Allahabad High Court
Fateh Bahadur Singh vs D.D.C. & Others on 25 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 344
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 18 / Reserved AFR Case :- CONSOLIDATION No. - 543 of 1994 Petitioner :- Fateh Bahadur Singh Respondent :- D.D.C. & Others Counsel for Petitioner :- R.P.Singh,Vijay Kumar Counsel for Respondent :- M.P.Yadav Hon'ble Rajnish Kumar,J.
1. Heard, Shri Vijay Kumar, learned counsel for the petitioner and Shri M.P. Yadav, learned counsel for the respondent no.3.
2. On the statement of learned counsel for the respondents no.3 and 4 Shri M.P. Yadav that the legal heirs and representatives of the respondent no.4 have entered into compromise with the petitioner and they are no longer interested in pursuing the matter and only respondent no.3 wishes to contest the case, it is recorded in the order dated 04.01.2021 and he argued only on behalf of respondent no.3. The present writ petition has been filed for quashing the order dated 20.05.1994 passed in Revision No.1658, under Section 48 of U.P. Consolidation of Holdings Act, 1953 (here-in-after referred as Act of 1953) by the respondent no.1.
3. The dispute in the instant case relates to plot no.4350, area 0-18-0 of Khata No.518 which was recorded in the name of Gherai S/o of Rekhai and plot no.3908 and 3909 of Khata No.577 which was recorded jointly in the name of Dargahi S/o Sampat i.e. respondent no.4 and Gherai S/o Rekhai in the basic year of consolidation started from 22.08.1978. However on the aforesaid plots the name of father of petitioner namely Sarju Singh was recorded in clause-9. However, during verification (Padtal) possession of Shri Kamla Pratap Singh S/o Akchhaibar Singh was found.
4. On publication of records, four objections were filed under Section-9A of the Act of 1953. One by Kamla Prasad Singh S/o Akchhaibar Singh claiming the right on Gata No.4350, area 0-15-0 on the basis of possession. Second objection was filed by the father of the petitioner Sarju Singh claiming plot no.4350 area 0-15-0 on the basis of continuous possession from prior zamindari abolition consequently being bhumidar and adverse possession by virtue of entries in clause-9 on plot no.3908 area 0-8-0 and 3909 area 0-9-0. The third objection was filed by Babu Lal i.e. respondent no.3 claiming succession on plot no.3908, area 0-8-0 and 3909, area 0-9-0 on account of death of his father Gherai S/o Rekhai. The fourth objection was filed by Ram Sukh Singh and others. The objections of Kamla Prasad Singh and others was rejected for want of prosecution. The objections of Ram Sukh Singh and others for co-tenancy was also rejected. The objections of the petitioner in regard to plot no.4350, 3908 and 3909, on the basis of clause-9 entry, was rejected. The objections of respondent no.3 were allowed by the Consolidation Officer by means of the order dated 17.04.1986.
5. Being aggrieved the petitioner had filed an appeal under Section 11(1) of the Act of 1953, which was allowed by the Settlement Officer Consolidation (here-in-after referred as SOC) by means of the order dated 21.12.1987 and the order passed by the Consolidation Officer was amended. The name of the petitioner was directed to be recorded in Gata No.4350, 3908 and 3909. The respondents no.3 and 4 filed a revision under Section 48 of the Act of 1953 which has been allowed by the Deputy Director of Consolidation (here-in-after referred as DDC) and the order dated 21.12.1987 passed by the SOC has been set-aside and the order passed by the Consolidation Officer has been upheld. Hence the present writ petition has been filed challenging the order dated 20.05.1994 passed by the DDC.
