Allahabad High Court
Mata Din Singh vs D.D.C. And Others on 8 August, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. 2023:AHC:158629 Reserved :- 31/07/2023 Delivered :- 08/08/2023 HIGH COURT OF JUDICATURE AT ALLAHABAD ***Court No. 48
*** Case :- WRIT - B No. - 2067 of 1983 Petitioner :- Mata Din Singh Through :- Sri V.K. Singh, Senior Advocate assisted by Sri Santosh Kumar, Advocate vs. Respondent :- D.D.C. and others Through :- Sri A.C. Nishad, Standing Counsel Sri Anil Sharma, Senior Advocate assisted by Sri P.K. Singh, Advocate CORAM : HON'BLE SAURABH SHYAM SHAMSHERY, JUDGE
1. This case is arising out of consolidation proceedings of village Ratanpur Rai, Tappa Puraina, Tehsil Haraiya, District Basti.
2. The case of original petitioner (Mata Din Singh (since deceased)) was that in the basic year, name of Jairaj Singh (his father) and Ram Nihal Singh were recorded as tenure holders, whereas name of Rambadan Singh (since deceased and predecessors of original respondent nos. 4 to 7) was recorded in Clause (9) of revenue records.
3. Predecessors of contesting respondents have claimed sirdar rights on basis of their alleged continuous possession of more than 25 years.
4. During proceedings, witnesses were examined from both sides. From the side of petitioner, objector has examined himself whereas contesting respondent did not appeared before Authority and one Ramjanam Singh appeared being a mukhtar-e-khas of respondent Rambadan Singh and another witness Anshuman Singh also appeared for respondent. Certain revenue records were also placed by both the parties.
5. The Consolidation Officer vide order dated 24.01.1978 has rejected the objections of petitioner and allowed the objections filed on behalf of contesting respondents and their names were directed to be entered into revenue records as sirdar. The relevant findings of the Consolidation Officer are as follows :-
"प्रतिवादी गण की ओर से जो भी कागजी प्रमाण दाखिल है वे दौरान चकबन्दी के है अतः वे प्रतिवादी गण के पक्ष में अधिक सहायक नहीं हो सकता और चकबन्दी के पूर्व का कोई ऐसा प्रमाण कागजी या कोई निष्पक्ष गवाह नहीं प्रस्तुत किया गया है जिससे वादी के बयान पर अविश्वास किया जाय यद्यपि कि वादी का कब्जा प्रमाणों के आधार पर केवल 10 साल का ही साबित होता है किंतु निष्पक्ष गवाह के बयान से यह साबित है कि कब्जा 12 साल से अधिक का है और किसी निष्पक्ष गवाह द्वारा उसमें विरूद्ध बयान नहीं हुआ है और जैराम सिंह के विरूद्ध दिनांक 29.1.76 प्रभावी है अतः वादी के कागजी प्रमाणों व साक्ष्यों के आधार पर वादी को सीरदार घोषित करने का अवचित्य प्रमाणित है तदनुसार वाद विन्दु सकारात्मक निर्णीत किया जाता है वादी मृतक है उसके वारिश विश्वनाथ सिंह दर्शन नाथ सिंह, अजय कुमार आयु 13 वर्ष विजय कुमार सिंह अवस्था आयु 8 वर्ष संरक्षिका सोमारी माता है जो निर्विवाद है।"
6. The petitioner and others filed an appeal before Settlement Officer of Consolidation, however, same was dismissed by an order dated 18.02.1982. Relevant part of order is mentioned hereinafter :-
"जहाँ तक अपील कर्ता के विद्वान अभिभाषक के इस तर्क का प्रश्न है कि 1369फ० के एस०के० के आदेश का अमल दरामद है। एस०के० ने स्वयं आदेश खतौनी में अंकित नहीं किया है। इसलिये यह आदेश सही नहीं है। मैं उनके इस तर्क में(अस्पष्ट) एस०के० के आदेश प०क०10 पर पारित होता है तथा अमल दरामद भी उस समय खतौनी पर किया जाता था। इसलिये इस अमल दरामद में कोई संदिग्ध होने की बात नहीं है। अपीलकर्ता के विद्वान अभिभाषक ने यह तर्क रखा कि ए०आर०के० के बयान में यह बात आई है कि खसरे के इन्द्राजों में भिन्नता है परन्तु उन्होंने अपने मूल बयान तथा जिरह दोनों में यह बात कही है कि भिन्नता स्याही के कारण है इसलिये केवल इस आधार पर इतने लम्बे इन्द्राजों को संदिग्ध या गलत नहीं माना जा सकता।"
