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2016 DIGILAW 2496 (ALL)

Kamta Prasad v. D. D. C. /A. D. M. (F & R)

2016-07-19

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri S.K.Purwar for the petitioner. 2. The writ petition has been filed against the orders of Consolidation Officer dated 29.5.1991, Settlement Officer, Consolidation dated 21.1.2016 and Deputy Director of Consolidation dated 7.4.2016 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act'). 3. The dispute between the parties was in respect of plot no.67/1, area 1.316 hectare and plot no.67/2, area 0.134 hectare of village Asaura, pargana and tehsil Mahrauni, district Lalitpur. In basic consolidation record, the name of Tulasi, father of the petitioner, was recorded as tenant and the name of Gajraj Singh was recorded in column IX of khatauni. Gajraj Singh filed an objection claiming his right on the basis of adverse possession over the land in dispute. Although objection was resisted by Tulasi, father of the petitioner, but the Consolidation Officer after hearing the parties, by judgment dated 29.5.1991 found that the adverse possession of Gajraj Singh over the land in dispute since 1378 fasli was proved. Otherwise also it was admitted by Tulasi in his oral admission that Gajraj Singh had been in possession over the land in dispute. On this finding, he allowed the objection and directed for recording the name of Gajraj Singh over the land in dispute. Although Tulasi survived upto 1998 but he did not challenge the judgment dated 29.5.1991. It is only after the death of Tulasi, the petitioner filed a time barred appeal on 7.11.2014 along with an application for condonation of delay, against the order dated 29.5.1991. In the application for condonation of delay as well as in the affidavit filed in support of it, the petitioner has stated that he had been continuously in possession over the land in dispute. The father of the petitioner had died due to illness and nothing was informed to him about the order of Consolidation Officer. It is only on 1.7.2014 when the petitioner went to cultivate the land in dispute then he was stopped by the respondents and then on an enquiry being made, he came to know about the order dated 29.5.1991. The appeal was heard by the Settlement Officer, Consolidation, who by order dated 21.1.2016 refused to condone the delay, accordingly the delay condonation application was rejected and the appeal was dismissed as time barred. The petitioner filed a revision against the aforesaid orders. The appeal was heard by the Settlement Officer, Consolidation, who by order dated 21.1.2016 refused to condone the delay, accordingly the delay condonation application was rejected and the appeal was dismissed as time barred. The petitioner filed a revision against the aforesaid orders. The revision was heard by Deputy Director of Consolidation, who by order dated 7.4.2016 dismissed the revision. Hence, this writ petition has been filed. 4. I have considered the arguments of the counsel for the petitioner. 5. So far as delay in filing the appeal is concerned, a perusal of the certified copy of the judgment of Consolidation Officer dated 29.5.1991 shows that it bears the signature of Tulasi. The judgment was passed after contest by Tulasi as well as on the basis of his oral admission. Thus, it is unbelievable that Tulasi had no knowledge about the judgment. Tulasi did not challenge the judgment in his life time although, according to the petitioner, he died in November, 1998. It is unbelievable that although the order of Consolidation Officer was passed on 29.5.1991 and name of Gajraj Singh was recorded over the land in dispute but within this time of about 23 years Tulasi or the petitioners remained in possession. The valuation of this plot might have been allotted in the chak of Gajraj Singh and possession of the petitioner over it was not proved at all. In the circumstances, the Settlement officer and Deputy Director of Consolidation have not committed any illegality in not condoning the delay. 6. So far as the merit is concerned, copies of khasra from 1378 fasli to 1395 fasli were filed. Tulasi in his statement has admitted possession of the petitioner over the land in dispute. Thus, possession was proved from the documentary evidence as well as own oral admission of Tulasi. The findings in this respect is concurrent findings of fact recorded by the court below and do not suffer from any illegality. 7. The argument that issue/service of PA-10 before recording adverse possession of Gajraj Singh had not been proved. The provision in respect of mandatory requirement of service of PA-10 has been deleted in the year 1965 from the Land Records Manual, corresponding to 1373 fasli. There was no mandatory provision of service of PA-10. 7. The argument that issue/service of PA-10 before recording adverse possession of Gajraj Singh had not been proved. The provision in respect of mandatory requirement of service of PA-10 has been deleted in the year 1965 from the Land Records Manual, corresponding to 1373 fasli. There was no mandatory provision of service of PA-10. Entry cannot be ignored in view of admission of Tulasi relating to possession of Gajraj Singh.Purpose of issue/service of PA-10 before recording possession in khasra is to give notice to recorded tenure holder. In this case possession of Gajraj Singh over the land in dispute is admitted as such entry in khasra relating to possession of Gajraj Singh cannot be challenged. 8. The impugned orders do not suffer from any illegality. The writ petition has no merit and it is dismissed.