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2005 DIGILAW 2143 (ALL)

BISHAN LAL v. DEPUTY DIRECTOR OF CONSOLIDATION

2005-10-28

KRISHNA MURARI

body2005
KRISHNA MURARI, J. Heard Sri K. R. Sirohi, learned Counsel for the petitioner. Though the case has been taken up in revised list, no one has appeared on behalf of contesting respondents. 2. The dispute in the present writ petition is confined only to plot Nos. 219, 222 and 226 of khata No. 59. In the basic year the said khata was recorded in the name of respondent No. 5. During the consolidation operation two sets of objection were filed, one by the petitions and another by respondent No. 4. 3. It was pleaded by respondent No. 4 in his objection that out of total area of the aforesaid three plots in dispute an area of 6-1-10 was purchased by him in an auction sale in execution of a decree against one Bhavani Singh and the remaining area of 3-8-10 was purchased by the petitioner as such the name of respondent No. 5 is liable to be expunged and his name is liable to be recorded over an area of 6-1-10 of the said three plots in dispute. 4. The petitioner in his objection pleaded that he is entitled to be recorded over the entire area of three disputed plots as the respondent No. 4 was Benami purchaser on his behalf and the entire sale consideration was paid by him. In the alternative it was pleaded that he has perfected rights by adverse possession over the area of the three disputed plots purchased by respondent No. 4 in auction sale as he is in continuous, exclusive open and hostile possession over the same for the last more than 12 years. 5. The Consolidation Officer vide order dated 27-3-1973 held that the name of respondent No. 5 is wrongly recorded over the plots in dispute. He however, disbelieved the case set up by the petitioner about Benami transaction but accepted the plea of adverse possession. After considering the entire evidence brought on record a categorical finding was recorded by Consolidation Officer that the petitioner is in exclusive open and hostile possession since 1370 fasli. On the basis of aforesaid finding the objection of respondent No. 4 was dismissed and that of the petitioner was allowed. Feeling aggrieved respondent Nos. 4 and 5 both filed appeal. The Settlement Officer Consolidation vide judgment dated 12-7-1973 dismissed the appeal filed by the respondent No. 5. On the basis of aforesaid finding the objection of respondent No. 4 was dismissed and that of the petitioner was allowed. Feeling aggrieved respondent Nos. 4 and 5 both filed appeal. The Settlement Officer Consolidation vide judgment dated 12-7-1973 dismissed the appeal filed by the respondent No. 5. He however, allowed the appeal filed by respondent No. 4 on the ground that since suit under Section 229-B read with Section 176 of the U. P. Z. A. and L. R. Act was filed by respondent No. 4 in 1966 (which abated due to consolidation operation) as such petitioner did not perfect rights by adverse possession. He further half that plots in dispute are joint property of the petitioner as well as respondent No. 4. The appellate order was challenged by respondent Nos. 4 and 5 both, before Deputy Director of Consolidation in revision. The Deputy Director of Consolidation vide impugned judgment dated 8-4-1976 dismissed both the revisions. He however, modified the judgment of Settlement Officer Consolidation and held that the petitioner and respondent No. 4 to be exclusive Bhumidhar of the area purchased by them in the auction sale and as specified in their separate sale certificates. 6. Aggrieved petitioner approached this Court by means of this writ petition. It has been urged by the learned Counsel for the petitioner that as no suit for ejectment as provided by Section 210 of U. P. Z. A. and L. R. Act was filed by the respondent No. 4 within prescribed period of limitation, the limitation would not stand arrested by mere filing a suit for declaration and partition and the contrary view taken by Settlement Officer Consolidation and Deputy Director of Consolidation is illegal and erroneous and cannot be sustained. 7. I have considered the arguments advanced on behalf of the petitioner and perused the record. 8. The Consolidation Officer had held that since respondent No. 4 failed to file any suit for ejectment and the petitioner has remained in continuous and exclusive possession for more than prescribed statutory period as such he has perfected rights by adverse possession. Categorical finding about the exclusive and continuous possession of the petitioner recorded by the Consolidation Officer has not been set aside either by the Settlement Officer Consolidation or by Deputy Director of Consolidation. Categorical finding about the exclusive and continuous possession of the petitioner recorded by the Consolidation Officer has not been set aside either by the Settlement Officer Consolidation or by Deputy Director of Consolidation. However, they came to the conclusion that since respondent No. 4 filed a suit under Section 229-B read with Section 176 of U. P. Z. A. and L. R. Act in 1966 before the limitation could run out as such the petitioner failed to perfect the rights by adverse possession. 9. Section 209 of the U. P. Z. A and L. R. Act provides for suit for ejectment of persons taking or retaining possession of the land otherwise than in accordance with law. Section 210 of the said Act prescribe the consequences of failure to file suit under Section 209. This Section provides that in case, suit for eviction from any land under Section 209 is not instituted or a decree for eviction obtained in any such suit is not executed within the period of limitation provides for institution of suit or execution of such decree by a land-holder being Bhumidhar or asami as the case may be, the right, title and interest of the land-holder shall stand extinguished and the person in possession shall become a Bhumidhar or asami of the said land, as the case may be. 10. From the aforesaid it is clear that a suit for ejectment as provided under Section 209 is to be filed within prescribed period of limitation failing which the consequences provided by Section 210 of the U. P. Z. A. and L. R. Act will ensue. The language of the section is plain, simple and unambiguous. Other than suit for ejectment prescribed by Section 229 of the U. P. Z. A. and L. R. Act, any other suit or proceedings would not arrest the running of the limitation or stand in the way of the consequences of not filing suit for ejectment within prescribed period of limitation as provided by Section 210 of the said Act. 11. There appears to be force in the argument advanced on behalf of petitioner that mere filing of a suit for declaration and partition would not arrest the limitation and would not stand in the way of the petitioner perfecting his rights by adverse possession. 12. 11. There appears to be force in the argument advanced on behalf of petitioner that mere filing of a suit for declaration and partition would not arrest the limitation and would not stand in the way of the petitioner perfecting his rights by adverse possession. 12. It is undisputed that during the relevant time the limitation prescribed for perfecting the rights by adverse possession was only six years which came to be substituted by 12 years vide amendment dated 30-10-1971. From pleading of the parties it emerges out that the petitioner was in possession since 1963 after purchasing the property in the auction sale as has also been found by the Consolidation Officer. Thus he perfected rights by adverse possession after expiry of the period of six years i. e. in 1969. Since no suit for ejectment was filed by respondent No. 4 before expiry of the period of limitation the petitioner perfected his rights over the plots in dispute by adverse possession. 13. In the light of aforesaid discussions the impugned judgment of Settlement Officer Consolidation and Deputy Director of Consolidation cannot be sustained. As a result, the writ petition stands allowed. The judgment of Deputy Director of Consolidation dated 8-4-1976 and that of Settlement Officer Consolidation dated 12-7-1973 are hereby quashed and that of Consolidation Officer dated 27-3-1973 is affirmed. 14. However, in the facts and circumstances, there shall be no order as to costs. Petition allowed. .