Abdul Aziz v. Abrar Husain — 1978 DIGILAW 385 (ALL)

JUDGMENT A.K. Sharma, Member. - Abdul Aziz (District Moradabad) has filed this appeal, against the judgment and decree dated 7.4.72, or the learned Additional Commissioner, Rohilkhand Division, Bareilly, whereby he allowed the appeal of Abrar Hussain and set aside the order of the learned Judicial Officer (R), Moradabad, passed in a suit under section 209 Z.A. and L.R. Act. The Ld. trial court had dismissed the suit with costs on 30.9.71. 2. Briefly the facts of the case are that Abrar Husain, plaintiff-respondents, filed the suit for ejectment of defendant appellate Abdul Aziz from plot no. 157 alleging that Mohd. Ahmad son of Niyaz Ahmad was the Bhumidhar of this land and he had executed a sale deed on 7.6.76 in favour of the plaintiff and so he had become a bhumidhar. He also alleged that Abdul Aziz had trespassed over the land in suit in 1377F and was liable to ejectment and damages. The defendant appellate contested on the ground that he had been in possession for over 20 years. He also alleged that the vendor Mohd. Ahmad was not the son of Niyaz Ahmad and was, therefore, not bhumidhar of the land and had no right to sell the land. 3. Learned counsel for the appellate argued that Mohd. Ahmad was not the son of Niyaz Ahmad and that the plaintiff had not deposed as to when he was dispossessed. He referred to the first part of issues nos. 1 and 2 in the trial courts judgment to say that there was no evidence which could be relied upon for conclusive proof of the fact that Mohd. Ahmad was the son of Niyaz Ahmad. He added that the trial court had relied upon in admissible evidence, i.e., hearsay evidence, to hold that he was the son of Niyaz Ahmad and that the best evidence had been withheld namely, of Mohd. Ahmad himself. He contended that adverse inference ought to have been drawn by the trial court. On this point he referred to Section 50 of the Evidence Act regarding what would be relevant and credible evidence regarding relationship of one person to another. He then referred to the question of limitation and said that before 27.3.59 the period of limitation was three years and the appellate had matured his rights of sirdari, as was proved by the entries in the khasra 135F to 1366F. He then referred to the question of limitation and said that before 27.3.59 the period of limitation was three years and the appellate had matured his rights of sirdari, as was proved by the entries in the khasra 135F to 1366F. He said that for the period thereafter he had filed extracts of 1371F to 1373F khatauni which recorded his possession. He pointed out that it had not been shown that the appellant had been dispossessed at any time and the evidence filed on his behalf clearly stored that he had been continuously in possession, then referred to paras 7 of the lower appellate court's order and said that with regard to case No. 2082 of C.L.R.D. the learned Additional Commissioner had drawn a wrong inference that in the application in that case it was admitted by Abdul Aziz appellant that he had never been in possession of plot no. 157. (in dispute), and that it was in the possession of Ali Ahmad, when actually he had in his evidence before the trial court denied to have made any such application. He then referred to para 5 of the judgment and said that it was wrongly stated by the learned Additional Commissioner that there was no dispute before him that issue No. 1 and 2 had been incorrectly decided, when in reality it had been hotly questioned by the defendant appellate. He said that if the plea of that Mohd. Ahmad was not the son of Niyaz Ahmad had been abandoned by the defendant in the lower appellate court, the learned Additional Commissioner need not have troubled to give such a finding on it. He said that it was a material plea, but the defendant was a respondent in the lower appellate court and for him there was no question of taking or abandoning the plea. He said that in second appeal here the defendant being an appellate had taken a specific plea on this point in ground No. 4. He, therefore, contended that the judgment of the learned Additional Commissioner was vitiated by irrelevant consideration, wrong inferences and presumption and was liable to be set aside. 4. Learned Counsel for the respondent argued that the question of fatherhood of Mohd. Ahmad having been decided by the trial court and no agitated before the learned Additional Commissioner, the concurrent finding of fact could not be agitated in second appeal. 