JUDGMENT R.S. Verma, Member. - Can a person, who is not a recorded tenant, acquire privileges provided by or under the U.P. Agricultural Tenants Acquisition of Privileges Act 1949 ? (U.P. Act No. X of 1949). In this second appeal, preferred by the plaintiff Badri against concurrent findings of the trial court and the first appellate court, the aforesaid question of law has been argued. 2. The context in which this question has arisen is as follows: One Ninhua, who was the sole recorded tenant of the land in suit, had tow sons Badri (plaintiff) and Bachanu. Bachanu had a son Narain (defendant no. 1). Bachanu, father of the defendant No. 1. Narain, was alive in June 1950, when Bhumidhari sanad was issued, in respect of the land in suit, in the names of Ninhua (the sole recorded tenant) and Narain who was unrecorded. On the basis of that bhumidhari sanad the names of Ninhua and Narian were recorded as bhumidhars of the land in suit in the khatauni of the land in suit in the khatauni of 1355-57 Fasli. After 10-12 years of this, consolidation operations intervened and the names of Narain, Bachanu and Badri were recorded. After the death of Bachanu the names of Badri, plaintiff, and Narain defendant remained in the revenue records. On 5-4 1968 Bardi plaintiff filed a suit under Section 176, U.P.Z.A. & L.R. Act, and claimed half share in the disputed plot. The defendant Narain contested the case on the grounds that in 1950 Ninhua his grand-father and he got a bhumidhari sanad in respect of the land in suit that each of them had half share in it, that after the death of Ninhua his two sons Badri and Bachanu inherited in equal share the half share of Ninhua that thus Badri got th share and Bachanu (father of the defendant Narain) got th share, that after the death of Bachanu Narain defendant inherited the th share of his father also and thus his share swelled to th. 3. The trial court believed the case of the defendant no. 1 Narain and held that the plaintiff had only share. The first appellate Court also believed the defendants' case and dismissed the appeal of the plaintiff. 4. 3. The trial court believed the case of the defendant no. 1 Narain and held that the plaintiff had only share. The first appellate Court also believed the defendants' case and dismissed the appeal of the plaintiff. 4. The learned counsel for the plaintiff-appellant has argued that a persons, who is not a tenant of the description mentioned in Section 3 or 3-A(2) of Act X of 1949 cannot become a bhumidhari of a land in view of Section 18(2) Z.A. Act, even though he gets a bhumidhari sanad. The learned counsel for the appellant has, in support of the view, cited a ruling of the Allahabad High Court reported in 1963 R.D., 333. I am in full agreement with this view. 5. Section 18(2) U.P. Z.A. Act lays down that:- "Every person belonging to the class mentioned in (Section 3 of the Sub-section (2) of Section 3-A) of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949 (U.P. Act X of 1949, who has been granted the declaration referred to in Section 6 of the said Act in respect of any holding of share thereof shall, unless the declaration is subsequently set aside, be deemed to be the bhumidhar of the holding of share in respect of which the declaration has been made and continues in force". 6. Section 3 of U.P. Act X of 1949 gives the Class of tenants as follows:- (a) a tenant holding on special terms in Awadh, (b) an ex-proprietary tenant, (c) an occupancy tenant, (d) a hereditary tenant, (e) and occupier or (f) a sub-tenant referred to in sub section 4 of Section 47 of the U.P. Tenancy Act. Section 3-A(2) of Act X of 1949 mentions sub-tenants. Thus, these are the only person who can get privileges under Act X of 1949. If a person is not a tenant of such a class, he cannot get privileges under Act X of 1949. 7. To get a correct and composite picture of the law on this point Sections 3, 3-A, 3-B, 3-C of the U.P. Agricultural Tenants (Acquisition of Privileges) Act must be read along with Section 18(2), U.P. Z.A. & L.R. Act. If a person is not a tenant of such a class, he cannot get privileges under Act X of 1949. 7. To get a correct and composite picture of the law on this point Sections 3, 3-A, 3-B, 3-C of the U.P. Agricultural Tenants (Acquisition of Privileges) Act must be read along with Section 18(2), U.P. Z.A. & L.R. Act. It means that (1) if a person is a tenant holding on special terms in Awadh, or an ex-proprietary tenant or an occupancy tenant or a hereditary tenant or an occupier or a sub-tenant mentioned in Section 47(4) U.P. Tenancy Act and (2) if a declaration about his bhumidhari right is made and bhumidari sanad granted, he will be deemed to be a bhumidhar. Both these conditions must be fulfilled. If any to these two conditions is wanting, that person will not becomes a bhumidhar under Section 18(2) U.P.Z.A. & L.R. Act. If Bhumidhar sanad is granted to a person who does not belong to the class of tenants mentioned above, that person will not become a bhumidhar. 