Allahabad High Court
Sabhai And Another vs Deputy Director Of Consolidation ... on 22 December, 2023
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:85372 A.F.R. Reserved On 15.09.2023 Delivered On 22.12.2023 Court No. - 11 Case :- WRIT - B No. - 2255 of 1982 Petitioner :- Sabhai And Another Respondent :- Deputy Director Of Consolidation Faizabad Counsel for Petitioner :- H.S.Sahai,Kamlesh Kumar,Ravindra Kumar Yadav,Vijay Kumar Tiwari Counsel for Respondent :- C.S.C.,A.N. Verma,I.D. Dwivedi,K.P.Singh,Riyaz Ahmad,S.P Singh,Sachindra Dwivedi,Shachindra Dwivedi Hon'ble Saurabh Lavania,J.
1. Heard learned counsel for the petitioners, Sri Hemant Kumar Pandey, learned counsel for the State-respondents as also Sri Shachindra Dwivedi, learned counsel for the contesting opposite party.
2. By means of present petition, the petitioners have assailed the order dated 25.09.1978 and 27.03.1982 passed by the respondent No.2-Assistant Settlement Officer Consolidation, Faizabad and respondent No.1-Deputy Director of Consolidation, Faizabad, respectively.
3. Before proceeding in the matter, this Court finds it appropriate to indicate that Writ Petition No.1220 (Consolidation) of 1981 was filed by Musai, Ram Prasad and Bans Raj and the same was dismissed on 28.04.2016 and has not been restored.
4. Brief facts of the case are to the effect that the name of one Ghurai was recorded in the revenue record related to Khata No.162 situated at Nathmalpur, Hateria, Pargana-Birhar, Tehsil-Tanda, District-Faizabad now Amebdkar Nagar. The land/plots indicated in Khata No. 162 is the subject matter of this petition. These plot(s) have been indicated in the impugned order dated 27.03.1982 passed by Deputy Director of Consolidation as Gata No.301/1, 301/2, 301/3, 301/4, 313, 362/1, 362/2, 537/1, 537/2, 523/1 523/2, 552/1, 552/2 and 373/2 and total area 2-17-0.
5. In the basic year Khatauni of Khata No. 162 names of Dukhi and sons of Khelawan namely Ram Hans, Ram Singar and Ram Pyare were recorded.
6. It is to be noted that the case of the side opposite is that the Ghurai was the father of Dukhi and Khelawan.
7. With regard to Khata No.162 before the Consolidation Officer one objection was filed present petitioners and another objection was filed by Musai and Others. Petitioners in their objection indicated that the name of Dukhi S/o Ghurai and Ram Hans, Ram Singar, Ram Pyare all sons of Khelawan have wrongly been indicated in the revenue record. In the objection filed by the petitioners they also stated that entry in the revenue record in favour of Dukhi and legal heirs of Khelawan in fact is a forged entry as father of Dukhi and Khelawan was Shiv Baran. In support of this contention they filed the copy of statement dated 23.09.1966 of Dukhi recorded in Case No. 1977 under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (in short "Act of 1953") and copies of compromise filed in Case No. 9006 and 894 under Section 9 of the Act of 1953 related to Khata No. 86 situated at Village-Tikuria Bujurg.
8. It is apparent that before the Consolidation Officer the claim of the petitioners was mainly based upon the plea of adverse possession.
9. In another objection preferred by Musai and one Smt. Karma, they claimed their right over Khata No.162 by saying that they are actual legal heirs of Ghurai. Smt. Karma claimed herself as daughter of the Ghurai and Musai claimed himself as son of Karma.
10. With regard to claiming rights over the land, in issue i.e. Khata No.162, as stated, the petitioners based their claim on entries in Khasra of Fasli Year(s) 1366-1377, 1366-1367 and 1377-1379 and Khatauni of Fasli Year 1359.
11. It is indicated that Khasra and Khatuani bears an entry based upon PA-10 with date and dairy number. On the basis of entries in the Khasra and Khatauni the petitioners claimed themselves as recorded Sirdar.
12. The oral evidence was adduced by the petitioners to support their claim. On the other side, the oral evidence was also adduced by Smt. Karma, Musai and others before the Consolidation Officer. Dukhi S/o Ghurai and sons of Khelawan also adduced the evidence before the Consolidation Officer.
13. It would be apt to refer here that for proper adjudication of the case/objections the Consolidation Officer framed following four issues:-
"पक्षों के उपरोक्त कथन व आपत्तियों के आधार निम्न बिन्दु बनाये गयेः-
1. क्या श्री सभई व छवि नाथ पुत्रगण महदेवगण संख्या- 301 गाटा संख्या 301/3, 353/1, 362/1 व 573/2 व 537/2 के आदि चक के भूमि पर सीरदार है।
2. क्या श्री सभई व छविनाथ उपरोक्त गाटा संख्या 1 की 1 को दिये गये भूमि कब्जे के आधार अपनी कार्यवाही सीरदार है।
3. क्या गाटा संख्या 162 पर की भूमि पर अंकित खातेदारों के नाम फरजी दर्ज है और इस भूमि के सब भाग पर मालिक मुसई आदि है।
4. क्या मुसई आदि घुरई की लड़की के लड़के हैं और घुरई वारिस है सबूतो के आधार पर आराजी निजाई दिया जाता है अन्य किसी तनकी पर बल नहीं दिया गया है तनकी 2-4 श्री मुसई ने अपने बयानों में बताया है कि विवादित भूमि घुरई की थी। जिसके माल लड़की करमा थी जो विजयी से व्याही थी और उनसे वह तथा राम प्रसाद व बंश राज नाबालिग थे और उनकी माँ बेवा थी अतः घुरई के मरने पर खेती की देखभाल हेतु ही दुखी व खेलावन को बुला लिया था। जिन्होंने धोखा देकर घुरई के स्थान पर अपना नाम बतौर वारिस घुरई के लड़के बना कर अपने नाम दर्ज करा लिया। यह कि दुखी व खेलावन ग्राम टिकोरिया बुर्जुग के रहने वाले हैं और जब ये बंस राज व राम प्रसाद बालिग हुए है उन्होंने स्वयं भूमि जोतना आदि शुरू कर दिया और प्रतिवादी से कोई सम्बन्ध नहीं रहा है इन्होंने निम्न बंशावली दी हैः-
अन्तू ।
।--------------------------।----------------------------।-
राम कली घुरई माता । मु० करमा लड़की । -।--------------------------------।-----------------------।- मुसई राम प्रसाद बंश राज
श्री मुंसई के इन बयानों की पुष्टि में मु० करमा ने अपने बयानों में बताया है कि वह घुरई की लड़की व विजयी की पत्नी तथा मुसई आदि की माता है।"
14. It would also be apt to refer here that in the order of Consolidation Officer it has specifically been indicated that no other issue was pressed by the parties appearing before the Consolidation Officer.
15. The Consolidation Officer, upon due consideration particularly favourable entries made in the documents filed by the petitioners observed rather held that the entry in favour of Dukhi and Others is completely forged. The Consolidation Officer also rejected the claim of Smt. Karma, Musai and Others, who filed second objection before the Consolidation Officer under 9-A of the Act of 1953.
