Samay Singh v. Mehar Chand — 1988 DIGILAW 34 (ALL)

JUDGMENT S.K. Lakhtakia, Member. - These are three connected cross appeals filed against the judgment and decree of the Additional Commissioner, Meerut Division Meerut dated 4-3-1982 arising out of original suits no. 151 and 152 under Section 229-B of the U.P.Z.A. & L.R. Act decided by the Assistant Collector, 1st Class, Bulandshahr dated 20-3-1979 through which the suits were dismissed. 2. Two different suits no 151 and 154 were filed against the defendants Mehar Chand, Hari Ram. Badley and Shyam Lal as well as Gaon Sabha and the U.P. State under Sections 229-B/209 of the U.P.Z.A. & L.R. Act. The plaintiffs of suit no. 151 were Samai Singh & others whereas the plaintiffs in suit no. 152 were Chhotey, Netram, Amar Lal and Chunni The case of the plaintiffs in both the suits was similar and the defendants were also common. Hence the trial court consolidated both the suits and decided the same by a common judgment The learned Additional Commissioner allowed the appeal filed by the plaintiff Chhotey & others and decreed the suit in to to. The appeal of Samai Singh & others was however partly allowed, hence both the parties in that suit have preferred cross-appeals in this court which are appeal nos. 152 and 154 of 1981-82. The defendants of suit no. 152 have filed Second Appeal in this court and the judgment of Additional Commissioner and that is appeal no. 151 of 1981-82. The learned counsel for both the parties contended that since a common question of law is involved in these cases, hence all three appeals may be disposed of together. 3. Now the facts of both the suits are that the plaintiffs brought the suits on the allegation that they are bhumidhars in possession of the disputed land and the names of the defendants have been in possession of the khatauni Part II, hence their names should be expunged and the plaintiffs be declared sole bhumidhars. Inter alia, the relief for possession has also been sought. 4. The case of the defence is that the defendants have been in adverse possession for continuous period of more than 12 years and they have perfected their title under Section 210 of the U.P.Z.A. & L.R. Act, hence the suit is time-barred and is liable to be dismissed. Inter alia, the relief for possession has also been sought. 4. The case of the defence is that the defendants have been in adverse possession for continuous period of more than 12 years and they have perfected their title under Section 210 of the U.P.Z.A. & L.R. Act, hence the suit is time-barred and is liable to be dismissed. The trial court framed several issues and, finding that the defendants' possession for more than 12 years had been proved, dismissed both the suits. The plaintiffs of both the cases went up in appeal. The appeal of the plaintiffs Samai Singh & others was partly allowed inasmuch as the suit was decreed in respect of plot no. 402 area 4-2-0 alone and it was dismissed in respect of plot no. 304 area 5-10-0 and the names of the defendants were ordered to be recorded as bhumidhars. The appeal filed by Chhotey and others was allowed outright and the whole suit was decreed, the names of the defendants in that suit were ordered to be expunged from Zeman. 9. Consequently these three appeals, are pending before this court now. 5. Heard the learned counsel for both the parties, perused the record. 6. The learned counsel for the defendants argued that the plaintiffs have been out of possession for more than 12 years and, therefore, both the suits deserved to have been dismissed out-right. He placed reliance on the entries made in khasra in the year of 1370 fasli in favour of the defendants argued and that this entries has been made by the supervisor-kanungo, hence it is relevant for determining the question of possession of the defendants and that the possession of the defendant is proved from this entry. He further argued that this suit was filed in 1974 and the prescribed period for acquiring the rights by adverse possession of that time was only six years before the Act was amended by Notification no. 450/1 (2) 3-2-76 dated 14-11-1971. It was, therefore, contended that the defendants had perfected their title by 1369 fasli and, therefore, the suit of the plaintiffs was clearly barred by limitation. 7. The learned counsel for the plaintiffs contended that only such entries are properly made can be admitted in evidence to prove the possession but if the entries have not been made according to law they have to be ignored and cannot be considered in evidence. 