HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 19 AFR Case :- SECOND APPEAL No. - 700 of 2007 Appellant :- Shyama Singh (Since Deceased) & Others Respondent :- Sarvodeo Singh & Others Counsel for Appellant :- Hemant Kumar Counsel for Respondent :- Raj Kumar Pandey,P.K. Singh Hon'ble Ashwani Kumar Mishra,J.
Plaintiff-respondent filed a suit for permanent injunction in respect of 16 decimal land of plot No. 420 against the defendant with the allegation that plaintiff is recorded over the land and the defendant without any legal authority is attempting to interfere. Defendant, who is the appellant before this Court, contested the suit by saying that plot No. 420 corresponds to previous plot No. 617, in respect of which the dispute between the parties had traveled upto the Court of Deputy Director of Consolidation, and the rights of the defendant over 16 decimal land of plot No. 617 had been recognized. It was therefore submitted that once the issue stands resolved by the consolidation court, thereafter the original suit was not maintainable before the civil court as the bar of section 49 of U.P. Consolidation of Holdings Act ( hereinafter referred to as the 'Act') would operate and the suit as such be dismissed.
On the basis of respective pleas set up by the parties in the pleadings, trial court proceeded to frame as many as 9 issues. Parties led their oral and documentary evidence in support of their respective cases. Plaintiff filed Khatauni i.e. the record of right, in respect of the land in order to contend that in the basic year entry as well as in all subsequent entries the plaintiffs were recorded over the disputed plot as such the bar of section 49 would not operate. It was also stated that the decision of Deputy Director of Consolidation relied upon by the defendant would otherwise not come to their rescue as the Deputy Director of Consolidation had merely allowed the revision filed by the plaintiff in respect of other part of Khasra No. 617, and there was no adjudication in respect of 16 decimal land of suit.
Trial court on the basis of oral and documentary evidence proceeded to decree the plaintiffs' suit by holding that the plaintiffs were recorded in the basic year entry and through-out thereafter over the suit property measuring 16 decimal land and the defendants had no right over suit property. The decree of the trial court was assailed by the defendants in appeal. Appellate court considered the grounds urged before it in appeal and came to a conclusion that suit was rightly decreed on the basis of evidence brought on record. Aggrieved by the judgment and decree of the courts below, defendant appellant has filed the instant second appeal under Sec. 100 of Civil Procedure Code.
Learned counsel for the appellant submits that in view of the order passed by the Deputy Director of Consolidation in revision No. 1153 dated 21.1.1964, the defendants were recognized as owners of plot No. 617, area 16 decimal, and contrary view taken by the civil court is impermissible. It is also stated that the suit itself was barred under Section 49 of the Act and the decree of the courts below is without jurisdiction.
Learned counsel for the plaintiffs-respondents defends the judgment and decree of the courts below on the ground that the Deputy Director of Consolidation had not adjudicated rights of the parties in respect of suit property and decree of the civil court is not in conflict with the judgment of the Deputy Director of Consolidation dated 21.1.1964. It is also contended that the findings returned by the civil court that the defendant in the suit was not recorded in the basic year is a finding based on perusal of evidence and records, which is not liable to be reappraised in the present appeal. Learned counsel also submits that in case what is contended by defendants-appellants is true, then the defendant ought to have applied for correction/mutation of his name in the records maintained by the consolidation authority, but no such action having been taken by the defendant for nearly 20 years clearly shows that defendant in fact was not recorded in the basic year entry.
The appeal at the time of initial hearing was admitted on the following substantial questions of law:-
"(1) Whether the court below have committed an error of law in not accepting right and title of the defendant -appellant which have been settled about 20 years prior to the filing of the suit by the Consolidation Court in favour of the defendant - appellant in respect of the land in dispute ?
(2) Whether the suit filed by plaintiff-respondent is barred by section 49 of U.P. Consolidation of Holdings Act?"