16. The order of Consolidation Officer dated 29.11.1977 was challenged by Musai and Others as also by Dukhi and Others by preferring the appeal(s) before the Settlement Officer of Consolidation, Faizabad now Ayodhya.
17. The appeal filed by Dhukhi was registered as Case No.11718 (Dukhi & Others vs. Musai & Others) and the appeal filed by Musai & Others was registered as Case No.11962 (Musai and Others vs. Dukhi and Others). The appeals filed under Section 11(1) of the Act of 1953 were clubbed together and decided by the Appellate authority namely Assistant Settlement Officer of Consolidation vide common order dated 25.09.1978.
18. The Assistant Settlement Officer of Consolidation after considering the oral statement of Smt. Karma and Musai specifically observed that Ghurai and others whose claim was based upon the entry in the revenue record of basis year were residing with Ghurai and Musai and Others were not in possession of the property in dispute recorded in the Khatuani of Khata No.162.
19. The Assistant Settlement Officer of Consolidation also observed that Musai and Others in their claim have specifically stated that Dukhi and Others were in possession of the property, in issue, for last 10 years and after considering these statement(s) held that Smt. Karma failed to establish that she is the daughter of Ghurai, whereas Dukhi and Khelawan are sons of Ghurai.
20. The relevant portion of the order dated 25.09.1978 passed by the Assistant Settlement Officer of Consolidation, reads as under:-
"दुखी वगैरह अपीलान्टस की तरफ से यह तर्क पेश किया गया कि आराजी निजाई घुरई की पैदा करदगी है तथा अपीलान्ट घुरई के ही लड़के हैं व वादी घुरई के मरने पर काबिज व दखिल हुए। विपक्ष में मुसई वगैरह की तरफ से तर्क पेश किया गया कि आराजी निजाई घुरई की पैदाइश अवश्य है मगर घुरई के कोई लड़का पैदा नहीं हुआ लेकिन घुरई की लड़की श्रीमती कम्सा उनके लड़के मुसई राम प्रसाद व बंशराज हैं। घुरई के जीवन काल में ही मुसई वगैरह घुरई के साथ रह कर आराजी निजाई पर काबिज व दखील हुई तथा घुरई के मरने पर मुसई का कब्जा दखल हुआ।
मुसई का भी कथन है कि दुखी व खेलावन को घुरई अपने साथ ले आये तथा अपने साथ खेती बारी की देख भाल के सिलसिले के लिए उनको रखा व घुरई के मरने के बाद दुखी से विवादित भूमि पर गैर कानूनी नाम दर्ज करा लिया। जब कि दुखी का विवादित भूमि पर कब्जा दखल नहीं रहा। पक्षी ने यह स्वीकार किया कि आराजी निजाई घुरई की ही पैदा करदगी है। अपने बयान की पुष्टि में नकल खतौनी 1337 फसली खाता 63, 82 व 9/3 व नकल खतौनी 1344 फ० खाता 10/3 व 26/5 पेश है जिसमें आराजी निजाई घुरई के नाम जिमन 5 में दर्ज है अतः उपरोक्त प्रमाणों से यह स्पष्ट है कि आराजी निजाई घुरई की है पैद करदगी है। अपीलान्टस दुखी ने यह तक पेश किया कि आराजी निजाई घुरई वगैरह की पैदा करदगी है व घुरई दुखी व खेलावन के पिता है घुरई के मरने के बाद उनका नाम वरासतन दर्ज हुआ। अपने कथन की पुष्टि में नकल खतौनी 1360 फ० खाता 71 व खाता 53/6, 65/99, 73/48 पेश किया है।
जिसमें विवादित भूमि पर अपीलान्टस दुखी व खेलावन पुत्रगण घुरई के नाम इन्द्राज है। नकल खतौनी 1362 फ० खाता 43 व 42/7 पेश किया है जिसमें दुखी के पिता का नाम घुरई ही दर्ज है। उपरोक्त प्रमाणों से यह स्पष्ट है कि दुखी व खेलावन घुरई के ही लड़के हैं। विपक्ष ने यह तर्क पेश किया कि दुखी वगैर घुरई के लड़के नहीं है। महज कागजात में गलत इन्द्राज है मुसई वगैरह ने अपने कथन की पु्ष्टि में कोई प्रमाण पेश नहीं किया बल्कि तर्क पेश किया कि दुखी ग्राम टिकरिया बुजुर्ग के शिव बरन के लड़के हैं व इस तर्क की पुष्टि में नकल बयान दुखी पुत्र शिव बरन दिनांक 23-9-66 मुकदमा नम्बर 1977 धारा 9 राम अवतार बनाम दुखी व नकल सुलहनामा दिनांक 4-7-77 बावत उपरोक्त मुकदमा व नकल सुलहनामा दिनांक 7-4-77 मुकदमा नम्बर 9006, व 8940 धारा 9 बावत खाता 86 ग्राम टिकुरिया बुजुर्ग पेश किया है। जिसमें दुखी वगैरह के पिता का नाम शिव बरन लिख गया है।
इसी इन्द्राज के आधार पर मुसई वगैरह का यह कथन है कि दुखी व खेलावन ग्राम टिकुरिया बुजुर्ग के शिव बरन के ही लड़के हैं। दुखी वगैरह ने अपने बयानों में शिव बरन की आराजी से अपना कोई सम्बन्ध नहीं बताया तथा यह भी बयान किया कि यदि उसके नाम से उक्त जमीन दर्ज भी है तो वह महज गलत दर्ज है व उसका यह भी कथन है कि उक्त ग्राम में दुखी पुत्र शिव बरन करके दर्ज है। व उसका यह कथन है कि युक्त ग्राम में दुखी पुत्र शिव बरन करके दर्ज है जब कि मेरे पिता का नाम घुरही हैं। यद्यपि दुखी वगैरह का यह तर्क व बयान न्याय संगत नहीं है लेकिन दुखी के नाम 1360 फ० के पूर्व से विवादित भूमि पर इन्द्राज है जिस पर उसके पिता का नाम घुरई दर्ज है।
इस प्रकार इतने लम्बे अर्से के इन्द्राज को महज मौखिक साक्ष्य से गलत नहीं माना जा सकता है। मुसई वगैरह ने यह तर्क पेश किया कि घुरई की लड़की श्रीमती करमा श्रीमती करमा के ही लड़के मुसई वगैरह ही हैं। लेकिन मुसई वगैर ने श्रीमती करमा को घुरई की लड़की साबित करने के लिए पैदा इशीनफल पेश नहीं किया है। जब कि दुखी वगैरह ने नकल पैदाइशी दिनांक 3-2-1390 नकल पैदाइशी दिनांक 5-10-10 ई० नकल पैदाइशी दिनांक 13-4-15 ई० पेश किया है।
जिसमें उपरोक्त तीनों पैदाइशी तिथियों में अन्तू के लड़की पैदा होना दर्ज है। अतः उपरोक्त नकल पैदाइशी परमाणों से यह साबित हो जाता है कि घुरई (लड़का) के अलावा अन्तू के तीन लड़कियां भी पैदा हुई व दुखी वगैरह ने तर्क पेश किया कि मौजूदा श्रीमती कर्मा ने जो बयान दिया है व उसको मुसई वगैरह घुरई की लड़की बताते हैं वह घुरई की बहन है जो मर चुकी है। श्रीमती करमा को घुरई की लड़की साबित करने का कोई प्रमाण मुसई वगैरह ने पेश नहीं किया।