6. Submission of learned counsel for the petitioner was that the name of the father of the petitioner was recorded on the plots in question on the basis of order passed by the supervisor Kanoongo on 23.02.1965 under P.A. 10 in place of Bhagauti Deen S/o Samsher which is apparent from a copy of Khatauni of 1369-73 Fasli, a copy of which has been filed by the petitioner alongwith the Supplementary affidavit. He further submitted that name of the father of the petitioner was recorded in 1385 Fasli also. The entry, in the name of the grand father of the petitioner namely Vishwanath Singh, is coming on plot no.3908 and 3909 since 3rd settlement i.e. Soyam, a copy of which has been filed alongwith supplementary affidavit and no reply has been submitted. The learned Consolidation Officer had wrongly and illegally rejected the objections filed by the petitioner merely on the ground that the date of order is not mentioned as such the name of the father of the petitioner was not recorded in accordance with para 80-A and 81-A which appears to be a typographical error as the correct provision is 89-A and 89-B while the respondent had failed to prove their title and possession. Therefore the petitioner had filed the appeal before the SOC which was allowed after considering the pleadings and evidence in accordance with law recording a finding that the name of the father of the petitioner Sarju Singh was recorded as occupant in 1359 Fasli on Gata No.4350 and on disputed Gata No.3908 and 3909 in 1359 Fasli. The name of the father of the petitioner is recorded in clause-9 and as actual cultivator Sarju Singh is recorded.
7. He further submitted that the revisional authority, without setting-aside the finding of SOC, allowed the revision on the ground that the provisions of Land Records Manual have not been followed in issuing P.A. 10 under para 102 (C) of the Land Records Manual and the crop is not shown, only the name of Sarju Singh is recorded. But failed to consider that the name of the father of the petitioner was recorded in place of Bhagauti Deen who was representative of the family of the petitioner therefore the impugned order is not sustainable in the eyes of law.
8. Learned counsel for the respondent no.3 vehemently opposed the submissions of learned counsel for the petitioner and had submitted that the petitioner has taken inconsistent pleadings of title as well as adverse which are not permissible. For adverse possession, the petitioner was required to show as against whom he is claiming the adverse possession and the period and date of entry was required to be proved. He further submitted that the case of petitioner on the basis of adverse possession is in accordance with the provisions of the Land Records Manual and admittedly the title of the petitioner was not there. Therefore the petitioner has no right on the plot in question. He further submitted that finding regarding entry in the revenue records recorded by the revisional authority has not been challenged. Admittedly, in the basic year entry the name of the respondent was recorded and possession of Kamla Prasad was found. The alleged entry made in favour of the petitioner under clause-9 is not in accordance with Land Records Manual therefore the same does not give any right to the petitioner.
9. On the basis of above, learned counsel for the respondent no.3 submitted that the order passed by the DDC is in accordance with law which does not suffer from any illegality or error and the writ petition has been filed on misconceived and baseless grounds and it is liable to be dismissed. Learned counsel for the respondent has relied on P.T. Munichikkanna Reddy and Others Vs. Revamma and Others; 2008 (26) LCD 15, Gurumukh Singh and Others Vs. Deputy Director of Consolidation, Nainital and Others; 1997 (80) RD 276, Mohd. Raza Vs. Dy. Director of Consolidation and another; 1990 RD 165 and Sadhu Saran and Another Vs. Assistant Director of Consolidation, Gorakhpur and Others; 2003 (94) RD 535.
10. Refuting to the arguments of the learned counsel for the respondent no.3, learned counsel for the petitioner submitted that the possession may be permissive or adverse and the petitioner had permissive possession as no objection was ever raised. He had further submitted that the question of following the procedure of recording the entry of clause-9 in PA-10 does not arise because the name of Bhagauti Deen, representative of the family of the petitioner, was recorded in the revenue records. He also submitted that the submission of learned counsel for the respondent is also misconceived because para 102-B is in regard to Khasra whereas the name of the petitioner was recorded in Khatauni. The name of the father of the petitioner was recorded in Khatauni on the basis of order of the supervisor kanoongo dated 23.02.1965. Therefore the impugned order is not sustainable in the eyes of law and liable to be quashed.
