Soteem And Others vs Upper Commissioner Judicial Iind ...
2022 Latest Caselaw 21579 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved on: 16.09.2022.
 
Delivered on:19.12.2022.
 
Court No. - 30
 

 
Case :- WRIT - C No. - 37294 of 2006
 

 
Petitioner :- Soteem And Three Others (all deceased) through legal representatives.
 
Respondent :- Upper Commissioner Judicial IInd Varanasi Division And Ors.
 
Counsel for Petitioner :- Anant Vijay,Anand Kumar,Ashok Kumar Rai,Shyam Sunder Maurya
 
Counsel for Respondent :- C.S.C.,Pramod Kumar Sinha
 

 
Hon'ble Umesh Chandra Sharma, J.

1. Heard learned counsel for the petitioners and learned Standing Counsel for the State and perused the record.

2. The petitioners have filed the present writ petition for quashing the impugned orders dated 04.04.2006 passed by the Additional Commissioner (Judicial) II, Varanasi - respondent no. 1 in Revision Nos. 575, 515/355/482/94386 of 1992 District Ghazipur as well as order dated 30.04.1992 passed by Sub Divisional Officer, District- Ghazipur in Case No. 36/31/157 under Section 33/39 U.P. L.R. Act, 1901.

3. The brief facts of the case are that disputed plots nos. are 513, 515 & 518, out of which plot nos. 513 & 518 were recorded in the name of the petitioners from 1360-Fasali in C.H. Form-41, and its old plot nos. were 544 and 533. The petitioners have annexed extract of Khatauni no. 1369-Fasali and C.H. Form 41 dated 21.08.1987 as Annexure No. 1.

4. During the consolidation Proceeding C.H Form No.-45 was prepared, in which petitioner's father was recorded as Sirdar, which is Annexure no. 2. On 15.10.1986 father of the respondent nos. 3 to 6 moved an application under Section 33/39 of U.P. Land Revenue Act, 1901, praying therein for mutation of his name in respect of new plot nos. 515 and 518 deleting the name of the petitioners on the basis of the order dated 10.11.1964 alleged to have been passed by the Settlement Officer of Consolidation in Suit No. 499 of 1790.

5. The petitioners raised an objection that application was moved after 26 years on the basis of forged orders, it was also objected that under Section 33/39, such application cannot be entertained and the application was barred by Section 49 of the C.H. Act. It has also been specifically objected that during the Consolidation, no case was proceeded between the parties about the land-in-dispute allotted to the petitioners. After making a detailed inquiry and inspection as well as after hearing the matter the concerned Naib Tehsildar submitted his report dated 26.10.1991 recommending rejection of the application to the respondent no. 2 - S.D.O.

6. The respondent no. 2, vide his order dated 30.40.1992 allowed the application dated 15.10.1986 directing the deletion of name of the petitioners from the land-in-dispute, which is annexed as Annexure 4.

7. The petitioners on 22.05.1992 filed a Revision No. 94 of 1992 - Soteem and others Vs. Ghar Bharan and others before respondent no. 1 - Upper Commission (Judicial-II) challenging the order dated 30.04.1992 passed by respondent no. 2. The memo of revision is annexed as Annexure No. 5. Respondent no. 1 vide his order dated 29.05.1992 stayed the impugned order dated 30.04.1992 passed by respondent no. 2, which is Annexure no. 6. The respondent no. 1, vide his order dated 04.04.2006 dismissed the Revision, which is annexed at Annexure no. 7. The respondent nos. 1 and 2 have passed the orders in arbitrary manner without giving any finding in respect of fraud played by the respondents, which is against the set principle of law. The Court below failed to consider that no explanation, about inordinate delay of 26 years have been given by the respondents for moving the application for mutation and failed to consider the long standing entry of revenue record. The respondent no. 2 without any basis recorded perverse finding that after the death of Jodhi his heirs Murali and others are in possession over the plot-in-dispute. The Revisional Court did not record any finding in respect of possession. The certified copy of the order dated 10.11.1964 was never produced before the court below by the respondents and the same is not available in record room as per the office report. The court below illegally discarded the report of Naib Tehsildar in respect of Mutation, in which he has specifically proposed that after such delay no such application can be allowed. The petitioners are still in possession over the land-in-dispute and their names are running recorded even since the time of their ancestors. The petitioners filed questionnaire dated 08.06.1995 issued by the Record Officer (Revenue), in which it has been answered that file of Case No/ 499 of 1790 date of order dated 10.11.1964 was not sent to the Record Room, which has not been considered by the Revisional Court, which is annexed as Annexure 8 and when the record was not in the Record Room, the Revenue Authority has no power to disturb the entry of the revenue record after 26 years. The courts below have passed the order on presumption, conjuncture and surmises, which is not sustainable in the eyes of law. On the basis of aforesaid facts, the petitioners have prayed to quash the impugned orders.

