JUDGMENT Kaushal Kishore, Member - This is a second appeal by the defendant against the judgement and decree dated December 15, 1972 by the learned Additional Commissioner, Rohilkhand Division, Bereilly, reversing the judgement and decree of the learned trial court dated November 11, 1970 in a case under Section 209 of the U.P. Z.A. and L.R. Act. The trial court had held that the plaintiff had lost his tenancy rights as he had remained an absconder for about 25 years and the defendant had acquired and matured his rights being in possession after the consolidation proceedings in 1370 F. The first appellate court, however, maintained that the plaintiff had continued to be a tenant and only from 1375 F., the defendant was a trespasser, liable to ejectment and decreed the suit. 2. I have heard the learned counsel for the both the parties and have also perused the record. 3. The controversy mainly centres round the entry of Farar in the Khatauni Khata of the plaintiff and its effect. The learned counsel for the appellant has pressed the ground of appeal that the plaintiff was not able to show that he had continued to be a tenant of the land in dispute and so was not entitled to sue for ejectment of the defendant. This is based on various entries of Farar against the name of the plaintiff, Mukut, son of Lalloo in various Khatauni Khata extracts. In the Khatauni of 1370 F. prepared after consolidation, the plaintiff, Mukut is entered Farar since 1345 F., in the Khatauni 1371 F to 1373 F. As the entry of Farar is shown since 1354 F., the same entry continues in Khatauni 1376 to 1378 Fs and in Khatauni 1356 F., the entry is Farar since 1352 F. It has been argued by the appellant's counsel that the entry Farar shows that the plaintiff was an absconder for about 25 years and so did not remain a tenant of the land in dispute. Much weight has been attached to the entry Farar even in the Khatauni prepared after consolidation in 1370 F. The learned counsel for the respondents has argued that the entry Farar is not consistent in various Khataunis and is not reliable. Then there are formalities which must be completed in respect of the tenants who abandoned their tenancy, as supported by the rulings in Mst.
Then there are formalities which must be completed in respect of the tenants who abandoned their tenancy, as supported by the rulings in Mst. Maiki v. Ranjit Singh and others 1948 R.D. 363. It was held that:- "Even though a tenant has left the village his tenancy rights continue to subsist until the tenancy is extinguished by abandonment and abandonment is not complete unless and until the formalities required by Section 88, U.P. Tenancy Act are observed. So long as the rights of the tenant are not extinguished in the holding, no one else has a right to bring a suit for ejectment of a trespasser and no one else can acquire any tenancy rights in the land". The record show that there is no proof of these formalities having been completed. The learned Additional Commissioner has held that this entry of Farar appears to be incorrect. 4. In fact, the meaning attached to the entry Farar in arriving at the various conclusions by the courts below has been misconceived and rigid, without being related to the circumstances of the case. The provision relating to the subject are given in Section 87 of the U.P. Tenancy Act, 1939 and Para 85 of the land Records Manual. These relate to abandonment of a holding for which the two essentials are ceasing to cultivate the land and leaving no arrangement for the payment of rent as it falls due. For abandonment, leaving the neighbourhood by itself has no significance leaving the neighbourhood must result in lack of proper arrangements for the payment of rent, and the circumstances must indicate an intention of the tenant to severe his connection with his holding permanently. Section 45 of the U.P. Tenancy Act provides that the interest of a tenant shall be extinguished, inter alia, subject to the provisions of Section 82 to 88, by surrender or by abandonment. Section 88 of the Act provides that the land holder shall file a notice in the office of the Tahsildar who shall cause the notice to be served on the tenant. Para 85 (2) (iii) of the Land Records Manual provides that after the words Farar the same year (Fasli) will continue to be entered from year to year. It is to be noted that these entries of Farar or Qabiz are to be made in Khasra in the respective columns.
Para 85 (2) (iii) of the Land Records Manual provides that after the words Farar the same year (Fasli) will continue to be entered from year to year. It is to be noted that these entries of Farar or Qabiz are to be made in Khasra in the respective columns. The parallel provisions in the U.P. Zamindari Abolition and Land Reforms Act are contained in Section 186 and are a departure from the old law. In case of Sirdari, if the land has remained without farming for two consecutive years, the Tahsildar may, on the application of the Gaon Sabha, or on facts coming to his notice otherwise, issue a notice to such Sirdar to show cause why the holding be not treated abandoned. In sub-section 5 it is provided that if the Sirdar appears to contest the notice, the Tahsildar shall drop the proceedings. In para A-71 of the Land Records Manual there is provision to record in the remarks column of Khasra the reason for non-cultivation, viz, 'surrender', 'abandonment' or 'being untraceable' if the tenure holder is found to have ceased to be in possession for any such reason. 5. From the above, it is clear that either before or after vesting, the purpose of 'Farar' entry was to move the Tahsildar for proceeding to determine if it was a case of abandonment. By the Farar entry itself abandonment of the holding or any part of it cannot be presumed, nor can it be taken to be completed without the formal proceedings mentioned above. Before 1360F the tenancy could be extinguished only if apart from non-cultivation and leaving the neighbourhood, there was no arrangement for payment of rent and, on the basis of the proceedings under Section 88 U.P. Tenancy Act read with para 85 (3) of the Land Records Manual. After 1360F, the entry 'Farar' did not affect the rights to the Sirdar unless the proceedings under Section 186 (1) were started on the application of the Gaon Sabha or by the Tahsildar himself, and even then, if contested by the Sirdar, would not result in the extinction of Sirdari rights. The entry Farar could mean either just that the tenant has left the village and the Lekhpal does not know his address or it could also mean abandonment of the holding, depending on the circumstances of the case.
