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1980 DIGILAW 56 (ALL)

Jhinak Singh v. Dy. Director of Consolidation, Azamgarh

1980-01-09

K.P.SINGH

body1980
ORDER K. P. Singh, J. -This writ petition is against the Judgment of the Deputy Director of Consolidation, Azamgarh, dated 10-8-77 whereby the revision petition filed by the Opposite Party No. 2 Dhanush Dhari Singh was allowed. 2. The disputed plots Nos- 81/2 measuring 192 links and 83/1 measuring 235 links of village Ghazipur, Pargana Nathupur, district Azamgarh were recorded as Sirdari of the opposite party No. 2 in die basic year and the petitioner had claimed Sirdari right in the disputed plots on the basis of his continuous possession for more than statutory period under S. 210 of the U. P. Zamindari Abolition and Land Reforms Act. The Consolidation Officer gave judgment for the petitioner and the appellate authority also confirmed the judgment of the consolidation officer, but the revisional court through the impugned judgment has reversed the judgments of the subordinate authorities and has given judgment for the opposite party No. 2. 3. The learned counsel for the petitioner has contended before me that the appellate authority has recorded categorical finding to the effect that the petitioner was in possession from 1365 to 1376 Fasli and the same has not been specifically set aside by the revisional court, yet the claim of the petitioner has been negatived. 4. Secondly, he has contended that the entry in Class IX in favour of the petitioner could be made by any of the authorities, namely Sub-Divisional Officer, Tahsildar or Naib Tahsildar and the revisional court has patently erred in discarding the revenue entries in favour of the petitioner. 5. Thirdly, he has contended that the entry in favour of the petitioner in Class IX had been made on the basis of the order passed by the Tahsildar hence it was legally correct entry and the same has been wrongly discarded by the revisional court. 6. Fourthly, he has contended that the claim of the petitioner has been wrongly discarded commenting the entry of 1362 Fasli only. 7. Lastly, he has contended that the revisional court has misread the evidence about the forcible possession of the petitioner over the disputed land, hence it has arrived at patently erroneous conclusion. 8. 6. Fourthly, he has contended that the claim of the petitioner has been wrongly discarded commenting the entry of 1362 Fasli only. 7. Lastly, he has contended that the revisional court has misread the evidence about the forcible possession of the petitioner over the disputed land, hence it has arrived at patently erroneous conclusion. 8. In reply the learned counsel for the contesting opposite party has submitted that the revisional court has appraised the evidence on record and has arrived at the findings of fact which should not be interfered with in the exercise of powers under Art. 226 of the Constitution by this Court. He has also submitted that the petitioner has failed to prove his possession over the disputed land for requisite period and his claim has rightly been negatived by the revisional court. He has also refuted the contentions raised on behalf of the petitioner and has submitted that the revisiosal court has arrived at correct conclusions which cannot be termed as suffering from patent errors. 9. I have examined the contentions raised on behalf of the parties. 10. As regards the first contention raised on behalf of the petitioner it is evident that the Settlement Officer of Consolidation had accepted the possession of the petitioner from 1365 to 1376 Fasli on the basis of Khasra entries and the revisional court has indicated in its impugned judgment that the petitioner was not recorded in possession in the years 1370, 1371 and 1372 Fasli. In this view of the matter I do not agree with the contention of the learned counsel for the petitioner that the revisional court has committed patent error in not recognising the claim of the petitioner or the revisional court has committed such patent error in not setting aside the findings recorded by the appellate authority on the question of petitioners possession specifically as would call for interference by this Court. 11. As regards the second and third, contentions raised by the learned counsel for the petitioner, it is noteworthy that the entry in favour of the petitioner in Class IX over the disputed land could be made in the year 1362 Fasli only by the Assistant Collector in-charge of the sub-Division in view of the provisions of Para. 155 (A) of the U. P. Land Records Manual. 155 (A) of the U. P. Land Records Manual. The revisional court in the impugned judgment has discarded the entry of 1362 Fasli on the ground that it had not been made by the competent authority. In my opinion the revisional court has taken correct view in consonance with the relevant law. In this connection my attention was drawn by the learned counsel for the petitioner to the important and immediate direction issued by the Land Reforms Commissioner, U. P. Lucknow (annexure 5 attached to the supplementary affidavit in the present case) and it has been contended that the Tahsildar was quite competent to pass an order in favour of the petitioner indicating his possession over the disputed land in Class IX. I have gone through the annexure 5 and I find that in para. 12 of the above-mentioned direction it has been provided as below :- "It should be carefully noted that no officer below the rank of a Naib Tahsildar is to record an order summarily or on the spot, it may be necessary to decide the dispute in regular proceedings and separate files should be started in respect of such cases which Tahsildar and Naib Tahsildar are not empowered to decide should be transferred by them to the S. D. O " 12. In view of the aforesaid direction also it is evident that where the Tahsildar and Naib Tahsildar were not competent to decide the disputes the same should have been referred to the Sub-Divisional Officer. In the present case I have already indicated that the relevant entry in favour of the petitioner could be made only on the basis of the order passed by the Assistant Collector First Class in Charge of the Sub-Division, hence the entry made in favour of the petitioner on the basis of the order passed by the Tahsildar would not be the correct entry and if the revisional court has discarded the aforesaid entry it has not committed any patent error. I do not agree with the contention of the learned counsel for the petitioner that the Tahsildar could make entry of' Class IX in favour of the petitioner at the relevant time. 13. I