Babu Singh And Another vs Dy.Director Consolidation ...
2021 Latest Caselaw 7265 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 
Case :- CONSOLIDATION No. - 4047 of 1986
 
Petitioner :- Babu Singh And Another
 
Respondent :- Dy.Director Consolidation Sitapur Camp At
 
 Kheri And Ors.
 
Counsel for Petitioner :- Avadhesh Kumar
 
Counsel for Respondent :- R.N. Misra,Jagdish Singh, Prabhakar Vardhan Chaudha,Upendra Singh
 

 
Hon'ble Jaspreet Singh,J.

Heard Shri Avadhesh Kumar, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Shri P. V. Chaudhary, learned counsel for the private respondents.

By means of the instant writ petition, the petitioners assail the order dated 24.04.1977 and 10.07.1978 passed by the Settlement Officer of Consolidation in Case No.290/876 whereby the appeal preferred by the respondent no.3 was allowed. Being aggrieved against the aforesaid, the petitioners preferred a revision under Section 48 of the U.P. C.H. Act before the Deputy Director of Consolidation, Sitapur bearing Case No.1894/81 which was dismissed by means of judgment dated 12.03.1986.

Briefly, the facts giving rise to the instant petition are, that the property in question relates to Khata No.56 and Gata Nos.221/2, measuring 2.99 acre which was recorded in the name of Tullu Singh (father of the present petitioners).

During consolidation proceedings, the original respondent no.3, namely, Mahipat Singh filed his objections before the Consolidation Officer stating that he was in possession of the Plot No.221/2 measuring 2.99 acre. It was the case of Mahipat Singh that he is in possession and he has acquired rights in the said plot by adverse possession and thus the name of Tullu Singh be deleted and the name of Mahipat Singh be recorded in his place. The Consolidation Officer by means of order dated 29.12.1976 did not find favour with the contentions of Mahipat Singh and rejected the objection preferred by Mahipat Singh.

Mahipat Singh being aggrieved against the aforesaid decision preferred an appeal before the Settlement Officer of Consolidation who after considering the respective submissions as well as considering the documentary and oral evidence including noticing the fact that upon physical inspection, Mahipat Singh was found in possession, consequently allowed the appeal and directed the name of Mahipat Singh to be recorded in respect of Gata No.221/2.

Being aggrieved against the order of the Settlement Officer of Consolidation a revision was preferred by the present petitioners. It will be noticed that the instant revision was preferred with a delay of about four years and in the meantime the father of the petitioner, namely, Tullu Singh expired. The revisional court after hearing the parties did not find favour with the submissions of the petitioners and noticed that not only the revision was hugely time barred and no cogent explanation was given by the petitioners but it also noticed that a compromise had been arrived at between Tullu Singh and Mahipat Singh on the basis of which name of Mahipat Singh has been recorded and Tullu Singh during his life time did not seriously contest the said compromise, hence for the aforesaid reason, the revision was dismissed and as such the order passed by the Settlement Officer of Consolidation dated 27.04.1977 was confirmed. It is this order which is under challenge in the instant petition.

Shri Avadhesh Kumar, learned counsel for the petitioners submits that there is not enough material on record to indicate that the private respondent no.3 Mahipat Singh had perfected his right by adverse possession. He further submitted that it is necessary for a person who have completed 12 years of uninterrupted possession over the property in the knowledge of the true owner and treating the same to be hostile and should be held out as such to the entire world including the true owner..

It is submitted that this essential ingredients had not been met nor proved hence the finding recorded by the Settlement Officer of Consolidation in its order dated 27.04.1977 suffers from clear error, cannot be sustained.

It is further submitted that even the alleged compromise which has been noticed by the Settlement Officer of Consolidation as well as by the Deputy Director of Consolidation could not be made basis of the impugned order as the said compromise was never executed or verified by the father of the petitioners, namely, Tullu Singh.

Thus, the two grounds upon which the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation have recorded its finding are incorrect. Moreover, the technical view taken by the revisional authority in not condoning the delay in filing the revision is also an erroneous exercise of jurisdiction, hence for all the aforesaid reasons, the impugned order passed by the Settlement Officer of Consolidation as well as by the Deputy Director of Consolidation are liable to be set aside.

Learned counsel for the private respondent Shri P. V. Chaudhary while refuting the submissions has stated that the respondent no.3 had filed ample evidence in the shape of Khasara, Khatauni as well as other documents indicating the possession of Mahipat Singh consistently over a period of 12 years and as such he has perfected his rights by adverse possession.

It is further urged by Shri Chaudhary that Mahipat Singh was the son-in-law (Damad of Tullu Singh). The daughter of Tullu Singh (wife of Mahipat Singh had expired) since then there was repeated disputes between Tullu Singh and Mahipat Singh which was known to all the persons of the village. He further submits that the dispute between Tullu Singh and Mahipat Singh was well known and in respect of the plot in question 221/2, it was Mahipat Singh who was in possession and has been cultivating the same. Mahipat Singh had led evidence not only documentary but also examined witnesses who confirmed the aforesaid facts. Even during the inspection made by the consolidation authorities the possession of Mahipat Singh was confirmed. In the aforesaid facts and circumstances, the findings of fact recorded by the two authorities do not suffer from any error which may require any interference from this Court.

It is further urged by Shri Chaudhary that the decision of the Settlement Officer of Consolidation was rendered on 27.04.1977 whereas the revision was filed before the Deputy Director of Consolidation on 21.04.1981 i.e. almost after four years. There is no explanation for the aforesaid delay of four years and unless the said delay is adequately explained, the delay could not have been condoned by the revisional authority as a matter of course. However, the revisional authority considering both delay as well as merit of the matter found that the ground upon which the petitioners (petitioners before the Deputy Director of Consolidation) assailed the order passed by the Settlement Officer of Consolidation did not merit consideration, hence the order passed by the Settlement Officer of Consolidation as well as the order passed by the Deputy Director of Consolidation does not require any interference.

