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1993 DIGILAW 102 (ALL)

Rama v. Deputy Director of Consolidation

1993-02-04

S.R.SINGH

body1993
JUDGMENT : S.R. SINGH, J. 1. Present petition arises out of proceedings u/s 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act and is directed against the judgment ant order dated 26.8.1989 passed by the Deputy Director of Consolidation, Varanasi (Annexure 3 to the writ petition). 2. The dispute before the Consolidation authorities between the parties, was in respect of plots comprising basic Khatauni Khata Nos. 783 and 540 of village Harshosh Post Harshosh in the district of Varanasi, Khata No. 783 was exclusively recorded in the names of the Petitioners whereas Khata No. 540 was recorded in the names of Petitioners together-with lagan, Ghure & Mithai-Respondents 2, 3 and 4. On publication of statement of principles, three sets of objections were filed-one by Chhedi and others (Respondents 6 to 9) in respect of certain plots on the basis of a sale deed executed by Shanker, Petitioner No. 3, who was one of the recorded tenure holders. The second set of objection came from Bhaggu claiming himself to be co-tenure-holder in both the Khatas on the ground that he was the son of Mod who was admittedly one of the co-tenure holders in the Khatas in dispute, The third set of objection was filed by lagan and Maggan claiming themselves to be co-tenure holders in Khata No. 783 alongwith recorded ones. Alternatively, they claimed to be the sole tenure holders of plots bearing Khasra Nos. 511, 529. 1623/1 by adverse possession u/s 210 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 3. The Consolidation Officer rejected all the objections by means of the order dated 30.6.1980, which was maintained by the appellate court by dismissing the appeals preferred against the aforesaid order by means of the judgment and order dated 26.12.1988. Aggrieved by the aforesaid orders, all these sets of objects up in revision before the Deputy Director of Consolidation the Deputy Director of Consolidation, upon a consideration of the facts and circumstances, allowed the revision of Jaggan in respect of plot Nos. 511, 529 and 1623/1 and at the same time rejected his claim based on co-tenancy. The objections filed by Bhaggu and that of the transferees Chhedi and others were also allowed by the Deputy Director of Consolidation. 4. I have heard Sri Sankatha Rai, learned Counsel appearing for the Petitioners and Sri Ram Niwas Singh, learned Counsel appearing for the Respondents. 5. The objections filed by Bhaggu and that of the transferees Chhedi and others were also allowed by the Deputy Director of Consolidation. 4. I have heard Sri Sankatha Rai, learned Counsel appearing for the Petitioners and Sri Ram Niwas Singh, learned Counsel appearing for the Respondents. 5. Having heard the learned Counsel for the parties, I am of the opinion that the impugned judgment in so for as it upholds the claim of transferees from, Petitioner No. 3 does not suffer from an error of law much-less an error of law manifest on record warranting interference under Article 226 of the Constitution. The Revisional Court has come to the conclusion that the transfers pertain to the share of the transferor and that being so, it has rightly held that the transfers in question were made well in accordance with the permission for transfer given by the Settlement Officer, Consolidation u/s 5 of the Uttar Pradesh Consolidation of Holdings Act. The Petitioners have failed to prove that the transfers is question ware vitiated an any other ground. My attention could not be invited to any material on record on the bans of which it could be said that the Consolidation authorities could treat the sale deeds as void and ignore the same without insisting upon their formal cancellation by the competent Civil Court. Accordingly, the writ petition as against the transferee is dismissed and the impugned judgment in so far as it is in favour of the transferees is maintained. The rest of the judgment under question is, however, not sustainable in law. A perusal of the Civil Courts judgment dated 19.9.1973 rendered in original suit No. 558 of 1968, in which Bhaggu was party Defendant No. 8, indicates that he (Bhaggu) failed to prove himself to be the son of Moti on the proof of which was based his claim of co-tenancy in suit land namely Plot No. 1623 which is one of the plots in dispute in this writ petition as well. Since Bhaggu's claim of co-tenure holdership in the disputed Khatas is based on his claim of being the son of Moti, the Civil Court's judgment on this score would operate as res-judicata and the Asstt/Dy. Since Bhaggu's claim of co-tenure holdership in the disputed Khatas is based on his claim of being the son of Moti, the Civil Court's judgment on this score would operate as res-judicata and the Asstt/Dy. Director of Consolidation has patently erred in holding otherwise The finding recorded by the Consolidation Officer and Settlement Officer, Consolidation that Bhaggu was not the sun of Moti, stood concluded and was not liable to be reopened in view of the judgment of the Civil Court end the Deputy Director of Consolidation was not justified in interfering with the concurrent finding recorded by Consolidation Officer and Settlement Officer, Consolidation and in reopening an issue which was no longer res-integra. Therefore, the judgment of the Deputy Director of Consolidation in so far as it upholds the claim of Bhaggu, is also, liable to be quashed. 