8. In 1963 R.D. 333, Mr. Justice Dhawan of the Allahabad High Court held as follows:- "Sub-section 2 of Section 18 of the Zamindari Abolition Act requires the qualifications before a person can claim to be the bhumidhar of a holding. The first is that he must belong to the class mentioned in Section 3 or sub-section 2 of Section 3-A of the U.P. Agricultural Tenants (Acquisition of Privileges) Act; and the second is that he must have obtained a declaration under Section 6. Where the plaintiff did obtain a declaration under Section 6 but if he does not belong to any of the classes mentioned above his claim to be recorded bhumidhar of the holding is not established. It is not necessary for the defendant to have declaration invalidated under Section 12 of Act X of 1949, as this declaration alone could not confer upon the plaintiff the right of a bhumidhar if did not belong to the categories enumerated above". Emphasised supplied. 9. In the case before us admittedly Ninhau was the sole tenant of the land in suit. Two sons of Ninhua were Badir and Bachanu who were alive in June 1950 when Bhumdhari sanad was taken, but it is the admitted case of the parties that Badri and Bachanu (sons of Ninhua) were not co-tenants along with Ninhua. Emphasised supplied. 9. In the case before us admittedly Ninhau was the sole tenant of the land in suit. Two sons of Ninhua were Badir and Bachanu who were alive in June 1950 when Bhumdhari sanad was taken, but it is the admitted case of the parties that Badri and Bachanu (sons of Ninhua) were not co-tenants along with Ninhua. The defendant No. 1 Narain the grand-son of Ninhua and he had even a remoter chance to be co-tenant along with his grand-father Ninhua. Narain defendant no. 1 has admitted that before getting bhumidhar sanad he had no share in the land in suit and this means that he was not a co-tenant along with Ninhau. If it is true, it necessarily means that he could not come within the categories mentioned in Section 3 and Section 3-A(2) of U.P. Act X of 1949. Thus, Narain was not entitled to get a bhumidhari sanad and if he, some how got it the could not be deemed to be a bhumidhar or co-bhumidhar of the holding in view of Section 18(2) Z.A. & L.R. Act. The Bhumidhari sanad in the name of Narain defendant No. 1 will be ignored and no insistence will be made that prior cancellation of the sanad is necessary before the court holds that he had no bhumidhari rights in the holding. 10. On the facts of this case, if prima facie appears that the name of Narain defendant No. 1 was entered as a co-bhumidar without any antecedent right, and most probably in a furtive manner. Ninhua, who was admittedly the sole tenant of the land in suit in June 1950, was an old man aged 70 years or more. He had gone to the Tehsil on a cart. His eye-sight had been affected by old age. He was so weak that he could not move about and such was his condition for the last 2 or 4 years. The application was given by Narain and money was also deposited by him. Narain's father Bachanu had also gone to Tehsil, but Badri plaintiff (the other son of Ninhua) was not present. There is absolutely no evidence that Narain was co-opted as a co-tenant. There is no clear reason as to why Ninhua would co-opt his grand-son as a co-tenant and ignore his two sons Badri and Bachanu. Narain's father Bachanu had also gone to Tehsil, but Badri plaintiff (the other son of Ninhua) was not present. There is absolutely no evidence that Narain was co-opted as a co-tenant. There is no clear reason as to why Ninhua would co-opt his grand-son as a co-tenant and ignore his two sons Badri and Bachanu. There is strong probability that due to physical infirmity of Ninhua and taking advantage of the absence of Badri plaintiff the name of Narain was surreptitiously mentioned in the application. As the eye-sight of Ninhua was weak and as he was not even able to move about for the last 3-4 years he could not defect as to what was written in the application. The revenue officer due to ignorance about the relationship of the parties, could not suspect foul play, and the sanad was accordingly issued. 11. It has been argued by the learned counsel for the respondent that in second appeal this court cannot tough the concurrent findings of facts, given by the lower courts. This court is conscious of the fact that concurrent findings of fact, given by the lower courts assume deterrent sanctity but, in some exceptional circumstances the second appellate court can interfere with the concurrent findings of fact. In A.I.R. 1980 Supreme Court 1754, it was held that- "Though whether a person was in fit state of mind to execute adoption is a question of fact, where both courts below ignored the weigh of preponderating circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court would be justified in re-appreciating the evidence and in coming to its own conclusion". In the instant case the lower courts did not tough this point. The trial court had only a peripheral contact with this point. None of the lower courts examined the oral evidence. Shri J.K. Saxena, learned Revenue Officer discussed the plaintiff's evidence in 1 lines and the defendant's evidence in four line in fact he did not discuss these evidence but only mentioned them without any comment. Then he gave his finding as follows:- "A perusal of all these documents will reveal that Ninhua was sole tenant of this land previously. He got the name of Narain included himself i.e. admitted Narain as co-tenant and thereby name of Narain appeared along with Ninhua in the sanad bhumidhari and also records". Then