The Court has considered the rival submissions and has also perused the material on record.

The record indicates that the property initially was recorded in the name of Tullu Singh. It is also not disputed that Mahipat Singh is the son-in-law of Tullu Singh. Before the Consolidation Officer the evidence was led wherein Mahipat Singh apart from himself had also examined one Sankata Prasad. The said witness had clearly stated that Mahipat Singh has been tilling the fields since 18 to 20 years. He further confirmed the existence of the dispute between the petitioners Tullu Singh and Mahipat Singh.

In order to further confirm the possession of Mahipat Singh he had also filed documentary evidence including Khasara as well as Khatauni for various fasli years. In the fasli year of 1372 and in the fasli years of 1362, 1369 and 1370, the possession of Mahipat Singhhas been recorded. Even in respect of Khatauni for the fasli year 1372, 1375 and 1376, the possession of Mahipat Singh is indicated. Even prior to 24.08.1973, Mahipat Singh had filed Khasra wherein his possession has been indicated and for the fasli year 1375, his name is recorded in category-9. Despite the aforesaid, the Consolidation Officer found that Mahipat Singh had not proved his uninterrupted possession for 12 years, hence rejected his objection.

Mahipat Singh challenged the aforesaid order passed by the Consolidation Officer dated 29.12.1976 in appeal. During the appellate proceedings, the Appellate Authority clearly noticed that Mahipat Singh was able to establish his possession for 12 years in respect of Gata No.221. He has taken note of a compromise which is said to have been entered between Tullu Singh and Mahipat Singh dated 24.09.1973 in respect of Gata No.221/3 and 221/5 wherein Tullu Singh himself admitted the possession of Mahipat Singh for the last 15 years. The Appellate Authority also noticed that the witness examined on behalf of Tullu Singh, namely, Anoop Singh in his cross-examination also admitted that the possession of the plot in question was with Mahipat Singh who had been tilling the said fields.

A categorical finding of fact has been recorded that Mahipat Singh has been in possession since 1371 fasli year and his possession has been uninterrupted. It was also found to be hostile since the dispute between Tullu Singh and Mahipat Singh was admitted not only to the parties but as also confirmed by the witnesses examined on behalf of both Tullu Singh and Mahipat Singh.

The aforesaid fact also gains credence from the compromise which was entered between Tullu Singh and Mahipat Singh wherein the possession of Mahipat Singh was confirmed and admitted to Tullu Singh. On the basis of the aforesaid, the Settlement Officer of Consolidation by means of its judgment dated 27.04.1977 allowed the appeal and directed that the name of Tullu Singh be scored of and name of Mahipat Singh be recorded in respect of Plot No.221/2, Gram Lalpur, Pargana Firozabad, District Lakhimpur Kheri.

The record would also indicate that after the decision of the Settlement Officer of Consolidation dated 27.04.1977 Mahipat Singh had also preferred an application for correction of the area of the plot and after hearing the parties concerned by means of order dated 10.07.1978 the area of Plot No.221/2 was corrected and the area of 2.99 acre was corrected as two acres. It was further directed that the land revenue record be also corrected.

Significantly, the order dated 10.07.1978 was not challenged, it is only on 21.04.1981 that the present petitioners being sons of Tullu Singh filed the revision after four years. Neither the record of the proceedings brought on record before this Court nor the pleadings in the writ petition indicates any sufficiency of cause as to why the said revision was preferred after four years.

From the perusal of the entire writ petition, there is no pleadings regarding the ground upon which the alleged compromise dated 24.09.1973 is sought to be challenged. Neither any statement is made that the petitioners' father, namely, Tullu Singh had not executed the said compromise. There are no pleadings or material on record to substantiate the alleged ground upon which the said compromise is sought to be avoided. Neither a copy of the said compromise has been brought on record.

Since the compromise has been taken notice by both the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation to record its findings yet the said document has not been brought on record nor there are any pleadings in the writ petition upon which the petitioners seek to assail the said compromise.

In view of the aforesaid, the submissions of the learned counsel for the petitioners does not impress the Court to raise any inference against the alleged compromise; inasmuch as neither the copy of the compromise has been brought on record nor any explanation has been given as to why the aforesaid compromise was never challenged if it was not executed by Tullu Singh and though it was made the basis of the decision rendered by the Settlement Officer of Consolidation in the years 1977.

Moreover, there is no explanation as to why the revision was preferred after four years and especially after Tullu Singh had expired. As Tullu Singh during the life time never assailed the compromise nor sought to file the revision within time, hence in the aforesaid facts and circumstances, this Court is not inclined to interfere with the findings of fact recorded by the two courts which is based on material on record.

Learned counsel for the petitioners could not indicate how the findings recorded by the Settlement Officer of Consolidation and the Deputy Director of Consolidation are erroneous; inasmuch as both the authorities have taken note of both the oral as well as documentary evidence. There is not a whisper in the petition to indicate that the findings are based on improper appreciation of the evidence or that it is against the weight of the material on record. Neither the evidence nor documentary evidence which was placed before the two authorities have been brought on record. In this view of the matter, it is not open for the petitioners to assail the aforesaid findings.

The writ petition is concluded by findings of fact and this Court does not find that there is any error committed by the two authorities, hence this Court refrains from interfering in the aforesaid matter.

The writ petition is devoid of merit and is, consequently, dismissed. In the facts and circumstances, there shall be no order as to costs.

Order Date :- 8.7.2021

ank