मुसई वगैरह ने अपने मूल दावा दिनांक 13-11-75 में यह स्वीकार किया है कि घुरई अर्सा 37, 38 साल हुए फौत कर गये अतः मुसई के दावे के मुताविक घुरई 1930 व 1935 ई० के बीच मरे अतः उस समय भी घुरई के मरने पर मौजूदा मुसई वगैरह कानूनी वारिस नहीं होते हैं मुसई के गवाह नेवारू थे जो ग्राम नसीरपुर सिंह पट्टी के निवासी हैं। उक्त गवाह ने अपने बयान में यह स्वीकार किया कि श्रीमती कर्मा ने गवाही देने के लिए उससे कहा था लेकिन विवादित भूमि चौहद्दी की जानकारी उसको नहीं है। इस प्रकार श्रीमती कर्मा को जब गवाह निसाई जौजे का निवासी नहीं तथा श्रीमती कर्मा व उसके पिता की जानकारी व उनकी पैदाइश के सम्बन्ध में वह कुछ नहीं जानता तो श्रीमती कर्मा स्वयं पेश हुई हैं। तथा उसने अपने को घुरई की लड़की बताया। तथा अपने बयान में यह भी बताया कि दुखी की माता का नाम सोनकली है जो ग्राम टिकुरिया बुजुर्ग में रहती है लेकिन दुखी व खेलावन जब छोटे थे घुरई ले आवे व घुरई के मकान में रहते हैं। लेकिन मुसई वगैरह ने अपने दावे में यह दिखाया है कि घुरई के मरने के 10 साल बाद दुखी वगैरह को खेती के इन्तजाम के लिए निजाई मौजा में लाया गया। व उसके विपरीत मुसई वगैरह की तरफ से यहाँ बयान दिया गया कि घुरई अपने जीवन में दुखी व खेलावन को नाबालिगी की हालत में अपने मकान में ले आये थे। तथा मुसई वगैरह का दावा व उसके गवाहान का बयान एक दूसरे के विरोधी हैं। श्रीमती कर्मा ने अपने बयान में यह भी स्वीकार किया कि विवादित भूमि का लगान कभी नहीं दिया है। मुसई ने स्वयं अपने बयान में आराजी निजाई की चौहद्दी एवं उस पर बोई जाने वाली फसलों से अनाशिज्ञता जाहिर की है। तथा यह भी स्वीकार किया कि दुखी वगैरह घुरई के ही मकान में रहते हैं। वह स्वयं घुरई के मकान में नहीं रह या रही हैं तथा विवादित भूमि की लगान दुखी को देना बताया है। अतः मुसई वैगरह के बयानों से यह स्पष्ट है कि निजाई मौजे में कभी नहीं रहे और न विवादित भूमि पर उनका कब्जा दखल रहा।
मुसई निजाई मौजे के मुख्य नागरिक प्रधान ग्राम सभा को भी नहीं जानते हैं तथा यह भी स्वीकार किया कि इस ग्राम में कभी किसी को वोट नहीं दिया है अतः मुसई के स्वयं के बयानों से यह स्पष्ट हो जाता है कि निजाई मौजे के निवासी नहीं हैं और न विवादित भूमि पर उसका कभी कब्जा दखल रहा है। मुसई वगरहा ने अपने मूल दावे में यह दिखाया कि उसकी माता श्रीमती कर्मा अपने ससुराल में रहती थी तथा लड़का बाहर बगरज रोज रहता था। दुखी वगैरह को आराजी निजाई की देख भाल करने के लिए निजाई मौजा में घुरई के मकान में रख लिया था इस लिए दुखी वगैरह ने आराजी निजाई पर अपना नाम बतौर वारिस दर्ज करा लिया। जब कि दुखी वगैरह घुरई के लड़के नहीं है। मुसई के उपरोक्त आरोप निराधार एवं असत्य प्रतीत होते हैं जब कि वह स्वयं बालिग रहा तथा अपनी जायदादें दीगर शख्स को (विवादित भूमि की) देखभाल करने के लिए देने का कोई औचित्य प्रतीत नहीं होता है।
उपरोक्त विवेचन के आधार पर श्रीमती कर्मा घुरई की लड़की साबित नहीं है तथा दुखी व खेलावन घुरई के लड़के साबित हैं।"
21. After holding that Dukhi and Khelawan are sons of Ghurai, the Settlement Officer of Consolidation proceeded to consider the case of the present petitioners/appellants and after considering the evidence as also Para 80, 102-C of U.P. Land Record Manual and the provisions pertaining to PA-10, Settlement Officer of Consolidation in its order dated 25.09.1978, impugned herein, observed that based upon the entry in the Khatuani in absence of PA-10, the possession of the property can not be considered to be valid possession so far as the plea of adverse possession is concerned. The relevant portion of the same reads as under:-
"गाटा संख्या 301/1, 0-4-16, व 323/1, 0-3-13, व 332/1, 0-3-0, 362/1 0-1-17, 373/2, 0-3-12, 537/2, 0-3-0 पर सुभई व छविनाथ का पड़ताली कब्जा दर्ज है। विद्वान चकबन्दी अधिकारी स्तर पर सुभई वगैरह को गासिबाना कब्जे के आधार पर सीरदारी माना गया। इसके भी विरुद्ध दुखी वगैरह ने अपील दायर की है अपनी अपील में विद्वान चकबन्दी अधिकारी के आदेश को निरस्त करने के विवरण दे दिये हैं।
मुसई वगैरह ने कोई अपील प्रस्तुत नहीं किया। दुखी वगैरह की तरफ से यह तर्क पेश किया गया कि आराजी निजाई के हड़पने के लिए व अपीलान्टस के पेरशान करने की गरज से मुसई वगैरह ने सुंभई वगैरह को अपनी संजिश में करके कब्जे का फरजी इन्द्राज करा कर मुकदमा दायर कराया।
इसलिए विद्वान चकबन्दी अधिकारी द्वारा सुभई वगैरह को वरासत में दर्ज करने के बावजूद मुसई वगैरह ने कोई अपील दायर नहीं की उपरोक्त आरोपों का भली-भाँति अवलोकन करने से यह बखूबी स्पष्ट हो जाता है कि मुसई वगैरह व सुभई वगैरहा को अपनी साजिश में करके मुकदमा लड़ा रहे हैं। जैसा कि वजह है कि मुसई वगैरह अपनी कथित नामा का जायदाद पर सुभई वगैरहा के खिलाफ अपील प्रस्तुत नहीं की।
सुंभई वगैरह ने विवादित भूमि पर अपना कब्जा साबित करने के लिए नकल खसरा 1359फ० पेश किया है जिसमें गाटा संख्या 301/2, 0-3-1, 352/3 0-3-0, व 537/2 0-3-0 पर मारफत सहदेव वगैरह का नाम खाना कैफियत पर दर्ज है। नकल खसरा 1386 फ० लगायत 1370 फ० पेश किया है जिसमें मौजूदा आराजी निजाई पर सहदेव के कब्जे का इन्द्राज लेखपाल की दिनचर्या मय दिनांक के गाटा संख्या 373/2, को छोड़ कर शेष नम्बरान पर कब्जे का इन्द्राज है। 1367 फ० में सहदेव के नाम कब्जे के इन्द्राज व 1368 फ० लगायत 1376 फ० सहदेव के नाम श्रेणी 9 का इन्द्राज है। सहदेव ने नकल खतौनी 1378 लगायत 1379 फ० हिस्सा दोयम पेश किया जिसमें आराजी निजाई पर सहदेव पुत्र बिहारी का नाम श्रेणी-9 में इन्द्राज है उपरोक्त कब्जे के इन्द्राज की लैंड रिकार्ड मैनुअल के पैरा ए-80 व 102 -सी के तहत नहीं है जानकारी असत्य काश्तकारान का कब्जा के इन्द्राज है।
जरिये प०क० 10 बजाये खास नहीं कराई गयी। इस प्रकार गैर कानूनी कब्जे के इन्द्राज से सुभई वगैरह को कोई कानूनी बल नहीं मिलता है कब्जे के इन्द्राज की जानकारी असल काश्त करान के बजाय खस कराना आवश्यक होता है। यदि कब्जे के गैर कानूनी इन्द्राज गैर कानूनी है। तथा असल काश्त कार को कब्जे की जानकारी जरिये प० क० 10 बजाये खास नहीं कराया गया। ऐसी स्थिति में कितने की लम्बी अवधि के कब्जे के इन्द्राज क्यों न ही फिर भी काबिजदार को कोई कानूनी बल नहीं मिल सकता और न ही ऐसे कब्जे के इन्द्राज से सीरदारी का हक ही साबित होता है।
अतः उपरोक्त विवेचन के आधार पर मुसई वगैरह द्वारा प्रस्तुत अपील बावत गाटा संख्या 323 व 353 खारिज की गयी व दुखी वगैरह द्वारा प्रस्तुत स्वीकार की गयी। विद्वान चकबन्दी अधिकारी द्वारा पारित आदेश दिनांक 19-11-77 निरस्त करके खाता निजाई 162 की सम्पूर्ण भूमि पर दुखी वगैरह का नाम पूर्ववत कायम हो। वाद अमल दरामद पत्रावली दाखिल दफ्तर हो।"
22. After observing/holding aforesaid, the Assistant Settlement Officer of Consolidation dismissed the appeal of Musai & Others and allowed the appeal of Dukhi and Others and set aside the order of Consolidation Officer, dated 19.11.1977.
