Yadunath Singh and others v. Deputy Director of Consolidation, Hamirpur and others
2010-09-27
VIKRAM NATH
body2010
DigiLaw.ai
Vikram Nath, J.: - This Writ Petition under Article 226 of the Constitution of India has been filed for quashing the judgement and order dated 21.2.1974 passed by the Settlement Officer, Consolidation in Appeal No.319 of 1974, Dibra versus Sri Yadunath Singh and others and the judgement dated 19.12.1974 passed by the Deputy Director of Consolidation, Pratapgarh Camp at Hamipur passed in Revision No. 978 of 1974, Yadunath Singh and another versus Dibra and others, whereby the claim of the petitioners over the land in dispute, on the basis of the adverse possession, had been rejected and after setting aside the order of the Consolidation Officer it had been directed that the basic year entries be maintained. 2. The dispute relates to Khata No.93, Plot No.154/25 area 6.01 acres, situate in Village Kunwakhera, Pargana Sumerpur, Tahsil and District Hamirpur. In the basic year records the name of Dibra, respondent no.4 was recorded. Objection was filed by Yadunath Singh, Mrig Raj Singh and Brij Raj Singh, sons of Raja Ram Singh under Section 9A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the CH Act) claiming that their father Raja Ram Singh was in possession over the plot in dispute and after his death they have continued in possession and that they have matured their rights under Section 210 of the U.P. Zaminadari Abolition and Land Reforms Act, 1951 (hereinafter referred to as the ZA Act) and as such their names may be recorded over the plot in dispute after expunging the name of Dibra, the opposite party in the objection. This objection was registered as Case No.2189 of 1973-74 in the Court of the Consolidation Officer, Hamirpur. Dibra filed written statement denying the claim of the objectors and alleged that the objectors had no right, title or interest over the land in dispute. The alleged entry in their favour is not in accordance with law. At the time of 'partal' the objectors were not found in possession but in fact the sons of the objectors were found in possession. The sons have not filed any objection and as such no rights can accrue to the objectors. It was prayed that the objection be dismissed. 3. Parties led both oral as well as documentary evidence.
At the time of 'partal' the objectors were not found in possession but in fact the sons of the objectors were found in possession. The sons have not filed any objection and as such no rights can accrue to the objectors. It was prayed that the objection be dismissed. 3. Parties led both oral as well as documentary evidence. On behalf of the objectors Yadunath Singh (one of the objectors) and Gore Lal were examined as witnesses and on behalf of Dibra, his son Ram Charan was examined. The Consolidation Officer vide order dated 3.1.1974 came to the conclusion that Raja Ram Singh was in possession over the plot in dispute and thereafter his three sons, the objectors were in possession and that they had matured their rights under Section 210 of the ZA Act. He also recorded a finding that the entry in P.A. 10 was validly made after due notice to Dibra, the recorded tenure holder. On these findings he directed that the name of Dibra be expunged and in his place names of the objectors Yadunath Singh, Mrig Raj Singh and Brij Raj Singh, sons of Raja Ram Singh be recorded as Sirdar. 4. Dibra filed an appeal under Section 11 of the CH Act before the Settlement Officer, Consolidation, Hamirpur which was registered as Appeal No.319 of 1974, Dibra versus Yadunath Singh. Before the Appellate Court certain documentary evidence were filed which included photo copy of the PA10, Diary of the Lekhpal etc. The Settlement Officer Consolidation vide judgement dated 21.2.1974 considered the documentary and oral evidence in detail and recorded the following findings- A(i) Yadunath Singh, one of the objectors who had appeared as witness stated that he had no knowledge as to when his name was recorded in Class 9. (ii) Yadunath Singh admitted that Plot No.154 was a huge plot and he was not aware of the boundaries of the Plot in dispute No. 154/25 measuring 6.01 acres. (iii)He did not know what crops were sown in the last 3 years. 5. On such consideration the Settlement Officer recorded that Yadunath Singh had no knowledge of the status and location of the plot in dispute as such could not be said to be in possession.
