Babboo vs Dy. Director Of Consolidation & 4 ...
2017 Latest Caselaw 6098 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 33
 
										
 
Case :- WRIT - B No. - 41723 of 2017
 

 
Petitioner :- Babboo
 
Respondent :- Dy. Director Of Consolidation & 4 Others
 
Counsel for Petitioner :- Raj Kishor Pandey
 
Counsel for Respondent :- C.S.C., Chandra Shekhar Agnihotri
 

 
Hon'ble Manoj Misra, J.

Heard learned counsel for the petitioner; Sri C.S. Agnihotri for the contesting respondents 2/1 and 2/2; the learned Standing Counsel for the respondent no.1; and perused the record.

The dispute in the present petition relates to Plot No. 183, area 4 Bigha 14 Biswa, at village Nagnedhi, district Banda. In the basic year, this plot was recorded in the name of second respondent (Shivnath), who is now represented by his legal heirs - respondent nos. 2/1 and 2/2. Mohan, the  predecessor-in-interest of the petitioner, who was recorded in Varg / Class 9 (i.e. occupiers of land without the consent of the person entered in column 4 of the khasra), filed objection, under Section 9 of the U.P. Consolidation of Holdings Act (in short the Act), by claiming that he has perfected his right by adverse possession therefore the entry of the name of Shivnath (the recorded tenure-holder) be expunged and he be declared Bhumidhar. On the other hand, Shivnath filed objection for expunging class 9 entry of Mohan from the records.

The Consolidation Officer, by his order dated 18.03.1982, directed expunction of the name of the recorded tenure-holder (Shivnath) and for recording of the name of Bhauwa son of Mohan because Mohan had died during the course of the proceeding. Against the order passed by the Consolidation Officer, appeal was preferred before the Settlement Officer of Consolidation which was dismissed by order dated 26.04.1984.

Assailing the order passed by the Consolidation Officer and the Settlement Officer of Consolidation, the respondent no.2 filed revision before the Deputy Director of Consolidation. The said revision was allowed vide order dated 27.02.1985 upon finding that Mohan could not prove that he perfected his title by adverse possession. Accordingly, he set aside the orders of the two consolidation courts below and directed expunction of the name of Mohan from the record.

Aggrieved by the order passed by the Deputy Director of Consolidation, Bhauwa (son of Mohan), predecessor-in interest of the petitioner, filed Writ B No. 10119 of 1985, which was allowed by order dated 01.12.2006 on the ground that the Deputy Director of Consolidation had failed to address oral evidence of the parties. Accordingly the matter was remitted back to the Deputy Director of Consolidation to pass a fresh order after considering the oral evidence to ascertain whether Mohan could prove that he gained title on the basis of his possession.

Before proceeding further, at this stage, it would be apposite to notice the history of litigation between the parties before advent of consolidation operations. From the record including recital in the orders passed by the consolidation courts, in respect of which no dispute has been raised, it appears that Shivnath (the second respondent) had purchased the disputed land from tenure-holders Bitani and Daduwa. It further appears that a partition Suit No. 137, under Section 176 of the U.P. Zamindari Abolition & Land Reforms Act (in short Z.A. Act), was instituted on 09.07.1960 by one of the tenure-holders claiming one-third share, in which, Mohan, the predecessor-in-interest of the petitioner, was one of the defendants. It appears that the said suit was decided on 31.03.1961 wherein Mohan though was found in possession but for a period less than prescribed to acquire title by adverse possession. It further appears that Bitani and Daduwa, who were the then recorded tenure-holder of the plot concerned, had instituted suit for possession, under 229B /209 of the Z.A. Act, against Mohan on 16.06.1962. From the order of the Settlement Officer of Consolidation, at page 39 of the paper book, it appears that the said suit remained pending and was dismissed for non-prosecution and, thereafter, was restored. In the meantime, another suit for eviction was filed by Shivnath, who had purchased the plot from Bitani and Daduwa. From the orders passed by the Deputy Director of Consolidation as well as Settlement Officer of Consolidation, it appears that all these suits abated consequent to notification of consolidation operations in the village, as a result, the parties set up their rival claims before the Consolidation Authorities and sought adjudication thereof.

In the above backdrop, pursuant to the writ court's remand order dated 01.12.2006, the Deputy Director of Consolidation restored the revision and examined the matter, afresh, and, thereafter, by the impugned order dated 06.06.2017, allowed the revision preferred by Shivnath. Consequently, the orders of two consolidation courts below were set aside and direction was issued to expunge the name of successors of Mohan from the record with direction to restore the name of Shivnath/his successors.

