Allahabad High Court
Surendra Kumar And Others vs Apar Distt.Magistrate/D.D.C.Hardoi ... on 4 September, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:53323
HIGH COURT OF JUDICATURE AT ALLAHABADLUCKNOW
WRIT - B No. - 660 of 1994
Surendra Kumar And Others
.....Petitioner(s)
Versus
Apar Distt.Magistrate/D.D.C.Hardoi And Others
.....Respondent(s)
Counsel for Petitioner(s): Chandra Has Misra, Ajai Kumar Yadav, Chandra Has Misra
Counsel for Respondent(s): C.S.C., Dilip Kumar Pandey
Court No. - 5
HON'BLE ALOK MATHUR, J.
1. Heard Shri Chandra Has Mishra along with Shri Ajay Kumar Yadav, learned counsel for the petitioners and Shri Badrish Kumar Tripathi, learned Additional Chief Standing Counsel on behalf of the State- respondents.
2. In the present writ petition the dispute pertains to Khata No. 278 comprising plots numbers 485 measuring 15 Biswa, 545 measuring 17 Biswa, 690 measuring 12 Biswa, 713 measuring 9 Biswa, 10 Biswansi, 846, measuring 4 Biswa, 3 Biswansi, 891 measuring 19 Biswa and 916 measuring 1 Bigha, 11 Biswa, 4 Biswansi situated at village Mohammadpur Belwaran, Pargana and Tehsil Sandila, District Hardoi.
3. It is stated that in Khasra no. 1339 Fasli against the aforesaid land, name of Nand Lal son of Chunni Lal along with Tika Ram was recorded. It has been stated that in fact Tika Ram who is recorded tenure holder had mortgaged the said land to Nand Lal son Chunni Lal and subsequently Ram Deo who was son of Nand Lal came to be recorded in the revenue record as a category 2-A tenant.
4. It has been stated that prior to abolition of Zamindari the column 2-A was recorded as Thekedar. Accordingly it is the undisputed case that the said land was mortgaged and after abolition of Zamindari an application was moved by Ram Deo to make necessary corrections in the revenue records, according to the revenue record manual and to record Ram Deo as a category 3 tenant. The Consolidation Officer by means of order dated 23.8.1988 accepted the contention of the petitioners and held that the applicant therein was mortgagee of the said land and after abolition of Zamindari they should be recorded as Bhumidhar with transferable rights. He did not accept the contention of the opposite party, namely, Sone Lal who had opposed the application and submitted that as per the provision of Section 14 of the Zamindari Abolition Act, no such right as claimed by the applicant would vest in him but his objections were rejected and order was passed to record the applicant as a Class-3-A in column-3 and as Ram Deo had died during the pendency of the said proceedings directed the land to be recorded to his legal heirs and also distributed the shares equally amongst his three legal heirs. For the purpose of understanding, Section 14 of the U.P. Z.A. & L.R. Act is quoted herein below:-
"14. Estate in possession of a mortgagee with possession.
(1) Subject to the provisions of sub-section (2), a mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate.
(2)Where any such land was in the personal cultivation of the mortgagee on the date immediately proceeding the date of vesting-(a)if it was sir or khudkasht of the mortgagor on the date of the mortgage, the same shall, for purposes of Section 18 be deemed to be the sir or khudkasht of the mortgagor or his legal representative;(b)if it was not sir or khudkasht of the mortgagor on the date of the mortgage, the mortgagee shall, subject to his paying to the State Government within six months from the date of vesting an amount equal to five times the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting, be deemed, for purposes of Section 19 to have held such land on the date aforesaid as a hereditary tenant thereof at the said rate of rent:
Provided that if the mortgagee fails to pay the amount aforesaid within the time allowed, he shall thereupon lose all rights in such land which shall be deemed to be vacant land and he shall be liable to ejectment on the suit of the Gaon Sabha [or the Collector] [Inserted by U.P. Act No. 5 of 1957.] under Section 209 as if he were a person in possession thereof otherwise than in accordance with the provisions of this Act.
Explanation [I] [Renumbered by U.P. Act No. 16 of 1953 (w.e.f. 01.07.1952).]. - For the purposes of this section a mortgagee in possession includes a thekedar of his rights as mortgagee in the land.
[Explanation II. - Where any land has been mortgaged with possession and the mortgagor makes a second or subsequent mortgage of such land in favour of the same or different person, the expression "on the date of the mortgage" shall mean the date of the mortgage in pursuance of which the mortgagor first transferred possession to mortgagee.] [Added by U.P. Act No. 16 of 1953 (w.e.f. 01.07.1952).]"
