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2015 DIGILAW 3194 (ALL)

Nandram v. Director of Consolidation Budaun

2015-10-09

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri A.P. Tiwari, for the petitioners and Sri Rama Shankar Mishra, for respondent-3. 2. This writ petition has been filed against the orders of Consolidation Officer dated 29.11.2014 and Deputy Director of Consolidation dated 08.09.2015, passed in title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties is in respect of plots 86 (area 0.038 hectare), 87-A (area 0.100 hectare), 87-B (area 0.316 hectare), 94 (area 0.139 hectare), 374-A (area 0.101 hectare) and 534 (area 0.202 hectare) (six plots, total area 0.897 hectare) of village Garhia Gangwar, pargana Ujhani, district Badaun, which were recorded in basic consolidation year khata-132, in the names of Nandram and Jangi Singh (the petitioners) along with plots 306 (area 0.392) and 374-B (area 101). 4. Ram Singh son of Surajpal and Neksoo son of Thakuri (respondents-3 and 4) (hereinafter referred to as the respondents) filed an objection dated 17.11.2012 (registered as Case No. 1810 of 2012) (later on as Case No. 247 of 2014-15) under Section 9-A of the Act, for recording the names of respondents-3 to 7 over the land in dispute. It has been stated by the respondents that the land in dispute was their ancestral property. It was recorded in the name of Thakuri son of Trimal, resident of village Kaua Nagla, in khata-69 of 1362 F. The name of Thakuri son of Sumeri, resident of village Garhia Gangwar was recorded in khata-70 of 1362 F, which consisted plots 306 (area 0.392) and 374-B (area 101). Both Thakuri were different persons. After death of Thakuri son of Sumeri, Supervisor Kanoongo has illegally made one khata 57 in 1374 F of the aforesaid plots of two different khatas and the name of Lauki son of Thakuri was mutated as an heir of Thakuri son of Sumeri, on the basis of report under PA-11-A by order dated 05.10.1967. They never came to know about the aforesaid entry. Thukuri son of Trimal was inherited by his sons Surajpal, Neksoo and Raghubir. Raghubir has died and was inherited by his widow Smt. Jamuna Devi and sons Bahoran and Dheer Singh (respondents-5 to 7). They were through out in possession over the land in dispute and their names be recorded over it. 5. The petitioners contested the objection and filed their counter objection. Raghubir has died and was inherited by his widow Smt. Jamuna Devi and sons Bahoran and Dheer Singh (respondents-5 to 7). They were through out in possession over the land in dispute and their names be recorded over it. 5. The petitioners contested the objection and filed their counter objection. They stated that alias name of Sumeri was Trimal and he was one and same person. After death of Thakuri son of Sumeri, the name of his son Lauki was mutated by Supervisor Kanoongo, on the basis of report in PA-11-A, by order dated 05.10.1967. The ancestors of the petitioners and thereafter, they were in possession over the land in dispute. No objection was ever raised by the respondents against the order dated 05.10.1967 for about 45 years. The petitioners through out remained in possession of the land in dispute and were paying land revenue. They were found in possession of the land in dispute during partal and the respondents did not raise any objection in this respect. The respondents were residents of village Malpur Tatera Mustakaham, pargana Sahaswan, district Badaun. They began to reside at village Kaua Nagla, from some times. Taking advantage of similar name of their father, they filed the objection in collusion with Pradhan , with whom, the petitioners had enmity due to election rivalry. 6. The case was tried by Consolidation Officer. The respondents filed copies of khatauni 1359 F of khatas 335 and 401, 1362 F of khata 69 and 70, 1374 F-1376 F of khata 57, 1374 F-1376 F of khata 126, 1377 F-1379 F of khata 123, 1381 F of khata 123, 1389 F-1394 F of khata 119 and examined Omkar alias Neksoo, Ishwari Prasad and Ram Swarup witnesses. The petitioners filed copies of khatauni 1381 F of khata 106, 1389 F of khata 119, of village Garhia Gangwar and khatauni 1421 F-1426 F of khata 538 and 590 of village Malpur Tatera, pargana Sahswan and examined Nandram, Gangadhar and Bankey Lal as witnesses. The Consolidation Officer, after hearing the parties, by order dated 29.11.2014 found that from perusal of khataunis of 1359 F and 1362 F, it was proved that Thakuri son of Trimal, resident of village Kaua Nagla and Thakuri son of Sumeri, resident of village Garhia Gangwar were two different persons, who had their separate khatas. The Consolidation Officer, after hearing the parties, by order dated 29.11.2014 found that from perusal of khataunis of 1359 F and 1362 F, it was proved that Thakuri son of Trimal, resident of village Kaua Nagla and Thakuri son of Sumeri, resident of village Garhia Gangwar were two different persons, who had their separate khatas. In khata 401 (consisting plot 306) of 1359 F and in khata 70 (consisting plots 306 and 374) of 1362 F, the name of Thakuri son of Sumeri, resident of village Garhia Gangwar was recorded. In khata 335 of 1359 F and in