Allahabad High Court
Ram Avadh vs Bindeshwari And Others on 1 December, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- WRIT - B No. - 5590 of 1981 Petitioner :- Ram Avadh Respondent :- Bindeshwari And Others Counsel for Petitioner :- V.K. Srivastava,A.R. Khan,Chandresh Mani Shukla,Vijay Krishna,Virendra Mishra Counsel for Respondent :- C.S.C.,Alka Verma,H.S. Sahai,Jitendra Misra,Mohd. Mustafizul Haq,Uma Shankar Sahai ****** Hon'ble Jaspreet Singh,J.
1. Heard Shri Virendra Mishra, learned counsel for the petitioner and Shri Q.M. Haq, learned counsel for the private-respondents and learned Standing Counsel for the State-respondent.
2. By means of the instant petition, the petitioner challenges the order dated 03.10.1981 passed by the Deputy Director of Consolidation, Gonda whereby the revision preferred by the respondents No.1 to 3 was allowed and the two decisions rendered by the Consolidation Officer and Settlement Officer of Consolidation which were in favour of the petitioner were set aside.
3. In order to appreciate the controversy involved in the instant petition, certain brief facts giving rise to the instant petition are being noticed hereinafter.
4. The dispute in question relates to Khata No.60, situate in Village Pure Subsukh, Pargana, Tehsil and District Gonda. Initially, the property in question was recorded in the name of Banwari, who is the predecessor-in-interest of the petitioner Ram Avadh. In the basic year, Banwari along with his brothers Ram Charan was recorded as a ''Sirdari'. The private-respondents No.1 to 3 also claim ''Sirdari' rights over the land of Khata No.60 and they filed their objections under Section 9-A(2) of the U.P. Consolidation and Holdings Act, 1953 (hereinafter referred to as "the Act of 1953") claiming 1/3rd share each.
5. The dispute was referred to the Consolidation Officer, who after considering the oral and documentary evidence dismissed the objections of the private-respondents on 12.04.1969.
6. The private-respondents No.1 to 3 being aggrieved preferred an appeal but that too was dismissed by means of the order dated 29.09.1969. Thereafter, the matter was escalated and taken before the Deputy Director of Consolidation, Gonda by filing a revision under Section 48 of the Act of 1953 and the Deputy Director of Consolidation, Gonda allowed the revision by means of the order dated 19.10.1970, as a result, the disputed khata came to be recorded in the names of the private-respondents No.1 to 3 with each having 1/3rd shares.
7. It is in the aforesaid backdrop that Ram Avadh, the present petitioner preferred a writ petition before this Court bearing Writ Petition No.1575 of 1970. The said writ petition came to be allowed by this Court by means of the order dated 10.08.1976 and the matter was remanded to the Deputy Director of Consolidation, Gonda to decide the issue in light of the observations made by this Court in the judgment dated 10.08.1976 passed in earlier Writ Petition No.1575 of 1970.
8. In furtherance of the order passed by this Court dated 10.08.1976, the Deputy Director of Consolidation, Gonda reconsidered the matter and allowed the revision preferred by the private-respondents No.1 to 3, as a result, the names of the private-respondents No.1 to 3 have been recorded as ''Sirdar' each having 1/3rd shares and the petitioner being aggrieved has yet again approached this Court by means of the instant petition, wherein the order of the Deputy Director of Consolidation, Gonda dated 03.10.1981 is under challenge.
9. Shri Virendra Mishra, learned counsel for the petitioner has submitted that the judgment passed by the Deputy Director of Consolidation, Gonda dated 03.10.1981 is bad in the eyes of law. He submits that since the private-respondents No.1 to 3 were objectors, who had filed their objections under Section 9-A(2) of the Act of 1953, hence, they were bound to prove their own case and had to stand on their own legs.
10. It is also urged that no evidence which is beyond the pleadings can be considered and in the instant case, the Deputy Director of Consolidation, Gonda has relied upon certain evidences and ignored certain evidences which has resulted in sheer miscarriage of justice.
