Allahabad High Court
Babu Ali And Anothers vs D.D.C. And Others on 7 September, 2021
Equivalent citations: AIRONLINE 2021 ALL 2663
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 17 / Reserved AFR Case :- CONSOLIDATION No. - 788 of 1986 Petitioner :- Babu Ali And Anothers Respondent :- D.D.C. And Others Counsel for Petitioner :- R.K.Sharma,D K Trivedi,Dwijendra Mishra,U K Pandey Counsel for Respondent :- C.S.C.,Ashish Jaiswal,D C Mukerjee,S.Mirza,Surendra Pal Singh Hon'ble Rajnish Kumar,J.
1. Heard, Shri Dwijendra Mishra, learned counsel for the petitioners and Shri Ashish Jaiswal, learned counsel for the legal heirs of opposite party no.3 i.e. opposite parties no.3/1/1 to 3/4/7. Notice on behalf of opposite parties no.1 and 2 has been accepted by learned Chief Standing Counsel.
2. This petition has been filed challenging the orders dated 05.11.1981 and 22.05.1984 passed by Assistant Settlement Officer of Consolidation and order dated 28.11.1985 passed by the Deputy Director of Consolidation, Sitapur.
3. The dispute in the instant writ petition relates to Khata No.123, consisting of Plot Nos. 2100/2, 2101/1 measuring 0.70, 2113 measuring 0.5 and 244 measuring 0.46, which was recorded in the basic year Khatauni in the name of Kallu, the father of the petitioner Mohd. Hussain @ Ghamar, who has now been substituted by his legal heir after his death. Mohd. Hussain @ Ghamar had filed an objection during consolidation that he was the son of Kallu, therefore his name be recorded on the plots in dispute. One Sukai filed an objection claiming rights on the basis of adverse possession but later on he gave a statement and his objection was rejected by the Consolidation Officer. No appeal or revision was filed by him. The opposite party no.3 Rasool now deceased and substituted by his legal heirs in the present writ petition had filed an objection claiming the plots in dispute on the basis of adverse possession. The Consolidation Officer, after considering the oral and documentary evidence, rejected the objections of the opposite party no.3 holding that he has failed to prove his continuous adverse possession on the plots in dispute and directed to record the name of the petitioner being the son and legal heir of the deceased Kallu. The opposite party no.3 filed an appeal which was allowed ex-parte by means of the order dated 05.11.1981 and the order passed by the Consolidation Officer was set-aside. It was recorded in the order that the notice of appeal has been returned with the refusal of the petitioner. The petitioner moved an application for recall of the order. The said application was rejected in absence of the petitioner on 19.03.1984. Therefore, the petitioner moved an application for restoration on 20.03.1984 on the ground that the train of the petitioner was delayed therefore he reached the court at about 05:00 P.M., when he came to know that his application has been rejected and his counsel had not come to court. The opposite party no.2 rejected the application for restoration filed by the petitioner by means of the order dated 22.05.1984. Thereafter the petitioner filed a revision before the Deputy Director of Consolidation i.e. opposite party no.1 challenging the order of rejection of the restoration application. Another revision was filed by the petitioner challenging the original order dated 05.11.1981 passed by the opposite party no.2 in appeal alongwith an application under Section 5 and 14 of the Limitation Act. The Consolidation Officer, after hearing the parties, dismissed the revisions by means of the order dated 28.11.1985. Hence the present writ petition has been filed.
4. Learned counsel for the petitioner had submitted that after death of father of the petitioner Mohd. Hussain @ Ghamar, the name of the petitioner was liable to be recorded in the revenue records. Therefore, he had filed the objection during consolidation proceedings which was allowed after considering the pleadings and evidence holding that the petitioner is the legal heir of deceased Kallu and the opposite party no.3 has failed to prove his adverse possession in accordance with law. The appeal filed by the opposite party no.3 was allowed ex-parte because he, in collision with the post man, had got the notice of the appeal returned as refused. On coming to know, the petitioner had filed an application for recall but the same was dismissed in absence of the petitioner because he could not reach in time and his counsel had not appeared in the court. But the application filed by the petitioner, on the very next date for recall of the order, was arbitrarily and illegally rejected. Therefore, the petitioner had filed the revisions against the order passed on the application for recall and the original order passed in appeal. The revisions have also been dismissed without considering the grounds raised by the petitioner in arbitrary and illegal manner recording perverse findings.
5. Learned counsel for the petitioner had further submitted that the name of the opposite party no.3 has been directed to be recorded on the basis of adverse possession under clause-9 on the basis of PA-10. While the same was not issued in accordance with law and served on the original tenure holder therefore it was without following the procedure prescribed under Land Records Manual and not tenable in the eyes of law. Therefore, the impugned orders are not sustainable and liable to be quashed and the writ petition is liable to be allowed.