he gave his finding as follows:- "A perusal of all these documents will reveal that Ninhua was sole tenant of this land previously. He got the name of Narain included himself i.e. admitted Narain as co-tenant and thereby name of Narain appeared along with Ninhua in the sanad bhumidhari and also records". The learned Revenue Officer did not take any further trouble in this regard. The learned Additional Commissioner Shir M. Saidullah was equally brief. His judgment contains wrong facts e.g., he has mentioned that "It is admitted that Ninhua had died 12 years ago and Bachanu father of Narain respondent had died 3 years later". The portion underlined by me is a wrong statement of fact and evidence. Narain defendant, (D.W. 7) had, on the contrary said, that Ninhua had died 10-12 years ago and that Bachanu died four years ago. It means that Banchanu died after eight years of the death of Ninhua. The learned Additional Commissioner did not consider anything at all. Frankly speaking, he did not at all apply his mind to the case and his judgment is no judgment in the eye of law. He skipped from the point to point and left every point unconsidered and un-discussed. He again wrongly mentioned that It is also significant that after Ninhua's death there was no mutation in favour of the appellant Badri and Banchanu. The fact is that their names were mutated in place of Ninhua. After the aforesaid sentence, without dealing with any oral or documentary evidence and with complete disregard to any material fact, argument or sequence the learned Additional Commissioner observed, "The learned trial court therefore, very correctly held that Narain was taken as co-tenant over the land in suit with the consent of the then Zamindar and his name was also included in the sanad bhumidhari under the A.T.A.P.A. Act". The fact is that there is not an iota of evidence on the record that the zamindar had given consent for cooption of Narain as a co-tenant along with Ninhua. There is also no evidence, worth credence, that Ninhua co-opted Narain as his co-tenant. The courts below did not at all consider this appeal of the matter. Their finding is baseless and consequently pervert. 12. There is also no evidence, worth credence, that Ninhua co-opted Narain as his co-tenant. The courts below did not at all consider this appeal of the matter. Their finding is baseless and consequently pervert. 12. It has been argued by the learned counsel for the respondent that Section 3-B and Section 3-C of the U.P. Agricultural tenants (Acquisition of Privileges) Act enable a person, thought unrecorded, to acquired bhumidhari sanad, and that if such a sanad is issued if must be given effect to until it is cancelled under Section 12 of that Act. To controvert this a argument, the learned counsel for the appellant has relied on the High Court ruling in 1963 R.D. 333 (Supra) and has argued that this ruling is clear on the pre-condition that a person belongs to a class mentioned in Section 3 and 3-A(2) of U.P. Act X of 1949 and not to a person mentioned is Section 3-B and 3-C of Act X of 1949 Both these contentions are only partly true. Taking the second contention first, it may be observed here that the High Court, in 1963 R.D. 333, was not dealing with Section 3-B and 3-C of Act X of 1949 and never said or meant to say that persons mentioned in Section 3-B and 3-C will not be granted bhumidhari sanad. Though Section 18(2) of the U.P. Z.A. Act does not mention Section 3-B and 3-C and mentions only Sections 3 and 3-A of Act X of 1949, it does not mean that bhumidhari rights will accrue only to persons mentioned in Sections 3 and 3-A(2) of Act X of 1949 and will not accrue to persons mentioned in Section 3-B and 3-C of the Act. Section 3-B and 3-C do not say anything about another case of tenants but deal with unrecorded tenants. In this context unrecorded tenant must be a co-tenant with the recorded tenant and when the recorded tenant admits the co-tenancy rights of the unrecorded person that un-recorded person will become a co-tenant of the same class as the recorded tenant. So if the recorded tenant fulfils the condition of Section 3-A and 3-A(2) of Act X of 1949, the unrecorded person mentioned in Section 3-B and 3-C must, inevitably fulfil that condition. In fact, Section 3-B and 3-C are explanations to Section 3 and 3-A(2) of this Act and are not incompatible with it. So if the recorded tenant fulfils the condition of Section 3-A and 3-A(2) of Act X of 1949, the unrecorded person mentioned in Section 3-B and 3-C must, inevitably fulfil that condition. In fact, Section 3-B and 3-C are explanations to Section 3 and 3-A(2) of this Act and are not incompatible with it. The Legislature has not enacted Sections 3-B and 3-C of Act 1949 without a purpose and it must not be treated as an illusory provision. Unless Sections 3-B and 3-C of the Act are reads as an explanation of section 3 and 3-A of the Act, they will remain a superfluity on the status book. Therefore, Section 18(2) U.P. Z.A. Act must be read along with Sections 3, 3-A, 3-B, and 3-C of Act X of 1949. 