"जहाँ तक रामबदन सिंह के अदालत में हाजिर होकर स्वयं बयान न देने का सवाल है, रामबदन सिंह उस समय पुलिस विभाग में नौकरी करते थे तथा उन्हें छुट्टी न मिलने के कारण यह बयान देने नहीं आ सके। उनके स्थान पर उनके मुख्तार तथा भाई राम जन्म सिंह बयान देने के लिये अदालतम में हाजिर हुये, इसलिये रामबदन सिंह के अदालत में हाजिर न आने के कारण उनके अधिकारों पर कोई अन्तर नहीं पड़ता। उत्तर वादी की ओर से यह बहस की गयी कि यह मोकदमा 26.9.78 को एक तरफ हुआ था तथा 18.3.81 के बाद यह आदेश 10/- रूपये हरजा अदा करने पर रेस्टोर हुआ था और यह हरजा अभी तक अदा नहीं किया गया है उनका यह तर्क भी सही है कि इस आधार पर यह अपील खारिज होने योग्य है।
उपरोक्त विवेचन के आधार पर मैं इस निष्कर्ष पर पहुँचता हूँ कि विवादित भूमि 1369 फ० से लगातार राम बदन सिंह का आधार वर्ष तक विरोधात्मक अध्यासन व और अपने इस कब्जे के आधार उन्होंने विवादित भूमि पर सीरदारी अधिकारी अर्जित कर लिये थे और उने लड़के व वारिस इन गाटों पर बतौर सीरदार दर्ज होने के अधिकारी थे। चकबन्दी अधिकारी ने विवादित गाटों पर लिखित खातेदारों का नाम खारिज करके उत्तर वादीगण का नाम बतौर सीरदार दर्ज करने में कोई भूल नहीं की है। अपील में कोई बल नहीं है।"
7. Both the above referred orders were challenged by petitioner before Deputy Director of Consolidation by way of filing a revision petition, however, same was also dismissed by an order dated 09.02.1983 and relevant part of order is mentioned hereinafter :-
"इसके अतिरिक्त निगरानी कर्ता के विद्वान अधिवक्ता की तरफ से यह तर्क किया गया कि खाता नं० 48 के नम्बरान 236, 244 पर कोई हक नहीं मांगा गया है जिस पर उन्हें कोई अधिकार बिना उज्रदारी नहीं दिया जाना चाहिये तथा 236,244 नम्बरान विवादित खाते के नहीं है और न ही विवादित खातेदारों का पारीक मुकदमा ही बनाया गया है अतः उस पर अधिकार नहीं मिलना चाहिये। पत्रावली के अवलोकन से स्पष्ट है कि गाटा सं०236,244 पर हक नहीं मांगा गया है किन्तु कार्यवाही चकबन्दी प्रक्रियाओं में धारा 9 के प्रकाशन के बाद की गयी है। अतः निगरानीकर्ता को इससे कोई लाभ नहीं मिल सकता। यह भी तर्क किया गया कि कब्जा गासवाना बिना किसी आधार के है किन्तु निगरानी कर्ता द्वारा स्वयं रंजिश की बात स्वीकार की गयी है। निगरानीकर्ता के विद्वान अधिवक्ता ने यह भी तर्क किया कि कोई प०क० 24 नहीं बना है आरन जारी हुआ है किन्तु प०क०24 जारी करने का प्राविधान 1965 के संशोधन से लागू हुआ है अतः 1373 प० में जारी होने का कोई औचित्य नहीं था तथा उस समय नियमानुसार प०क०10 जारी होता था जो 1369 प० में जारी है इसके अतिरिक्त यह भी तर्क किया गया कि निगरानीकर्ता पर अधीनस्थ न्यायालय द्वारा जो हर्जाना लगाया गया था उसे अदा भी नहीं किया गया। निगरानीकर्ता द्वारा हर्जाना न अदा करने का कोई कारण नहीं दर्शाया गया और न हर्जाना अदा करने का प्रयास किया गया इस प्रकार सम्पूर्ण वाद पर गौर करने से यह स्पष्ट है कि विवादित आराजी पर विपक्षीगण का अनाधिकार कब्जा सबित है जो काफी लम्बे अरसे से तथा अधिकार पाने के मियाद से भी अधिक समय से है। निगरानीकर्ता की तरफ से केवल जैराज सिंह के वारिसों द्वारा आपत्ति की गयी है। आधार वर्ष में दर्ज राम निहाल की तरफ से कोई आपत्ति नहीं दाखिल की गयी है। जो इन्द्राज है वह नियमानुकूल है जिसके आधार पर विद्वान चकबन्दी अधिकारी एवं विद्वान सहायक बन्दोबस्त अधिकारी चकबन्दी ने विपक्षी गण का नाम विवादित आराजी में बतौर सीरदार अंकित होने के आदेश किये है जो न्यायोचित है अतः निगरानी में कोई बल नहीं है। निगरानी निरस्त होने योग्य है।"