6. Sri Ram Niwas Singh learned Counsel appearing for the Respondents however, urged that the plea of res-judicata was not raised and therefore, the Petitioner cannot make any capital of the Civil Court judgment. He has placed reliance upon Full Bench decision of this Court Ramesh Chand and Others vs. Board of Revenue and Others, AIR 1973 All 120 . The said decision has no application to the facts of the present case inasmuch as in that case, copy of the judgment and decree was not filed and it appears that the plea was raised for the first time before the High Court and the judgment and decree on the basis of which the res-judicata plea was raised, were not filed even In the High Court. In the instant case, the judgment was filed before the Dy. Director of Consolidation. It is not the case of Respondent that he was not afforded opportunity to adduce evidence in rebuttal. In this view of the matter I am not prepared to accept the contention of the learned Counsel for the Respondent that the Petitioner could not derive any milage out of the judgment of the civil court merely because specific plea was not raised before the Consolidation Officer and Settlement Officer Consolidation and that the judgment was filed for the first time before the Deputy Director of Consolidation. 7. As regards the case of Jaggan and Maggan, It may be stated that the Dy. Director of Consolidation has not accepted his claim based on co-tenancy. 7. As regards the case of Jaggan and Maggan, It may be stated that the Dy. Director of Consolidation has not accepted his claim based on co-tenancy. His case, however, based on acquisition of right by adverse possession u/s 210 of Uttar Pradesh Act 1 of 1951 in respect of plots No. 511, 529 and 1623/1, has been accepted by the Deputy Director of Consolidation. Sri Sankatha Rai, learned Counsel appearing for the Petitioner urged that the finding of the Dy. Director of Consolidation upholding the claim of Jaggan and Maggan u/s 210 is vitiated due to the reason that the Deputy Director of Consolidation has based his conclusion in respect of these plots solely on Khasra entries without examining the question as to whether the Khasra entries were made in accordance with the provisions of Land Records Manual, particularly those contained in paragraphs A-80, A 81 and A-102C. Sri Ram Niwas Singh urged, on the other hand, that the finding on question of possession being essentially a finding of fact is not amenable to writ jurisdiction under Article 226 of the Constitution The law as to scope and. ambit of certiorari Jurisdiction under Article 226 of the Const, is by how too well settled by a series of decisions of the Supreme Court, such as T.C. Basappa vs. T. Nagappa and Another, AIR 1954 SC 440 and Sawarn Singh and Another vs. State of Punjab and Others, (1976) 2 SCC 868 . In granting a writ of certiorari, the High Court does not review or re-welsh the evidence upon which the determination of the inferior court or tribunal purports to be based. The control which is exercised through certiorari over judicial or quasi-Judicial tribunals or bodies is not in appellate bat supervisory capacity. The High Court in exercise of its certiorari jurisdiction demolishes the order which It considers to be without Jurisdiction on palpably erroneous but does not substitute its own views for those of the inferior tribunals The matter is left open to the inferior tribunals to decide the matter afresh In accordance with law. The High Court in exercise of its certiorari jurisdiction demolishes the order which It considers to be without Jurisdiction on palpably erroneous but does not substitute its own views for those of the inferior tribunals The matter is left open to the inferior tribunals to decide the matter afresh In accordance with law. The question in the present case is whether the failure on the past of the Deputy Director of Consolidation to test the Khasra enters on the anvil of the related provisions contained in the Land Record Manual amounts to an error of law vitiating the order based on the assessment of Khasra entries alone. The entries in the Khasra are expected to be made in the manner and in accordance with the provisions of the Uttar Pradesh Land Revenue Act, 1901 read with those contained in Land Record Manual. It is too well settled that if the procedure is prescribed for doing a thing, the thing must be done in the manner prescribed or not at all. Khasra entries, in my opinion if not made in due compliance of the requirements of the Land Record Manual, particularly those relating to issuance of P.A. 10. the entries of possession made in the remarks column of Khasra, would not be deemed to have been made in discharge of duty Entries of possession made in Khasra without notice to the tenure holder as visualized in the related provisions of the Land Record Manual, would be deemed to have been wade fraudulently and surreptitiously. Such entries in my opinion, if relied upon, would vitiate the order passed by the Subordinate authorities in fact, failure to examine the entries in the Khasra on the anvil of the related provisions of the Land Record Pertain, plains to the realm of decision-making process. The decision baaed upon Khasra entries without testing such entries on the anvil of the related provisions in the Land Record Manual would be suffering from manifest errors of law. 8. In the case of Ram Sakal vs. State of Uttar Pradesh 1987 RD 254 it has been held as under: A provision has been lightly incorporated hi Land Record Manual that extra of P.A. 10 be issue and served on the recorded tenure holder in respect of the entry recording possession made in favour of a trespesser. 8. In the case of Ram Sakal vs. State of Uttar Pradesh 1987 RD 254 it has been held as under: A provision has been lightly incorporated hi Land Record Manual that extra of P.A. 10 be issue and served on the recorded tenure holder in respect of the entry recording possession made in favour of a trespesser. If there is no sufficient evidence on record with regard to the notice to the tenure hold about existence of trespass over his land through service of extract of P.A. 10, upon him as required under the provisions of land Record Manual, there should be every reason to suspect entries in the record to have been manipulated and fictitiously got recorded. 