4. Learned Counsel for the respondent argued that the question of fatherhood of Mohd. Ahmad having been decided by the trial court and no agitated before the learned Additional Commissioner, the concurrent finding of fact could not be agitated in second appeal. On this point he cited A.I.R. 1964 (S.C.) 577. He pointed out that in para 6 the learned Additional Commissioner had endorsed what he had observed in para 5 namely, that there was no disputed raised before him about the fatherhood of Mohd Ahmad. He said that the learned Additional Commissioner had all the same considered the evidence regarding the parentage of Mohd Ahmad. He added that under section 44 of the Land Revenue Act the entries of 1374F to 1376F have to be presumed to be correct and there in the name of Mohd. Ahmad son of Niyaz Ahmad was ordered to be mutated and that it was for the defendant to have proved that Mohd. Ahmad was not the son of Niyaz Ahmad. He also pointed out that in the extracts of khasras relating to the period 1359F to 1373F, filed by the defendant himself. Mohd. Ahmad had been about as the son of Niyaz Ahmad. He also said that in the Tahsildar's order dated 31.10.1968 it was stated that Ali Ahmad was succeeded by Mohd. Ahmad son of Niyaz Ahmad. The sale deed and sanad bhumidhari also stated the same thing about the fatherhood of Mohd. Ahmad. He, therefore, said that it was after consideration of all the documentary evidence along with oral evidence that both the courts had come to the concurrent finding that Mohd. Ahmad was the son of Niyaz Ahmad. 5. Regarding the illegal and mischievous character of the entries of the appellant's name, he referred to para 87(i)(c) of the Land Records Manual (L.R.M. hereafter) and the proviso after sub-para 93) to say that the entry in column 6 of khasra 1359F to 1366F illegal because the lekhpal had no authority to enter the name of a trespasser himself and he could only have held an inquiry and made a report and in the meantime enter the name of such person only in the remarks column of the khasra. He pointed out that there was no name entered in the remarks column of these khasra. He pointed out that there was no name entered in the remarks column of these khasra. He then referred to para 89-A of the L.R.M, and pointed out that the first entry of the name of Abdul Aziz and Rahim Bux occurred in 1359F but as required by that para Form P.A. 10 was not prepared and issues and there was no reference to action under para 89-A any where in the extracts. He then referred to para A-102 C to say that there entry could not be considered as legally made. On this point he cited 1973 R.D. 129. He also pointed out that the new entry, if made, had to be communicated to the tenure holder and on that point he cited 1973 R.D. 299. Then referring to 1360F he said that there was no entry shown in the extract filed so the khasra had not been prepared for that year. Referring to khasra 1361F he said that the entry of badastoor in column 6 and also in the remarks column the entry that Abdul Aziz was in possession by virtue of exchange (tabadla) of plot no, 158 ('Roznamcha' 209). He pointed out that the entry of 'Badastoor in column 6 could relate to Ziman 209 which is mentioned in the entry of khasra 1359F and such a possession was untenable because after the abolition the khasra was prepared with reference to the entry in para 2 of the khatauni and such possession was recorded in class 9 and that had to be done, not by the lekhpal om his own, but by the order of the S.K. He also contended that there was no provision for recording of 'tabadla' entry as the provision of exchange was contained in Section 161 Z.A. and L.R. Act only. He said that such an exchange had to be made only without permission of the Assistant Collector and that exchange could only be between bhumidhar or sirdar. He said that there was no authorised exchange in this case and, therefore, the entry was illegal. He also referred to para A-71 (3) of the L.R.M. to say that the entry had not been made in red ink and there were required to be in red ink until they had been regularised by a competent order. He, therefore, said that the entry of 1361F was illegal and could not be read in evidence. He also referred to para A-71 (3) of the L.R.M. to say that the entry had not been made in red ink and there were required to be in red ink until they had been regularised by a competent order. He, therefore, said that the entry of 1361F was illegal and could not be read in evidence. In support he cited 1975 R.D. 370. 1974 R.D. 268 and 1977 R.D. 206. He then referred to the remarks column entry of 1372 in which 'tabadla' was entered without reference to the plot number 'Tabadla' entry could not be considered to be a valid entry at all. He pointed out that from 1367 to 1370F the appellant had not been shown to be in possession and these could not be read to confer continuity in the case of a trespasser, as held in 1973 R.D. 81 and 1977 R.J. 316. He then said that the entry of 1371F appeared to have been made in accordance with the procedure but in 1372F there was no referred made to P.A. 10 and in 1373F there was no reference to the diary and its serial number and date and thereafter there was no entry from 1374F to 1376F. He said that it was clear from the evidence produced on behalf of the respondent that the entry of the name of the Abdul Aziz was made for the first time in 1377F only. 6. I have also gone through the record of the case. 7. The concurrent findings of the learned courts below that Mohd. Ahmad is the son of Niyaz Ahmad cannot be interfered with