23. Being aggrieved, the petitioners preferred the Revision No.896/764/630 under Section 48 of the Act of 1953, which was dismissed by the respondent No.1 vide order dated 27.03.1982.
24. A perusal of the facts indicated in the order dated 27.03.1982, which have not been refuted by the petitioners by filing the copy of the memo of revision, it is apparent that before the Revisional Authority the petitioners did not take plea related to the finding of the Assistant Settlement Officer of Consolidation, according to which, Dukhi and Khelawan were held as sons of Ghurai. On other hand, it appears that plea of adverse possession was taken to claim their rights over the land of Khata No.162. The revisional authority, after observing that there is no evidence on record from which it can be deduced that the notice (PA-10) was served on the main tenants, held that the claim of revisionist(s)/petitioners is not sustainable and thereafter dismissed the revision vide order dated 27.03.1982. The relevant portion of the same reads as under:-
"Learned counsels for the parties were heard and the records were perused carefully. Revisionists set up two cases. Their first case was that their father was in virtual occupation of the land in 1356 F 1359 F and that on the basis of above entries, they became Sirdar from Adhivasi after the abolition of Zamindari. Alternatively they pleased in their second case tht they have perfected their title on the basis of adverse possession. With regard to the first case, the revisionists have filed extract of Khasra for 1359 F in which their father Sahdeva is recorded in remarks column as Marfat Sahdeva. No other evidence is there on the record in this aspect. AS opposed to it, Dukhi and others have filed extracts of Khatauni for 1356F and 1359F. These pieces of evidence show that they are recorded in class 4 in these years over the disputed land. In addition to this, they have filed rent receipts in supports of their case. Musai etc. too have admitted in their statements that Dukhi etc. are in possession over the land. In view of this there does not appear to be any force in the first case of the revisionists. As regards the case of adverse possession, revisionists have filed extracts of Khasra for 1366F to 1367F and again from 1368F and 1379F and 1379F. In 1366F and 1367 F, Sahdeva is recorded qubiz with date diary and PA-10 over plot No.373/2 and qubiz over other plots. Same is the position in 1367 F. There after he is recorded under clause 9 upto 1379F. Lower appellate Court has said that these entries are not in accordance with the provisions Land Record Manual. Revisionists have not brought on record any piece of evidence to show that PA-10 was ever served on the main tenant. So these entries will certainly not be termed to be regular. Another important circumstances in this respect leads me to conclude that the revisionists have not come, with clear hands in this court. Musai etc. directed their appeal against Dukhi etc. but not against Sabhai etc. for reasons best known to them. Lower appellate court seems to be correct in holding that Musai etc. are in collusion with Sabhai etc. to grab the disputed land one way or the other. In view of these findings, I do not find any force in this revision."
25. In the aforesaid background of the case, present petition has been filed challenging the order(s) dated 25.09.1978 and 27.03.1982.
26. The submission of the learned counsel for the petitioners can be summarized in following manner:-
(i) Dukhi and Khelawan were not the sons of Ghurai, as such, their claim was unsustainable before the authorities under the Act of 1953.
(ii) The entries made in copies of Khasra and Khatauni filed by the petitioners before the Consolidation Officer indicates and proves that the petitioners were in possession of the land recorded in Khata No.162 as these documents bear particulars related to Form PA-10 i.e. diary number, date and serial number and as such, it was established before the authorities under the Act of 1953 that the petitioners were in possession as Sirdar and being so the rejection of claim by the Assistant Settlement Officer of Consolidation and the revisional authority i.e. Deputy Director of Consolidation is unsustainable.
(iii) The proper issue to prove the adverse possession was not framed by the Consolidation Officer, as such, Assistant Settlement Officer of Consolidation and/or Deputy Director of Consolidation, if was of the opinion that the petitioners failed to prove adverse possession, then, the matter should have been remanded back to the Consolidation Officer for deciding the matter afresh after framing proper issue with regard to plea of adverse possession.
(iv) The averments regarding possession over the property specifically indicated in the present petition has not been refuted, as such, the same should be treated as admitted and based upon the same, interference in the impugned order be made.
(v) The Assistant Settlement Officer of Consolidation and Deputy Director of Consolidation completely discarded the oral evidence adduced by the petitioners, which was duly considered by the Consolidation Officer and based upon the same, the Consolidation Officer passed the order favourable to the petitioners.
(vi) The Assistant Settlement Officer of Consolidation and Deputy Director of Consolidation failed to consider the oral evidence related to the issue of adverse possession and it is settled law that adverse possession can be proved by adducing oral as also documentary evidence.