11. I have considered the submissions of learned counsel for the parties, perused the orders and the documents placed on record.
12. The name of Sarju Singh father of the petitioner was recorded under clause-9 on the basis of adverse possession in the basic year. The name of Gherai S/o Rekhai father of the respondent no.3 was recorded on Gata No.4350/0-18-0 in Khata No.158 and Dargahi S/o Sampat, the respondent no.4 (deceased & substituted by his legal heirs in the petition) and Gherai S/o Rekhai in Gata No.3808/0-8-0 and 3909/0-9-0 in Khata No.577. The objection of the petitioner was rejected and objection of the respondents no.3 and 4 was allowed by Consolidation Officer on the ground that the name of Sarju Singh was recorded on the basis of an order passed by the Supervisor Kanoongo which is not in accordance with para 80-A and 81-A of the Land Records Manual and PA-10 and date is not mentioned. The appeal filed by the petitioner was allowed and the order passed by the Consolidation Officer was amended and a direction was issued to record the name of the petitioner on the plots in question on the ground that the respondents have failed to prove as to how their names were recorded in the revenue records and the Consolidation Officer has made a mistake by not allowing the petitioner on the basis of possession where the name of the Sarju Singh was recorded under Clause-9 on the basis of an order passed by the Supervisor Kanoongo in 1366-1370 Fasli, 1371-1373 Fasli and continued to be recorded as Sikimi in Khasra of 1372-1374 Fasli.
13. The respondents had filed revision, aggrieved by the order passed in appeal, on the ground that the land in dispute was obtained by the revisionist i.e. the respondents from Akchhaibar Singh and not from petitioner and he has no concerned with the petitioner or his father. The objection raised by the petitioner was that the name of Sarju Singh was recoded under Clause-9 by the Supervisor Kanoongo and the possession is proved by the Khasra of 12 years. The revisional court allowed the revision on the ground that the entry in the name of Sarju Singh was not in accordance with the Land Records Manual and no crop is also recorded in Khasra of 12 years and only the name of Sarju Singh is recorded and no date is mentioned and plot no.4029 was sold by Rekhai to Akchhaibar Singh S/o Surya Bali Singh on the basis of which the Sub-Divisional Officer had passed an order for mutation in 16.02.1966 from which it is proved that in 1366 Fasli the title of Gherai S/o Rekhai was undisputed and he has also sold some of the plots of his Khata.
14. The petitioner had initially claimed the right over the plot no.4053 area 0-15-0 on the basis of being cultivator as Kashtkar Maurushi, who became Sirdar after abolition of Zamidari and after a long possession he has become the Bhumidar. On the other two plots i.e. 3908 and 3909 on the basis of entry under clause-9 in pursuance of an order passed by the Supervisor Kannongo. But subsequently on the basis of entry in clause-9 by the order of Suprvisor Kannongo on plot no.4350 but no date is given and on plot nos.3908 and 3909 on the basis of order dated 23.02.1965 passed by Supervisor Kannongo, as is in paragraph 9 of writ-petition also. Therefore, the petitioner claimed the right on the plots in question on the basis of adverse possession but failed to show as to against whom in plot no.4350 and against Bhagauti Deen in plot no.3908 and 3909, who is said to be representative of family and it has argued before this court that possession was permissive. Therefore the stand has been changed again. However the permissive possession may not give any right and the inconsistent stand has been taken. The right on the basis of adverse possession will accrue only if it is in accordance with law. The learned Consolidation Officer and Revisional Authority have found the entry not in accordance with the U.P. Land Records Manual.
