JUDGMENT Ram Surat Ram (Maurya), J.: - Heard Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri U.S. Sahai, for the petitioner and Sri Q.M. Haq, for the contesting respondents. 2. The writ petition has been filed against the order of Deputy Director of Consolidation dated 02.05.1978, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). Respondents-2 to 4 have also challenged the aforesaid order in the connected writ petitions. 3. Ganga Prasad (respondent-2) filed an objection in respect of plots 254 (area 0.84 acre), 261 (area 0.23 acre), 275/1 (area 0.22 acre), 286 (area 0.19 acre), 287 (area 0.07 acre), 777 (area 0.18 acre), 1418 (area 0.22 acre), 1461 (area 0.24 acre), 1462 (area 0.33 acre), 1637 (area 0.41 acre), 1697 (area 0.47 acre), 2251 (area 0.31 acre) and 2320 (area 0.22 acre), situated in village Bhawaniapur Upadhyay, pargana and district Gonda. Mewa Ram (respondent-3) filed an objection in respect of plots 30 (area 0.16 acre), 259 (area 0.23 acre), 1877 (area 0.11 acre), 1917 (area 0.45 acre), 2192 (area 0.26 acre), 2265 (area 0.28 acre) and 2315 (area 0.28 acre), situated in village Bhawaniapur Upadhyay, pargana and district Gonda. Raj Dutt (respondent-4) filed an objection in respect of plots 1726 (area 0.50 acre), 2326/1 (area 0.47 acre), 2326/2 (area 0.02 acre) and 2327 (area 0.04 acre), situated in village Bhawaniapur Upadhyay, pargana and district Gonda. In basic consolidation records, lands in dispute were recorded in khata 104 in the names of the petitioners and his predecessors as sirdar and the names of the respondents were recorded in column 9 of the plots claimed by them. The respondents filed objections claiming sirdari right over the land in dispute, which was contested by the petitioners. 4. All the cases were consolidated and tried by Consolidation Officer. The respondents filed khatauni 1370 F and 1377 F and khasra of the years 1362 F, 1363 F, 1364 F, 1366 F and 1368 F to 1374 F and copy of the order of Additional Commissioner dated 05.01.1964 and examined Mewa Ram, Anant Ram, Raj Dutt, Hamid, Ganga Prasad and Mukta Nath. The petitioners filed khasra 1359 F, 1362 F and 1367 F and copies of order of Assistant Collector dated 17.06.1963, 13.06.1966 and 13.11.1968 and order of Additional Commissioner dated 07.06.1969. The petitioners filed khasra 1359 F, 1362 F and 1367 F and copies of order of Assistant Collector dated 17.06.1963, 13.06.1966 and 13.11.1968 and order of Additional Commissioner dated 07.06.1969. Copy of the application of Ganga Prasad for staying writ of possession and order passed on it dated 20.11.1968. Copy of the application moved before Superintendent of Police dated 20.06.1961, copy of compromise dated 26.06.1961 and copy of statement of Ganga Prasad, recorded in Case No. 74 decided on 05.01.1965 and examined Dashrath and Shiv Shankar as witnesses. Consolidation Officer, by order dated 30.09.1973 held the respondents were mortgagee over the land in dispute, which was redeemed in 1368 F and possession was taken over by the petitioners over the land in dispute. Thereafter they had forcibly taken possession over the land in dispute and suit for their ejectment was filed within time, which was decreed and possession over the land in dispute was taken over in execution of the decree. The respondents were mortgagee as such they did not acquire sirdari right over the land in dispute. On these findings, objections of the respondents were dismissed. 5. The respondents filed their separate appeals from the aforesaid order. The appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 18.11.1974 held that copies of khasra filed by the respondents shows that entry in it were without following the provisions of Land Record Manual. In as much as neither PA 10 was issued nor it was served, serial number of dairy and date were not mentioned as such no reliance can be placed over it, in view of paragraph-102 (C) of Land Records Manual. On the basis of khasra entries no right can be given to the respondents. Suit No. 86/4 filed under Section 209/229-B of U.P. Act No. 1 of 1951 shows that this suit was decreed by Judicial Officer on 13.11.1968 and this order has become final between the parties. The respondents have no right. On these findings the appeals were dismissed. 6. The respondents filed their separate revisions. Deputy Director of Consolidation consolidated the revisions and heard together and by order dated 02.05.1978 held that the respondents were recorded as mortgagee in 1359 F khatauni as such they had become asami under Section 21 (d). The respondents have no right. On these findings the appeals were dismissed. 6. The respondents filed their separate revisions. Deputy Director of Consolidation consolidated the revisions and heard together and by order dated 02.05.1978 held that the respondents were recorded as mortgagee in 1359 F khatauni as such they had become asami under Section 21 (d). Although no papers showing the nature of tenancy of the petitioners has been filed but they admitted that they were hereditary tenant. Suit for ejectment of the respondents was not decided finally. As such their names is liable to be recorded as asami and the petitioners will have right to file a suit for their ejectment according to the provisions of Section 202 of U.P. Act No. 1 of 1951 after close of consolidation. On these findings the revisions of the respondents were allowed and their names were directed to be recorded as asami. Hence these writ petitions have been filed. 