Allahabad High Court
Shekhai vs D.D.C.And Another on 12 May, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20 Case :- WRIT - B No. - 325 of 1992 Petitioner :- Shekhai Respondent :- D.D.C.And Another Counsel for Petitioner :- H.S. Sahai,U.S. Sahai Counsel for Respondent :- A.S. Chaudhary,P.V. Chaudhary,Prabhakar Vardhan Chaudha Hon'ble Jaspreet Singh,J.
1. Heard Shri U.S. Sahai, learned counsel for the petitioner, learned Additional Chief Standing Counsel for the State-respondents as well as Shri P.V. Chaudhary, learned counsel for the private-respondents.
2. By means of the instant petition, the petitioner calls in question the orders dated 17.02.1984 and 27.04.1992 passed by the Consolidation Officer, Faizabad and the Deputy Director of Consolidation, Faizabad whereby the claim of the petitioner has been rejected.
3. The dispute between the parties relates to Khata No.156 recorded in the name of Nanoo Ram, the father of the respondent No.3. The entire case as set up by the petitioner is based on the plea of co-tenancy/joint family property and in alternate upon adverse possession.
4. It is the case of the petitioner that the disputed property in question was created by the common ancestor of the parties namely Jhakri. After the death of Jagannath, the petitioner's father and the grand-father of the respondent No.3, constituted a Joint Hindu Family which came in possession of the land and thereafter some additions were made to the land enhancing the holdings which was done and acquired by the nucleus of the joint family. Thus, the petitioner laid a claim on the basis of co-tenancy but in the alternate also pleaded that in case if his rights of co-tenancy were not established yet since he has been in possession for long, consequently, he had perfected his rights by adverse possession.
5. On the other hand, the case of the private-respondent was that the entire property in question was acquired by Jagannath, the grand-father of the private-respondent No.3. However, the pedigree as set up by the petitioner was disputed by the private-respondent and it was submitted that though Jhakri was the common ancestor but with passage of time, the sons of Jhakri had separated and were in possession of their different khatas. It was also pleaded that in respect of the disputed khata No.156, it remained recorded in the name of Jagannath and as such neither the petitioner had any co-tenancy rights nor he could perfect his rights by adverse possession inasmuch as both the plea of co-tenancy and adverse possession were mutually destructive.
6. The Consolidation Officer, Faizabad by means of the order dated 17.02.1984 rejected the claim of the petitioner on both counts of co-tenancy as well as adverse possession.
7. The petitioner, being aggrieved, preferred an appeal before the Settlement Officer of Consolidation (for short, S.O.C.), who by means of the judgment and order dated 16.06.1987 allowed the appeal and upheld the rights of the present petitioner relating to co-tenancy.
8. The private-respondent No.3 thereafter carried the matter before the revisional authority, who by means of the order dated 20.07.1992 allowed the revision and set aside the order passed by the S.O.C., confirming the order passed by the Consolidation Officer dated 17.02.1984.
9. Being aggrieved against the order passed by the Deputy Director of Consolidation, Faizabad which resulted in setting aside the order passed by the S.O.C., and confirming the order passed by the Consolidation Officer, Faizabad, the petitioner has approached this Court.
10. Learned counsel for the petitioner assailing the impugned orders has primarily raised the following submissions:-
11. (i) it is the case that the property in question was created out of a joint family nucleus. The pedigree is not disputed to the extent that the petitioner and the respondent No.3 both had their common ancestor namely Jhakri. It is sought to be urged that once it is not disputed that Jhakri was the common ancestor and the private-respondent could not establish that the disputed property had been acquired from their own separate funds and by their own acquisition then there being the presumption of the jointness of a Hindu Family and the property would remain so and be considered joint which ultimately would also result in the benefit to the petitioner to claim his right in the Hindu Joint Family/having co-tenancy rights which could not be refused to the petitioner.