7. The learned counsel for the plaintiffs contended that only such entries are properly made can be admitted in evidence to prove the possession but if the entries have not been made according to law they have to be ignored and cannot be considered in evidence. He argued that in the instant cases no. P.A. 10 was issued and no diary number etc. was mentioned in the khatauni by the lekhpal and that the alleged entry in the khasra is not recorded by the Kanungo himself but by the lekhpal and even then no date of the order of the kanungo had been mentioned therein. It was, therefore, argued that such entry is meaningless and cannot prove the possession of the defendants because this entry is not in accordance with para A-102 of the Land Records Manual. 8. As against the above argument the learned counsel for the defendants placed reliance on para 423 (4) and (5) of the Land Records Manual and stressed that the entries has been made by the kanungo and, therefore, it should be presumed to be correct. 9. I have carefully gone through the entry of 1370 fasli and I find that no. P.A. 10 or the date and number of the diary has been noted therein. No khatauni for 1370 fasli has been filed to prove that any entry was made in part II of the khatauni in favour of the defendants. Only khasra has been filed in which the lekhpal has made an endorsement in the remarks column in the red ink that the defendants be recorded as Shikmi under the orders of the Supervisor Kanungo. The names of the defendants were recorded in red ink in column no. 5 also. It is, therefore, obvious that these entries, have not been made by Kanungo himself but they were made only by lekhpal. As a matter of fact even if the argument of the learned counsel for the defendants is accepted para 423 of the Land Record Manual requires that the entries of possession should be made in the hand of the kanungo himself and the lekhpal cannot do it on behalf of the former. The lekhpal could make entry in khatauni part II by issuing P.A. 10 and by making a clear note about the date and number of the diary therein but it has not been made in the instant case. The lekhpal could make entry in khatauni part II by issuing P.A. 10 and by making a clear note about the date and number of the diary therein but it has not been made in the instant case. Consequently the entry cannot be said to have been made in accordance with para A-102 of the Land Records Manual. Since the entry was not made by the Kanungo himself it cannot be treated as one under para 423 of the said Manual as well. Consequently such entry in favour of the defendants having not been legally made cannot be read in evidence and cannot form the basis of the possession of the defendants. The subsequent entries in favour of the defendants followed the entry of 1370 Fasli and were also, therefore, illegal, hence they cannot prove the possession of the defendants. The courts below have erred in taking this khasra entry as genuine in arriving at the finding of possession in favour of the defendants. The plaintiffs have come up with this plea that they had no knowledge about the entry of possession made in favour of the defendants. There is no reason as to why their version should not be accepted. The oral evidence adduced by the defendants not being in conformity with the documentary evidence is liable to be rejected and their possession cannot be taken to be proved from oral evidence because it does not find corroboration from the documentary evidence. Admittedly plaintiffs are recorded tenure-holders and they would be deemed to be in possession. Mere wrong entry of possession in favour of the defendants would not prove their possession. Consequently both the suits deserved to have been decreed but were wrongly dismissed by the trial court. The Additional Commissioner also partly decreed one of the suits filed by Chhotey & others and maintained the judgment of the trial court in respect of the suit filed by Samai Singh and others and part to the land in suit filed by Chhotey. The judgment of the Additional Commissioner is, therefore, liable to be modified. 10. The Additional Commissioner also partly decreed one of the suits filed by Chhotey & others and maintained the judgment of the trial court in respect of the suit filed by Samai Singh and others and part to the land in suit filed by Chhotey. The judgment of the Additional Commissioner is, therefore, liable to be modified. 10. Accordingly the judgment and decree of the trial court are set aside and the judgment and decree of Additional Commissioner in respect of the suit filed by Samai Singh and others is also set aside and the suit filed by Samai Singh & others is decreed and the plaintiffs of that suit declared as bhumidhars. The names of the defendants are ordered to be expunged. The suit filed by Chhotey & others is also wholly decreed and the names of the defendants are ordered to be expunged from the disputed land and the plaintiffs are declared bhumidhars thereof. The judgment and decree of Addl. Commissioner dismissing part of the suit is set aside. The judgment and decree of the trial court are also set aside. This order shall concern S.A. No. 151 + 152 + 154 of 81-82/Ghaziabad.