13. But it does not mean that any un-recorded person can take the advantage of Sections 3-B and 3-C of Act X of 1949. The unrecorded person must fulfil the conditions laid down in these two sections. Section 3-B of Act X of 1949 is as follows: "(1) Any person claiming to be entitled as co-tenant of a holding along with the recorded tenant thereof but whose name is not recorded in the record of rights relating thereto may apply under Section 3 for declaration in respect of the whole holding or his share therein. (2) No application under sub-section (1) shall be granted unless the tenants whose names are recorded in the record of rights give their content in writing". In the instant case, it appears that Narain defendant gave application under this section. Narain defendant has admitted that he had no share in the holding before he got the bhumidhari sanad. This means that before the issuance of bhumidhari sanad he could not claim co-tenancy rights in the holding. Thus, if further means that he could not have applied for bhumidhari sanad under Section 3-B of Act X of 1949. A person, who admits, that before the grant of a bhumidari sanad, he had no share in a holding could not, in all fairness, claim to be entitled to co-tenant of a holding. And, if he really made such a claim the fraud practised becomes apparent. A person, who admits, that before the grant of a bhumidari sanad, he had no share in a holding could not, in all fairness, claim to be entitled to co-tenant of a holding. And, if he really made such a claim the fraud practised becomes apparent. The commission of the fraud was facilitated by the facts that the recorded tenant was an old man of more than 70 years, that his eye-sight had been affected by old age, that for the last 2-4 years he was so weak and infirm that he could not even walk, that the unrecorded person was the grand-son of the recorded tenant and was in a position to inspire confidence in the recorded tenant and that the person to be pre-judicially affected by the bhumidhari sanad was Badri plaintiff who was kept in the dark about this transaction. Section 3-B envisages an antecedent title in the unrecorded person and only then it can be made compatible with Section 3 and 3-A of Act X of 1949. In the case before us, the unrecorded person, that is, Narain had no semblance of any right and title in the land in suit and therefore he could not, except in case of fraud, reasonably claim co-tenancy rights in the holding and therefore he could not apply for grant of bhumidhari sanad under Section 3-B of the Act. If he did so and obtained a bhumidhari sanad, it must be ignored because he could not, on the basis of that fraud, become a co-tenant of the holding. 14. Section 3-C and of the Act also envisages antecedent is in the unrecorded person. This section is as follows: "(1) In the case of a holding belonging joint to two or more persons as tenants but the of some only of the tenants being entered in the record of rights, the person recorded may in the application under Section 3, request the Assistant Collector to grant the declaration in favour jointly of himself as such persons". In the instant case such an application might have been given by Ninhua, the old disable recorded tenant. Such applications could not have been given under Section 3-C of the Act because the holding did not belong jointly to Ninhau and Narain and that Narain had no interest in it before the grant of the Bhumidhari sanad. In the instant case such an application might have been given by Ninhua, the old disable recorded tenant. Such applications could not have been given under Section 3-C of the Act because the holding did not belong jointly to Ninhau and Narain and that Narain had no interest in it before the grant of the Bhumidhari sanad. Narain himself has admitted that he had no share in the holding before the grant of the sanad. So no privilege could accrue to Narain on the basis of that bhumidhari sanad because a priori, he was not entitled to get a bhumidhari sanand either under Section Section 3, or Section 3-A(2) or Section 3-B or Section 3-C of the Act X of 1949. 15. On the basis of the evidence on record, and in the light of the discussions of Law made above I hold that as Narain did not belong to the class of tenants mentioned in Section 3 and 3-A(2) of Act X of 1949 and as he was not a co-tenant along with Ninhua, he will not be deemed to be co-bhumidhar of the holding along with his grand-father and inspite of the grant of bhumidhari sanad in his name. 16. Now, we are taken to the next question of law argued in this case. That is regarding application of Section 49, U.P.C.H. Act. The defendant Narain had not taken the plea that the claim of the plaintiff about half share was barred by Section 49, U.P. C.H. Act. No issue was framed on this point. And yet the courts below negative the claim of the plaintiff on his ground. The judgment and order of the courts below is perverse on this ground also. I have already observed that both the courts below failed to discuss the evidence of the parties and also the points involved in the case. A perusal of the judgment of the courts below will show that it has been rendered by feudal lords and not by judicial officers. It will be amusing to note the findings of the courts below on Section 49 U.P. C.H. Act. The trial court, without any discussion, observed that "I have given my calm consideration to the entire argument and have come to the conclusion that Section 49 of the C.H. Act fully applies