12. It is further urged that in absence of averment that there has been a separation in the family then the burden is on such party to establish the separation and in the instant case, it is urged that from the evidence of Nanoo Ram, a copy of which has been brought on record as Annexure No.1 dated 22.02.1983 it clearly indicates that Nanoo Ram was not aware from where the property was acquired, thus, establishing the fact that the property was emanating from the joint family and since the petitioner was living jointly with Jagannath and in whose name the property was recorded in the representative capacity, thus, at the time of commencement of the consolidation operations, the petitioner had filed his objections, but this aspect of the matter has not been appropriately considered and decided by the Consolidation Officer, Faizabad.
13. It is further urged by the learned counsel for the petitioner that the petitioner had also laid a claim on the basis of adverse possession which has not been dealt with properly by the consolidation Court, as a result, the impugned orders suffer from the vice of being arbitrary and against the settled provisions of law, accordingly, deserves to be set aside after allowing the petition.
14. Learned counsel for the petitioner has relied upon the decision of this Court in the case of Dharmawati Tewari and others v. Prem Shanker Tewari and others, 1998 (4) AWC 701 Alld [LB]; Brij Basi Devi v. D.D.C., 2011 (112) RD 227; Adiveppa and others v. Bhimappa and another, (2017) 9 SCC 586; Rakesh Bhushan Prasad alias Rakesh Prasad and others v. Radha Devi and others, 2021 SCC OnLine SC 676 and Gaya Din and others v. Hanuman Prasad and others, (2001) 1 SCC 501.
15. On the contrary, learned counsel for the respondent has urged that the entire submissions of the learned counsel for the petitioner is incorrect. It has been urged that the petitioner has not approached the Court with clean hands inasmuch as he suppressed the fact regarding the pedigree. As per the pedigree given by the petitioner Jhakri is survived by two sons namely Jagannath, the predecessor of the private-respondent No.3 and Mohan the predecessor-in-interest of the petitioner.
16. It is further stated that actually Jhakri was survived by five sons. Apart from Mohan and Jagannath, he had three other sons namely, Jhuri, Ganga and Charan. It has further been pointed that that there is ample evidence on record to indicate that the sons of Jhakri prior to the commencement of the consolidation operations had already separated.
17. It is further urged that there is no evidence regarding the properly having been acquired from the joint nucleus nor any commonality of mess and residence between the parties. He further urged that in order to prove co-tenancy, it was incumbent upon the petitioner to plead that the property in question has been coming down the years in almost identical form. Unless and until it is thus shown, the claim for co-tenancy cannot be maintained. It is urged that in the instant case, there has been change in the number of plots and the areas right from 1301 Fasali to 1346 Fasali so much so that from eight plots recorded in 1301 Fasali in the name of Jhakri, eighteen plots were recorded in the name of Jagannath upto 1346 Fasali with complete change in the area. Thus, identity of the property never remained the same. In support of his submissions, he has relied upon decisions of this Court in the case of Jagdamba Singh and others v. Deputy Director of Consolidation and others, 1984 (2) LCD 398 and Ram Awadh v. Deputy Director of Consolidation, Sultanpur and others, 2022 (154) RD 654 [LB].
18. It has further been urged by the learned counsel for the respondent that insofar as the plea of adverse possession is concerned, it is not open for the petitioner to blow hot and cold at the same time. It is submitted that the claim of co-tenancy and adverse possession cannot be pleaded simultaneously as it is a mutually destructive plea. It is submitted that in law, a party is entitled to take alternate plea but not a mutually destructive plea.
19. It has further been urged that in case if the petitioner was pleading the plea of adverse possession then the burden was on the petitioner to establish his possession over the disputed property also the entry in PA-10 in favour of the petitioner and that the said entries were in accordance with law also that the notice of PA-10 was duly served on the owner of the property, in the instant case Jagannath, after him on the present respondent No.3 and also proving hostile possession to the knowledge of the true owner and that such entries were duly recorded as 'sikmi' in the record of rights maintained every year in the manner as provided under the Land Revenue Act, 1901.