11. It has also been submitted that since the order passed by the Deputy Director of Consolidation, Gonda dated 03.10.1981 i.e. prior to the amendments made in Section 48 of the Act of 1953, hence, if at all, the revisional Court differed or was not satisfied with the judgment passed by the Consolidation Officer and the Settlement Officer of the Consolidation, in such circumstances, it ought to have remanded the matter whereas in the instant case the Deputy Director of Consolidation, Gonda has acted as a Court of first instance and such exercise of powers is de-hors the provisions rendering the impugned order bad in the eyes of law.
12. Shri Mishra further urges that the revisional authority failed to take note of the fact that prior to the proceedings before the Consolidation Courts, the private-respondents No.1 to 3 had instituted proceedings under Section 229-B of the U.P. Z.A. & L.R. Act, 1950 (for short, the "Act of 1950"), wherein they had made certain statements which were contrary to the pleadings and statements made in the consolidation proceedings. He has further submitted that even though the proceedings under Section 229-B of the Act of 1950, which was decided in favour of the petitioner but during pendency of the second appeal, a notification under Section 4 of the Act of 1953 was issued which led to the abatement of the proceedings.
13. The submission is that even though the proceedings stood abated, the statements which were recorded could not be effaced and continued to bind the private-respondents No.1 to 3 as they had made statements contrary to the pleadings in the consolidation proceedings and thus there was a complete variance between the pleadings and proof and this aspect of the matter has also not been considered resulting in sheer miscarriage of justice. Thus, for all the aforesaid reasons, it is submitted that the writ petition deserves to be allowed.
14. In support of his submissions, learned counsel for the petitioner has relied upon the decisions in the case of Ram Prasad v. D.D.C. & Ors., 2019 (4) A.L.J. 201; Shambhoo & Ors. v. D.D.C. & Ors., 2015 LCD 743, Union of India & Ors. v. Vasavi Co-operative Housing Society, (2014) 2 SCC 269; Union of India v. Ibrahim-u-ddin & Anr. 2012 LCD 1635 and Ram Pratap v. Hari Shankar, 2002 LCD 1228.
15. Shri Q.M. Haq, learned counsel for the private-respondents No.1 to 3 submits that the instant petition is concluded with the findings of fact which may not be disturbed in exercise of powers under Article 226 of the Constitution of India. He further urges that the petitioner could not get the ''Sirdar' rights inasmuch as he could not explain or establish his right in the property.
16. It is also urged that the petitioner had taken a self-contradictory plea inasmuch as on the one hand, the petitioner claims right being in possession of the property prior to the date of vesting and on the other hand, the petitioner also claims to have perfected his rights by adverse possession as the petitioner claims the benefit of entries recorded in the revenue records in Column-9. It is urged that both the aforesaid plea cannot be permitted.
17. It has also been pointed out that the entries which are relied upon by the petitioner clearly indicates that the name of the petitioner was recorded as ''Marfat'. It is urged that no right or interest in the property in question could be granted or claimed by the petitioner on the basis of ''Marfat' entries as settled by the clear pronouncements of this Court and thus for the aforesaid reasons where the petitioner did not have any right and merely on the basis of some entries, the petitioner is not entitled to succeed and the writ petition deserves to be dismissed.
18. The Court has heard learned counsel for the parties and also perused the material on record.
19. At the outset, it may be noted that this is second round of litigation. The present petitioner had initially approached this Court by means of Writ Petition No.1575 of 1970 which came to be allowed on 10.08.1976. This Court in its judgment and order dated 10.08.1976 found that there were certain contentions and evidences which had not been appropriately considered by the Deputy Director of Consolidation, Gonda which was the final Court and for the reasons as recorded in the order dated 10.08.1976, the matter was remanded to the Deputy Director of Consolidation, Gonda for decision afresh.
