Allahabad High Court
Ram Naresh Misra vs Sita Ram And Others on 21 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 1276
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 13/Reserved
Case :- CONSOLIDATION No. - 2252 of 1982
Petitioner :- Ram Naresh Misra
Respondent :- Sita Ram And Others
Counsel for Petitioner :- Hargur Charan,D.S. Pandey,D.S.Pandey,V.K.Srivastava
Counsel for Respondent :- C.S.C.,H.S.Sahai,R.A.Misra,Uma Shankar Sahai
Hon'ble Rajnish Kumar,J.
1. Heard, Shri D.S. Pandey, learned counsel for the petitioner and Shri Uma Shankar Sahai, learned counsel for the respondent no.1. The respondents no.2 to 4 are the court concerned.
2. This petition has been filed against the judgment and orders dated 21.02.1975 passed by the Consolidation Officer (here-in-after referred as C.O.), 05.09.1975 passed by the Assistant Settlement Officer Consolidation (here-in-after referred as ASOC) and 20.09.1982 passed by the Deputy Director of Consolidation (here-in-after referred as DDC).
3. The dispute in the instant writ petition relates to Gata No.542 / area 0-4-16 of Khata No.47 of Village- Simra Tappa Haweli, Pargana- Bidha, Tehsil- Tanda, District- Faizabad now Ayodhya. The name of the petitioner namely Hardeo was recorded as Bhumidhar of Gata No.542 in the basic year of consolidation alongwith Rampher, Shiv Das and Sudama being the co-tenure holders. However, they have not claimed any right on the plot in question as it has been stated that the petitioner had got the land in dispute in partition. The possession of the respondent no.1 i.e. Sita Ram was recorded under clause-9 in the revenue records. On coming to know the petitioner had filed a suit for eviction but during pendency of the suit the consolidation proceedings started therefore the suit was abated. Therefore the petitioner had filed an objection under Section 9(2) of the Consolidation of Holdings Act, 1953 (here-in-after referred as Act of 1953) on 14.01.1974. The petitioner had also filed an objection regarding deficiency of some area of some other plots on 14.01.1974 but the same was not found proved by the Consolidation Authorities and before this Court also no arguments were advanced in regard to that. The respondent no.1 had filed objection to the objection / claim of the petitioner. The matter could not be settled before the Assistant Consolidation Officer therefore it was referred to the C.O. for decision on merit. The C.O., after the evidence adduced by the parties, considered the matter and rejected the objection / claim of the petitioner and directed to struck off the name of the petitioner from Gata No.542 and record the name of the respondent no.1 as Sirdar. Being aggrieved the petitioner had filed an appeal bearing no.9301 under Section 11(C) before the SOC, which was also rejected by means of the order dated 05.09.1975 by the ASOC. The Revision No.293 / 728 under Section 48 was filed by the petitioner which was also rejected by means of the judgment and order dated 20.09.1982. Hence the present writ petition has been filed. During pendency of the present writ petition the petitioner and the respondent no.1 died, therefore their legal heirs have been brought on record.
4. Submission of learned counsel for the petitioner was that the respondent no.1 had not filed any objection under Section-9(2) even then the C.O. proceeded on the assumption that the objection was filed by the respondent no.1 and the title of the case was also shown as Sita Ram Vs. Hardeo illegally and in mala fide manner. The objection of the petitioner was rejected in an arbitrary, illegal and in a mala fide manner on the basis of adverse possession of respondent no.1 without fulfilling the conditions and continuity of possession. The C.O. also failed to consider the mandatory provisions of issuance of PA-10 and it's service in case of entry of clause-9 on the basis of adverse possession. The C.O. merely on presumption, has rejected the claim of the petitioner on the ground that the name of the petitioner might have been recorded. A finding in regard to filing of the eviction suit with delay has also been recorded by the C.O. on the basis of presumption but the appellate and the revisional authorities have not recorded any finding in regard to the alleged delay in filing the suit because it was filed within time. The learned courts below have also not recorded any finding that the respondent no.1 had matured his right on the basis of adverse possession prior to filing of the suit by the petitioner.
