Ram Bodh vs Dy D.C. Basti And Others
2023 Latest Caselaw 27200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2023:AHC:191642
 
Court No. - 48
 

 
Case :- WRIT - B No. - 8312 of 1975
 

 
Petitioner :- Ram Bodh
 
Respondent :- Dy D.C. Basti And Others
 
Counsel for Petitioner :- G.D.Dubey,Kuldeep Mishra
 
Counsel for Respondent :- S.C.,A.R.Dubey
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. An oral request has been made by counsel for the petitioner before this court to allow him to substitute legal heirs of respondent no.5.

2. There is no objection on behalf of learned counsel for the respondents, therefore, prayer is allowed.

3. Substitution be carried out by counsel for the petitioner during the course of the day.

4. Heard Sri. S.S.Tripathi, Advocate holding brief of Sri Kuldeep Mishra, learned counsel for the petitioner and Sri Shobhit Dubey, Advocate holding brief of Sri. A.R.Dubey, learned counsel for respondents.

5. This writ petition is pending before this Court since 1975.

6. Petitioner is aggrieved by impugned order dated 27.2.1975 passed by the Deputy Director of Consolidation, whereby two revision petitions filed by contesting respondents were allowed and orders impugned therein passed by the Consolidation Officer and the Settlement Officer of Consolidation were set-aside.

7. It is not in dispute that petitioner has claimed right over the land in dispute on basis of his long adverse possession, whereas the claim of contesting respondents was based on being recorded as a Bhumidhar.

8. Learned counsel for the petitioner has referred finding returned by the Consolidation Officer and the Settlement Officer of Consolidation in his favour. Since there was a prior dispute between the parties, an inference could be drawn that the respondents have knowledge about adverse possession of petitioner and that there were continuous revenue entries for sufficient long time in favour of petitioner.

9. Learned counsel further submitted that Revisional Court has acted beyond jurisdiction and without considering well reasoned judgment passed by two authorities has erroneously interfered in findings of lower authorities in its revisional jurisdiction having limited scope since it was prior to amendment carried out under Section 48 of Act of 1953.

10. Per contra, learned counsel for respondents has extensively argued that the finding returned by the revisional court, that the Consolidation Officer and the Settlement Officer of Consolidation have committed an error which goes to the root of case and therefore, rightly interfered with orders passed by two lower authorities, even within limited scope under Section 48 of U.P.C.H. Act, 1953 and he read out relevant part of the Revisional Court's order dated 27.2.1975, which is reproduced hereinafter:-

"ये दो निगरानियां एक दूसरे से सम्बद्ध हैं, और दोनों सहायक बन्दोबस्त अधिकारी चकबन्दी श्री हरिकृष्ण निगम के आदेश जो अलग-अलग अपील नं० २८०३ और अपील नं० २७८६ में पारित हुआ उनके विरूद्ध हैं। सहूलियत के तौर पर दोनों का निर्णय एक साथ किया जा रहा है, निर्णय की एक प्रति प्रत्येक पत्रावली पर रहेगी तथा निगरानी सं० ८७६ मुख्य पत्रावली होगी।

मैने उभय पक्षों के विद्वान अधिवक्ताओं की बहस को सुना तथा अवर न्यायालयों की पत्रावलियों पर उपलब्ध साक्ष्य का सम्यक विवेचन किया।

निगरानी सं० ८७६ को मै पहले निर्णय के लिए लेता हूँ। इसका वाद विषय गाटा सं० १२९०।१ है जों आधार वर्ष में रमेसर के नाम भूमिधरी मे दर्ज है। रामबोध नें मुखालफाना कब्जे के आधार पर इस पर सीरदारी का अधिकार मांगा, जो उन्हें मिली, अतः रमेसर ने यह निगरानी प्रस्तुत की है। सहायक बन्दोबस्त अधिकारी चकबन्दी ने यह लिखकर मुकदमे का सरसरी तौर से निपटारा कर दिया है कि नकल आदेश १९४० तथा नकल रजिस्टर १९५० फौजदारी दाखिल है, तथा उन्होनें यहां तक नहीं लिखा है कि दोनों विवादग्रस्त भूमि से किस तरह से सम्बद्ध है, और इसके आधार पर मुखालफा कब्जे का ज्ञान रमेसर को कैसे हो जायेगा। उन्होनें खसरा इन्द्राज पर भरोसा कर लिया, किन्तु यह नहीं छानबीन की, कि प०क० १० इन्द्राजात के साथ जारी हुए या नही। उनका यह प्रिजूम कर लेना कि चूंकि फरीकैन के बीच पहले मुकदमा चल रहा था, अतः लिखित खातेदार को मुखालफाना कब्जे की जानकारी थी, गलत है, क्योकि आर०डी० १९६० पृष्ठ सं० ३५३ पर उद्दीर्णित निर्णय रामलखन बनाम परसादो के अनुसार कब्जे मे इन्ट्रीज के करेक्टनेस का प्रिजूमशन नहीं किया जा सकता, चाहे सम्बन्धित पक्ष उनको इनकरेक्ट साबित करने मे असमर्थ ही क्यो न रहा हो। प० क० १० का जारी होना और उसका सिद्ध करना आवश्यक था, तथा बगैर इसके सहायक बन्दोबस्त अधिकारी चकबन्दी का प्रतिवादी को सीरदार मान लेना गलत था, अतः निगरानी सं० ८७६ स्वीकार की जाती है और श्री निगम का आदेश दिनांक २०.११.७३ रद्द किया जाता है। आधार वर्ष का इन्द्राज बदस्तूर रहेगा।

