Bachchu Prasad & Others vs Dy. Director Of Consolidation, ...
2017 Latest Caselaw 7520 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment reserved on 25.10.2017
 
Judgment delivered on 01.12.2017
 

 
Case :- WRIT - B No. - 45867 of 2006
 

 
Petitioner :- Bachchu Prasad & Others
 
Respondent :- Dy. Director Of Consolidation, Gorakhpur & Others
 
Counsel for Petitioner :- Kamal Kishore Mishra, Akhilesh Kumar Mishra, Dhruv Narayana, H.N. Upadhyay, Vijay Kumar Rai
 
Counsel for Respondent :- C.S.C., Amrendra Singh, Manoj Kumar Tiwari, Rahul Sahai
 

 
Hon'ble Manoj Misra, J.

The dispute in the present petition relates to Plot No. 2301, area 36 decimal, pertaining to Khata No. 600.

In the basic year record, the petitioners were recorded. To expunge the entry of the name of the petitioners, Ramadhare (the father of the respondent nos. 4 and 5) and Nandu (the father of the respondents 6 and 7), both sons of Guddan, filed objection under Section 9 of the U.P. Consolidation of Holdings Act (in short the C.H. Act). In their objection it was claimed that Durga Prasad, the father of the petitioners, was an employee at the Tehsil and by his influence, fictitious and fraudulent entry was made. They claimed that they are in cultivatory possession since the time of their ancestors, since much prior to abolition of Zamindari, and therefore their names be recorded after expunging the name of the petitioners.

The Consolidation Officer, by his order dated 18.02.1984, allowed the objection and directed for expunging the name of the petitioners. In his order, the Consolidation Officer found that in 1359 F Khasra, in the remark column no one was entered whereas in the Khatauni of 1353 F to 1359 F, the name of Guddan (father of the objectors) was recorded in class 8 (hereditary tenant). He also found that in the 1345 Khatauni, Guddan's name was reflected. (It may be observed that in the typed copy of the order at page 15 of the paperbook the reverse was typed but, during the course of arguments, the learned counsel for the parties accepted that it was a typograhical mistake). He further found that in the Khatauni extract of 1357 F to 1362 F name of Ramadhare and Nandu, both sons of Guddan, was recorded. On the other hand, the petitioners relied upon Part II entry of 1359 F Khatauni wherein the name of petitioners was recorded in class 20 (i.e. occupiers of land without the consent of the persons if any entered in column 5 of the Khasra). The Consolidation Officer found that class 20 entry in the Khatauni is to be made on the basis of Khasra entry but since 1359 F Khasra did not reflect any such remark entry which could support the entry in Part II of 1359 F Khatauni, not much weightage was attached to the Part II entry relied by the petitioners. The Consolidation Officer thereafter did a survey of other entries as well as evidences and found that the entry of petitioners' name was without any basis and, therefore, the claim of the objectors which was supported by revenue entries was accepted.

Against the order passed by the Consolidation Officer, appeal was preferred by the petitioners before the Settlement Officer of Consolidation in which, apart from other grounds, one of the grounds taken was that the land in dispute was in the shape of Abadi and therefore the land was out of the purview of the C. H. and, as such, the Consolidation Authorities had no jurisdiction in respect of the subject matter.

The Settlement Officer of Consolidation examined not only the documentary evidence but also the oral evidence and after considering the plea that mere raising of a boundary wall would not change the nature of an agricultural land, particularly, in absence of declaration under Section 143 of the U.P.Z.A. & L.R. Act, affirmed the order of the Consolidation Officer. He also did a survey of the revenue entries filed by the respective parties and, after examining the oral testimony of the witnesses, came to the conclusion that the entry of petitioners' name was rightly expunged from the revenue record and, accordingly, the appeal was dismissed.

