Bhagwati Deen vs Sheetladin And Others
2022 Latest Caselaw 4021 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
AFR
 
Court No. - 20
 
Case :- WRIT - B No. - 1528 of 1983
 
Petitioner :- Bhagwati Deen
 
Respondent :- Sheetladin And Others
 
Counsel for Petitioner :- M.Sultan,M.Sultan,R.R. Dev,Ripu Daman Shahi,Vijai Bahadur Verma
 
Counsel for Respondent :- C.S.C.,S.P.Shukla,Saryu Prasad Tiwari
 

 
Hon'ble Jaspreet Singh,J.

1. In the instant petition, the dispute relates to Plot Nos. 1838/1, 1823/1, 1816, 1817, 1815, 1824/2 and 1828/1 of Gata No. 306 of Village Lokpur, Pargana, Barsona, Tehsil and District Sultanpur which was recorded in the name of the private respondent nos. 1, 2 and 3 in the basic year Khatauni.

2. The petitioner had filed his objections under Section 9-A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as Act of 1953) staking claim over the disputed plots on the ground that the petitioner was in occupation of the disputed plots in question much prior to the abolition of Zamindari and thus had acquired sirdari rights in the land in dispute after the abolition of Zamindari. An alternate plea was also raised that since the petitioner was recorded as an occupant in 1359 Fasli and was in cultivatory possession. three years prior to the abolition of Zamindari, hence, he acquired adhivasi rights which later matured into sirdari in 1362 Fasli and continued to be in possession.

3. It was also stated that the private respondents were influential persons who by using their influence got the name of the petitioner expunged and replaced by their own names. On becoming aware of the aforesaid, the petitioner had instituted a suit under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, (hereinafter referred to as U.P.Z.A. & L.R. Act) for declaration of his rights before the Competent Court, however, with the commencement of Consolidation Operations, the suit of the petitioner abated in light of the order dated 19.07.1975.

4. It was also stated that the petitioner had been conferred with sirdari rights in terms of Section 240 (J) of the U.P.Z.A. & L.R. Act and the private respondents had received compensation in respect of the land, accordingly, all rights of the private respondents got extinguished and they could not claim any right in the disputed plots nor re-agitate the claims.

5. The private respondents contested the objections filed by the petitioner before the Consolidation Officer on the ground that the private respondents were recorded as cultivatory tenants having hereditary rights. They had acquired sirdari rights and continued to be in possession, prior to the abolition of Zamindari and even thereafter. Even during the first consolidation, there was some dispute regarding the rights of the private respondents which was duly adjudicated and the records were corrected and the names of the private respondents continued. It was also stated that the alleged entry in favour of the petitioner was false and fictitious and no benefit of the same could be claimed by the petitioner.

6. It was also stated that the private respondents had not received any compensation and proceedings under Section 240 (J) of the U.P.Z.A. & L.R. Act, if any, were not in accordance with law nor the same had any effect on the rights of the private respondents.

7. The Consolidation Officer, (Area No. 4, Musafikhana), Sultanpur by means of his order dated 07.10.1980 accepted the contentions of the petitioner and after deleting the name of the private respondents incorporated the name of the petitioner in respect of the disputed plots. The private respondents being aggrieved against the order of the Consolidation Officer dated 07.10.1980 preferred an appeal under Section 11 (1) of the U.P.C.H. Act which came to be allowed by the SOC, Sultanpur by means of order dated 30.11.1981.

8. The petitioner being aggrieved against the aforesaid order dated 30.11.1981 passed by the SOC, Sultanpur in appeal preferred a revision under Section 48 of the U.P.C.H. Act, 1953 before the Deputy Director of Consolidation, Sultanpur which was dismissed by means of order dated 30.11.1981 affirming the order passed by the SOC.

9. Being aggrieved against the aforesaid two orders, the petitioner instituted the instant petition wherein this Court by means of order dated 17.03.1983 admitted the petition. During the pendency of the petition, the original petitioner Bhagwan Deen expired and was substituted by his son whereas the private respondent nos. 1, 2 and 3 also expired and are represented by their legal heirs. However, for the sake of convenience, this Court shall be referring to the parties as originally impleaded at the time of institution of this petition. The parties have exchanged their counter and rejoinder affidavits including the supplementary affidavit which is on record.

10. Sri Vijay Bahadur Verma and Sri R.D. Shahi, learned counsel for the petitioner have attacked the order passed by the SOC, Sultanpur and the DDC, Sultanpur primarily on three grounds:-

(i) It is urged that the two courts have erred in misconstruing the provision of Section 20 and Section 240 (J) of the U.P.Z.A. & L.R. Act. It has been submitted that ample evidence was brought on record to establish that the petitioner was recorded in 1359 Fasli as well as 1362 Fasli. In terms of Section 20 of the U.P.Z.A. & L.R. Act, any person in occupation and cultivatory possession acquired adhivasi rights which later in terms of Section 240 (A) to 240 (M) which was introduced by the U.P. Act No. 20 of 1954 by inserting Chapter IX-A in the U.P.Z.A. & L.R. Act conferred sirdari rights. It is also submitted that provisions have been misconstrued, inasmuch as, the petitioner was in possession even prior to the abolition of zamindari and in the document which was brought on record Muddatkasht was shown as two years which would indicate that the possession of the petitioner was even prior to the abolition of Zamindar and in any case his name was recorded in 1359 Fasli and thus there was no legal impediment in the conferment of the sirdari rights which had matured by operation of law, accordingly, this aspect of the matter has been completely misconstrued resulting in sheer miscarriage of justice.

(ii) It is also urged that even otherwise in alternate the petitioner had perfected his rights by adverse possession, inasmuch as, he was recorded in 1359 Fasli and Muddatkasht as indicated above was shown to be two years, thus, at the relevant time for perfecting the rights of adverse possession, three years period was provided which was completed successfully by the petitioner and even on this count he had matured his rights by adverse possession and got adhivasi rights which later matured into Sirdari rights and this aspect of the matter has also been misconstrued by both the SOC, Sultanpur as well as the DDC, Sultanpur.

(iii) The third limb of the arguments of the learned counsel for the petitioner is that with the introduction of Chapter IX-A in the year 1954 in the U.P.Z.A. & L.R. Act, once the petitioner was conferred with the sirdari rights and a scheme was prepared whereunder the private respondents received compensation and a final statement was published in terms of Section 240 (J) of the U.P.Z.A. & L.R. Act, thus, in so far as the private respondents are concerned, all their rights extinguished and after having received the compensation, it is not open for the private respondents to claim the land nor stake any right and this aspect has also not been appropriately appreciated by the two Consolidation Authorities.