The entry Farar could mean either just that the tenant has left the village and the Lekhpal does not know his address or it could also mean abandonment of the holding, depending on the circumstances of the case. In the present case, on entry of Farar is shown to have been made in Khasra, rent was being paid, no proceedings under Sec. 88 of the U.P. Tenancy Act or under Section 186 (1) of the U.P. Z.A and L.R. Act were taken up and there was no finding or order as to extinction of Sirdari rights. 6. There is evidence that Mukut s/o Lalloo formerly lived in the village Bareng itself, then shifted to another village Bhuria about 2 miles away and lived there for 10-12 years and thereafter shifted to village. Sarori at a distance of about six miles from the village Bareng. Because the Lekhpal did not know these various addresses, he entered, Farar in place of residence. It is obvious that the plaintiff living at a distance of two miles, was not equivalent to an absconder who was untraceable by anybody for the long period of 25 years, and the entry Farar meant only that the address of Mukut was not known, he having left the village. There is evidence that he was all through paying rent of his Khata and even during consolidation proceedings a dispute between him and the trespassers, Maikoo and another was decided in his favour and he had been cultivating the plots. This is confirmed by the fact that in the various Khatauni entries, even in the Khatauni prepared after consolidation, he has always been recorded as tenant. It is obvious that in view of the necessary condition of absence of arrangements for payment of rent being not fulfilled, no action was taken by the Tahsildar and Mukut was all through deemed to be a Sirdar. The Khatauni extracts show the plaintiff Mukut both as Sirdar as well as Farar and in the circumstance discussed, I see no inconsistency in these entries. There are innumerable instances where farmers do not belong to the same village and live in the adjoining or other villages at some distance. In view of the law discussed above a farmer entered Farar cannot be deemed to have abandoned his holding.
There are innumerable instances where farmers do not belong to the same village and live in the adjoining or other villages at some distance. In view of the law discussed above a farmer entered Farar cannot be deemed to have abandoned his holding. After the consolidation, in 1370 F. Khatauni the plaintiff was recorded Sirdar and in view of Farar entry proceedings under Section 186 (1) of the U.P. Z.A and L.R. Act were necessary without which Sirdari rights could not be extinguished. The casualness of making this entry in the present case is also evident from the fact that para 85 (2) (iii) of the Land Records Manual was not complied with. There is no doubt that the word 'Farar' was used by the Lekhpal in the sense of 'Lapata' (untraceable) being copied from one Khatauni to the subsequent Khatauni and not being made in Khasra, it did not indicate any position about cultivation or payment of rent. The conclusion drawn from this entry by the learned trial court that Mukut s/o Lalloo did not continue as Sirdar was obviously incorrect and the plaintiff was within his rights to sue the defendant trespasser for ejectment. 7. The learned counsel for the appellant has further argued that the suit was rightly dismissed by the learned trial court as time-barred and that Section 49 of the Consolidation of Holdings Act bars the plaintiff to show that he was a tenant. This plea actually does not arise. In the consolidation, the plaintiff was held as a Sirdar. So there is no question of any bar, indeed it was for the defendant to get his title declared in a proper suit if he so desired. As for holding adverse possession of the defendant appellant from after 1370F. It is not based on any proper appreciation of evidence. If on the basis of consolidation proceedings the learned trial court held the plaintiff to be a tenant in possession in 1370F, there must be specific evidence to prove adverse possession of the defendant in each year from 1371F onwards. The defendant has produced only the oral evidence of general nature showing his possession for the past 25 years and is not legally correct to reject this evidence for the years 1345 to 1370F and accept it in respect of 1371 to 1377 F and afterwards.
The defendant has produced only the oral evidence of general nature showing his possession for the past 25 years and is not legally correct to reject this evidence for the years 1345 to 1370F and accept it in respect of 1371 to 1377 F and afterwards. The continuity of adverse possession cannot be presumed, on the other hand, the person claiming continuous adverse possession has specifically to show his possession from year to year. This is the accepted principle of law quoted in the ruling reported in Badri v. Smt. Ram Rati 1977 R.D. 224. The real evidence of adverse possession starts from 1375F and this entitles the plaintiff for a decree of ejectment of the defendant. 8. Incidentally, it may be mentioned that the argument of the learned counsel for the appellant that the rent receipts are not related to the plot numbers does not carry much weight, since always Jamabandi Khata which is generally the same as the Khatauni Khata is mentioned in the rent receipts and not the plot numbers. Corelation is always possible by comparing the Khata and the amount of rent shown in the Khatauni Khata and the rent receipt. This has been possible in case of some rent receipts filed by the plaintiff which show that the observation of the learned trial court that the rent receipts were not related to plots was not correct and the learned Additional Commissioner has rightly noted this. 9. In view of the above discussion, I find no valid ground to interfere with the findings of the learned Additional Commissioner and the appeal must fail. I, accordingly, dismiss the appeal and maintain the judgement and decree passed by the learned lower appellate court.