Allahabad High Court
Chauthi vs D.D.C. & Others on 31 May, 2018
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 19.2.2018 Delivered on 31.5.2018 Court No. - 11 Case :- WRIT - B No. - 1225 of 1976 Petitioner :- Chauthi Respondent :- D.D.C. & Others Counsel for Petitioner :- Sarad Malviya,A. Hajela,A.K. Dwivedi,A.N. Verma,A.N.Hajela,R.K. Malviya,R.N. Singh,V.K. Chandel,V.K. Singh Counsel for Respondent :- S.C.,D.N.Pandey,R.N. Pandey,R.P.N.Mishra Hon'ble Salil Kumar Rai,J.
1. Heard Shri M.K.S. Chandel, Advocate, holding brief of Shri V.K.S Chandel, learned counsel for the petitioner as well as learned counsel for the heirs of respondent No. 2 and learned Standing Counsel representing respondent No. 1.
2. The dispute in the present case and in the consolidation proceedings from which the present case arises relates to Plot No. 1621/826 (hereinafter referred to as, 'disputed plot') in Khata No. 198. The petitioner was recorded as a tenure holder of the disputed plot in the basic year Khatauni. However, in the same document, respondent No. 2 was also recorded as an Asami of the disputed plot. It is also apparent from the revenue records filed in the Courts below that in the Khatauni of 1359 Fasli, the petitioner was recorded as Ziman 6 i.e. Class (6) holder of the land and respondent No. 2 was recorded as an occupier of land without the consent of person entered in Column 5 of the Khasra i.e. without the consent of the petitioner and the possession of respondent No. 2 was categorized as Ziman 20 i.e. Class (20). The aforesaid facts are not disputed and appear to have been admitted before the Courts below.
3. During the consolidation proceedings held in the village, objections were filed by both the petitioner and respondent No. 2. Petitioner filed objections to delete the name of respondent No. 2 as Asami from the revenue records and respondent No. 2 filed objections claiming his entitlement to be recorded as Sirdar of the disputed plot. On the aforesaid objections, Case No. 4224 under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') was registered in the Court of Consolidation Officer (hereinafter referred to as, 'C.O.'). The C.O. vide his order dated 22.1.1974 decided the objections holding that the petitioner and respondent No. 2 be retained in the revenue records as Bhumidhar and Asami, respectively. A perusal of the judgement and order dated 22.1.1974 passed by the C.O. would show that in support of his case, respondent No. 2 filed copies of the judgement dated 28.9.1951 passed by the Judicial Officer, Phoolpur and copies of Khasra from 1364 to 1377 Fasli, copies of Khasra and Khatauni of 1359 Fasli and respondent No. 2 himself appeared as witness to prove his possession. It is also evident that in support of his case before the C.O., petitioner filed copy of Khatauni of 1359 Fasli, copy of Family Register and the Bhumidhari Sanad dated 25.1.1969 and one Shri Jairam as well as the petitioner appeared as witness to prove the case of the petitioner. It also appears from the judgement dated 22.1.1974 passed by the C.O. that in Case No. 4224, respondent No. 2 had also pleaded adverse possession to claim Sirdari rights over the disputed plot. The C.O. relying on the judgmeent dated 28.9.1991 passed by the Judicial Officer, Phoolpur, held that the disputed plot was mortgaged to respondent No. 2 by the petitioner and in case respondent No. 2 was in possession as mortgagee of the disputed plot, he was entitled to be recorded as Asami of the said plot and no right accrued in his favour due to alleged adverse possession. Against the order dated 22.1.1974, the petitioner and respondent No. 2 filed Appeals under Section 11(1) of the Act, 1953, before the Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.') which were registered as Appeal Nos. 1051 and 1033 respectively. It appears that in Appeal, respondent No. 2 raised a new plea claiming Sirdari rights over the disputed plot on the basis of entries in Khasra of 1356 Fasli and dropped his claim on the basis of adverse possession. The S.O.C. vide his order dated 9.9.1974 allowed Appeal No. 1051 filed by the petitioner and dismissed Appeal No. 1033 filed by respondent No. 2 after recording a finding that respondent No. 2 had not proved the entries in revenue records of 1359 Fasli and as the petitioner was a minor in 1359 Fasli, therefore no rights vested in respondent No. 2 due to his alleged possession over the disputed plot. The relevant portion of the judgment of S.O.C. is reproduced below :-
"eSus mHk; i{kksa ds rdZ ,oa lk{;ksa ij fopkj fd;kA dqVqEc jftLVj dh udy ls Li"V gS fd pkSFkh fnukad 1-4-1940 dks iSnk gq,A 1359 Q0 esa mldh vk;q 12 lky jgh gksxhA vr% 1359 Q0 esa og uckfyx FkkA vr% mldh Hkwfe ij ;fn jkeizrki us dCtk Hkh dj fy;k gks] rks jkeizrki dks dCtk dk dksbZ ykHk ugha feyuk pkfg,A jkeizrki ds uke 1359 Q0 ls teu 20 dk bUnzkt 2 lky eqn~nr ds lkFk ntZ gSA ;g bUnzkt vukf/kd`r gSA bl bUnzkt dh iqf"V esa jkeizrki us dksbZ lk{; ugha fn;k gSA"
(Emphasis added)
4. Against the judgement and order dated 9.9.1974 passed by the S.O.C., respondent No. 2 filed a Revision under Section 48 of the Act, 1953 before respondent No. 1-Deputy Director of Consolidation, Azamgarh (hereinafter referred to as, 'D.D.C.'), which was allowed by the D.D.C. vide judgement and order dated 29.3.1976. In his judgement and order dated 29.3.1976, the D.D.C. disagreed with the opinion of the S.O.C. rejecting the claim of respondent No. 2 on grounds of minority of petitioner in 1359 Fasli as according to the D.D.C., father of the petitioner was alive at the relevant time, and therefore, the petitioner was not entitled to benefit of Section 157 of Uttar Pradesh Zamindari Abolition and Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950'). Apart from the aforesaid, the D.D.C., relying on alleged entries in favourof responent No. 2 in the Revenue Records of 1356 Fasli, held that respondent No. 2 became a hereditary tenant in 1357 Fasli and was thus entitled to be recorded as Sirdar of the disputed plot. The relevant portions of the judgement of the D.D.C. are reproduced below :-
"nksuks i{kksa dks ;g Lohdkj gS fd mudk dsl jsgu ds vk/kkj ij ugha gS vr,o tgka rd oxZ 7 ds bUnzkt dk lEcU/k gS og mfpr ----------------
fuxjkuhdrkZ ds gd esa 1356 Q0 esa eqn~nr nks o"kZ ls bUnzkt gS vr,o 1357 Q0 essa mldh eqn~nr 3 o"kZ gks x;k vkSj gsjhMsVjh LoRo izkIr dj fy;kA pwafd 1356 Q0 dk bUnzkt >wBk ugha lkfcr fd;k x;k gS vr,o tehankjh mUewyu ds i'pkr~ 1362 Q0 esa fuxjkuhdrkZ us uD'kk uEcj 101 ls lhjnkjh Lo:i izkIr dj fy;k rFkk foi{kh dk LoRo uD'kk uEcj 103 ls lekIr gks x;kA"
(Emphasis added) The judgement and order dated 29.3.1976 passed by the D.D.C. has been challenged in the present writ petition.