6. Per contra, learned counsel for the opposite parties had submitted that the possession of the opposite party no.3 was found in the basic year Khatauni on the basis of adverse possession. The opposite party no.3 had given evidence that he had plowed the field treating his own but the Consolidation Officer had allowed the objection without considering the evidence adduced by the opposite party no.3. The petitioner had not appeared before the appellate court despite sufficient service. Therefore, the appeal was rightly decided ex-parte in accordance with law. The Appellate Authority has held that the possession of the opposite party no.3 is recorded in accordance with PA-10. The application for recall filed by the petitioner was rightly rejected by opposite party no.3 as despite knowledge the opposite party no.3 had not appeared, the revision filed by the opposite party no.3 also has rightly been dismissed considering grounds/pleadings of the parties and evidence. There is no illegality or infirmity in the impugned orders. The writ petition is misconceived and it is liable to be dismissed.
7. I have considered the submissions of learned counsel for the parties and perused the record.
8. The father of the petitioner ''Kallu' was the recorded tenure holder in the basic year Khatauni. The petitioner had filed an objection for recording the name being legal heir. The objection filed by Sukai claiming right on the basis of adverse possession was rejected on his statement. The opposite party no.3 Rasool (now deceased) had filed an objection claiming the plots in dispute on the basis of adverse possession. After considering the pleadings of the parties, two issues were framed. One; as to whether Rasool son of Badlu is Bhumidhar on the basis of adverse possession on the land in dispute, second; as to whether Ghamar @ Mohd Hussaun is heir of the deceased Kallu. The issue no.2 has been decided holding Ghamar @ Mohd. Hussain as legal heir of the deceased Kallu as it was accepted by the parties and no objection was raised. The issue no.1 was decided in favour of the petitioner holding that there is no reference of PA-10, though the possession of Rasool is recorded in Khana Kaifiyat of 12 years 1368 Fasli.
9. It has also been recorded that Rasool had not stated in his statement that he had got PA-10. The entry in favour of the opposite party no.3 in the copy of Khatauni from 1371-73 Fasli is without reference of date and year of PA-24. Therefore the recording has no relevance. It has also been recorded that the witness Sri Ram had stated that Rasool had forcibly plowed 25 years ago while the quarrel was about 10-12 years old and it used to happen daily, whereas Rasool had stated that the quarrel had happened one or two days. Accordingly, the Consolidation Officer found that the opposite party no.3 has failed to prove his adverse possession. Therefore, he directed to record the name of the petitioner namely Ghamar @ Mohd. Hussain in place of his father Kallu and directed to expunge the possession of the opposite party no.3 Rasool son of Badlu by means of the order dated 17.06.1981.
10. The opposite party no.3 had filed the appeal, which was decided ex-parte on a report of postal department that the petitioner has refused to receive the summon. The appeal was allowed on the ground that the name of the opposite party no.3 was recorded under clause-9 on the basis of PA-10 in Khasra 1368 Fasli and in the Khatauni 1371-73 Fasli in accordance with PA-24 and by the oral evidence it is also proved that the opposite party no.3 is in possession from a long time. He has matured his titled on the basis of adverse possession and since Ghamar is not present it is apparent that he has no objection to the possession of Rasool. But without setting aside the findings recorded by the Consolidation Officer and considering as to whether the entry of the opposite party no.3, under clause-9, on the basis of PA-10 is in accordance with the Land Records Manual or not held that the order passed by the Consolidation Officer is not proper and just and set-aside the same. Therefore the findings recorded in the appellate order are not in accordance with law and not tenable.
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 Ramarks 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 Vs. Deputy Director of Consolidation and Another; R.D. 1997 (R.D.) 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 and Others Vs. Deputy Director of Consolidation, Nainital and Others; 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 and Others, 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 and Another Vs. Assistant Director of Consolidation, Gorakhpur and Others; 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.
16. This Court, in the case of Putti and Others Vs. Assistant Director of Consolidation, Bahraich and Others; (2007) 2 All ALJ 43, has held that the court should be slow to declare the right on the basis adverse possession otherwise it may become a weapon in the hands of mighty persons to acquire the property of the weaker sections of society. It has further held that there shall not be presumption of continuous possession to declare right and title on the basis of adverse possession unless year to year entries made in accordance with law in the Khasra or Khatauni and proved by cogent and trustworthy evidence, the burden to prove which is on the person who claims Sirdari or Bhumidhari rights on the basis of adverse possession. Relevant paragraph-41 is extracted below:-
"41. Right to claim title on the basis of adverse possession is a legacy of British law. Courts should be slow to declare right on the basis of adverse possession. In case liberal approach is adopted to extend right and title on the basis of adverse possession then it may become a weapon in the hands of mighty persons to acquire the property of the weaker sections of the society. Accordingly, it shall always be incumbent upon the Courts to do close scrutiny of the evidence and material on record within the four corners of law as settled by Apex Court, discussed herein above. Even little reasonable doubt on the evidence relied upon by a party to claim right and title on the basis of adverse possession may be sufficient to reject such claim under a particular fact and circumstance.
