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1977 DIGILAW 264 (ALL)

Chandra Pal Singh v. State of Uttar Pradesh

1977-04-25

H.N.AGARWAL

body1977
JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the decree and judgment of the Additional Commissioner. Jhansi Division dated May 11, 1972 in appeal No. 376 of 1970 upholding the judgment and decree dated August 1, 1970 passed by the Judicial Officer Banda in case No. 1286 of 1969 under Section 229-B of the U.P.Z.A. and L.R. Act. 2. I have heard the learned counsel for the parties and have gone through the record. 3. The appellant Chandra Pal Singh had filed the suit seeking declaration of Sirdari rights and plot Nos. 189, 142/4. 211. 378 and 38/1 in village Sonahaula on the ground of his cultivatory possession for a period exceeding 12 years. The Gaon Sabha Sonahaula and the State of U.P. contested the suit by claiming that the land was Gaon Sabha property and was land of public utility. Both the courts below have upheld the claims of the Gaon Sabha and the State of U.P. and dismissed the suit. 4. The learned counsel for the appellant has contended that the appellant has acquired Adhivasi/Sirdari rights. According to him the lower appellate court has wrongly criticised the entry of 1356F and 1361F without assigning the cause. The appellant has an extract from the Khasra of 1356F. Both the courts below have, however, rightly refused to believe this extract. The trial court has held that the entries in the remarks column of Khasra of 1356F as well as 1358F are not in accordance with the rules contained in the Land Records Manual as no number and date of diary of the Lekhpal has been given. The Lekhpal appellate court has held that the extract of Khasra 1356F which is on file does not appear to be a genuine and true copy of the original and it appears to have been procured in collusion with the Lekhpal. The copy of the said Khasra contains 21 columns which is prescribed for the Z.A. areas. In 1356F Zamindari had not been abolished and as such Khasra 1356F should have been on the form containing 21 columns prescribed for non-Zamindari-Abolition areas under paragraph 102-B of the Land Records Manual and the remarks entry should have been in column 22. Further the extract from the Khatauni of 1356F has not been issued by the copying department and as such is not a certified copy at all. Further the extract from the Khatauni of 1356F has not been issued by the copying department and as such is not a certified copy at all. It has been merely procured in collusion with the Patwari. On the other hand, the extract from the Khatauni of 1356F which has been certified by the record keeper of the Collectorate Banda and is, therefore, an authentic copy clearly records plot Nos. 123/1, 138, 211, and 378 as Banjar without any body's name being recorded. Likewise extract on the Khasra of 1359, 1365, 1366, 1368, 1372 and 1374Fs. issued by the Kanungo show that the plots are recorded as Banjar. In the Khatauni of 1374-76F also these plots are recorded as Banjar. 5. In the extract of Khasra 1361, 1362, and 1363F the plaintiff-appellant is indeed recorded in the remarks column 23 but the duration of his occupation is not given. The tenancy rights cannot accrue on the basis of occupation in 1361F. The learned Additional Commissioner has correctly observed that the genuineness of these extracts cannot be verified because the original Khasras have been weeded out, but even if the entries of 1361-63F Khasra are accepted to be correct they will not confer any Adhivasi rights as Adhivasi rights accrue to such persons as were recorded an occupant in 1356F or were in cultivatory possession in 1359F. 6. The learned counsel for the appellant has contended that the Land Records Manual does not provide that it is necessary to write word 'Kabiz' before the entry in the name of a person. This contention is not correct. The Land Records Manual contains detailed instructions regarding the manner in which entries in the Khasras are to be made. As the Khasra is a record which is very important for the work of the revenue administration and it may also affect the tenure rights of individuals only such entries as are strictly in accordance with the rules are to be given any legal recognition. As the Khasra is a record which is very important for the work of the revenue administration and it may also affect the tenure rights of individuals only such entries as are strictly in accordance with the rules are to be given any legal recognition. Paragraph 87(iii) of the Land Records Manual provide: "If there was no entry in column 6 of the Khasra in the preceding year and the Patwari finds at the time of Partal some person belonging to one of the classes mentioned in sub-paragraph (i) in cultivatory occupation of the lard he will enter in column 6 in red ink the name, percentage and rent, if any, of such person together with his status: Provided that he shall not record any such person as belonging to class (a), (b), (c) or (d) of sub-paragraph (i) unless he is satisfied by an inquiry from the parties concerned that a contractual relation of landholder and tenant exists between them. If he is not so satisfied he shall record the person as belonging to class (e) pending such inquiry, the Patwari shall note the name and percentage of such person in the remarks column of the Khasra." 