khata 69 of 1362 F (consisting plots 86, 87-A, 87-B, 94, 374-A and 534), the name of Thakuri son of Trimal, resident of village Kaua Nagla was recorded. In khatauni 1374 F aforesaid plots of two different khatas of two different persons came to be recorded in khata 57 in the name of Thakuri son of Sumeri, without any order of competent authority, which also contained an amaldaramad of the order of Supervisor Kanoongo dated 05.10.1967, recording the name of Lauki son of Thakuri. From which it was proved that the disputed land did not belong to Thakuri son of Sumeri rather it was land of Thakuri son of Trimal. The names of the petitioners were recorded over it without any basis and liable to be deleted and the names of the respondents were liable to be recorded over it. On these findings the objection of the respondents was allowed and their names were recorded. 7. The petitioners filed an appeal (registered as Appeal No. 171) from the aforesaid order of Consolidation Officer. The appeal was heard by Settlement Officer Consolidation, who by his order dated 20.12.2014 held that the land in dispute was recorded in the name of Thakuri son of Sumeri since before 1360 F. The name of Lauki son of Thakuri was mutated by the order of Supervisor Kanoongo dated 05.10.1967 in khatauni 1374 F. Neither Thakuri son of Trimal during his life time nor the respondents filed any suit in revenue court against the aforesaid entry. After death of Lauki the names of the petitioners were mutated by order of Consolidator dated 18.01.2005 under the provisions of Section 6-A of the Act. Long standing entry is questioned for the first time during consolidation. After death of Lauki the names of the petitioners were mutated by order of Consolidator dated 18.01.2005 under the provisions of Section 6-A of the Act. Long standing entry is questioned for the first time during consolidation. On these findings, he allowed the appeal and set aside the order of Consolidation Officer dated 29.11.2014 and maintained basic year entry. 8. The respondents filed a revision (registered as Revision No. 328 of 2014-15) against the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by his order dated 08.09.2015, held that it was proved that Thakuri son of Trimal, resident of village Kaua Nagla and Thakuri son of Sumeri, resident of village Garhia Gangwar were two different persons, who had their separate khatas in 1359 F and 1362 F. The disputed land belonged to Thakuri son of Trimal, resident of village Kaua Nagla. It was wrongly recorded in khatauni 1374 F in khata 57 in the name of Thakuri son of Sumeri, resident of village Garhia Gangwar without any basis. On the basis of unauthorized entry no right over the disputed land can be given to the petitioners. On these findings, he allowed the revision and set aside the order of Settlement Officer Consolidation and maintained the order of Consolidation Officer. Hence this writ petition has been filed. 9. The counsel for the petitioners submitted that Settlement Consolidation Officer has considered each and every aspect of the dispute and evidence on record and recorded findings that land in dispute belonged to Thakuri son of Sumeri, resident of village Garhia Gangwar and was recorded in his name since 1360 F, which is proved from khatauni 1374 F, in which period of cultivation has been given since 1360 F. This entry has not been challenged by the respondents in revenue court for about 50 years. The respondents were residents of different village Malpur Tatera Mustakaham. They were never in possession over the land in dispute. The ancestors of the petitioners and thereafter the petitioners were through out in possession of the land in dispute and were paying land revenue. Even during partal in consolidation the possession of the petitioners was found and the respondents did not raise any dispute in this respect. After death of Lauki, the names of the petitioners were mutated by the order of Consolidator dated 18.01.2005. Even during partal in consolidation the possession of the petitioners was found and the respondents did not raise any dispute in this respect. After death of Lauki, the names of the petitioners were mutated by the order of Consolidator dated 18.01.2005. At that time also the respondents did not raise any objection. The objection was malafide filed on 17.11.2012 due instigation of Pradhan of the village, with whom the petitioners had enmity due to election rivalry. In basic consolidation records, the names of the petitioners were recorded over the land in dispute. Burden of proof was upon the respondents to prove that basic year entry was incorrect but they could not adduce any evidence in this respect. Long standing entry, which was continuing for more than 60 years has been illegally set aside by Consolidation Officer and Deputy Director of Consolidation. Their orders are illegal and liable to be set aside. He relied upon the judgment of this Court in Ram Nath Singh Vs. DDC and others, 2014 (122) RD 584 , in which it has been held that long standing entry continuing for more than 12 years before start of consolidation operation cannot be questioned during consolidation. Ram Kripal @ Chirkut Vs. DDC and others, 2012 (115) RD 178, in which it has been held that burden of proof lies upon the person who challenged the basic year entry, to prove it as incorrect. 