8. Above referred orders dated 24.01.1978, 18.02.1982 and 09.02.1983 are impugned in this writ petition.
9. Sri V.K. Singh, learned Senior Advocate assisted by Sri Santosh Kumar, Advocate appearing for petitioners has submitted that undisputedly original petitioner was tenure holder and contesting respondents were in unauthorized possession of land in dispute and their names being mutated on basis of such nature of possession which would not create any substantive right in their favour. There was a finding of Consolidation Officer that according to revenue records, even in some of years, respondents were not in possession over the land in dispute as well as the Consolidation Officer has recorded a finding that respondents' possession was proved upto 10 years only and only on surmises, it was held that they were in possession for 12 years, therefore, all three Authorities have erroneously accepted the argument of respondents that they have perfected their rights on basis of alleged unopposed possession of twelve years over the land in dispute.
10. Learned Senior Advocate also submitted that evidence given by mukhtar-khas was not acceptable and that entries were not made in terms of provisions of U.P. Land Records Manual (for short "the Manual").
11. In order to buttress the arguments, he has placed reliance upon judgments of Supreme Court and this Court in Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and others, AIR 2009 SC 103; Vidhyadhar vs. Manik Rao and others, (1999) 3 SCC 573; Smt. Bitiya Bano vs. DDC, 1979 SCC Online All 502, 1980 RD 190; Janki Vashdeo Bhojwani and another vs. IndusInd Bank Ltd. And others, AIR 2005 SC 439 : (2005) 2 SCC 217; Gaya Prasad vs. Nathu Singh and others, 2019 (4) AWC 3600; Sunehri Lal vs. Smt. Premwati, 2015 All. C.J. 738 and Ganga Ram and others vs. DDC and another, 1982 RD Page 1.
12. Per contra, Sri Anil Sharma, learned Senior Advocate assisted by Sri P.K. Singh, Advocate appearing for respondents has referred provisions of Clause (9) of Part-II of Para A-124 of the Manual, which states that :-
"Occupiers of land without the consent of the person entered in column 4 of the khasra."
13. Learned Senior Advocate has further submitted that contesting respondents were in possession of land and it was in the knowledge of petitioners but no proceedings were initiated against them, therefore, they have perfected their title on the strength of their uninterrupted possession for twelve years.
14. Learned Senior Advocate further urged that claim of rival parties was decided on the basis of revenue records placed by Ramjanam Singh being mukhtar-khas of respondent Rambadan Singh, being legally permissible. It was not the case that mukhtar-khas had given some evidence of a fact which was exclusive in the knowledge of respondent Rambadan Singh. According to revenue records, contesting respondents were shown under the category of Clause 9, a substantive piece of evidence that they were in possession of land without consent of persons whose name was entered in column 4 of the khasra. Learned Senior Advocate has placed reliance upon a judgment of Supreme Court passed in the case of Ramdular vs. Deputy Director of Consolidation, Jaunpur, 1994 Supp 2 SCC 198: 1994 1 SCR 735.
15. Learned Senior Advocate appearing for respondents has further submitted that petitioners have created absolutely a new case for the first time before this Court.
16. In rejoinder, learned Senior Advocate appearing for petitioner has submitted that respondents are outsiders and normally lived in other village and they have never been in possession over the land in dispute as well as their cultivatory possession over the land in dispute was not proved.
17. Heard learned Senior Advocates appearing for rival parties, perused record and written submissions.
18. On basis of above referred facts, rival submissions and judgments relied upon, issues for consideration before this Court are as follows :-
(a) Whether statement made by mukhtar-khas as a witness is admissible or not, if yes, to what extent?
(b) Whether entry under Clause-9 of Part-II of Para A-124 of 'the Manual' and khasra of relevant period would itself be sufficient to prove adverse possession, and, if no?
(c) Whether contesting respondents have perfected their rights on basis of their possession of twelve years on land in dispute i.e. whether their possession was nec vi, nec clam, nec precario, i.e. adequate in continuity, adequate in publicity and adverse to a competitor in denial of title and his knowledge?