निगरानी सं० ८७७ का वाद विषय गाटा सं० ७२० है। निगरानी कर्ता का कहना है कि विवादित भूमि उनके पूर्वजों ने प्रतिवादी गण को रेहन पर दी थी और १३७५ फ० मे उसकी अवधि समाप्त हो गयी तथा १३७५ फ० के वाद उनके पक्ष में कोई इन्द्रजात भी नही है। आर०डी० १९७४ पृष्ठ सं० ३८३ निगरानी कर्ता की ओर से उद्धित किया गया है जिसमें मारगेजी का कब्जा परमिसिव माना गया है, और परमिसिव कब्जे को मुखालफाना कब्जा नही कहा जा सकता है। निगरानी कर्ता के रेहन का सिद्धान्त भी इस बात से पुष्ट हो जाता है कि १३७५ फ० के बाद प्रतिवादी गण के पक्ष में कोई इन्द्रजात नहीं है। १३६६ फ० से १३७७ फ० के दौरान जो कब्जे के इन्द्राजात प्रतिवादी गण के नाम है, उनमे प०क० १० का जारी होना या असल काश्तकार पर तामील होना सिद्ध नही है। इस तरह से यह निश्चित है कि प्रतिवादी गण का कब्जा जो १३७५ फ० तक था वह रेहन के आधार पर था और रेहन की अवधि बीत जाने पर कब्जा खत्म हो गया, अन्यथा १३७५ फ० के बाद भी प्रतिवादीगण का कब्जा दर्ज रहता। इस आधार पर निगरानी स्वीकार होने योग्य है और स्वीकार की जाती है, तथा सहायक बन्दोबस्त अधिकारी चकबन्दी का फैसला जो निहायत गलत था, रद्द किया जाता है। आधार वर्ष के इन्द्राजात बदस्तूर रहेंगे। "

(Emphasis Supplied)

11, Heard learned counsel for parties and perused the record.

12. There are various judgments of this Court as well of Supreme Court that burden to prove adverse possession is always on the person who has asserted such claim and for that he has to prove that entries made in Column 9 and preparation of Form P.A.10 was in accordance with the procedure prescribed i.e. notice of the entry made in revenue records were served upon the real owner. However, from perusal of order of Consolidation Officer as well as the Settlement Officer of Consolidation, there is no finding in this regard. Long entries in Column 9 itself would not be sufficient to prove a title on basis of adverse possession.

13. For reference relevant paras of a judgment of this Court in Mata Din Singh Vs. D.D.C. and Ors, 2023:AHC:158629 are reproduced hereinafter:

" 24. In the present case, no finding was returned that PA-10 was served upon the recorded tenure holders and contesting respondents have failed to prove that fact and have also not able to show that there was a reference of PA-10 in the revenue entries and all Courts under Consolidation Act have not returned any finding in regard to preparation of PA-10 and whether entries of possession were made in terms of and observing procedure prescribed in 'the Manual' and for reference, relevant procedure and paragraphs of 'the Manual' are quoted below-:

"A80. List of Changes :- After each kharif and rabi partal of a village, the Lekhpal shall prepare in triplicate a consolidated list of the entries mentioned in paragraphs A71 to A73 and A84 in following form .........

A81. List how to be utilized :- (1) The lekhpal shall fill in first five columns and handover a copy of the list to the Chairman of Land Management Committee. He shall also prepare extracts from the list and issue to the person or persons recorded in column 3, 4 and 5 thereof or to their heirs, if the person or persons concerned have died, obtaining their signatures in the copy of list retained by him. Another copy shall be sent to the supervisor kanungo.

(2) The supervisor kanungo shall deal with the list in the manner prescribed in sub paragraph (iv) of paragraph 423. He shall also ensure that extracts have been issued in all the cases, and signature of recipients obtained. If he finds that an extract has not been issued in any case, he shall get it issued in his presence. This is important so that the person affected, if he is aggrieved, may apply for correction of papers to the tehsildar or the Sub Divisional Officer, as the case may be.

A82. Report of Changes :- The copy of the list with the lekhpal containing the signatures of the recipients of the extract shall be attached to the khasra concerned and filed with the registrar kanungo along with it on or before 31 July, of the following year [sub-paragraph (iv) of paragraph A60].