15. The para-89-A, 89-B and 102-B of the Land Records Manual (here-in-after referred as 'the manual'), relevant for the purpose, are extracted below:-
"89-A. List of changes.-After each Kharif and rabi portal of a village the Lekhpal shall prepare in triplicate a consolidated list of new and modified entries in the Khasra in the following form:
Form No.P-10 Khasra No. of Plot Area Details of entry in the last year Details of entry made in the current year Verification report by the Revenue Inspector Ramarks 1 2 3 4 5 6
(ii) The Lekhpal shall fill in the first four Columns and hand over a copy of the list to the Chairman of the Land Management Committee. He shall also prepare extract from the list and issue to the person or persons concerned recorded in Columns 3 and 4 to their heirs, if the person or persons concerned have died, obtaining their signature in the copy of the list retained by him. Another copy shall be sent to the Revenue Inspector.
(iii) The Revenue Inspector shall ensure at the time of his partial of the village the extract have been issued in all the cases and signatures obtained of the recipients.
89-B. Report of changes.- The copy of the list with the Lekhpal containing the signatures of the recipients of the extracts shall be attached to the Khasra concerned and filed with the Registrar (Revenue Inspector) alongwith it on or before 31st July, of the following year (sub-paragraph (iv) of the paragraph 60).
102-B. Entry of possession (Column 22) (Remarks column).- (1) The Lekhpal shall while recording the fact of possession in the remarks Column of the Khasra, write on the same day the fact of possession with the name of the person in possession in his diary also, and the date and the serial number of the dairy in the remarks Column of the Khasra against the entry concerned.
(2) As the list of changes in Form p-10 is prepared after the completion of the patal of village, the serial number of the list of changes shall be noted in red ink below the entry concerned in the remarks column of the Khasra in order to ensure that all such entries have been brought on the list.
(3) If the Lekhpal fails to comply with any of the provisions contained in paragraph 89-A, the entry in the remarks Column of the Khasra will not be deemed to have been made in the discharge of his official duty."
16. Reading of the aforesaid provisions makes it clear that if any entry is made in P-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 is to be communicated to the person concerned and the person claiming is required to prove that it was in accordance with the manual and as to what was nature of possession and when it started in the knowledge of the tenant and the possession was continuous and how long it continued.
17. This Court considered this issue in the case of Mohd. Raza Vs. Deputy Director of Consolidation and Another; R.D. 1997 (R.D.) 276 and held that the entries in the revenue papers not prepared by following the procedure prescribed under the Uttar Pradesh Land Records Manual and PA-10 notice was not served on the main tenant, such entries are of no evidentiary value and would not confer any right.
18. This court, in the case of Gurumukh Singh and Others Vs. Deputy Director of Consolidation, Nainital and Others; 1997 (80) RD 276, has also held that the entries will have no evidentiary value if they are not in accordance with the provisions of Land Records Manual and the burden to prove is on the person who is asserting the possession on the basis of adverse possession. Relevant paragraphs 6 and 7 are extracted below:-
"6. It is clear from Para A-102C of the Land Records Manual that the entries will have no evidentiary value if they are not made in accordance with the provisions of Land Records Manual. There is presumption of correctness of the entries provided it is made in accordance with the relevant provision of Land Records Manual and secondly, in case where a person is claiming adverse possession against the recorded tenure-holder and he denies that he had not received any P.A. 10 or he had no knowledge of the entries made in the revenue records, the burden of proof is further upon the person claiming adverse possession to prove that the tenure-holder was duly given notice in prescribed Form P.A. 10. Para A-81 itself provides that the notice will be given by the Lekhpal and he will obtain the signature of the Chairman, Land Management Committee as well as from the recorded tenure-holder. It is also otherwise necessary to be provided by the person claiming adverse possession. The law of adverse possession contemplates that there is not only continuity of possession as against the true owner but also that such person had full knowledge that the person in possession was claiming a title and possession hostile to the true owner. If a person comes in possession of the land of another person, he cannot establish his title by adverse possession unless it is further proved by him that the tenure-holder had knowledge of such adverse possession.
