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2011 DIGILAW 854 (ALL)

Siddhan Lal v. State of U. P. and Others

2011-04-01

PRAKASH KRISHNA

body2011
Hon’ble Prakash Krishna,J.—The dispute relates to Gata No. 113 measuring 0.328 Hectare situate at Village Sailha, Tehsil Bilhaur, Kanpur Nagar. 2. The main point involved in the present writ petition is whether the petitioner has perfected his title by adverse possession over the aforesaid parcel of land. The other question involved is whether the Board of Revenue could allow the second appeal filed under Section 100 C.P.C. without taking into consideration the evidence which was relied upon by the First Appellate Court. 3. The facts of the case are simple and few. The petitioner herein instituted Original Suit No. 72 of 1996, under Section 229-B of the U.P.Z.A. & L.R. Act against the contesting respondents herein on the allegations that he is in occupation of the disputed land and had perfected his title thereon by way of adverse possession. A declaration of his bhumidhari right over the land in question was sought for. 4. The suit was contested by denying the plaint allegations. It was pleaded that the defendants have been trying to dispossess the plaintiff and as such the possession of the plaintiff over the land in question is not peaceful. It may also be noted that the respondent nos. 12 to 15 purchased the land in question from the recorded tenure holder in the year 1996 and they also contested the suit. 5. The parties led evidence oral and documentary in support of their respective cases. There was an earlier litigation being Suit No. 3 of 1990 between the parties in respect of the same piece of land. The said suit was instituted against the present petitioner, but was dismissed in default. The plaint of the said suit was relied upon by the petitioner. 6. The suit was dismissed by the Trial Court vide judgment and decree dated 6th May, 1999 on the finding that the plaintiff/petitioner could not derive any benefit from the fact that earlier Suit No. 3 of 1990 was filed by Shyamwati and others (defendants in the present suit) against the present plaintiff/petitioner, which has been dismissed. The plaintiff/petitioner has failed to lead any evidence to prove his title over the land in dispute and therefore, no declaration as claimed for could be granted. 7. The plaintiff/petitioner has failed to lead any evidence to prove his title over the land in dispute and therefore, no declaration as claimed for could be granted. 7. The matter was carried in appeal before the Additional Commissioner (Administration), Kanpur Division, Kanpur, who vide order dated 27th October, 1999 allowed the appeal by setting aside the judgment of the Trial Court and decreed the suit for declaration on the finding that it is admitted case of the defendants herein that the plaintiff/petitioner is in occupation of the land in dispute unauthorizedly for the last 13 years as is apparent from the plaint of the Suit No. 3 of 1990 and as such he has perfected his title. While doing so, it took also into consideration the irrigation slips and its receipts. The defendants carried the matter further in Second Appeal No. 9 of 1999-2000 before the Board of Revenue, Allahabad. The said appeal has been allowed by the impugned judgment and order dated 20th October, 2005. Hence, the present petition. 8. Heard learned counsel for the parties. 9. Learned counsel for the petitioner submits that the Board of Revenue was not justified in allowing the second appeal by ignoring the plaint averments of earlier suit being Suit No. 3 of 1990, which contains the admission of plaintiff’s possession over the land in dispute for the last 13 years, as also the irrigation slips and receipts. These documents do positively prove long possession of the plaintiff over the land in dispute. The Board of Revenue has misdirected itself in deciding the appeal on the footing that it is duty of the plaintiff/petitioner to prove that the entries made in the revenue records are in accordance with para A-80 and A-81 of the Land Record Manual and P.A. 10 was issued and served with the date and diary number on the concerned party when the petitioner is not relying upon any revenue record. Argument is that indisputably in the revenue record, the name of the plaintiff/petitioner does not find place, which necessitated filing of the suit. 10. Learned counsel for the contesting respondents, on the other hand, submits that the name of the plaintiff/petitioner having not been recorded in the revenue records, the plaintiff has failed to prove his possession over the land in dispute and therefore, no declaration in his favour could have been granted. 11. 10. Learned counsel for the contesting respondents, on the other hand, submits that the name of the plaintiff/petitioner having not been recorded in the revenue records, the plaintiff has failed to prove his possession over the land in dispute and therefore, no declaration in his favour could have been granted. 11. Considered the respective submission of the learned counsel for the parties and perused the record. 12. The basis of the plaintiff’s case appears to be admission made by the defendants herein in earlier Suit No. 3 of 1990 which was instituted by them against the plaintiff. In the said suit, the possession of the defendant no. 1 therein i.e. the petitioner herein over the disputed land for the last 13 years was admitted. Argument is that the said admission is conclusive and binding on the defendants/respondents. A copy of the plaint of Suit No. 3 of 1990 has been annexed as Annexure-3 to the writ petition. Its bare perusal would show that in para-1 and 2 thereof, it has been stated that the plaintiff’s name is recorded over the land in question as it is their ancestral property, with which the defendant (present petitioner) has no concern. In para-3, it has been stated that Siddhan Lal (the petitioner) is in forcible occupation of the disputed land for the last 13 years and is carrying on agricultural operation therein. 