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1996 DIGILAW 1455 (ALL)

Shiv Dularey v. Deputy Director of Consolidation

1996-12-18

S.P.SRIVASTAVA

body1996
Judgment : S. P. Srivastava, J. 1. HEARD the learned counsel for the petitioner. 2. PERUSED the record. The petitioner feels aggrieved by an order passed by the Deputy Director of Consolidation, dismissing his revision filed under Section 48 of the U. P. Consolidation of Holdings Act whereunder the order passed by the appellate authority setting aside the order of the Consolidation Officer, and directing for maintaining the basic year entry rejecting the objections filed by the petitioner claiming to have mature tenurial rights in the land in dispute on the basis of the adverse possession, stood affirmed. 3. THE petitioner had filed an objection under Section 9 of the U. P. Consolidation of Holdings Act challenging the basic year entry standing in favour of the contesting respondents asserting that he had been continuing to be in adverse possession of the land in dispute for a long period and had acquired Sirdari rights in view of Section 210 of the U. P. Zamindari Abolition and Land Reforms Act. 4. IT may be noticed that in the year 1963, the land in dispute stood recorded in the names of Ram Chander, Krishna Devi W/o Ram Kumar and Krishna Kumar alias Sadhole who was a minor, Ram Chander and Mst. Krishna Devi had entered into an agreement of sale of a half share in the land in dispute in favour of Manna Lai and another. Since the sale-deed had not been executed inspITe of agreement, Manna Lai and Dalla in whose favour the agreement had been entered into filed a suit being suit No. 161 of 1963 which was decreed by the trial court on 21.1.1965. inspite of the decree, the sale-deed could not be executed on account of the pendency of first appeal and a second appeal in this Court which was ultimately dismissed on 4.1.1973. IT was thereafter that the sale-deed was executed by the trial court on 24.11.1978 and the possession pursuant to the decree was delivered to the vendee on 22.2.1979. The petitioner's name had been recorded for the first time in Zaman-9 in the year 1373 Fasali during the pendency of the appeal. The Settlement Officer, Consolidation after careful consideration of the oral as well as documentary evidence on record came to the conclusion that the petitioner had failed to establish acquisition of any tenurial right as claimed. The petitioner's name had been recorded for the first time in Zaman-9 in the year 1373 Fasali during the pendency of the appeal. The Settlement Officer, Consolidation after careful consideration of the oral as well as documentary evidence on record came to the conclusion that the petitioner had failed to establish acquisition of any tenurial right as claimed. The Settlement Officer, Consolidation further found that the revenue entries in the revenue records relied upon by the petitioner were not in accordance with law and had been manipulated. These entries were discarded holding them to be fictitious and not representing the correct state of affairs. The oral evidence tendered by the petitioner was found to be unworthy of credit. On the aforesaid findings, the Settlement Officer, Consolidation allowed the appeal and setting aside the order of the Consolidation Officer, directed for the continuance of the basic year entry rejecting the objections of the petitioner. 5. THE revising authority also after considering the evidence and the materials on the record, endorsed the findings of the Settlement Officer, Consolidation and dismissed the revision vide the impugned order. 6. THE learned counsel for the petitioner has tried to assail the concurrent findings relating to the relevant facts which have been returned against the petitioner by the Settlement Officer, Consolidation as well as the Revising Authority. it has been urged that the petitioner had succeeded in establishing his possession for more than the prescribed period. So far as the aforesaid submission is concerned, suffice it to say that the findings on the question of facts returned against the petitioner are based on an appraisal of evidence on record and do not appear to suffer from any such infirmity which may Justify any interference therein, while exercising the extra-ordinary jurisdiction envisaged under Article 226 of the Constitution of India. It may further be noticed that from the materials brought on record, It is apparent that two of the recorded tenure-holders fell in the category of disabled persons and consequently they being co-tenure-holders, the petitioner could not be taken to have matured any tenurial right in the land in dispute which could defeat their interests therein which stood secured under the provisions of the U. P. Zamindari Abolition and Land Reforms Act on account of their disability. 7. 7. THIS Court in its decision to the case of Puttu Singh and others v. Kirat Singh and others, 1965 AU 936, which was rendered by a Division Bench had clarified that the U. P. Zamindari Abolition and Land Reforms Act does not make any provision for acquisition of rights by a tenure-holder by adverse possession. it provides for suit for dispossession of persons taking wrongful possession and it is only after the period of limitation for such suit expires and a suit becomes time-barred that the right to bring a suit would become extinguished with the consequential result that the right of the tenure-holder will also become extinguished under Section 28 of the Limitation Act, 1908. 8. FROM what has been indicated above, it is apparent that in a case where a person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force where the land forms part of the holding of Sirdar or Bhumidhar without the consent of such Sirdar or Bhumidhar is liable to ejectment on the suit by Sirdar or Bhumidhar and if a suit for eviction is not instituted by the concerned Bhumidhar or Sirdar or a decree for eviction obtained in any such suit is not executed by him within the period of limitation provided for institution of such a suit or the execution of such decree, the person taking or retaining the possession shall where the land forms part of the holding of a Bhumidhar with transferable rights will become a Bhumidhar with transferable rights of such land and in case where the land forms part of the holding of a tenure-holder with non-transferable right will become a tenure-holder with non-transferable rights and the rights, if any, of the Bhumidhar or Sirdar concerned in that land shall stand extinguished. This is the legislative scheme underlying the provisions contained in Sections 209 and 210 of the U. P. Zamindari Abolition and Land Reforms Act. it is, therefore, obvious that the extinguishment of the right to sue results in the accrual of a consequential tenurial right in favour of the person retaining the possession of the land of the person whose right to sue to recover possession gets extinguished. it is, therefore, obvious that the extinguishment of the right to sue results in the accrual of a consequential tenurial right in favour of the person retaining the possession of the land of the person whose right to sue to recover possession gets extinguished. In the present case, the period of limitation could not be taken to have started to run so as to result In the extinguishment of the right to sue of the recorded tenure-holders which could have resulted In the accrual of a tenurial right In the land In dispute In favour of the petitioner. On the findings recorded and the facts apparent on the face of record, it could not be said that In the presence of the two tenure-holders out of whom one was a disabled person within the meaning of Section 157 of the U. P. Zamindari Abolition and Land Reforms Act and the other being a minor, the period of limitation for filing a suit for ejectment could not be taken to have been runout so as to result In the extinguishment of their right to sue which could have resulted In the accrual of a tenurial right In favour of the petitioner. Even if it be assumed that the petitioner had continued to be in possession of the land In dispute. The decree passed by the trial court In the year 1965 which stands affirmed by this Court could not be taken to have been nullified In the facts and circumstances brought on record. 9. EVEN otherwise, taking into consideration the totality of the circumstances and the facts noticed by the Settlement Officer, Consolidation as well as the Deputy Director of Consolidation in the impugned orders, no case for intervention of the equity is made out. 10. IN the aforesaid view of the matter, this writ petition is devoid of merit and is accordingly dismissed in limine.