5. In view of the recital made by the D.D.C. in his judgement and order dated 29.3.1976 regarding entries in 1356 Fasli and the fact that the said document was not mentioned in the list of documents filed in evidence before the C.O., this Court vide judgement and order dated 27.4.2011 directed the respondents to file a supplementary affidavit indicating as to whether such a document was brought on record before the C.O. or the S.O.C. at the time when the matter was heard. The order dated 27.4.2011 passed by this Court is reproduced below :-
"The issue in this case involves the claim of the right of the respondent Ram Pratap on the strength of adverse possession and the entries relied upon as indicated in the impugned order. The appellate order indicates a reference of Khasra and Khatauni of 1356 Fasli.
Sri R.N.Singh learned counsel for the petitioner contends that the recital in the order of the Consolidation Officer relating to description of the documents does not indicate the filing of any such Khasra and Khatauni of 1356 Fasli.
Sri Pandey learned counsel for the respondents may file a supplementary affidavit within 2 weeks indicating as to whether such document was bought on record before the Consolidation Officer or the Settlement Officer Consolidation at the time when the matter was heard.
List on 16th May, 2011."
6. A supplementary affidavit has been filed by respondent No. 2 stating that the records of the case have been destroyed, and therefore, he was not able to file either a copy of the aforesaid document i.e. revenue records of 1356 Fasli or any certificate to the effect that such a document was on record of C.O. or S.O.C. when the matter was heard, but has stated that, "from a perusal of the order dated 29.3.1976 passed by the D.D.C. it was evident that Khatauni and Khasra of 1356 Fasli were available on record at the time aforesaid order was passed by the D.D.C." It would be pertinent to note that the aforesaid averment is not a categorical statement regarding the query made by this Court vide its order dated 27.4.2011 as to whether any such document was filed by respondent No. 2 before the C.O. or the S.O.C. when the matter was heard by them. Further, there is no averment either in the counter affidavit or in the supplementary affidavit filed by respondent No. 2 that the C.O. and the S.O.C. had ignored the contents of the aforesaid document even though the same was filed before them. It is also pertinent to note that in the supplementary affidavit filed by him, respondent No. 2 has stated his inability to file a copy of Khasra of 1356 Fasli as it was not available in the concerned office. In the abovestated circumstance and the fact that the case is pending in this Court since 1976, the Court has proceeded to hear the case, on merits, without the aforesaid document and as would be evident from the reasons given subsequently in the judgement, the revenue records relating to 1356 Fasli are not necessary to decide the present case.
7. Challenging the order dated 29.3.1976 passed by the D.D.C. Shri M.K.S. Chandel, counsel for the petitioner has argued that revenue records relating to 1356 Fasli were not filed either before the C.O. or the S.O.C. or D.D.C. by respondent No. 2 and the findings recorded by the D.D.C. on the basis of alleged entries in revenue records relating to 1356 Fasli appear to have been made mechanically relying on the argument of learned counsel for respondent No. 2. It has been further argued by learned counsel for the petitioner that respondent No. 2 had not been able to prove the entries in the Khatauni of 1359 Fasli, and therefore, no right over the disputed plot vested in respondent No. 2 in pursuance to the said entries. It was further argued by counsel for the petitioner that Section 157 of the Act, 1950 was not relevant to decide the present case as the dispute between the parties related to position before the Act, 1950 and the D.D.C. has committed an error of law apparent on the face of record in setting aside the order of the S.O.C. relying on Section 157 of the Act, 1950 and by disregarding the minority of the petitioner in 1359 Fasli. It was also argued by counsel for the petitioner that the plea of adverse possession was, in the facts of the case, necessary to support the conclusion of D.D.C. that respondent No. 2 became hereditary tenant in 1357 Fasli and as the said plea was dropped by respondent No. 2 before the appellate and revisional court, the findings of D.D.C. regarding hereditary rights in favour of respondent No. 2 are without any evidence and the impugned order of the D.D.C. is vitiated by error of law apparent on the face of record so far as it holds that respondent No. 2 was entitled to be recorded as Sirdar of the disputed plot because he became hereditary tenant of the same in 1357 Fasli. It was further argued by counsel for the petitioner that the possession of the petitioner over the disputed plot was proved by his witness Jairam and by the petitioner himself and while passing the impugned order dated 29.3.1976, the D.D.C. has ignored the aforesaid oral testimonies of the petitioner's witness, and therefore, the order dated 29.3.1976 passed by the D.D.C. is vitiated due to non-consideration of relevant materials available on record and is therefore, liable to be set aside. Learned counsel for the petitioner has further argued that in his impugned order dated 29.3.1976, the D.D.C. exceeded his jurisdiction under Section 48 of the Act, 1953 by de-novo re-appreciating the evidence and assumed to itself the jurisdiction of a fact finding authority. In support of his arguments, counsel for the petitioner has relied upon the judgements reported in Ram Dular Vs. Deputy Director of Consolidation, Jaunpur & Others, 1994 (Suppl) 2 SCC 198, Ram Avadh & Others Vs. Ram Das & Others, 2008(8) S.C.C. 58, Bachan & Another Vs. Kankar & Others, (1972) 2 SCC 555, Smt. Sonawati & Others Vs. Sri Ram & Another, AIR 1968 SC 466. On the basis of the aforesaid argument the counsel for the petitioner has pleaded that the writ petition is liable to be allowed and the order dated 29.3.1976 passed by the D.D.C. is liable to be set aside.
8. Rebutting the argument of learned counsel for the petitioner, learned counsel for respondent No. 2 argued that by virtue of entries in the revenue records relating to 1356 and 1359 Fasli, respondent No. 2 was entitled to be recorded as Sirdar of the disputed plot and the order dated 29.3.1976 passed by the D.D.C. directing that respondent No. 2 be recorded as a Sirdar of the disputed plot is according to law. It has been argued by learned counsel for respondent No. 2 that the opinion of S.O.C. denying respondent No. 2 any right over the disputed plot despite entries in his favour in the revenue records relating to 1356 Fasli and on the ground of minority of the petitioner was contrary to law and the said findings of the S.O.C. were rightly set aside by the D.D.C. vide his order dated 29.3.1976 as the petitioner was not covered by Section 157(1)b) of the Act, 1950. It was further argued by learned counsel for respondent No. 2 that the findings recorded by the D.D.C. are findings of fact and are not subject to interference by this Court under Article 226 of the Constitution of India and, thus, the present writ petition is liable to be dismissed.
9. I have considered the rival submissions of learned counsel for the parties and perused the record.
10. Before proceeding to consider the legality of the impugned judgement of D.D.C., it would be relevant to take note of certain facts :-
(i) In his judgement and order dated 9.9.1974, the S.O.C. has recorded that during the proceedings in Appeal, the respondent No. 2 did not raise any plea of adverse possession and the said findings have not been controverted by respondent No. 2 in his counter affidavit filed in this Court and appears not to have been controverted by respondent No. 2 before the D.D.C. in Revision proceedings.
(ii) The findings recorded by the S.O.C. that the petitioner was a minor in 1359 Fasli was not controverted by respondent No. 2 either in the Revision filed by him against the aforesaid order or before this Court. The aforesaid findings recorded by S.O.C. have also not been set aside by the D.D.C. in his judgement and order dated 29.3.1976; and
(iii) In his judgement dated 9.9.1974, the S.O.C. has recorded that the entries in the Khatauni of 1359 Fasli were not proved by respondent No. 2. The aforesaid finding has also not been reversed by the D.D.C. Further, as would be evident from order dated 22.1.1974 passed by the C.O., the petitioner was recorded as Ziman 6 and respondent No. 2 was recorded as Ziman 20 in the Khatauni of 1359 Fasli.