do not agree with the contention of the learned counsel for the petitioner that the Tahsildar could make entry of' Class IX in favour of the petitioner at the relevant time. 13. During the course of the argument the learned counsel for the petitioner also invited my attention to the provisions of Section 6 of the U. P. Act No. 10 1961 (U. P. Land Laws Amendment Act, 1961) and has contended that the order passed by the Tahsildar in favour of the petitioner in the year 1362 Fasli indicating his possession in Class IX was justified. S. 6 of U. P. Act No. 10 of 1961 reads as below:- "Validation of certain Acts- (1) Notwithstanding the provisions of any other law for the time being in force, anything done or purporting to have been done and any action taken or purporting to have been taken (including any order made or passed, proceedings taken, direction issued, jurisdiction exercised and judgment delivered) in the areas in which the U. P. Zamindari Abolition and Land Reforms Act, 1950 is in force, prior to the commencement of this Act, by an Assistant Collector not in-charge of the sub-division or by a Tahsildar or Naib-Tahsildar under the Principal Act or under any other law for the time being in force, shall be good and valid and shall be deemed always to have been good and valid as if on all material dates:- (1) such Assistant Collector had been duly appointed Assistant Collector in charge of the sub-division: (ii) such Tahsildar had been a duly appointed Assistant Collector of the First Class; and (iii) such Naib Tahsildar had been a duly appointed Assistant Collector of the Second Class. (2) Sub-section (1) shall not apply to a case in which anything done or any action taken by an Assistant Collector or Tahsildar or Naib Tahsildar has been finally held by a court of competent jurisdiction to be invalid on the ground that. (i) such Assistant Collector was not a duly appointed Assistant Collector in charge of the sub-division; or (ii) such Tahsildar was not a duly appointed Assistant Collector of the first class; or (iii) such Naib-Tahsildar was not a duly appointed Assistant Collector of the Second Class." 14. (i) such Assistant Collector was not a duly appointed Assistant Collector in charge of the sub-division; or (ii) such Tahsildar was not a duly appointed Assistant Collector of the first class; or (iii) such Naib-Tahsildar was not a duly appointed Assistant Collector of the Second Class." 14. To my mind the aforesaid provision would not validate an order passed by a Tahsildar whereas the matter could be dealt with by the Assistant Collector in charge of the Sub-division. It is true that if the matter could be dealt with by the Assistant Collector of the First Class, the order passed by a Tahsildar would be validated but if the matter could be dealt with by an Assistant Collector in charge of the sub-division, the order passed by the Tahsildar would not be validated. Id the present case if the order had been passed by an Assistant Collector First Class who was not an Assistant Collector in charge of the sub-division, the aforesaid provision would have validated the order. Admittedly the order in favour of the present petitioner was passed by the Tahsildar whereas the same should have been passed by the Assistant Collector in charge of the sub-division, hence the revisional court has rightly discarded the entry in favour of the petitioner and the contention of the learned counsel for the petitioner that the Tahsildar was competent to order that the petitioner should be recorded in possession over the disputed land in Class IX is not acceptable to me. Thus the second and third contentions raised by the learned counsel for the petitioner are rejected. 15. As regards the fourth contention, it is noteworthy that the revisional court has not only commented the entry in the extracts of 1362 Fasli but has also dealt with the oral evidence led by the parties and has accepted the claim of the contesting opposite party No. 2 Dhanushdhari Singh and has not accepted forcible possession of the petitioner over the disputed land. To my mind the aforesaid finding is based on appraisal of evidence and circumstances involved in the present case and cannot be characterised as perverse, arbitrary or without any basis in evidence. 16. To my mind the aforesaid finding is based on appraisal of evidence and circumstances involved in the present case and cannot be characterised as perverse, arbitrary or without any basis in evidence. 16. As regards the last contention, the learned counsel for the petitioner has emphasised that the petitioner had claimed possession over the disputed land and has led evidence in support of his contention and the revisional court has misread the same. No doubt the expression of the revisional court in this regard is not very happy which is as below:- "Jhinak Singh ne apne bayan men yah kaha hai ki a ra ju nijai parti pari Thi. Isase Dhanushdahri ka koi matlab nahim hai. Isa se yah bhi ispasht hai ki woh kabja oas iwana ke aadhar par bhi swatwa ki mang nahin kar raha hai anya-tha use ispasht rup se yah whana cha-hive tha ki Dhanushdhari ki araji par unki jankari par unhone kabja kar liya...." 17. It is true that when the petitioner was asserting his possession over the disputed land and was denying the claim of Hie contesting opposite party No. 2 Dhanushdhari Singh his possession over the disputed land would be without the consent of Dhanushdhari Singh. In this regard the observations in the impugned judgment are not very happy but that would not affect the ultimate conclusions arrived at by the revisional court. When the petitioner was not recorded in possession.over the disputed land for more than statutory period continuously in accordance with law his possession was rightly not accepted as continuous by the Deputy Director of Consolidation, whether the possession of the petitioner is adverse or not would make no difference in the conclusions arrived at by the revisional court when he had never been in possession continuously for more than six years at any point of time. To my mind the revisional court has not accepted the possession of the petitioner over the disputed land and has criticised the wrong entry in favour of the petitioner. Hence even if the revisional court has erred in making observation on the question of adverse possession it has not arrived at patently erroneous ultimate conclusions. I8. For the reasons given above, all the contentions raised on behalf of the petitioner fail and the writ petition deserves to be dismissed. Accordingly I dismiss the writ petition and direct the parties to bear their own costs.