11. That the learned counsel for the petitioner has relied upon a Special Bench decision of this Court in the case of Avdhesh Singh and Another Vs. Bikarama Ahir and others reported in 1975 RD 132 (Special Bench) as well as on Tauley and others Vs. DDC and others reported in 1982 RD 327.

12. Per contra, Sri S.P. Tiwari, learned counsel for the private respondents urged that:

(i) in order to claim sirdari rights in terms of Section 20 of the U.P.Z.A. & L.R. Act, it was necessary for the petitioner to establish that he was an occupant in 1356 Fasli as well as 1359 Fasli. The petitioner was never recorded in 1356 Fasli and a mere entry which was fraudulent relating to 1359 Fasli, without any basis or backing of an order or not made in accordance with the provisions of the Land Revenue Act cannot confer any benefit on the petitioner. It is also urged that apart from 1359 and 1362 Fasli there is no other document which relates to the entry of the name of the petitioner.

(ii) The contention as raised by the petitioner that he was in possession much prior to the abolition of zamindari is also not substantiated by any material on record. Rather, the name of the answering respondent have throughout being recorded in 1356, 1359, 1362 Fasli. The answering respondent had also filed a Khasra (for 12 years 1366 to 1377 fasli). Even in the first round of consolidation, there was some dispute which was also contested by the answering respondents and the records were corrected incorporating the name of the private respondents. Even at that time the petitioner had raised no objection and this would establish that the answering respondents have been in possession throughout and they had matured their rights of sirdari and consequently they have also been granted bhumidhari rights.

(iii) It is submitted that initially there was an interim order in the instant petition but the petition came to be dismissed for want of prosecution twice and the interim order stood vacated which was never restored and thereafter the answering respondent had made an application under Rule 109-A for implementation of the order passed by the SOC and the DDC which came to be allowed and the names of the answering respondents have been recorded as bhumidhar with transferrable rights in the Khatauni. It has also been pointed out that during the pendency of the petition sometime in the year 2016, the land in question was acquired by the State Government for its Scheme of 6 Lane Purvanchal Expressway. Thus, it is urged that the findings recorded by both the SOC as well as the DDC is based on proper appreciation of the material available on record as well as the law, consequently, the writ petition deserves to be dismissed.

13. The learned counsel for the respondents has relied upon the decision of the Apex Court in the case of Smt. Sonawati and others Vs. Sri Ram and others 1968 RD 151; Bachan and Another Vs. Kankar and others 1972 RD 219; Jagdamba Prasad Vs. Rafiuddin and others 1967 RD 173 (DB).

14. The Court has heard the learned counsel for the parties at length and also carefully perused the material available on record.

15. In order to appreciate the respective contentions, it would be relevant to notice that the claim of the petitioner is primarily based on his possession and as per the petitioner, he was in possession as an occupant prior to the abolition of zamindari and his name is also recorded as evident from the Khatauni of 1359 fasli. Reliance has also been placed upon the Khatauni of Village Lokpur, Pargana, Barsona, Tehsil and District Sultanpur, Khata 1/37 wherein the name of Bhagwati Deen, the petitioner has been shown with muddat kasht two years in Part-II as shikmi. Even in Khatauni Part-II of 1362 Fasli Khata No. 149, name of Bhagwati Deen has been shown as Shikmi and reliance has also been placed on Form 101-ZA to buttress the submissions that the adhivasi rights of the petitioner matured into sirdari. Irrigation receipts had also been filed by the petitioner and his son Dharmraj also examined himself before the Consolidation Officer reiterating his stand and stated by him that since his father Bhagwan Deen, the petitioner had become old and was not able to see or walk properly, accordingly, in his place Dharmraj led the evidence.

16. On the other hand, the private respondents had filed the Khatauni of 1356 fasli and 1364 to 1369 fasli, Khasra for 12 years, 1366 to 1377 fasli, CH Form-6 and led his evidence before the Consolidation Officer.

17. It is on the basis of the aforesaid documentary and oral evidence led by the parties that the Consolidation Officer found that since the name of the petitioner was recorded in 1359 fasli and with the advent of Section 240 incorporated in Chapter IX of the U.P.Z.A. & L.R. Act, the adhivasi rights matured into sirdari rights and also the evidence relating to possession, especially the irrigation receipts filed by the petitioner were taken to be the basis to record that the petitioner was in possession and had been conferred with the sirdari rights and that the name of the petitioner had been incorrectly deleted and that the petitioner had been conferred with sirdari rights, consequently, the name of the respondents was expunged. These findings were upset by the SOC which had been confirmed by the DDC.

18. Before proceeding any further, it will be relevant to notice certain provisions which have been relied upon by the parties to buttress their respective submissions and at the outset, it will be necessary to first ascertain whether any adhivasi rights have been conferred upon the petitioner. It is only if the adhivasi rights were conferred, then only in terms of Chapter IX-A of the U.P.Z.A. & L.R. Act can the sirdari rights be conferred upon such adhivasis.

19. The submission of learned counsel for the petitioner which commences with the plea of having adhivasi rights and having been conferred with sirdari rights and the alternate plea of adverse possession shall be tested in light of the legal provisions and the decision on the aforesaid point rendered by this Court as well as the Apex Court. Section 20 of the U.P.Z.A. & L.R. Act reads as under:-

"20. A tenant of Sir, sub-tenant or an occupant to be an adhivasi.-[Every person who-(a) on the date immediately preceding the date of vesting was or has been deemed to be in accordance with the provisions of this Act]-

(i) except as provided in [sub-clause (i) of Clause (b)], a tenant of sir other than a tenant referred to in Clause (ix) of Section 19 or in whose favour hereditary rights accrue in accordance with the provisions of Section 10; or

(ii) except as provided in [sub-clause (i) of Clause (b)], a sub-tenant other than a sub-tenant referred to in proviso to sub-section (3) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947), or in sub-section (4) of Section 47 of the United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939) of any land other than grove land,

(b) was recorded as occupant,-

(i) of any land [other than grove land or land to which Section 16 applies or land referred to in the proviso to sub-section (3) of Section 27 of the U.P. Tenancy (Amendment) Act, 1947] in the khasra or khatauni of 1356-F prepared under Section 28 [33] respectively of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901), or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under Clause (c) of sub-section (1) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947); or

(ii) of any land to which Section 16 applies, in the [khasra or khatauni of 1356 fasli prepared under Sections 28 and 33 respectively of] the United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901), but who was not in possession in the year 1356-F;

shall, unless he has become a bhumidhar of the land under sub-section (2) of Section 18 or an asami under Clause (h) of Section 21, be called adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof."

20. From the perusal of the aforesaid provisions, the part relevant for the instant controversy is Section 20 (b) of the U.P.Z.A. & L.R. Act. The aforesaid provision clearly provides that any person who was recorded as an occupant of any land in the Khasra or Khatauni of 1356 fasli which is prepared under Section 28 and 33 of the U.P. Land Revenue Act, 1901 or who was on the date immediately preceding the date of vesting entitled to regain possession thereof.