While dismissing the appeal, the Settlement Officer of Consolidation also took notice of the fact that the petitioner's father Durga Prasad had instituted Suit No. 749 of 1974 against the successors in interest of the objectors and, in that suit, a mandatory injunction was sought for possession, which suggested that the petitioners were not in possession. The Settlement Officer of Consolidation found that though the name of petitioner's father got reflected in 1362F Khatauni as Adhivasi but there was no basis of such entry inasmuch as in 1356F record he was not recorded as occupant and in 1359 F Khasra he was not shown to be in cultivatory possession.

After taking a conspectus of the evidence, documentary as well as oral, the Settlement Officer of Consolidation found that the entry of the name of petitioners was without authority; that the documentary as well as oral evidence suggested that the objectors were in cultivatory possession; and, therefore, the appeal was liable to be dismissed.

Against the order passed by the Settlement Officer of Consolidation, revision was preferred before the Deputy Director of Consolidation.

One of the grounds taken by the petitioners was that to test the veracity of the entries of 1362F as well as 1359F, an application was filed to summon the original record but that application was wrongly rejected. Another ground taken was that the land in question was no longer used for the purpose of agriculture and therefore the Consolidation Authorities did not have jurisdiction.

The Deputy Director of Consolidation dismissed the revision by his order dated 27th June, 2006. A finding was returned that the original records were not summoned because a report had been received that they had been badly mutilated and rendered incomprehensible therefore no purpose would have been served in summoning the record. He found that there had been no declaration under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act (in short Z.A. Act); that there was no satisfactory evidence given by the petitioners to justify the entry in 1362F; and that there existed no good reason to disturb concurrent findings returned by the two courts below.

Assailing all the three orders this petition has been filed.

I have heard Sri Vijay Kumar Rai for the petitioners; the learned Standing Counsel for the respondents 1, 2 and 3; and Sri Manoj Kumar Tiwari for the respondents 8 and 15.

Sri Vijay Kumar Rai, who appeared for the petitioners, submitted, by placing reliance on various documents filed along with the supplementary-affidavit, that, in fact, the entries were not against the petitioners and that for no good reason the original record was not summoned despite application.

The admissibility of the papers brought on record through supplementary-affidavit was challenged by the respondents' counsel on the ground that they were not part of the record of the courts below. He also challenged the veracity of those papers.

The learned counsel for the petitioners did not dispute that the revenue entries brought by supplementary-affidavit were not part of the record of the courts below. However, he submitted that the application to summon the original record was wrongly rejected.

Once it is not in dispute that the revenue entries annexed to the supplementary-affidavit were not part of original record of the courts below, they cannot be considered by this Court. However, whether application to summon original record was rightly rejected or not shall be dealt with at the appropriate stage of the judgment.

Learned counsel for the petitioners also submitted that even assuming that the entries may not be suggestive of continuous possession of the petitioners but there was oral evidence on record which establishes continuous possession of the petitioners for the prescribed period and since there is not much discussion of the oral evidence led by the parties, the orders passed by the Consolidation Authorities are liable to be set aside for fresh consideration.

In support of the contention that oral evidence must be considered, and when not considered then matter needs to be remanded back, reliance has been placed on decisions of this Court in Mangu v. Deputy Director of Consolidation, Muzaffarnagar and others : 2010 (111) RD 379; Chhota v. Deputy Director of Consolidation : 1996 (Suppl.) RD 373; Krishna Kant v. Deputy Director of Consolidation and others : 1996 (Suppl.) RD 352; and Mahadeen v. Deputy Director of Consolidation : 1996 (Suppl.) RD 349.

Learned counsel for the petitioners also submitted that from the oral evidence it was clear that a boundary wall had been raised over the land in dispute and therefore the land cannot be said to be in use for agriculture or purposes connected therewith as such it was not land as defined by section 3 (5) of the C.H. Act. Consequently, the provisions of the C. H. Act were not attracted and therefore the consolidation authorities had no jurisdiction to adjudicate on title of the parties.

Per contra, the learned counsel for the respondents submitted that the case of the objectors was duly proved from the documentary as well as oral evidence and the entries on which reliance was placed from the side of the petitioners were rightly discarded because they had no basis. And, further, the institution of the suit by the predecessor-in-interest of the petitioners for mandatory injunction to obtain possession, in which the petitioners were substituted as plaintiffs, clearly disclosed that the petitioners were not in possession over the disputed plot.

