Allahabad High Court
Chit Bahal Singh And Others vs Joint Director Of Consolidation ... on 29 April, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED Case :- WRIT - B No. - 2430 of 1979 Petitioner :- Chit Bahal Singh And Others Respondent :- Joint Director Of Consolidation Faizabad And Others Counsel for Petitioner :- M.R.Mishra,Ashish Srivastava,Durga Prasad,O N Tewari,Onkar Nath Tiwari,Vinod Kumar Singh Ii Counsel for Respondent :- Irfan Ahmad,Atin Krishna,C S C,Devendra Pratap Singh,Dr. V.K. Singh,Fatehuddin,K.M.Dubey,Kapil Muni Dubey,Ram Sewak Tripathi Hon'ble Jaspreet Singh,J.
1. Heard Sri Durga Prasad, learned counsel for the petitioners and Shri Ram Sewak Tripathi, learned counsel for the private-respondents.
2. The instant petition has been preferred by the petitioners assailing the impugned order dated 22-05-1979 passed by the Joint Director of Consolidation, Faizabad in Revision Nos. 5277 & 5276, which were consolidated and decided by a common order. The Revision no. 5277 was preferred by the private respondent nos. 4 to 6 while Revision No. 5276 was preferred by the petitioners. The revision preferred by the respondents has been allowed and the revision preferred by the petitioners has been dismissed. In this view of the matter, the petitioners have assailed the judgment dated 22-05-1979.
3. In order to appreciate the controversy involved in the instant petition, certain facts giving rise to the instant petition are being noticed hereinafter, first.
4. At the outset, it will be relevant to notice that few of the original petitioners and the private respondents died during pendency of the petition and they have been substituted by their legal heirs, however, for the sake of convenience, the court shall be referring to the parties as they were originally impleaded in the petition.
5. That the dispute in question relates to plot nos. 257,277, 278,287,288,289,260,261 and 1133/1 M recorded in the basic year Khatauni in the names of private-respondents no. 4 to 6 situated in Village-Nanwa,Tehsil-Akbarpur,district-Faizabad (now district-Ayodhya).
6. The petitioners filed their objections under section 9(2) of the U.P. Consolidation of Holdings Act, 1953 and claimed Sirdari rights over all the aforesaid plots except plot no. 1133/1 M. An area of 16 Biswa of land in the said plot no. 1133/1 M was claimed as grove land.
7. The contention of the petitioners before the Consolidation Authorities below was that the grove land of the plot no. 1133/1 M belonged to the ancestors in the names of Shiv Baran Singh and Bhawani Bheekh, who had planted the groves in and around of the year 1301 Fasli and since thereafter, it has been coming down in the family of the petitioners having an area of 2 Bigha and 10 Biswa of the land. It was also asserted that on account of some mistake, an area of 16 Biswa of their grove land was recorded in Gata No. 18 in the names of private-respondent nos. 4 to 6, but, the petitioners continued to remain in possession over the whole area of 2 Bigha and 10 Biswa of land and requested the mistake to be corrected.
8. Objections were also raised in respect of the other plots over which the petitioners sought their rights as having been perfected by adverse possession. It was alleged that initially the grove land of plot no. 1133/1 M had a total area of 4 Bighas and it was recorded as plot no. 288 during the first and the second settlements, the total area was sub. divided into plot nos. 288/2 and plot no. 288/3. In the year 1301 Fasli, this plot no. 288/2 within an area of 1 Bigha and 10 Biswa was recorded in the name of Ramadhin and plot no. 288/3 within an area of 2 Bighas and 10 Biswa was recorded in the name of Bhawani Bheekh. Ramadhin died without leaving any son or daughter and the said plot was abandoned in the year of 1314 Fasli, while the plot no. 288/2 was recorded in the name of Mahesh Prasad and plot no. 289/3 remained recorded in the name of Bhawani Bheekh. The said entries continued in the Fasli of subsequent years and later on came to be recorded in the names of Anjani Prasad and Keshri Prasad, sons of Mahesh Prasad. Thus, the mistake in respect plot nos. 287,288 and 289 was also sought to be corrected.