20. Before proceeding any further, it will be necessary to notice the relevant part of the order dated 10.08.1976 which defines the contour within which the revisional Court was required to decide the revision after remand. The relevant portion of the order dated 10.08.1976 reads as under:-
"It is true that on behalf of the petitioner this assertion has not been categorically denied nor has it been squarely replied. However, from the discussion of evidence made by the Consolidation Officer and the Settlement Officer (Consolidation) it appears that they were not satisfied with the evidence that the petitioner had entered into possession over the disputed khata with consent. The Deputy Director of Consolidation has recorded a finding that the possession of the petitioner was permissive. He, while recording this finding, has not discussed the oral evidence produced by the parties in this case. In my opinion, this one of the crucial question to be decided and in the absence of any evidence brought on record by the parties it is not possible for me to record a categorical finding. I have, therefore, no option but to remand the case to the Deputy Director of Consolidation for rehearing and to decide the case by looking into the existing oral and documentary evidence on record. He will not provide any opportunity to the parties to adduce any further evidence to substantiate their claims.
The Deputy Director of Consolidation has also not recorded a clear out finding as to what is the effect of the entries and whether they were recorded in accordance with the provisions of the Land Records Manual or not. In the counter affidavit it is asserted that the entries of Khasras 1363 F to 1366 F were made without issue of any P.A.10 to the opposite parties and he asserted that entries in Khasras 1367 F 1369 F to 1372 F recorded in favour of the petitioner were incorrect. This assertion in the rejoinder affidavit has been denied. Again I find that there is nothing on the record to show that he recorded any finding with respect to the correctness of the entries or looked into the evidentiary value of the same. The Deputy Director of Consolidation shall also consider this aspect of the matter while deciding the dispute. The Deputy Director of Consolidation shall also record a finding, if he holds that the petitioner has perfected his right by adverse possession, the point of time when the petitioner entered into possession, hostile to the knowledge of the opposite parties. This finding shall be recorded after looking into the evidence as exists on the record.
The result is that the writ petition succeeds and is allowed. The order passed by the Deputy Director of Consolidation dated 19.10.1970 is quashed. Let Certiorari issue accordingly to cancel the original from the record. I further direct that the Deputy Director of Consolidation shall restore the revision to its original number and proceed to dispose it of in the light of the observations made above. Let mandamus issue accordingly. In the circumstances of the case, I make no orders as to costs."
21. From a perusal of the aforesaid extract, it would be relevant to notice that this Court had required the Deputy Director of Consolidation, Gonda to record a clear finding as to the effect of the entries as well as whether they were recorded in accordance with the provisions of Land Record Manual, also to consider the correctness of the entries and its evidentiary value. The Deputy Director of Consolidation, Gonda was also required to record a finding regarding the nature of the possession of the petitioner as the petitioner had raised a plea of adverse possession and in case if the Deputy Director of Consolidation, Gonda found that the petitioner had perfected his rights by adverse possession then it was required to notice the point of time when the petitioner entered into the possession, hostile to the knowledge of the respondents. All the aforesaid aspect was required to be looked into on the basis of the evidence which was already on record. The parties were not required to lead any further evidence and the findings were to be recorded on the basis of the material already available.
22. It is in this context, if the order passed by the Deputy Director of Consolidation, Gonda dated 03.10.1981 is considered and noticed in juxtaposition to the submissions made by the learned counsel for the petitioner, it would reveal that the questions arising for consideration before this Court can be bifurcated in two parts.
(i) The initial claim of the petitioner and the nature of the possession. This would necessarily include the plea raised by the petitioner regarding his possession whether he had perfected it by adverse possession or what would be the effect of ''Marfat' entries.
(ii) The other would relate to the procedural aspect which has been argued by the learned counsel for the petitioner to say that there was variance between pleadings and proof as well as the private-respondents No.1 to 3 had made self-contradictory statements in the pleadings before the consolidation authorities and the proceedings in the earlier round when the suit under Section 229-B of the Act of 1950 was filed and also the effect of abatement of the suit under Section 229-B of the Act of 1950 upon the notification issued under Section 4 of the Act of 1953.
23. Before proceeding further, it will be relevant to notice the scope of revisional jurisdiction exercised by the Deputy Director of Consolidation, Gonda under Section 48 of the Act of 1953 which has undergone legislative amendments from time to time. This Court in WRIT-B No.2430 of 1979 -Chit Bahal Singh v. Joint Director of Consolidation, decided on 29.04.2022, had the occasion to consider the scope in light of the legislative amendments made to Section 48 of the Act of 1953 in detail and after examining the same, it was held as under:-
"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."