27. Sri Shachindra Dwivedi, learned counsel appearing on behalf of opposite party Nos.6 to 9 and Sri Hemant Kumar Pandey, learned counsel for the State submitted as under:-
(i) In the instant case, the findings recorded by the authorities under the Act of 1953 are to be looked into on the basis of records available and being so the submission of the learned counsel for the petitioners that un-rebutted averments made in this petition should be taken as true is completely fallacious.
(ii) It is settled law that plaintiff can succeed only on the strength of his own case and he can not succeed on the weaknesses of the defense. Further, even ex-parte proceedings or if the Court proceeds to decide the matter under Order 8 Rule 10 of C.P.C., the duty is cast upon to plaintiff to prove his case. The plaintiff has to prove his case by adducing the evidence and only then the Court would pass the decree in favour of the plaintiff. In absence of proper evidence, the Court would dismiss the case.
(iii) In the instant case, challenging the order(s) of the authorities under the Act of 1953 the petitioners have to satisfy on the basis of pleadings and material available on record that the findings recorded by the authorities under the Act of 1953 are completely perverse. For showing perversity, the petitioners have to indicate the relevant pleadings and evidence related to the same, as such, the submission of learned counsel for the petitioners that un-controverted averments in the petition be taken as true and the judgment be set aside is completely fallacious and unsustainable in the eye of law.
(iv) The finding of Assistant Settlement Officer of Consolidation which is to the effect that the Dukhi and Khelawan are sons of Ghurai was not assailed by the petitioners in the revision before the Deputy Director of Consolidation, as such, they are estopped from challenging this finding, at this stage, under writ jurisdiction.
(v) The name of Dukhi and legal heirs of Khelawan was there in the revenue record of basic year of Khata No.162 and the petitioners were before the authorities under the Act of 1953 claimed their right over the same based upon the plea of adverse possession, as such, petitioners were under obligation to prove their case beyond doubt as per law which is required to get a favourable order based upon the plea of adverse possession.
(vi) To prove the adverse possession in these proceedings, the law has already been settled. The adverse possession in these proceedings can be proved, as per law by proving the facts that notice (PA-10), as per the mode and manner prescribed, was duly served upon the concerned, who, in the present case, were Dukhi and Khelawan or his legal heir and this burden was not dischraged by the petitioners before the Consolidation Officer and accordingly, the Assistant Settlement Officer of Consolidation interfered in the order which was subsequently affirmed by the Deputy Director of Consolidation.
(vii) At this stage, Shri Tiwari, learned counsel for the petitioners stated that in fact, the petitioners were in possession over the property, in issue, i.e. property indicated in Khata No. 162 and no suit for eviction against the petitioners was filed as per law by the person aggrieved and this aspect was also not taken note of by the authorities who passed the impugned orders. In this regard, he has referred Section 180(2) of U.P. Tenancy Act, 1939 (in short "Act of 1939).
(viii) Opposing the above contention based upon the Section 180(2) of Act, 1939, learned counsel for side-opposite says that the case of the petitioners was based upon the doctrine of adverse possession and as such, the petitioners were required to prove their case by placing appropriate evidence as per law which was not placed.
(ix) To prove the facts pertaining to PA-10, the petitioners were required to place on record PA-10 as also oral evidence of the official concerned to prove the fact that the notice/P.A.-10, as per mode and manner prescribed, was duly served upon the recorded persons and in the instant case, no revenue official was produced as a witness and the case of the petitioners is only based upon the entries in the Khasra and Khatauni which are not sufficient evidence so as to come to the conclusion that the petitioners were in possession of the property indicated in Khata No. 162.
(x) The Assistant Settlement Officer of Consolidation and Deputy Director of Consolidation rightly held that the petitioners have failed to prove the plea of adverse possession and it is for the reason that PA-10 was not produced.
(xi) The petitioners were required to prove the entries on the Khasra and Khatauni placed by them before the Consolidation Officer by appropriate witnesses and in the instant case, the concerned revenue official was not produced before the Consolidation Officer to prove the entries over the said documents related to PA-10. Thus, findings recorded by the authorities under the Act of 1953 are justified and proper.
(xii) The Consolidation Officer while deciding the objections framed proper issues particularly Issue Nos. 1 and 2 and according to these issues the petitioners were under obligation to prove the possession over the land in issue which can be proved only by way of producing proper evidence related to PA-10 and concerned revenue official, however, the same was not done by the petitioners.
(xiii) In view of aforesaid, the petition is liable to be dismissed having no merits.
28. Learned counsel for the petitioners has placed reliance on the following judgments:-
(i) In the case of Shashi Prabha vs. Dy. Director Of Consolidation Budaun And 3 Others; 2020 SCC OnLine All 636; this Court observed as under:-
"22. In A.V. Papayya Sastry v. Govt. of A.P., reported in (2007) 4 SCC 221, the Supreme Court was pleased to held that if any judgement or order is obtained by fraud it cannot be said to be a judgement or order.
The relevant portion of the aforesaid judgement is quoted below :-
"19. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed;"
Fraud avoids all judicial acts, ecclesiastical or temporal."
(ii) Relevant paras of order passed by Board of Revenue, U.P., in the case of Hazari vs. Mathura; 1991 SCC OnLine BoR (UP) 27; 1992 RD 79; are as under:-
"5. I have heard the learned counsel for the parties. Sri N.K. Saxena, learned counsel for the appellant has contended that the entry made in class 9 is not in accordance with law and para A-80 and A-81 of the Land Records Manual. His second submission is that the court below has not considered the oral evidence and this failure on the part of the court below is sufficient enough to set aside its order. Sri R.K. Yadav, learned counsel for the respondent has submitted that there was no provision for the issuance of PA-10 from 1958 to 1965 and that the respondent was in continuance possession from 1369 to 1381-F. The appellant had full knowledge of the respondent's possession over the land in dispute and that Shiv Prasad son of the appellant used to issue receipts to the respondents in token of receiving the rent and so the plaintiff's right of asami, if any, has been extinguished.
6. I have carefully considered the arguments advanced before me and have also perused the record. The learned Additional Commissioner has allowed the appeal on the ground that the possession of the respondent is proved from the fact that he got constructed a bandhi on the land in dispute and that the respondent used to pay rent regularly. He did not appear to have had attached any importance to the issuance of PA-10 on the ground that the plaintiff had knowledge about the possession of the respondent and the entry made in class 9 was fictitious. In the Khatauni 1366-68F, the appellant Hazari is recorded as asami in class 3 and the respondent Gopal in class 9. In the Khasra 1369-80F, Gopal is recorded in class 9 against the plot in dispute. Similar entry has been made in khasra 1381-88F. However, there is no reference of issuance of PA-10 or PA-24. Shiv Prasad, son of the appellant Hazari issued rent receipts to the respondent on 3.7.69, 3.3.75, 28.9.70 and 28.12.77 in token of having received the rent. These documents are sufficient to prove that the respondent was in possession of the plot in dispute. The rent receipt dated 17.9.68, 3.3.69, 18.5.75, 26.8.67, 18.1.71 and 3.9.75 and 13.12.78 go to show that he used to pay rent to the Government. The respondent has also filed form 17 issued by the Department of Soil Conservation. In this form, the respondent Gopal is shown as beneficiary of the Bandhi to be constructed on plot No. 178, 185 and 249/7. Krishna Kumar Purohit, Accountant of the Soil Conservation Department appeared in the witness box and deposed that the bandhi was constructed by the department on plot No. 178, 185 and 249/7. He further deposed that the amount incurred in the construction was also got deposited from Gopal. The appellant has also filed form 12 issued by the Soil Conservation Department. This is a notice issued to the plaintiff Hazari for the construction of bandhi over so many plots including plot No. 178. It is apparent from this document that the actual beneficiary of the bandhi was the respondent who paid the costs of construction. These documents strengthened the case of the respondent that he was in actual possession and that he was not a rank trespasser."