21. It is in this light, if the documents filed by the respective parties are seen, it would indicate that the petitioner had filed the Khatauni of 1359 fasli and 1362 fasli. It is not disputed that the petitioner has not filed the Khasra. His case is only on the basis of Khatauni of 1359 and 1362 fasli, thus, in terms of Sub Clause (b) of Section 20, the Khasra and Khatauni of 1356 fasli has not been filed nor is it the basis of the claim of the petitioner. Rather, he has developed his case by summiting that in the Khatauni of 1359 fasli, muddat kasht of 2 years has been shown which necessarily will relate back to 1356 fasli, consequently, he submits that he gets the right of adhivasi in terms of the aforesaid provision.

22. In the said breath, he further urges that since he has been in possession for three years, accordingly, he had even perfected his rights by adverse possession and thus Section 20 (b) which refers to the word "any person in occupation would also include a person who has perfected his rights by adverse possession" hence rights of adhivasi came to be bestowed in terms of the Act and with the advent of Chapter IX-A by operation of law, his rights of adhivasi matured in sirdari rights.

23. At this stage, it will be relevant to notice that in so far as the law of adverse possession in respect of revenue land is concerned it is a little different from the law of adverse possession relating to the buildings and urban properties. In so far as the limitation for perfecting rights by adverse possession as applicable to revenue lands is concerned it was initially a period of continuous possession for two years but later w.e.f. 09.04.1955, the same came to be extended to three years. Later, in the year 1957, this was enhanced to 6 years and in respect of the land belonging to Gram Sabha, it was 12 years. Subsequently, in the year 1971, a further amendment was introduced which enhanced the limit and the period for claiming adverse possession became 12 years and in respect of land belonging to Gram Sabha it was 30 years.

24. In the aforesaid backdrop and the limitation which has been enhanced progressively in terms of Section 209 of the U.P.Z.A. & L.R. Act which relates to eviction of a person in un-authorized occupation. However, at the relevant time in 1955, it was 3 years which is to be seen for the purposes of the instant case.

25. It is also to be noticed that any person who claims the right of adverse possession must show that he has been in continuous possession over the land in question. His name has been duly incorporated in terms of the record prepared under the Land Record Manual. The Khatauni which is prepared should be in accordance with the provisions of the Land Record Manual and thus the person pleading adverse possession must show not only his possession but the entries have been prepared in accordance with the provisions of the Land Record Manual and the same was also in the knowledge of the true owner who has been served with Form PA-10 and despite the same he did not take any action to seek the eviction of such person in terms of the limitation provided only then the right can be claimed.

26. It is also to be remembered that since the person pleading adverse possession does not have any special equities in his favour, consequently, it is his burden to discharge and show that the entries were prepared in accordance with law and in case if the entries have not been prepared in accordance with the provisions contained in the Land Record Manual then the plea cannot be successfully allowed.

27. In this regard, it will be relevant to notice the decision of this Court in the case of Putti and others Vs. Assistant Director of Consolidation, Bahraich and others reported in 2006 SCC Online (Alld) 1286 which has been considered in a subsequent decision dealing with the law regarding adverse possession in detail in Babu Ali Vs. DDC and Others reported in 2021 (8) ADJ 579.

28. Lately, this Court also had the occasion to consider the aforesaid issue of adverse possession in the case of Chit Bahal Singh and others v. Joint Director of Consolidation and others, decided on 29.04.2022 and by relying upon the decision of Babu Ali and another v. D.D.C. and others (Supra) the plea of adverse possession was rejected. The relevant paras explaining the law and the preparation of entries and what ingredients have to be met are being extracted hereinafter:-

"11.The para-89-A, 89-B and 102-B of the Land Records Manual (here-in-after referred as ''the manual'), relevant for the purpose, are extracted below:--

"89-A. List of changes.-After each Kharif and rabi portal of a village the Lekhpal shall prepare in triplicate a consolidated list of new and modified entries in the Khasra in the following form:

Form No.P-10

Khasra No.

of

Plot

Area

Details of entry in the last year

Details of entry made in the current year

Verification report by the Revenue Inspector

Remarks

(ii) The Lekhpal shall fill in the first four Columns and hand over a copy of the list to the Chairman of the Land Management Committee. He shall also prepare extract from the list and issue to the person or persons concerned recorded in Columns 3 and 4 to their heirs, if the person or persons concerned have died, obtaining their signature in the copy of the list retained by him. Another copy shall be sent to the Revenue Inspector.

(iii) The Revenue Inspector shall ensure at the time of his partial of the village the extract have been issued in all the cases and signatures obtained of the recipients.

89-B. Report of changes.- The copy of the list with the Lekhpal containing the signatures of the recipients of the extracts shall be attached to the Khasra concerned and filed with the Registrar (Revenue Inspector) alongwith it on or before 31st July, of the following year (sub-paragraph (iv) of the paragraph 60).

102-B. Entry of possession (Column 22) (Remarks column).- (1) The Lekhpal shall while recording the fact of possession in the remarks Column of the Khasra, write on the same day the fact of possession with the name of the person in possession in his diary also, and the date and the serial number of the dairy in the remarks Column of the Khasra against the entry concerned.

(2) As the list of changes in Form p-10 is prepared after the completion of the patal of village, the serial number of the list of changes shall be noted in red ink below the entry concerned in the remarks column of the Khasra in order to ensure that all such entries have been brought on the list.

(3) If the Lekhpal fails to comply with any of the provisions contained in paragraph 89-A, the entry in the remarks Column of the Khasra will not be deemed to have been made in the discharge of his official duty."

12. Reading of the aforesaid provisions makes it clear that if any entry is made in PA-10, the same shall be communicated to the person or persons concerned recorded in columns 3 and 4 or their heirs and obtain their signatures. Records on being submitted to the Revenue Inspector, he shall ensure at the time of Padtal i.e. verification of the village that it has been issued in all the cases and the signatures obtained by the recipients. Therefore, in case, any entry made on the basis of adverse possession the same was to be communicated to the person concerned and the person claiming is required to prove that it was in accordance with the manual and as to what was nature of possession and when it started in the knowledge of the tenant and the possession was continuous and how long it continued.

13. This Court considered this issue in the case of Mohd. Raza v. Deputy Director of Consolidation, 1997 RD 276 and held that the entries in the revenue papers not prepared by following the procedure prescribed under the Uttar Pradesh Land Records Manual and PA-10 notice was not served on the main tenant, such entries are of no evidentiary value and would not confer any right.