24. From a perusal of the aforesaid extracts which crystallizes the law, it would be seen that the Deputy Director of Consolidation, Gonda is the final Court of fact and law.
25. In the instant case, apart from the scope of revision under Section 48 of the Act of 1953 as discussed and as required to be exercised by the Deputy Director of Consolidation, Gonda, yet it was bound by the order dated 10.08.1976 passed by this Court in the earlier round. The issue before the Deputy Director of Consolidation, Gonda was regarding the nature of the possession which was to be considered and the validity of effect of revenue entries in the record.
26. The contention of the learned counsel for the petitioner is that the petitioner was in possession of the disputed property, however, the record would indicate that the private-respondents No.1 to 3 were recorded in the khatauni of the year 1373, 1375 Fasli Year as the original tenure-holders. If the other material available on record is seen, it would indicate that the name of Banwari i.e. the father of the present petitioner was recorded as ''Marfat' in khatauni of the year 1356 and 1362 Fasli Year. It also recorded the names of the the private-respondents No.1 to 3 including that of their predecessor-in-interest as original tenure-holder and the name of Banwari as ''Marfat' (cousin brother). Then there are certain khatauni wherein the name of the petitioner is recorded relating to 1362 Falsi which also has reference to ''Marfat' entry. Subsequently also in the khatauni of 1366 and 1369, the names of the private-respondents No.1 to 3 continued.
27. Hence, what requires to be seen is that the name of the petitioner or his predecessor was never recorded in any of the revenue records in his personal individual capacity. The word ''Marfat' being an Arabic word indicates "on behalf of". The consistent entries which have been brought on record relating to the disputed property wherein the name of the petitioner and his predecessor was recorded is shown as 'Marfat'. It is now well settled that a person cannot be granted any right on the basis of 'Marfat' entry in the revenue records and this Court is fortified in its view in light of the decision in the case of Bhikhoo v. Assistant Director of Consolidation and others, 1983 (1) LCD 372.
28. In Ram Kishun & Ors. v. The Assistant Director of Consolidation, Gonda & Ors., decided on 19.10.2022, this Court had followed the dictum of Ram Prasad & Ors. v. D.D.C., Pratapgarh & Ors, (2019) SCC Online All 4371. The relevant portion from Ram Prasad (supra) reads as under:-
"32. The word ''Marfat' has its origin in Arabic which means ''on behalf of'. The law regarding Marfat entry has been considered by this Court in the case of Ram Prasad (Supra) and the relevant portion thereof reads as under:-
"With regard to the purport of ''Marfat' entry this Court may refer to the decision reported in 1983 (1) LCD 372; Bhikhu Vs. Assistant Director of Consolidation and Ors. wherein it was held that ''Marfat' is an Arabic word which translated into English would mean ''through or on behalf of' a person in whose favour their exists such an entry can not be said to be in possession in his own right and such possession would not mature into Adivasi and Sirdari rights. Reference may also be made to another decision reported in 1993 (11) LCD; Ram Lakhan Vs. Deputy Director of Consolidation, wherein, it was held that a ''Marfat' entry does not indicate possession by virtue of right as laid down in Bhikhu's case (supra). The ''Marfat' entries are made in Khasra and not in Khatauni. This aspect of the matter was considered by a Division Bench of this Court in the case of Jagdish Prasad Vs. Board of Revenue and Ors. reported in 1956 ALJ 317 All., wherein after considering paragraph 83 of the Land Records Mannual and various decisions on this point it was held that ''Marfat' is defined in paragraph 83 of the Land Records Manual as a person put by a tenant in cultivating possession of the holding on his behalf. Sometimes a ''Marfatdar' is treated as a pure agent 1953 R.D. 273; Pati Ram Vs. Hira Lal, sometimes he is treated as a licensee 1939 R.D. 533; Hari Nath Singh Vs. Satyadeo Singh and Ors. The relevant extract of the judgment in Jagdish Prasad (supra) is quoted hereinbelow:-
"A ''Marfat' is defined in paragraph 83 of the Land Records Manual as a person put by a tenant in cultivating possession of the holding on his behalf. Sometimes a ''Marfatdar' is treated as a pure agent 1953 A.L.J. (Revenue) (203); Pati Ram Vs. Hira Lal, sometimes he is treated as a licensee (1939 R.D. 533 and 1953 R.D. 273).