5. On the basis of above, learned counsel for the petitioner submitted that the learned courts below, without considering the pleadings of the parties and the evidence and merely on the basis of presumption, have rejected the claim of the petitioner in an arbitrary and illegal manner. Hence the impugned orders are not sustainable in the eyes of law and liable to be quashed.
6. Learned counsel for the petitioner has relied on judgment and order dated 27.09.2013 in Writ-B No.43960 of 2013; Babu Lal Vs. Deputy Director of Consolidation/A.D.M. & Others, judgment and order dated 18.05.2015 in Writ-B No. 13437 of 2015; Balchan and 2 Others Vs. Deputy Director of Consolidation and Others, Dagadabai (Dead) by L.Rs. Vs. Abbas @ Gulab Rustam Pinjari; 2017 (136) RD 552 / 2017 (13) SCC 705, Ram Janam (Dead) Vs. Deputy Director of Consolidation, Gazipur and Others; 2003 (Suppl) RD 571, Ran Singh Vs. Deputy Director (C) and Others; MANU/UP/0893/2005 / 2005 (99) RD 324, Shri Uttam Chand (D) Through L.Rs. Vs. Nathu Ram (D) Through L.Rs.; AIR Online 2020 SC 35, Karnataka Board of Wakf Vs. Government of India and Others; (2004) 10 SCC 779; Manu/SC/0377/04, Putti & Others. Vs. Assistant Director, Consolidation, Bahraich & Others; 2007 (2) ALJ 143, Shri Nath Vs. The Deputy Director of Consolidation, Ghazipur and Another; 1982 SCC OnLine All 980, Sheo Mangal Lal Vs. Deputy Director of Consolidation and Others; 1978 SCC OnLine All 655, Chandi Prasad (Dead) Through L.Rs. Vs. Deputy Director of Consolidation, Kanpur and Others; 2011 (114) RD 663, Virendra Nath Through P.A. Holder R.R. Gupta Vs. Mohd. Jamil and Others; MANU/SC/0537/2004 / AIR 2004 SC 3856 and Prem Narain and Another Vs. Shiv Pati and Others; 2004 (22) LCD 1638.
7. Per contra, learned counsel for the respondent no.1 submitted that the respondent no.1 had got the land in dispute from his father and an alternative plea of adverse possession was taken by him. The respondent no.1 had filed objection against the objection / claim of the petitioner. The name of the respondent no.1 was recorded in 1367 Fasli and PA-10 was also issued but only the number of PA-10 has not been mentioned in the record of 12 years. At the relevant point of time the period was six years for claim of adverse possession. The suit for eviction was filed by the petitioner on 15.11.1971 with delay as the petitioner had knowledge in the year 1966, which is apparent from the certified copy filed by him alongwith rejoinder affidavit. The petitioner Hardeo, who had filed the objection, never appeared in the witness box although he admitted the possession of the respondent no.1 in his objection. The respondent no.1 had specifically stated in his evidence that he is cultivating the land in dispute for the last 25 years before his father was cultivating. The plea of 'Batai' was not stated by the son of the petitioner in his evidence. However he has not disputed that the respondent no.1 should also have filed the objection.
8. On the basis of above, learned counsel for the respondent submitted that the learned courts below have rightly considered the pleadings and evidence of the parties and rejected the objection of the petitioner. There is no illegality or error in the impugned orders. The writ petition is misconceived and liable to be dismissed. Learned counsel for the respondent has relied on Chunni Vs. State of U.P. and Others; MANU/UP/2826/2015 / 2016 (130) RD 617 and Smt. Jagwanta Vs. Smt. Nirmala and Others; MANU/UP/0737/1982 / 1982 AWC 591 (ALD).