14. This court, in the case of Gurumukh Singh v. Deputy Director of Consolidation, Nainital, (1997) 80 RD 276, has also held that the entries will have no evidentiary value if they are not in accordance with the provisions of Land Records Manual and the burden to prove is on the person who is asserting the possession on the basis of adverse possession. Relevant paragraphs 6 and 7 are extracted below:--

"6. It is clear from Para A-102C of the Land Records Manual that the entries will have no evidentiary value if they are not made in accordance with the provisions of Land Records Manual. There is presumption of correctness of the entries provided it is made in accordance with the relevant provision of Land Records Manual and secondly, in case where a person is claiming adverse possession against the recorded tenure-holder and he denies that he had not received any P.A. 10 or he had no knowledge of the entries made in the revenue records, the burden of proof is further upon the person claiming adverse possession to prove that the tenure-holder was duly given notice in prescribed Form P.A. 10. Para A-81 itself provides that the notice will be given by the Lekhpal and he will obtain the signature of the Chairman, Land Management Committee as well as from the recorded tenure-holder. It is also otherwise necessary to be provided by the person claiming adverse possession. The law of adverse possession contemplates that there is not only continuity of possession as against the true owner but also that such person had full knowledge that the person in possession was claiming a title and possession hostile to the true owner. If a person comes in possession of the land of another person, he cannot establish his title by adverse possession unless it is further proved by him that the tenure-holder had knowledge of such adverse possession.

7. In Jamuna Prasad v. Deputy Director of Consolidation, Agra, this Court repelled the contention that the burden of proof was upon the person who challenges the correctness of the entries. It was observed:

"Learned counsel for the Petitioner argued that there was a presumption of correctness about the entries in the revenue records and the onus lay upon the Respondent to prove that the entries showing the Petitioner's possession had not been in accordance with law. This contention is untenable Firstly, it is not possible for a party to prove a negative fact. Secondly, the question as to whether the notice in Form P.A. 10 was issued and served upon the Petitioner also is a fact which was within his exclusive knowledge."

"Petitioner's contention that the burden lay on the Respondents to disprove the authenticity and destroy the probative value of the entry of possession cannot be accepted. In my opinion, where possession is asserted by a party who relies mainly on the entry of adverse possession in his favour and such possession is denied by the recorded tenure-holder, the burden is on the former to establish that the entries in regard to his possession was made in accordance with law."

15. This Court, in the case of Sadhu Saran v. Assistant Director of Consolidation, Gorakhpur, (2003) 94 RD 535, has held that it is well settled in law that the illegal entry does not confer title. Therefore even if the entry has been made, it does not confer right title or interest if it is not in accordance with law and the prescribed procedure. This Court and the counsel for the parties also could not get the same in the Lekhpal diary. The provision of PA-24 has come vide notification dated 03.07.1965, therefore it is also of no assistance because entry could not have been made on the basis of PA-24 in Khatauni of 1373 fasli and it is also without number and year.

16. This Court, in the case of Putti v. Assistant Director of Consolidation, Bahraich, (2007) 2 All LJ 43, has held that the court should be slow to declare the right on the basis adverse possession otherwise it may become a weapon in the hands of mighty persons to acquire the property of the weaker sections of society. It has further held that there shall not be presumption of continuous possession to declare right and title on the basis of adverse possession unless year to year entries made in accordance with law in the Khasra or Khatauni and proved by cogent and trustworthy evidence, the burden to prove which is on the person who claims Sirdari or Bhumidhari rights on the basis of adverse possession. Relevant paragraph-41 is extracted below:--

"41. Right to claim title on the basis of adverse possession is a legacy of British law. Courts should be slow to declare right on the basis of adverse possession. In case liberal approach is adopted to extend right and title on the basis of adverse possession then it may become a weapon in the hands of mighty persons to acquire the property of the weaker sections of the society. Accordingly, it shall always be incumbent upon the Courts to do close scrutiny of the evidence and material on record within the four corners of law as settled by Apex Court, discussed herein above. Even little reasonable doubt on the evidence relied upon by a party to claim right and title on the basis of adverse possession may be sufficient to reject such claim under a particular fact and circumstance. There shall not be presumption on continuous possession to declare right and title on the basis of adverse possession unless year to year entries made in accordance to law in the Khasra or Khatauni are proved by cogent and trust worthy evidence. burden of proof of such entries shall lie, as discussed herein above, on the person who claims Sirdari or bhumidhari right on the basis of adverse possession. In the absence of any such proof, presumption shall be in favour of recorded tenure-holder whose name has been recorded in column-1 of the Khatauni."

17. The Hon'ble Apex Court, in the case of P.T. Munichikkanna Reddy v.Revamma, 2008 (26) LCD 15, has held that in case of adverse possession, communication to the owner and his hostility towards the possession is must. The relevant paragraphs 19 to 23 are extracted below:--

"19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.

20. While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles.

21. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto, (2005) 8 SCC 330 in that context held:

"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3 SCC 376).

30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd Mohd. Ali v. Jagadish Kalita, SCC para 21)"

22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779 in the following terms:

"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession"

It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner."

29. If the plea of adverse possession of the petitioner is tested in the light of the law as noticed hereinabove, this Court has no hesitation to hold that the plea has not been substantially either pleaded with necessary particulars nor it has been proved as required in law. Needless to state that in order to successfully urge the plea of adverse possession, it has to be specifically pleaded and proved with cogent evidence. The point of time, when the possession begins and when it notably becomes adverse. The entry in the change of possession must be indicated in red ink. Merely an entry of possession is not always adverse to the knowedge of the recorded tenant. Adverse possession is proved not by the period of tenure nor can there be presumption that the adverse possession continues. The limitation

is to be counted from the First of July, following the time of un-authorized occupation and the time of possession year to year. Neither there is any material on record to indicate that the petitioner had indicated that the entries recorded in 1359 Fasli were in accordance with law and that Form PA-10 was duly served on the private respondents and despite their knowledge, they failed to take any action seeking eviction apart from the fact that the petitioner has also not been able to establish that his name finds recorded in the Khatauni in Part-II in red ink. Hence, in absence of the essential ingredients of adverse possession not being met, the aforesaid plea fails.

30. Now, in order to test the plea regarding the petitioner having adhivasi rights, the bare Section 20 of the U.P.Z.A. & L.R. Act has already been noticed hereinabove. Now, it will also be apposite to consider certain relevant decisions regarding conferment of adhivasi rights and in this regard the decision of the Apex Court in the case of Smt. Sonawati (supra) is relevant and the relevant paragraphs of the said decision read as under:-

"4. In order that a person may be regarded as an adhivasi of a piece of land, Section 20(b) of Act 1 of 1951 requires that his name must be recorded in the khasra or khatauni for 1356 Fasli as an occupant. The Assistant Collector has pointed out that according to para 87 of the Land Records Manual it is necessary for a Patwari to make an enquiry about the status of the occupant, and if he thinks that a claimant is an occupant, he should enter the name in red ink in khsra as -- "Kabiz, sajhi etc." Admittedly Pritam Singh was not shown as kabiz or sajhi nor was the entry posted in red ink.