11. As the plea of adverse possession was not pressed by respondent No. 2 before the S.O.C. and the D.D.C., the revenue records relating to 1364 Fasli to 1374 Fasli were not relevant for a decision on the rival claims of petitioner and respondent No. 2 before the Consolidation Courts and are also not relevant for a decision of the present writ petition. The only issue in the present writ petition is whether there was sufficient evidence before the D.D.C. to hold that respondent No. 2 was a Sirdar of the disputed plot and whether the impugned order of the D.D.C. holding respondent No. 2 entitled to be recorded as a Sirdar of the disputed plot merely on the basis of alleged entries in the revenue records of 1356 Fasli and 1359 Fasli is according to law?
12. In his judgement dated 29.3.1976, the D.D.C. has given the following reasons for accepting the claim of respondent No. 2 :-
(i) In his judgement dated 9.9.1974 the S.O.C. had admitted the possession of respondent No. 2 over the disputed plot,
(ii) The opinion of S.O.C. that no right vested in respondent No. 2 due to his alleged possession over the disputed plot as the petitioner was a minor before Abolition of Zamindari is not according to law because the petitioner was not entitled to benefit of Section 157 of the Act, 1950 as the father of the petitioner was alive at the relevant time; and
(iii) On the basis of entries in Revenue Records relating to 1356 Fasli, which were not proved to be incorrect, respondent No. 2 became a hereditary tenant in 1357 Fasli and also a Sirdar in 1362 Fasli.
13. The judgement of the D.D.C. does not reveal any organized line of reasoning leading to his conclusion regarding the rights of respondent No. 2. The attempt of D.D.C. to connect different and unrelated factors to accept the case of respondent No. 2 has only resulted in a confusion. The possession of respondent No. 2 over the disputed plot, entries in revenue records relating to 1356 Fasli, respondent No. 2 becoming a hereditary tenant in 1357 Fasli and the alleged position in 1362 Fasli are factors which collectively lead only to complications and no definite conclusion, but taken independently, on fulfilling the requirements of relevant statutory provisions, do result in settlement of Sirdari rights with the concerned person. The alleged possession of respondent No. 2 would have been relevant for any plea of adverse possession or rights flowing from entries in Khatauni of 1359 Fasli. The plea of hereditary rights over the disputed plots in 1357 Fasli are relevant for acquisition of Sirdari Rights under Section 19 of the Act, 1950 and entries in revenue records of 1356 Fasli would be irrelevant for the said purpose. The entries in revenue records of 1356 Fasli would be relevant for acquisition of Sirdari Rights under Section 240-B read with Section 20 of the Act, 1950. The relevance of the aforesaid factors in settlement of Sirdari Rights on the concerned person and whether the evidence available on record and referred in the judgement of different consolidation authorities, leads to the conclusion that respondent No. 2 became a Sirdar of the disputed plot and consequently the validity of reasons given by the D.D.C. and the legality of his order shall be considered subsequently in the judgement.
14. Before considering the significance of the factors enumerated in the order dated 29.3.1976 of the D.D.C., it would be appropriate to note that in his judgement dated 9.9.1974, the S.O.C. has not recorded any finding of possession in favour of respondent No. 2. The recital in the judgement dated 9.9.1974 of the S.O.C. regarding possession of respondent No. 2 in the context of the minority of the petitioner is merely a reference to the argument, probably, raised by respondent No. 2 before the S.O.C.In his judgement dated 9.9.1974, the relevant part of which has been reproduced in the previous paragraphs of this judgment, the S.O.C. has merely recited that 'even if Rampratap was in possession.....' The aforesaid phrase cannot be characterized as a finding of possession. In his judgement dated 29.3.1976, the D.D.C. has not recorded any independent finding of possession in favour of respondent No. 2 but has merely attributed the said finding to the S.O.C. The D.D.C. has misread the judgement of the S.O.C. while attributing to the S.O.C. the finding of possession in favour of respondent No. 2. However, the C.O. has recorded a finding of possession in favour of respondent No. 2 in his judgement dated 22.1.1974. But the aforesaid finding of the C.O., as would be evident from the judgement of C.O., is in the context of the plea of mortgage of disputed plot raised by respondent No. 2 before the C.O. On the basis of his aforesaid finding and apparently on the basis of entries in the revenue records of 1359 Fasli read with Section 21 of the Act, 1950, the C.O. directed that respondent No. 2 shall be retained in the revenue records as Asami of the disputed plot. The plea of mortgage was dropped by respondent No. 2 before the S.O.C. and D.D.C.
15. The conditions under which any person is etitled to take or retain possession as Sirdar of any land are provided in Section 19 and Section 20 read with Section 240-B of the Act, 1950 as well as under U.P. Land Reforms (Supplementary) Act 31 of 1952 (hereinafter referred to as, 'Act, 1952') read with Section 240-B of the Act, 1950. Under Section 19 of the Act, 1950 the nature of tenancy as existing on the date immediately preceding the date of vesting, i.e. 1.7.1952, is relevant while entries in Revenue Records relating to 1356 Fasli and 1359 Fasli are relevant under the Act, 1952 and Sections 20 read with Section 240-B of the Act, 1950 respectively.
16. Whether respondent No. 2 was entitled to be recognized as Sirdar of disputed plots on the ground that he became a hereditary tenant of the disputed plot in 1357 Fasli? Consideration of the aforesaid issue would also a require a consideration of the question whether, on the evidence available on record, the D.D.C. had rightly held that respondent No. 2 became a hereditary tenant of the disputed plot in 1357 Fasli.
17. Section 19 of the Act, 1950 is reproduced below :-
"19. Land in the holdings to be settled with the tenants thereof as sirdar. - All land held or deemed to have been held on the date immediately preceding the date of vesting by any person as-
(i) a tenant holding on special terms in Avadh;
(ii) an ex-proprietary tenant;
(iii) an occupancy tenant;
(iv) a hereditary tenant;
(v) a grantee at favourable rate of rent;
(vi) a non-occupancy tenant of tea estates notified as such in a notification issued under sub-section (5) of Section 30 of the United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939);
(vii) a sub-tenant referred to in sub-section (4) of Section 47 of the United Provinces Tenancy Act, 1939, [and];
(viii) [* * *]
(ix) all land referred to in Section 17 held on the said date by any person on Patta Dawami or Istamrari, shall save in cases provided for in Clause (d) of sub-section (1) of Section 18, be deemed to be settled by the State Government with such person, who shall subject to the provisions of this Act, be entitled, except as provided in sub-section (2) of Section 18, to take or retain possession as a sirdar thereof."
(Emphasis added) Section 18(1)(d) of the Act, 1950 refers to an occupancy tenant, a hereditary tenant and a tenant on Patta Dawami or Istamrari possessing the right to transfer the holidng by sale and is not relevant for the present case. By force of Section 19 of the Act, 1950, the respondent No. 2 would have been entitled to take or retain possession of the disputed plot as Sirdar if he held or could be deemed to have held the disputed plot as hereditary tenant on the date immediately preceding the date of vesting.
18. In his judgement dated 29.3.1976, the D.D.C. held that by virtue of entries in revenue records relating to 1356 Fasli, respondent No. 2 acquired hereditary rights in the disputed plot in 1357 Fasli. Hereditary rights in 1357 Fasli could be acquired under the U.P. Tenancy Act, 1939. Sections 29 and 180 of the Act, 1939 are relevant for the purpose and are reproduced below :-
"Section 29. Hereditary Tenants.- Every person belonging to one or another of the following classes shall be a hereditary tenant, and subject to any contract which is not contrary to the provisions of Section 4, shall be entitled to all the rights conferred, and be subject to all the liabilities imposed on hereditary tenants by this Act, namely :
(a) every person who is at the commencement of this Act, a tenant of land otherwise than a permanent tenure-holder, a fixed-rate tenant, a tenant holding on special terms in Oudh, an ex-proprietary tenant, an occupancy tenant, or except as otherwise provided in this Act, as a sub-tenant as a tenant or a tenant of sir,
(b) every person who is, after the commencement of this act admitted as a tenant, otherwise than as a tenant of sir or as a sub-tenant ;
(c) every person, who in accordance with the provisions of this Act, acquires hereditary rights.
