Mohd. Ramzan Khan (D) by L. Rs. v. D. D. C. , Allahabad
2009-09-10
S.U.KHAN
body2009
DigiLaw.ai
JUDGMENT S. U. Khan, J.—At the time of arguments, no one had appeared on behalf of contesting respondents, hence only the arguments of learned counsel for the petitioner were heard and he was directed to file written arguments also. Thereafter, written arguments in the form of a short note were filed. 2. The dispute relates to different plots of Khata No. 37, situate in village Sarai Taki Pargana Jhunsi, District Allahabad. 3. The case of the original petitioner Mohd. Ramzan Khan and respondent No. 35, Smt. Shafiunnissa before the consolidation courts was that initially Mohd. Zahoor, Noor Ashraf and several other co-sharers were zamindar of the land in dispute, which was their “sir” and 'khudkashta' ; that Noor Ashraf transferred his proprietary rights on 8.11.1951 to original petitioner and respondent No. 35 and put them in possession ; that they were recorded to be in cultivatory possession in 1358 fasli and 1359 fasli and in the said records, the land in dispute was recorded as sir of Zameer Hasan, Shah Akmal and others ; that in 1364 fasli, respondent Nos. 4 to 31 forcibly occupied a large portion of the land in dispute and got their names entered in the remarks column. Original petitioner and respondent No. 35 filed a suit for possession under Section 209 of U.P.Z.A. and L.R. Act, which was abated after start of consolidation and three objections were filed before the Consolidation Officer. One was by original petitioner and respondent No. 35. The other was by respondent Nos. 4 to 31 and the third was by Zameer Hasan, Shah Akmal and Mazrul Hasan claiming bhumidhari rights, however, these persons afterwards gave up the pursuit. Initially C.O. allowed the objections of the petitioner except in respect of that part of disputed land which was in possession of respondent No. 11, Bansi and to that extent objections of Bansi were allowed and others' objections were dismissed. Zameer Hasan, Shah Akmal and Mazrul Hasan did not pursue the matter further. However, most of the contesting respondents filed appeals. Through order dated 15.1.1970 S.O.C. allowed all the appeal except the appeal of respondent No. 7, Lala. Thereafter revisions were filed and D.D.C., Allahabad through order dated 30.7.1970 allowed the revisions and remanded the matter to S.O.C. Thereafter, S.O.C. through order dated 18.9.1972 allowed the appeals of respondent Nos. 4 to 31.
However, most of the contesting respondents filed appeals. Through order dated 15.1.1970 S.O.C. allowed all the appeal except the appeal of respondent No. 7, Lala. Thereafter revisions were filed and D.D.C., Allahabad through order dated 30.7.1970 allowed the revisions and remanded the matter to S.O.C. Thereafter, S.O.C. through order dated 18.9.1972 allowed the appeals of respondent Nos. 4 to 31. Said order was challenged by the petitioner and respondent No. 35 through several revisions the leading one being Revision No. 231/39/18 of 1973, Musammat Shafiunnissa v. Sant Lal. D.D.C. dismissed all the revisions through judgment and order dated 10.8.1973, hence this writ petition. 4. In the judgment of the D.D.C., it is mentioned that all the parties admitted that Noor Ashraf, who was co-zamindar executed a sale deed of part of the property in favour of petitioner and respondent No. 35, hence they also became co-zamindars. It has also been observed that original petitioner and respondent No. 35 in the suit under Section 209 of U.P.Z.A. and L.R. Act stated that as they had occupied zamindari land, hence they acquired khudkashta rights. However, in the objections before the C.O., it was stated that the property in dispute was in their actual possession in 1358 and 1359 fasli, hence they got adhivasi and sirdari rights. Thereafter, learned D.D.C. observed that first of all it was necessary to decide as to whether they (original petitioner and respondent No. 35) were in actual physical possession of the land in dispute in 1359 fasli (U.P.Z.A. and L.R. Act was enforced w.e.f. the first date of 1360 fasli, i.e., 1.7.1952). Thereafter learned D.D.C. agreeing with C.O. held that the entry of petitioner and respondent No. 35 in 1358 fasli and 1359 fasli was forged and fictitious as husband of respondent No. 35 was Naib Registrar, Kanoongo in the Tehsil in question and he had manipulated the records. Thereafter, the statement of Noor Ashraf was examined, who had supported the case of petitioner and respondent No. 35. He stated that at that time he was co-zamindar and in mutual partition, land in dispute had come to his share and he delivered possession of the same to original petitioner and respondent No. 35.
Thereafter, the statement of Noor Ashraf was examined, who had supported the case of petitioner and respondent No. 35. He stated that at that time he was co-zamindar and in mutual partition, land in dispute had come to his share and he delivered possession of the same to original petitioner and respondent No. 35. In this regard, the learned D.D.C. held that even though Noor Ashraf was co-zamindar, however there was no evidence that land in dispute was either his sir or khudkashta or he had any share therein. Noor Ashraf also stated that Shah Akmal was managing the affairs of zamindari and he gave the land to him. In this regard, the D.D.C. held that even Shah Akmal had no share in the land in dispute. Shah Akmal also gave his statement before C.O. He stated that neither Musammat Shafiunnissa (respondent No. 35) nor Noor Ashraf was ever in possession. Thereafter, it has been observed in the impugned judgment by D.D.C. that some of the plots were not shown to be in possession of respondent No. 35 in the revenue records of 1359 fasli, however after Zamindari Abolition they were recorded in the names of respondent No. 35 and original petitioner. Noor Ashraf had also stated that in 1359 fasli, he himself asked the patwari to enter the possession of respondent No. 35 in the revenue records. D.D.C. also held that even if it was assumed that original petitioner and respondent No. 35 were in possession in 1359 fasli, it would confer no right upon them as they did not claim to be trespassers and they were basing their right on some sale deed. 5. Revisional court found that major part of the property in dispute was recorded as ''sir” of Syed Zameer Hasan, Syed Zahur Khan and Smt. Fatma widow of Munshi Raza, however on some plots in dispute like 77, 131, 178 and 89 etc. names of some other persons were also recorded. It is also mentioned in the judgment that this position was admitted to the parties. 6. Thereafter, D.D.C. held that as Zameer Hasan and others (who were recorded before Zamindari Abolition as sir holders) had not even filed suit for eviction and they were only defendants in the aforesaid suit for eviction, hence they could not claim any right. 7. While discussing the case of the respondent Nos.