9. In reply, learned counsel for the petitioner had submitted that the arguments of the respondent no.1 are beyond pleadings which is apparent from paragraph-12 of the counter affidavit filed before this Court in which also the respondent no.1 has stated that the possession of the respondent no.1 was adverse whereas the adverse possession has not been proved. So far as the submission regarding delay in filing the eviction suit, he submitted that as per submissions of the learned counsel for the respondent no.1 also the suit, was within time. Therefore, the submissions of learned counsel for the respondent are misconceived.
10. I have considered the submissions of learned counsel for the parties, gone through the orders and perused the record of writ petition.
11. The dispute relates to Gata No.542 of Khata No.47. In the basic year of consolidation, the name of the petitioner was recorded as Bhumidhar and the possession of the respondent no.1 was recorded in Column-9. The petitioner had filed the objection under Section-9(2). The matter could not be settled therefore the Assistant Consolidation Officer referred to the C.O. for decision on merit. It is apparent from the perusal of the order of C.O. that the suit has been decided with the title of Sita Ram Vs. Hardeo whereas the objection was filed by the petitioner therefore the title of the suit should have been Hardeo Vs. Sita Ram. Four issues were framed by the C.O. but despite the fact that the objection was filed by the petitioner, who was recorded as Bhumidhar in the basic year, the first issue was framed as to whether the petitioner is Sirdar of the land in dispute No.542 and the third issue was framed as to whether Sita Ram is Bhumidhar of land in dispute. From the finding recorded by the C.O. it is apparent that he has not found the continuous possession of the respondent no.1 and recorded a findings on the presumption that the name of the plaintiff i.e. respondent no.1 was recorded in the year 1359 Fasli as Sikmi and his name might have been left in the subsequent years and thereafter it was recorded in the year 1336-1367 Fasli. A finding has also been recorded on the basis of record that there is no reference of PA-10 but on the basis of objection of the petitioner the requirement of PA-10 is said to have been fulfilled. Though a finding has been recorded that the name of the petitioner is also recorded with the difference of 1-2 years but it has been stated to be doubtful because there is no PA-10. Therefore, it is apparent that the learned C.O. has dealt with the matter without application of mind and considering the records and the relevant law applicable because PA-10 was not required for petitioner who was recorded as Bhumidhar in the basic year. It was required for the respondent no.1, who was claiming on the basis of adverse possession. Therefore the findings recorded by the C.O. are illegal perverse.
12. The name of the respondent no.1 was recorded in clause-9 on the basis of order passed by the Supervisor Kanoongo. There is no finding that the respondent no.1 was in continuous possession for a period of 12 years though on the basis of record of 12 years filed before this Court it was argued that PA-10 is mentioned in some years but the number of PA-10 has not been mentioned and it has not been issued in accordance with law and not served on the main tenant i.e. the petitioner. Therefore the benefit of it can not be given to a person i.e. the respondent no.1 who is claiming on the basis of adverse possession. The claim from his father has also not been proved.
13. The appellate authority also proceeded on the assumption that the respondent no.1 want to get his name recorded as Sirdar on the basis of adverse possession but without any finding as to whether the petitioner was in continuous possession and considering the order passed by the Supervisor Kanoongo and the eviction suit filed by the petitioner recorded his opinion that the respondent no.1 has proved his possession on the land in dispute from oral and documentary evidence. It has not recorded any finding that as to whether the Supervisor Kanoongo had passed the order for recording the name of the respondent no.1 after following the due procedure of law or not.