9. The private-respondents filed their objections before the Consolidation Officer and stated that the said plot nos. 287,288 and 289 belonged to them. It was also urged that the grove plot no. 1133/1 M also belonged to the private respondents. It was further alleged that there was a litigation between the private respondents no. 4 to 6 and one Gangajali, as a result of which 14 Biswa of land of their plot no. 1133 had to be given to Gangajali and 16 Biswa was in their possession.
10. The parties led their evidence before the Consolidation Officer, who after considering the case of the respective parties found favour with the case of the petitioners only in respect of plots no. 287,288 and 289 and allowed it by means of order dated 04-10-1971.
11. Since, the case of the petitioners in respect of the grove land as well the other plots did not find favour with the Consolidation Officer. Accordingly, two appeals were preferred. One appeal was preferred by the petitioners in respect of the plots over which they claimed Sirdari rights as also the grove land and the other appeal was preferred by the private respondents, whose objections had been dismissed. Both the appeals were decided by the Settlement Officer of Consolidation by means of order dated 17-04-1974 dismissing both the appeals.
12. Being aggrieved by the said order dated 17-04-1974, the petitioners as well as private respondents filed their two separate revisions before the Deputy Director of Consolidation, Faizabad, registered as revision no. 5277 relating to the revision filed by the private respondents, whereas revision no. 5276 was filed by the petitioners.
13. After hearing the learned counsel for the parties, the revisional court by means of the impugned Judgment dated 22-05-1979 allowed the revision of the private respondents and dismissed the revision in respect of the claim preferred by the petitioners. It is in this view of the matter that the petitioners have approached this court assailing the order passed by the Joint Director of Consolidation, Faizabad.
14. Learned counsel for the petitioners, Sri Durga Prasad, has urged that the petitioners had clearly established their case in respect of plot nos. 287,288 & 289. The Consolidation Officer and the Settlement Officer of Consolidation concurrently accepted the possession of the petitioners and they also found that the petitioners had perfected their rights over the said plots by adverse possession. It is further urged that the possession of the petitioners over the said plots no. 287,288 and 289 were duly recorded and noticed in the Khatauni relating to Faslis years 1368 and 1369. The same was also within the knowledge of the private respondents, who did not initiate any proceedings to evict the petitioners and thus, having perfected their rights, it was not open for the revisional court to have reversed the findings of fact, which were duly recorded after the parties had led evidence and thus, the revisional court had exceeded its jurisdiction while passing the impugned order.
15. Per contra, Sri R.S.Tripathi, learned counsel appearing for the private respondents has urged that the revisional court was well within its jurisdiction to have assessed the findings recorded by the two authorities below. Since erroneous inference was drawn by the two authorities apart from the fact that the law was also incorrectly applied, it is urged that the alleged entries, which were relied upon by the two authorities upon which the petitioners laid their claims, were fraudulent and were not recorded in accordance with law. Such entries which did not have the legal backing, could not be relied upon by the authorities below, hence, no right could be conferred upon the petitioners.
16. This aspect of the matter was noticed by the revisional court and it recorded a finding that the entries were not supported by the appropriate orders passed by the competent authority. Even the requirement in law relating to adverse possession was not duly met coupled with the fact that two courts below had erred in placing the burden of proof incorrectly on the respondents, which has resulted into miscarriage of justice. Howeve, the revisional court has corrected the said error, which was within its jurisdiction. Consequently, the order is based on sound legal principles which does not require any interference by this court in exercise of jurisdiction under Article 226 of the Constitution of India and as such, the petition deserves to be dismissed.
17. Learned counsel for the respondents has relied upon the decisions of this court as well as of the Apex Court in the cases of Fateh Bahadur Singh v. D.D.C. and Others, 2021 (39) LCD 1070, Guljar Singh and others v. Deputy Director (Consolidation) and others, 2009 (12) SCC 590 as well as Sheo Nand and others Vs. D.D.C. Allahabad and others, AIR (2000) SC 1141.
18. The court has heard the submissions of learned counsel for the parties and also perused the material on record.
19. The issue before this court for consideration is two fold:-
(i) Scope of Jurisdiction of the D.D.C. exercised in terms of Section 48 of U.P. CH Act, 1953.
(ii) Whether the petitioners had perfected their rights over plot nos. 287,288 & 289 by means of adverse possession.
20. At the outset, it may be noticed that section 48 of the U.P. CH Act as undergone legislative amendment from time to time.