(Explanation : For the purposes of this section, ''sub-tenant' does not include a person who holds land from a relation, dependent or servant of the land-holder, unless such relation, dependent or servant proves to the satisfaction of the court that he is a genuine tenant of such land and has not been admitted to prevent the accrual of hereditary rights in favour of such persons.)"
Section 180. Ejectment of person occupying land without consent. - (1) A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenant :
Provided that, notwithstanding the provisions of sub-section (1) of Section 246, where such a person taking or retaining possession is one of the co-sharers whose joint consent is required to bring such suit, he shall not be required to join as plaintiff in the suit. In such a case, the decree passed in favour of the plaintiff shall be deemed to be in favour of all such co-sharers.
Explanation I. - A co-sharer in the proprietary rights in a plot of land taking or retaining possession of such plot without the consent of the whole body of co-sharers or of an agent appointed to act on behalf of all of them, shall be deemed to be in possession of such plot otherwise than in accordance with the provisions of the law within the meaning of this section.
Explanation II. - A tenant entitled to sub-let a plot of land in accordance with the provisions of the law for the time being in force may maintain a suit under this section against the person taking or retaining possession of such plot otherwise than in the circumstances for which provision is made in Section 183.
(2) If no suit is brought under this section, or if a decree obtained under this section is not executed, the person in possession shall become a hereditary tenant of such plot, or if such person is a co-sharer, he shall become a khudkasht holder, on the expiry of the period of limitation prescribed for such suit or for the execution of land decree, as the case may be.
Provided that where the person in possession cannot be admitted to such plot except as sub-tenant by the person entitled to admit, the provisions of this sub-section shall not apply until the interest of the person so entitled to admit is extinguished in such plot under Section 45(f)."
(Emphasis added) The respondent No. 2 could have acquired hereditary rights under Section 180(2) read with Section 29(c) of the Act, 1939.
19. However, it is apparent from Section 180(2) of the Act, 1939 that to claim any right from the said provision, the person in possession would have to raise a plea of adverse possession. As recorded earlier, the respondent No. 2 dropped the plea of adverse possession before the S.O.C. and did not raise it before the D.D.C. Further, any right arising from Section 180(2), i.e. due to the failure of the landholder to file a suit for eviction, would mature only on the expiry of the period of limitation prescribed for such suit. The period of limitation was prescribed in the Fourth Schedule of Act, 1939. However, the period of limitation prescribed in Act, 1939 for filing a suit under Section 180 of the Act, 1939 has to be read with Sections 6 and 8 of Indian Limitation Act, 1908 (hereinafter referred to act, 'Act IX of 1908').
20. Sections 6 and 8 of Limitation Act, 1908 are reproduced below :-
"6. Legal disability.--(1) When a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third Column of the first schedule.
(2) Where such person is, at the time from which the period of limitation is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period, after both disabilities have ceased, as would otherwise have been allowed from the time so prescribed.
(3) Where the disability continues up to the death of such person, his legal representative may institute the suit or make the application within the same period after the death as would otherwise have been allowed from the time so prescribed.
(4) Where such representative is at the date of the death affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply.
8. Special exceptions.-- Nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or application made.
The petitioner was a minor in 1359 Fasli and under a legal disability. Thus, the period of limitation for the petitioner to file a suit under Section 180(i) of the Act did not expire till 1359 Fasli and the right of the petitioner to file such a suit by virtue of Section 8 of Act, IX of 1908 survived till three years after his attaining majority. Thus, in any case, the respondent No. 2 could not have acquired hereditary rights in 1357 Fasli by operation of Section 180(1) of Act, 1930 and the contrary opinion of the D.D.C. is clearly erroneous. The reference by the D.D.C. in his impugned judgement to Section 157 of the Act, 1950 was misconceived as Section 157 is applicable on lease of land after Act, 1950 came in operation and is not relevant for the present case.
21. At this stage it would also be relevant to consider Section 16 of the Act, 1950. Section 16 of the Act, 1950 is reproduced below :-
"16. Occupant of land in which no superior rights exist to be a hereditary tenant.- Every person who was recorded as occupant of any land-
(i) in a record revised under Chapter IV of the United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901), or corrected by an officer specially appointed by the State Government for the correction of annual registers in any tract and who on the date immediately preceding the date of vesting, was in possession of the land or was entitled to regain possession thereof under Clause (c) of sub-section (1) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947); or
(ii) in the record of rights prepared under Clause (e) of Section 32 of the United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901) for the year 1356 fasli and who, on the date aforesaid, was in possession of the land, shall be deemed to be a hereditary tenant of the land liable to pay rent on the said date at rates applicable to such tenants.
Explanation. - For the purposes of this section the term "land" does not include-
(i) land recorded as sir and land recorded as khudkasht but which had, under the provisions of the United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939), acquired the character of sir, of-
(a) an intermediary paying Rs. 250 or less annually as land revenue or, where no land revenue is assessed in whole or part, is assessed to a local rate which would be payable on a land revenue not exceeding Rs. 250 annually, [or and under proprietor, sub-proprietor or permanent tenure-holder payable Rs. 250 or less annually as rent]; or [(b) an intermediary who, on the date of vesting, was a person belonging to any of the classes specified in Clauses (i) to (vi) of sub-section (2) of Section 10],
(ii) land recorded as grove land; or
(iii) land included in the holding of-
(a) a person referred to in Clauses (i) to (vi) of Section 19;
(b) a fixed-rate tenant; or
(c) a rent-free grantee; or
(d) a tenant on Patta Dawami or Istamrari referred to in Section 17.
(Emphasis added) A reading of Section 16 would show that under the aforesaid provisions a person shall be deemed to be a hereditary tenant only if he was in possession of the land on the date immediately preceding the date of vesting or entitled to regain possession thereof under Section 27(c) of the U.P. Act No. X of 1947. Section 27 of the U.P. Act No. X of 1947 is reproduced below :-
"27. Reinstatement of certain ejected tenants.--(1) If, on or after the first day of January, 1940, any person was ejected from his holding or any part thereof-
(a) under section 165 of the said Act for the non-payment of any amount not exceeding one fourth of his annual rent after taking into account the payment, if any, made by him outside the court, provided that such payment is supported by a receipt, or
(b) under section 171 of the Act, otherwise than on the ground of an illegal transfer by way of sale or gift, or
(c) under section 180 of the said Act notwithstanding his having been recorded as an occupant after the first day of January, 1938 in a record revised under Chapter IV of the United Provinces Land Revenue Act, 1901, or corrected by an officer specially appointed by Government for the correction of annual registers in any tract, he may apply, within six months from the date of the commencement of this Act, to the Court, which passed the decree for his ejectment for reinstatement in such holding or part thereof, as the case may be:
Provided that if such holding or part thereof was subject to a mortgage on the date of ejectment under section 171 of the said Act, the mortgagor and not the mortgagee shall be entitled to apply for re-instatement under this sub-section.
