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2011 DIGILAW 2227 (ALL)

CHANDI PRASAD v. D. D. C. , KANPUR

2011-09-22

PRAKASH KRISHNA

body2011
JUDGMENT Hon’ble Prakash Krishna, J.—The subject-matter of the writ petition is Gata No. 5487 (area 4 bighas), Gata No. 624 (area 2 bighas 10 biswansi), Gata No. 672 (area 2 bighas 10 biswansi) of Khata No. 141 in respect of village Dabauli, District Kanpur. The petitioner was recorded as Sirdar over the property in dispute in the revenue record of the basic year. The respondent Nos. 4 and 5 (who have died during the pendency of the writ petition) were also recorded over the property in dispute in column No. 9. 2. During the consolidation proceedings, the petitioner filed objection for expunging the names of respondent Nos. 4 and 5 on the pleas inter alia that he is a Sirdar of the plots in question and that the said respondents have no right, title or interest therein. On October 20, 1973, the Consolidation Officer rejected the aforestated objection of the petitioner. The order of the Consolidation Officer was confirmed by the Settlement Officer of Consolidation by order dated 30th of August, 1975 and these two orders have been confirmed in revision filed by the petitioner before the Deputy Director of Consolidation by the impugned order. 3. Challenging the aforestated three orders, the present writ petition has been filed. 4. The case of the petitioner is that the contesting respondents’ names were wrongly entered in the revenue records. Their names were included for the first time in column 9 in 1356 Fasli (corresponding 1959), on the basis of an application filed by them, for correction of record, before Tehsildar. The Tehsildar ordered the recording of their names as it was represented before him that the petitioner has no objection. The petitioner on coming to know of the order of Tehsildar instituted suit No. 77 of 1961-62 for declaration of his right and possession as also possession, if the petitioner is not found in possession before the revenue Court. The suit was decreed by the judgment and decree dated 13th of October, 1971 on the finding that the petitioner is Sirdar of the aforestated Khata to which the respondents have no concern. The revenue Court also reached to the conclusion that the order of recording the names of contesting respondents was obtained by playing fraud. The said judgment and decree was challenged in appeal which was abated due to commencement of the consolidation operation in village. The revenue Court also reached to the conclusion that the order of recording the names of contesting respondents was obtained by playing fraud. The said judgment and decree was challenged in appeal which was abated due to commencement of the consolidation operation in village. The case of the contesting respondents, on the other hand, is that in view of the order passed by the Tehsildar which was subject-matter of challenge in the suit., they have perfected their title by adverse possession. 5. Sri Kunal Ravi Singh, learned counsel for the petitioner submits that all the three Courts below have misdirected themselves and wrongly ignored the finding which was recorded by the revenue Court in favour of the petitioner to the effect that the application purported to have been signed by the petitioner, as a matter of fact, was not signed by him. The consolidation Courts have wrongly assumed that the order passed by Tehsildar ordering the recording of names of the contesting respondent Nos. 4 and 5 was not challenged by the petitioner. 6. Hearing of the writ petition proceeded ex parte. None appeared at the time of hearing of the case on behalf of the contesting respondents, even in the revised list. 7. Considered the aforesaid submissions of the learned counsel for the petitioner as also examined the three orders impugned herein. 8. The facts are not much in dispute. It is not in dispute that the petitioner was recorded in the basic year as Sirdar as a rightful tenant. So far as the title of the petitioner is concerned, it is not being disputed by the contesting respondents herein. What is disputed by them is that they have perfected their title by way of adverse possession and their names were recorded in the light of the order passed by Tehsildar. The said order of Tehsildar was passed with the consent of petitioner, according to them, which is being disputed. 9. The Courts below have proceeded on the premises that the petitioner did not dispute the signing of application giving consent for recording names of the respondent Nos. 4 and 5. The question is —whether it is so. 10. Certified copy of the judgment passed by the revenue Court in suit No. 77, under section 229 B is on the record. The Courts below have proceeded on the premises that the petitioner did not dispute the signing of application giving consent for recording names of the respondent Nos. 4 and 5. The question is —whether it is so. 10. Certified copy of the judgment passed by the revenue Court in suit No. 77, under section 229 B is on the record. As many as seven issues were framed and the issue No. 5 which is relevant for our purposes is whether the suit on behalf of the plaintiff in view of the averments made in para 15 of the written statement admitting the claim of defendants, is maintainable. The parties led evidence and it has been found that the plaintiff (the petitioner) is Sirdar and the defendants therein (contesting respondents) have not acquired any Sirdari right in the disputed property. The alleged admission (signing of application giving consent for recording of the contesting respondent’s name) of the plaintiff is not proved. 