19. In reference to above referred issue (a), i.e. nature of evidence of a mukhtar-khas, it would be relevant to refer few paragraphs of a judgement passed by Supreme Court in the case of Janki Vashdeo Bhojwani (supra) -:
"13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
14. xxxxxx
15. xxxxxx
16. xxxxxx
17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan [(1986) 2 WLN 713 (Raj)] it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
18. The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Narain [AIR 1998 Raj 185 : (1998) 3 Cur CC 183] . It was held that the word "acts" used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC.
19. In the case of Pradeep Mohanbay (Dr.) v. Minguel Carlos Dias [(2000) 1 Bom LR 908] the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness.
20. However, in the case of Humberto Luis v. Floriano Armando Luis [(2002) 2 Bom CR 754] on which reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in Order 3 Rule 2 CPC cannot be construed to disentitle the power-of-attorney holder to depose on behalf of his principal. The High Court further held that the word "act" appearing in Order 3 Rule 2 CPC takes within its sweep "depose". We are unable to agree with this view taken by the Bombay High Court in Floriano Armando [(2002) 2 Bom CR 754].
21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri [(1986) 2 WLN 713 (Raj)] followed and reiterated in the case of Ram Prasad [AIR 1998 Raj 185 : (1998) 3 Cur CC 183] is the correct view. The view taken in the case of Floriano Armando Luis [(2002) 2 Bom CR 754] cannot be said to have laid down a correct law and is accordingly overruled."
(emphasis supplied)
20. In present case, Rambadan Singh, original contesting respondent has not appeared to depose before the Consolidation Officer and on his behalf his mukhtar-khas, Ramjanam Singh has appeared and got recorded his statement and also produced relevant revenue records.
21. As referred in Janki Vashdeo Bhojwani (supra), power of attorney holder (mukhtar-khas) can only appear in his personal capacity and could depose only whatever knowledge he has about the case but, cannot depose as a witness on behalf of the party and cannot depose for the acts done by the principal. Therefore, evidence of mukhtar-khas would be admissible only to the extent to which he has personal knowledge. However, since only the original respondent had personal knowledge about his cultivatory possession, therefore, any evidence in that regard as deposed by his mukhtar-khas would not be admissible and further that documents placed on record by mukhtar-khas are the documents from the revenue records, therefore they would be admissible according to law and consequence thereof only would fall.
22. In reference to issue (b) i.e. about entries in the revenue records, it would be relevant to refer a judgment passed by the co-ordinate Bench in Gurmukh Singh and Another vs. DDC/ADM (F&R), 1996 SCC Online All 823 : (1997) 88 RD 276 and relevant paragraphs 7, 8 and 9 thereof are reproduced below-:
"7. Similar view was expressed by this Court in Ganga Ram v. D.D.C., 1982 RD 1, wherein it was observed that the person who alleges that P.A. 10 was prepared and served upon the recorded tenure holder has to prove that fact. Learned counsel for the petitioner has referred to the decision of the Board of Revenue in Ranvir Singh v. (Smt.) Satyawati, 1990 RD 435, wherein the Board of Revenue distinguished the case of this Court in the case of Jamuna Prasad (supra). It was held therein that there was presumption with regard to the correctness of public document and correctness of the entries made in the annual register when the papers relating to compliance of Para 80-A and A-81 of the Land Records Manual is proved on evidence available on the record and it is proved that P.A. 10 was issued, its service is to be presumed on the recorded tenure-holder. It was, on the facts of that case, it was found that adverse possession was proved. The Board of Revenue could not have taken a contrary view already expressed by the Court in the case of Jamuna Prasad (supra).
8. Learned counsel for the petitioner has further placed reliance upon a decision of Board of Revenue in Hazari v. Mathura, 1992 RD 79, wherein it was held that where a person being not a rank trespasser is in continuous possession to the full knowledge of the recorded tenure holder, issuance of P.A. 10 is not necessary. This decision is not an authority on the question that where the person is claiming adverse possession and relies upon the recorded entries, he is not to establish that the entries were made in accordance with law.