There shall not be presumption on continuous possession to declare right and title on the basis of adverse possession unless year to year entries made in accordance to law in the Khasra or Khatauni are proved by cogent and trust worthy evidence. burden of proof of such entries shall lie, as discussed herein above, on the person who claims Sirdari or bhumidhari right on the basis of adverse possession. In the absence of any such proof, presumption shall be in favour of recorded tenure-holder whose name has been recorded in column-1 of the Khatauni."
17. The Hon'ble Apex Court, in the case of P.T. Munichikkanna Reddy and Others Vs. Revamma and Others; 2008 (26) LCD 15, has held that in case of adverse possession, communication to the owner and his hostility towards the possession is must. The relevant paragraphs 19 to 23 are extracted below:-
"19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.
20. While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles.
21. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto and Others; (2005) 8 SCC 330 in that context held:
"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3 SCC 376).
30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd Mohd. Ali v. Jagadish Kalita, SCC para 21)"
22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Other; (2004) 10 SCC 779 in the following terms:
"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. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession"
23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner."
18. In view of above, the judgment passed by the Appellate Authority without considering the law of adverse possession is not sustainable. Application for recall of ex-parte order was moved, which was dismissed for non-prosecution. Therefore an application for recall was filed. The applications were rejected by means of the order dated 22.05.1984. The first application for recall of the main order was rejected on the ground that the petitioner had knowledge of summon and the registered notice was returned with the report that the petitioner had refused to receive. A plea was taken that the report of refusal has been got submitted by the opposite party no.3 in collusion with the post man. A counter affidavit was filed by the opposite party no.3; Rasool stating that the post man had gone to the place of the petitioner from 24.07.1982 to 27.07.1982 and he had submitted a report of refusal. But it has not been considered as to how the opposite party no.3 had knowledge that the post man had gone to the place of the petitioner from 24.07.1984 to 27.07.1984 and as to when the petitioner refused to receive the same. The second application for recall filed on 20.03.1984 has been rejected on the ground that the petitioner had knowledge of the order passed by the court, which has not been disputed by the petitioner, but the ground taken by him that his train had left from Mahmudabad therefore he reached Sitapur at 05:00 PM and his counsel had not appeared in the Court has not been considered. Therefore, this Court is of the view that the application for recall filed by the petitioner was dismissed without considering the grounds raised by the petitioner in accordance with law and correctly.
19. The revisions filed by the petitioner against the rejection of application for recall and the appellate order on merit have also been dismissed. The first revision has been dismissed on the ground that the petitioner used to file revision against the interim orders, therefore, the petitioner used to linger on the proceedings and the Appellate Authority had not committed any mistake by deciding the appeal on merit by means of the order dated 05.11.1981 and accordingly the application for recall has rightly been rejected. But failed to consider the grounds raised by the petitioner which were sufficient and the ground taken by the revisional authority is not tenable because an aggrieved person has a right to file revision in accordance with law.
20. The other revision filed against the original order dated 05.11.1981 has been dismissed holding that the entry of the opposite party no.3 under clause-9 has rightly been made after issuance of the PA-10 in accordance with law, therefore the possession of the opposite party no.3 has rightly been found from 1368 Fasli and no evidence has been adduced by the petitioner which may indicate that the petitioner has ever evicted the opposite party no.3 from the land in dispute and the petitioner has failed to produce any constructive, oral and written evidence, accordingly held that the opposite party no.3 has matured his right on the basis of adverse possession and dismissed the revision. But the revisional court failed to consider the legal position in regard to the entry under clause-9 on the basis of PA-10 as discussed above. In case the entry was made in the name of the opposite party no.3 under clause-9 on the basis of PA-10 it was incumbent upon the opposite party no.3 to prove by adducing cogent evidence that the same was made in accordance with law and the PA-10 was served on the original tenure holder. It was also required to be proved as to when the opposite party no.3 entered into the possession in the knowledge of the petitioner and continued his possession for the required period. But it has not been proved by the opposite party no.3 and no finding has been recorded in this regard.
21. In the present case, as per the findings, recorded by the Consolidation Officer, there was contradiction in the evidence in regard to the possession of the petitioner and the entry, which finding has not been set aside by the appellate or revisional authority. None of the courts have recorded the finding in regard to adverse possession in accordance with law and Land Records Manual and the service of PA-10 on the original tenure holder, which was mandatory. Therefore this Court is of the view that the opposite party no.3 has failed to prove his adverse possession on the land in dispute, therefore his claim was not sustainable, so no fruitful purpose would be served by remanding the case and it will be a futile exercise.
22. In view of above and considering the overall facts and circumstances of the case, this Court is of the view that the impugned orders are not sustainable in the eyes of law and liable to be quashed and the writ petition is liable to be allowed.
23. The writ petition is, accordingly, allowed. The impugned orders dated 05.11.1981 and 22.05.1985 passed by Assistant Settlement Officer of Consolidation and order dated 28.11.1985 passed by the Deputy Director of Consolidation, Sitapur are hereby quashed. No order as to cost.
24. The Lekhpal diary be returned forthwith.
.............................................(Rajnish Kumar,J.) Order Date :- 07.09.2021 Haseen U.