7. The counsel for the petitioners submitted that the land in dispute was mortgaged to the predecessors of the respondents in 1353 F. The mortgage was redeemed in 1952. Therefore, the names of the respondents were never recorded as asami after date of vesting. In the year 1961, the respondents illegally took possession over the land in dispute. The petitioners then moved an application before Superintendent of Police on 20.06.1961. Thereafter the matter was compromised and a written compromise was executed on 26.06.1961 and the respondents agreed to vacate the land in dispute. However, they did not abide the compromise, then suit under Section 229-B/209 of U.P. Act No. 1 of 1951 was filed, in the year 1368 F, corresponding to 1961. The suit was within time and it was finally decreed on 13.11.1968 and the appeal of the respondents was dismissed by Additional Commissioner on 07.06.1969. Settlement Officer Consolidation has found that decree dated 13.11.1968 has become final. In the meantime the village was placed in consolidation operation. Where the respondents again filed their objections, claiming sirdari rights. The respondents never claimed asami right on the basis mortgage rather they claimed sirdari right on the basis of adverse possession. Settlement Officer Consolidation found that khasra entries relied upon by the respondents were not made after following the procedure of Land Record Manual as such no reliance can be placed on it. The respondents never claimed asami right on the basis mortgage rather they claimed sirdari right on the basis of adverse possession. Settlement Officer Consolidation found that khasra entries relied upon by the respondents were not made after following the procedure of Land Record Manual as such no reliance can be placed on it. In any case, it was found that suit was filed within time as such adverse possession was not perfected. Deputy Director of Consolidation has carved out a third case for the respondents that they had become asami under Section 21 (1) (d). Similarly Deputy Director of Consolidation has illegally presumed that the petitioners were hereditary tenant. The order of Deputy Director of Consolidation is illegal and is liable to be set aside. He relied upon the judgment of Supreme Court in Pratap Singh Vs. Deputy Director of Consolidation, (2000) 4 SCC 614 , in which that possession of mortgagee is held as permissive possession and limitation for their ejectment would start from the date of refusal to hand over possession. 8. In reply to the aforesaid arguments, the counsel for the respondents submitted that it was admitted that the respondents were mortgagee since 1353 F. The petitioners also filed extract of khatauni 1359 F in which the names of the predecessors of the respondents were recorded as mortgagee over the land in dispute. In the compromise dated 26.06.1961, the respondents agreed to vacate the land on taking mortgage money. Deputy Director of Consolidation found that the petitioners could not adduce any evidence to show that mortgage money was ever paid to the respondents. As the respondents were recorded as mortgagee in 1359 F khatauni as such they had become asami under Section 21 (d) after date of vesting. Section 202 (c) of U.P. Act No. 1 of 1951 contemplates for a suit for ejectment of asami under Section 21 (d) on deposit of mortgage money. Appendix III of U.P. Zamindari Abolition and Land Reforms Rules, 1952 provides limitation for filing of the suit. Vide Entry 25 (iv) of Appendix III, three years limitation from the date of redemption of mortgage has been provided. Limitation has already been expired as such the respondents have become bhumidhar with non-transferable right of the land in dispute under Section 204 of the Act. Vide Entry 25 (iv) of Appendix III, three years limitation from the date of redemption of mortgage has been provided. Limitation has already been expired as such the respondents have become bhumidhar with non-transferable right of the land in dispute under Section 204 of the Act. The writ petitions filed by the respondents were liable to be allowed and their names be directed to be recorded as bhumidhar with non-transferable right over the land in dispute. In any case, Section 200 of U.P. Act No. 1 of 1951 protects possession of the asami and the order of Deputy Director of Consolidation directing for recording the names of the respondents as asami does not suffer from any illegality. The writ petition filed by the petitioners is liable to be dismissed. 9. I have considered the arguments of the counsel for the parties and examined the record. A perusal of the order of Deputy Director of Consolidation dated 02.05.1978 shows that he has found that the predecessors of the petitioners were hereditary tenants. Under Section 33 of U.P. Tenancy Act, 1939, a hereditary tenant in Awadh was not having transferable right. The case of the petitioners was that before date of vesting, mortgage was redeemed and they had taken possession over the land in dispute. That was the reason, that after date of vesting the names of the respondents were not recorded as asami over the land in dispute. Before the Consolidation Officer, the respondents did not claim asami right but claimed sirdari right on the basis of adverse possession as their names were recorded in column 9 of the khasra, since 1362 F. Thus Deputy Director of Consolidation illegally held that the respondents acquired asami right under Section 21 (1) (d) of U.P. Act No. 1 of 1951. If the respondents were not in possession of the land in dispute on the date of vesting, they will not get asami right. 