9. The petitioners led evidence to prove adverse possession. They relied upon the Khatauni 1375-1377 F and also twelve year Khasra, 1386-1397 F. Surjan Singh, father of the petitioners also tendered oral evidence. Khatauni 1375 F indicated that respondent No. 3 Mangal Singh, father of respondent No. 4 was recorded as sirdar of the land in dispute. In column No. 9 there is entry that Jagtar Singh is in possession and has been shown in column No. 9 in respect of plot No. 150. This entry is alleged to have been made by the Supervisor Qanungo. The petitioners did not lead any evidence to show that before making such entry the Supervisor Qanungo had issued any notice to the recorded tenure-holder. The petitioner did not file any copy of Khasra which could show that in the remarks column the date of the Partal and the date of issuance of P.A. 10 was made. The diary of the Lekhpal was also not summoned. The petitioner was relying upon these entries to prove his adverse possession. The person who is recorded as tenure-holder is otherwise entitled to notice when an authority makes an entry regarding possession against him, which in effect creates a right in favour of another person in respect of the and for which the entry is made in the Khasra. Secondly, respondent No. 2 has believed the oral evidence adduced on behalf of the respondents 3 and 4 that Jagtar Singh was related to them. Respondent No. 3 is brother in law of Jagtar Singh and respondent No. 4 is his nephew. The findings recorded by the respondents are not illegal."
(emphasis supplied)
23. In a recent judgment passed by a coordinate Bench in Bhagwati Deen vs. Sheetladin and others, (2022) 156 RD 602 : 2022 SCC Online All 349, the issue in hand was considered and it was observed in paragraph 28 of aforesaid judgment that -:
"28. Lately, this Court also had the occasion to consider the aforesaid issue of adverse possession in the case of Chit Bahal Singh v. Joint Director of Consolidation, decided on 29.04.2022 and by relying upon the decision of Babu Ali v. D.D.C. (Supra) the plea of adverse possession was rejected. The relevant paras explaining the law and the preparation of entries and what ingredients have to be met are being extracted hereinafter:--
"11. The para-89-A, 89-B and 102-B of the Land Records Manual (here-in-after referred as "the manual'), relevant for the purpose, are extracted below:--
"89-A. List of changes.-After each Kharif and rabi portal of a village the Lekhpal shall prepare in triplicate a consolidated list of new and modified entries in the Khasra in the following form:
Form No. P-10 Khasra No. of Plot Area Details of entry in the last year Details of entry made in the current year Verification report by the Revenue Inspector Remarks 1 2 3 4 5 6
(ii) The Lekhpal shall fill in the first four Columns and hand over a copy of the list to the Chairman of the Land Management Committee. He shall also prepare extract from the list and issue to the person or persons concerned recorded in Columns 3 and 4 to their heirs, if the person or persons concerned have died, obtaining their signature in the copy of the list retained by him. Another copy shall be sent to the Revenue Inspector.
(iii) The Revenue Inspector shall ensure at the time of his partial of the village the extract have been issued in all the cases and signatures obtained of the recipients.
89-B. Report of changes.- The copy of the list with the Lekhpal containing the signatures of the recipients of the extracts shall be attached to the Khasra concerned and filed with the Registrar (Revenue Inspector) alongwith it on or before 31st July, of the following year (sub-paragraph (iv) of the paragraph 60).
102-B. Entry of possession (Column 22) (Remarks column).- (1) The Lekhpal shall while recording the fact of possession in the remarks Column of the Khasra, write on the same day the fact of possession with the name of the person in possession in his diary also, and the date and the serial number of the dairy in the remarks Column of the Khasra against the entry concerned.
(2) As the list of changes in Form p-10 is prepared after the completion of the patal of village, the serial number of the list of changes shall be noted in red ink below the entry concerned in the remarks column of the Khasra in order to ensure that all such entries have been brought on the list.
(3) If the Lekhpal fails to comply with any of the provisions contained in paragraph 89-A, the entry in the remarks Column of the Khasra will not be deemed to have been made in the discharge of his official duty."
12. Reading of the aforesaid provisions makes it clear that if any entry is made in PA-10, the same shall be communicated to the person or persons concerned recorded in columns 3 and 4 or their heirs and obtain their signatures. Records on being submitted to the Revenue Inspector, he shall ensure at the time of Padtal i.e. verification of the village that it has been issued in all the cases and the signatures obtained by the recipients. Therefore, in case, any entry made on the basis of adverse possession the same was to be communicated to the person concerned and the person claiming is required to prove that it was in accordance with the manual and as to what was nature of possession and when it started in the knowledge of the tenant and the possession was continuous and how long it continued.
13. This Court considered this issue in the case of Mohd. Raza v. Deputy Director of Consolidation, 1997 RD 276 and held that the entries in the revenue papers not prepared by following the procedure prescribed under the Uttar Pradesh Land Records Manual and PA-10 notice was not served on the main tenant, such entries are of no evidentiary value and would not confer any right.