(iii) In the judgment passed in Writ Petition No. 2141 (Consolidation) of 1981 (Heshamullah And Others vs. Chakbandi, Pratapgarh And Others The U.P. Sanchalak); this Court held as under:-
"Most importantly the D.D.C. has been persuaded by the fact that the entry in the revenue record pertaining to 1375F allegedly for the first time in favour of Abdul Majid was not in accordance with the Land Record Manual as the requisite diary number at P.A.10 entry are not mentioned nor the process prescribed under the Rules had been followed, but, he failed to appreciate the fact that if the name of Abdul Majid was existing as a Class9 entry in Khasra 1363F then at that time the provisions contained in paragraph A-80 and A-81 of Chapter A-V of the Land Records Manual had not come into force and were inserted only subsequently vide notification dated 18.1.1958 nor did he consider as to what would be the effect of this aspect of the matter if there was a Khasra of 1363 F on record with a Class9 entry in favour of petitioner's father Abdul Majid."
(iv) In the case of Mangu vs. D.D.C & Others; 2010 SCC OnLine ALL 3233, this Court observed as under:-
"I have very carefully gone through the orders passed by the respondent nos. 2 and 3 but 1 find that that although the respondent nos. 2 and 1 have given good reasons for holding khasra entries could not be relied upon as they were not made in accordance with the provisions of Land Record Manual and without issuing notice of P.A. form 10, neither the Settlement Officer Consolidation nor the Deputy Director Consolidation after recording the above finding examined the oral evidence adduced by the petitioner. In Shiva Nandan Vs. Board of Revenue. U.P. 1980 R.D. (73) it has been held that the adverse possession can be proved by documentary evidence or by oral evidence. In Ram Naresh Vs. Deputy Director Consolidation 1978 R.D. 118, it has been held that oral evidence of possession can not be ignored particularly while reversing a finding. In 2007 (102) RD 240 Bhaua Vs. Deputy Director of Consolidation, Banda and others this court again held that the revisional court could not have ignored the oral evidence supporting possession for more than 30 years. In 2007 (102) RD 101 Birju Vs. Deputy Director of Consolidation Gorkahpur and others, this court again took a similar view. Thus law is settled that the adverse possession can be proved by both oral as well as documentary evidence and in case this is not done the order ignoring the oral evidence particularly when reversing a finding can not be sustained. A perusal of the order of the Consolidation Officer shows that while holding the claim of 11 the petitioner over the land in dispute on the basis of adverse possession he had relied upon documentary as well as oral evidence. But the respondent No. 2 totally failed to take into consideration the oral evidence of the petitioner while reversing the finding recorded by the Consolidation Officer in his order holding that petitioner had perfected his title over the land in dispute on the basis of adverse possession.
The failure of the respondent No. 1 to rectify the error committed by respondent No. 2 has vitiated the order of respondent No. 2 also."
(v) In the case of Bramhanand Rai And Anr. vs. Dy. Director Of Consolidation, Ghazipur & Others; 1986 SCC OnLine ALL 84, this Court observed as under:-
"The petitioners had led both oral as well as documentary evidence in support of their claim that they have been in continuous possession of the land in dispute ever since the execution of lease by Mahadeo Rai in their favour on 27-5-1950, but none of the three consolidation authorities have considered evidence of the petitioners which was of great evidentiary value."
(vi) In the case of Azadar Hussain Khan And Others vs. Deputy Director Of Consolidation, Faizabad And Others; 2021 SCC OnLine All 580, this Court observed as under:-
24. This court, in the case of Pramod Kumar Chaturvedi Versus State of U.P. and others (Supra), has held that when the counter affidavit was not filed, it is axiomatic that the respondents no. 4 has nothing to say against the allegations and therefore the averments, by reason of remaining uncontroverted have to be treated as correct in view of law laid down by the Apex Court in its decision reported in AIR 1973 SC 627, 1982 SCC (2) 471 and 1987 SCR (4) 73.
25. In view of above since no counter affidavit has been filed by the opposite party no.3, the allegations made in the writ petition are uncontroverted and it can be safely presumed that the allegations made in the writ petition are true otherwise it would have been rebutted by the other side.
29. Learned counsel for the side opposite placed reliance on the following judgments:-
(i) In the case of Gurmukh Singh and Ors. vs. Dy. Director of Consolidation/A.D.M. (F. and R.) and others; 1996 SCC OnLine All 823, this Court held as under:-
"5. It is clear from para 102-C of the Land Records Manual that the entries will have no evidenciary value if they are not made in accordance with the provisions of Land Records Manual. There is presumption of correct- ness 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 de- nies 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 ad- verse possession."
(ii) In the case of Jamuna Prasad vs. The Deputy Director of Consolidation and Ors.; 1980 SCC OnLine All 569, this Court held as under:-
"6. Learned counsel for the petitioner argued that there was a presumption of correctness about the entries in the revenue records and the onus lay on the respondents to prove that the entries showing the petitioner's possession had not been made in accordance with law. This contention is untenable. First- ly, it is not possible for a party to prove a negative fact. Secondly, the question as to whether a notice in the form of P.A. 10 was issued and served on the pe- titioner also is a fact which was within his exclusive knowledge. A perusal of Paragraphs A-80 and A-81 of the Land Record Manual would show that P.A. 10 has to be issued to the chief tenant, the sub-tenant as well as persons in actu- al possession as contemplated by columns 3, 4 and 5 respectively of Form P.A. 10. Paragraph A-81 provides that the Lekhpal shall fill in first five column and hand over a copy of the list to the Chairman of the land management commit-tee. He shall also prepare extracts from the list and issue to the person or per- sons recorded in columns 3, 4 and 5 thereof and obtain their signatures on the copy of the list retained by him. In the instant case the petitioner could have easily produced the extracts of the entries in P.A. 10 served on him. No attempt was made to file the same and the presumption must be drawn that such extract was not served on the petitioner. Further, Paragraph A-80 of the Land Record Manual provides that a copy of the entry should be communicat-ed to the Pradhan of Goan Sabha or Gaon Panchayat and signature for receipt of the copy should also be obtained. There is no evidence on the record to prove compliance of these provisions. The petitioner has not been able to ex-plain as to why he failed to examine such evidence. The matter is also clinched by the admission of the petitioner's own witness, namely, Ram Gopal in cross- examination that P.A. 10 with regard to the petitioner's possession was not issued."