14. The revisional authority also dealt with the matter on the assumption that Sita Ram has filed the objection in regard to Gata No.542 and he has matured his right on the land on the basis of adverse possession therefore his name should be recorded as Bhumidhar. The DDC also recorded a finding that from 1359 Fasli to 1370 Fasli there is no entry of possession in favour of the revisionists and the entry of possession of 1371 Fasli is not in accordance with the Land Records Manual whereas the C.O. has accepted that the name of the petitioner is also recorded by the difference of 1-2 years. However, the revisional authority has nowhere stated that as to whose name is recorded as main tenure holder. In regard to PA-10, without any evidence, it has been recorded that the order has been passed after inquiry of PA-10. Accordingly the revisional authority held that he feels that the courts below have given the correct decision by declaring Sita Ram as Sirdar of land in dispute on the basis of possession. Therefore it is apparent that the respondent no.1 has been declared to have matured his right on the basis of adverse possession while he was not in continuous possession and the procedure for recording under clause-9 on the basis of adverse possession by issuance of PA-10 was not followed, the service of which, on main tenant, was also mandatory. But there is no proof of service. The courts below have rejected the claim of the petitioner while he was recorded as Bhumidhar in Khatauni of basic year. The right on the basis of adverse possession will accrue in accordance with law and not merely because the petitioner had stated in his objection that the respondent was given the land in dispute for plowing and therefore he was in possession but he had got his name wrongly recorded in clause-9 without due procedure of law.
15. 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."
16. 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.
17. 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.
18. 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."
19. 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.
20. This Court, in the cases of Babu Lal Vs. Deputy Director of Consolidation (Supra), Balchan and two Others Vs. Deputy Director of Consolidation and Others (Supra), Chandi Prasad (Dead) Through L.Rs. Vs. Deputy Director of Consolidation and Others (Supra), Shiv Mangal Lal Vs. Deputy Director of Consolidation and Other (Supra) and Shri Nath Vs. Deputy Director of Consolidation (Supra), has consistently held that if an entry has been made in column-9 of the Khatauni without issuing and service of PA-10 on the recorded tenure holder then such an entry was illegal and has no evidentiary value. It has further been held that the burden to prove that PA-10 was issued and served on the tenure holder is lying upon the person relying on the column-9.
21. In the present case the respondent no.1 had not even filed any objection claiming his adverse possession and it has not been proved by him that PA-10 was issued in accordance with the provisions of the Land Records Manual and served on the tenure holder whereas he has claimed on the basis of adverse possession and PA-10. On the other hand, the respondent no.1 has specifically denied in his evidence that the land in dispute has any concern with the petitioner therefore the claim of the respondent no.1 is not sustainable at all against the petitioner, who was recorded as Bhumdhar. The right of adverse possession is not a substantive right but result of the waiving it willfully or omission by negligence or otherwise of a right to defend or care for the integrity of the property on the part of the paper owner of the land.
22. This Court in the case of Putti and Others Vs. Assistant Director of Consolidation, Bahraich and Others (Supra) 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."
23. Similar view has been taken in the case of Prem Narain and Another Vs. Shiv Pati and Others (Supra), Ran Singh Vs. Deputy Director (C) and Others; (Supra) and Ram Janam Vs. Deputy Director of Consolidation, Gazipur and Others; (Supra).
24. 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."
25. Similar view has been taken by the Hon'ble Apex Court in the case of Karnataka Board of Waqf and Others Vs. Government of India and Others (Supra) and Virendra Nath Through P.A. Holder R.R. Gupta Vs. Mohd. Jamil and Others (Supra).
26. The Hon'ble Apex Court in the case of Shri Uttam Chand (D) Through L.Rs. Vs. Nathu Ram (D) Through L.Rs. (Supra) has held that Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner and mere possession for some years was not sufficient to claim adverse possession. A Constitution Bench in the case of M. Siddique (D) through Lrs. Vs. Mahant Suresh Das and Others; (2019) SCC Online 140 has 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 a possession adverse to the title of the other. Similarly in the case of Dagadabai (Dead) by L.Rs. Vs. Abbas @ Gulab Rustam Pinjari (Supra) the Hon'ble Apex Court has held that it is settled principal of law of adverse possession that the person who claims title over the property on the strength of adverse possession and thereby wants to diverse the true owner of his ownership rights over such property is required to prove his case only against the true owner of the property. It is equally well settled that such person shall necessarily first admit the ownership over the property to the knowledge of the true owner and secondly the true owner has to be made a party to the suit to enable the court to decide the plea of adverse possession between the two rival claimants. In the present case the respondent no.1 neither filed any objection against the records published during consolidation proceedings claiming the right of adverse possession nor accepted the ownership of the petitioner therefore he is not entitled to be recorded on the basis of adverse possession.