8. Learned counsel for the respondents have filed counter affidavit and have denied the allegations levelled by the petitioners and has submitted that father of the contesting respondents 3 to 6 moved an application dated 15.10.1986 for mutation of his name in the revenue record on the basis of order dated 23.12.1962 passed by the Consolidation Officer and the order dated 10.11.1964 passed by S.O.C in respect of plot nos. 513 old no. 545 area 0-6-16, plot no. 515 old no. 544 area 0-8-12 and plot no. 518 old no. 545 area 0-17-12. It was specifically mentioned in it that the applicants/petitioners were in exclusive possession of the aforesaid plot numbers, copy of the same is annexed as Annexure No. CA-1. Objection dated 29.10.1987 filed by the petitioner was based on surmises and conjectures and there were no details as to how the petitioners are the owner of disputed land. It is settled law that mere entry in revenue records does not confer any right. The Consolidation Courts held that father of the contesting respondents late Jodhi was a Bhumidhar with non-transferable right of the disputed land, while the petitioners had neither declaration of any Court in their favour nor they have produced any document in support of their claim, a copy of the same is annexed as Annexure No. CA-2.  The report of Naib Tehsildar Sadar dated 26.10.1991 is baseless and is a bogus document as it has been prepared in cursory manner. The order passed by respondent nos. 1 and 2 are just and proper and they are based on cogent grounds and are in accordance with law. The order passed by the Consolidation Courts were never challenged by the petitioners before the Competent Court, hence it became final between the parties. On the basis of wrong entries in the revenue record judgments of the Competent Court cannot be nullified. The contesting respondents are in exclusive possession of the disputed land, a true photocopies of the Khatauni No. 1408 - 1413 Fasli, Kisan Bahi and CH. Form No. 11 are enclosed as CA-3 to the counter affidavit. The writ petition is devoid of any merit and deserves to be dismissed with cost.

9. The petitioners have filed rejoinder affidavit, denying the averments of counter affidavit and have repeated the same story of the writ and have given parawise reply and have said that the plot nos. 513, 515 and 518 old nos. 544 & 545 were recorded in the name of petitioner's father late Ziyut Bhandhan S/o Hanshraj as Sirdar from 1360 - 1371 Fasali. On 15.10.1986, father of the respondent no. 3 to 6 Late Jodhi filed an application under Section 33/39 of U.P. L.R Act, 1901 and prayed for mutation of his name in respect of plot no. 513, 515 and 518 after deletion of the name of the petitioners on the basis of order date 23.12.1962 passed by Consolidation Officer in Case No 13/1962 and order dated 10.11.1964 passed by Settlement Officer Consolidation in Appeal No. 499 / 1790. Late Jodi father of respondent nos. 3 to 6 arrayed Ziyut Bhandhan as respondent and after his death his sons 1/1 to 1/4 Badri, Ganga, Shiv Pujan, Sita Ram, Mangroo, Jang Bahadur and Lal Ji. Application under Section 33/39 of U.P.L.R Act was moved after a delay of 22 years, it appears that both the orders of Consolidation Officer and Settlement Officer Consolidation were forged because Ziyut Bandhan was never served any notice or summon and he was quite unaware about the aforesaid proceedings. Jodhi was not entitled to move the aforesaid application and it was barred by Section 49 C.H. Act.