11. In the proceedings giving rise to the present writ petition, there is no contrary evidence. The Supreme Court in Ram Prasad v. Assistant Deputy Director of Consolidation, AIR 1994 SC 2733 (para 8) has held that a finding recorded by a Civil Court or Revenue Court in a suit, the proceedings which have been abated unless proved otherwise by evidence produced before Consolidation Court, is relevant for consideration for deciding the dispute between the parties. 12. The aforestated judgment of the revenue Court was totally ignored and discarded on the ground that the suit was abated. This is not a correct approach to the matter, there being no cogent evidence before the consolidation Courts to hold otherwise. 13. There is not much discussion either in the order of the Settlement Officer of Consolidation or of Deputy Director of Consolidation but all the Courts below have noticed that a suit for declaration was filed by the petitioner and in appeal the proceedings were abated. 14. Now, coming to the question with regard to the recording of names of contesting respondents in revenue record in column-9. Column-9 relates to the recording of name in revenue record of a trespasser. The contesting respondents’ case, as stated herein above, is that their names were recorded in proceeding for correction of revenue record with the consent of the petitioner. Now, coming to the question with regard to the recording of names of contesting respondents in revenue record in column-9. Column-9 relates to the recording of name in revenue record of a trespasser. The contesting respondents’ case, as stated herein above, is that their names were recorded in proceeding for correction of revenue record with the consent of the petitioner. The said plea has been found favour by all the three Courts below on the premises that the petitioner did not object the correction in revenue records. The said approach of all the three Courts below is legally and factually incorrect. The petitioner did file the suit for declaration of his right and also for possession if found not in possession which was decreed, wherein he denied the giving of any such application. The contesting respondents are claiming the recording of their names in proceedings No. 14 before Tehsildar relating to correction of record. By order dated 8th of January, 1958 names were directed to be recorded. Shortly thereafter, i.e. in the year 1961 on coming to know of such an order, the petitioner did institute the suit No. 77 of 1961-62 a fact which is not in dispute. Therefore, the consolidation Courts have proceeded to address the issue of consent by misdirecting themselves that the petitioner did not object the recording of names of contesting respondents in the revenue record. The said approach is patently erroneous and against the record. 15. The other limb of the argument which was raised by the petitioner before the revenue Courts was that there was no occasion for correction of revenue record and incorporation of names of the contesting respondents as there was no error. It was also submitted that recording of names of contesting respondents was done without following the prescribed procedure of law. It was demonstrated that the report of Lekhpal reporting the possession is dated 2nd of August, 1957 while spot inspection (Partal) was done subsequently on 6th of October, 1957. This shows that the entry was made in favour of the respondents in a predetermined manner. The said argument has not been met by the Courts below, although they have noticed it. Without giving any reason it has been stated that the entry of possession has been made after following the due procedure. This shows that the entry was made in favour of the respondents in a predetermined manner. The said argument has not been met by the Courts below, although they have noticed it. Without giving any reason it has been stated that the entry of possession has been made after following the due procedure. In other words, the irregularity pointed out by the petitioner in recording the possession of the contesting respondents remains unexplained. No definite finding has been recorded that the prescribed procedure was followed in as much as the Consolidation Officer has used the words that “It appears (Prateet Hota Hai) that the procedures were followed. 16. Even otherwise also, there is another error apparent in the impugned order. The basis of the impugned orders is the alleged admission of the petitioner. It is established principle of law that the mutation proceedings are summary in nature and it will not confer any right, title or interest to a party. An admission made in such proceeding is of little consequence. A Division Bench decision in the case of Bhoore v. Peer Buksha, 1973 All LJ 312, is apposite on the point. The relevant paragraph reads as follows : “It is well established that any consent or admission made in mutation proceedings has no relevance in regular title proceedings.” 