14. This court, in the case of Gurumukh Singh v. Deputy Director of Consolidation, Nainital, (1997) 80 RD 276, has also held that the entries will have no evidentiary value if they are not in accordance with the provisions of Land Records Manual and the burden to prove is on the person who is asserting the possession on the basis of adverse possession. Relevant paragraphs 6 and 7 are extracted below:--
"6. It is clear from Para A-102C of the Land Records Manual that the entries will have no evidentiary value if they are not made in accordance with the provisions of Land Records Manual. There is presumption of correctness of the entries provided it is made in accordance with the relevant provision of Land Records Manual and secondly, in case where a person is claiming adverse possession against the recorded tenure-holder and he denies that he had not received any P.A. 10 or he had no knowledge of the entries made in the revenue records, the burden of proof is further upon the person claiming adverse possession to prove that the tenure-holder was duly given notice in prescribed Form P.A. 10. Para A-81 itself provides that the notice will be given by the Lekhpal and he will obtain the signature of the Chairman, Land Management Committee as well as from the recorded tenure-holder. It is also otherwise necessary to be provided by the person claiming adverse possession. The law of adverse possession contemplates that there is not only continuity of possession as against the true owner but also that such person had full knowledge that the person in possession was claiming a title and possession hostile to the true owner. If a person comes in possession of the land of another person, he cannot establish his title by adverse possession unless it is further proved by him that the tenure-holder had knowledge of such adverse possession.
7. In Jamuna Prasad v. Deputy Director of Consolidation, Agra, this Court repelled the contention that the burden of proof was upon the person who challenges the correctness of the entries. It was observed:
"Learned counsel for the Petitioner argued that there was a presumption of correctness about the entries in the revenue records and the onus lay upon the Respondent to prove that the entries showing the Petitioner's possession had not been in accordance with law. This contention is untenable Firstly, it is not possible for a party to prove a negative fact. Secondly, the question as to whether the notice in Form P.A. 10 was issued and served upon the Petitioner also is a fact which was within his exclusive knowledge."
"Petitioner's contention that the burden lay on the Respondents to disprove the authenticity and destroy the probative value of the entry of possession cannot be accepted. In my opinion, where possession is asserted by a party who relies mainly on the entry of adverse possession in his favour and such possession is denied by the recorded tenure-holder, the burden is on the former to establish that the entries in regard to his possession was made in accordance with law."
15. This Court, in the case of Sadhu Saran v. Assistant Director of Consolidation, Gorakhpur, (2003) 94 RD 535, has held that it is well settled in law that the illegal entry does not confer title. Therefore even if the entry has been made, it does not confer right title or interest if it is not in accordance with law and the prescribed procedure. This Court and the counsel for the parties also could not get the same in the Lekhpal diary. The provision of PA-24 has come vide notification dated 03.07.1965, therefore it is also of no assistance because entry could not have been made on the basis of PA-24 in Khatauni of 1373 fasli and it is also without number and year."
(emphasis supplied)
24. In the present case, no finding was returned that PA-10 was served upon the recorded tenure holders and contesting respondents have failed to prove that fact and have also not able to show that there was a reference of PA-10 in the revenue entries and all Courts under Consolidation Act have not returned any finding in regard to preparation of PA-10 and whether entries of possession were made in terms of and observing procedure prescribed in 'the Manual' and for reference, relevant procedure and paragraphs of 'the Manual' are quoted below-:
"A80. List of Changes :- After each kharif and rabi partal of a village, the Lekhpal shall prepare in triplicate a consolidated list of the entries mentioned in paragraphs A71 to A73 and A84 in following form .........
A81. List how to be utilized :- (1) The lekhpal shall fill in first five columns and handover a copy of the list to the Chairman of Land Management Committee. He shall also prepare extracts from the list and issue to the person or persons recorded in column 3, 4 and 5 thereof or to their heirs, if the person or persons concerned have died, obtaining their signatures in the copy of list retained by him. Another copy shall be sent to the supervisor kanungo.
(2) The supervisor kanungo shall deal with the list in the manner prescribed in sub paragraph (iv) of paragraph 423. He shall also ensure that extracts have been issued in all the cases, and signature of recipients obtained. If he finds that an extract has not been issued in any case, he shall get it issued in his presence. This is important so that the person affected, if he is aggrieved, may apply for correction of papers to the tehsildar or the Sub Divisional Officer, as the case may be.