because nothing cogent or substantial has been urged against it and also because all evidence on record bearing on it has been considered duly and there is no illegality of procedure or any vitiating factor involved. Although learned counsel for the appellant has referred to S. 50 of the Evidence Act on the question of establishing relationship, it has not been shown now non appearance of Mohd. Ahmad in the witness box to testify to his parentage could lead to the throwing out of the entire documentary and oral evidence produced in this behalf. Although learned counsel for the appellant has referred to S. 50 of the Evidence Act on the question of establishing relationship, it has not been shown now non appearance of Mohd. Ahmad in the witness box to testify to his parentage could lead to the throwing out of the entire documentary and oral evidence produced in this behalf. Further, I cannot but uphold the view taken by the learned Additional Commissioner in para 5 of the judgment that no dispute was raised before him regarding the finding of the learned trial court on the issue of the paternity of Mohd. Ahmad (as also on issue no. 2 which related to the vendor Ali Ahmad passing his title of bhumidhar to the vendee Mohd. Ahmad). All the same, it would appeal that, as a matter of abundant caution, he has briefly stated that there was sufficient evidence on record to support the finding. The learned trial court has itself carefully gone through the oral and documentary evidence and has noted that the plaintiff had admitted that he had no personal knowledge of the parentage of Mohd. Ahmad. This shows that the plaintiff was frank and straight forward. His witness Ram Dayal's position was also the same. But it is notable that the defendant as witness stated in the cross-examination that he did not know the name of the father of Mohd. Ahmad. through maintaining that he was not the son of Niyaz Husain, D.W. 2 Pooran had nothing to say about this paternity. His being a respondent in the First Appellate court did not place any hindrance in his way to demolish the assertion of the other side on this point. The opportunity was there for him to prove at least who, if not Niyaz Husain, was the father of Mohd. Ahmad. The documentary evidence is also adequate to show that nothing substantial has been urged at any time against the respondents assertion that the vendor is the son of Niyaz Husain. This concurrent finding is, therefore, conclusive. 8. The learned J.O. has held that the defendant Abdul Aziz, having been found recorded in possession in the khasras 1359F to 1366F, had matured his right to be a sirdar, because the limitation at that time was of 3 years. This concurrent finding is, therefore, conclusive. 8. The learned J.O. has held that the defendant Abdul Aziz, having been found recorded in possession in the khasras 1359F to 1366F, had matured his right to be a sirdar, because the limitation at that time was of 3 years. It means that by 1362F he had become sirdar, though he continued to be recorded as a sub tenant remarks column right up to 1366F. Further the learned J.O.'s view is that if the name of Abdul Aziz was not recorded in the following four years, it would not matter, because, so long as he is not out of possession for over 6 years, he could claim back hi unrecorded sirdari on the basis of the entries of 1359-66F. As he resumed a possession in 1371F and continued it till 1373F, the learned J.O. had held that he resumed his sirdari within a period of less than six years and continued for three years, whereafter he again left it, there being not entry of his name after 1373F. But, according to the learned J.O, that would not matter, as from 1373F he could again keep off for a period less than six years without losing his prescriptive right acquired during the 1359-66F period. He has, therefore, concluded that, as the suit was filed in 1377F, while limitation as interpreted by the learned J.O. was to expire much later, in the end of 1360F, the suit of the plaintiff. Abrar Husain could not have affected his already matured sirdari rights and ipso facto, the suit was time barred. The learned trial court has in doing so taken a view of the revenue law which is alien to it. It is, in fact, a perverse view, because there is no provision whereby a trespasser, whose claim to sirdari has not yet been recognised in the revenue records can leave off his cultivatory possession and turn up to resume his sirdari at any time within the period of limitation and that this resumption could be done any number of times. But there is no vacuum. If the trespasser has not had his claim established to be sirdar and has not been so recorded, he continues for that period to be a trespasser. If there is a break in his possession, the real tenure holder has legally stepped in. But there is no vacuum. If the trespasser has not had his claim established to be sirdar and has not been so recorded, he continues for that period to be a trespasser. If there is a break in his possession, the real tenure holder has legally