10. From the perusal of the record, it has been established that the petitioners had not challenged the order of S.O.C, hence it has become final. There is no iota of evidence that order of the S.O.C had been challenged by the father of the petitioners or by the petitioner in superior courts. On the basis of question-answer, the petitioners have argued that no such file regarding decision of S.O.C is available, but it is very much clear from the order of S.D.O. Ghazipur that after a lapse of time the concerned file has been weeded out, therefore it is not available in record room. In that situation it can not be argued that there was no such file and no such case was decided by the C.O. and the S.O.C, during the consolidation. The respondents' and petitioners' father Jyodhi and Jeeyut Bhandhan, had contested the case and S.O.C passed an order about the plots in suit in favour of Jyodhi, therefore it can not be said that the case of the respondents is barred by Section 49 of the C.H. Act.  Contrary to it when no appeal/revision had been preferred by Jeeyut Bhandhan or by the petitioners, the dispute ended by the order of S.O.C. during the consolidation and when it was not challenged then it can safely be concluded that the petitioners' case is barred by Section 49 of the C.H. Act.  C.H Form 11 is available on record, in which order of S.O.C. is available, which confirms the right, title and interest of the respondents' father and thereafter the petitioners can not deny the title of the respondents' father and the respondents.  It is settled law that entries in revenue record are not conclusive proof and are not the record of title, they are only for the purposes to collect the revenue.

"17.   Supreme Court in Vishwa Vijay Bharati v. Fakhrul Hassan, AIR 1976 SC 1485, held that it is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine not forged or fraudulent, entries.  The distinction may be fine but it is real. The distinction is that one can not challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title. This judgment has been followed in Wali Mohhd. v. Ram Surat, AIR 1989 SC 2296. Again in Vikram Singh Junior High School v. District Magistrate (Fin. & Rev.), (2002) 9 SCC 509, it has been held that the entry in the revenue record, must have a legal basis."

11. In this case after the order of S.O.C available in C.H-11 (Part-II), it was the duty of the concerned officials to get it mutated and forwarded in future records, but there is a note that this order is entered here due to non-availability of space in concerned Khata. Probably the mistake started due to non recording of the order of S.O.C in concerned Khata. Therefore, the name of the petitioners' father continued in C.H. 41, 45 and later on in Khatauni. The petitioners could not place any order in favour of their father of themselves. From the order of S.O.C the right, title and interest of the petitioners about the property in suit had been extinguished and because it was not challenged in any superior competent court, it become final. If the order of S.O.C was not forwarded in future records, it would not create any right, title or interest in favour of Jeeyut Bhandhan or the petitioners and it shall also not create any hindrance, estoppel or acquiescence against the respondents. If an entry is bogus, false and baseless it has no value in the eyes of law, how long it is.

12. The petitioners are only hammering and emphasizing on long standing entry in favour of their father and themselves, but since it is a wrong entry, therefore how so much long, it would not create any right to the petitioners and their father, it would remain always inadmissible and void ab-initio. 

It would be expedient to describe Sections 33/39 L.R. Act below.

"33. The annual registers. - (1) Tire Collector shall maintain the record-of-rights, and for that purpose shall annually, or at such longer intervals as the [State Government] may prescribe, cause to be prepared an amended [register mentioned in Section 32.]

The [register] so prepared shall be called the annual register.

[(2) The Collector shall cause to be recorded in the annual register -

(a) all successions and transfers in accordance with the provisions of Section 35; or

(b) other changes that may take place in respect of any land ; and shall also correct all errors and omissions in accordance with the provisions of Section 39 :

Provided that the power to record a change under clause (b) shall not be construed to include the power to decide a dispute involving any question of title.]

(3) [No such change or transaction shall be recorded without tire order of the Collector or as hereinafter provided, of tire Tahsildar or [the Kanungo].]

[(4) The Collector shall cause to be prepared and supplied to every person recorded as bhumidhar, whether with or without transferable rights, assami or Government Lessee a Kisan Bahi (Pass book) which shall contain -

(a) such extract from the annual register prepared under sub-section (1) relating to all holdings of which he is so recorded (either solely or jointly with others);

(b) details of grants sanctioned to him; and

(c) such other particulars as may be prescribed :

Provided that in the case of joint holdings it shall be sufficient for the purpose of this sub-section of Kisan Bahi (Pass book) is supplied to such one or more of the recorded co-sharers as may be prescribed.

(4A) The Kisan Bahi (Pass book) referred to in sub-section (4) shall be prepared in such manner and on payment of such fee, which shall be realisable as arrears of land revenue, as may be prescribed.

(5) Every such person shall be entitled, without payment of any extra fee, to get any amendment made in the annual register under sub-section (2) incorporated in his Kisan bahi (Pass book.)]