20. It is urged that unless there is proper pleadings and evidence to the aforesaid effect, the plea of adverse possession cannot be successfully contested by the petitioner and in the instant case, no such evidence is available on record which has also been noticed by the consolidation officer as well as the Deputy Director of Consolidation, Faizabad, hence, the writ petition being devoid of merits is liable to be dismissed.
21. Having heard learned counsel for the parties and from a perusal of the material on record, this Court finds that the emphasis which has been laid by the petitioner is on the statement of Nanoo Ram which has been brought as Annexure No.1. The petitioner has relied upon the statement in pieces culling out sentences to the effect that Nanoo Ram did not make any clear statement as to establish how he got the disputed khata and the property in question. The sentences are sought to be culled out from the statement to establish that Nanoo Ram was not aware regarding the source of acquisition of the property but agreed that the property initially has been coming from Jhakri. This is the sole basis of the petitioner to establish that since Jhakri was the common ancestor and the property coming down from the time of Jhakri and in absence of any severance of the status in the family, there would be a presumption that the family was joint and thus, the petitioner would have a right.
22. This Court does not agree with the aforesaid submission for more than one reason. At the outset, it may be noted that the petitioner had not disclosed the true pedigree. He could not dispute the fact that Jhakri was actually survived by five sons namely Jhuri, Ganga, Charan, Mohan and Jagannath.
23. Learned counsel for the petitioner could not establish or give any explanation that in case if the property continued to devolve between the parties and coming down from the common ancestor namely Jhakri then the same would also devolve on all the five brothers and not merely on Mohan and Jagannath.
24. In this context, it will also be relevant to notice that during pendency of the proceedings before the Consolidation Officer, apart from Nanoo Ram other witnesses were also examined namely Ramhet and Shekhai. These witnesses clearly deposed that they were the successor of Mohan and related to the petitioner. He also indicated that he had another brother namely Dasrath, however, it will be relevant to notice that the present petitioner did not even implead his own brother Dasrath rather he suppressed throughout the proceedings that he had another brother. This witness further went on to state that he had been residing along with Dasrath and Nanoo Ram but since 15-16 years they have been residing separately. He further stated in his cross-examination that he had received other fields/plots which have been in his possession since last 42 to 45 years. He also admitted that upon the commencement of consolidation operations, the land which was in the name of Dasrath was given to him and in the said land no right was given to Nanoo Ram. He also showed his ignorance regarding the other brothers of his father namely Jhuri, Ganga and Charan. When he was confronted with the pedigree in his cross-examination, he admitted that Jhakri was survived by five sons and he admitted that in case if the property was coming down from the common ancestor then the heir of Jhuri, Ganga and Charan would also have rights. He also clearly admitted that Jhuri was eldest son of Jhakri whereas Jagannath was the youngest son.
25. The record further indicate that this aspect of the matter has been meticulously dealt with by the Deputy Director of Consolidation, Faizabad in his judgment dated 24.07.1992 whereas surprisingly this aspect of the matter has been completely ignored by the S.O.C.
26. In light of the aforesaid aspect regarding the family pedigree now if ingredients for co-tenancy as well as joint family are noticed, it would be found that both are quite distinct.
27. This Court in the case of Lalta Prasad and others v. Haunsla Prasad and others, 2021 (9) ADJ 1670 [LB] had the occasion to consider this aspect of the matter. This Court relying upon the decision of Jagdamba Singh (supra) wherein the issue regarding co-tenancy has been considered lucidly. The Court thereafter went on to consider the issue of joint family and joint family property which was considered earlier by this Court in the case of Dropadi Devi and others v. Shiv Chandra Dixit, 2020 (2) ADJ 560 [LB] wherein with the aid of the Apex Court decisions the concept of joint family, presumption and joint family property was considered and explained. Para 61 and 62 of Lalta Prasad (supra) which takes note of the aforesaid reads as under:-
"61. At this stage, it will be relevant to note the decision of this Court in the case of Jagdamba Singh & Ors. vs. Dy. Director of Consolidation & Ors., reported in 1984 (2) LCD Page 398 [LB] wherein the ingredients for a claim of co-tenancy and ancestral has been considered very lucidly and the relevant Paragraphs 14, 15, 22 and 23 will be apposite to resolve this controversy.
