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2009 DIGILAW 3575 (ALL)

BECHU RAI v. DEPUTY DIRECTOR OF CONSOLIDATION, GHAZIPUR

2009-11-24

S.U.KHAN

body2009
JUDGMENT Hon’ble S.U. Khan, J.—At the time of hearing, no one had appeared on behalf of contesting respondents/legal representatives of contesting respondents inspite of sufficient service, accordingly only the arguments of learned counsel for the petitioner were heard. 2. This writ petition is directed against judgment and order dated 18.10.1973 passed by D.D.C. Ghazipur in Revision No. 467, Bechu v. Deomuni Rai and others. At the start of the consolidation in the area in question (basic year) petitioner’s name was not recorded in the revenue records over the land in dispute comprised in Plot No. 177, area 7 biswas 17 biswansis (total area of the plot is 16 biswas and odd). Prior to the start of the consolidation, suit under Section 229-B of U.P.Z.A. & L.R. Act had been filed, which was decreed. However during pendency of appeal against the said decree, consolidation proceedings started and the appeal stood abated and was dismissed as such. Thereafter, petitioner filed objections before A.C.O., which was referred by him for disposal to C.O. The C.O. decided the matter in favour of the petitioner, however the appeal filed by the contesting respondents was allowed and the judgment of the appellate Court was maintained by the revisional Court giving rise to the instant writ petition. 3. Petitioner put-forward two pleas. One was on the basis of possession and the other on a mortgage deed. In respect of mortgage, the contention of petitioner was that ancestors of the contesting respondents had mortgaged the whole plot to his ancestors. However half of the mortgaged money had been paid, hence only half property was released by him in favour of some of the contesting respondents or their ancestors. 4. It appears that the suit under Section 229-B of the Act was based only on mortgage. 5. The mortgage deed was not filed. However, in his statement petitioner categorically stated about the execution of the mortgage. All the contesting respondents also admitted the execution of mortgage deed but they asserted that entire mortgaged money had been paid to the petitioner or his ancestors, hence property reverted back to them. The revisional Court rightly held that in case entire mortgaged money had not been paid, mortgage deed would have been in possession of the petitioner. 6. All the contesting respondents also admitted the execution of mortgage deed but they asserted that entire mortgaged money had been paid to the petitioner or his ancestors, hence property reverted back to them. The revisional Court rightly held that in case entire mortgaged money had not been paid, mortgage deed would have been in possession of the petitioner. 6. One of the main arguments raised on behalf of the petitioner before the lower revisional Court was that objections of petitioner not being based upon the mortgage, mortgage should have been altogether ignored. However, lower revisional Court held that both the parties admitted the mortgage, hence it could not be ignored. 7. The rights as mortgagee were not specifically claimed by the petitioner. However, the question of mortgage was rightly considered in respect of plea of adverse possession by the petitioner. Lower revisional Court held that as both the parties admitted the mortgage, hence position of petitioner was that of licensee and not of trespasser, hence he could not claim maturity of title on the basis of adverse possession for a period longer than the period prescribed for filing of suit for possession against trespasser under Section 210 of U.P.Z.A. & L.R. Act. 8. I do not find least error in the order passed by the lower revisional Court. If the possession is relatable to least right or interest, i.e. as licensee etc. then it cannot be adverse. 9. As far as right under mortgage is concerned, the case of the petitioner was that it was ‘Sir’ land of ancestors of contesting respondents and it was mortgaged much before enforcement of U.P.Z.A. & L.R. Act. Such situation is covered by Section 14 of U.P.Z.A. & L.R. Act according to which a mortgagee in possession shall cease to have any right to hold or possess any land with effect from the date of vesting subject to certain exceptions provided under Section 14(2) of the Act. 10. However, as no rights as mortgagee were claimed, hence this point does not require to be pursued further. 11. Learned counsel for the petitioner has cited an authority of the Supreme Court reported in Mazhar Hassan v. Gangu Singh and others, 2008 (1) AWC 394 (SC). However, the said authority does not support the petitioner. 10. However, as no rights as mortgagee were claimed, hence this point does not require to be pursued further. 11. Learned counsel for the petitioner has cited an authority of the Supreme Court reported in Mazhar Hassan v. Gangu Singh and others, 2008 (1) AWC 394 (SC). However, the said authority does not support the petitioner. In the said authority, it was held that finding of possession recorded on the basis of entries in Khasara should be taken as correct. In the instant case, petitioner was not entered as occupant in Khasara. In fact petitioner had filed objections for entry of his name in the revenue records including Khasara. 12. Accordingly, I do not find any error in the impugned order passed by D.D.C. and S.O.C. Writ petition is therefore dismissed. ————