It is not the case of respondent No. 2 that he was entitled to regain possession of disputed plot under Section 27(c) of the Act No. X of 1947. As stated earlier there is no finding either by the S.O.C. or D.D.C. that the respondent No. 2 was in possession of the disputed plot on the date immediately preceding the date of vesting i.e. 1.7.1952. The alleged entries in favour of respondent No. 2 in Khatauni of 1359 Fasli were not proved by respondent No. 2. Further, petitioner was recorded in Ziman 6 in Khatauni of 1359 Fasli, i.e. as occupancy tenant. A perusal of Explanation (iii) (a) to Section 16 read with Section 19(iii) of the Act, 1950 shows that Section 16 is not applicable on lands held by occupancy tenant and respondent No. 2 cannot be deemed to be a hereditary tenant of the disputed plot. Thus, the opinion of D.D.C. that hereditary rights in the disputed plots accrued in favour of respondent No. 2 and he consequently became a Sirdar of the same cannot be sustained. It is also noticeable that, from the records, it appears that before the C.O. and the S.O.C., no plea was taken by respondent No. 2 that he had acquired hereditary rights over the disputed plot in 1357 Fasli and the plea, appears to be raised, for the first time, before the D.D.C.
22. The other statutory provisions on which the respondent No. 2 can rely to claim himself as Sirdar of disputed plots are Sections 240-A and 240-B of the Act, 1950. The D.D.C. has relied on alleged entries in revenue records of 1356 Fasli in favour of respondent No. 2 to accept his claim of being a Sirdar of disputed plot. The reference to 1362 Fasli in the impugned judgement of D.D.C. appears to be for application of Sections 240-A and 240-B (a) of the Act, 1950 added by U.P. Act No. 20 of 1954. The entries in revenue records of 1356 Fasli are relevant under Section 20 of the Act, 1950 which, in the circumstances narrated in the said provision, entitles a person to retain possession of any land as Adhivasi.
23. In order to be a Sirdar under Section 240-B (a) of the Act, 1950, the concerned person should have been an Adhivasi or deemed to have been an Adhivasi on the appointed date, i.e. the date specified in the notification issued by the State Government and published in the official gazette under Section 240-A of the Act, 1950 which was 30.10.1954. Section 240-A and 240-B (a) of the Act, 1950 are reproduced below :-
"240A. Acquisition of rights, title and interest of land-holder in the land held by adhivasi. - (1) As soon as may be after the commencement of the U.P. Land Reforms (amendment) Act. 1954. the State Government may, by notification published in the official Gazette, declare that as from a date to be specified therein the rights, title and interest of the land-holder in the land which, on the date immediately preceding the said date, was held or deemed to be held by an adhivasi, shall as from the beginning of the date so specified (hereinafter called the appointed date), shall cease and vest, except as hereinafter provided, in the State free from all encumbrances.
(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time the notification referred to in sub-section (1) in respect only of such area or areas as may be specified and all the provisions of subsection (1) shall be applicable to and in the case of every such notification.
240B-(a) every person who, on the date immediately preceding the appointed date, was or has been deemed to be an adhivasi shall with effect from the appointed date, become [bhumidhar with non-transferable rights] of the land referred to in Section 240-A and held by him as such and shall have all the rights and be subject to all the liabilities conferred and imposed upon [bhumidhars with non-transferable rights] by or under this Act;"
A reading of Sections 240-A and 240-B of Act, 1950 shows that in order to successfully claim himself a Sirdar of any land the concerned person has to establish that, on the appointed date, he was holding land as an Adhivasi. A person was deemed to be an Adhivasi or entitled to retain possession of any land as Adhivasi under Section 20 of the Act, 1950 and Section 3 of the Act, 1952.
24. The claim of Sirdari Rights on the basis of entries in the Khatauni of 1359 Fasli is based on Section 3 of the Act, 1952, whereby a person is recognized as Adhivasi and consequently becomes a Sirdar under Section 240-B of the Act, 1950 with effect from 30.10.1954. Section 3 of the Act, 1952 is reproduced below :-
"(1) Every person who was in cultivatory possession of any land during the year 1359 fasli but is not a, person who as a consequence of vesting under Section 4 'of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951) (hereinafter referred to as the said Act), has become a bhumidhar sirdar, adhivasi or asami under Sections 18 to 21 of the said Act shall be and is hereby declared to be, with effect from the appointed date-
(a) if the bhumidhar or sirdar- of the land was, or where the land belongs jointly to two or more bhumidars or sirdars, all of them were, on the appointed date person or persons referred to in item (i) to (vi) of sub-section (2) of Section 10 of the said Act, an asami from year to year, or
(b) if the bhumidhar or sirdar was not such a person, an adhivasi, and shall be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi, as the case may be, by or under the said Act. Explanation-A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar sirdar, adhivasi or asami concerned in the actual performance of agricultural operations."
(Emphasis added)
25. It was held in Smt. Sonawati (Supra), that in order to claim the benefit of Section 3 of the Act, 1952, a person claiming the status of an asami or an adhivasi must establish that he was in cultivatory possession of the land during the year 1359 Fasli and the said possession must be lawful and for the whole year of 1359 Fasli. A trespasser or a person who had no right to be in possession, by merely entering upon the land forcibly or surreptitiously, cannot be said to be a person in cultivatory possession within the meaning of Section 3 of Act 1952. The relevant extracts from paragraphs 7 and 9 of the aforesaid judgement are reproduced below:-
"7. The section appears to be somewhat involved in its phraseology. But its purport is fairly clear. A person who is not in consequence of the provisions of Section 18 to 21 of the U.P. Act 1 of 1951 a bhumidhar, sirdar, adhivasi or asami but who is in "cultivatory possession" of land during 1359 Fasli shall be entitled to the rights in respect of that land of an asami from year to year if the bhumidhar or sirdar of the land was on the appointed date a person who is referred to in item (i) to (vi) of Section 10(2) of the U.P. Act 1 of 1951, and he shall be entitled to the rights of an adhivasi if the bhumidhar or sirdar of the land was not a person referred to in items (i) to (vi) ofSection 10(2). The U.P. Act 31 of 1952 was enacted to grant protection to certain persons who had been in "cultivatory possession" of land in the holdings of bhumidhars or sirdars, and had been or were being forcibly evicted from the land by the tenure holders. The language of the section clearly shows that it was intended to grant the rights of an asami or adhivasi according as the case fell within cl. (a) or cl. (b) to a person who had been admitted to cultivatory possession and who was in such possession in 1359 Fasli.
9. The expression "cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recognized for the purpose of the Act must be lawful, and for the whole year 1359 Fasli. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of Section 3 of U.P. Act 31 of 1952. We are of the view that the Allahabad High Court was right in holding in Ram Krishna v. Bhagwan Baksh Singh (2) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal v. Muloo and others (3) that occupation by a wrongdoer without any right to the land is "cultivatory possession" within the meaning of s. 3 of the U.P. Act 31 of 1952."
(Emphasis added)
26. A perusal of the above extracts from the judgement of Smt. Sonawati (Supra), shows that in order to claim Adhivasi and consequently Sirdari Rights under Section 3 of the Act, 1952 read with Section 240-B of the Act, 1950, the claimant should be 'admitted' to cultivatory possession of the land and should not be a trespasser on the same. The alleged possession of respondent No. 2 over the disputed plot was classified as Ziman 20 in the revenue records of 1359 Fasli, i.e. occupiers of land without the consent of the persons, if any, entered in Column 5 of the Khasra. Evidently a person in possession of land and classified as Ziman 20 can not claim the benefit of Act, 1952. Thus, provisions of Act, 1952 are not helpful to respondent No. 2 regarding any plea of having acquired Adhivasi and subsequently Sirdari Rights over the disputed plot.
