JUDGMENT A.U. Khan, Member - The facts are: 5 plots admeasuring 2.35 decimals was tenancy of Jeet Narain's: They made a contract of sub-letting to plaintiffs and defendant second set's ancestors, as they lived at a 30 miles distance. In consequence the sub-tenants name in possession but now plaintiffs alone are in cultivatory possession because of surrender of interest to them by ancestors of Bakru D/3 and Kishore D/4 second set some 7/8 years ago. The upshot is that plaintiff's: 4 men alone became sole sirdars in possession. Further claim is that they are recorded as occupants in khasra 1356 Fasli: Sub-tenants who became Adhivasis and attained the status of sirdars. Still more: proceedings for payment of compensation under Section 240-G Z.A. and L.R. Act was held but tenant-in-chief Jeet Narain's file no objection. That decision became final and operates as res-judicata. It is pleaded that Jeet Narain's have got entry of possession erroneously made in revenue records and have transferred some area to Katwaroo D/5 whose pretention of bhumidhari rights has no valid basis. A declaration for tenancy rights of sirdars in possession is prayed for. In the alternative, a relief for restoration of possession is made, if found dispossessed. 2. A written statement by Kishore D/4 and Harihar Prasad D/6 is filed on 10.2.65. They refute that a contract of sub-letting was ever made by Jeet Narain's; also possession and entry of a recorded occupants in 1356 Fasli is challenged. Section 240-G proceeding is infected as no notice was ever served upon them. That plaintiff's did not become Adhivasi on 30 October, 1954 and they never were in possession. This is confessed in an application and in a statement before Tahsildar, Varanasi in 1956 in a correction of paper proceeding. More, two sons of plaintiff's have purchased in part disputed land on 1.9.56; so they are estopped from setting forth a plea of Adhivasi rights. A law suit No. 65/1956 Katwaroo v. Jeet Narain was litigated in civil court and decreed on 9.8.63. In this suit all vendees and father of Lallan and Kulbull were contestant; plaintiffs too were doing pairvi. A law suit No. 65/1956 Katwaroo v. Jeet Narain was litigated in civil court and decreed on 9.8.63. In this suit all vendees and father of Lallan and Kulbull were contestant; plaintiffs too were doing pairvi. Still more, Lallan was pretending to contest on behalf of Kishore but withdrew for fear of detection when appeal lay in First Additional Civil Judge's. In the partition suit plaintiffs sirdari rights were not found acceptable; the chief tenants were held to be Bhumidhars and suit was decreed accordingly. So the decision will operate as res judicata against plaintiffs. That a sale-deed of a part of disputed land has also been executed to Kishore D/4 who enjoys undisturbed possession. That Jeet Narain's: chief tenants, are in continuous possession as Bhumidhars. The plaintiffs suit is barred as such. The suit is bad for nonjoinder of Barsati and Kallu who are vendees. Immediately, then, Barsati Ram and Jagannath, guardian of Kallu were impleaded as defendants. On 23.4.65 they have filed a joint written statement in utter rebuttal: no contract of sub-tenancy, not recorded occupant in 1356 Fasli, not in active possession; nor became Adhivasi and then sirdars. The rest of pleading is on the lines as set forth by D/3 and D/4. Bhagal and Kamata were later impleaded as defendants who support plaintiffs pleadings. 3. On the pleadings issues were formulated on 28.5.65. Further issues were added on 7.10.65 including: whether defendants 5 to 8 are co-bhumidhars alone with plaintiff's as alleged? A co-tenancy issue: More on it later. 4. A declaration of title to land for plaintiffs was decreed on 20.2.68 by Judicial Officer (Revenue). In the Commissioner's, defendant Katwaroo's appealed. Additional Commissioner by his judgment and decree dated 21.8.68 has reversed the opinion of court of first instance: verdict dated 20.2.68, and remanded the suit for decision afresh after impleading Chaggan and Kamata and to frame additional issue based on principle of estoppel. Revision against this was dismissed by Board of Revenue on 29.12.1968. 