Sundar Lal v. Balqutti — 1976 DIGILAW 379 (ALL)

JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the decree of Shri M.S. Das, Commissioner, Jhansi Division, Jhansi dated April 20, 1967 in Appeal No. 99 of 1966-67 against the judgment dated December 26, 1966 passed by the Assistant Collector First Class, Mahoba in case no. 530/66 under Sections 176/229-B, U.P.Z.A. and L.R. Act. 2. I have heard the learned counsels for the parties and have gone through the record. 3. The appellant, Sundar Lal had filed a suit claiming that he has been in possession of plot no. 35 in village Itauri Bazurg from before abolition of Zamindari but the names of respondents nos. 1 to 5, Balqutti and others were wrongly recorded as sirdars. He claimed that he should be declared the sole sirdar of the plot by virtue of his possession. The defendant respondents claimed that the appellant had nothing to do with this land whatsoever that they were the recorded sirdar and were paying land revenue as well as ab-pashi dues. The trial court by its order dated December 26, 1966 decree the suit. The learned Commissioner by his order dated April 20, 1967 has, however, set aside the order of the trial court. Sunder Lal has not come up in second appeal before this Court. 4. The only ground taken by the learned counsel for the appellant is that the long standing entries of possession in favour of the appellant from 1361 Fasli up to date conclusively establish appellant's rights. 5. It is undisputed that the defendant-respondents are recorded as sirdar of the land in suit. In the khatauni from before 1960 Fasli. In the khasra of 1361 Fasli the plot in suit is recorded in the possession of Sundar Lal in there remarks column. The same is the entry in 1362 Fasli, 1364 F, 1365 F, and 1366 F. In the khasra of 1367 Fasli and 1371 Fasli Sunder Lal has been recorded as sub-tenant. The khasra of 1363 Fasli has not been produced. In the Khasra of 1368, 1370, 1372, and 1373 Fasli the plot in suit is recorded in the possession of the recorded tenure-holders, i.e. the defendant-respondent have also filed parcha ab-pashi and receipt for payment of irrigation dues for the years 1360, 1362, 1367, 1369 and 1372 Faslis. Both sides produced oral evidence about their respective possession. 6. In the Khasra of 1368, 1370, 1372, and 1373 Fasli the plot in suit is recorded in the possession of the recorded tenure-holders, i.e. the defendant-respondent have also filed parcha ab-pashi and receipt for payment of irrigation dues for the years 1360, 1362, 1367, 1369 and 1372 Faslis. Both sides produced oral evidence about their respective possession. 6. The learned Commissioner in his judgment has discussed the entire evidence thereadbare and has come to the conclusion that after the entries in village records are examined properly it would show that either the Lekhpal had been building a claim for the respondent step by step or entries were made in some surreptitious manner in the officer of the Registrar Qanungo. These entries were not made in accordance with the law and there was no presumption of correctness in favour of such entries. 7. Even accepting the entries in the revenue records at their face value, they do not help the case of the appellant. It is settled principle of law that no presumption of continuity of possession can be made in favour of a person claiming adverse possession. Thus, at the most, the khasra entries which have been disorder by the learned Commissioner but relied upon by the learned counsel for the appellant, show the adverse possession of the appellant, in certain isolated years i.e. 1361 and 1362 Faslis but not in 1363 Fasli. Again the adverse possession is shown in 1364, 1365, 1366 and 1367 Faslis but is discontinued in 1368, 1369 and 1370 Faslis. The adverse possession again appears in 1371 Fasli but is discontinued in 1372 and 1373 Fasli. Thus, this possession is not continuous beyond the period of prescription and conferred no right on the appellant whatsoever. Further, the evidence has to be considered as a whole and not in isolation. If we consider the evidence of the extract form the revenue records along with the evidence of the payment of irrigation dues and the oral evidence, it would show that the claim of the appellant for continuous adverse possession of the land is very thin indeed. On the other hand, there is overwhelming evidence to show the possession of the recorded tenure-holders on the land. 8. The learned counsel for the respondents has referred to Pahalwan Singh v. Dy. On the other hand, there is overwhelming evidence to show the possession of the recorded tenure-holders on the land. 8. The learned counsel for the respondents has referred to Pahalwan Singh v. Dy. Director of Consolidation 1976 R.D. 37, in which Prem Prakash, J., has discussed the value of the Khasra entries which have not been made in accordance with rules and had observed as follows.: "Para A-81 provides that after each Kharif and Rabi Partal of the village the Lekhpal shall prepare a list and from that list prepare extracts which would be issued to the person or persons recorded in columns 3, 4 and 5 of the Khasra. The Supervisor Qanungo shall deal with the list as provided in sub-para 423. He shall ensure that extracts have been issued in all cases and signatures of the recipients obtained. If he fins that an extract has not been issued in any case, he shall get it issued in his presence. A 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 Qanungo along with it on or before July 31, of the following year. The Lekhpal is also required to sent extract from columns 1 to 7 of form PA-11-A to the Chairman Land Management Committee. Para 102-C states that if the Lekhpal fails to comply with any of the provision contained in paras A-80 and A-81, the entries in the remarks column will not be deemed to have been made in the discharge of the official duty. It would thus appeal that whenever there is a change in possession, the list of changes in possession, the list of changes in entries prepared by the Lekhpal in para A-80 is not only to be sent to the chairman of the Land Management Committee and the supervisors Quanungo, but he as also to issue extracts to the person affected therefrom. Since this has not been done in the present case, we cannot attached any evidentiary value to the entries, contained in the Khasra from 1369 of 1373F. It would be significant to not that the Khasra columns are conspicuously blank as to show that the extract was issued to be main tenure-holder. It even does not give the date of the Partal or the date of the order of the Supervisor Qanungo. It would be significant to not that the Khasra columns are conspicuously blank as to show that the extract was issued to be main tenure-holder. It even does not give the date of the Partal or the date of the order of the Supervisor Qanungo. That being so, the finding of the learned Deputy Director based on the entries contained in the khasra suffers form the legal infirmity and it, there fore deserves to be quashed." According to the principles laid done above, the learned Commissioner had rightly held that even the isolated entries in the Khasra in favour of the appellant showing his adverse proposion were doubtful and had no legal value at all. I would entirely concur with the findings recorded by the learned Commissioner and the legal proposition made by him. The appellant has utterly failed to prove any right in the land. The learned Commissioner has rightly dismissed his suit. 9. I find no force in the appeal and hereby dismiss it.