(iii) In the case of Balchan and Ors. Versus Dy. Director of Consolidation Mau and 2 Ors.; 2015 SCC OnLine All 1080, this Court observed as under:-
"10. Second claim was that they were in adverse possession over the land in dispute for more than statutory period as such had become sirdar under Section 210 of U.P. Act No. 1 of 1951. First document, khatauni 1367 F was filed to prove adverse possession, after date of vesting, which contains an amaldaramad of the order of Su- pervisor Kanoongo dated 13.11.1959, recording the names of the petitioners in column-9. Paragraph-A-81-A of U.P. Land Records Manual requires to issue/serve notice in PA-10 to land holder and Chairman of Land Manage- ment Committee. There is no evidence to prove that before making entry in column-9, procedure as given un- der Paragraph-A-81-A of U.P. Land Records Manual was followed. This Court in Jamuna Prasad v. DDC, 1981 RD 112 and Gurumukh Singh v. DDC, 1997 RD 276 and in several judgments have held that if PA-10 was not issued to land holder and Chairman of Land Management Committee, before recording possession of third person, then such entry has no evidentiary value. Thus respondents-1 and 2 have not committed any illegality in ignoring these documents."
(iv) This Court in the case of Mata Badal Singh And Others vs. District Deputy Director Of Consolidation/Collector And Others; 2015 SCC Online All 7855 held as under:-
"8. In reply to the aforesaid arguments, the counsel for the respondent submitted that it is incorrect to say that possession over transferred land was not delivered to Ghirau at the time of sale deed dated 09.08.1966. The father of the petitioners was not in actual possession rather a forged entry has been made in his favour in column-9 of the khatauni. When Ghirau filed application for mutation of his name on the basis of sale deed, a report dated 17.01.1968, relating to column-9 entry of Hanuman, was submitted by Naib Tahsildar. After hearing the parties, Tahsildar found Ghirau was in possession and allowed the mutation application as while deciding mutation application, he was required to decide possession according to provisions of Section 40 of U.P. Land Revenue, Act, 1901. Hanuman lost mutation case up to Board of Revenue, U.P. finally in 1973. In compliance of mutation order, column-9 entry of khatauni was expunged. Even if revenue record up to 1383 F was burnt, entries of column-9 prior to it, are not relevant as it has corrected by judicial order by Revenue Court in mutation proceeding. In basic consolidation record, i.e. 1388 F, name of Ghirau was recorded in revenue record and there was no entry of the names of the petitioners in column-9. The petitioners filed objection, claiming their right on the basis of possession as such burden of proof was upon them to prove that they had perfected their right over the land in dispute. They failed to prove their possession over the land in dispute. So far judgment of District Judge dated 12.12.1978 is concerned, it has not become final and First Appeal filed by Ghirau was dismissed in default in which restoration application has been filed, which is pending. He relied upon judgment of Board of Revenue, U.P. in Mangal Vs. Prem Lal, 2002 (93) RD 29 and this Court in Balchan Vs. DDC and others, 2015 (128) RD 320, in which it has been held that issue/service of PA-10 on the land holder and Chairman, Land Management Committee before recording possession of any person in column-9 is mandatory and in the absence of service of PA-10, entry has no evidenciary value. Adverse possession has been deprecated by Supreme Court in Hemaji Waghaji Jat BhikhabaiKhengarbhai Harijan, AIR 2009 SC 103 and State of Haryana Vs. Mukesh Kumar, (2011) 10 SCC 404. Judgment of this Court in Shambhoo Vs. DDC and others, 2015 (126) RD 784, in which it was held that it is obligatory on part of the person to plead and prove his adverse possession."
(v) In the case of Ram Naresh Misra vs. Sita Ram and Ors.; 2021 SCC OnLine All 425, this Court held as under:-
"16. Reading of the aforesaid provisions makes it clear that if any entry is made in PA- 10, the same shall be communicated to the person or persons concerned recorded in columns 3 and 4 or their heirs and obtain their signatures. Records on being submitted to the Revenue Inspector, he shall ensure at the time of Padtal i.e. verification of the village that it has been issued in all the cases and the signatures obtained by the recipients. Therefore, in case, any entry made on the basis of adverse possession the same was to be communicated to the person concerned and the person claiming is required to prove that it was in accordance with the manual and as to what was nature of possession and when it started in the knowledge of the tenant and the possession was continuous and how long it continued.
17. This Court considered this issue in the case of Mohd. Raza Vs. Deputy Director of Consolidation and Another; R.D. 1997 (R.D.) 276 and held that the entries in the revenue papers not prepared by following the procedure prescribed under the Uttar Pradesh Land Records Manual and PA-10 notice was not served on the main tenant, such entries are of no evidentiary value and would not confer any right.
18. This court, in the case of Gurumukh Singh and Others Vs. Deputy Director of Nainital and Others; MANU/UP/1544/1996: 1997 (80) RD 276, has alsc 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 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."
20. This Court, in the cases of Babu Lal Vs. Deputy Director of Consolidation (Supra), Balchan and two Others Vs. Deputy Director of Consolidation and Others (Supra), Chandi Prasad (Dead) Through L.Rs. Vs. Deputy Director of Consolidation and Others (Supra), Shiv Mangal Lal Vs. Deputy Director of Consolidation and Other (Supra) and Shri Nath Vs. Deputy Director of Consolidation (Supra), has consistently held that if an entry has been made in column-9 of the Khatauni without issuing and service of PA-10 on the recorded tenure holder then such an entry was illegal and has no evidentiary value. It has further been held that the burden to prove that PA-10 was issued and served on the tenure holder is lying upon the person relying on the column-9."
(vi) In the case of Indrapal Singh vs. The Deputy Director of Consolidation, Kheri and Ors.; 2019 SCC OnLine All 4553, this Court observed as under:-
"29. A party laying his claim on the basis of adverse possession in some property has to prove as to the date, time and manner in which possession is converted into open, hostile and adverse. In the case of Marwari Kumhar and others vs. Bhagwanpuri Guru Ganeshpuri and another, reported in [MANU/SC/0501/2000: (2000) 6 SCC 735], Hon'ble Supreme Court has held that in absence of any proof as to the date, time and the manner in which possession gets converted into open, hostile and adverse, the claim for adverse possession can not be upheld.
30. Thus, Court in its latest judgment in the case of Ishwarchand vs. Board of Revenue U.P. at Allahabad and others, reported in [MANU/UP/0938/2019: 2019 (142) RD 676] has, in paragraph 17 observed as under:
"17. 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."
