JUDGMENT O.P. Trivedi, J. - This petition under Article 226 of the Constitution as been filed by Gur Charan and arises at of consolidation proceedings. 2. The dispute relates to two Khatas: Khatas Nos. 16 and 60. Khata No. 16 is comprised of plots Nos. 772-A, 779, 791 & 870 and Khata No. 60 is comprised of plots Nos. 772-B, 773/1, 194 and 873. The names of Gur Charan Petitioner and one Sheo Narain deceased were jointly recorded over plots of Khata No. 16 as Bhumidhars and the petitioner, Ram Udit and Ram Abhilakh, opposite pares 5 and 6, were recorded against the plots of Khata No. 60. Objections under action 9 of the U.P. Consolidation of Holdings Act were filed separately by the petitioner Gur Charan and opposite parties 5 and 6. The opposite parties claimed sole Sirdari rights over these Khatas by adverse possession and the petitioner claimed sole Bhumidhari rights on the basis that these plots were Sir and Khudkasht of the petitioner at the time of vesting on coming into force of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter called the Act). The petitioner's claim was rejected by the Consolidation Officer, Settlement Officer (Consolidation) and the Deputy Director of Consolidation, all of whom upheld the claim of opposite parties 5 and 6 holding that they had acquired rights in the two Khatas by adverse possession by virtue of Section 210 of the Act. Copies of orders of the Consolidation Officer, Settlement Officer (Consolidation) and the Deputy Director of Consolidation are dated March 12, 1967, November 15, 1967 and February 13, 1969 (Annexures 1, 2 and 3) respectively. The petitioner Drays that the same may be quashed by certiorari. 3. I have heard Sri Hargur Charan Srivastava for the petitioner and Sri C.S. Tewari for the opposite parties. The first submission of the learned counsel is that the Deputy Director of Consolidation was in error in ignoring the provisions of Sections 14(2) (a) and 18 of the Act under which the petitioner acquired Phumidhari rights in the disputed plots. 3. I have heard Sri Hargur Charan Srivastava for the petitioner and Sri C.S. Tewari for the opposite parties. The first submission of the learned counsel is that the Deputy Director of Consolidation was in error in ignoring the provisions of Sections 14(2) (a) and 18 of the Act under which the petitioner acquired Phumidhari rights in the disputed plots. The second submission that the opposite parties could not claim benefit of Section 14(2) (b) of the Act as the disputed land was Sir and Khudkasht of the petitioners at the time of mortgage and the third argument is that the opposite parties were not entitled to the benefit of Section 210 of the Act as they were in permissive possession of the disputed band. 4. It is an admitted fact that Hari Narain, father of the petitioner, had executed a mortgage of the disputed Khatas in favour of the predecessor of opposite parties 5 and 6 on August 14. 1928 which corresponds to 1335 Fasli and that on the date of vesting in view of Section 14(1) the opposite parties ceased to have any right to hold or possess the land as a mortgage. After coming into force of the Act the opposite parties claimed to have acquired hereditary tenancy rights in the disputed land after depositing an amount equal to five times the rent calculated at hereditary rates. The petitioner disputed that this deposit had been made within the period prescribed under Section 14 (2) (h) of the Act. It is no longer relevant to enter into the question whether this deposit has been made within six months as claimed by the opposite parties or beyond it. For I take the view that in no case could the opposite parties claim benefit of Section 14 (2) (b) of the Act. Section 14 (2) (b) reads as follows: - " (2) Where any such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting- (a)........ For I take the view that in no case could the opposite parties claim benefit of Section 14 (2) (b) of the Act. Section 14 (2) (b) reads as follows: - " (2) Where any such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting- (a)........ (b) if it was not Sir or Khudkasht of the mortgagor on the date of the mortgage, the mortgagee shall, subject to his paying to the State Government, within six months from the date of vesting an amount equal to five times the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting, be deemed, for purposes of Section 19, to have held such land on the date aforesaid as hereditary tenant thereof at the said rate of rent." 5. Now in para 3 of the petition it is urged that the plots, which were mortgaged, were Sir and Khudkasht of Hari Narain, that is to say, the plots were Sir and Khudkasht of the mortgagor on the date of the mortgage. Although in para 5 of the counter affidavit this was denied but the material on record raises a reasonable inference that the petitioner's contention is correct and that plots in dispute were Sir and Khudkasht of Hari Narain at the time of the mortgage. The Deputy Director of Consolidation himself mentioned in his order that the plots of list A were recorded in 1359 F. as Sir and plots of list B, which covered both the Khatas in dispute, were recorded as Khudkasht of the mortgagor and the Deputy Director of Consolidation also found that this was the correct position. Admittedly, the mortgage was executed by Hari Narain in 1335 Fasli and, therefore, it will be presumed from the entry of Khatauni of 1359 Fasli that in 1335 Fasli also the disputed plots were Sir and Khudkasht of the mortgagor. That being so, the condition precedent to the application of clause (b) of sub-section (2) of Section 14 did not exist and the mortgagee could claim benefit of that provision. 