dispossessed in execution of the pre-emption decree by the Civil Court he was dispossessed in his capacity as a mortgagee and not as a tenant. Section 35, therefore, would not apply to such a case. It was also observed that the Civil Court merely recognised the existence of the mortgage, allowed the redemption and restored possession to the mortgagor. It did not feel called upon to consider any question of tenancy right or the ejectment of a tenant. Section 35, therefore, is not a bar to the Plaintiff's claim. 13. In our opinion the ratio of this case clearly applies to the present one. The pre-emption decree was passed upon a right appurtenant to the proprietory interest. It is true that Banarsi Das was impleaded on the allegation that the earlier lease deed executed by Natth'u Mal was invalid and it may safely be held that the execution of the decree extinguished the tenancy rights under that lease. But on facts it is clear that the subsequent lease dated 3rd January, 1949 having been executed after the final disposal of the suit, was not the subject-matter of adjudication in that suit. The pre-emption decree cannot hence be deemed to be a decree for ejectment of a tenant on the basis of the lease dated 3rd January, 1949. The dispossession of the Appellant in execution of the preemption decree could not bring about extinguishment of his tenancy created on 3rd January, 1949 Under Clause (b) of Section 45 because he was not ejected in execution of a decree for the ejectment of a tenant claiming under the latter transaction. In our opinion Section 45(b) does not help the Appellant. 14. The last submission was based upon the UP Land Reforms (Supplementary) Act, 1952. In Smt. Sonawati v. Sri Ram 1968 AWR 1 the Supreme Court has held that the expression "cultivatory possession" occurring in Section 3 of the Act is not defined in the Act but the explanation clearly implies that the claimant must have a lawful right to be in possession of the land and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recognised for the purpose of the Act must be lawful and for the whole year 1359 F. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in cultivatory possession within the meaning of that Act. 15. 1359 F. was from 1st July, 1951 to 30th June, 1952. According to the Supreme Court's decision the claimant must be in cultivatory possession for the entire year. The Appellant was not in such possession. He obtained possession on 18-12-1950 but he executed a gift deed in favour of his wife on 19th May, 1951, that is to say prior to the commencement of 1359 F. It has been found that this gift deed was in payment of her dower debt. It recited that the donee has been put in possession and that she will get her name mutated in the revenue record from the date of the execution of the deed and the donor will be left with no right in the land. Clearly this gift-deed was not merely of the proprietory right of the Appellant, but the possessory right was also transferred to his wife. Thus after the execution of this gift deed the Appellant was left with no interest or title in the plot in dispute. He cannot, therefore, say that he was in cultivatory possession of the plots in dispute in the year 1359 F. lawfully. 16. We enquired from the learned Counsel for the Appellant but he was unable to point out any evidence or material on the record to show that the Appellant did cultivate the plots in the year 1359 F. Further, even if it be assumed that the Appellant did cultivate the plots in 1359 F., his cultivation cannot be in any other capacity than that of a trespasser, because in that year he had lost all title in the plots. His possession could hence be only as a trespasser. Such a person cannot be deemed to be in cultivatory possession within the meaning of Section 3 of the Supplementary Act. 17. The various points urged in support of the appeal having failed the same is dismissed with costs.