(vii) In the case of Sattan and Ors. vs. D.D.C. and Ors.; 2017 SCC OnLine All 1829, this Court held as under:-
"10. Now, the claim of the petitioners based on adverse possession has to be examined. The petitioners have filed khasra 1369 F, 1377 F, 1380 F, 1385 F, khatauni 1365 F, 1385 F, 1396 F, revenue receipts, irrigation pass- book and examined Sattan, Chhotu, Chandrika, Deocharan and Bholanath as the witnesses. On its basis, they tried to prove that they were in possession of disputed land of two villages from 1365 F and 1369 F according to their share and 1/6 share each. This Court in Jamuna Prasad v. DDC, 1981 RD 112, Gaya Ram v. DDC, 1982 RD 1, Ram Shakal v. DDC, 1987 (2) AWC 878, Gurumukh Singh v. DDC, 1997 RD 276 and Hasan Raza v. DDC, 2006 (101) RD 10, held that in order to rely upon khasra or khatauni entry in column-9, for possession burden is upon the person relying upon it to prove that entry was made after following the procedure of U.P. Land Record Manual. Paragraph-102-C, whereof requires issue/service of PA-10 to the recorded tenure holder and chairman of Land Management Committee and order of Supervisor Kanoongo. Deputy Director of Consolidation has recorded findings that entries were not made by the order of competent authority in the khasra and khatauni. Further there is no evidence to prove that before making entry PA-10 was issued/serviced upon recorded tenure holder and chairman of Land Management Committee. There is no evidence that these entries were continuous entries for statutory period to acquire right under Section 210 of U.P. Act No. 1 of 1951. So far as oral evidence is con- cerned, Sattan and Chhotu could not give plot numbers and other details of the land in their possession. Deputy Director of Consolidation found that Chhotu in his statement had claimed disputed land on the basis of adverse possession from a period of 22 years as such their claim that in family partition, they got share each in the disputed land was contradicted from his oral statement."
(viii) In the case of Shambhoo and Others vs. Deputy Director of Consolidation, Faizabad and Another; 2014 SCC OnLine All 15517, this Court observed as under:-
"76. In order to defeat title of a plaintiff on the ground of adverse possession it is obligatory on the part of the respondent to specifically plead and prove as to since when their possession came adverse. If it was permissive or obtained pursuant to some sort of arrangement, the plea of adverse possession would fail. In Md. Moham- mad Ali v. Jagadish Kalita, with reference to a case dealing with such an issue amongst co-sharers it was ob- served that long and continuos possession by itself, it is trite, would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription."
30. Considered the aforesaid and perused the record as also the judgments referred above.
31. From the aforesaid, this Court finds that the case of the petitioners is based upon the plea of adverse possession and accordingly, the petitioners were required to prove the adverse possession, which can be deduced from the judgments referred above.
32. The plea that Dukhi and Khelawan were not sons of Ghurai, (original tenure holder) if be decided in favour of petitioners, even then in that eventuality the petitioners would not get the rights over the land in issue as for the rights over the land in issue, they have to prove the plea of adverse possession as such this Court is not inclined to delve into this aspect of the case. Moreover, the finding recorded by the Assistant Settlement Officer of Consolidation that Dukhi and Khelawan are sons of Ghurai was not assailed by the petitioners before the Deputy Director of Consolidation and now they are estopped from raising this plea directly before this Court.
33. Reverting to the plea of adverse possession, this Court finds from various pronouncements, referred above, that the burden of proof is upon the person claiming rights over the land on the basis of plea of adverse possession.
34. In the instant case, the claim of the petitioners is based upon the entries related to PA-10 in the Khasra and Khatauni.
35. With regard to entries in Khasra or Khatauni the settled view is that:-
(i) In order to rely upon khasra or khatauni entry in column-9, for possession burden is upon the person relying upon it to prove that entry was made after following the procedure of U.P. Land Records Manual. Paragraph-102-C, whereof requires issue/service of PA-10 to the recorded tenure holder and chairman of Land Management Committee.
(ii) If an entry has been made in column-9 of the Khatauni without issuing and service of PA-10 on the recorded tenure holder then such an entry was illegal and has no evidentiary value. The burden to prove that PA-10 was issued and served on the tenure holder is lying upon the person relying on the column-9.
(iii) The entries in the revenue papers not prepared by following the procedure prescribed under the U.P. 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.
(iv) The entries will have no evidentiary value if they are not in accordance with the provisions of U.P. Land Records Manual and the burden to prove is on the person who is asserting the possession on the basis of adverse possession.
(v) Unless it is proved that the Lekhpal had made the entry under Column 9 strictly in accordance with the provisions of the U.P. Land Records Manual and thereafter, a notice was sent to the recorded tenure holder in P.A.-10, no claim for adverse possession, could have been decreed.
36. The statements recorded before the Consolidation Officer have not been brought on record, as such, this Court is unable to record any finding based upon said the statements that as to whether the petitioners had proved their case based upon the plea of adverse possession or not. Accordingly, this Court is only considering the orders passed by the authorities under the Act of 1953 namely Consolidation Officer, Assistant Settlement Officer of Consolidation and Deputy Director of Consolidation i.e. order(s) dated 29.11.1977, 25.09.1978 and 27.03.1982, respectively, for coming to the conclusion.
37. The Assistant Settlement Officer of Consolidation and Deputy Director of Consolidation based upon the material available on record including the evidence adduced by the parties declined to accept the plea of petitioners based upon the copies of Khasra and Khatauni after observing that these entries in the revenue record are not in accordance with provisions envisaged under U.P. Land Records Manual and also that the petitioners have not brought on record any peace of evidence to show that P.A.-10 was served on the tenant.
38. From the judgments referred above, it is apparent that the petitioners were under obligation to prove that the entries in the revenue record was made after following the mode and manner prescribed in U.P. Land Records Manual.
39. No document or evidence has been brought to the notice of this Court to show that the entries in the aforesaid Khasra and Khatauni were made after following mode and manner prescribed under U.P. Land Records Manual. Thus, this Court is of the view that petitioners have failed to prove the plea of adverse possession.
40. In regard to contention of learned counsel for the petitioners that proper issues were not framed, this Court is of the view that the same is unsustainable in the light of Issue Nos.1 and 2 framed by the Consolidation Officer, indicated in Para 13 of this judgment.
41. In regard to plea that un-rebutted averments made in the petition regarding possession should be considered and the impugned orders be set aside, this Court is of the view that in the instant petition the findings recorded by the authorities under the Act of 1953 are to be considered on the basis of material available on record and the facts and evidence adduced by the parties before the authorities under the Act of 1953 and as such, the contention so raised is completely misconceived.
42. The contention of the learned counsel for the petitioners based upon Section 180(2) of the Act of 1939 is completely misconceived as in the instant petition the same has not been pleaded and also for the reason that the case of the petitioners is based upon the plea of adverse possession.
43. The decision of Board of Revenue in the case of Hazari vs. Mathura (B.R.), 1991 SCC OnLine BoR (UP) 27; 1992 RD 79; is not an authority on the question that where the person is claiming rights over the land on the basis of plea of adverse possession and relies upon the recorded entries, he is not to establish that the entries were made in accordance with the mode and manner prescribed under law. In the instant case, the claim of the petitioners based upon the plea of adverse possession was based upon the entries in Khasra and Khatauni, as such, they were required to prove the said entries and they failed to prove the same by adducing proper evidence.
44. Thus, for the reasons aforesaid, the findings recorded by the Assistant Settlement Officer of Consolidation and Deputy Director of Consolidation, according to which, the entries in Khasra and Khatauni produced by the petitioners were not made in the revenue record in terms of mode and manner prescribed in U.P. Land Records Manual and that no evidence was produced by the petitioners to prove that before making entries PA-10 was issued and served upon the recorded tenure holder and Land Management Committee, are justified.
45. Accordingly, this Court does not find any merit in this petition. It is accordingly dismissed. No order as to costs.
Order Date :-22.12.2023 Vinay/-