21. The original Section 48 as enacted in the Act of 1953 reads as under:-
"48. Revision.-Director of Consolidation may call for the record of any case if the Officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit."
22. Later, it was amended by the U.P. Act No.24 of 1956 and after the said amendment, Section 48 of the Act of 1953 reads as under:-
"48. Powers of Director of Consolidation to call for records and to revise orders.- The Director of Consolidation may call for the record of any case or proceeding if the Officer (other than the Arbitrator) by whom the case was decided or proceeding taken appears to have exercised jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit."
23. Yet again, the aforesaid section was amended by the U.P. Act No.38 of 1958 and after this amendment, Section 48 of the Act of 1953 which is reproduced hereinafter reads as under:-
"48. Revision.- The Director of Consolidation may call for the record of any case decided or proceedings taken, where he is of opinion that a Deputy Director, Consolidation has-
(i) exercised jurisdiction not vested in him in law, or
(ii) failed to exercise jurisdiction vested in him, or
(iii) acted in the exercise of his jurisdiction illegally or with substantial irregularity, and as a result of which, substantial injustice appears to have been caused to a tenure-holder and he may, after affording reasonable opportunity of hearing to the parties concerned, pass such order in the case or proceeding as he thinks fit." (amendment in bold)
24. Section 48 of the Act of 1953 was amended yet again by the amendment U.P. Act No.20 of 1982 and by the said amending Act and in sub-section (1) the word "other than an interlocutory order" was inserted w.e.f. 10.11.1980 so also an explanation was appended by the Act No.4 of 1969 with retrospective effect and it was renumbered as Explanation No.1 introduced by the U.P. Act No.20 of 1982 w.e.f. 10.11.1980 then the Explanation No.3 was added by the U.P. Act No.3 of 2002 w.e.f. 10.11.1980.
25. Now after the aforesaid amendments, Section 48 of the Act of 1953 along with explanations so appended reads as under:-
"48. Revision and reference.-(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order [other than interlocutory order] passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case of proceedings as he thinks fit.
(2) Powers under Sub-section (1) may be exercised by the Director of Consolidation also on a reference under Sub-section (3).
(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under subsection (1).
Explanation (1) - For the purposes of this section, Settlement Officer, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.
Explanation (2). For the purpose of this section the expression 'interlocutory order' in relation to a case or proceedings, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding.
Explanation (3).- The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence."
26. From the perusal of the legislative history of the amendments made in Section 48 of the Act of 1953, it would indicate that major amendments were introduced and made effective from 10.11.1980. The order in the instant petition was passed by the revisional Court on 29.09.1980.
27. After having taken a glance at the changes made to section 48 of U.P. CH Act, it will be relevant to notice certain decisions on the aforesaid point.
28. A Division Bench of this court in the case of Smt. Tulsa v. Deputy Director of Consolidation, (1964) ALLJ 906 had an occasion to consider the scope of revisional powers conferred on the Deputy Director of Consolidation in terms of section 48 of the U.P. CH Act and even without the explanation 3, which was introduced much later even then the Division Bench noticing the language of section 48 of U.P. CH Act and emphasizing on the use of the words "propriety and legality" as used by the legislature under section 48 of the U.P. CH Act, held as under:-
"We do not agree with the learned counsel but it is not necessary for our purposes to contradict him either as we can base our decision on the word propriety' occurring subsequently. As regards the word "legality", we agree with the learned counsel that this confines itself to the legality of the order and includes misdirections as to law. In respect of the phrase "Propriety of any order," the learned counsel's contention is that a finding of fact may be interfered with only if it has been arrived at in ignorance of certain evidence or assumption of certain evidence which does not really exist on the record.
10. At first the contention of the learned counsel was that the Director could not interfere with the concurrent findings of fact. When we asked the learned counsel whether it was his view that the Director could, in the exercise of his powers under Section 48, interfere with a finding of fact of the lower appellate court if it was at variance with the finding of fact recorded by the trial court, the learned counsel gave up the use of the word 'concurrent and argued that the Director could not interfere with the finding of fact recorded by the last court of appeal which was the last court of fact. It appears to us that the learned counsel is introducing the considerations of Section 100 of the Code.
of Civil Procedure in interpreting the terms of Section 48 of U.P. Act V of 1954. To our mind the phrase "propriety of any order" envisages the correctness of a finding as regards facts also and we are of opinion that the scope of Section 48 of U.P. Act V of 1954 as amended by U.P. Act VIII of 1963 includes within it the right to interfere with the findings of fact recorded by the last court of appeal and this should include also the right to interfere with those finding of fact even if all the courts below have concurred in those findings.