A perusal of the order passed by the Deputy Director of Consolidation would reveal that he scrutinized the record carefully and found that there appeared no entry in the revenue record which may indicate the possession of Mohan prior to 1364F. He also found that even the first entry reflecting possession of Mohan, made in 1364F, was not as per the procedure prescribed by the Land Records Manual for recording class 9 entry. The Deputy Director of Consolidation also found that suit under 229-B /209 of the Z.A. Act was instituted by Bitani and Daduwa for eviction of Mohan in 1369F and, by the said date, Mohan had not perfected his title by way of adverse possession.

It is noteworthy that at that time an unauthorised occupant could obtain right, by way of adverse possession, under section 210 of the Z.A. Act if the recorded tenure holder does not institute suit for his eviction within six years. But, here the possession of Mohan was reflected from 1364F whereas the suit was instituted in 1369F therefore the period of six years had not elapsed by the date of institution of the suit.

The Deputy Director of Consolidation also found that the suits had remained pending till the onset of consolidation operations and, ultimately, were abated upon notification of consolidation operations.

The Deputy Director of Consolidation examined and discussed the oral evidence as well. He considered the statement of two witnesses examined in support of Mohan's case. Those two witnesses were Bansi Lal and Shiv Darshan. He carefully scrutinized the testimony of Bansi Lal, which was recorded on 03.05.1980. The said witness claimed himself to be Sarwarkar of Bhauwa (the predecessor-in-interest of the petitioner and successor in interest of Mohan). The Deputy Director of Consolidation found him to be an interested witness who was aged just 10 years at the relevant time. Therefore his testimony was found not to be of much relevance for proving that Mohan had perfected his title by way of adverse possession before institution of the suit under 229B/209 of the Z.A. Act. He, thereafter, proceeded to examine the statement of another witness, namely, Shiv Darshan. His statement was also carefully considered and it was found that he was also interested witness and was not well conversant with the facts of the case inasmuch as on material particulars he feigned ignorance. Thereafter, the Deputy Director of Consolidation considered the statement of Shivnath (respondent no.2) who supported his claim and disclosed that he as well as co-tenure-holder Bitani was never served with Form P.A. 10 to notify possession of Mohan over the land in dispute. After considering the entire evidence, the Deputy Director of Consolidation found that Mohan had not been able to establish that he perfected his title by adverse possession. Accordingly, the orders passed by the Consolidation Officer and the Settlement Officer of Consolidation were set aside.

Learned counsel for the petitioner though challenged the order passed by the Deputy Director of Consolidation but could not point out any factual or legal error in the findings returned by the Deputy Director of Consolidation. He could not show that any legal evidence was ignored or any evidence, documentary or oral, was misread or any inadmissible evidence was considered which may have vitiated the findings returned by him. His submission is that since it was established on record that Mohan had been in possession since about 1364F and he continued to remain in possession till the notification of consolidation operations, therefore the period required to acquire title by adverse possession was achieved by the time consolidation was notified. Hence, the consolidation authorities ought to have accepted the claim of Mohan (the predecessor-in-interest of the petitioner) that he had obtained sirdari rights, and thereafter bhumidhari rights, by adverse possession.

Sri C.S. Agnihotri, learned counsel for the contesting respondents 2/1 and 2/2, submitted that it has come on record that predecessor-in-interest of the contesting respondents had instituted suit under Section 229B/209 of the Z.A. Act for possession against Mohan and that suit was instituted on 16.06.1962, which translates to 1369F, that is before the expiry of limitation for instituting suit under Section 209 and creation of right under Section 210 of the U.P.Z.A. Act as applicable then, inasmuch as, Mohan's possession was not found before 1364F. It has been submitted by him that the suit proceedings were thereafter abated, consequent to notification of the consolidation operations, therefore, upon objections, the consolidation authorities had to address the rival claims in a manner that the rights of the persons affected by abatement were intact and not prejudiced by such abatement. He submitted that since it has come on the record that the suit proceeding had abated upon notification of the consolidation operations and, by the time the suit proceedings were instituted against Mohan, he had not perfected his right by adverse possession, the Consolidation Authorities were justified in declaring that Mohan had not perfected his title by adverse possession, notwithstanding that Mohan or his successor in interest remained in possession till the onset of consolidation operations. He further submitted that the Deputy Director of Consolidation is the last court of fact and therefore the finding returned by the Deputy Director of Consolidation, which is based upon appreciation of evidence, documentary as well as oral, ought not to be disturbed.

I have given thoughtful consideration to the rival submissions.

Before proceeding to examine the rival submissions, it would be apposite to notice the amendment by which Explanation (3) was inserted in section 48 of the U.P. Consolidation of Holdings Act.

