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1978 DIGILAW 891 (ALL)

Sheo Mangal Lal v. Deputy Director of Consolidation

1978-09-13

R.C.SRIVASTAVA

body1978
JUDGMENT : R.C. SRIVASTAVA, J. 1. In the basic year the names of the Petitioners were recorded in revenue records over the land in dispute. Respondent No. 4 filed an objection u/s 9-A(2) of the U.P. Consolidation of Holdings Act claiming sirdari rights on the basis of adverse possession. The objection of Respondent No. 4 was contested by the Petitioners. The consolidation officer held that the entries of possession made in favour of the Respondent were not in accordance with the prescribed rules. He further held that the Respondent was not in adverse possession and as such did not acquire sirdari rights. Giving the aforesaid findings the consolidation officer rejected the objection of the Respondent. He filed an appeal which was dismissed by the Assistant Settlement Officer, Consolidation affirming the order of the consolidation officer. Respondent No. 4 thereupon filed a revision before the Deputy Director of Consolidation. The Deputy Director of Consolidation held that some of the plots were found to be entered in the name of the ancestors of the Respondent in 1306 F. and 1334 F. He further held that the entries of possession made in favour of the Respondent were in accordance with the prescribed rules of U.P. Land Records Manual, hence he allowed the revision of Respondent No. 4 by his order dated 11-10-1971 holding him to be sirdar of the land in dispute. Aggrieved, the Petitioners have come to this Court under Article 226 of the Constitution. 2. Learned Counsel for the Petitioner has urged that the Deputy Director of Consolidation has erroneously held the entries of possession in favour of Respondent No. 4 in accordance with the prescribed rules. He urged that the entries were made in contravention to paragraph A-80 and paragraph A-81 of U.P. Land Records Manual. According to the learned Counsel, requirement under the aforesaid provisions is that when an entry of possession is made in favour of any person, it is necessary to issue a copy of such entry to the tenure holder whose name is entered in the main column and to obtain signatures of the tenant on the copy of the list retained by supervisor Kanungo. He has further urged that neither a copy of the entry was given to the Petitioners nor their signatures were obtained, hence the entry was wholly fictitious and in contravention to the aforesaid rules. He has further urged that neither a copy of the entry was given to the Petitioners nor their signatures were obtained, hence the entry was wholly fictitious and in contravention to the aforesaid rules. Learned Counsel for the Petitioners has also urged that copy of the entry was also not issued to the Pradhan of the Gaon Sabha as required under the aforesaid provision of rules hence also the entries were wholly fictitious and could not be taken into consideration. As the entries were in contravention of law hence the findings of the Deputy Director of Consolidation based on those entries are wholly erroneous and there is a manifest error of law in the judgment of the Deputy Director of Consolidation. 3. Learned Counsel for the Respondents, however, urged that it is true that requirement of issue of notice and obtaining signatures is necessary, but as no such question was raised, hence it cannot be said that notice was not served upon the Petitioners. 3-A. After considering the arguments of the learned Counsel for the parties, I find force in the contention of the learned Counsel for the Petitioners. In order to appreciate the contention, it is necessary to reproduce paragraphs A-80 and A-81 of U.P. Land Records Manual applicable at the relevant time. It is true that the provisions of paragraphs A-80 and A-81 were amended from time to time and were also either deleted or introduced but the provision which was applicable at the time of making the entries of 1369 F. was as follows: A-80.-After each kharif and rabi partal of a village the lekhpal shall prepare in triplicate a consolidated list of the entries mentioned in paragraphs A-71 to A-73 in the following form: Form P-A 10 1 2 3 4 5 6 7 Khasra of Plots Area Entry in Col. 4 of the Khasra Entry in Col. 5 of the Khasra Entry in the remarks column of the Khasra Verification report by the Supervisor Kanungo Remarks A-81. List how to be utilized-(1) The Lekhpal shall fill in first five columns and hand over a copy of the list to the chairman of the land management committee. He shall also prepare extracts from the list and issue to the person or persons recorded in cols. List how to be utilized-(1) The Lekhpal shall fill in first five columns and hand over a copy of the list to the chairman of the land management committee. He shall also prepare extracts from the list and issue to the person or persons recorded in cols. 3, 4 and 5 thereof or 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 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 signatures of the 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 persons affected if he is aggrieved may apply for correction of papers to the Tahsildar or the Sub-Divisional Officer as the case may be. 4. Paragraph A-80 requires the entry to be made at the time of partal. Para A-81 requires the mode and the procedure to be followed at the time of making entry. The aforesaid provisions clearly show that in case Lekhpal finds possession of any other person than the tenure-holder or a person recorded in the main column, it is necessary for him to issue a copy of the entry to the tenant-in-chief or the persons recorded in the main column and to obtain his signatures. It is further necessary that a copy of that entry should be communicated to Pradhan of Gaon Sabha or Gaon Panchayat and signature of receipt of the copy should also be obtained. Para A-81 on the other hand, further makes it obligatory on the part of the Supervisor Kanungo to ensure that the extracts have been issued in all the cases and the signatures of the recipients obtained and if he finds that an extract has not been issued in any case he shall get it issued in his presence. The purpose of such issuing of extracts and obtaining the signatures is that the tenure-holder or the person recorded in the main column may acquire knowledge about such entry and if he so likes may take proper action before the appropriate authority for correction of such entry. The purpose of such issuing