Guru Bux Singh v. Dy. Director of Consolidation Barabanki
2017-07-31
RAJAN ROY
body2017
DigiLaw.ai
JUDGMENT : RAJAN ROY, J. 1. Heard. 2. Supplementary affidavit filed today is taken on record. 3. This is a writ petition under Article 226 of the Constitution of India challenging the orders passed by the Consolidation authorities under Sections 9, 11(1) and 43 of the U.P. Consolidation of Holdings Act, 1953. 4. The dispute is in respect of the Gata No. 103 M., measuring 1.214 hectares. In the basic year Khatauni, the said gata was recorded in the name of one Medi Lal. The respondents herein are his successors-in-interest. The petitioner claims title to the aforesaid land on the basis of adverse possession and alleged Class 9 entry in the revenue records. It is not in dispute that during 'Padtal', the petitioner was not found to be in possession and the respondents were found to be in possession. Nevertheless, the fact is that an objection was filed by the petitioner, albeit belatedly raising a claim to title based on adverse possession. The first date fixed before the Consolidation Officer in the said proceedings was 5.1.2006, as alleged by the petitioner herein. It is said that the next date fixed was 19.1.2006. However, on 6.1.2006 itself, the Consolidation Officer hurriedly decided the matter based on the statements given by the private respondents without any opportunity to the petitioner to adduce evidence and establish his claim based on adverse possession. 5. Being aggrieved, the petitioner herein filed an application for restoration, which was also rejected. Thereafter, he filed an appeal, which was allowed with a categorical finding that after the dispute was referred by the A.C.O. to the Consolidation Officer the first date fixed was 5.1.2006, but it was decided on the very next date, i.e., 6.1.2006 in the absence of the petitioner herein. The S.O.C. recorded a finding that the Consolidation Officer had proceeded with unnecessary haste in deciding the dispute within one day without opportunity to the contesting respondents before him. 6. Being aggrieved, the private respondents herein filed a revision. The revisional court allowed the revision and quashed the order of the S.O.C. and restored the order of the Consolidation Officer dated 6.1.2006 on the ground, firstly that the petitioner was not mentioned as being in possession during the course of Padtal. Secondly, that a alone Clause 9 entry in a Khatauni could not be the basis for adverse possession.
The revisional court allowed the revision and quashed the order of the S.O.C. and restored the order of the Consolidation Officer dated 6.1.2006 on the ground, firstly that the petitioner was not mentioned as being in possession during the course of Padtal. Secondly, that a alone Clause 9 entry in a Khatauni could not be the basis for adverse possession. Thirdly, if at all any title on the basis of adverse possession had been perfected, the father of the petitioner ought to have initiated proceedings under Section 229-B of the U.P.Z.A. & L.R. Act and there is no way that the sons could claim inheritance of the same. Fourthly, that the petitioner had admitted the possession of the respondents. 7. The contention of learned counsel for the petitioner herein is that the alleged possession having been found at the time of 'Padtal' was rebutable during Section 9 proceedings. There could be no justification whatsoever, for a decision by the Consolidation Officer in one day without hearing the petitioner, howsoever, feeble the claim of the petitioner may be in the eyes of the respondents. It is further contended that the S.O.C. had rightly remanded the matter back to the Consolidation Officer, but the revisional court has erred in interfering with the same, that too, on factually incorrect grounds as the father of the petitioner had in fact initiated proceedings for declaration of his title based on adverse possession under Section 229-B of the Act 1950, way back in the year 1989 itself based on Class 9 entry of 1970, which had continued in the subsequent years, but the said suit proceedings abated in the year 1995 on account of notification under Section 4 of the Act 1953 and, therefore, the material facts has been omitted from consideration by the revisional court, who proceeded on wrong factual premise. Furthermore, he says that the possession of the respondents has never been admitted by the petitioner. 8. On the other hand, learned counsel for the private respondents contended that a Class 9 entry, unless it is recorded as per Rules does not confer any right, title or entitlement. He also contended that no title could be conferred on the basis of a sole Class 9 entry, that too, on the basis of a fictitious and fabricated order of 1970. Therefore, according to him, the revisional court rightly passed the impugned order.
He also contended that no title could be conferred on the basis of a sole Class 9 entry, that too, on the basis of a fictitious and fabricated order of 1970. Therefore, according to him, the revisional court rightly passed the impugned order. It is also contended that the Class 9 entry in favour of the petitioners has not been continued in the Khatauni after the initial entry. 9. On being confronted as to whether the revisional court had recorded any finding about the Class 9 entry being illegal and not in accordance with Rules or being forged and fabricated, learned counsel for the private respondents fairly stated that he had not done so. 10. Furthermore, this Court finds that the revisional court proceeded on the premise that no suit proceedings under Section 229-B had been initiated by the petitioner's father, which is factually incorrect. Secondly, even if the private respondents have been mentioned as being in possession of the land in question during Padtal, it is open for the petitioner who had filed the objections, to establish otherwise, on the basis of evidence. Moreover, the revisional court completely lost sight of the fact that the petitioner, who had filed the objections howsoever frivolous the objections may ultimately turn out to be, was entitled to the hearing and opportunity to adduce evidence and there is no way that the Consolidation Officer, before whom the matter had been fixed for the first time on 5.1.2006, could decide the matter on the very next date i.e. 6.1.2006 without any opportunity to the contesting parties. 11. In this view of the matter, this Court is of the view that revisional court has erred in interfering with the order of remand passed by the S.O.C., which the Court finds to be just and proper. 12. In view of above, the order of the revisional court is set aside, the order of the S.O.C. is restored. The Consolidation Officer shall now proceed to decide the dispute under Section 9 A(2) of the Act, 1953 in accordance with the law after hearing the parties, but with expedition say within the next 8 months. The parties shall present themselves before the Consolidation Officer on 21.8.2017 so as to facilitate further proceedings in the matter. 13.
The Consolidation Officer shall now proceed to decide the dispute under Section 9 A(2) of the Act, 1953 in accordance with the law after hearing the parties, but with expedition say within the next 8 months. The parties shall present themselves before the Consolidation Officer on 21.8.2017 so as to facilitate further proceedings in the matter. 13. As a measure of caution, if for some reason the parties do not appear, he shall issue notices to them and thereafter proceed to decide the matter. Till disposal of the proceedings before the Consolidation Officer, status quo with regard to the land in question shall be maintained by the parties, who shall not alienate the same. 14. The writ petition is disposed of in the aforesaid terms.