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2017 DIGILAW 2499 (ALL)

BAIJNATH v. BOARD OF REVENUE ALLAHABAD

2017-11-01

MANOJ MISRA

body2017
JUDGMENT Hon’ble Manoj Misra, J.—Heard Sri P.N. Saxena, learned senior counsel assisted by Sri Anil Kumar Mishra, for the petitioners; the learned Standing Counsel for the respondents 1, 2 and 7; Sri R.B. Yadav for the respondent No. 6; Sri Surendra Tiwari for the respondents 3 and 4; and perused the record. 2. As parties have exchanged their affidavits, with the consent of the learned counsel for the parties, this petition is being finally decided. 3. The dispute in the present case relates to Plot No. 2 area 8.027 hectare at Mauja Petrahi, Pargana Barhar, Tehsil Robertsganj, District Sonebhadra. 4. The petitioners had instituted suit under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act (in short U.P.Z.A. & L.R. Act) against Smt. Pyari Devi (defendant No. 1 - respondent No. 5 herein); Sri Radhey Shyam (defendant No. 2 - respondent No. 3 herein); Phool Singh (defendant No. 3 - respondent No. 4 herein); Gram Pradhan Orauli (defendant No. 4 - respondent No. 6 herein); and State of Uttar Pradesh (defendant No. 5 - respondent No. 7 herein). The plaint case was that the plaintiffs had been and are in continuous cultivatory possession of the land in dispute to the knowledge of the defendants 1 to 3 for a period of about 15 years, but no suit for their eviction was instituted and, therefore, they have acquired bhumidhari rights by adverse possession under Section 210 of the U.P.Z.A. & L.R. Act. 5. The suit was contested by the defendants 2 and 3 by claiming that they had purchased the land in suit from the father of the plaintiffs, namely, Ram Chandra Singh, vide sale-deed dated 18.4.1972. It was claimed by them that their names have been recorded in the revenue record pursuant to the sale-deed and that they are in possession and the suit is liable to be dismissed. 6. Smt. Pyari Devi (the defendant No. 1), who happens to be the mother of the plaintiffs, filed a written statement accepting the claim of the plaintiffs. 7. The trial Court by order dated 29.1.2007 decreed the suit of the plaintiffs upon finding, on the basis of irrigation slip/irrigation khasra, that the plaintiffs were in possession. 8. Aggrieved by the order passed by the trial Court, the third and fourth respondent (the defendants 2 and 3) filed appeal before the Commissioner, Vindhyachal Region, Mirzapur. 9. 7. The trial Court by order dated 29.1.2007 decreed the suit of the plaintiffs upon finding, on the basis of irrigation slip/irrigation khasra, that the plaintiffs were in possession. 8. Aggrieved by the order passed by the trial Court, the third and fourth respondent (the defendants 2 and 3) filed appeal before the Commissioner, Vindhyachal Region, Mirzapur. 9. The Learned Commissioner by his judgment and order dated 10.10.2008 allowed the appeal and dismissed the suit of the plaintiffs. 10. While allowing the appeal of the defendants 2 and 3, the learned Commissioner noticed that from the Khasra brought on record, the continuous possession of the plaintiffs for the prescribed period of 12 years was not established. He found that one of the co-purchasers, namely, Bachole, who had purchased the land in dispute from the father of the plaintiffs alongwith defendants 2 and 3, had sold his share in 1997 to Smt. Pyari Devi, the mother of the plaintiffs, who was recorded as one of the tenure-holders therefore how could sons claim adverse possession against their mother. He found that there was no cogent evidence as to from which date the possession turned hostile and, further, whether such hostile possession was for the prescribed period. The learned Commissioner examined the evidence, oral as well as documentary, and found that the irrigation khasra was at variance with khasra prepared by the Revenue Department and, therefore, much credence could not be attached to the irrigation khasra entries. He also placed reliance on certain decisions wherein it was held that where the entry in the irrigation khasra is at variance with the entry prepared by the Revenue Department, then the entry prepared by the Revenue Department has to prevail. Accordingly, he allowed the appeal and dismissed the suit, upon finding that the plaintiffs have failed to prove that they acquired right by adverse possession. 11. Aggrieved by the order passed by the learned Commissioner, the petitioners filed second appeal before the Board of Revenue. The Board of Revenue vide order dated 22.10.2014 dismissed the second appeal upon finding that the judgment and order passed by the lower appellate Court was well discussed after considering all evidences. 12. Assailing the orders of the two Courts below, the present petition has been filed. 13. The Board of Revenue vide order dated 22.10.2014 dismissed the second appeal upon finding that the judgment and order passed by the lower appellate Court was well discussed after considering all evidences. 12. Assailing the orders of the two Courts below, the present petition has been filed. 