5. The file came down: Assistant Collector first class, Varanasi by his judgment and decree dated 28.8.75 dismisses the suit but curiously enough affirms plaintiff's co-sirdari rights in land. 6. An appeal is lodged by plaintiffs Kulbull: 4 men in Commissioner's. Addl. Commissioner on 11.3.77 has entered his judgmental opinion of co-sirdari rights without making an order allowing or rejecting the appeal or decreeing or dismissing the suit. 6. An appeal is lodged by plaintiffs Kulbull: 4 men in Commissioner's. Addl. Commissioner on 11.3.77 has entered his judgmental opinion of co-sirdari rights without making an order allowing or rejecting the appeal or decreeing or dismissing the suit. The second appeal is carried by Bhagwan Das and five others: defendants. 7. Heard pro and con the second appeal. 8. Two important features supportive of plaintiff's pleadings are: (1) 1356 Fasli and 1359 Fasli entries (2) Section 240 Z.A. and L.R. Act proceeding. Three aspects, set out in defendant's pleadings to undermine the plaintiff's claims, are shown to be barren and pointless. Section 33/39 L.R. Act proceeding: A civil court decree. Sale-deeds. 9. Do the revenue entries share and serve plaintiff's pleadings? They consistently do. Khatauni, extract of 1358 Fasli records 4 sub-tenants: Chakhur, Jhari Jagtu and Kishore Ziman 18: contract shown to commence 7 years earlier thereto given on Batai Nisfi 1/2 rent. This position rises in 1362 Fasli Khatoni: 4 sub-tenants have graduated to become Adhivasis. Then comes Khatoni 1363 Fasli which by legal incident confers on 4 Adhivasis sirdari rights. It is plain to see why they are ? Chakhur (father of Kulbull P/1 and Jhari (father of Chokhan P/2 and Balram P/3) Jagtu (father of Bakru D/3) and Kishore D/4, supporting defendants with whom also, the plaint avers, the contract of sub-tenancy: shikmi, was made by absentee chief tenants: Jag Narain's of Mirzapur. The appellant's counsel urges on the basis of 1968 R.D. 490 that no sub-tenancy will come to be on basis of only entries in village records which are in serious challenge. Is it so here? The plaintiffs allege contract of Shikmi with their ancestors, no less below than grandfathers: a matter of generation. It is not in three years but in khasras extracts for 1356, 1359, 1364, 1365 and 1371 Fasli: in khatoni extracts for 1358, 1362, 1363, 1365, 1370 Fasli. Also supplementary pieces include land revenue receipts 8 or thereabouts and irrigation slips. Tahsildar's order 3.9.57 and complimentary oral evidence. Shri Ram D/W 2, an ace witness for defendant's, has taken the wind out of their sails by his can did affirmation: alt these men, plaintiffs were given to farming the field as Shikmi (tenants). Set in this perspective the evidence: documental and oral, establishes with a coherent precision the important claim of sub-tenancy. Shri Ram D/W 2, an ace witness for defendant's, has taken the wind out of their sails by his can did affirmation: alt these men, plaintiffs were given to farming the field as Shikmi (tenants). Set in this perspective the evidence: documental and oral, establishes with a coherent precision the important claim of sub-tenancy. The crucial entry of 1356 Fasli more of it hereafter is significant and entry of sub-tenants of 4 men in Khatoni extract of 1359 Fasli is decisive of Shikmi rights. The sub-tenants: Chakhur, Jhari, Jagtu and Kishore became Adhivasi and by reason of legal conferment sirdars on October 30, 1954. 10. The counsel has much hope from formulation in 1955 R.D. 367 and reiteration of this position in 1967 RD 334 . It will bear to re-produce here. "U.P. Zamindari Abolition and Land Reforms Act 1 of 1951. Section 20 (b) (i) - Adhivasi rights - Accrual of - Occupant dying before U.P.Z.A. L.R. Act came into operation. His heir cannot acquire adhivasi rights within Section 20 (b) (i) and claim immunity from ejectments." "The rights of an adhivasi accrue by operation of law i.e. under Section 20 U.P. Zaminari Abolition and Land Reforms Act. Though the basis of these rights under Section 20 (b) (i) is the entry of 'occupant' in the year 1356 Fasli, these rights do not accrue until the U.P.Z.A. and L.R. Act came into operation from the date of vesting viz. 1st July 1952. Where a person had died on 1st April, 1951 before the filing of a suit for ejectment against his heir, the person had not acquired any rights whatever before his death which could be transferred to his heir on