(6) The State Government may make rules to carry out the purposes of this section, including, in particular , rules, prescribing the mode of reception in evidence, and of proof in judicial proceedings, of entries in the [Kisan Bahi (Pass Book)], and the mode of its revision and authentication up-to-date and for issue of duplicate copies thereof, and tire fees, if any, to be charged for any of the said purposes.

(7) In this section, 'prescribed' means prescribed by rules made by the State Government.

(8) Nothing in sub-sections (4) to (7) shall apply in relation to any area which is either under consolidation operations or under record operations.

39. Correction of mistakes in the annual register. -(1) An application for correction of any error or omission in the annual register shall be made to the Tahsildar.

(2) On receiving an application under sub-section (1) or any error or omission in the annual register coming to his knowledge otherwise, the Tahsildar shall make such inquiry as appears necessary and then refer the case to the Collector, who shall dispose it of, after deciding the dispute in accordance with the provisions of Section 40.]

[Provided that nothing in this sub-section shall be construed to empower the Collector to decide a dispute involving any question of title.]

(3) The provisions of sub-sections (1) and (2) shall prevail, notwithstanding anything contained in the U.P. Panchayat Raj Act, 1947."

In Mohd. Anis Vs. The Additional Commissioner, Allahabad Division, 2001 RD 761, it is held that wherever and whenever on a basis of a sale-deed, a person got his name recorded in Khatauni and such sale deed is cancelled by competent civil court, then the Collector or S.D.O has no option but to correct the Khatauni in pursuant to judgment, passed by civil court provided such decree has attained finality instead of relegating proceedings under Section 34 of the Act.

In this case order of S.O.C is final hence it was duty of the Collector to correct the register of record - of - rights. Hence the impugned orders are in conformity with the aforementioned judgment.

In Sri Ram Vs. Gram Sabha 1997 R.D 549 on a complaint by Pradhan, notices were issued to Sri Ram and Dulare under Section 33 read with Section 39. After approval from the Collector their names were expunged from the records. In revision, the Board held that the title to land does not descend in consolidation proceedings from heaven, like Manna and Salwa of Biblical story. The revisionist could not produced any evidence to show that their title was duly recognized during consolidation proceedings. It was also held that the action should have been taken either by the Collector appointed Under Section 14 or by the acting Collector appointed under Section 15 of the Act. In the instant case it is difficult to know as to who passed the decisive order. Revision was however dismissed.

Applying the principle laid down in the cited case it can be concluded that no order regarding entry in favaour of the petitioner's father Jeut Bandhan was passed during the consolidation.

In Kamta Prasad Vs. Board of Revenue, 1985 R.D 411 it was held that if the consolidation authorities declared Smt. Kanti Devi as co-tenure holder and the said order could not be incorporated in the revenue records, such orders do not become non-est after de-notification under Section 52 (1) of C.H. Act. These orders cannot be challenged before any civil or revenue court because of the bar of Section 49 of the said Act. After the close of the consolidation operations, the Collector can not refuse to do it merely on the ground that consolidation authorities themselves ought to have carried out the work of Amaldaramad.

The facts of the case in hand and of the cited case are quite similar, therefore the principles laid down in the cited case apply in favour of the respondents.

In Nandhu Vs. Ram Jatan 1987 R.D, 274, it is held that only such entries made during consolidation operations, which have been legally and correctly made carry presumption of correctness. Where an apparent mistake has crept in C.H. Form 23, it can be rectified in proceedings under Section 33 and 39 of the L.R. Act, because the duty of maintaining correct record lies on the Collector. The principles laid down in this precedent is also in support of the respondents case.

13. Another ground has been taken by the petitioners that when the order was passed by the S.D.O. and the Commissioner, second successive consolidation proceeding was going on, hence they were not competent to entertain the petition and pass the order. 

14. It is argued by respondent's counsel that under sections 33/39 of the L.R. Act, it is the duty of the Collector and Tehsildar, to correct all errors and omissions in accordance with the provisions of Section 39 and to maintain annual register of the record- of- rights and if any application is moved for correction of error or omission, it would be entertained and suitable order shall be passed. It is made clear that by the impugned orders both the courts below have not decided a dispute involving any question of title. They have only corrected the errors and omissions according to the orders passed during the first consolidation operation. No question of title remained to be decided in second consolidation operation.