6. It must therefore be held that relying upon the entry of his name in the "remarks" column in the khasra for 1356 Fasli Pritam Singh could not claim that he had established his rights as an adhivasi of the land under Section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951.

7. The alternative case under Section 3 of the U.P. Land Reforms (Supplementary) Act 31 of 1952 may now be considered. Section 3 of Act 31 of 1952 provides, insofar as it is material:

"(1) Every person who was in cultivatory possession of any land during the year 1359 Fasli but is not a person who as a consequence of vesting under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951) (hereinafter referred to as the said Act), has become a bhumidar, sirdar, adhivasi or asami under Sections 18 to 21 of the said Act shall be and is hereby declared to be, with effect from the appointed date--

(a) if the bhumidhar or sirdar of the land was, or where the land belongs jointly to two or more bhumidars or sirdars, all of them were, on the appointed date person or persons referred to in item (i) to (vi) of sub-section (2) of Section 10 of the said Act, an asami from year to year, or

(b) if the bhumidhar or sirdar was not such a person, an adhivasi, and shall be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi, as the case may be, by or under the said Act.

Explanation.--A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar sirdar, adhivasi or asami concerned in the actual performance of agricultural operations."

The section appears to be somewhat involved in its phraseology. But its purport is fairly clear. A person who is not in consequence of the provisions of Sections 18 to 21 of the U.P. Act 1 of 1951 a bhumidhar, sirdar, adhivasi or asami but who is in "cultivatory possession" of land during 1359 Fasli shall be entitled to the rights in respect of that land of an asami from year to year if the bhumidhar or sirdar of the land was on the appointed date a person who is referred to in Items (i) to (vi) of Section 10(2) of the U.P. Act 1 of 1951, and he shall be entitled to the rights of an adhivasi if the bhumidhar or sirdar of the land was not a person referred to in Items (i) to (vi) of Section 10(2). The U.P. Act 31 of 1952 was enacted to grant protection to certain persons who had been in "cultivatory possession" of land in the holdings of bhumidhars or sirdars, and had been or were being forcibly evicted from the land by the tenure holders. The language of the section clearly shows that it was intended to grant the rights of an asami or adhivasi according as the case fell within clause (a) or clause (b) to a person who had been admitted to cultivatory possession and who was in such possession in 1359 Fasli.

9. The scheme of Section 3 of the U.P. Land Reforms (Supplementary) Act, 1952 is different from the scheme of Section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951. Whereas under Act 1 of 1951 the entry is made evidence without further enquiry as to his right of the status of the person who is recorded as an occupant, under Section 3 of the U.P. Land Reforms (Supplementary) Act, 1952, a person who claims the status of an asami or an adhivasi must establish that he was in "cultivatory possession" of the land during the year 1359 Fasli. The expression cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the Explanation. "Cultivatory possession" to be recognized for the purpose of the Act must be lawful, and for the whole year 1359 Fasli. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of Section 3 of U.P. Act 31 of 1952. We are of the view that the Allahabad High Court was right in holding in Ram Krishna v. Bhagwan Baksh Singh that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal v. Muloo that occupation by a wrongdoer without any right to the land is "cultivatory possession" within the meaning of Section 3 of the U.P. Act 31 of 1952.

10. A person who has no right to occupy land may rely upon his occupation against a third person who has no better title, but he cannot set up that right against the owner of the land. It must be remembered that by Section 3 of U.P. Act 31 of 1952 the legislature conferred rights upon persons in possession of land against the tenure holders, and in the absence of any express provision, we are unable to hold that it was intended by the Act to put a premium upon forcible occupation of land by lawless citizens."

31. In Bacchan (Supra) it has been held that if the entries are not genuine, it cannot confer any adhivasi rights and the relevant portion of the said decision reads as under:-

"17.. Section 20 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 speaks of a person recorded as occupant to become adhivasi of the land and will be entitled to take or retain possession as mentioned in the section. One of the principal matters mentioned in the section is that the Khasra or Khatauni of 1356 Fasli is to be prepared under Sections 28 and 33 of the U.P. Land Revenue Act, 1901. The U.P. Land Records Manual in Chapter A-V in para A-55 to A-67 lays down the manner in which the Khasra or the field book showing possession is to be prepared by the Patwari in the areas to which Zamindari Abolition and Land Reforms Act, 1950 applies. There are detailed instructions about the manner in which the enquiry should be carried out about actual possession and change in possession and corrections in the map and field book, the form in which the khasra is to be prepared. The form of khasra is given in para A-80. The form shows that the Lekhpal has to prepare a consolidated list of entries after partial or proper investigation. Again, para A-70 to A-73 to the U.P. Zamindari Abolition and Land Reforms Act show how entries have to be made in khataunis every year showing the nature of tenure of each holder. The khatauni is meant to be a record of tenure-holders. The manner of changes to be made there is laid down in para A-82 to A-83. Entries are to be checked. Extract has to be sent to the Chairman, Land Management Committee as contemplated in paragraph A-82 (iii). In this context Section 20(b)(i) of the U.P. Zamindari Abolition and Land Reforms Act which speaks of the record "as occupant" in the khasra or khatauni of 1355 Fasli refers to the khasra or khatauni being prepared in accordance with the provisions of the Land Revenue Act, 1961. Khasra is the field book provided for by Section 28 of the Land Revenue Act. Khatauni is an annual register prepared under Section 32 of the Land Revenue Act 1951. It has to be emphasised that the entry under Section 20 (b)(i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 in order to enable a person to obtain adhivasi rights must be an entry under the provisions of law."

32. Another decision of the Apex Court in Wali Mohd. Vs. Ram Surat and Others, 1991 (9) LCD 79 is also relevant and in paragraphs 4 and 5, it has been held as under:-

"4. The said section deals with the question as to who is entitled to take or retain possession of the land in question. The plain language of the aforesaid clause (i) of sub-section (b) of section 20 of the said Act suggests that this question has to be determined on the basis of the entry in the Khasra or Khatauni of 1356 Fasli Year prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901. An analysis of the said section shows that under sub-section (b) of section 20 the entry in the Khasra or Khatauni of the Fasli Year 1356 shall determine the question as to the person who is entitled to take or retain possession of the land. It is, of course, true that if the entry is fictitious or is found to have been made surreptitiously then it can have no legal effect as it can be regarded as no entry in law but merely because an entry is made incorrectly that would not lead to the conclusion that it ceases to be an entry. It is possible that the said entry may be set aside in appropriate proceedings but once the entry is in existence in the Khasra or Khatauni of Fasli Year 1356, that would govern the question as to who is entitled to take or retain possession of the land to which the entry relates.

