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1979 DIGILAW 792 (ALL)

Bitiya Bano v. Deputy Director of Consolidation

1979-07-31

R.S.SINGH

body1979
ORDER R.S. Singh, J. - This petition has been directed against the order of the Assistant Director of Consolidation dated 28-6-1978 allowing the revision filed by the respondents Nos. 5 and 6 (hereinafter referred to as the respondents). 2. The dispute between the parties is confined only to plot No. 2748 in this petition. In the basic year Khatauni Chhotkan was recorded as tenure-holder on this plot as well as on other plots which are not in dispute. An objection was filed by the petitioner in respect of the plot in dispute claiming sirdari rights on the basis of adverse possession. Another objection was filed by the respondents claiming to be the tenure-holders over the disputed plot and also other plots recorded in the name of Chhotkan in the basic year Khatauni. Their objection was based on the fact that they are the grandsons of Chhotkan and therefore, they are tenure-holders of all the plots which were recorded in his name. The petitioner is not in possession over the plot in dispute. Both the parties adduced oral and documentary evidence in support of their respective cases. The Consolidation Officer directed that the name of the respondents be recorded as tenure-holders on all the plots which were recorded in the name of Chhotkan in the basic year khatauni except over the plot in dispute which was directed to be recorded in the name of the petitioner as sirdar. An appeal was filed by the respondents against the order of the Consolidation Officer which was dismissed by the Assistant Settlement Officer (Consolidation). A revision was filed by the respondents against the order of the Assistant Settlement Officer (Consolidation) which was allowed by the Assistant Director of Consolidation and the claim of the petitioner was rejected on the ground that she had not matured any right on the basis of the adverse possession. The petitioner has challenged the order of the Assistant Director of Consolidation before this Court. 3. It has been contended by the learned counsel for the petitioner that the Consolidation Officer and the Assistant Settlement Officer (Consolidation) have recorded a finding in favour of the petitioner that she was in possession from 1370 Fasli and had matured title before the commencement of the U. P. Consolidation of Holdings Act, but the Assistant Director of Consolidation has illegally reversed the orders of the two subordinate authorities. According to the contention of the learned counsel for the petitioner the khasras of 1370 Fasli and 1371 Fasli were prepared in accordance with the Land Record Manual. PA 10 was issued and all other formalities were complied with. The learned counsel for the respondents contended that the entries of 1370 Fasli and 1371 Fasli were rightly rejected by the Assistant Director of Consolidation on the finding that no P. A. 10 was issued for the year 1370 Fasli. P. A. 10 was also not signed by the Pradhan and was not served on the respondents. The learned counsel for the respondents further contended that according to the evidence of the husband of the petitioner he was in possession on behalf of his wife, the petitioner, who was a pardanshin lady, and, therefore, no right could accrue in favour of the petitioner who was not in actual physical possession over the land in dispute. 4. I have considered the arguments of the learned counsel for the parties. A perusal of the judgment of the Assistant Director of Consolidation indicates that all the material evidence were considered. The Assistant Director of Consolidation after carefully examining the evidence on record has recorded a finding that it has not been proved that PA 10 was issued for the year 1370 Fasli. It also does not bear signatures of the Pradhan and there is no evidence to show that the same was served on the respondents. Para A-80 of the Land Record Manual lays down the provision for issue of PA 10 in a case of new or changed entries. Compliance of this provision is not required in every year for the subsequent entries. It is only at the first stage that PA 10 must be issued. Similar view has also been taken in a case reported as Summeri v. Nathoo Singh (1973 RD 70). In view of para 102-C of the Land Record Manual (introduced on 25-2-1958 and deleted on 31-7 1965) the entries without compliance of the aforesaid provision has to be ignored. As there was non-compliance of the aforesaid provisions, the Assistant Director of Consolidation has rightly discarded the revenue entries relied upon by the learned counsel for the petitioner. The Assistant Director of Consolidation has further considered the oral evidence of the husband of the petitioner in this case. As there was non-compliance of the aforesaid provisions, the Assistant Director of Consolidation has rightly discarded the revenue entries relied upon by the learned counsel for the petitioner. The Assistant Director of Consolidation has further considered the oral evidence of the husband of the petitioner in this case. The Assistant Director of Consolidation has given good reasons for not accepting the statement of the husband of the petitioner. On the basis of the oral and documentary evidence on tire record the Assistant Director of Consolidation was not satisfied with the case set up by the petitioner for acquiring sirdari rights on the basis of adverse possession. 5. There is one more aspect of the case. There appears to be no evidence about the actual cultivatory possession of the petitioner in this case. Only evidence is of the husband of the petitioner who had admitted that the petitioner is a par-dahnashin lady and the cultivation is done through him and servants. It has further been admitted by him that the respondents have worked as labourers on-the land in dispute. In order to acquire rights by any person on the basis of adverse possession it is necessary to prove actual cultivatory possession continuously for the requisite period. The question is whether a person can acquire rights even if he is not in cultivatory possession but is in possession through someone else. For acquisition of rights by adverse possession constructive possession is not contemplated. It is a right which accrues in favour of a person who is in actual and cultivatory possession over the land of other without his consent and against the provisions of law. As it has not been proved in this case that the petitioner was in actual and cultivatory possession for more than statutory period on the.-land in dispute, no sirdari rights will accrue in her favour. 6. On a consideration of the entire facts and circumstances of the case I am of the view that no illegality has been committed by the Assistant Director of. Consolidation in rejecting the claim of the petitioner. The learned counsel for the petitioner has not been able to make out any case for interference by this Court in. its extraordinary jurisdiction under Article 226 of the Constitution of India. 7. In the result, the petition fails and is dismissed. The parties shall bear their own costs.