27. The claim of respondent No. 2 on the basis of alleged entries in revenue records of 1356 Fasli would be relevant under Section 20 of the Act, 1950. Section 20 of the Act, 1950 is reproduced below :-
"20. A tenant of Sir, sub-tenant or an occupant to be an adhivasi. - [Every person who-
(a) on the date immediately preceding the date of vesting was or has been deemed to be in accordance with the provisions of this Act]-
(i) except as provided in [sub-clause (i) of Clause (b)], a tenant of sir other than a tenant referred to in Clause (ix) of Section 19 or in whose favour hereditary rights accrue in accordance with the provisions of Section 10; or
(ii) except as provided in [sub-clause (i) of Clause (b)], a sub-tenant other than a sub-tenant referred to in proviso to sub-section (3) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947), or in sub-section (4) of Section 47 of the United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939) of any land other than grove land,
(b) was recorded as occupant,-
(i) of any land [other than grove land or land to which Section 16 applies or land referred to in the proviso to sub-section (3) of Section 27 of the U.P. Tenancy (Amendment) Act, 1947] in the khasra or khatauni of 1356-F prepared under Section 28 [33] respectively of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901), or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under Clause (c) of sub-section (1) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947); or
(ii) of any land to which Section 16 applies, in the [khasra or khatauni of 1356 fasli prepared under Sections 28 and 33 respectively of] the United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901), but who was not in possession in the year 1356-F;
shall, unless he has become a bhumidhar of the land under sub-section (2) of Section 18 or an asami under Clause (h) of Section 21, be called adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof.
Explanation I. - Where a person referred to in Clause (b) was evicted from the land after June 30, 1948, he shall notwithstanding anything in any order, be deemed to be a person entitled to regain possession of the land.
Explanation II. - Where any entry in the records referred to in Clause (b) has been corrected before the date of vesting under or in accordance with the provisions of the U.P. Land Revenue Act, 1901 (U P. Act III of 1901), the entry so corrected shall for the purposes of the said clause, prevail].
Explanation III. - For the purposes of Explanation II an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent Court requiring any correction in records had been made before the said date and had become final even though the correction may not have been incorporated in the record.
Explanation IV. - For purposes of this section 'occupant' as respects any land does not include a person who was entitled as an intermediary to the land or any share therein in the Year 1356 fasli."
(Emphasis added) Before considering the applicability of the aforesaid provisions in the present case, it would be appropriate to refer to certain judgements explaining the nature of entries required in the revenue records of 1356 Fasli and their significance for recognizing a person as Adhivasi under Section 20 of the Act, 1950.
28. In Smt. Sonawati (Supra), the Supreme Court while dealing with the entries, which confer on any person the right to retain or regain possession of land as Adhivasi under Section 20 of the Act, 1950 held that the claimant should be recorded as an occupant after an enquiry by the concerned Patwari who after being satisfied about the status of the person as occupant shall enter his name in red ink in the Khasra as Kabiz, Sajhi etc. The relevant portion of the aforesaid judgement is reproduced below :-
"The land in dispute is not grove land, nor it is land to which Section 16 of the Act applies. Pritam Singh claimed that his name was entered as an occupant in the khasra of 1356 Fasli prepared under the U.P. Land Revenue Act, 1901, and he was on that account entitled to the rights of an adhivasi in respect of the land. It was held by this Court in Amba Prasad v. Abdul Noor Khan and Others(1) that Section 20 of U.P. Act 1 of 1951 does not require proof of actual possession: it eliminates inquiries into disputed possession by accepting the record in the khasra or khatauni of 1356 Fasli or its correction before July 1, 1952. In view of that decision it must be held that the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant.
But the entries on which reliance was placed by Pritam Singh do not support his case that he was recorded as an occupant in the khasra or khatauni of 1356 Fasli. In the certified extract of the khasra for 1356 Fasli (Ext. A/ 1) tendered in evidence by Pritam Singh in the Column 'Name and caste of cultivator' the entry is "Tota Ram and others" and in the Column for 'remarks' the entry is "Pritam Singh s/o Pyarelal of Sankuri". Our attention has not been invited to any provision of the U.P. Tenancy Act or instructions issued by the Revenue authorities which tend to establish that the name of an occupant of land is liable to be entered in the Column reserved for 'remarks'. In order that a person may be regarded as an adhivasi of a piece of land, Section 20(b) of Act 1 of 1951 requires that his name must be recorded in the khasra or khatauni for 1356 Fasli as an occupant. The Assistant Collector has pointed out that according to paragraph 87 of the Land Records Manual it is necessary for a Patwari to make an enquiry about the status of the occupant, and if he thinks that a claimant is an occupant, he should enter the name in red ink in khsra as-"Kabiz, sajhi etc.". Admittedly Pritam Singh was not shown as Kabiz or sajhi nor was the entry posted in red ink."
(Emphasis added)
29. Similarly, in Bachan (Supra) the Supreme Court held that entries which are not genuine and are incorrectly introduced into the records, cannot confer Adhivasi Rights on the claimant. The relevant portion of the aforesaid judgement from paragraph 17 and 19 of the reports is reproduced below :-
"The rulings of this Court establish that the decision of the learned Single Judge as well as that of the Division Bench of the Allahabad High Court is erroneous. Section 20 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 speaks of a person recorded as occupant to become adhivasi of the land and to be entitled to take or retain possession as mentioned in the section. One of the principal matters mentioned in the section is that the khasra or khatauni 'of 1356 Fasli is to be prepared under sections 28 and 33 of the U.P. Land Revenue Act, 1901. The U.P. Land Records Manual in Chapter A-V in paragraphs A-55 to A-67 lays down the manner in which the khasra or the field book showing possession is to be prepared by the Patwari in the areas to which Zamindari Abolition and Land Reforms Act, 1950 applies. There are detailed instructions about the manner in which the enquiry should be carried out about actual possession, and change in possession and corrections in the map and field book, and the form in which the khasra is to be prepared. The form of khasra is given in paragraph A-80. The form shows that the Lekhipal has to prepare a consolidated list of entries after partial or proper investigation. Again, paragraphs A-70 to A-73 of the U.P. Land Records Manual show how entires have to be made in khataunis every year showing the nature of tenure of each holder. The khatauni is meant to be a record of tenure holders. The manner of changes to be made there is laid down in paragraphs A-82 to A-83. Entries are to be checked. Extract has to be sent to the Chairman, Land Management Committee as contemplated in paragraph A-82(iii). In this context section 20 (b) (i) of the U.P. Zamindari Abolition and Land Reforms, Act which speaks of the record "as occupant" in the khasra or khatauni of 1356 Fasli refers to the khasra or khatauni being prepared in accordance with the provisions of the Land Revenue Act, 1901. Khasra is the field book provided for by section 28 of 'the Land Revenue Act. Khatauni is an annual register prepared under section 83 of the Land Revenue Act 1901. It has to be emphasised that the entry under section 20 (b) (i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 in order to enable a person to obtain adhivasi rights must be an entry under the provisions of law.
This Court has held that entries which are not genuine cannot confer adhivasi rights. The High Court wrongly held that though the entry was incorrect it could not be said to be fictitious. It is too obvious to be stressed that an entry which is incorrectly introduced into the records by reason of ill-will or hostility is not only shorn of authenticity but also becomes utterly useless without any lawful basis."