13. In Sitaramacharya v. Gururajacharya, AIR 1997 SC 806 , it has been laid down by the Apex Court that the admissions in the pleadings in the earlier suit, though not conclusive, in the absence of any reasonable and acceptable explanation, is heavily loaded against him. 14. In Jeevan Diesels and Electricals Limited v. Jasbir Singh Chadha (HUF) and another, (2010) 6 SCC 601 , it has been stated that the admission which is clear and unequivocal admission of a party can be relied upon by other party against former. In other words, it has to be found out whether the admission made by a party in earlier proceedings, which is sought to be used against him in the subsequent proceedings is clear and unequivocal admission or not. 15. In other words, it has to be found out whether the admission made by a party in earlier proceedings, which is sought to be used against him in the subsequent proceedings is clear and unequivocal admission or not. 15. Keeping the above principles of law in mind, a perusal of the judgment of the Board of Revenue would show that it has discarded the admission as contained in Suit No. 3 of 1990 in a very cursory manner without there being any relevant observations on the point. The Board of Revenue has proceeded to decide the issue on a wrong footing. It was not correct on its part to say that merely on the basis of admission of defendant in the earlier suit No. 3 of 1990, it will not give any right to the plaintiff/petitioner over the land in dispute. Besides the admission of the defendants herein, there is evidence of plaintiff’s possession over the disputed land by way of irrigation slips and receipts. There is no whisper or consideration in the entire judgment with regard to the irrigation slips and receipts. These irrigations slips were relied upon by the First Appellate Court while holding the possession of the plaintiff over the land in dispute. The Second Appellate Court could not reverse the finding of the First Appellate Court by ignoring the evidence, which was relied upon by the First Appellate Court. The judgment of the Second Appellate Court being totally silent on the question of irrigation slips etc. is thus, vitiated and cannot be allowed to stand. 16. A person may prove his possession over agricultural land with the help of irrigation slips and oral evidence. It is for the Court to give due weightage on such type of evidence. It cannot be said that such evidence is not admissible in evidence. 17. Much was expected from the Second Appellate Court when it was considering the admission of the defendants herein as contained in Suit No. 3 of 1990. There appears to be no denial of fact that the said suit was not filed by the defendants herein. 18. Also there appears to be no such case of the defendant that they regained possession at any point of time. In the absence of pleading i.e. written statement before me it is neither possible nor desirable to say anything further in view of the order proposed to be passed. 18. Also there appears to be no such case of the defendant that they regained possession at any point of time. In the absence of pleading i.e. written statement before me it is neither possible nor desirable to say anything further in view of the order proposed to be passed. Suffice it is to say that the Second Appellate Court has not examined the matter with right angle and swayed away by irrelevant considerations. The judgment of the Second Appellate Court proceeds on the footing that the plaintiff/petitioner has failed to show that the entries made in the revenue records are in accordance with the provisions of Land Revenue Manual. It is not the case of the plaintiff/petitioner that his name was recorded at any point of time in the revenue records. On the other hand, his contention is otherwise and that is the reason he sought the declaration of his title by way of adverse possession. 19. It has been repeatedly held by this Court that entries not prepared in accordance with law do not have any evidentiary value. [See: Mohd. Raza v. Deputy Director of Consolidation and another, 1990 R.D. 1990 165]. 20. In Sadhu Saran and another v. Assistant Director of Consolidation, Gorakhpur and others, 2003 (94) RD 353, it has been held that revenue entries made without order of competent authority is meaningless. Illegal entries do not confer title. 21. The above two decisions relied upon by the learned counsel for the respondents have hardly any application to the controversy on hand. 22. In view of the restricted jurisdiction of the Board of Revenue under Section 100 C.P.C., it can interfere with the finding of a Court of fact only when the said finding is based on no evidence or it is perverse in the sense that no reasonable person could possibly come to that conclusion or that it erroneously ignores a vital plea or material evidence which affects the result. In other words, it cannot record its independent finding on the question of fact without taking into account the finding of fact returned by the First Appellate Court. 23. In view of the above discussions, the judgment and order of the Second Appellate Court/Board of Revenue is vitiated and cannot be allowed to stand. The same is hereby, set aside. 24. 23. In view of the above discussions, the judgment and order of the Second Appellate Court/Board of Revenue is vitiated and cannot be allowed to stand. The same is hereby, set aside. 24. As observed herein above, the Board of Revenue has ignored the material evidence on record and the impugned order is beyond the ambit and scope of Section 100 C.P.C; it is desirable that the matter may be restored back to the Board of Revenue to reconsider the matter in the light of the observations made above on the basis of material on record in accordance with the law. 25. The parties are litigating for a considerable period of time. It is desirable that the Board of Revenue may decide the appeal afresh preferably within a period of four months from the date of filing of certified copy of this order. The parties may appear before the Board of Revenue along with certified copy of this order on 18th April, 2011. It is made clear that fresh notice shall not be issued to the parties. Further date or dates may be fixed for hearing of the appeal as per convenience of the Court. 26. In the result, the writ petition succeeds and is allowed. The impugned order dated 20th October, 2005 is set aside. The Board of Revenue shall rehear and redecide the Second Appeal No. 9 of 1999-2000. No order as to costs. (Petition allowed) _____________