5. It was submitted by learned counsel for the appellants that if the entry was not correct, it could not be regarded as an entry made according to law at all and the right to take or retain possession of the land could not be determined on the basis of an incorrect entry. He placed reliance on the decision of this Court in Bachan and another v. Kankar and others, [1973] 1 SCR 727. In that judgment the nature of the entries in Khasra or Khatauni is discussed and it is also discussed as to how this entry should be made. This Court held that entries which are not genuine cannot confer Adhivasi rights. It has been observed that an entry under section 20(b) of the said Act, in order to enable a person to obtain Adhivasi rights, must be an entry under the provisions of law and entries which are not genuine cannot confer Adhivasi rights. In that judgment it has been stated that the High Court was wrong when it held that though the entry was incorrect, it could not be said to be fictitious. That observation, however, has to be understood in the context of what follows, namely, that an entry which is incorrectly introduced into the records by reason of iII- will or hostility is not only shorn of authenticity but also becomes utterly useless without any lawful basis. This judgment, in our view, does not lay down that all incorrect entries are fictitious but only lays down that a wrong entry or incorrect entry which has been made by reason of iII-will or hostility cannot confer any right under section 20(b) of the said Act. This decision is clarified by a subsequent judgment of this Court in Vishwa Vijai Bharti v. Fakhrul Hasan and others, [1976] Suppl. SCR 519, where it has been held as follows:

"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 correct- ness. But the presumption of correctness can apply only to genuine, not forged or fraudu- lent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fradulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title."

33. Similarly, the decision of the Apex Court in the case of Udai (Dead), Ram Lakhan (Dead), Karedin and Others Vs. Deputy Director of Consolidation, Varanasi and Others reported in 1990 (8) LCD 266 is also relevant and in paragraphs 9, it has been held as under:-

"9.The facts in Amba Prasad v. Abdul Noor Khan [AIR 1965 SC 54 : (1964) 7 SCR 800] were more complicated. But, for our present purposes, it is sufficient to extract the facts as set out in the headnote. Before the coming into operation of the Act, Amba Prasad was the zamindar of the disputed land. The names of the respondents had been recorded in the khasra for 1356 Fasli as persons in possession of the disputed land but they had been dispossessed after 30-6-1949. They claimed adhivasi rights under Section 20 on the strength of the record for 1356 Fasli and were successful in their claim before the Board of Revenue. The Supreme Court dismissed Amba Prasad's appeal. Hidayatullah, J. (as His Lordship then was) analysed the terms of Section 20 and its explanations thus: (SCR pp. 807-808)

"The scheme of the section may now be noticed. The section, speaking generally, says that certain persons ''recorded' as ''occupants' of lands (other than grove lands or lands to which Section 16 applies) shall be known as adhivasis and shall be entitled to retain or to regain possession of them, after the date of vesting which was 1-7-1952. Such persons do not include an intermediary (Explanation IV). Such persons must be recorded as occupants in the khasra or khatauni for 1356 Fasli (1-7-1948 to 30-6-1949). If such a person is in possession he continues in possession. If he is evicted after 30-6-1943 he is to be put back in possession notwithstanding anything in any order or decree. By fiction such persons are deemed to be entitled to regain possession (Explanation I). The emphasis has been laid on the record of khasra or khatauni of 1356 Fasli and 30-6-1948 is the datum line. The importance of an entry in these two documents is further apparent from Explanations II and III. Under the former, if the entry is corrected before the date of vesting (1-7-1952), the corrected entry is to prevail and under the latter the entry is deemed to be corrected (even though not actually corrected, if an order or decree of a competent court ordering the correction had been made before the date of vesting and the order or decree had become final. There are thus two date lines. They are 30-6-1948 and 1-7-1952, and the title to possession as adhivasi depends on the entries in the khasra or khatauni for the year 1356 Fasli."

(emphasis in original)

His Lordship then observed:

"Before we proceed to decide whether the answering respondents satisfy the above tests we must consider what is meant by the terms ''occupant' and ''recorded'. The word ''occupant' is not defined in the Act. Since khasra records possession and enjoyment the word ''occupant' must mean a person holding the land in possession or actual enjoyment. The khasra, however, may mention the proprietor, the tenant, the subtenant and other person in actual possession, as the case may be. If by occupant is meant the person in actual possession it is clear that between a proprietor and a tenant the tenant, and between a tenant and the subtenant the latter and between him and a person recorded in the remarks column as ''dawedar qabiz' the dawedar qabiz are the occupants. This is the only logical way to interpret the section which does away with all intermediaries. If rights are not to be determined except in the manner laid down by the section, the entries must be construed as explained by the four explanations. Once we find out the right person in the light of the explanations, that person continues as an adhivasi after 1-7-1952, provided he is in possession or was evicted after 30-6-1948. If he was evicted after 30-6-1948 he is entitled to regain possession in spite of any order or decree to the contrary. The word ''occupant' thus signifies occupancy and enjoyment. Mediate possession, (except where the immediate possessor holds on behalf of the mediate possessor), is of no consequence. In this way even persons who got into occupation when lands were abandoned get recognition. The section eliminates inquiries into disputed possession by accepting the records in the khasra or khatauni of 1356 Fasli, or its correction before 1-7-1952. It was perhaps thought that all such disputes would have solved themselves in the four years between 30-6-1948 and 30-6-1952."

(emphasis added)

His Lordship concluded by touching upon the question whether the person claiming rights under Section 20 should prove actual possession in 1356 Fasli and, observing that this question had been left open in the Upper Ganges case [AIR 1961 SC 143 : (1961) 1 SCR 564] , said there was no reason to disturb a long established line of decisions of the Allahabad High Court answering the question in the negative. In the result, Amba Prasad's appeal was dismissed."

34. From the perusal of the aforesaid decision what can be culled out is that a person who claims adhivasi rights, his name must have been recorded in 1356 fasli in the Khasra or Khatauni which is duly prepared in terms of the provisions of the Land Revenue Act. In the instant case, it is not disputed that the petitioner was not recorded in the 1356 fasli. Thus, prima facie, he does not ipso-facto can claim the rights of adhivasi in terms of Section 20 (b) of the U.P.Z.A. & L.R. Act.