17. In the light of above, the admission, if any, made by the petitioner is of little value and is inconsequential in the title proceedings. In Algoo v. DDC and others, 1979 AWC 299, it has been laid down that admission made in mutation proceedings is only limited to question of possession. 18. It is laid down in various judicial pronouncements that it is duty of person who is claiming the adverse possession to establish that P.A. 10 was prepared and served upon the recorded tenure holder. In absence of it, the revenue entry has got no evidenciary value. 19. Para A-81 provides that after each Kharif and Rabi Partal of the village the Lekhpal shall prepare a list and from that list prepare extracts which would be issued to the person or persons recorded in columns 3, 4 and 5 of the Khasra The Supervisor Qanungo shall deal with the list as provided in sub-para (iv) 423. He shall ensure that extracts have been issued in all the cases and signatures of the recipients obtained. He shall ensure that extracts have been issued in all the cases and signatures of the recipients obtained. If he finds that an extract has not been issued in any case, he shall get it issued in his presence. A copy of the list with the Lekhpal containing the signatures of the recipients of the extracts shall be attached to the Khasre concerned and filed with the Registrar Qanungo along with it on or before July 31 of the following year. The Lekhpal is also required to send extracts from column 1 to 7 of Form PA-11-A to the Chairman, Land Management Committee. Para 102-C states that if the Lekhpal fails to comply with any of the provisions contained in paras A-80 and A-81, the entries in the remarks column will not be deemed to have been made in the discharge of the official duty. It would thus appear that whenever there is a change in possession, the list of changes in entries prepared by the Lekhpal in para A-80 is not only to be sent to the Chairman of the Land Management Committee and the Supervisor Qaunungo but he has also to issue extracts to the persons affected. 20. In Mohd. Raza v. Dy. Director of Consolidation and another, 1990 RD 165, it has been held that the entries in the revenue papers in favour of the petitioner therein, were not prepared by following the procedure prescribed under Para A-80, A-81 and para 423(5) of the U.P. Land Records Manual and P.A. 10 notices were not served on the main tenant respondent No. 2. Such entries are of no evidentiary value and would not confer any right on the petitioner nor they can be of any assistance leading to the extinguishment of the right of the tenure-holder. Similar view has been taken in Gurumukh Singh v. Deputy Director of Consolidation, 1998 (1) JCLR 463 , wherein, it has been held that as the petitioner therein did not file copy of Khasra which could not show that in the remarks column the date of the Partal and the date of issuance of P.A.-10 was made and the diary of the Lekhpal was also not summoned, no reliance upon these entries to prove adverse possession can be placed. The above view has been reiterated in Sadhu Saran and another v. Assistant Director of Consolidation, Gorakhpur and others, 2003 (94) RD 535. The above view has been reiterated in Sadhu Saran and another v. Assistant Director of Consolidation, Gorakhpur and others, 2003 (94) RD 535. 21. There being no definite finding by any of the Courts below that P.A. 10 was issued and served on the petitioner, this is an additional reason to hold that revenue entry in favour of contesting respondents has got no evidenciary value and at any rate will not confer any right on them. Viewed as above, it follows that: The Courts below misdirected themselves by assuming that the petitioner did not dispute the filing of application allegedly signed by him, filed before Tahsildar; The admission, if any, made by the petitioner in mutation proceeding will have no effect on the regular title proceedings i.e. the present proceedings; The names of contesting respondents were not recorded after following the prescribed procedure for recording the name of a trespasser; and The finding recorded by the revenue Court in suit No. 77 of 1961-62 would be available for consideration before consolidation authorities and can be relied upon by the authorities unless the contrary is proved by evidence before them. 22. In view of the above discussion, I find sufficient force in the writ petition. The three impugned orders cannot be allowed to stand. 23. In the result, the writ petition succeeds and is allowed. All the three impugned orders dated 20.10.1973, 30.8.1975, 4.11.1977 (Annexures 1, 2 and 4) passed by Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation respectively, and the objection filed by the petitioner before the Consolidation Officer stands allowed. 24. None appeared to oppose the writ petition. Therefore, no order as to costs. —————