7. In Jamuna Prasad v. Deputy Director of Consolidation, Agra and Others, this Court repelled the contention that the burden of proof was upon the person who challenges the correctness of the entries. It was observed:
"Learned counsel for the Petitioner argued that there was a presumption of correctness about the entries in the revenue records and the onus lay upon the Respondent to prove that the entries showing the Petitioner's possession had not been in accordance with law. This contention is untenable Firstly, it is not possible for a party to prove a negative fact. Secondly, the question as to whether the notice in Form P.A. 10 was issued and served upon the Petitioner also is a fact which was within his exclusive knowledge."
"Petitioner's contention that the burden lay on the Respondents to disprove the authenticity and destroy the probative value of the entry of possession cannot be accepted. In my opinion, where possession is asserted by a party who relies mainly on the entry of adverse possession in his favour and such possession is denied by the recorded tenure-holder, the burden is on the former to establish that the entries in regard to his possession was made in accordance with law."
19. This Court, in the case of Sadhu Saran and Another Vs. Assistant Director of Consolidation, Gorakhpur and Others; 2003 (94) RD 535, has held that it is well settled in law that the illegal entry does not confer title.
20. The Hon'ble Apex Court, in the case of P.T. Munichikkanna Reddy and Others Vs. Revamma and Others; 2008 (26) LCD 15, has held that in case of adverse possession, communication to the owner and his hostility towards the possession is must. The relevant paragraphs 19 to 23 are extracted below:-
"19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.
20. While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles.
21. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto and Others; (2005) 8 SCC 330 in that context held:
"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3 SCC 376).
30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd Mohd. Ali v. Jagadish Kalita, SCC para 21)"
22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India and Other; (2004) 10 SCC 779 in the following terms:
"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: ( a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession"
23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner."
21. The copy of the Khatauni of 1369-73 Fasli filed by the petitioner alongwith the supplementary affidavit indicates that the name of Sarju Singh S/o Vishvanath is recorded in plot no.4350 which the petitioner states was recorded on the basis of order passed by Supervisor Kannoongo but no date has been disclosed and in plot no.3908 and 3909, the name of Sarju Singh has been recorded under clause-9 in place of one Bhagauti Deen on the basis of the order dated 23.02.1965 under PA-10 but in the bottom the signatures are not clear and the date is not mentioned. Therefore, it was for the petitioner to prove that this entry was made after following the due procedure of law as prescribed under the Land Records Manual and was duly communicated to the main tenant and it was within his knowledge. But he has failed to prove it. Therefore the petitioner is not entitled on the basis of adverse possession and alleged permissive possession is also not sustainable as the petitioner could not show as to how Bhagauti Deen was representative of family and the possession of father of petitioner was also not found in basic year.
22. The Revisional Authority on the basis of sale of Plot No.4029 of the same Khata by Rekhai to Akchhaibar Singh has allowed the revision of the respondents without considering that the revisionist had taken a plea that the revisionist had got the land in dispute from Akchhaibar Singh. It is also not in dispute to the parties that in the basic year the petitioner and respondents were not in possession. Therefore the revisional authority has allowed the revision without considering as to how the land in dispute has come to the opposite parties and whether the claim of the respondents is sustainable in the eyes of law or not.
23. The petitioner has filed supplementary affidavits and certain documents before this Court to show that the name of the grand father of petitioner and representative of the family of the petitioner was recorded in the third settlement i.e. Soyam but it was not disclosed before the courts below.
24. In view of above, this Court is of the opinion that the matter is required to be reconsidered by the Revisional Authority in accordance with law and in the light of the observations made here-in-above. The petitioner may file the documents, filed before this Court, before the Revisional Authority, for his consideration in accordance with law while deciding afresh.
25. The Writ Petition is, accordingly, partly allowed. The order dated 20.05.1994 passed by Deputy Director of Consolidation, Sultanpur is hereby quashed. The matter is remanded to Deputy Director of Consolidation, Sultanpur, who shall decide the revision a fresh within a period of six months from the date of production of certified copy of this order. No order as to costs.
.............................................................(Rajnish Kumar,J.) Order Date :- 25.02.2021 Haseen U.