35. Now, even if the contention of the petitioner is considered in terms of the plea that his name was recorded in 1359 Fasli muddatkasht two years and therefore he was in possession that also does not impresses the Court for the reason that in the Khatauni of 1356, the name of the private respondents is recorded. In part-II there is no entry of either the petitioner or any other person shown as Shikmi. It is only in the khatauni of 1359 fasli that the name of the private respondents is recorded in the first part whereas the name of the petitioner Bhagwati Deen is recorded as Shikmi and so also in the Khatauni of 1362 fasli Part-II, however, there is nothing on record to indicate that the name of the private respondents were ever deleted or expunged. The possession of the petitioner has not been established in 1356 fasli and merely an indirect attempt is being made to relate to the possession to 1356 fasli by referring to the entry contained in 1359 fasli with muddat kasht of two years.

36. On the other hand, the name of the private respondents has continuously been recorded in 1356, 1359 and 1362 fasli and even in the Khasra of 12 years from 1366 to 1377 as well as Khataunis of 1364 to 1369 fasli which clearly establishes the clean chain of right and possession of the respondents.

37. Apart from this, another fact which can be noticed, though, the effect of such entries made in the consolidation operations which did not reach the stage of Section 30 of the U.P.C.H. Act would not have any binding effect as held by this Court in the case of Tauley (supra) but nevertheless the fact remains that even in the first consolidation where there was a dispute regarding the rights of the private respondents in respect of the disputed property and the private respondents had raised objection in respect of their names which came to be corrected and even thereafter it remained in the name of the respondents only goes on to corroborate the continuity of possession and rights of the respondents. Even though it may not have any binding effect on the petitioner for the purposes of title but nevertheless these are surrounding and accentuating circumstances which amplifies the strength of the plea raised by the respondents and in order to defeat the same, the petitioner ought to have filed strong evidence contradicting or belying the same which unfortunately has not been done. For the reason that the petitioner did not have any other material except the said document of 1359, 1362 fasli and certain statement as prepared under Section 240 of the U.P.Z.A & L.R. Act to indicate that the rights of the respondents had been extinguished. Thus, for the aforesaid reasons, the plea of adhivasi rights of the petitioner also does not convinces this court and is consequently turned down.

38. Now, coming to the effect of the statement made under Section 240 (j) of the U.P.Z.A. & L.R. Act, the learned counsel for the petitioner has placed heavy reliance on the decision of the Special Bench of this Court in the case of Avdhesh Singh (Supra), however, before proceeding further, it will be relevant to notice the issues before the Special Bench which were as under:-

"1. Whether the finality of Compensation Statement under Sec. 240-J, U.P. Zamindari Abolition and Land Reforms Act extinguishes the rights and title of the landholder and the landholder is debarred from showing in the subsequent proceedings that the land is not held by Adhivasi?

2. Whether the finality of Compensation Statement under Sec. 240-J is final between landholder and State only and not between landholder and person claiming Adhivasi rights?

3. Whether the finality amounts to an adjudication of title between the landholder and the person claiming Adhivasi right and the principle of res-judicata or constructive res-judicata applies?

4. Whether the landholder against whom Compensation Statement has become final and who has received compensation has no locus standi to re-agitate his rights in respect of the land in question?

5. What is the nature of proceedings under Sec. 240-D of the U.P. Zamindari Abolition and Land Reforms Act and their effect in a regular title suit or proceeding?

6. What is the meaning of the word ''final' used in Sec. 240-J(2) of the U.P. Zamindari Abolition and Land Reforms Act?

Considering the arguments, the Court observed:-

2. During the hearing before us learned counsel representing the parties agreed that the last two questions of the orders of reference either do not arise or the answers to them would be covered by the answers to the first four questions. We consequently do not propose to answer those two questions. The questions that have been referred to us have been the subject-matter of consideration in a bead-string of decisions, many of which have interpreted the Full Bench decision in Maqbool Raza v. Joint Director of Consolidation1 in diverse ways.

-------------********-----------********---------------**********

10. I wish to emphasise here, even at the risk of repetition, that the limited object of preparation of the Compensation Statement under Sec. 240-D is to provide a basis for determination of the identity of the land acquired, the assessment of compensation payable therefor and the landholder entitled thereto. As to which individual is the Adhivasi of the land acquired has no impact on decision of either of these three matters. An ex-parte determination by the Compensation Officer of these matters could, not have been countenanced. The legislature consequently has provided by Sec. 240-F that the Compensation Statement prepared under Sec. 240-D shall be published in the manner prescribed and a copy thereof shall be sent to the landholder concerned. While this provision provides that a copy of the Compensation Statement shall be sent to the landholder concerned which necessarily means the landholder mentioned in it, it also requires publication in the manner prescribed. Rules 193-B and 193-C of the Rules framed under the Act provide for various statements that have to be prepared consequent on a notification under Sec. 240-A. Rule 193-E(i) makes provision for publication in the Official Gazette of a notice in Z.A. Form No. 111 after the draft Compensation Statement has been drawn up by the Compensation Officer. Sub-rule (ii) of rule 193-E requires that a copy of the no-notice in Z.A. Form No. 111 along with a certified extract of the draft compensation statement shall be served on the landholder in the manner specified in the Code of Civil Procedure. Though the manner in which the publication has to be made was left to the rule-making authority, the requirement that the Compensation Statement shall be published in itself implies that the, publication must be effective so that all concerned may have notice thereof. The rule has, as noticed, provided for publication of a notice in Z.A. Form No. 111 in the Official Gazette. Publication in the Official Gazette in this country has always been considered in the eye of law as effective publication.

-------------********-----------********---------------**********

12. The question arises as to what is the scope of the words "person interested" for the purposes of Sec. 240-G. Does it include the recorded or unrecorded Adhivasi? To my mind the answer must be in the negative. Since the Compensation Statement prepared under Sec. 240-D and published under Sec. 240-F is prepared expressly for purposes of assessment and payment of compensation for acquisition of rights, title and interest of landholder in the land referred to in Sec. 240-A, the only persons interested in disputing its correctness can be (1) those claiming that they and not the person shown in the Compensation Statement are the landholders entitled to compensation, or that they also along with the landholder mentioned in it are entitled to compensation (2) the landholder shown in the Compensation Statement or any one else claiming to be the landholder who asserts that the land is not of the nature contemplated by Sec. 240-A of the Act and thus has not been acquired and (3) the recorded landholder or any one else claiming to be the landholder disputing the assessment of compensation as disclosed in the Compensation Statement. An Adhivasi recorded or unrecorded in the Compensation Statement can possibly have no interest in supporting or disputing the quantum of compensation assessed or to the identity of the person to whom it is paid or asserting that the land does not belong to the class contemplated by Sec. 240-A and hence in the entire Compensation Statement. No objection consequently, to my mind, is entertainable at the instance of an Adhivasi recorded or unrecorded in the Compensation Statement.