of extracts and obtaining the signatures is that the tenure-holder or the person recorded in the main column may acquire knowledge about such entry and if he so likes may take proper action before the appropriate authority for correction of such entry. In the present case the Consolidation Officer and the Assistant Settlement Officer Consolidation recorded a specific finding that the copies of the extracts were not issued to the Petitioners nor their signatures were obtained. The Deputy Director of Consolidation without considering the matter from this aspect held that as the date and diary number was mentioned in respect of Partal as such the entries were in accordance with the rules. The Deputy Director of Consolidation while giving his findings ignored mandatory requirements of issue of extracts and obtaining signatures of the persons entered in the main column. In my view the requirement of paragraphs A-80 and A-81 was mandatory and so long as the requirement was not strictly followed, it cannot be said that the entries made were in accordance with the rules. Once it is established that the entries are not in accordance with the rules, the Deputy Director of Consolidation was not right in relying upon those entries while construing possession of the Respondent. The Deputy Director of Consolidation could summon and examine the original record himself if he wanted to place reliance or could direct the parties to adduce evidence in order to establish the compliance of provisions of law. Unless there was material before the Deputy Director of Consolidation to prove the compliance it was not open for the Deputy Director of Consolidation to hold the entries in accordance with prescribed rules. In the absence of any such finding the Deputy Director of Consolidation was not right in relying upon those entries. 5. Learned Counsel for the Petitioners next contended that the Respondent was claiming the right on the basis of adverse possession. The consolidation officer and the Assistant Settlement Officer Consolidation specifically recorded a finding after taking into consideration the oral evidence that the Respondent was not in possession and that also for a period in order to prescribe sirdari rights by way of adverse possession. The consolidation officer and the Assistant Settlement Officer Consolidation specifically recorded a finding after taking into consideration the oral evidence that the Respondent was not in possession and that also for a period in order to prescribe sirdari rights by way of adverse possession. But the Deputy Director of Consolidation without taking into consideration the oral evidence held Respondent No. 4 as sirdar which was wholly contrary to the provisions of Section 48 of the U.P. Consolidation of Holdings Act. 6. The order of the Deputy Director of Consolidation cannot sustain on this ground also. The Consolidation Officer and the Assistant Settlement Officer, Consolidation considered the oral evidence and thereafter arrived at a conclusion that the Petitioners were in possession of the land in dispute. The Deputy Director of Consolidation upset that finding without taking into consideration the oral evidence. It has been held by the Division Bench of this Court in C.M. Writ No. 633 of 1970 Ram Kishan v. The Deputy Director of Consolidation decided on 8-5-1978 (Unreported Revenue Cases 1974, page 655) that when the Deputy Director of Consolidation passes an order of reversal he has to consider the entire material circumstances and the evidence on record. It has further been held by the Division Bench of this Court in C.M. Writ No. 236 of 1969 Paras Nath v. Waijul Hasan decided on 22-1-1971 (Unreported Revenue Cases 1974, page 615) that consideration of oral evidence is imperative. In the present case the oral evidence and the material circumstances were not at all taken into Consideration by the Deputy Director of Consolidation. He was very much led away by the fact that there were entries made in favour of the Respondent in 1306 F. and 1334 F. The Deputy Director of Consolidation failed to appreciate that the Respondent's claim rested on the ground of adverse possession, hence the entries of 1306 F. and 1334 F. were immaterial. The Respondent was not claiming his right on the basis of those entries. The finding of the Deputy Director of Consolidation that the Respondent has been coming in possession from 1306 F. was wholly erroneous and was not based on any evidence and material on record. The Deputy Director of Consolidation should have considered and examined whether the Respondents entered into possession in 1369 F. adverse to the right of the Petitioners or not. The Deputy Director of Consolidation should have considered and examined whether the Respondents entered into possession in 1369 F. adverse to the right of the Petitioners or not. If there would have been legal evidence and material on record he could arrive at a conclusion that the Respondent entered into possession over the land in dispute in 1369 F. Similarly if the entries of possession were made in the name of the Respondent in accordance with law, it could be said that the Respondent acquired sirdari rights by adverse possession. But if there was no material or oral evidence to establish the possession of the Respondent from 1369 F. and further if it is found that the entries recorded in favour of the Respondent are not in accordance with the prescribed rules it was not open to him to hold the Respondent as sirdar of the land in dispute on the basis of those entries. As the Deputy Director of Consolidation has committed a manifest error of law by not examining the case of the parties on the basis of the settled principles laid down by this Court, it is necessary that the case be sent back to him for deciding the revision afresh in accordance with law on the basis of the observations made above. 7. In the result, this writ petition is allowed and the order of the Deputy Director of Consolidation dated 11-10-1971 is quashed. The case is sent back to the Deputy Director of Consolidation for deciding the revision afresh in accordance with law after taking into consideration the entire oral and documentary evidence on record. It would be open to the Deputy Director of Consolidation to give opportunity to the parties to adduce further evidence before him in order to substantiate their claims. In view of the circumstances of the case, the parties shall bear their own costs. Stay order, if any, shall stand discharged.