(Emphasis added)
30. In Basdeo and Others Vs. Board of Revenue and Others, AIR 1974 All 337, a Full Bench of this Court while answering the question whether an entry not made in accordance with the prescribed rules could still be deemed to be an entry of recorded occupant, held that the record as an occupant, in order to confer Adhivasi rights should have been made in accordance with the provisions of the Land Revenue Act and the U.P. Land Records Manual (hereinafter referred to as, 'Manual') governing the making of an entry of an occupier. The entry must be genuine and not fictitious, otherwise it would not be an entry recording a person as occupant within meaning of Section 20 (b) (i) so as to confer adhivasi rights. The Court after noticing that Khasras and Khataunis have to be prepared in accordance with the Rules framed under Section 234 of the Land Revenue Act, 1901 (hereinafter referred to as, 'Act, 1901) and the fact that Khatauni has to specify the nature and class of tenure of the person cultivating or otherwise occupying land also noticed that occupiers of land mentioned in Class 20, were those who were not holders of any recognized tenure and were recorded in Column 6 of the Khasra. Extracts from the aforesaid judgement of the Full Bench of this Court are being reproduced in detail as the same contains reference to different clauses of the Manual. Paragraph Nos. 20 to 29 of the aforesaid judgment are reproduced below :-
"20. Under Paragraph 84 of the Manual if the lekhpal finds that a person whose name has not been previously recorded is in cultivatory possession and someone else is recorded in Column No. 5 he shall enquire how such person has obtained possession. If he finds that such person is a usufructuary mortgagee of the holding or sajhidar of the person recorded in Column 5, he will follow the procedure laid down in paragraphs 79 and 83. If he finds that the person recorded in Column 5 has died and such person is his heir, he will take steps to enter the heir's name in Column 5, according to the procedure laid down in Paragraph 82. If the lekhpal finds that such person holds a sub-lease from the person recorded in Column 5, he will follow the procedure laid down in paragraph 87 (3). If the Lekhpal finds that such person does not fall in any of the classes mentioned above and the person recorded in Column 5 belongs to class (10) or (10A) in Agra, and in Avadh to class (5) or (5A) of the Khatauni, the Lekhpal shall substitute for the recorded person the name of the actual occupier in Column 5 in red ink. If the person recorded in Column 5 is a tenant of any class other than these or is a grove-holder or a grantee under class (11) in Agra or class (6) in Avadh, the Lekhpal shall follow the procedure laid down in paragraphs (b) to (d) given below that Paragraph.
21. Paragraphs (b) to (d) give detailed procedure for enquiring and making of an entry. The entries are made in red ink with "Dawedar Qabiz" added. The entry is made in the remarks Column only provisionally and pending the completion of the enquiry.
22. Paragraph 85 deals with holdings abandoned by tenants. In such cases if a stranger is in occupation, the actual cultivator is entered in the remarks Column, preceded by the word "Qabiz". In such a situation the tenant's name is mentioned in Column 5, with the addition of the word "Farar" in red ink.
23. Paragraph 87 deals with entries of sub-tenants and others (Column (6)). Sub-paragraph (1) provides that in Column 6 of the Khasra will be entered persons of the following descriptions :
(a) Tenants under permanent tenure-holders in Agra (Class 16 of the Khatauni).
(b) Tenants of Sir, Tenants of Khudkasht (in Agra class 17 and in Avadh class 10 of the Khatauni).
(c) Tenants under rent-free grantees and grantees at a favourable rate of rent (in Agra class 18 and in Avadh class 10A of the Khatauni).
(d) Sub-tenants (in Agra class 19 and in Avadh class 11 of the Khatauni).
(e) Occupiers of land without the consent of the person whose name is entered in Column 5 of the Khasra (in Agra class 20 and in Avadh class 12 of the Khatauni).
Sub-paragraph (iii) provides that-
"If there was no entry in Column 6 of the Khasra in the preceding year and the lekhpal finds at the time of partal some person belonging to one of the classes mentioned in sub-paragraph (i) in cultivatory occupation of the land, he will enter in Column 6 in red ink the name, parentage and rent, if any, of such person together with his status:
Provided that he shall not record any such person as belonging to class (a), (b), (c) or (d) of sub-paragraph (i) unless he is satisfied by an enquiry from the parties concerned that a contractual relation of landholder and tenant exists between them. If he is not so satisfied, he shall record the person as belonging to class (e). Pending such enquiry the Lekhpal shall note the name and parentage of such person in the remarks Column of the Khasra."
24. It will thus be seen that where no one is entered in Column 6, a person claiming to be in cultivatory occupation without the consent of the person whose name is entered in Column 5 has to be entered in Column 6 in red ink and his status has also to be entered in that Column. If such person claims to be a tenant of the kind mentioned in classes (a) to (d) of sub-paragraph (i) and if the Lekhpal is not satisfied that he belongs to one of those classes, he will be recorded as an occupier belonging to class (e), and pending such inquiry his name is to be noted in the remarks Column of the Khasra. Obviously if after the enquiry the lekhpal is satisfied that he is a tenant mentioned in class (a), (b), (c) or (d) he will be mentioned as such in Column 6, otherwise his name shall be entered in Column 6 in red ink together with his, status, that is, as "Occupier of the land."
25. Sub-paragraph (iv) of Paragraph 87 provides for a case where an entry already exists in Column 6 of the Khasra and the Lekhpal finds at his partal that some person other than the recorded person is in cultivatory occupation of the land. Clauses (a) to (d) of sub-paragraph (iv) give detailed instructions with regard to various contingencies which may arise. Clause (d) deals with the situation where the occupier claims to be recorded in Column 6 to the exclusion of the recorded person. In that case the Lekhpal has to proceed as follows :--
(i) If the recorded person belongs to class (b), (d) or (e) of sub-paragraph (i), the lekhpal will substitute the name of the actual occupier in place of the name of the recorded person but he shall not enter the new name in class (b) or class (d) unless the conditions laid down in the proviso to sub-paragraph (iii) are fulfilled. If he finds that a contractual relationship has not arisen between the occupier and the person entitled to sublet he will treat the occupier as belonging to class (e).
(ii) If the recorded person belongs to class (a) or (c) of sub-paragraph (i), the lekhpal shall provisionally enter in red ink the name of the actual occupier in the remarks Column of the khasra and shall proceed, as far as possible, as laid down in sub-paragraphs (b) to (d) of paragraph 84, provided that in a case falling under class (d) the name and other particulars of the actual occupier with the words "Qabiz Dawedar" shall be entered below the name and other particulars of the person already recorded in Column 6."
26. Thus the Lekhpal has to make an enquiry whether a contractual relationship of landholder and tenant arises between the person in cultivatory occupation and the person entered in Column 5. If he is not so satisfied, then the person in cultivatory occupation is to be entered in Column 6 in red ink, and in cases covered by Clause (ii) of sub-paragraph (iv) (d), with the words "Kabiz Dawedar" added.
27. It is evident that the Land Records Manual gives detailed instructions to the Lekhpal as to how and when is he to record the person as occupier of land. Reading paragraphs 79, 84 and 87 together it is evident that the Lekhpal is to enter the usufructuary mortgagee of an occupancy tenant in the remarks Column with the word "mortgagee" added. If he finds that a person is an occupier of land without consent, he is to be entered in Column 6 in red ink and in some cases with the words "Kabiz Dawedar" added. The Lekhpal is not authorised to record the name of an "occupier" in the remarks Column as a mortgagee,
28. If a person has been recorded as mortgagee in the remarks Column, it is an entry which, consistently with the rules contained in the Land Records Manual, cannot be treated as an entry recording him as an occupier or occupant. Since the rules require the Lekhpal to make an inquiry into the status as well as nature of the rights possessed by a person in cultivatory occupation of land before recording an entry, it is evident that Sections 28 and 33 of the Land Revenue Act read in the light of the rules framed thereunder do not contemplate that an entry made by the lekhpal is to be read or construed in the light of the findings that may be given by the Courts subsequently. Since the entries are to be made after the requisite enquiry contemplated by the rules, the entries must be read and construed as required by those rules.