In the very nature of things neither an Adhivasi, if any mentioned in the Compensation Statement, nor any one else claiming to be an Adhivasi can conceivably interested in establishing that the land mentioned in the Compensation Statement is not of the nature referred to in Sub-sec. (1) of Sec. 240-A. In fact, every person claiming to be an Adhivasi of the land in question would be interested in showing that it is land of that nature, otherwise he would not become Sirdar. Only landholders whose rights are claimed to have been acquired by reason of a notification under Sec. 240-A can be interested in asserting that the land mentioned in the Compensation Statement is not land of the nature contemplated by Sec. 240-A and hence in filing an objection of the nature envisaged by Sec. 240-H(2)(a). If, however, in the objection contemplated by Sec. 240-H(2)(a) the Adhivasi recorded or unrecorded is impleaded as a party, he and the landholder both would be bound by the decision arrived at in the consequent proceedings on the principle of res-judicata and it will be open to neither of them to contend in a separate suit that the decision was incorrect. An Adhivasi who is not a party to the proceedings would, however, remain unaffected by the decision. An objection as envisaged by Sec. 240-H(2)(b) can be raised by persons interested in showing that either they alone to the exclusion of the person shown as landholder in the Compensation Statement or along with him are landholders entitled .

And finally, The Court concluded:-

19.For the reasons given above, my conclusion is that the Compensation Statement prepared under Chapter IX-A of the Act is final as far as the identity of the land acquired, the quantum of compensation assessed, and the identity of the landholder who in lieu of extinction of his rights in the land is entitled to receive the compensation are concerned and for no other purpose.

20.My answer to the first four questions referred to us are as follows:--

(1) Finality of Compensation Statement under Sec. 240-J, U.P. Zamindari Abolition and Land Reforms Act extinguishes the rights and title of the landholder and the landholder is debarred from showing in collateral or separate proceedings that the land is not held by an Adhivasi, except in cases where the provisions of the Act have not been followed or where the Compensation Statement has been prepared in disregard of the fundamental principles of judicial procedureKatikara Chintamani Dora v.Guletreddi Annamanaidu [(1974) 1 SCC 567 : A.I.R. 1974 S.C. 1069.] . If the requirements of the Act have not been complied with or the fundamental principles of judicial procedure have been disregarded, the Compensation Statement signed and sealed by the Compensation Officer under Sec. 240-J(2) of the Act can be assailed in collateral proceedings.

(2) The Compensation Statement signed and sealed under Sec. 204-J(2) of the Act is final between the landholder and the State alone.

(3) The Compensation Statement amounts, to an adjudication of title between the landholder and the person claiming Adhivasi rights and the principle of res-judicata and constructive res-judicata will apply only to an Adhivasi who has been a party to proceedings consequent on an objection of the nature contemplated by Sec. 240-H(2)(a) of the Act.

(4) The landholder against whom Compensation Statement has become final; and who has received compensation has no locus standi to reagitate his rights in respect of the land in question.

39. Noticing the aforesaid, it would indicate that the Special Bench noticed that the statement of compensation as prepared under Chapter IX-A of the U.P.Z.A. & L.R. Act is final as far as the identity of the land acquired, the quantum of compensation assessed and the identity of the land holder who in lieu of extinction of his rights in the land is entitled to receive compensation and for no other purpose. The compensation statement is final between the landholder and the State alone and it amounts to an adjudication of title between the landholder and the person claiming adhivasi rights and the principle of res-judicata and constructive res-judicata will apply only to such adhivasi who had been a party to the proceedings consequent to an objection of the nature contemplated under Section 240 (H) (2) (a) of the Act and then such land holder against whom compensation statement has become final and who has received the compensation has no locus standi to re-agitate his rights of the land in question.

40. Before looking into the applicability of the aforesaid propositions as laid by the Special Bench in Avdhesh Singh (Supra), it will also be relevant to notice that the respondent herein has categorically filed an affidavit as late as on 01.04.2022 on the specific asking of this Court in its order dated 30.03.2022 as to specifically state whether the respondents have received the compensation in terms of the Section 240 of the U.P.Z.A. & L.R. Act. In the said affidavit, it has been categorically stated that no compensation has been received by the respondents. There does not appear to be any reason to disbelieve the same for another reason, inasmuch as, the State has also not raised any objections that the respondents could not re-agitate his rights as he has received the compensation in terms of Chapter IX-A of the U.P.Z.A. & L.R. Act.

41. Even otherwise, the petitioner has merely filed certain statements of compensation before this Court along with the rejoinder affidavit dated 11.11.2019 to raise the plea regarding the compensation having been received by the respondent. But the said documents could not be verified. Moreover, a categorical statement has been given by the respondent in his affidavit as noticed above that he has not received any compensation and also that though the said plea was raised by the petitioner even before the two courts but neither the said documents were furnished before the two Courts nor the plea found favour with them as rightly noticed by the DDC that since the right of adhivasi has not been conferred on the petitioner, consequently, he could not further be granted any benefit in terms of Section 240 (J) of the U.P.Z.A & L.R. Act neither the proceedings in terms of Chapter IX-A of the U.P.Z.A. & L.R. Act were in accordance with law.

42. This was a ground upon which the aforesaid plea was rejected by the SOC as well as by the DDC but nothing has been brought on record by the petitioner to controvert the same. There is also nothing on record to show that in the proceedings under Section 240 of the U.P.Z.A. & L.R. Act, the petitioner was a party, thus, if at all the statement at best could be find between the State and the respondent as held by the Special Bench but even there is no confirmation of the same nor controversion by the State in regard to the compensation, thus, the plea of Section 240 (J) of the U.P.Z.A & L.R. Act also does not find favour with this Court.

43. It is equally settled that an entry in the revenue records do raise a presumption but the same is rebuttable in nature. Any entry which is not prepared in accordance with law cannot confer any benefit to a party claiming the same. In the instant case as both the SOC as well as the DDC have meticulously considered the submissions and the material available on record and had arrived at a finding that merely because of one entry in 1359 fasli which is also not proved nor having been made in accordance with the provisions contained under the Land Revenue Act as has been discussed in the preceding paragraphs, no benefit could be granted to the petitioner, thus, the third plea of the petitioner also fails and the Special Bench decision of Avdhesh Singh (Supra) also does not come to the rescue of the petitioner. Moreover, it could not be disputed that the respondents were granted bhumidhari rights after the application of the respondents under Rule 109 of the Uttar Pradesh Consolidation of Holdings, Rules, 1954 was allowed.

44. Thus, in light of the detailed discussions and for all the reasons, hereinabove, this Court is satisfied that there is no error committed by the SOC and the DDC which may require any interference of this Court in exercise of powers conferred under Article 226 of the Constitution of India.

45. Accordingly, the petition sans merit is thus dismissed. In the facts and circumstances, there shall be no order as to costs.

(Jaspreet Singh, J.)

Order Date :- 25th May, 2022

Asheesh