6. Thereafter, D.D.C. held that as Zameer Hasan and others (who were recorded before Zamindari Abolition as sir holders) had not even filed suit for eviction and they were only defendants in the aforesaid suit for eviction, hence they could not claim any right. 7. While discussing the case of the respondent Nos. 4 to 31, the argument of the other side that the first entry in their favour was not in red ink and there was no mention of Pa Ka-10. In that regard, the D.D.C. held that even though provisions of land record mannual were not followed, however Zameer Hasan admitted the possession of respondent Nos. 4 to 31 and he did not file any suit for eviction or initiate any proceedings for entry of his and his co-sharers names. It has further been mentioned in the impugned judgment by D.D.C. that original petitioner and respondent No. 35, themselves admitted the possession of at least some of the contesting respondents, however they clarified their statement by saying that they had been required to help in cultivation and growing of crops in lieu of some share in the crops. D.D.C. mentioned that after Zamindari Abolition, the names of deceased petitioner and respondents No. 35 were entered as sirdar. 8. Entry of occupant in 1356 fasli confers a right upon that person under Section 20 (b) of the Act. Original petitioner and respondent No. 35 were not recorded in 1356 fasli. Even in respect of that provision, the Supreme Court has held that an entry in 1356 fasli may confer right upon the recorded person even if the entry is wrong, however if the entry is fraudulent or made without any basis it will not confer any right vide Wali Mohd. v. Ram Surat, AIR 1989 SC 2296 and Chandrika Prasad v. Pullo, AIR 2000 SC 1785 : 2000 (2) AWC 1559 (SC). Paras No. 4 and 5 of the earlier authority, which were quoted in Para 21 of the later authority also, are quoted below : "4. The said section deals with the question as to who is entitled to take or retain possession of the land in question.
Paras No. 4 and 5 of the earlier authority, which were quoted in Para 21 of the later authority also, are quoted below : "4. The said section deals with the question as to who is entitled to take or retain possession of the land in question. The plain language of the aforesaid Clause (i) of sub-section (b) of Section 20 of the said Act suggests that this question has to be determined on the basis of the entry in the khasra or khatauni of 1356 fasli year prepared under Sections 28 and 33 respectively of the U. P. Land Revenue Act, 1901. An analysis of the said section shows that under sub-section (b) of Section 20 the entry in the khasra or khatauni of the fasli year 1356 shall determine the question as to the person who is entitled to take or retain possession of the land. It is, of course, true that if the entry is fictitious or is found to have been made surreptitiously then it can have no legal effect as it can be regarded as no entry in law but merely because an entry is made incorrectly that would not lead to the conclusion that it ceases to be an entry. It is possible that the said entry may be set aside in appropriate proceedings but once the entry is in existence in the khasra or khatauni of fasli year 1356, that would govern the question as to who is entitled to take or retain possession of the land to which the entry relates. 5. It was submitted by learned counsel for the appellants that if the entry was not correct it could not be regarded as an entry made according to law at all and the right to take or retain possession of the land could not be determined on the basis of an incorrect entry. He placed reliance on the decision of this Court in Bechan v. Kankar, (1973) 1 SCR 727 : AIR 1972 SC 2157 . In that judgment the nature of the entries in khasra or khatauni is discussed and it is also discussed as to how this entry should be made. This Court held that entries which are not genuine cannot confer adhivasi rights.
In that judgment the nature of the entries in khasra or khatauni is discussed and it is also discussed as to how this entry should be made. This Court held that entries which are not genuine cannot confer adhivasi rights. It has been observed that an entry under Section 20 (b) of the said Act, in order to enable a person to obtain adhivasi rights must be an entry under the provisions of law and entries which are not genuine cannot confer adhivasi rights. In that judgment it has been stated that the High Court was wrong when it held that though the entry was incorrect, it could not be said to be fictitious. That observation, however, has to be understood in the context of what follows namely, that an entry which is incorrectly introduced into the records by reason of ill-will or hostility is not only shorn of authenticity but also becomes utterly useless without any lawful basis. This judgment, in our view, does not lay down that all incorrect entries are fictitious but only lays down that a wrong entry or incorrect entry which has been made by reason of ill-will or hostility cannot confer any right under Section 20 (b) of the said Act. This decision is clarified by a subsequent judgment of this Court in Vishwa Vijai Bharti v. Fakhrul Hasan, (1976) Suppl SCR 519 : AIR 1976 SC 1485 , where it has been held as follows (at p. 1488 of AIR) : "It is true that the entries in the revenue record ought generally, to be accepted at their face value and Courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title." 9. Accordingly, I do not find least error in the impugned orders. Original petitioner and respondent No. 35 could not justify the entries of their names in the revenue records of 1358 and 1359 fasli. Writ petition is therefore dismissed.