10. I have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Jattu Ram Vs. Hakam Singh, AIR 1994 SC 1653 , Durga Das Vs. Collector, AIR 1996 SC 2786 , Sawarni Vs. Inder Kaur (1996) 6 SCC 223 , State of H.P. Vs. Keshav Ram, AIR 1997 SC 2181 , Balwant Singh Vs. Daulat Singh, AIR 1997 SC 2719 , Mahila Bajrangi Vs. Badribai, (2003) 2 SCC 464 and Suraj Bhan Vs. Financial Commissioner, (2007) 6 SCC 186 held that mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. In State of A.P. v. Hyderabad Potteries (P) Ltd., (2010) 5 SCC 382 and Union of India Vs. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. In State of A.P. v. Hyderabad Potteries (P) Ltd., (2010) 5 SCC 382 and Union of India Vs. Vasavi Cooperative Housing Society, AIR 2014 SC 937 held that it is trite that entry in the revenue record alone may not be sufficient as conclusive proof of title nor can be relied upon for proof of establishing the title as such. 11. Supreme Court in Vishwa Vijay Bharati v. Fakhrul Hassan, AIR 1976 SC 1485 , held that 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. This judgment has been followed in Wali Mohhd. Vs. Ram Surat, AIR 1989 SC 2296 . Again in Vikram Singh Junior High School v. District Magistrate (Fin. & Rev.), (2002) 9 SCC 509 , it has been held that the entry in the revenue record must have a legal basis. Further there was no adjudication of dispute as regards continuance of the wrong entry. The appellant could not have claimed any title over the land in dispute merely on the basis of wrong entry which continued in its favour through negligence or failure of the Revenue Officer or the Consolidation Officer to correct the record, in pursuance of the order of the Board of Revenue which had attained finality. In the consolidation proceedings, the Collector is also the District Deputy Director of Consolidation under the U.P. Consolidation of Holdings Act and is authorized to correct any wrong entry continued in the consolidation record in that capacity in the exercise of power under Section 48 of the U.P. Consolidation of Holdings Act. 12. In the consolidation proceedings, the Collector is also the District Deputy Director of Consolidation under the U.P. Consolidation of Holdings Act and is authorized to correct any wrong entry continued in the consolidation record in that capacity in the exercise of power under Section 48 of the U.P. Consolidation of Holdings Act. 12. The Consolidation Officer recorded a categorical findings that from perusal of khataunis of 1359 F and 1362 F, it was proved that Thakuri son of Trimal, resident of village Kaua Nagla and Thakuri son of Sumeri, resident of village Garhia Gangwar were two different persons, who had their separate khatas. In khata 401 (consisting plot 306) of 1359 F and in khata 70 (consisting plots 306 and 374) of 1362 F, the name of Thakuri son of Sumeri, resident of village Garhia Gangwar was recorded. In khata 335 of 1359 F and in khata 69 of 1362 F (consisting plots 86, 87-A, 87-B, 94, 374-A and 534), the name of Thakuri son of Trimal, resident of village Kaua Nagla was recorded. In khatauni 1374 F aforesaid plots of two different khatas of two different persons came to be recorded in khata 57 in the name of Thakuri son of Sumeri, without any order of competent authority, which also contained an amaldaramad of the order of Supervisor Kanoongo dated 05.10.1967, recording the name of Lauki son of Thakuri. From which it was proved that the disputed land did not belong to Thakuri son of Sumeri rather it was land of Thakuri son of Trimal. The names of the petitioners were recorded over it without any basis and liable to be deleted and the names of the respondents were liable to be recorded over it. Settlement Officer Consolidation has illegally ignored the khataunis 1359 F and 1362 F in which the name of Thaukuri son of Trimal of village Kaua Nagla alone was recorded. Admittedly the petitioners are descendants of Thukuri son of Sumeri of village Garhia Gangwar. There is absolutely no explanation as to how land of Thaukuri son of Trimal of village Kaua Nagla came to be recorded in khata 57 of 1374 F in the name of Thukuri son of Sumeri of village Garhia Gangwar. Admittedly the petitioners are descendants of Thukuri son of Sumeri of village Garhia Gangwar. There is absolutely no explanation as to how land of Thaukuri son of Trimal of village Kaua Nagla came to be recorded in khata 57 of 1374 F in the name of Thukuri son of Sumeri of village Garhia Gangwar. The respondents by filing extract of khataunis 1359 F and 1362 F have discharged their burden and proved that entry of khatauni 1374 F which was repeated subsequently was unauthorized and fake entry. The petitioners could not rebut the evidence of the respondents. Findings of fact recorded by Consolidation Officer and Deputy Director of Consolidation that entry of 1357 F khatauni is unauthorized and baseless do not suffer from any illegality so as to warrant interference by this Court. 13. In view of the aforesaid discussion, the writ petition has no merit and is dismissed.