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Allahabad High Court · body

2018 DIGILAW 677 (ALL)

MAHADEV PRASAD v. D. D. C. JHANSI

2018-03-20

SUNITA AGARWAL

body2018
JUDGMENT : SUNITA AGARWAL, J. 1. Heard learned counsel for the petitioner and perused the record. 2. By means of the present petition, the orders dated 23.7.1980, 4.1.2017, 31.5.2017 and 30.11.2017 passed by the Consolidation Authorities in a proceedings under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (in short 'the U.P. C.H. Act') for rejection of restoration application filed by the petitioner are challenged. 3. The brief facts of the matter are that a suo motu proceeding under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (in short 'the U.P. C.H. Act') was initiated for correction of records noticing that the recorded tenureholder of Khata No.138 namely Allah Rakkhi and Sabboo were sons of Anandi resident of Dhona were reported dead. One Saddiq son of Pyare Khan, Raje Khan son of Munna were reported to be heirs and legal representatives. It was further recorded that the name of Mahadev Prasad son of Lakshman Prasad and Jagdish son of Parshuram and Rajdhar son of Bhawani Prasad and Smt. Lachchho wife of late Ram Prasad were recorded being in possession of the land in question in Category IX.? One Jumarat @ Pukkhan wife of Madar Bux filed objection stating therein that she was sister of the recorded tenureholder whose whereabouts were not known. He was not heard for a period of more than 30 years. She denied the claim of Raje Khan and Saddiq Khan being heirs of the tenureholder. She further denied the possession of Mahadev Prasad over the land in question and stated that the land in question was in her possession. 4. It is recorded in the order passed by the Consolidation Officer dated 23.7.1980 that despite due notice and publication, no one appeared in the matter on behalf of Jagdish Prasad. Issues were framed. Issue No.1 was related to unauthorized possession of the petitioner over the land in question in Gata No.216/1 area 1.85 Hectares (of Khata No.138). Issue No.2 was with regard to the possession of Jagdish Prasad. Issue No.3 was as to who was the actual heir and legal representative of the recorded tenureholder. 5. It is further recorded in the order impugned that Mahadev Prasad appeared in the witness box and produced one Jairam in support of his claim. Issue No.2 was with regard to the possession of Jagdish Prasad. Issue No.3 was as to who was the actual heir and legal representative of the recorded tenureholder. 5. It is further recorded in the order impugned that Mahadev Prasad appeared in the witness box and produced one Jairam in support of his claim. The copies of Khasra 1368-1385 Fasli, Khatauni 1359-1360 Fasli were filed in order to prove his possession over the land in question. These documents were considered by the Court below and after appreciation of the oral and documentary evidences on record, the Consolidation Officer found that the claim of the possession of Mahadev Prasad and Jagdish Prasad was not substantiated from the material evidence on record. The entries in Khasra could not have been treated as final proof of the possession. Issue Nos.1 and 2 were decided against the petitioner and other claimant Jagdish. In so far as the Issue Nos.3 and 4 is concerned, it was concluded that Jumarat @ Pukkhan being sister of the recorded tenureholders would inherit the property. Accordingly, vide order dated 23.7.1980, a direction was issued to expunge the entries in Category IX and record the names of heirs of the tenureholder. 6. These orders were sought to be recalled by the petitioner Mahadev Prasad by moving an application on 19.5.2012. The application under Section 5 of the Limitation Act was also filed to submit that the petitioner was suffering from serious ailment and he was confined to bed for a long time. His only son was in Armed Forces and on 21.3.2012, when he came back after retirement, he found papers relating to the present proceeding in a box kept at the home of the petitioner. Thereafter, the petitioner approached a counsel and filed the restoration application without delay. 7. The Consolidation Officer vide order dated 4.1.2017 has rejected the restoration application. The appeal and the revision filed against the said order were also dismissed. 8. These orders are under challenge in the present petition with the assertion by the learned counsel for the petitioner that the petitioner has given sufficient explanation for non-appearance before the court of Consolidation Officer. The order dated 23.7.1980 is an ex-parte order which could not have been sustained on the explanation offered by the petitioner. The entries of name of the petitioner could not have been expunged being entries in Category IX. The order dated 23.7.1980 is an ex-parte order which could not have been sustained on the explanation offered by the petitioner. The entries of name of the petitioner could not have been expunged being entries in Category IX. No suit for eviction of the petitioner from the land in question was filed by the recorded tenureholder and hence the petitioner has perfected his right by way of the adverse possession over the land of tenureholder. The Court below has committed illegality in ignoring this aspect of the matter. 9. Dealing with the submissions of learned counsel for the petitioner, suffice it to note that the explanation offered by the petitioner for not appearing before the Consolidation Officer on the date of hearing i.e. 23.7.1980 is not sufficient explanation inasmuch as, it was incumbent upon the petitioner to remain vigilant? about his rights and to brief his counsel. 10. As far as the delay in filing the restoration application is concerned, it is noteworthy that the petitioner was well aware of the proceedings. The excuse given by the petitioner of him being confined to bed and his son being out of station is a lame excuse. Even otherwise, there is no detail with regard to the disease from which the petitioner has suffered for a period of more than 32 years nor any medical certificate/prescription was brought on record. 11. In the meantime, new rights have been created in the land in question and the village has been denotified under Section 52 of the U.P. C.H. Act. It is further noteworthy that along with the restoration application, the petitioner filed an extract of Khatauni of 1360 Fasli allegedly issued on 12.10.1979 wherein there was a noting that the tenureholders had left the country and migrated to Pakistan. The Consolidation Officer while rejecting the restoration application has rightly recorded that the said document, copy of which was issued to the petitioner in the year 1979 could not have been pressed to state that the original tenureholder had migrated to Pakistan. Even otherwise, the land in question has never been declared as 'Enemy property'. 12. In so far as the claim of the petitioner of adverse possession is concerned, as per the legal position, the adverse possession is always to the knowledge of the recorded tenureholder i.e. the actual owner of the land in question. Even otherwise, the land in question has never been declared as 'Enemy property'. 12. In so far as the claim of the petitioner of adverse possession is concerned, as per the legal position, the adverse possession is always to the knowledge of the recorded tenureholder i.e. the actual owner of the land in question. At no point of time, the petitioner had claimed his adverse possession to the exclusion of the recorded tenureholder/actual owner of the land in question. The objections filed by the petitioner after issuance of notification under Section 9 of the U.P. C.H. Act have been considered in the light of the evidences filed by him before the Court of Consolidation Officer. The findings of fact have been returned by the Consolidation Officer while deciding the Issue No.1 against the petitioner. The petitioner had kept silence for a long period and he cannot seek recall of the order by invoking jurisdiction of the Consolidation Authorities much after issuance of the notification under Section 52 of the U.P. C.H. Act that too without any sufficient explanation. 13. For all the above noted reasons, this Court does not find any infirmity in the orders impugned. The writ petition deserves to be dismissed.