A83. Immediately after the kharif partal the lekhpal shall submit to the supervisor kanungo a statement in duplicate showing all holdings in his halka of a bhumidhar, sirdar or asaami of Gaon Samaj whose cultivable area has decreased or increased by diluvion of alluvian. The supervisor kanungo shall by personal inspection check all the entries in the statement and after making such corrections, as may be necessary, submit the statement in duplicate to the tehsildar for taking action under rule 205-B of the U.P. Zamindari Abolition and Land Reforms Rules, 1952.

102C. Entry of possession column 21 (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 note the date and serial number of the diary in the remarks column of the khasra against the entry concerned.

(2) As the list of changes in form PA-10 is prepared after the completion of the partal of a 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 paragraphs A80 and A81, the entry in the remarks column of the khasra will not be deemed to have been made in the discharge of his official duty."

25. In this regard, it would be relevant to reiterate the observations made in Gurmukh Singh (supra) that the entries will have no evidentiary value, if are not entered, in accordance with the provisions of 'the Manual'. As referred above, in the present case, no finding was returned by Courts below that the procedure prescribed in 'the Manual' was duly followed. Even there is no material before this Court to hold that while making the entries, procedure prescribed under 'the Manual', such as whether the lekhpal has prepared the changes in triplicate, a copy thereof was handed over to the Chairman, Land Management Committee, changes were reported, statement was submitted to the supervisor kanungo, partal of the village was conducted, procedure prescribed under Para 102-C, etc. were duly followed. Therefore, only on basis of entries being under clause (9) of Part II of Para A-124 of 'the Manual', it could not be held that contesting respondents were in continuous possession on the land in dispute for a period of 12 years and thus perfected their right on the strength of adverse possession.

xxx xxxx

30. On the face of it, the above approach of Consolidation Officer appears to be contrary to the settled position of law. As referred above, there must be a finding on the basis of clear and unequivocal evidence that possession was hostile to real owner and to denial of his title and knowledge, to the property claimed. There must be animus of the person doing those acts which must be ascertained from the facts and circumstances of the case. However, the Consolidation Officer has in very cursory manner has decided the issue of adverse possession, without reference of above referred essential pleadings and nature of evidence being on record.

31. The Settlement Officer of Consolidation, while deciding appeals, has also placed reliance on entries in revenue records, for that it has already been referred above that those entries were not prepared in terms of the procedure prescribed in 'the Manual'. The Appellate Court has also not returned any finding in regard to above referred essential and necessary factors of adverse possession. Therefore, error as committed by the Consolidation Officer continued in the order passed by the Settlement Officer of Consolidation.

32. The Deputy Director of Consolidation has placed heavy reliance again only on the entries made in revenue records and has not considered factors relevant for taking decision in regard to adverse possession that the possession was adequate in continuity, publicity and adverse to competitor. Adverse possession requires that all three essential requirements to co-exist at the same time, viz., it should be adequate in continuity, adequate in publicity and adverse to competitors in denial of the title and his knowledge. There must be physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner. However, these important factors also skipped from consideration of Deputy Director of Consolidation as well as two Courts below."

(Emphasis Supplied)

14. In the aforesaid circumstances on fact as well as on law since two lower authorities i.e Consolidation Officer and Settlement Officer of Consolidation have decided the case without considering relevant factors such as whether form P.A.10 was prepared in accordance with procedure prescribed or not and as to whether reference of two litigation was sufficient for purpose of knowledge, when nature of dispute therein was not disclosed and Revisional Authority in exercise of its power as granted under Section 48 of the Act of 1953 has scrutinised the finding and even if it is assumed that the land in dispute was part of above litigation, still any order passed under Section 145 Cr.P.C. could not bestow any right in regard to the title of land as it is only for limited purpose of maintaining peace.

15. I have carefully perused the impugned order. The Revisional Authority had at length discussed that Form P.A. 10 was not prepared in accordance with prescribed procedure and that facts of present case are also substantially covered by Mata Din Singh (supra). The counsel for petitioner has failed to point out that due procedure was followed. The finding of two lower authorities that since there was other litigation between parties, therefore, adverse possession was well into knowledge of petitioner would be akin to shifting the burden of proof of adverse possession from respondent to petitioner, since it would be contrary to law in this regard.

16. As referred above, since the Revisional Authority has rightly interfered with the orders passed by two lower authorities even within its limited jurisdiction (as it was) while scrutinising orders passed by two lower authorities on a issue of law, which would be a substantial irregularity and that a manifest error was committed by lower authorities. The findings returned by the Revisional Authority are not perverse or beyond jurisdiction, therefore, petitioner has not been able to make out any case for interference by this Court under writ jurisdiction.

17. Writ petition is accordingly dismissed.

Order Date :- 5.10.2023

SB