"....14. It is fairly well settled that in order to entitle a party to claim co-tenancy rights in the holding on the ground of its being ancestral the unbroken identity of the holding has got to be established throughout the period. If the identity has changed of the holding the claim cannot succeed. This view has been expressed in several decisions of Board of Revenue and also of this Court in the cases noted below:--
(1) 1943 RD 567 (BR)Jodhia v. Bhikwa.
(2) 1942 RD 379 (BR)Hamid Ali v. Benares Bank.
(3) 1942 RD 401 (BR)Mohd. Yasin v. Mohd. Shafi.
(4) 1945 RD 122 (BR)Rajaram v. Narain Singh.
(5) 1969 RD 175 (BR)Abhai Narain v. Ram Manorath.
(6) 1973 RD 242 (BR)Aminuddin v. Kamuruddin.
(7) 1975 RD 195 (BR)Ram Narain v. Buddhu.
(8) 1963 RD 37 (BR)Mahadeo Singh v. Sunder Kewat.
(9) 1979 RD 125 (BR) Balwanti v. Bhaiya Ram.
(10) 1983 (1) Lucknow Civil Decision, 40 (HC) Jhagroo v. The Deputy Director of Consolidation.
15. In all the aforesaid decisions it has been consistently held that in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it is essential that the entire land of the holding of the common ancestor must have come down in the identical form an it must have remained unchanged and intact. It would, however, be correct to say that where as a result of survey made during settlements, the area of some plots might have decreased or increased or that some plot or plots are eliminated for some explained reason from the holding in question viz. having fallen in the bed of river due to the alluvial and deluvial action of the river or by the construction of the canal etc., then in such event it cannot be said that there is break in the identity of the holding in dispute. The slight change like elimination of certain plot or the increase or decrease in the area of certain plots for the aforesaid reasons shown would not operate to destroy the identity of the holding coming down in identical form in the family from the time of common ancestor. But in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it must be established by the claimant that the holding has come down intact and in identical form that it has not been sub-divided or resettled with one or some of the heirs or with the strangers. Thus, where the disputed holding has not come intact in the identical form and only some of the plots of the holding belonging to common ancestor are found included as in the present disputed holding it would not make it ancestral holding so as to give a share in it to the claimants on that ground nor it would be permissible to pick up those plots from the holding and declare them to be ancestral property and give a share in those plots to the claimant.
* * * * * * * * * * *
22. Learned counsel for the opposite parties Sri Hargun Charan, however, urged that even if the claim of the opposite parties 5 to 8 cannot be sustained on the ground that the disputed holding is ancestral, yet their claim is sustainable on the ground that the entire land of the disputed Khata No. 36 is joint family property and the name of Mata Dihal Singh was recorded in the representative capacity as he was head and Karta of the joint family. His further contention was that even if it be held that the holding in dispute consisting of 84 plots with an area of 44 bighas, 9 biswas, 14 biswansis was settled afresh by the landlord with Mata Dihal Singh, the same would be deemed to be joint family property as at the time of acquisition he was head and Karta of the family being elder brother. Learned counsel pointed out that the opposite parties 1 to 3 have recorded a finding to the effect that at the time of second settlement in the year 1301 F., both these brothers Mata Dihal Singh and Ram Baran Singh formed joint family and on the basis of this finding learned counsel urged that even if land of the disputed holding was acquired by Mata Dihal Singh, but the same would be treated to be joint family property and the opposite parties 5 to 8 would get half share in all the plots of the disputed holding-Khata No. 36.1 am unable to agree with this contention as well.
23. It is well settled that the creation of tenancy in respect of agricultural land is a matter of contract between the landlord and the tenant. Even in the joint Hindu family a member of the joint family could acquire land for himself and unless it is proved that the land was acquired by him in the representative capacity and for the benefit of the family, it cannot be held to be joint family land merely because it was acquired by him when he formed joint family with other members. Even a Karta of joint Hindu family can acquire land in his name for his own benefit and it cannot be treated to be joint family property merely because he happens to be Karta of the family at the time of the alleged acquisition of the property. It has to be positively proved that when the land was acquired by the Karta of the joint family he had acquired it in the representative capacity for the entire body of coparceners and it is treated as such by the members of the family."