6. That being so, the condition precedent to the application of clause (b) of sub-section (2) of Section 14 did not exist and the mortgagee could claim benefit of that provision. 6. The aspect of the matter appears to have completely escaped the attention of the Deputy Director of Consolidation, His finding that the opposite parties acquired rights in virtue of provisions of Section 210 of the Act also discloses ; manifest error of law in view of the admitted position that the origin of possession of opposite parties 5 and 6 was through a mortgage from the father of the petitioner which implies that the origin of possession of the opposite parties was permissive. The Deputy Director did not read the provision contained in Section 209 carefully and, therefore, mistakenly held that permissive possession was beyond the pattern of the scheme of the Zamindari Abolition and Land Reforms Act. That this is not so is manifest from the language of Section 209 itself. Section 209 says that a person taking or retaining possession of land otherwise than in accordance with the provisions of the law for tie time being in force (a) where the lard forms part of the holding of a Bhumidhar, Sirdar or Asami; (b) where the land does not form part of the holding of a Bhumidhar, or Asami without the consent of the Gaon Sabha shall be liable to ejectment on the suit of the Bhumidhar, Sirdar or Asami concerned. The intention of the Legislature, therefore is already expressed in Section 209 (i) that a suit for ejectment at the instance of a Bhumidhar. Sirdar or Asami on Gaon Sabha under Section 209 will lie only against those taking or retaining possession without consent of those suing for ejectment. The concept of a person being allowed to cultivate land of a tenure-holder with consent is, therefore, implicit in the provision of Section 209 and in case of person who is in possession with consent of the tenure-holder a suit under Section 209 is not maintainable. That being so, failure to file a suit under Section 209 against a person, who is in permissive possession of the tenure-holder, shall not entail extinction of the rights of Bhumidhar, Sirdar or Asami nor can such failure vest any tenure rights in the person in possession on the strength of Section 210 of the Act. That being so, failure to file a suit under Section 209 against a person, who is in permissive possession of the tenure-holder, shall not entail extinction of the rights of Bhumidhar, Sirdar or Asami nor can such failure vest any tenure rights in the person in possession on the strength of Section 210 of the Act. From the fact that the possession of opposite parties 5 and 6 originated from the mortgage the inference of their being in permissive possession was unavoidable and irresistible, and consequently there was no question of ascribing hostility to their possession especially in complete absence of any suggestion or evidence that they had at any stage after abolition of Zamindari system started asserting hostile title against the petitioner. I hold, therefore, that the Deputy Director was in manifest error in conferring Sirdari rights on opposite parties 5 and 6 on the basis of Section 210 of the Act. 7. The submission of learned counsel for the petitioner that he had acquired Bhumidhari rights under Section 14(2) (a) read with Section 18 of the Act appears to be correct. Sub-section (2), clause (a) of Section 14 provides: "2. Where any such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting. (a) if it was Sir or Khudkasht of the mortgagor on the date of the mortgage, the same shall for purposes of Section 18, be deemed to be the Sir or Khudkasht of the mortgagor or his legal representative." 8. This provision was attracted in the present case and the petitioner acquired Bhumidhari rights over the two disputed Khata under Section 18 of the Act. The Deputy Director of Consolidation missed this provision of law also. The order of the Deputy Director, is, therefore, liable to be quashed. 9. The petition is allowed. Gur Charan petitioner is held to be the sole Bhumidhar of disputed Khatas 16 and 60. The order of the Deputy Director of Consolidation dated February 13, 1969, of which Annexure 3 is a copy, is quashed and the objection of opposite parties 5 and 6 under Section 9 of the U.P. Consolidation of Holdings Act is dismissed. Let certiorari issue accordingly. There shall be no order as to costs.