stepped in. The concept of resumption of possession with or without the process of the revenue court within the period of limitation is applicable to a duly recorded tenure holder and not to a person who remains recorded in col 9 or col. 20, or merrily in both in the same year, as happened in this case, thanks to the extent of mischief to which some subordinate revenue officials can stop. The recorded trespasser or assami cannot avail of the period of limitation it resume his previous status. A break in his continuity means that he has to start afresh to acquire sirdari rights. There is no harking back. Once there is a break, the bygones are forever bygones. It is apparent that the learned Judicial Officer in considering the question of limitation applied the law wrongly. The first thing to be seen was whether the defendant appellant had matured his sirdari rights in the first period from 1359 to 1366F. When his name was variously entered. For this it was necessary to examine the validity of the entries of this period. The Ld. trial court did not go into this aspect, with the result that reliance came to be placed on entries which were recorded in obvious violation of the provisions of the L.R.M. The Ld. trial court has straightway accepted the entries at their fact value and has hastily concluded that the appellate had matured his sirdari rights, the period of limitation then being three years. The Ld. Addl. Commissioner has carefully gone into this aspect and he has pertainently observed that the entries for the 1359-66F period are "highly suspicious", and "abrupt" because of entry in sub tenants column in 1359F is not supported by any entry in the remarks column of the preceding khasra. Further, he has pointed out that the khasra entries of 1361-F and 1362-F show the name of Abdul Aziz in both columns simultaneously. On this performance of the subordinate revenue official he has observed that "the double entry is something unique". Furthermore, the Ld. Addl. Further, he has pointed out that the khasra entries of 1361-F and 1362-F show the name of Abdul Aziz in both columns simultaneously. On this performance of the subordinate revenue official he has observed that "the double entry is something unique". Furthermore, the Ld. Addl. Commissioner has observed that (1) if Abdul Aziz had been genuinely recorded in these khasra, he would have been an adhivasi and accorded as sirdar by 1363-F, (2) that, in any case, as the period of limitation was 3 years, (3) that, in any case, as the period of limitation was 3 years, he could have got himself duly recorded as sirdar by substantiating his claim, and (3) that if he had acquired his sirdari rights even by 1366-F, it is unintelligible that he would disappear from it for a whole period of four years, 1367-F 1370-F. It is in this context that he has considered the order of the S.O. Moradabad, dated 6-9-1960, in C.L.R.D proceedings, in which he has mentioned that Abdul Aziz disclaimed that he was in possession and that Ali Ahmad was in possession, Ld. Addl. Commissioner has correctly rejected the appellants contention that he never made any admission in any application before the S.D.O. The Ld. counsel for the respondent has in his arguments correctly pointed out in detail, quoting chapter-wise, how one after another, the Rule of the Land Records Manual, Particularly Rules 87(i)(e) and 89-A for 1359-F, and Rules A-71, (3), A-81 and A-102-C for the others. The tabadla "entry is most unwarranted and illegal entry in the khasras of 1361-F and 1372-F, and ill accords with the entry of badastoor" therein. 9. The Ld. trial court was rather hasty, superficial and wrong in considering the nature of the entries in the revenue records of 1459-F and 1361-F to 1366-F and 1371-F-73F, and the improbabilities and irregularities of subsequent entries and on the question of limitation. I hold that the Ld. Addl. Commissioner was correct in reversing the finding of the trial court on the question of limitation. 10. As the entries of the period 1359-F to 1373-F with breaks in 1360-F and 1367-70F are unlawful and appear to have been made by subordinate revenue official in collusion with the appellate with mischievous and ulterior intent, and as the Ld. Addl. Commissioner and the Ld. 10. As the entries of the period 1359-F to 1373-F with breaks in 1360-F and 1367-70F are unlawful and appear to have been made by subordinate revenue official in collusion with the appellate with mischievous and ulterior intent, and as the Ld. Addl. Commissioner and the Ld. counsel for the appellant have exposed their thoroughly in-scrupulous and unlawful character, and as such entries are the cause of much litigation in the revenue courts of the state, as in this case, it is necessary to institute an enquiry into the mischief done by the subordinate revenue officials. For this purpose let a copy of this order be sent to the Chairman, Board of Revenue U.P. and to the collector, Moradabad District. 11. To conclude, I find no substance whatsoever in this appeal and dismiss it. No order as to costs.