5. Against the order dated 23.8.1988 an appeal was preferred by Sone Lal before the Settlement Officer, Consolidation. Sone Lal, who was the son of Tika Ram the recorded tenure holder and stated that in fact his father is the main agriculturist and tenant of the said land and Ram Deo was a contractor who has manipulated the records and entered his name in the revenue record. He submitted that on abolition of Zamindari and promulgation of Z.A. & L.R. Act as per Section 14, all rights vested in the mortgager and therefore his name should have been deleted from the revenue records. He further submitted that as per provision of Section 14 (2) (b) in case Ram Deo claims to have transferable right to the said land he was to pay an amount equal to five times rent calculating the right of vesting with the State Government within six months, failing which he would lose all the rights to the said land and would be liable to be evicted. It was further stated that after coming into force of the Z.A.& L.R. Act, 1952 order for eviction to Ram Deo was passed on 25.7.1978 and also order was passed for cancellation of recording his name in category-3 tenant.
6. It was stated that the said order could not be carried out, and merely because the relevant records were not corrected the Gaon Sabha will not loose the right for eviction. The Settlement Officer, Consolidation after considering the entire facts concurred with the arguments of the appellant. He was of the view that in light of provision contained in Section 14 (2) (b) of the Z.A. & L.R. Act, 1950 Ram Deo who was a mortgager, was required to pay to the State Government within the period of six months of the date of vesting, an amount of 5 times and as he had failed to deposit the said amount, the land shall be deemed to have been vacated and stood liable for eviction at the instance of the Gaon Sabha.
7. It was further stated that in fact the order for eviction of Ram Deo was filed on 25.5.1978. Against the order of Settlement Officer, Consolidation dated 15.5.1989 the petitioners have preferred a revision before the Deputy Director of Consolidation. The Deputy Director of Consolidation also looked into the entire records and confirmed the order passed by Settlement Officer, Consolidation and rejected the revision by means of order dated 23.8.1994.
8. It is in the aforesaid circumstances the present petition has been filed by the petitioners challenging the order dated 15.5.1989 passed by the Settlement Officer, Consolidation as well as the order dated 30.8.1995 passed by Deputy Director of Consolidation.
9 . In the present writ petition ground raised before the authorities below has been reiterated. It has been submitted that once there is no dispute that the predecessor-in- interest of the petitioners was only a mortgagee, the petitioners could not have perfected rights of a bhumidhar by adverse possession. Accordingly, the respondents ought to have recorded the tenure holder as a Bhumidhar. In support of his submission he has relied upon a judgment of a Coordinate Bench of this Court in the case of (Smt.) Sushila Devi and others Vs. D.D.C.
10. This Court duly considered the fact that the mortgager or his descendants had 60 years to redeem upon mortgage. This period of 60 years expired in year 1934 but before expiry of this period no suit for redemption was filed. Consequence of failure to file a suit of redemption the mortgager or his descendants have no right to recover the possession in dispute. In the present case clearly period of redemption was 60 years. Apart from the above, the aspect of possession is also not in favour of the petitioners in as much as there is no evidence or record available with regard to the possession of the petitioners on the mortgaged property.
11. Accordingly the facts in the case of Smt. Sushila Devi are at variance with the facts of the present case. Hence, the said decision is distinguishable and does not render any assistance to the petitioners.
12. From the evidence on record, it is not established, firstly, that the petitioners were ever in possession, and secondly, that such possession, if any, was averse tot he recorded tenure holder. Moreover, there is no infirmity in the findings recorded by the Settlement Officer, Consolidation, holding that the petitioners had themselves failed to comply with the provisions of Section 14(2) (b) of the U.P. Z.A. & L.R. Act. The orders of eviction were duly passed, and the petitioners had not perfected any right as bhumidhar with transferable rights. In the absence of any credible material regarding their possession, the benefit of Section 14(2) (a) cannot be extended to the petitioners. It is only when it is clearly demonstrated that the mortageee is in possession of the mortgaged property that such benefit can be claimed.
13. Apart from the above, it is also evident that in terms of the proviso to Section 14(2) (b), eviction proceedings were carried out against the petitioners, and orders for eviction were actually passed. Consequently, the petitioners lost all rights in the disputed property. For these reasons, this Court finds no ground for interference with the orders passed by the authorities below. The writ petition, being devoid of merits, is accordingly dismissed.
September 4, 2025 Muk