13. The learned counsel for the plaintiff-petitioners has sought to argue that the evidence brought on record suggested continuous possession of the petitioners and therefore the trial Court’s judgment was justified. However, he could not dispute that the father of the plaintiffs had sold the land in dispute vide sale-deed dated 18.4.1972 to Bachole Singh (non- party); Radhey Shyam (the respondent No. 3-defendant No. 2); and Phool Singh (respondent No. 4 - defendant No. 3); and that such sale was given effect to in the revenue records. He also could not dispute that one of the co-purchasers, namely, Bachole Singh, had executed sale-deed dated 1.5.1997 in favour of Smt. Pyari Devi (the defendant No. 1-respondent No. 5), who is the own mother of the plaintiffs-petitioners and was recorded as co-owner over the disputed plot. 14. The learned counsel for the contesting respondents has supported the judgment of the two Courts below and has submitted that the plaintiffs-petitioners had miserably failed to prove that they had acquired bhumidhari rights by adverse possession. 15. I have considered the rival submissions and have perused the record. 16. Once it is not in dispute that the own mother of the plaintiffs had purchased a share in the disputed land from one of the co-purchasers in the year 1997, the burden was very heavy on the plaintiffs to demonstrate by specific evidence as to since when their possession turned hostile against the owners and that such hostile possession continued for the prescribed period of 12 years. Interestingly, the suit was instituted in the year 2002 just five years after purchase of Bachole’s share in the disputed plot by plaintiffs’ own mother. The trial Court though decreed the suit of the plaintiffs but had failed to record specific finding as regards the date from which the possession of the plaintiffs became hostile to the knowledge of the defendants-owners. The lower appellate Court has recorded finding that the plaintiffs had failed to prove that they had acquired title by adverse possession spread over the prescribed period. The lower appellate Court has recorded finding that the plaintiffs had failed to prove that they had acquired title by adverse possession spread over the prescribed period. The irrigation khasra entries on which reliance was placed was discussed by the lower appellate Court to find out that they had been at variance with the entries made in the khasra prepared by the Revenue Department. 17. The lower appellate Court while returning its findings has considered the entire oral evidence as well as documentary evidence and has discussed the same. Accordingly, the finding returned by the lower appellate Court is a finding of fact based upon appreciation of oral as well as documentary evidence. 18. It is well-settled that a finding of fact when recorded after consideration of evidence can only be interfered with by second appellate Court on limited grounds such as where any relevant evidence has not been considered or has been misread or where the finding is based on inadmissible evidence or is completely perverse or is vitiated by manifestly erroneous approach in law. 19. In the instant case, the petitioners had instituted the suit on the basis of adverse possession. To gain title by adverse possession, the plaintiffs had not only to establish continuous possession for the prescribed period but also that the possession had been hostile to the knowledge of the owner. The lower appellate Court as well as the second appellate Court have found that the plaintiffs had failed to prove the necessary ingredients to sustain a claim based on adverse possession. Even otherwise, once it is not disputed that the plaintiffs’ mother, namely, Smt. Pyari Devi (defendant No. 1), just five years before the institution of the suit, in the year 1997, had purchased a share in the disputed land from one of the co-purchasers, who alongwith the contesting defendants 2 and 3 had purchased the land in the year 1972 from her husband, the title of the co-purchaser, by her conduct, was impliedly accepted by plaintiffs’ mother. Therefore a very heavy burden lay on the plaintiffs to demonstrate as to from which date their possession turned hostile against the owners (the defendants), particularly, when one of the co-owners was their own mother. Because, otherwise, in such circumstances, their possession, if any, would be permissive and on behalf of their mother. 20. Therefore a very heavy burden lay on the plaintiffs to demonstrate as to from which date their possession turned hostile against the owners (the defendants), particularly, when one of the co-owners was their own mother. Because, otherwise, in such circumstances, their possession, if any, would be permissive and on behalf of their mother. 20. Under the circumstances, the finding returned by the appellate Courts that the plaintiffs have failed to establish that they gained title by adverse possession, calls for no interference, particularly, when it has not been demonstrated that the finding returned by the appellate Court is vitiated. 21. Accordingly, the petition lacks merit and is dismissed. Interim order, if any, stands discharged.