his death. A person who is an heir of an occupant within the meaning of the term in Section 20 (b) (i) and cannot acquire adhivasi rights and is not entitled to claim immunity from ejectment on that basis." The counsel insists that on date of vesting: 1st July, 1952 Jhari, father of plaintiffs 2 and 3 was dead. But he died on 10.7.52. I see the death occurs after crucial date of vesting. It is not proven that all 4 sub-tenants have died before the date of vesting to deprive plaintiffs of their inheritance. It is apt to refer to 1964 R.D. 109 F.B.H.C. a precedent I see on my own, which can be assimilated here. But he died on 10.7.52. I see the death occurs after crucial date of vesting. It is not proven that all 4 sub-tenants have died before the date of vesting to deprive plaintiffs of their inheritance. It is apt to refer to 1964 R.D. 109 F.B.H.C. a precedent I see on my own, which can be assimilated here. "U.P. Zamindari Abolition and Lana Reforms Act 1 of 1951, Section 240-G - Acquisition of sirdari rights by adhivasi under Section 240-B - Not necessary for person who is adhivasi or deemed to be adhivasi to be in actual possession of land on October 29, 1954. It was not essential for an adhivasi or a person deemed to be an adhivasi to be in actual possession of the land on October 29, 1954 in order that he should acquire sirdari rights under Section 240-B of the Zamindari Abolition and Land Reforms Act provided that his adhivasi rights were not extinguished before that date by lapse of time or otherwise. If he was out of possession on that date while still retaining the rights it did not matter whether he was dispossessed by his landholder or by a stranger or for what period his dispossession lasted." 11. So that is that. There is evidence that Z.A. Form 101 was prepared of land held by Adhivasis for conferment of sirdari rights on them in accordance with Chapter IX-A Z.A. and L.R. Rules. Exhibit 6 and 7 are statements of compensation rolls in the names of Chakhur, Jhari, Jagtu and Kishore for plots in dispute: 5 plots admeasuring 2.35 decimals. We see failure by chief tenants Jagat Narain's to file objection to compensation statement and amount thereof. It became final. The rights are extinguished of Jagat Narains: 1968 A.L.J. 89. The appellant's pleading that notice thereof was not served upon them is barren as they have failed to discharge their full burden. In case an order has been passed under Section 240-G of the Act the same cannot be subsequently challenged unless it is shown that the procedure provided under the Z.A. and L.R. Act or rules have been violated as is mediated in 1975 A.W.C. 107 F.B.H.C. Persons who are recorded in 1356 Fasli as occupants, as surely Chakhur's are, and shown as Adhivasis in a proceeding under Section 240-G Z.A. and L.R. Act will become sirdars. Such a finding will operate as res judicata: 1987 A.W.C. 277. 12. It has been urged on the basis of 1991 R.D. 314 that defendant/appellants possession is adverse no matter pleaded or not. In the precedent 30 years possession was proven and so taken as pleaded for adverse possession. Is it so here? The possession of Katwaroo D/5 is not found proven upon whole of evidence. In a proceeding under Section 145, Cr.P.C. plaintiffs were restrained from interfering with possession of vendees Shri Ram's by order of Sub-Divisional Officer dated 30.11.71. So at last vendees have trespassed. It is just and proper to order their ejectment from possession over disputed land that came by aggression in the year 1971. Suit filed in 1964. Counsel insists on the basis of 1973 R.J. 26 to have acquired rights under Section 210 Z.A. Act by reason of being in possession. But the trespassers are not in possession for the prescribe period of limitation. The possession came about when suit lay in court. 13. Katwaroo D/5 institutes a law suit No. 65 in Civil Court for division of holding against Jagat Narain's am 11 others. The suit decreed on 9.8.63 and a final decree followed. It is contended that this decision is a legal road block to plaintiff's by principle of res judicata. I do not agree. Chakhur, father of plaintiff Kulbull and Jhari (father of P/2 and 3) were not parties in that litigation. Their application for impleadment was sadly rejected on 6.10.58. They are not bound by decree of civil court. This point fails. 