Research › Browse › Judgment

Allahabad High Court · body

1983 DIGILAW 612 (ALL)

Satendra Pratap Bahadur v. Bhawani Prasad

1983-09-05

KAUSHAL KISHORE

body1983
JUDGMENT Kaushal Kishore, Member. - These are defendant's second appeal numbers 242 and 243 of 1974-75/Barabanki against the judgment and decree dated April 10, 1975 reversing the judgment and decree dated March 24, 1973 by the learned trial court and thereby decreeing the suit of Bhawani Prasad and dismissing the suit of Bachchi Kunwar. 2. I have heard the learned counsel for the parties and have also perused the record. 3. Bhawani Prasad had filed a suit under Sections 229-B/209/202 of the U.P.Z.A. and L.R. Act in respect of plot number 80 area .91 acres for declaration of his Bhumidhari and finding of his possession, failing which for ejectment of Tirath and Bachchi Kunwar. Another suit was filed by Bachchi Kunwar for declaration of her Sirdari on plot number 80(M) area .31 acre on the basis of adverse possession. These were consolidated. The learned trial court found possession of Tirath and Bachchi Kunwar for the past about 15 years and considered for the past about 15 years and considered the adverse possession suspended for 4 years from 1962 to 1966 during which the consolidation operations were going on and in consequence found the rights by adverse possession matured. However, the learned Additional Commissioner counting adverse possession since after denotification held that the limitation had not expired and decreed the suit of Bhawani Prasad. 4. The main question in these appeals is whether the period of adverse possession before the consolidation proceedings or even during the consolidation proceedings as per A.C.O's. report dated January 31, 1964 and the C.O's. order dated March 1, 1964 to record the two persons in class 9, could be continued and could be tagged to the adverse possession after denotification. The learned counsel for the appellant has argued that the consolidation operations continued from 1962 to 1966 and this suit was filed in 1968 and the learned trial court's finding was that the defendants were in possession for about 15 years of which the period of consolidation operations would have to be taken out as adverse possession and remained suspended during this period, that even so the period was long enough and the limitation had expired, in support, he cited a ruling reported in 1970 R.D. 240 and also another ruling reported in A.I.R. 1982 S.C. 114 which was not shown to be relevant to the present question. The learned counsel further argued that the suit was barred under Section 34(5) of the Land Revenue Act as the land was said to be purchased from Smt. Sirtaji that the case of Tirath was not considered by the learned lower appellate court, that Mst. Sirtaji were three sisters and only ?rd share of Sirtaji could be purchased, so the suit for whole area .91 acre could not be decreed. 5. The learned counsel for the respondent has argued that Smt. Sirtaji was the only daughter and heir of the original tenure-holder Mst. Gulaba, that Sirtaji had executed the sale in favour of the plaintiff Bhawani Prasad, that mutation had been ordered in favour of the plaintiff and so no bar under Section 34 of the Land Revenue Act applied, that the ruling reported in A.I.R. 1982 S.C. 114 is not applicable to any specific aspect in this case, that the denotification of consolidation proceedings was made in August, 1966 and the suit being filed in July, 1968 was quite within limitation, that the ruling reported in 1970 R.D. 240 does not apply to present case and the two separate periods of adverse possession even if proved could not be tagged together, that adverse possession before the consolidation proceedings is washed away and cannot be considered in view of the rulings reported in 1972 R.D. 284, 1968 R.D. 187 and 1977 A.W.C. (Rev.) 136. He further argued that no plea about the ?rd share of Sirtaji was taken in the trial court and no such plea can now be taken, that the case of Bachchi Kunwar and Tirath Nath has been discussed in paras 4 and 5 of the first appellate court's judgment and that Section 28(1) of the U.P.C.H. Act provides for the delivery of possession to the tenure-holder and Section 28(2) of the U.P.C.H. Act further provides that if no such delivery of possession to the tenure-holder is effected within six months, it will be deemed that the tenure-holder entered into possession on the expiry of six months. 6. From the above arguments, it became clear that only one question about the continuity of adverse possession during consolidation operations or tagging of the period of adverse possession before and after the consolidation operations remains for consideration. 