29. In the present case the entry is in the remarks Column and with the word 'mortgagee' added against the name. The entry can be read only as indicating that the person was recorded, in accordance with the provisions, as a mortgagee. Such an entry is not an entry recording him as occupant. Record as an occupant is authorised to be made in special circumstances and after proper enquiry and in accordance with the provisions of paragraphs 84 and 87. An entry made in accordance with those provisions alone can be read as recording a person as an occupant. Similarly any entry recording a person as a sub-tenant in Column 6 while entering another as mortgagee in the remarks Column is an entry in accordance with the last clause of paragraph 79 of the Land Records Manual. It is an entry recording him as a sub-tenant from the mortgagee. It is not an entry recording him as an occupant."
(Emphasis added)
31. It is evident from the extracts of different judgements reproduced above that a person can claim Adhivasi Rights on the basis of entries in the revenue records (Khasra/Khatauni) relating to 1356 Fasli only if he is recorded as an occupant in the aforesaid document in accordance with the procedure prescribed in the Manual. A reading of paragraph 87 of the Manual shows that the name of occupier has to be recorded in red-ink in Column 6 after due enquiry by the Lekhpal, who shall satisfy himself as to the person in occupation of the land as well as the nature of the occupation before recording the said person as Kabiz/Sajhi etc. in red ink. The said enquiry would be occasioned if during partal the Lekhpal finds some person in cultivatory occupation and there was no entry in Column 6 of the Khasra in preceding years or there is some other person in occupation. It is also evident from the observations of Supreme Court in Smt. Somwati (Supra) that the entry of the occupant in 'remarks' Column would not confer any right on the alleged occupant. As pointed out by the Full Bench of this court in Basdeo (Supra) that entries regarding status of the occupant in 'remarks' Column of the Khasra are only provisional pending enquiry by the Lekhpal, who after completing the enquiry, shall record the status of the occupier in red ink in Column 6 of the Khasra. Reading Smt. Somwati (Supra) with Basdeo (supra), it is evident that so far as Khasra is concerned, only an entry in Column 6 regarding the status of the occupant would be relevant to decide the claim of Adhivasi rights under Section 20 of the Act, 1950. As a corollary, any order or judgement of any Court or authority accepting the plea of any person regarding his Adhivasi rights over any land and derived from entries in the revenue records of 1356 Fasli, has to record the nature of entries, the Column in which the claimant is recorded, the prima-facie satisfaction of the Court that the entries were not fictitious and the record had been prepared after following the procedure prescribed in the Manual, i.e. after due enquiry by the concerned Lekhpal or any other revenue officer. Failure of the concerned Court or authority to do so would only disclose a casual and mechanical approach and a non-application of mind on the part of the concerned Court or authority exposing it to interference by a Superior Court or authority.
32. A perusal of the judgement dated 29.3.1976 passed by the D.D.C. would show that it fails to confirm to the abovestated requirements. In his impugned judgement, the D.D.C. has neither referred to the nature of entries in the revenue records of 1356 Fasli allegedly in favour of respondent No. 2 or the Column in which respondent No. 2 is recorded as an occupant. Further, no prima-facie satisfaction has been recorded by the D.D.C. regarding the legality of alleged entries in favour of respondent No. 2 in the revenue records relating to 1356 Fasli and that the said entries were made after following the procedure prescribed in the Manual. The aforesaid findings and satisfactions were necessary in view of the oral testimony of the petitioner. The oral testimony of the petitioner before the C.O. has been annexed as Annexure-5 to the writ petition. The contents of the aforesaid annexure have not been denied by respondent No. 2 in his counter affidavit. In his testimony, the petitioner stated that he was never served any notice by the Revenue Authorities for recording the name of respondent No. 2 in the revenue records and no officer had visited the disputed plot to make any enquiry regarding the same. The relevant part of the testimony of the petitioner is reproduced below :-
"dHkh Hkh budk uke ntZ djus ds fy;s dksbZ uksfVl ugha feyh gS esjh tkudkjh esa dksbZ Hkh vQlj bl [ksr ij tkWap djus ugha vk;k FkkA"
In view of the aforesaid, the reasons given by the D.D.C. in his impugned judgement dated 29.3.1976 accepting the claim of respondent No. 2 relying on the alleged entries in the revenue records relating to 1356 Fasli shows a casual and mechanical approach and a complete non-application of mind on his part. For the said reason, the findings of the D.D.C. that respondent No. 2 became a Sirdar of disputed plot after relying on the alleged entries in the revenue records of 1356 Fasli is not sustainable and liable to be set aside.
33. There is another aspect of the matter. The C.O. as well as the S.O.C. had recorded findings of fact after hearing the parties and after considering the evidence on record. In their judgements, the C.O. and the S.O.C. have not referred to the revenue records relating to 1356 Fasli. In the judgement dated 9.9.1974 of the S.O.C., there is a reference to the argument of counsel for respondent No. 2 wherein the counsel has referred to the entries in the revenue records relating to 1356 Fasli to support the claim of respondent No. 2. However, there is no consideration of the said document in the judgement of the S.O.C. Further, a perusal of the judgment dated 22.1.1974 passed of the C.O. shows that there is no reference to the revenue records relating to 1356 Fasli in the list of documentary evidence filed by the petitioner and respondent No. 2. A reading of the judgement dated 29.3.1976 of the D.D.C. does not show that the respondent No. 2 had raised any argument before the D.D.C. regarding the failure of S.O.C. and C.O. to consider the entries in the revenue records while deciding the appeal and objections under Section 9A-(2) of the Act, 1953. In the circumstances the only inference that can be drawn is that the aforesaid document was not a part of the records filed before the C.O. and the S.O.C. As held in Bachan (Supra), the Settlement Officer is the final court of fact. In paragraph No. 16 of Ram Avadh (Supra), it was held that under Section 48 of the Act, 1953, the Director Consolidation does not have the jurisdiction to interfere with the findings of facts, without any basis and assumptions. In Ram Dular (Supra), the Supreme Court held as follows :-
"It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the rest (sic root) of the matter, had been committed in recording the order or finding."
(Emphasis added) As stated earlier, it appears from the record, that it was not argued by respondent No. 2 before the D.D.C. that the revenue records relating to 1356 Fasli were filed by him before C.O. and S.O.C. and the aforesaid authorities had not considered the same. There is no averment either in the counter affidavit or supplementary affidavit filed by respondent No. 2 that the said document was filed by him either before the C.O. or S.O.C. There is no finding in the judgement of D.D.C. that the aforesaid document was a part of record before the C.O. and S.O.C. In such a situation, the must favourable inference that can be drawn is, that the said document was filed by respondent No. 2 before the D.D.C. However, in such circumstance, the D.D.C., while admitting the said document and by relying on the same, assumed the jurisdiction of an original fact-finding authority. Apart from the above, as stated earlier even the plea of respondent No. 2 that in 1357 Fasli, he had acquired hereditary rights over the disputed plot, also appears to have been raised for the first time before the D.D.C. Evidently the D.D.C. had exceeded his jurisdiction under Section 48 of the Act, 1953 in reversing the findings recorded by the S.O.C in his judgement dated 9.9.1974 and setting aside the aforesaid order of S.O.C. by relying on alleged entries in favour of respondent No. 2 in 1356 Fasli and also by accepting the plea of respondent No. 2 that, in 1357 Fasli, he had acquired hereditary rights over the disputed plots.
34. For the aforesaid reasons, the order dated 29.3.1976 passed by the respondent No. 1-D.D.C. is contrary to law and is legally not sustainable and is hereby set aside. The writ petition is allowed. The judgement and order dated 9.9.1974 passed by the S.O.C. is restored.
Order Date :- 31.5.2018 Anurag/-