(iii)He did not know what crops were sown in the last 3 years. 5. On such consideration the Settlement Officer recorded that Yadunath Singh had no knowledge of the status and location of the plot in dispute as such could not be said to be in possession. B (i) Dibra had filed khasras from the year 1354 F up to 1365 F. It was noticed that the entries in the Khasras of the plot in dispute were not similar and coherent. (ii) The name of Raja Ram Singh (father of the objectors) had suddenly been found incorporated in 1362 F and two years thereafter Raja Ram Singh's name came to be recorded in the main column. Further in khasra 1365 F the name of Raja Ram Singh came to be recorded over 2.51 acre on the basis of 'partal' and Diary number. The area was different. (iii) In khasra 1367-1372 F Dibra was recorded over 3.50 acres and 2.51 acres was separately recorded in the name of Raja Ram Singh in Class 9 from 1967 F. 6. On the above consideration the Settlement Officer Consolidation recorded that the entries were not consistent and continuous. C(i) The Diary of the lekhpal dated 17.1.1959 only recorded that name of Raja Ram Singh was found in possession over 3.50 acres. This entry is at Serial No. 216. Further in the entry at Sl. No.217 it is noted that Raja Ram Singh was found in possession over 2.51 acres of the land of Dibra. (ii)The P.A. 10 of 1366 F has been filed which does not contain any reference to or any order of Supervisor Kanoongo. 7. On the above consideration the Settlement Officer Consolidation came to the conclusion that the entries of possession of Raja Ram Singh were not only in accordance with law but were inconsistent and further the procedure prescribed for issuance of PA 10 was not followed and as such the PA 10 could not be relied upon. 8. Accordingly the Settlement Officer Consolidation held that the Consolidation Officer had allowed the objections in a cursory manner. He therefore, allowed the appeal and after setting the order of the Consolidation Officer directed that the basic year entries be maintained. 9. The objectors Yadunath Singh and others filed a revision under Section 48 of the CH Act which was registered as Revision No.978 of 1974.
He therefore, allowed the appeal and after setting the order of the Consolidation Officer directed that the basic year entries be maintained. 9. The objectors Yadunath Singh and others filed a revision under Section 48 of the CH Act which was registered as Revision No.978 of 1974. The Deputy Director of Consolidation vide judgment dated 19.12.1974, after considering the material evidence on record, concurred with the findings recorded by the Settlement Officer Consolidation and accordingly dismissed the revision. Aggrieved by the aforesaid two orders the present Writ Petition has been filed. 10. Heard Sri Vishnu Sharan Singh (Pujari), learned counsel for the petitioners and Sri Ram Raj, Advocate representing the respondents. 11. The main argument raised by the learned counsel for the petitioners is that the Deputy Director of Consolidation, which was the last Court of facts, has not taken into consideration and discussed the oral evidence led by the parties and therefore, the order of the Deputy Director of Consolidation is bad in law and the matter deserves to be remitted to the Deputy Director of Consolidation for a fresh decision after considering the material oral evidence led by the parties. In support of this contention learned counsel for the petitioners relied upon the judgement of this Court in the case of Triloki and others versus Ram Iqbal and others reported in 1981 RD 299. It has further been urged by Sri Pujari that once the petitioners had established their long standing possession, from the time of their father and under law possession could be tacked, the name of the petitioners ought not to have been rejected on technicalities. In support of this contention he has relied upon the following decisions- (i)Chaturbhuj Prasad Khattri versus Hari Narain Khattri and others, reported in 1991 RD page 314. (ii)Uma Shankar and others versus Dy. Director of Consolidation and others, reported in 1979 RD page 305. (iii) Mohan versus Director Consolidation U.P. Kanpur and others, reported in 1974 RD page 55. 12. Further referring to the finding recorded by the Settlement Officer Consolidation and Deputy Director of Consolidation, with regard to the entries and issuance of PA 10, Sri Pujari has submitted that even if there was some procedural irregularity in issuance of PA 10, the Courts below ought not to have rejected the same outrightly but should have considered what weight could be assigned to the entries.
In support of the above submission he has relied upon the judgment of this Court in the case of Mohd Habib versus Deputy Director of Consolidation Jalaun Camp at Allahabad and others, reported in 1977 (2) RD 257. 13. On the other hand learned counsel for the respondents has submitted that the consolidation courts having specifically held that the PA 10 had not been issued in accordance with law, even if the objectors petitioners were in possession for some period, they could not be declared to have perfected their rights by adverse possession. It was further urged on behalf of the respondents that the Settlement officer Consolidation had taken into consideration the entire oral and documentary evidence into consideration and the judgment of the Deputy Director of Consolidation being that of affirmance, even if some evidence had not been considered by the Deputy Director of Consolidation, it would not make any difference. It is further submitted that no perversity has been shown in the order of the Settlement officer, Consolidation which was affirmed by the Deputy Director of Consolidation and as such the argument advanced would not be of any help to the petitioners. 14. Having considered the submissions, it is to be noticed that the Settlement Officer Consolidation recorded specific findings after considering each and every oral and documentary material evidence on record, as already recorded above. It is not the case of the petitioners that the consideration of the material evidence by the Settlement Officer was either misplaced or there was any misreading. 15. In a case for adverse possession and that too with regard to agriculture land possession is to be retained every year after the crops are harvested as the land lies barren or without any occupation till the time of sowing new crops commences. It is because of this that the entries in the record with regard to possession and actual physical possession year after year becomes relevant and necessary. Break in possession washes away the previous length of possession and the period starts afresh upon reentering into possession. 16. Adverse possession in the case of agriculture land has to be construed differently from an adverse possession of a building.