14. Plaintiff's pleading is that Nanhko D/3 and Kishore D/4 of second set have surrendered their sirdari right to make them sole tenants. Surrender of rights of sirdari in favour of co-tenants is not supportable in law. Plaintiffs will have to stand with supporting defendants. Counsel for appellant states that where relief is for sole tenancy rights: 1966 R.D. 52 would not approve of grant of co-sirdari rights though evidence establishes it. This is no longer a good law. Even if, pleading is for sole, co-tenancy sirdari rights can be decreed. 1983 A.W.C. 85 and 1986 A.W.R. 489 has not approved the case: 1965 A.W.C. 775. Co-tenancy is apt to be granted. 15. Recorded occupants: Khasra 1356 Fasli. This needs separate treatment and exposition. This is no longer a good law. Even if, pleading is for sole, co-tenancy sirdari rights can be decreed. 1983 A.W.C. 85 and 1986 A.W.R. 489 has not approved the case: 1965 A.W.C. 775. Co-tenancy is apt to be granted. 15. Recorded occupants: Khasra 1356 Fasli. This needs separate treatment and exposition. Some essential decisive features to go by as it respects Section 20 (b) (i) Z.A. and L.R. Act are: 1. He is entitled to Adhivasi rights who is recorded as occupant in khasra (or khatoni of 1356 Fasli (1.7.48 to 30.6.49) or its correction before July 1st, 1952. 2. In relation to Varanasi district, by a subsequent amendment, 1356 Fasli has to be read as 1357 Fasli in respect of areas comprised in the erstwhile Banaras State. 3. A person recorded as sub-tenant is a recorded occupant within the meaning of Section 20 (b) (i) of the Act; 1967 A.L.J. 960. The entry of sub-tenant is an entry of an occupant quo the tenant-in-chief and entry of a tenant is of an occupant quo the landlord: 1972 A.L.J. 738. 4. The recorded occupant of 1356 Fasli will be Adhivasi after July 1, 1952 provided he is in possession or was evicted after June 30, 1948. Then he is to be put back in possession notwithstanding any order or decree: (1964)7 S.C.R. 800 . 5. The record of entry in the crucial year eliminates enquiry into disputed possession: 1990 Alld. C.J. 580. 6. A person recorded as an occupant on the relevant date even with no right to possession even prior thereto, will acquire adhivasi rights: (1968) 3 S.C.R. 498 . 7. It is apt not to go behind the entry: not to enquire whether he was in possession or not: no cause to investigate whether entitled to possession or not; not to ascertain the basis: whether in his own right in possession or on behalf of some one else - 1990 Alld. C.J. 581. 16. The important extract of khasra 1356 Fasli records all 4 men: Mahgi, Jagtu, Kishore and Jhuri as sub-tenants quo chief-tenant Murli Brahmin on all 5 disputed plots admeasuring 2.35 decimals. This achieves right as it fulfils legal requirement. 17. On possession: There is overwhelming evidence documental and oral that bears out plaintiff's continuous possession. Rent receipts, and irrigation slips corroborates this conclusion. This achieves right as it fulfils legal requirement. 17. On possession: There is overwhelming evidence documental and oral that bears out plaintiff's continuous possession. Rent receipts, and irrigation slips corroborates this conclusion. But there has been abrupt change when appellant has taken possession by aggression in 1971 as shown by Sub-Divisional Officer's order in section 145 Cr.P.C. case. The suit has been filed on 10.11.64 on which date rights and interests of contestants stand slated for determination. 18. Sale-deeds; chief tenant's had executed sale-deeds on 1.9.56 to two sons of plaintiffs; also to Kishore D/4 and Katwaroo D/5. The vendors had no saleable interest in land and no title passed to defendant's: Katwaroo's. The sale-deeds to plaintiffs sons, executed without their participation in transaction, is illustrative of their malafide intention intended to forestall their claim and contention. If the plaintiffs themselves purchase from Jagat Narain's, how come it they deny chief tenant's rights? The deeds are one sided sham transaction and the plot has filed. 19. Upon all I see, this second appeal has no force and is dismissed with costs throughout. The defendant/appellant's are ordered to be ejected from the land in suit in view of their forcible taking of possession. The suit is decreed.