Attention of the Court was invited to Annexure C.A.1 filed along with the counter-affidavit to show that in Suit No. 749 of 1974, which was instituted by the predecessor-in-interest of the petitioners, namely, Durga Prasad, the petitioners were substituted as heirs and legal representatives of the plaintiff Durga Prasad, and, in the said suit, one of the issues framed, namely, issue no. 4, was whether the plaintiff was in possession over plot no. 2301 area 36 decimal, which was decided against the plaintiff. It has been submitted that even assuming that the civil court did not have jurisdiction to adjudicate the said issue, the very fact that the suit was instituted for a mandatory injunction to seek restoration of possession would reflect that possession of the disputed land was not with the petitioners and as both sides had led oral evidence in support of their case, it was a case where there was oath against oath and as the documents proved the case of the contesting respondents, the findings returned by the consolidation authorities do not call for interference.

Attention of the Court was also invited to the statement of the respective parties so as to demonstrate that the nature of the land in dispute was not changed to Abadi so as to oust the jurisdiction of Consolidation Courts.

Learned counsel for the respondents also urged that refusal to summon the original of the documents would not have material bearing on the case because a report was received from the record - keeper concerned that the original record was badly mutilated. Accordingly, the court, after recording its satisfaction, rejected the prayer of the petitioners to summon the record. He thus prayed that the petition be dismissed.

I have considered the rival submissions and have perused the record carefully.

In so far as the revenue entries are concerned, the Consolidation Authorities have dealt with the revenue entries in great detail and have recorded satisfactory reasons to reject the claim of the petitioners on the basis of 1362 F Adhivasi entry which had no basis in 1356F and 1359F records. More so, because the order by which such entry was made in 1362 F was not produced. In so far as the class 20 entry in Part II of 1359 F Khatauni is concerned, the Consolidation Officer had recorded cogent reasons to discard the said entry because it had no foundation in 1359 F Khasra which depicts cultivatory possession. It be noted that the consolidation authorities have found that in 1359 F Khasra, there was nothing in the remark column and therefore the class 20 entry in Part II Khatauni of 1359 Fasli, which is reflective of the position obtaining in Khasra entries, was without foundation. Otherwise, 1356 F and 1359 F entries had corroborated the case of the objectors. This court is of the view that the consolidation authorities have not erred in law while interpreting the revenue entries. The reasons recorded in respect thereof are cogent and proper.

In so far as not summoning of the original record is concerned, at page 98 of the supplementary-affidavit, the petitioners have enclosed copy of order dated 07.01.1983 passed by the Consolidation Officer, which discloses that the application was dealt with and a report was obtained from the record-keeper and the application was thereafter rejected upon finding that the relevant records were torn. Once that was the position, of which there is no satisfactory denial by taking the Court through any objection to the report, non-summoning of the original record is of no consequence. Even otherwise, the secondary evidence of public documents was admissible. Accordingly, rejection of the application does not vitiate the proceeding.

In respect of the claim of the petitioners that there was complete non-consideration of oral evidence and therefore the orders passed by the Consolidation Authorities stand vitiated, this Court perused the orders of the Consolidation Authorities carefully and found that the Settlement Officer of Consolidation had discussed the oral evidence. In fact, this Court also went through the oral testimony of the parties which have been brought on record. There is nothing in the oral evidence which may go to show that any party had admitted the case of the other.

The learned counsel for the petitioners has urged that the contesting respondent i.e. Ramadhare in his oral testimony had admitted that the petitioners were paying land revenue of the plot in dispute which suggested that the petitioners were in possession.

To test the aforesaid submission, this Court had perused the statement of Ramadhare, which has been enclosed as Annexure S.A. 16 to the supplementary-affidavit, at page 91 thereof. In his statement, Ramadhare has proved his continuous possession and had stated that he had not been paying revenue separately of the plot but had been paying "Jumla Lagaan", which means consolidated revenue.