9. A. perusal of the judgment of the Deputy Director of Consolidation indicates that while reversing the judgment of the Subordinate Consolidation Authorities he has not addressed himself to the question as to whether Khasra entries were made in accordance with the provisions of the Land Record Manual. 10. In Jamuna Prasad vs. Deputy Director, Consolidation, 1980 AWC 595 , it has been held that burden to prove compliance of paragraph A-80 is upon the person who is relying DJJOU entries in the revenue records Since the Deputy Director of Consolidation has reversed the judgment of the Consolidation authorities and held Jaggan and Maggon to be sirdars by virtue of Section 210 of the UP ZA LR Act, 1950, solely on the basis of Khasra entries, without testing the correctness or otherwise of the entries contained in Land Records Manual on the touchstone of the related provisions, the judgment is vitiated. 11. The Deputy Director of Consolidation has upheld the claim of Jaggan and Maggan in respect of the three plots mentioned hereinbefore solely on the basis of Khssra entries. It is evident from the impugned judgment tendered by the Deputy Director of Consolidation that he has upheld the claim on the ground that they have acquired Advasi rights over some of the plots on the basis of Khasra entries on 1356 Fasli. It is evident from the impugned judgment tendered by the Deputy Director of Consolidation that he has upheld the claim on the ground that they have acquired Advasi rights over some of the plots on the basis of Khasra entries on 1356 Fasli. It is true that genuineness or bona-fide of Khasra entries of 1356 Fasli have not been challenged on behalf of the Petitioner, but a perusal of the judgment impugned in the writ Petitioners that there is no categorical finding that Jaggan and Maggan continued to be in possession over the plots in dispute on which they were recorded as occupants in 1356 Fasli even on the date of vesting. Since Jaggan and Maggan were not recorded in the basic Khatauni, it was Incumbent upon the Deputy Director of Consolidation to have examined whether they were in possession on the date of fu-ting over the plots of which they were recorded occupants in 1356 Fasli and if not whether they had applied for restoration of possession u/s 232 of Uttar Pradesh Act 1 of 1951. It was also incumbent upon the Deputy Director of Consolidation to see whether they had any subsisting title in the date of commencement of the notification u/s 4(2) of the Uttar Pradesh Consolidation of Holdings Act. Admittedly, entries are not continuous but the Deputy Director of Consolidation could have examined the question as to continuity of possession with the help of oral evidence but he has failed to do as in the present case. In my opinion, therefore the judgment of the Deputy Director of Consolidation holding the claim of Jaggan and Maggan on the basis of the adverse possession in respect of the three plots mentioned hereinbefore, cannot be sustained. 12. Sri Ram Niwas Singh tried to shore up the judgment of the Deputy Director of Consolidation on the basis of the decision of the Supreme Court in the Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447 . For the reasons discussed herein before, the said authority does not help the Respondents, for in my opinion the matter was to be gone into all over again in the light of the aforesaid discussions. The finding of the Deputy Director of Consolidation in respect of riot Nos. For the reasons discussed herein before, the said authority does not help the Respondents, for in my opinion the matter was to be gone into all over again in the light of the aforesaid discussions. The finding of the Deputy Director of Consolidation in respect of riot Nos. 511, 529 end 1623/1 though purports to be a finding of fact, is vitiated for the reason that it is based solely upon Khasra entries which are not continuous and the validity of which has not been tested on the anvil of the related provisions contained in the Land Record Manual. The Deputy Director of Consolidation has not based the finding on the question of possession on my oral evidence. As such the matter has to be gone ever afresh in correct perspective after ascertaining the question as to whether the Khasra entries relied upon by Jaggan and Maggan were made in dm compliance of the related provisions contained in Land Revenue Act, particularly those contained in paragraphs A-80 and A-81, The contention of Sri R.N. Singh that point with regard to non-compliance of the related provisions contained in the Land Record Manual WHS not raised, is not acceptable to me for the reasons that the Petitioners were challenging the claim of the objectors and they were asserting their own possession over (be property in dispute. If was therefore, incumbent upon the Deputy Director of Consolidation to have scrutinised the Khasra entries in the light of the provisions of the Land Records Manual before placing reliance upon such entries, it is nor for this Court to examine the question as to whether the entries were made in accordance with the provisions of the Land Records Manual. That is a question which has to be decided by the Deputy Director of consolidation. It may also be pertinent to mention here that the civil court judgment was in respect of plot no. 1623, Although Jaggan and Maggan were not party Defendants in the said suits but the judgment of the Civil Court could still be relevant u/s 13 of the Evidence Act, if not under Sections 40, 41 and 42 etc. of the Evidence Act. 13. Accordingly, the petition succeeds and is allowed In part. The judgment of the Dy. Director of Consolidation is pertly quashed and partly maintained as aforesaid. of the Evidence Act. 13. Accordingly, the petition succeeds and is allowed In part. The judgment of the Dy. Director of Consolidation is pertly quashed and partly maintained as aforesaid. The Deputy Director of Consolidation would re admit the revision to its number and decide it afresh in accordance with law in the light of the observations in respect of the three plots namely, 529, 511, 1623/1. Parties to bear their respective costs.