If he is purely an agent he cannot be considered to be an occupant because he is merely a custodian on behalf of the tenant. He Cultivates the land as a servant or agent of the tenant at the expense of the tenant and for the benefit of the tenant. The fruits of cultivation go to the tenant. He may or may not charge for his services. He cannot be said to be in occupation of the land.
If he is a ''licensee' and not merely an agent, even then he cannot be said to be an ''occupant' of the land. A licensee is a person who is allowed to make use of a thing in a certain way under certain terms, possession and control over the thing remaining with the owner (see Halsbury's Laws of England, Hailsham Edition, Vol. 20, paras 5 and 6 pp. 8 and 9). "A mere licence does not create any estate or interest in the property to which it relates; it only makes an act lawful which without it would be unlawful" (ibid). A license is a permission under which the licensee takes only the right to use the premises without exclusive possession thereof. Since a licence lacks the quality of exclusive possession, it falls short of true possession or occupancy.
In Part II of the Khatauni are to be mentioned tenants deriving their title from other tenants, or from Sir holders, khudkasht holders, rent-free grantees, grantees at a favourable rate of rent, or lessees under Sec. 252 of the U.P. Tenancy Act. Under this Part, in class (20) are to be mentioned "occupiers" of lands without the consent of the tenant-in-chief. In the Khatauni, no mention is made of persons holding as ''Marfatdars' of ''Sajbidars'. The names of these persons find place in the Khasra only.
Paragraph 83 of the Land Records Manual provides that if the recorded tenant has permitted any person to share in the cultivation of his holding or any part thereof as a partner or ''sajbi', or has put any person "in cultivating possession on his behalf," the name of the sharer or the cultivator will be shown only in the remarks column of the Khasra, the former with the word "Sajbi" and the latter with the word "Marifat". The relationship, if any, with the recorded tenant will also be shown, e.g., "Marfat Ramcharan Bhatija". The name of the Sajbi or Marifat is not to be shown in columns 5 and 6 of the Khasra.
As already stated, Sajbidars or Marfatdars do not claim an interest in the land and are not in exclusive occupation in their own right."
29. At this stage, it will also be relevant to consider the submission of the learned counsel for the petitioner who has urged that the private-respondents cannot rely upon the 'Marfat' entries on the one hand inasmuch as in the suit under Section 229-B of the Act of 1950 filed earlier, it was the case of the respondent No.2 that the possession was of the petitioner and that the parties do not belong to the same family.
30. In the instant case, the respondents had taken a contrary stand that the petitioner and the private-respondents were related and to the aforesaid extent it is urged that there is variance between the pleadings and proof apart from the fact that there is contradiction in the pleadings which were placed in the earlier suit under Section 229-B of the Act of 1950 then in the consolidation proceedings.
31. Having taken note of the aforesaid, the undisputed fact is that the proceedings under Section 229-B of the Act of 1950 did not attain finality inasmuch as on account of the notification under Section 4 of the Act of 1953, the proceedings abated. The proceedings under Section 9-A(2) of the Act of 1953 decides the title where the parties are required to lead evidence and the said order is appealable under Section 11 subject to further revision under Section 48 of the Act of 1953. Once, the proceeding had attained finality under the Act of 1953, the same have binding effect on the party in terms of Section 49 of the Act of 1953. The said findings are not to be disturbed in proceedings by a suit or the revenue Courts.
32. Considering the aforesaid scheme of the Act of 1953 and noticing the fact, this Court had clearly remanded the matter by means of the order dated 10.08.1976 requiring the revisional Court to re-examine the issue of possession in light of already existing evidence on record. It would indicate that since the petitioner was required to establish how the property came to be recorded in his name and this in itself indicates the diabolic stand taken by the petitioner inasmuch as on one hand he claims right over the property in his own name as it is said to be recorded in 1359 Fasli and continued thereafter the 'Sirdari' rights and on the other hand it is also claimed by the petitioner even though his name may have been recorded as 'Marfat', but the fact remains that it is an admitted case of the private-respondents that the petitioner stands in possession continuously. Accordingly, he has perfected his right in terms of the adverse possession.