Parties have made their submissions essentially based upon import of the order passed by the Deputy Director of Consolidation and, therefore, it would be relevant to examine the same. It transpires from the order of the Deputy Director of Consolidation that plot No. 617 consisted of two parts i.e. plot Nos. 617/1 and 617/2. Plot No. 617/1 consisted of an area of 16 decimal whereas the other part i.e. 617/2 was of 12.03 acers. While noticing the facts of the case, Deputy Director of Consolidation in his order observed that defendant-appellant was recorded in the basic year entry upon 16 decimal land of plot No. 617/1, whereas, the revisionist (plaintiff-respondent in the present appeal) were recorded over plot No. 617/2. The defendant-appellant, therefore, filed an objection under Section 9 of the Act, claiming exclusive tenancy right on the whole of plot No. 617 by way of adverse possession. Objection of the defendant-appellant was rejected by the consolidation officer on the ground that there was no evidence of his possession. Appeal, however, filed by the defendant-appellant was allowed and the claim was decreed in appeal. A revision was, therefore, filed by the plaintiff-respondent, which was allowed by the Deputy Director of Consolidation under Section 48 of the Act vide his order dated 21.1.1964. The Deputy Director of Consolidation held that there was no justification to dispute the basic year entries as it stood recorded, and the claim of the defendant-appellant was repelled. The operative portion of the order of the Deputy Director of Consolidation merely rejects the revision filed by the defendant-appellant and there is no adjudication in respect of 16 decimal land of plot No. 617/1 therein. The operative portion of the order of the Deputy Director of Consolidation reads as Under:-
"for the reasons given above, the order of the learned ASOC is set aside and the revision is allowed. The entries in the basic year records will continue".
It is settled that only the operative portion of the order constitutes decree which alone binds the parties. There is, thus, no adjudication of claim in respect of plot No.617/1 in the order of the Deputy Director of Consolidation.
From the perusal of the order of the Deputy Director of Consolidation, it does appear that the defendant-appellant was recorded in the basic year entry over 16 decimal land, but a deeper examination of the order of the Deputy Director of Consolidation would reveal that such recital made in the order was by way of noticing facts of the case only. The Deputy Director of Consolidation in its operative portion merely directed the basic year entries to be maintained. The original entries of the basic year have not been brought on record and are reported to be not available. The records consists of the certified copy of the basic year entries, in which the defendant is not recorded. The findings therefore returned by the civil court that the defendant was not recorded over 16 decimal land is based upon the materials available before it and the same cannot be said to be perverse or erroneous.
While admitting the appeal, lower court record had been summoned. Parties are not at issue that only the certified copy of the basic year entry is available on record being Paper No. 27-C according to which, the plaintiffs-respondents were recorded over 16 decimal land of plot No. 617/1. Appellate court, in its order under challenge, has noticed that certified copy of the basic year entry of 16 decimal land of plot No. 617/1 had been filed by the plaintiffs according to which plaintiffs were recorded. An endorsement, however, was made that original entry is not traceable. It was for this reason that the appellate court on a previous occasion remitted the matter for adducing further evidence by the parties in this regard. The trial court, pursuant to such remand, summoned the original records from the record room maintained in the collectorate. The appellate court, in this order has recorded that paper No.27-C was produced as being the basic year entry before the Civil Court and as the records were apparently very old, no exception was taken to the original not being available. Relying upon the statement of the concerned clerk of the record room of collectorate, the lower appellate court has returned a categorical finding that as per the records available, it was the plaintiff who was recorded in the revenue records. In view of the finding returned by the civil court, based upon the perusal of the record that plaintiff-respondent was, in fact, recorded in the basic year entry over the suit property the conclusion drawn by the civil court cannot be said to be vitiated by any error of law.
One of the other important aspect, which arises for consideration in the present appeal is that in case the contention of the defendant-appellant based upon the interpretation of the order of the Deputy Director of Consolidation is taken to be correct then there was apparently no justification for the defendant not to have got himself recorded in the consolidation records over 16 decimal of land in question. Nearly 20 years had intervened between the order of Deputy Director of consolidation and the filing of the suit. It was open for the defendants to have got themselves recorded in the consolidation records, but no such endeavor at any point of time was apparently made. Learned counsel for the appellant merely states that some note was prepared by the Tehsildar for correction stating that the entries as had existed were incorrect, but no order based upon such note was actually passed by the revenue authorities, rather the Sub Divisional Magistrate rejected the note prepared by the Tehsildar by observing that such long entry are not required to be corrected. In such factual scenario whatever doubts were generated on the strength of the interpretation of the order of the Deputy Director of Consolidation stands clarified by the orders passed by the trial court as well as the lower appellate court, while returning a categorical finding that the defendant was not recorded in the basic year entry.
In view of the aforesaid discussions and findings that there was no adjudication of the defendant-appellant by the consolidation court in respect of the land in dispute, substantial question formulated and noticed above would have no applicability in the facts of the present case and the suit filed by the plaintiff-respondent would not be barred under Section 49 of the U.P. Consolidation of Holdings Act. This Court in exercise of jurisdiction under section 100 of the Civil Procedure Code is not required to re-appraise the evidence, which has come on record and has already been noticed above. The finding that defendant was not recorded over 16 decimal of land in question and that plaintiff was recorded in the basic year entry, is based upon material, which cannot be said to be perverse or erroneous. No substantial question of law therefore arises for consideration in the present appeal, which consequently fails and dismissed.
No order as to costs.
Order Date :- 24.8.2015 n.u./Sumaira