15. It would be noteworthy that by passing the impugned order, the lower courts were not interfering in the jurisdiction of the consolidation courts as after termination of the consolidation proceedings, it was the duty of the revenue authorities to remove the errors and correct the record-of-right and to maintain the correct records. It was also their duty to comply with the orders of the consolidation courts passed during the consolidation proceedings. Why the order of S.O.C was not entered into the right place, has also been discussed.  Initially the petitioners were not the party to the suit before the C.O. and S.O.C, therefore how the petitioners could say that their father had not received the notice and had not contested the case in consolidation courts. It appears that this denial is for the sake of denial and is a bald denial without any cogent reason. Thus it can not be said that their father had not participated in the proceeding/litigation with the father of the respondents, therefore, such denial has no legal sanctity and the existence of the file can not been denied.

16. At one point of time the petitioner's counsel argued that the revenue authorities had no right to pass the impugned order, as the second time consolidation proceedings were going on, when the impugned orders were passed. On the other hand they say that property in suit is Chak out, if the property is Chak out as alleged by the petitioners, then it becomes out of the scope and jurisdiction of the consolidation courts. In that case also the revenue authorities had right to pass the impugned order under Section 33/39 of the L.R. Act.

17. It transpires that both the orders had been passed after giving proper opportunity of hearing of evidence during the consolidation proceedings title of the petitioners' father had not been found correct and the property in suit were ordered to be recorded in the name of respondents' father.  Order of the Consolidation Court have not been challenged in any competent authority.  The order was not forwarded and entered into future record, therefore, if the revenue authority found fit to correct the record in accordance of the order of the consolidation court, there is no bar at all.

18. The S.D.O. in his order has referred the order of S.O.C. dated 10.11.1964, which has been inscribed as Amaldaramad regarding Arazi No. 545-C in the name of Jyodhi S/o Charittar, rejecting the name of the petitioners' father Jeeyut Bandhan S/o Hans Raj.

19. It is evident from the question answer that the file decided by the S.O.C had been weeded out from which it is clear that a case between the parties had been decided in favour of Jyodhi.  S.D.O has also referred that as per the report of land Inspector dated 26.04.1987 after the death of Jyodhi respondents Murali etc. sons of late Jyodhi are in possession.

20. Learned S.D.O. has also referred a citation 1988 A.W.C Page 77, in which it is held that an application can be maintained under Section 33/39 of the C.H Act for correction of record based on the basis of order passed by the Consolidation Court.  In this precedent, it has also been held that there is no time limit regarding correction of record on the basis of the order passed by the Consolidation Court.

21. In this regard, respondents' counsel has also cited 1986 R  D Page 206 - 209, in which it has also been held that there is no time limits for correction of the record.

22. The order of the S.D.O. was challenged in the Court of Commissioner Varanasi Mandal, Varansi, in revision which has affirmed the order of S.D.O. The petitioner's counsel referred some judicial precedents and argued that since the name of the revisionist was recorded as Bhumidhar, with non transferable rights, therefore, their names could only be challenged by way of regular suit.

23. Contrary to that, on the basis of judicial precedents and arguments of the respondents it had been argued that the impugned orders have been passed on the basis of the order of C.O. dated 23.12.1962 and S.O.C dated 10.11.1964, hence the orders are factually and legally correct and are not liable to be interfered with and it was duty of the Collector and Tehsildar to correct the errors and omissions in the Record - of - Rights.

24. Thus, it is concluded that the right title and interest between the parties predecessors had already been finally adjudicated by the C.O and the S.O.C during the consolidation proceeding, which ended in favour of the respondents' father Jyodhi and it was incorporated in Aakar Patra 11 (part II). Due to insufficient space, it was not incorporated in  the concerned Khata, which created doubt and the orders of the C.O and S.O.C were not forwarded and entered in C.H. Farm No. 41 and 45  and later on in Khatauni, thus, it is concluded that there was no basis of the entries in favour of Jeeyut Bandhan and thereafter the name of the petitioners were also wrongly entered in the Revenue Records, mere on the basis of baseless and illegal entries, no right accrues to the petitioners. Thus, order of the Courts below are found to be correct and need no interference. Therefore, petition lacks merit and liable to be dismissed.

25. The petition is dismissed accordingly.

Order Date :- 19.12.2022.

Vinod.

{Umesh Chandra Sharma, J.}