Allahabad High Court
Heshamullah And Others vs The U.P. Sanchalak Chakbandi, ... on 26 November, 2019
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 7 Case :- CONSOLIDATION No. - 2141 of 1981 Petitioner :- Heshamullah And Others Respondent :- The U.P. Sanchalak Chakbandi, Pratapgarh And Others Counsel for Petitioner :- S.Mirza,Anjum Ara,Jagdish Singh,Mohammad Aslam Khan,Shahid Raza Counsel for Respondent :- Jitendra Misra Hon'ble Rajan Roy,J.
None has appeared on behalf of the contesting opposite party no.3 to argue the matter.
Heard.
The dispute herein pertains to Gata No.1022. The consolidation operation started on 21.7.1973 on issuance of notification under section 4. In the Basic Year Khatauni the opposite party no.3 Mujibulla was recorded therein consequent to a sale-deed said to have been executed by the erstwhile tenure holder Habib Khan in his favour in the year 1968 which corresponds to 1375F. During partal a dispute arose with regard to Sirdari rights on the basis of adverse possession. The petitioners who are the sons of Abdul Majid were allegedly found to be in possession of the land in dispute during partal. When the dispute came up for consideration before the Consolidation Officer in the first round of litigation, the Consolidation Officer (C.O.) rejected the claim of the petitioners based on adverse possession vide order dated 8.2.1978, however, when an appeal was filed by the petitioners before the Settlement Officer, Consolidation (S.O.C.), the same was allowed on 19.9.1978 and the order of the Consolidation Officer was set aside and the claim of the petitioners was accepted. Against this the opposite party no.3 filed a revision before the Deputy Director Consolidation (D.D.C.) which was allowed on 10.2.1981. The order of the S.O.C. dated 19.9.1978 was set aside and the order of the C.O. dated 8.2.1978 was restored. The D.D.C. while deciding the revision was persuaded by the fact that the name of Abdul Majid, father of the petitioners came to be recorded in the revenue records for the first time in 1375F as being in possession under Class-9 entry. According to him, the limitation prescribed for perfection of title based on adverse possession became 12 years with effect from 14.11.2017 and, as, the name of Abdul Majid was recorded from 1375F till 1378F, for only 4 Fasli, therefore, the aforesaid period of prescription for perfection of title was not satisfied. He was also persuaded by the fact that the revenue parcha and receipts submitted by the petitioners herein as proof of their continuous and hostile adverse possession were found by him to be of suspect evidentiary value. Based on the aforesaid he declined the claim of the petitioners and allowed the revision of the opposite party no.3.
The Court finds that the period of limitation for a suit under section 209 prescribed at Serial No.30 of Appendix III referred in Rule 338 of the U.P. Zamindari Abolition & Land Reforms Rules 1952 was initially two years. Thereafter it has undergone amendments, firstly, on 9.4.1955, when this limitation was extended to three years from the date of vesting, thereafter, it was further amended and extended to six years from the first of July following the date of occupation vide notification dated 27.3.1959 and thereafter it was again amended and extended to 12 years from the first of July following the date of occupation vide notification dated 14.11.1971.
On a perusal of the order of S.O.C. conjointly with the order of the D.D.C. this Court finds that the D.D.C. omitted to consider certain relevant aspects of the matter including certain documents which were on record. He did not consider the Khasra pertaining to 1363 Fasli wherein the name of Abdul Majid was recorded as a Class-9 entry as was taken note of by the S.O.C. This was a material fact. When this order is read conjointly with the order of the S.D.O. dated 25.7.1969 which was passed in proceedings for correction of the revenue records under section 33/39 of the U.P. Land Revenue Act 1901 initiated by Habib Khan, the vendor and predecessor in interest of Mujibullah- opp. party no.3, wherein, the S.D.O. took note of the fact that the name of Abdul Majid was recorded as Class-9 entry and, considering the continuance of such entry, he observed that, proceedings are not maintainable and the appropriate course for him was to initiate proceedings under section 209 of the U.P. Zamindari Abolition and Land Reforms Act 1950 for eviction of the unauthorized occupant. The D.D.C. also failed to consider another fact which was taken note of by the S.O.C. in his judgment, that is the subsequent (second) proceedings initiated by Habib Khan himself under section 33/39 which culminated in the order dated 26.11.1970 vide which the S.D.O. ordered the earlier Class-9 entry in favour of Abdul Majid to be continued, obviously for the same reason as mentioned in the earlier order dated 25.7.1969. In spite of these two orders, Habib Khan, the erstwhile tenure holder, did not initiate any proceedings under section 209, a fact which was taken note of by the S.O.C., but has been lost sight of by the D.D.C. The effect of non-initiation of any proceedings under section 209 of the Act 1950 as is spelt out in section 210 of the Act 1950 has also not been considered by the D.D.C. Furthermore, Class-9 entry in favour of the petitioner's father Abdul Majid and his alleged possession, whether this was to be considered on the basis of tagging in continuation of such entry, if any, in favour of the petitioners and their possession if any, has also not been considered by the D.D.C. Most importantly the D.D.C. has been persuaded by the fact that the entry in the revenue record pertaining to 1375F allegedly for the first time in favour of Abdul Majid was not in accordance with the Land Record Manual as the requisite diary number at P.A.10 entry are not mentioned nor the process prescribed under the Rules had been followed, but, he failed to appreciate the fact that if the name of Abdul Majid was existing as a Class-9 entry in Khasra 1363F then at that time the provisions contained in paragraph A-80 and A-81 of Chapter A-V of the Land Records Manual had not come into force and were inserted only subsequently vide notification dated 18.1.1958 nor did he consider as to what would be the effect of this aspect of the matter if there was a Khasra of 1363 F on record with a Class-9 entry in favour of petitioner's father Abdul Majid.
In this view of the matter and for the reasons aforesaid as the D.D.C. has not considered the findings and relevant aspects as have been noted hereinabove and as were considered by the S.O.C., therefore, based on such non-consideration, and as all this was considered by the S.O.C., therefore, the order of the D.D.C. is liable to be set aside and the matter is liable to be remanded back for consideration afresh in the light of what has been stated hereinabove.
It is, however, made clear that so far as the findings of the D.D.C. as to the veracity and evidentiary value of the irrigation receipts are concerned, they being based on appreciation of evidence which cannot be set aside by the Writ Court under Article 226 of the Constitution, the said findings pertaining to the irrigation receipts are not being interfered with and shall attain finality. Subject to this, reconsideration shall be made the D.D.C. as aforesaid.
The order impugned dated 10.2.1981 contained in Annexure No.13 is accordingly set aside.
The D.D.C. shall dispose off the proceedings aforesaid within eight months from the date a certified copy of this order is submitted, if necessary, by taking up the matter on day-to-day basis as far as possible.
The Court has also taken note of the interim order dated 5.5.1981 by which it was ordered that if the petitioners are in possession of the land in dispute, they shall not be disturbed. There is nothing on record to show as to who is in possession of the land in dispute as of now nor as to who is recorded in respect of the above at present.
Till disposal of the proceedings by the D.D.C. status quo with regard to possession of the land in dispute and entries in the revenue records shall be maintained and neither of the parties shall alienate the same.
The writ petition is allowed in part.
(Rajan Roy, J.) Order Date :- 26.11.2019 A.Nigam