By U.P. Act No. 3 of 2002, with effect from 10.11.1980, Explanation (3) was inserted in section 48 of the Act which deals with the power of the Director of Consolidation in a revision and reference. Explanation (3) provides that the power under the said section to examine the correctness, the legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority  and also includes the power to re-appreciate any oral or documentary evidence.

As the order of the Settlement Officer of Consolidation was passed on 26.04.1984, that is after 10.11.1980, Explanation (3) to section 48 of the Act would come into play. Meaning thereby that the Deputy Director of Consolidation was well within his jurisdiction to re-appreciate the oral as well as documentary evidence and to record his own finding.

Seen in the above light, when the order passed by the Deputy Director of Consolidation is perused this court finds that it is a well discussed and reasoned order wherein he has not only considered the documentary evidence but also the oral evidence to come to the conclusion that Mohan had failed to prove that before 16.06.1962 (1369F), which is the date of institution of eviction suit under Section 229B/209 of the Z.A. Act by the predecessor-in-interest of the contesting respondents against him, he perfected his title by way of adverse possession of the requisite period of six years. Because the evidence collected did not prove his possession prior to 1364F.

This Court finds that the documentary evidence on which reliance was placed on behalf of Mohan had disclosed him to be in possession since 1364F whereas, as per the finding returned, the suit under 229B/209 of Z.A. Act seeking his eviction was instituted by the predecessor in interest of the contesting respondents on 16.06.1962, which corresponds to 1369F. Meaning thereby that the requisite period of six years to perfect title by adverse possession, as was applicable then, had not passed by the date of institution of the suit. The oral evidence was also discussed by the Deputy Director of Consolidation and not much value was attached to the oral evidence led on behalf of Mohan because one of the witnesses was aged 10 years at the relevant time and the other witness was not fully conversant with the relevant facts. Moreover, there was oral evidence from the other side refuting the claim based on adverse possession. Under the circumstances, the Deputy Director of Consolidation was justified in not attaching much credence to the oral evidence led from Mohan's side.

The Deputy Director of Consolidation had also found that the eviction suit instituted against Mohan before consolidation notification had remained pending and had abated consequent to the notification of consolidation operations. This finding is consistent with the observation contained in the order of the Settlement Officer of Consolidation, at page 39 of the paper book, which reveals that although the suit under 229B/209 of the Z.A. Act had been dismissed for non-prosecution but it was restored upon payment of costs, and thereafter was abated. Moreover, the above finding has not been assailed by the petitioner's counsel during his arguments. Once that is the position, the suit for possession, which was instituted within the period of limitation (i.e. 1369F), remained pending till the onset of consolidation operations.

Section 5 (2) of the Act provides for some of the consequences that shall ensue in the area to which the notification under sub-section (2) of section 4 of the Act relates to. Sub-section (2) of Section 5 of the Act provides as follows:

"5. (2) Upon the said publication of the notification under sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely--

(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending, stand abated:

Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard:

Provided further that on the issue of the notification under sub-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part, as the case may be, shall stand vacated;

(b) such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.

Explanation.--For the purposes of sub-section (2), a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, shall not be deemed to be a proceeding in respect of declaration of rights or interest in any land."

A perusal of the aforesaid provision would show that every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated consequent to notification under sub-section (2) of section 4 of the Act. Clause (b) of sub-section (2) of section 5 of the Act makes it clear that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.

Clause (b) of sub-section (2) of section 5 of the Act, as noticed herein above, clearly spell out the legislative intent that the abatement would not prejudice the rights of the persons affected by abatement to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities. Meaning thereby, if the suit or proceeding, which has been abated, was instituted within the period of limitation, the abatement of that suit or proceeding, consequent to the notification under Section 4(2) of the Act, would not affect the rights of the parties and those rights can be agitated by them before the Consolidation Courts.

Consequently, the submission of the learned counsel for the petitioner that by the time of notification of consolidation operations, the predecessor-in-interest of the petitioner had perfected his title by adverse possession, cannot be accepted because it has come on record that already a suit had been instituted for eviction of the predecessor-in-interest of the petitioner within the period of limitation, which was abated on notification of the consolidation operations. As a result, the rights of the parties which were there on the date of the institution of the suit were preserved and could be agitated before the consolidation courts by virtue of section 5(2)(b) of the Act.

For the reasons stated above, this Court finds no such error in the order passed by the Deputy Director of Consolidation which may call for interference under the constitutional powers of this court.

The petition is dismissed.

Order Date :- 1.11.2017

Sunil Kr Tiwari