62. This Court had the occasion to consider the issue of joint family and joint family property in the case of Dropadi Devi & others Vs. Shiv Chandra Dixit, 2020 SCC Online, All 104. The relevant paragraphs 54 and 55 of the said report is being reproduced as under:-
"54. There is a difference between a joint family and a joint family property merely because a joint family exists does not give rise to a presumption that the property also belongs to the joint family. In this regard, this Court draws strength from the decision of the Apex Court in the case of D.S. Lakshmaiah and Another Vs. L. Balasubramanyam reported in 2003 (10) SCC 310, the relevant portion reads as under:-
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
55. Similarly, the Coordinate Bench of this Court in the case of Kunj Bihari Vs. Ganga Sahai Pande reported in 2013 SCC Online Alld. 13489: 2013 (99) ALR 826 wherein tracing the history and considering the earlier decision on the point of Joint Hindu Family and property, the burden of proof etc. This Court has held as under:-
24. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old."
25. The "joint family" is normally a transition form from "patriarchal family". At the death of common ancestors or head of house, if the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. An undivided Hindu family thus is ordinarily joint, not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin and farther one go, from the founder of family, the presumption becomes weaker and weaker. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as, at least, ordinary household articles which they would enjoy in common.
32. The joint undivided family is the normal condition of Hindu society as observed in Raghunadha Vs. Brozo Kishroe (1876) 3 IA 154 and Neelkisto Deb Vs. Beerchunder (1989) 12 MIA 523. An HUF is ordinarily joint not only in estate but in food and worship. Unless contrary is established, the presumption is that the members of a Hindu family are living in a state of union (see: Govind Dass Vs. Kuldip Singh AIR 1971 Delhi 151 and Bhagwan Dayal Vs. Mst. Reoti Devi AIR 1962 SC 287). If, however, one of the coparceners is admittedly living separately from other members of the family, neither it can be said that other members do not constitute a Hindu joint family nor the member living separately, who has stripped his relation with the joint family, can be said to be still a coparcener or member of joint family. Simultaneously, merely if some members are working and living at different places, though own a joint family in common, it cannot be said that they do not form a joint Hindu family. Since it is only a presumption, the strength thereof necessarily varies in every case. The presumption of union is stronger in the case of brothers than in the case of cousins and farther one goes from the founder of the family, the presumption becomes weaker and weaker.
33. Brothers may be presumed to be joint but conclusion of jointness with collaterals must be affirmatively proved. The presumption lies strongly in favour of father and son that they are living jointly unless proved otherwise.
34. This presumption, however, does not apply in respect of property. There is no presumption that a family, because it is joint, possess joint property. As per Mitakshara law, the possession of property is not a necessary requisite for the constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive that they are possessing no property whatever, such as ordinary household articles which they would enjoy in common.
35. In Sher Singh Vs. Gamdoor Singh 1997 (2) HLR 81 (SC), the Court said that once existence of a joint family is not in dispute, necessarily the property held by family assumed the character of a coparcenary property and every member of family would be entitled, by birth, to a share in coparcenary property, unless any one of the coparcener pleads, by separate pleadings and proves, that some of the properties or all the properties are his self-acquired properties and cannot be blended in coparcenary property. Merely because the family is joint, there is no presumption of joint property. A Hindu, even if he be joint may possess separate property. Such property belongs exclusively to him. Neither member of the coparcenary, nor his male issue, acquires any interest in it by birth. On his death (intestate), it passes by succession to his heirs and not by survivorship to the surviving coparcener. The existence of joint family does not raise presumption that it owns properties jointly. But once joint family nucleus is either proved or admitted so as to draw inference that such property could have been acquired out of joint family funds, the burden shifts to the party alleging self acquisition, to establish affirmatively, that such property was acquired without aid of joint family. Initial burden always lies upon the party asserting that any item of property is joint family property.