33. At this juncture, it will be appropriate to consider that the aforesaid stand taken by the petitioner does not reflect well on the record. As already noticed above, the entries which have been referred to by the petitioner in the revenue records do not indicate that the possession of the petitioner or his predecessor was in their individual capacity rather it was as the 'Marfat' entry. The aforesaid entries were recorded since 1359 Fasli and continued for decade thereafter but at no point of time the petitioner or his predecessor sought to rectify the same. Such consistent entries and as already noticed the case laws as discussed above in the case of Bhikhoo (supra), the 'Marfat' entry would not grant any benefit to the petitioner. Thus, where the petitioner is claiming 'Sirdari' right, it would be necessary to indicate the source of the property and how the name come to be recorded which needless to say has not been established as the record reflects the name of the petitioner and his predecessor only as the 'Marfat'. Meaning thereby that the possession of the petitioner if at all was only on behalf of the original recorded tenure-holder i.e. the private-respondents.
34. Considering this aspect of the matter in light of the plea raised by the petitioner, at this stage, it would be seen that even for the purpose of adverse possession, the petitioner could not point out any evidence regarding the same. The law of adverse possession insofar as the revenue property/agricultural property is concerned that has been dealt with by this Court in the case of Chit Bahal Singh (supra) and Lalta Prasad & Ors. v. Haunsla Prasad & Ors., (2021) SCC Online All 712.
35. If the law as noticed by the Court in the case of Chit Bahal Singh (supra) and Haunsla Prasad (supra) is considered, it would indicate that it was the duty of the petitioner to have established its plea of adverse possession. It would further indicate that at what point of time, he came into possession of which the actual owner had knowledge and he continued to remain in uninterrupted possession despite the knowledge. The entries relating to PA-10, Diary Number and the entries to be recorded in Column-9 in Red Ink are the essential ingredients which has been considered in the case of Chit Bahal Singh (supra) and Haunsla Prasad (supra). The said ingredients are missing in the instant case both in terms of pleadings and proof as laid and led by the petitioner.
36. In the case at hand, it would be found that where it was clearly indicated that the name of the original tenure-holder was that of the private-respondents and even if in few of the revenue records, the name of the petitioner and his predecessor was there, but it has not been established when the possession became hostile and in the notice of the private-respondents and that PA-10 entries were duly made in accordance with the Land Record Manual and that it was also duly served on the private-respondents and that the said entries continued year after year recorded in the khasra in Column-9 in Red Ink. Thus, the aforesaid aspect not having been proved the plea of adverse possession as raised by the petitioner for the reasons that runs contrary to the basic case setup by the petitioner being in possession in 'Marfat' and also simultaneously claiming adverse possession being mutually destructive plea and that too has not been established by cogent evidence as required in law.
37. Having failed to establish the aforesaid aspect, the petitioner has raised technical pleas regarding the variance of pleadings and proof inasmuch as the aforesaid aspect of the matter was never raised before the authority concerned and has been raised before this Court in the writ petition in the second round. Once the parties had already gone to trial and lead their evidence and proving the case each party had to meet and then after having suffered the judgment from the Consolidation Courts which was challenged in the writ petition in the first round but not raised, hence, this procedural aspect of the matter cannot be raised for the first time in this writ petition and that too when there is no material to establish any consequent failure of justice which may have been occasioned and also noticing that the Deputy Director of Consolidation, Gonda was required only to consider the issue as remanded by this Court in terms of the order dated 10.08.1976. Thus, the submissions of learned counsel for the petitioner does not impress this Court.
38. Thus, in view of the detailed discussions made hereinabove, this Court is of the considered opinion that the findings recorded by the Deputy Director of Consolidation, Gonda in the impugned order dated 03.10.1981 do not suffer from any error which may persuade this Court to intervene in exercise of writ jurisdiction under Article 226 of the Constitution of India. Accordingly, the writ petition is without merit and is dismissed. However, in the facts and circumstances, there shall be no order as to costs.
Order Date :- December 1st, 2022 Rakesh/-