to this case as well and ruling of 1969 will not be of any help". The trial court, without any discussion, observed that "I have given my calm consideration to the entire argument and have come to the conclusion that Section 49 of the C.H. Act fully applies to this case as well and ruling of 1969 will not be of any help". The learned Additional Commissioner had only this much to say on this point, "It is difficult to find fault with the view of the trial court that the entries of chakbandi had become final". Without a plea being raised and without framing any issue on the point the learned courts below gave a finding that the claim of the plaintiff was barred by Section 49 U.P.C.H. Act. This unsolicited finding is unwarranted and the judgments and orders of the courts below are vitiated by this. I think that no such finding can be given on Section 49, C.H. Act in the circumstances mentioned above. 17. In this case the shares of the parties had not been determined by the consolidation courts. In the Shuddha Khatauni 1369 Fasli, that is, of the year immediately preceding start of consolidation operation, the names of Narain, Bachanu and Badri were recorded as all the three were described as sons of the Ninhua, though Narain is the son of Bachanu and not of Ninhau. This entry continued during the consolidation operations. In the final chakbandi-khatauni, that is in C.H. Form 45 the same entry continued. As far as paternity of Narian is concerned the entries are obviously wrong. However, the question is whether in the case of the ancestral land in which devolution of share would be 'per sirpes' the inclusion of the name of the son of the two cons of the common ancestor, will necessarily involve a declaration that son's son, who could not inherit any share in the life-time of his father, had an independent and antecedent title in the holding. In case of strangers a strict view will be taken and the express or implied declaration of the consolidation courts must be strictly adhered to. But in case of family members who are closely related to each other and who had avoided dispute and litigation in the consolidation proceedings a tittle liberal interpretation of the entries will be made. In case of strangers a strict view will be taken and the express or implied declaration of the consolidation courts must be strictly adhered to. But in case of family members who are closely related to each other and who had avoided dispute and litigation in the consolidation proceedings a tittle liberal interpretation of the entries will be made. The entries in the instant case, show that Narain is wrongly recorded as son of Ninhua and yet no one objected to such an entry. If consolidation entries are considered to be sacrosanct and final, it should be further insisted that the entries must be taken as they are and no further. If Narain defendants claim is accepted on the ground that Narain's name finds place in C.H. Form 45, the plaintiff Badri is very well within his rights to insist that the entry does not relate to Narain son of Bachanu but to a non-existent person Narain son of Ninhua and so defendant no. 1 Narain son of Bachanu will not be deemed to be tenant of the holding on the basis of consolidation holding. If a person, on the strength of a covenant, asserts that he is entitled to take a pound of flesh from the heart of his enemy, the aggrieved person has also a right to insist that person will take the pound of flesh on the impossible condition that in cutting the flesh not a single drop falls from the wound. When we further take into consideration the fact that the name of Narain was entered on the basis of a fraud committed by him on his grand father Ninhau and on his real uncle Badri (plaintiff) there will be justification in wriggling out of the quagmire of Section 49, U.P. C.H. Act. Courts of law are also courts of justice and they are naturally averse to allow a person to reap the advantage of his own wrong acts. I, therefore, hold that the defendant no. 1 Narain son of Bachanu cannot take the advantage of consolidation entries, which are not in his favour but are in the name of Narain son of Ninhua. 18. The land in suit was the sole tenancy of Ninhua. Narain defendant was note a co-tenant along with him and he could not basis of bhumidhari sanad. 1 Narain son of Bachanu cannot take the advantage of consolidation entries, which are not in his favour but are in the name of Narain son of Ninhua. 18. The land in suit was the sole tenancy of Ninhua. Narain defendant was note a co-tenant along with him and he could not basis of bhumidhari sanad. On the death of the Ninhua, his two sons Badri and Bachanu inherited his interest, each of them a moiety. The half share of Bachanu was inherited by defendant No. 1 Narian who became entitled to only a half share in the land in suit. In the circumstance of this case, I allow the appeal, set aside the judgment and order of the trial court and of the first appellate court and decree the plaintiff's suit, giving a declaration that the plaintiff is entitled to half share in the land in suit which shall be partitioned, the order half share going to Narain defendant No. 1. Preliminary decrees shall be accordingly prepared. The plaintiff shall get the costs of the suit and Rs. 50 as counsel's fees.