Break in possession washes away the previous length of possession and the period starts afresh upon reentering into possession. 16. Adverse possession in the case of agriculture land has to be construed differently from an adverse possession of a building. In the case of building what is to be established is the hostile entry into the building in the knowledge of the owner and thereafter its continuance till such period which may give rise to perfecting the rights. Whereas in the case of agriculture land the possession is to be established every year continuously for the prescribed period. 17. In the present case from the revenue records, it is established that there were major discrepancies. Firstly, that the possession was over different areas of the plot in question and that too for different periods. The entry regarding possession with regard to both the plots were not in accordance with law. Further the continuous possession every year was not established from the documentary evidence. 18. The relevancy of the documentary evidence of entering into possession is important as the ingredient of establishing title on the basis of the adverse possession are that it has to be hostile and to the knowledge of the real owner and has to be continuously established for the prescribed period. It is for this purpose the procedure is prescribed under Land Record Manual for issuance of PA 10 so that the revenue officers who make entries in the revenue records, sufficiently inform the real owner that there was somebody claiming possession over his land and the records are going to be maintained accordingly and in case he has any such objection he may do so or assert his claim before the appropriate forum. The procedure prescribed has to be necessarily followed. Any deviation or non compliance would vitiate the entry. 19. The confirmation of right on the basis of adverse possession is not to be likely taken as the real owner is likely be deprived of his immovable property. The courts have to be very cautious and should strictly and carefully scrutinise the evidence on all aspects before allowing a claim on the basis of adverse possession. 20.
19. The confirmation of right on the basis of adverse possession is not to be likely taken as the real owner is likely be deprived of his immovable property. The courts have to be very cautious and should strictly and carefully scrutinise the evidence on all aspects before allowing a claim on the basis of adverse possession. 20. In the present case, the finding with regard to non compliance of the procedural rules in issuing the PA 10 having not been assailed by the petitioners, one part of the basic ingredient was lacking and as such the courts below committed no illegality in rejecting the claim of the petitioners. 21. The Apex Court in the case of Vishwanath Bapurao Sabale versus Shalinibai Nagappa Sabale and others, reported in 2009 (2) AWC 1726 (SC) has very accurately recorded in paragraph 23 thereof that long possession by itself is not sufficient to prove adverse possession. It is essential for the parties claiming adverse possession to establish peaceful, open and continuous possession. Para 23 of the report is quoted herein below- "Furthermore for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not sufficient to prove adverse possession." 22. In the present case in absence of valid issuance of PA 10 the entry in Khasra records could not be relied upon. The oral evidence was also not reliable and sufficient as recorded by the Settlement Officer Consolidation. The objector himself had no knowledge of the identity of the plot, the crops grown over the plot in the previous three years. No reliance could have been placed on the statement of the objector Yadunath. 23. The authority relied upon by the petitioners in the case of Triloki and others (supra), would not be of any help to the petitioners in view of the fact that the statement given by Yadunath (one of the objectors) was considered by the Consolidation Officer and had been found to be not worthy of reliance. 24. In the above backdrop the arguments advanced on behalf of the petitioners that oral evidence has not been considered by the Deputy Director can not be sustained. 25. It is accordingly rejected. 26.
24. In the above backdrop the arguments advanced on behalf of the petitioners that oral evidence has not been considered by the Deputy Director can not be sustained. 25. It is accordingly rejected. 26. The other authorities relied upon by the petitioners regarding long standing possession, tacking of possession by the heirs and also with regard to the recording of the entries as per the provisions of Land Record Manual in the case of Chaturbhuj Prasad Khattri (supra), Uma Shankar and others (supra), Mohan (supra) and Mohd. Habib (supra) would also not be of any help to the petitioners in view of the facts and circumstances of the case and in view of the findings recorded in this case. Once the objector himself having entered in the witness box and having stated that he had no knowledge as to when his name was recorded in the Class 9, he was not aware of the boundaries of the plot in his possession and he did not know as to what crops had been sown in the last three years, the factum of possession vanishes. The entry in Form PA 10 having already been found to be not worthy of reliance and the petitioners having not assailed the said finding of the consolidation courts, no relief can be granted to the petitioners. 27. In view of the above discussions, the arguments advanced on behalf of the petitioners do not have any merit. The findings recorded by the Courts below, based upon consideration of material evidence on record, both oral and documentary, are pure findings of fact, not warranting any interference in writ jurisdiction. 28. Petition lacks merit and is accordingly dismissed. There shall however be no order as to costs. Petition Dismissed.