38. In Appalaswami Vs. Suryanarayanamurti and Ors., AIR 1947 PC 189, it was held that Hindu law is very clear. Proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon one who asserts that an item of property is joint, to establish that fact. But where it is established that the family possessed some joint property which, from its nature and relative value, may have formed the nucleus, from which property in question may have been acquired, the burden shifts to the party alleging self-acquisition, to establish affirmatively that the property was acquired without the aid of joint family property/fund.
39. Again in Srinivas Krishnarao Kango Vs. Narayan Devji Kango AIR 1954 SC 379, it was held that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value, may have formed the nucleus, from which property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of joint family property.
40. The legal proposition which emerges therefrom is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/fund.
41. In Rukhmabai Vs. Lala Laxminarayan AIR 1960 SC 335, the Court said:
"There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property..."
(emphasis added)"
28. This aspect of the matter has also been noticed by this Court in the case of Ram Awadh (supra) and Paragraph 18 to 20 of the said report reiterates the law which has been noticed above.
29. Applying the aforesaid principles which have been noticed hereinabove, it would indicate that the petitioner has not been able to fulfill the aforesaid criteria of neither proving the existence of joint family, the nucleus and the acquisition of the property from the joint family funds. The ingredients for co-tenancy has also not been made out inasmuch as the identity of the plots right from 1301 Fasali to 1346 Fasali kept on changing and not only in context with the number of plots but also in terms of the area. Admittedly, the property recorded in the name of Jagannath, who was the youngest son of Jhakri, the petitioner concealed the true identity of other members of the family including his own brother and only in his cross-examination the truth was revealed which has been noticed by both the Consolidation Officer, Faizabad and the Deputy Director of Consolidation, Faizabad and thus being pure findings of fact, this Court is not inclined to interfere with the same as it is based on proper and correct appreciation of law.
30. The other issue regarding adverse possession, suffice it to state that the pleadings are absolutely vague and scanty nor there is proper evidence led by the petitioner to establish the aforesaid plea. It will also be relevant to notice that the plea of adverse possession is to be strictly construed and requires clear pleadings and proper evidence.
31. Recently, this Court in WRIT-B 2430 of 1979 - Chit Bahal Singh and others v. Joint Director of Consolidation and others, decided on 29.04.2022 by relying upon the decision of Babu Ali and another v. D.D.C. and others, (2021) 6 All LJ 694 had occasion to consider the plea of adverse possession in detail and it has been held as under:-
"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
32. (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.
16. This Court, in the case of Putti v. Assistant Director of Consolidation, Bahraich, (2007) 2 All LJ 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 v.Revamma, 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, (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, (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"
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."
33. Thus, noticing the above requirement regarding adverse possession and if seen in context with the pleadings and material on record of the instant case, it is found that the plea of adverse possession cannot be sustained at all as neither the petitioner made adequate pleadings nor evidence worth its name to prove the said plea. Apart from the fact that the plea of co-tenancy and adverse possession being mutually destructive could not be raised by the petitioner.
34. Insofar as the reliance placed by the learned counsel for the petitioner on the cases of Adiveppa (supra); Rakesh Bhushan Prasad (supra); Dharmawati Tewari (supra); Gaya Din (supra) and Brij Basi Devi (supra) are concerned, the proposition regarding presumption is not in dispute but applying the same on the present facts and circumstances as already noticed hereinabove indicates that presumption could not be drawn in view of the material on record in shape of oral testimony of the petitioner and his witness regarding the sons of Jhakri staying separately and no positive evidence to establish joint mess, living or worship by the parties and, therefore, the reliance placed by learned counsel for the petitioner on the aforesaid cases does not come to his rescue.
35. Thus, for all the reasons as noticed above, the contentions of the petitioner cannot be accepted and the Court finds that the petition is devoid of merits and is liable to be dismissed.
36. Accordingly, the petition is dismissed. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 12.05.2022 Rakesh/-