10. If the respondents were not in possession of the land in dispute on the date of vesting, they will not get asami right. 10. Supreme Court in Ram Adhar Singh v. Bansi, (1987) 2 SCC 482 , upheld the view of the Allahabad High Court that a usufructuary mortgage of an occupancy holding was not valid as a mortgage with all its incidents and subject to the provisions of law relating to usufructuary mortgage but was valid only in a qualified sense i.e. in the sense of subletting with a covenant that the mortgagor will not be entitled to recover possession without payment of the mortgage money, and further that under such a mortgage there is no transfer of the right of an occupancy tenant and consequently no suit for redemption was maintainable nor was there any extinguishment of the right of an occupancy tenant upon the expiry of the period of limitation fixed for redemption under Article 148 of the Limitation Act, 1908. There is a long catena of decisions dealing with the question starting from Khiali Ram v. Nathu Lal, ILR 15 All 219 (FB) down to Samharu v. Dharamraj Pandey, AIR 1970 ALL 350 (FB). It follows that it has been the settled law as administered in the then United Provinces that a usufructuary mortgage of an occupancy holding was invalid and there was no transfer of an interest by the occupancy tenant and the mortgagee acquired no right other than the right to retain possession and fall back upon the stipulation in the so-called mortgage bond till his money was paid. As pointed out in the Full Bench decision in Samharu v. Dharamraj Pandey the view that a usufructuary mortgage by an occupancy tenant was not valid in the eye of law has been accepted by the legislature in clause (d) of Section 21(1) the U.P. Zamindari Abolition & Land Reforms Act, 1951. 11. Settlement Officer Consolidation found that khasra entries relied upon by the respondents claiming adverse possession were not made after following the procedure of Land Record Manual as such no reliance can be placed on it. This Court in Gurumukh Singh Vs. DDC and others, 1997 RD 276, relying upon the previous judgment of this Court held that in case khasra was not prepared according to the provisions of Land Record Manual then it has no evidentiary value. This Court in Gurumukh Singh Vs. DDC and others, 1997 RD 276, relying upon the previous judgment of this Court held that in case khasra was not prepared according to the provisions of Land Record Manual then it has no evidentiary value. As such Settlement Officer Consolidation has not committed any illegality in this respect and this findings has not been set aside by Deputy Director of Consolidation. 12. The case of the petitioners was that in the year 1961, the respondents illegally took possession over the land in dispute. The petitioners then moved an application before Superintendent of Police on 20.06.1961. Thereafter the matter was compromised and a written compromise was executed on 26.06.1961 and the respondents agreed to vacate the land in dispute. However, they did not abide the compromise, then suit under Section 229-B/209 of U.P. Act No. 1 of 1951 was filed, in the year 1368 F, corresponding to 1961. Settlement Officer Consolidation found that the suit was within time and it was finally decreed on 13.11.1968 and the appeal of the respondents was dismissed by Additional Commissioner on 07.06.1969 and decree dated 13.11.1968 has become final. Deputy Director of Consolidation found that decree was not final. Even if the decree was not final but suit having been filed for ejectment of trespasser within time and on the findings that the petitioners were sirdar, Deputy Director of Consolidation was not justified in setting aside the order of Settlement Officer Consolidation. 13. Deputy Director of Consolidation relied upon the compromise dated 26.06.1961 and held that as in this compromise, the respondents agreed to vacate the land in dispute after taking back the mortgage money but the petitioners could not prove that mortgage money was paid by them thereafter. But at the same time, he failed to examine the case of the petitioners the mortgage was already redeemed before date of vesting and since 1952 to 1961, the respondents were not in possession over the land in dispute. They again forcibly took possession in the year 1961 and suit for their ejectment was filed in 1961. Subsequent taking possession over the land in dispute will not amount to mortgagee's possession. Burden was upon the respondents to prove that mortgage money remained due. If it had been proved that mortgage money remained due then they could at the most entitled for money and not the possession. 14. Subsequent taking possession over the land in dispute will not amount to mortgagee's possession. Burden was upon the respondents to prove that mortgage money remained due. If it had been proved that mortgage money remained due then they could at the most entitled for money and not the possession. 14. In the result, Writ Petition No. 1909 (Consolidation) of 1978 succeeds and is allowed. The order of Deputy Director of Consolidation dated 02.05.1978 is set aside. Writ Petition No. 2058 (Consolidation) of 1978, Writ Petition No. 2089 (Consolidation) of 1978 and Writ Petition No. 2172 (Consolidation) of 1978 are dismissed.