A82. Report of Changes :- The copy of the list with the lekhpal containing the signatures of the recipients of the extract shall be attached to the khasra concerned and filed with the registrar kanungo along with it on or before 31 July, of the following year [sub-paragraph (iv) of paragraph A60].
A83. Immediately after the kharif partal the lekhpal shall submit to the supervisor kanungo a statement in duplicate showing all holdings in his halka of a bhumidhar, sirdar or asaami of Gaon Samaj whose cultivable area has decreased or increased by diluvion of alluvian. The supervisor kanungo shall by personal inspection check all the entries in the statement and after making such corrections, as may be necessary, submit the statement in duplicate to the tehsildar for taking action under rule 205-B of the U.P. Zamindari Abolition and Land Reforms Rules, 1952.
102C. Entry of possession column 21 (Remarks column) :-
(1) The lekhpal shall, while recording the fact of possession in the remarks column of the khasra write on the same day the fact of possession with the name of the person in possession in his diary also, and note the date and serial number of the diary in the remarks column of the khasra against the entry concerned.
(2) As the list of changes in form PA-10 is prepared after the completion of the partal of a village, the serial number of the list of changes shall be noted in red ink below the entry concerned in the remarks column of the khasra in order to ensure that all such entries have been brought on the list.
(3) If the lekhpal fails to comply with any of the provisions contained in paragraphs A80 and A81, the entry in the remarks column of the khasra will not be deemed to have been made in the discharge of his official duty."
25. In this regard, it would be relevant to reiterate the observations made in Gurmukh Singh (supra) that the entries will have no evidentiary value, if are not entered, in accordance with the provisions of 'the Manual'. As referred above, in the present case, no finding was returned by Courts below that the procedure prescribed in 'the Manual' was duly followed. Even there is no material before this Court to hold that while making the entries, procedure prescribed under 'the Manual', such as whether the lekhpal has prepared the changes in triplicate, a copy thereof was handed over to the Chairman, Land Management Committee, changes were reported, statement was submitted to the supervisor kanungo, partal of the village was conducted, procedure prescribed under Para 102-C, etc. were duly followed. Therefore, only on basis of entries being under clause (9) of Part II of Para A-124 of 'the Manual', it could not be held that contesting respondents were in continuous possession on the land in dispute for a period of 12 years and thus perfected their right on the strength of adverse possession.
26. In view of above discussion and conclusion, there is no necessity for this Court to consider the third issue. However, since certain arguments were raised in this regard, therefore, now this Court proceeds further to consider issue (c) i.e. nature of possession also.
27. In this regard, it would be apposite to refer a judgment of Supreme Court in Hemaji Waghaji Jat (supra) wherein following relevant paragraphs of P.T. Munichikkanna Reddy and others Vs. Revamma and others, 2007 (6) SCC 59 were reiterated with approval that -:
"24. In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma [(2007) 6 SCC 59] this Court again had an occasion to deal with the concept of adverse possession in detail. The Court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under : (SCC pp. 66-67) "5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird [100 So 2d 57 (Fla 1958)] ; Arkansas Commemorative Commission v. City of Little Rock [227 Ark 1085 : 303 SW 2d 569 (1957)] ; Monnot v. Murphy [207 NY 240 : 100 NE 742 (1913)] ; City of Rock Springs v. Sturm [39 Wyo 494 : 273 P 908 : 97 ALR 1 (1929)] .)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim."
(Italic part is emphasised in original and underline part is emphasised by this Court)
28. Recently the Supreme Court in Uttam Chand (Dead) through LRs vs. Nath Ram (Dead) through LRs and others, 2020 (11) SCC 263 has reiterated earlier judgments and observed that -:
"15. The matter has been examined by a Constitution Bench in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. The Court held as under: (SCC pp. 703-706, paras 1142-1143 & 1147-1150) "1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed.
xxxxxxxxxxxx 1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading Para 11(a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.
*** 1147. In Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] , R.S. Sarkaria, J. speaking for a three-Judge Bench of this Court noted that the concept of possession is "polymorphous" embodying both a right (the right to enjoy) and a fact (the real intention). The learned Judge held: (SCC p. 278, para 13) '13. ... It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.)' These observations were made in the context of possession in Section 29(b) of the Arms Act, 1959.