7. Clause (e) referred to above is occupier of land without consent. The Land Records Manual goes on to describe the various kinds of entries to be made in the remarks column such as 'farar' kabiz' 'sajhi' 'marfatdar' 'kabiz davedar' and 'gair kabiz davedar kabiz'. If a person is found in occupation but is not recorded as a tenant or a sub-tenant in the Khatauni, the nature of his occupation has got to be recorded in the remarks column. The use of the word 'Kabiz' is not merely a formality under the Land Records Manual, but is essential for clarifying the status of the person occupying the land. If he is not otherwise recorded in the Khatauni or Khasra. 8. The learned counsel for the appellant has contended that the entries in the Khasra of 1362 and 1363F and 1365F are not fictitious. Even if this argument is accepted no rights can accrue to the appellant on the basis of these entries. The occupation in 1362 and 1363F confers no rights when it observes that in 1359, 1365, 1366, 1368, 1370, 1372 and 1375F Khasra the appellant is not recorded in possession and the plots are recorded as Banjar. Even if this argument is accepted no rights can accrue to the appellant on the basis of these entries. The occupation in 1362 and 1363F confers no rights when it observes that in 1359, 1365, 1366, 1368, 1370, 1372 and 1375F Khasra the appellant is not recorded in possession and the plots are recorded as Banjar. Thus the entry in the Khasra of 1362 and 1363F would be isolated entries. 9. The learned counsel for the appellant has contended that the oral evidence has not been discussed and as such the judgment of the courts below is vitiated in law. This contention has no force. The trial court has discussed the oral evidence of the plaintiff-appellant at length and when the Additional Commissioner has referred to the oral evidence and held that oral evidence of the P.W. 1. Chandra Pal and Hira Lal is not reliable in view of the above long standing entries. The evidence of D.W. 1 Raja Ram Pradhan appears to be reliable. As regards the appraisal of oral evidence is concerned, such appraisal will not be questioned in second appeal unless it is shown that there has been any omission to consider the evidence or any misreading. No. such omission or misreading has ever been shown. 10. The learned counsel for the appellant has contended that the disputed land has incorrectly been held to be land of public utility without any evidence. I do not find any specific finding recorded by the courts below that the land was of public utility. Their finding only is that the land in dispute is the property of the Gaon Sabha and the plaintiff-appellant is not Sirdar. This finding is fully borne out from the oral and documentary evidence on record. 11. The learned counsel for the appellant has tried to emphasise the Patta granted in favour of the appellant by the Karinda of the Zamindar on June 22, 1950. This Patta is neither registered nor attested. Further, neither the Zamindar nor the Karinda nor any other witness appeared as a witness on behalf of the appellant to prove this Patta. This trial court has rightly observed that there is no evidence at all that the Patta was ever acted upon and if it was at all executed it remained a dead letter. Further, neither the Zamindar nor the Karinda nor any other witness appeared as a witness on behalf of the appellant to prove this Patta. This trial court has rightly observed that there is no evidence at all that the Patta was ever acted upon and if it was at all executed it remained a dead letter. The plaintiff-appellant did not give any reason why it failed to act upon the lease for the last 30 years. The lower appellate court has also correctly observed that the Patta is inadmissible in evidence being unregistered and unattested. 12. The learned counsel for the appellant has contended that the appellant has acquired rights on the basis of adverse possession. I, however, find that the courts below after considering the entire evidence have rightly come to the conclusion that the appellant has failed to rove his continuous adverse possession and as the plot in suit is recorded at Banjar even in Khatauni 1376F. as well as in previous years. Further it may observed that the law relating to adverse possession against the Gaon Sabha has undergone significant changes in the recent years and no rights in Gaon Sabha Land can now accrue on the ground of adverse possession. The learned D.G.C. (R) has rightly argued that now there is no period of limitation provided for the Gaon Sabha for ejecting a trespasser and this would mean that a trespasser can never acquire rights by prescription against the Gaon Sabha. 13. After considering all aspects of the case, I hold that he courts bellow have rightly dismissed the suit. There is no force in this second appeal which is hereby dismissed.