Allahabad High Court
Ishwarchand vs Board Of Revenue And 4 Others on 9 January, 2019
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 9 Case :- WRIT - B No. - 29 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue And 4 Others Counsel for Petitioner :- Manish,Gajala Srivastava Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav connect with Case :- WRIT - B No. - 31 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue U.P. And 6 Others Counsel for Petitioner :- Gajala Srivastava,Manish Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 32 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue And 6 Others Counsel for Petitioner :- Gajala Srivastava,Manish Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 34 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue And 4 Others Counsel for Petitioner :- Manish,Gajala Srivastava Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 35 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue And 3 Others Counsel for Petitioner :- Manish,Gajala Srivastava Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 36 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue And 5 Others Counsel for Petitioner :- Manish,Gajala Srivastava Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 37 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue And 6 Others Counsel for Petitioner :- Gajala Srivastava,Manish Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 41 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue U.P. At Allahabad And 3 Others Counsel for Petitioner :- Gajala Srivastava,Manish Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 40 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue U.P. And 6 Others Counsel for Petitioner :- Manish,Gajala Srivastava Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 39 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue And 5 Others Counsel for Petitioner :- Gajala Srivastava,Manish Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 38 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue And 3 Others Counsel for Petitioner :- Gajala Srivastava,Manish Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav and Case :- WRIT - B No. - 42 of 2019 Petitioner :- Ishwarchand Respondent :- Board Of Revenue And 3 Others Counsel for Petitioner :- Manish,Gajala Srivastava Counsel for Respondent :- C.S.C.,Durga Charan Singh Yadav,Manish Kumar Pandey,Manoj Kumar Yadav Hon'ble Anjani Kumar Mishra,J.
Impleadment applications have been filed in Writ Petition Nos. 35 of 2019 and 41 of 2019 in Court today. The same are taken on record.
Office is directed to allot a regular number to these applications.
Upon hearing counsel for the parties, the impleadment applications are allowed.
Let the same be incorporated today itself.
Heard Shri S.K.Purwar, learned counsel for the petitioner and Shri H.R. Mishra, Senior Advocate for the respondents in these petitions.
This bunch of writ petitions arise out of two sets of suits under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act.
Six suits were filed by the petitioner claiming on the basis of adverse possession. These suits were decreed by the trial Court and the judgements affirmed by the first appellate Court.
However, at the second appellate stage, the judgements of the two Courts below have been reversed and the suits seeking a declaration of having perfected rights by adverse possession have been dismissed.
It appears that another set of 6 suits were filed by the defendants in the suits filed by the petitioner claiming that the entry under class 9 in favour of the petitioner, be expunged.
The suits filed by the defendants in the suit by the petitioner were dismissed by the trial Court and the first appellate Court but have been decreed by the second appellate Court.
All these 12 suits after being consolidated have been decided by common judgments.
Hence, this bunch of 12 writ petitions, which involve an identical controversy. They have therefore, being heard and are being decided together.
The Board of Revenue has dismissed the suit of the petitioner and reversed the orders passed by the trial and the first appellate Court, on the reasoning that the plaintiff petitioner in his suit for adverse possession had not specified the date on which, his possession became adverse. Neither, he had specified as to when, he matured title on the basis of adverse possession.
It appears from the record and also from the submissions made that the petitioner claimed adverse possession relying upon an entry of class 9, made in the year 1966 by the Lekhpal.
With regard to this entry, the finding returned by the Board of Revenue is that it was neither in red ink nor the entry corroborated by production of the diary of the Lekhpal. Therefore, it was opined that the provisions contained in the Land Records Manual and for making an entry regarding adverse possession had not been complied with.
The Board of Revenue has also observed that the Lekhpal, who is alleged to have made the entry was produced and examined before the trial Court but he did not produce his diary, which was mandatorily required to be produced to establish that the entry under class 9 was made in accordance with law.
In this regard, the contention of counsel for the petitioner is that the Lekhpal did not produce his diary because on the date to his deposition, he had retired and therefore, he was probably not in possession of his diary.
This argument, in my considered opinion, cannot accepted. The manner in which an entry regarding class 9 entry is to be made is clearly laid down in the Land Records Manual. It is settled law that the procedure has to be followed and there cannot be any deviation from the same.
Besides, the entry that is made in the revenue record has to be corroborated by the relevant and corresponding entries in the diary, which is to be maintained by the Lekhpal, who makes the entry. This corroborating evidence was not filed. This evidence was mandatorily required to be filed in case, the claim of adverse possession of the petitioner was to be up held.
The other contention of counsel for the petitioner in this regard is that the khasras starting from 1967 had been filed on record and relying upon them, the trial Court had decreed the suit finding the petitioner to be in adverse possession since 1966.
In my considered opinion, this argument cannot be accepted because possession can also be permissive. Till such time, it is proved that the Lekhpal had made the entry under class 9 strictly in accordance with the provisions of the Land Records Manual and thereafter, a notice was sent to the recorded tenure holder in PA-10, no claim for adverse possession, could have been decreed.
Even otherwise, upon perusal of the plaint, especially paragraph 2 thereof, it transpires that in the plaint filed in the year 1983, the only averment is that the petitioner has been in adverse possession for a period greater than 12 years. No specific date on which, his possession become adverse possession has been alleged in the plaint.
It is also the settled law of pleadings that the evidence on a point, not specifically pleaded cannot be permitted to be adduced and if adduced, must necessarily be ignored. Therefore, the argument that has been raised does not improve the petitioners case in any manner.
Learned counsel for the petitioner has placed reliance upon a decision of this Court in Niazu Vs. Deputy Director of Consolidation, 2015 (128) RD 797. The judgement in my considered opinion, has no application because therein, the Court was dealing with a settlement entry made in the revenue record and its efficacy. The entry on the basis of which, the suits for adverse possession had been filed are not settlement entries but entries made by the Lekhpal in the year 1966, which entry should have been made strictly in accordance with the provisions contained in the Land Records Manual.
Moreover, to succeed in a claim based on adverse possession, the plaintiff has to specifically aver the date wherefrom his possession was open and hostile and it continued as such for the continuous period required for perfecting rights, thereby. This period has neither been specifically pleaded nor proved.
Besides, the entry under Class 9, in favour of the petitioner has not been established to have been made in accordance with the procedure prescribed therefore in the Land Records Manual. The entry is not in red ink. Neither has issuance of a notice in PA 10 to the recorded tenure holder, been established.
The Board of Revenue has therefore rightly allowed the defendants appeals and set aside the judgments and decrees of the trial and first appellate Court and its order calls for no interference. For the same reason the suits of the defendant-respondents have rightly been decreed.
The writ petitions therefore fail and are dismissed.
Order Date :- 9.1.2019 Mayank