1148. In P. Lakshmi Reddy v. L. Lakshmi Reddy [P. Lakshmi Reddy v. L. Lakshmi Reddy, 1957 SCR 195 : AIR 1957 SC 314] , Jagannadhadas, J. speaking for a three-Judge Bench of this Court dwelt on the "classical requirement" of adverse possession: (AIR pp. 317-18, para 4) '4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secy. of State for India in Council v. Debendra Lal Khan [Secy. of State for India in Council v. Debendra Lal Khan, 1933 SCC OnLine PC 65 : (1933-34) 61 IA 78] IA at p. 82.) The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.' The Court cited the following extract from U.N. Mitra's Tagore Law Lectures on the Law of Limitation and Prescription: (AIR p. 319, para 7) '7. ... "An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession." ' [ 6th Edn., Vol. I, Lecture VI, at p. 159] This Court held: (AIR p. 319, para 7) '7. ... Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.' 1149. In Karnataka Board of Wakf v. Union of India [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779] , S. Rajendra Babu, J. speaking for a two-Judge Bench held that: (SCC p. 785, para 11) '11. ... Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.' The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law.
1150. In Annakili v. A. Vedanayagam [Annakili v. A. Vedanayagam, (2007) 14 SCC 308] , this Court emphasised that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act."
(Italic part is emphasised in original and underline part is emphasised by this Court)
29. In the present case, Consolidation Officer has returned a finding on the issue of adverse possession that name of respondents were recorded under Clause 9 in khasra no. 1366F-1377F and that on the basis of such revenue records, it was held that they were in possession for at least 10 years. However, Consolidation Officer accepted the oral evidence and returned a finding that they were in possession over land for more than 12 years.
30. On the face of it, the above approach of Consolidation Officer appears to be contrary to the settled position of law. As referred above, there must be a finding on the basis of clear and unequivocal evidence that possession was hostile to real owner and to denial of his title and knowledge, to the property claimed. There must be animus of the person doing those acts which must be ascertained from the facts and circumstances of the case. However, the Consolidation Officer has in very cursory manner has decided the issue of adverse possession, without reference of above referred essential pleadings and nature of evidence being on record.
31. The Settlement Officer of Consolidation, while deciding appeals, has also placed reliance on entries in revenue records, for that it has already been referred above that those entries were not prepared in terms of the procedure prescribed in 'the Manual'. The Appellate Court has also not returned any finding in regard to above referred essential and necessary factors of adverse possession. Therefore, error as committed by the Consolidation Officer continued in the order passed by the Settlement Officer of Consolidation.
32. The Deputy Director of Consolidation has placed heavy reliance again only on the entries made in revenue records and has not considered factors relevant for taking decision in regard to adverse possession that the possession was adequate in continuity, publicity and adverse to competitor. Adverse possession requires that all three essential requirements to co-exist at the same time, viz., it should be adequate in continuity, adequate in publicity and adverse to competitors in denial of the title and his knowledge. There must be physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner. However, these important factors also skipped from consideration of Deputy Director of Consolidation as well as two Courts below.
33. I have carefully perused the contents of memo of counter affidavit filed by the respondents, however, they have not stated any averment in regard to any of the factors referred above. Even during the course of argument, learned Senior Advocate appearing for respondents has not pointed out any relevant detail or factor on record that claim of adverse possession was positively proved in terms of the above referred factors. The Ramdular (supra) relied upon by learned Senior Advocate for respondent would not be helpful since it is on the issue of power under Section 48 of U.P. Consolidation of Holdings Act, 1953, and Revisional Authority has power to reexamine the issue but contrary in present case, Deputy Director of Consolidation has not exercised that power.
34. In view of discussion and findings on above referred issues, I am of the considered opinion that all the Authorities under the Consolidation Act have erred and miserably failed to return a finding whether mandatory procedure for recording revenue entries under 'the Manual' was followed and have also erred in returning a finding about adverse possession only on the basis of revenue entries which only indicates the possession of the respondents for less than 12 years as well as that PA-10 was not prepared in terms of the procedure prescribed under 'the Manual' and further erred in placing reliance on the evidence of mukhtar-khas who was not competent to give evidence in regard to facts which were in exclusive knowledge of the original respondent qua to adverse possession. Lastly, the Authorities have also failed to give finding that possession of respondent was nec vi, nec clam, nec precario.
35. The respondents have failed to point out above referred factors from the record of the case or from the impugned orders. Therefore, all three Authorities have committed grave error of facts as well as of law. Impugned orders, therefore, are illegal and liable to be set aside. All the issues are answered accordingly.
36. Accordingly, all impugned orders referred above are set aside and the writ petition is allowed, with no order as to costs.
37. Legal consequences thereof, shall follow.
38. By this judgment, this Court has decided a writ after forty years.
Order Date :- August 08, 2023 Nirmal Sinha [Saurabh Shyam Shamshery, J.]