11. The learned counsel has referred us to a decision of a learned single Judge of this Court in Shanker Singh v. Emperor A.I.R. 1929 All. 587 for interpretation of the word 'proprietor as used in Section 435 of the Code of Criminal Procedure. We do not think that an interpretation of the word Propriety' in that Act is of any assistance to us, but we find that the decision supports the conclusions drawn by us. We are also informed that the Mohammad Sami Khan v. Deputy Director of Consolidation U.P. Lucknow Writ Petition No. 585 of 1963 decided on 26.11.1963 (Lucknow Bench) a learned single Judge of this Court came to the conclusion that the powers under Section 48 include the power to upset the concurrent findings of fact arrived at by the lower courts. We have been told that in Special Appeal No. 9 of 1964 this judgment has been upheld but unfortunately that decision could not be placed before us as the office has not been able to trace the particular file. However, on a consideration of the language employed in Section 48 as amended by U.P. Act VIII of 1963, we are of opinion that the Director of Consolidation has the right and power to interfere with the findings of fact even if they are concurrent."
29. Similarly the matter was again considered by the Apex Court in the case of Sheo Nand and others v. D.D.C. Allahabad and others, AIR 2000 SC 1141, wherein the Apex Court after noticing Section 48 of the U.P. C.H. Act in paragraph 20 & 21 held as under :-
"20. The section gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceeedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the wides terms so that the claims of the parties under the Act may be effectively upon and determined so as to confer finality to the rights of the parties and the Revenue Records may be prepared accordingly.
21. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence. It would be the duty of the Deputy Director to scrutinize the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case e the present, where the entries in the Revenue cord are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the UP Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to re-appraise or re-evaluate the evidence on record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law."
30. The aforesaid matter regarding the powers of the Deputy Director of Consolidation was once again noticed by the Apex Court in the case of Guljar Singh and others v. Deputy Director (Consolidation) and others, (2009) 12 SCC 590, wherein in paragraph no. 24, the Apex Court has held as under:-
"24. It is well settled that the DDC is conferred with wide powers under the Act to adjudicate the issue posed before him. In order to elaborate this point, it is essential to refer to Sheo Nand v. Director of Consolidation [(2000) 3 SCC 103] . In the said case, this Court, referring to Section 48 of the Act had noted that: (SCC pp. 112-13, paras 20-22) "20. The section gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the revenue records may be prepared accordingly.
21. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinise the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the revenue records are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U.P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to reappraise or re-evaluate the evidence on record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law.
22. If, therefore, during the course of the hearing of the revision filed by the appellant under Section 48 of the Act, the Deputy Director reopened the whole case and scrutinised the claim of the appellants in respect of two other villages, it could not be said that the Deputy Director exceeded his jurisdiction in any manner. It will be noticed that while scrutinising the evidence on record, the Deputy Director had noticed that the entries were fictitious and in recording some of the entries in the revenue records in favour of the appellants, statutory provisions including those contained in the U.P. Land Records Manual were not followed. In that situation, the Deputy Director was wholly justified in looking into the legality of the entire proceedings and disposing of the revision in the manner in which he has done."
From the abovequoted observations of this Court in Sheo Nand [(2000) 3 SCC 103] , it is clear that the DDC has wide range of discretionary powers mandated under the Act by which he could proceed to modify even the basic year entries if found to be wrongly derived at. Therefore, the contention that the DDC could not have modified the basic year entries was not correct."
31. From bare perusal of the aforesaid decisions, it would indicate that the Deputy Director of Consolidation has very wide powers. It is required to look into the matter which is before it and satisfy itself regarding legality and propriety of the order. It is also entitled to look into the facts as well as the law. However, where the findings are based on proper appreciation of evidence and recorded concurrently by the consolidation authorities, it may decline to interfere, but, in case, even if the findings are concurrently recorded by the Consolidation Authorities, but, such findings are perverse, then the Deputy Director of Consolidation is legally entitled to interfere with such perverse findings.