27. The petitioner is not entitled for any benefit of the judgment relied by him in the case of Chunni Vs. State of U.P. and Others (Supra) because in the said case it has been observed that the issuance of PA-10 was compulsory between 1959-65. In the instant case the name has been recorded on the basis of the order passed by the Supervisor Kanoongo on 15.03.1961, which could have been passed after issuance of PA-10 and service of the same on the original tenant therefore in view of the aforesaid judgment the procedure for issuance of PA-10 was mandatory at the relevant point of time but none of the courts below have recorded a single finding that the PA-10 was issued in accordance with the procedure prescribed under the Land Records Manual. In fact it has been proved by the finding of the C.O. that the PA-10 was not issued and that procedure was not followed as it has recorded that the requirement of PA-10 has been fulfilled by the objection of the petitioner.
28. Adverting to the question of filing of the suit under Section 209/229 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 admittedly it was filed on 15.11.1971 i.e. 1378 Fasli. The C.O. on the basis of evidence of the son of the petitioner that the objection was made prior to one year of consolidation proceedings recorded a finding that it must have been after 1378 Fasli and if it is presumed that the possession of the respondent no.1 was recorded in the year 1972 Fasli then also the six years had not completed therefore this finding was purely on presumption and on the basis of this finding the rights under Section 210 of the Act of 1950 could not have been perfected. Even if the submission of learned counsel for the respondent no.1 is accepted that the petitioner had knowledge of the entry made in the year 1966 i.e 1373 Fasli then also it was within six year as the suit was filed in 1378 Fasli.
29. This Court in the case of Smt. Jagwanta Vs. Smt. Nirmala and Others (Supra) in paragraph-2 has noted that the period of limitation prescribed for a suit, for ejectment of a trespasser under Section 209 of the Act of 1950 was six years during the period between 27.03.1969 and 13.10.1971 and this was increased to 12 years by notification dated 14.10.1971 amending the relevant entry no.30 of appendix-3 to the rules and the serial no.24 of Schedule-2 of the act. Therefore on the date of filing of the suit by the petitioner on 15.11.1971 the limitation for filing the suit was 12 years so it was within limitation. The appellate authority and the revisional authority have not recorded any finding that the suit was time barred. Therefore also the respondent no.1 is not entitled for benefit of Section 210 of the Act of 1950.
30. The courts below have also not recorded the concurrent finding because they have recorded the finding on presumption and the appellate authority and the revisional authority have virtually affirmed the findings of courts below as discussed above. The courts below have dealt with the matter on the wrong assumption that the respondent no.1 was claiming his title on the basis of adverse possession but failed to consider that the respondent no.1 had neither filed any objection nor proved his claim on the basis of adverse possession. The courts below also failed to consider that the name of the petitioner was recorded as Bhumidhar in the basic year entry therefore the objection was required to be filed by the respondent no.1 asserting the claims against the true owner which he failed to do. Therefore this Court is of the considered opinion that the impugned judgment and orders dated 21.02.1975, 05.09.1975 and 20.09.1982 are perverse and have been passed in an arbitrary and illegal manner, recording perverse findings without application of mind and considering the over all facts and circumstances of the case and in the light of the law applicable. Therefore they are not sustainable at all in the eyes of law and liable to be quashed and the name of the petitioner is liable to be allowed to be continued in the revenue records as Bhumidhar as was recorded in the basic year and the possession of the respondent no.1 is liable to be expunged.
31. The writ petition is, accordingly, allowed. The impugned orders dated 21.02.1975, 05.09.1975 and 20.09.1982 are hereby quashed. The name of the petitioner shall continue in the revenue records as was recorded in the basic year and the possession of the respondent shall be expunged. No order as to costs.
.............................................................(Rajnish Kumar,J.) Order Date :- 21.06.2021 Haseen U.