The above statement, according to the learned counsel for the petitioners, is admission of the fact that objectors were not in possession.

I fail to understand as to how the above statement can be taken as an admission that the objectors were not in possession. Because, first of all, payment of revenue by itself is not conclusive to indicate one's possession; and, secondly, the statement is qualified by the statement that consolidated revenue is being paid by the witness. Even assuming for the time being that the revenue has not been paid, this does not mean that the person, who is otherwise in possession, has surrendered his possession.

Otherwise, from a perusal of the oral testimony of the witnesses, which have been brought on record by means of supplementary-affidavit, it appears that both parties claimed possession therefore nothing much turns on the oral evidence.

Apart from above, there is an important circumstance which goes against the petitioners. The said circumstance is that a suit for mandatory injunction seeking restoration of possession over the land in dispute was instituted by the predecessor-in-interest of the petitioners in which the petitioners were substituted as heirs and legal representatives of the plaintiff. The said suit is Suit No. 749 of 1974. The judgment passed in the said suit has been brought on record with the counter-affidavit. In the said suit, the prayer made was for mandatory injunction to restore possession. The plaint of the said suit is there on record as Annexure S.A.12 filed along with supplementary-affidavit which has been filed by the petitioners. From the relief sought in the said suit, it appears that a mandatory injunction was sought for removal of the construction, etc. over Plot No. 2301, area 36 decimal to restore possession to the plaintiff. The said suit was dismissed and in the judgment the issue relating to possession was decided against the plaintiff of the suit.

Under the circumstances, the finding returned by the Settlement Officer of Consolidation, upon consideration of all evidences, that the objectors were in possession and that the entry of the petitioners was without any basis, cannot be said to be perverse or erroneous which may call for interference under the constitutional powers of this Court.

In so far as the jurisdiction of the consolidation courts to deal with land which carries a boundary wall is concerned, suffice it to say that mere raising of a boundary wall would not make the land usage non agricultural so as to take it out of the purview of the C.H. Act, particularly when improvements thereupon are included in the definition of land provided by section 3 (5) of the C.H. Act. Moreover, the courts below have examined this issue and have rightly come to the conclusion that in absence of any declaration under Section 143 of the Z.A. Act by mere raising of a boundary wall the land usage cannot be termed non agricultural so as to take it out of the purview of the C.H. Act.

The learned counsel for the petitioners, at last, urged that the Deputy Director of Consolidation being a final court of fact should have himself examined the oral evidence.

It is true that the Deputy Director of Consolidation is the final court of fact particularly after addition of Explanation 3 in Section 48 of the Act by U.P. Act No. 3 of 2002, with effect from 10.11.1980, but when a detailed finding has been returned by the subordinate consolidation authority, after consideration of oral as well as documentary evidence, the Deputy Director of Consolidation, before whom a revision is filed, ordinarily has to address those pleas which are taken and pressed before him. From the judgment of the Deputy Director of Consolidation, it does not appear that any emphasis was laid to the oral evidence led. Otherwise, the points which were pressed before the Deputy Director of Consolidation have been dealt by him.

Even otherwise, considering that the dispute between parties has remained pending for several decades, this Court does not consider it appropriate to remand the matter again to the Deputy Director of Consolidation just to complete the formality of going through the oral evidence particularly when the Settlement Officer of Consolidation has examined the oral evidence and has recorded well reasoned findings and this Court has also examined the statement of witnesses and have found that nothing much turns on the oral evidence because both sides have sought to support their case and the oral testimony does not contain any such admission which may make a material difference in the decision of the case. Further, the Settlement Officer of Consolidation has considered the issue of possession in detail and has also considered an important circumstance in respect of the conduct of the petitioners including their predecessor-in-interest, that is institution of a suit to restore possession over the land in dispute, which suggested that they were not in possession. This Court therefore finds no good reason to set aside the order passed by the Deputy Director of Consolidation and remand the matter again to complete an empty formality of going through oral evidence.

The petition is dismissed. There is no order as to costs.

Order Date :- 01.12.2017

Sunil Kr Tiwari