32. It is in the aforesaid backdrop where the powers of the Deputy Director of Consolidation have been noticed and now it will be appropriate to examine the decision passed by the Joint Director of Consolidation as to whether the jurisdiction has been exceeded or impugned order does not require any interference.
33. From the submissions made by the learned counsel for the parties and from perusal of material on record, it is to be examined whether the issue regarding the adverse possession has been appropriately considered by the authorities concerned or not.
34. The Consolidation Officer while considering the aforesaid issue has considered the evidence led by one Sri Dhani, who stated that he had seen the possession of the petitioners over the disputed property in question. He had further stated that the possession of the petitioners over the property in question is for the last 40 years and that the private respondents had given the said disputed land to the petitioners for tilling the fields.
35. On the other hand, the private respondents had deposed before the Consolidation Officer that they were Zamindars and were getting the plots in question cultivated through their servants. It was also urged that the private respondents did not receive any copy of the P.A. Form 10. The petitioners had got fraudulent entries recorded in collusion with the Lekhpal and Kanoongo and that the petitioners were not in possession of the disputed plots.
36. The Consolidation Officer after noticing the oral as well as the documentary evidence found that the petitioners had only submitted the Khasra for 12 years in respect of plots no. 287,288 & 289. In the Khatauni of Fasli year 1368 in respect of plot no. 287, the name of Chit Bahal Singh in possession, was recorded. At the time of the survey in the diary of the Lekhpal, serial number has been mentioned of P.A. Form- 10.
37. Insofar as plot nos. 288 & 289 are concerned, they were shown in possession of some other persons. Similarly, in the Khatauni of Fasli of 1369 year, the possession of Chit Bahal Singh, the petitioner, was recorded in respect of plot no. 287 and again the diary number as well as endorsement of P.A. Form- 10 was recorded. Plot nos. 288 & 289 were also joint and were shown in the possession of the petitioners and it also indicated that the names of the petitioners were recorded in column no. 9.
38. Relying upon the aforesaid entries, the Consolidation Officer allowed the objections filed by the petitioners and held that in so far as the plot nos. 287,288 & 289 are concerned, the same has been in possession of the petitioners since the last six years and since there is no order for their eviction, accordingly, they have perfected their rights and were granted Sirdari rights.
39. The aforesaid evidence was also assessed by the Settlement Officer of Consolidation in appeal and was affirmed. However, the Deputy Director of Consolidation while re-assessing the evidence found that there was no evidence to indicate that the private respondents were ever served with the notice/Form P.A-10. That was a clear statement of the private respondents indicating that they had not received Form P.A. 10. It also found that in the Khatauni of 1364 Fasli year against the plot nos. 287,288 and 289, the name of Anjani Prasad was written, which was scored off and thereafter, the names Keshri and others have been incorporated. It also noticed that in the column relating to sub tenancy, there is no entry. In the Khatauni of Fasli year 1365, name of Anjani Prasad is recorded and in the Khatauni of Fasli year 1366, the name of Anjani Prasad has been scored off and the name of Ram Krishna has been incorporated and again in the column of sub tenancy/possession, there is no entry. It is only in the Khatauni of 1368 Fasli that after the name of Ram Krishna, in the column of sub tenancy/possession, the name of Chit Bahal Singh, the petitioner has been incorporated and even in the Khatauni of 1369 Fasli year, the name of Chit Bahal Singh has been indicated alongwith diary number and the date of Form P.A. 10. Sri Ram Krishna had filed the Khataunis of the years 1368,1369,1370 and 1371 Faslis, but, upon considering the evidence of Dhani, the Deputy Director of Consolidation found that he had stated that he had seen the possession of Chit Bahal Singh for the last 40 years while his own age was about 45 years. It also noticed that there was no record or evidence to indicate or corroborate the possession of Chit Bahal Singh over the disputed property for 40 years as was deposed by the witness.