6. From the above arguments, it became clear that only one question about the continuity of adverse possession during consolidation operations or tagging of the period of adverse possession before and after the consolidation operations remains for consideration. The ruling reported in 1970 R.D. 240 is very useful for such consideration and the law laid down therein is that Section 49 of the U.P.C.H. Act bars a suit under Section 209 of the Act if the land in respect of which the suit is proposed to be filed is situate in an area under consolidation operations, that the limitation for a suit under Section 209 would stand suspended from the date of notification under Section 4 of the U.P.C.H. Act, upto the denotification if such limitation had not already run out on the date of notification and that the person failing to file a suit under Section 209 of the Act during the consolidation operations on account of the bar under Section 49 of the U.P.C.H. Act, has a right to get the relief under the U.P.C.H. Act. The principle laid down enables the tenure-holder to file a suit under Section 209 of the Act after denotification but the person in adverse possession does not gain similar advantage by tagging the two different periods of adverse possession. Such tagging is nowhere provided. 7. The ruling reported in 1972 R.D. 284 says that the decision taken during consolidation proceedings is to be maintained, any modification is barred under Section 49 of the U.P.C.H. Act. The same view is held in 1968 R.D. 187. This decision relates to the title on land. Adverse possession is not even title on the land. The ruling reported in 1977 A.W.C. (Rev.) 136 is more applicable to the present case and it clearly provides that the adverse possession must start from the date of denotification. The provision under Section 28 of the U.P.C.H. Act further clarifies the position that the adverse possession does not continue during the consolidation proceedings. In the Full Bench case Badal v. D.D.C., 1970 R.D. 240 the Hon'ble High Court indicated the right of the tenure-holder to seek remedy under the provisions of the U.P.C.H. Act but there was no need to deal further on that aspect. In fact, there is no provision in the U.P.C.H. Act to give possession to the trespassers. In the Full Bench case Badal v. D.D.C., 1970 R.D. 240 the Hon'ble High Court indicated the right of the tenure-holder to seek remedy under the provisions of the U.P.C.H. Act but there was no need to deal further on that aspect. In fact, there is no provision in the U.P.C.H. Act to give possession to the trespassers. If before the date of denotification a person has matured his rights, the consolidation court decides the title in his favour. But in case the such rights are matured, the authorities must deliver the possession to the tenure-holder. The deeming clause under Section 28(2) of the U.P.C.H. Act restores the possession to the tenure-holder for all purposes. Generally, during consolidation operations, actual plots get somewhat reshuffled and it is only in accordance with the consolidation scheme that Chaks are allotted to the tenure-holders and possession given at the proper stage. At this stage, the persons in adverse possession are not to be given any attention under the U.P.C.H. Act. Even if, as in the present case, the consideration authorities find no need to make a new Chak and the same plot remains with the tenure-holder and even if the consolidation authorities find the possession of someone else on the plot, the provisions of someone else on the plot, the provisions under Section 28 of the U.P.C.H. Act are not undone. It is for this reason, that during consolidation operations for any reason whatsoever, the continuity of adverse possession cannot be maintained and must be broken. 8. A proper appreciation of the ruling in Badal v. D.D.C., 1970 R.D. 240, indicate that the law laid down is that the tenure-holder due to intervening consolidation proceedings does get advantage of the continuity of limitation if not expired but the reverse is not true in case of person in adverse possession and his adverse possession must restart from the date of denotification. As the learned trial court has already found in this case, the consolidation authorities had rejected the objections of Tirath and Bachchi Kunwar and had only ordered them to be recorded in varg-9 by order dated May 1, 1964. Evidently, they did not acquire any rights during consolidation proceedings. Since further adverse possession must start from the date of denotification in August, 1966, no rights matured till filing of the suit in July, 1968. Evidently, they did not acquire any rights during consolidation proceedings. Since further adverse possession must start from the date of denotification in August, 1966, no rights matured till filing of the suit in July, 1968. Therefore, the suit of the respondent Bhawani Prasad and others was rightly decreed and these appeals have no force. Accordingly the two appeals are dismissed with costs. 9. This order shall govern second appeal Nos. 242 and 243 of 1974-75/Barabanki.