40. During his cross examination the sole witness of the petitioners namely Dhani could not even indicate that who was the Zamindar of the property in question nor he could indicate as to who was in possession or recorded prior the abolition of Zamindari. The Joint Director of Consolidation, thereafter took note of the relevant provisions of the Land Record Manual. Para Nos. A-80,81,423 and Form P.A.-10 and found that the said entries were not in accordance with the rules as provided in the Land Record Manual. Taking a holistic view of the matter, the Deputy Director of Consolidation reversed the findings and found that the possession of Chit Bahal Singh could not have been adverse inmuch as the ingredients could not be made out nor it could be established that the entires recorded in the revenue records were in accordance with the Land Record Manual.
41. At this stage, it will be relevant to notice the law regarding the adverse possession in respect of the agricultural property, which is a little different to law of adverse possession relating to urban/non-agricultural properties in the sense that though the basic ingredients remain the same, but, the manner in which the entries are recorded in the revenue records that assume significance in the cases of adverse possession relating to agricultural properties. In Babu Ali and another v. D.D.C. and others, (2021) 6 All LJ 694, the issue of adverse possession, the entries recorded in the Land Record Manual and P.A.-10 Form has been considered. The relevant paragraph of the said decision reads 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
(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."
42. Decisions of this Court in Feteh Bahadur Singh (supra) is also on the same lines as that of Babu Ali (supra). Now having noticed the aforesaid proposition of law and if applied to the instant case at hand, it would indicate that the name of Chit Bahal Singh was recorded only in the Khataunis of the years of 1368 Fasli and 1369 Fasli. Chit Bahal Singh through his witness namely Dhani could not establish the possession prior thereto. Moreover, the entries recorded in the revenue record were not in accordance with provisions of the Land Record Manual as noticed above.
43. It will also be relevant to mention here that a person who claims adverse possession does not have any equity in his favour. The burden lies squarely on the person who claims of having perfected his rights by the adverse possession.
44. In the instant case, since the petitioners were claiming adverse possession, the burden lay squarely upon the petitioners to establish with particularity and clear evidence that they were in possession of the property in question for continuous six years in the knowledge of the actual owners and that their names were recorded in the revenue record in accordance with Land Record Manual. If the aforesaid ingredients as noticed above are superimposed on the evidence and the material available on record, it would indicate that the petitioners had failed to establish their case of adverse possession as they could not establish their continuous possession over the last six years from the date when the issue arose. The entries recorded in the Khatauni of the years of 1368 & 1369 Faslis, also could not be corroborated as there were no appropriate corresponding orders/endorsement made by the competent revenue authorities, such as Kanoongo.
45. The issuance of Form P.A.-10 and its service on private respondents also could not be established. Thus, the ingredients as noticed above could not be made out, whereas the two authorities i.e. the Consolidation Officer and the Settlement Officer of Consolidation merely by relying upon the entries in the Khatauni and also noticing that there was a mention of the diary number and Form P.A. 10 held that the entries were duly recorded whereas it failed to notice that the said entries were not duly supported by the orders/endorsement/signatures of the competent revenue authorities. Even the names of the petitioners were not recorded in red ink and there were many lacunas as have been noticed by the Deputy Director of Consolidation in his order, which has also been taken note of by this court in the preceding paragraphs.
46. Thus, in the light of the aforesaid, where the petitioners whose basic claim was based on adverse possession, was not duly established, it cannot be said that the Joint Director of Consolidation had exceeded his jurisdiction in reversing the findings. Once, the matter was before the Joint Director of Consolidation, who was exercising his powers under section 48 of the U.P. C.H. Act, it was a duty incumbent upon him to assess the material available on record and satisfy himself that the findings recorded by the Consolidation Officer and Settlement Officer of Consolidation were in accordance with law. The Joint Director of Consolidation having found that neither evidence was appropriately appreciated by the two authorities and even the basis on which the Consolidation Officer and Settlement Officer of Consolidation had recorded its findings were not in accordance with law, he took upon himself to reverse the findings and pass the appropriate orders, which in opinion of this court cannot be faulted with.
47. In view of the detailed discussions, this court is of the firm opinion that the impugned order dated 22-05-1979 passed by the Joint Director of Consolidation, Faizabad in Revision No. 5276, cannot be said to be erroneousness. Accordingly, this court does not find that there is any merit in this petition and hence, it is dismissed.
48. In the facts and circumstances, there shall be no order as to costs.
Order Date :- April 29th, 2022 AKS