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2020 DIGILAW 844 (ALL)

Ram Deo v. D. D. C.

2020-05-05

B.K.NARAYANA

body2020
ORDER : B.K. Narayana, J. 1. Heard Sri Pradeep Kumar Rai, assisted by Sri Rajesh Rai, learned counsel for the petitioner and Sri Vishnu Singh assisted by Sri Narendra Shanker, learned counsel for the respondents. 2. Brief facts of the case are that in the basic year, khatauni respondent nos. 3 to 7 were recorded as bhumidhar of plot No. 4660, area 0-18-4, situate in village-Pachokhar, Pargana-Jamania, district-Ghazipur (hereinafter referred to as the disputed plot) and the name of petitioner's father was recorded in Zaman-9. Two sets of objections were filed under Section 9-A (2) of the U. P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'C. H. Act') before the Consolidation Officer. The first objection was filed by the petitioner alleging that he was in possession over the disputed plots since long and he had been cultivating the same by amalgamating his own plot No. 4661 with the two plots. Since long therefore, the petitioner had acquired sirdari rights in the disputed plot on the basis of adverse possession over the disputed plot. The said objection was registered as Case No. 3551. The other objection was filed by the respondent nos. 4 to 7 claiming that they were in possession over the disputed plot and prayed that Zaman-9 entry existing in the basic year khatauni in favour of the petitioner's father be expunged. 3. The Consolidation Officer vide his order dated 1.1.1972 (Annexure 1 to the writ petition) allowed the petitioner's objection and directed that his name be recorded as sirdar over the disputed plot while the objection filed by the respondent nos. 4 to 7 was rejected by him by the same order. The respondent no. 3, Jamuna Rai alone filed an appeal before the Settlement Officer of Consolidation, Ghazipur (respondent no. 2) against the order of the Consolidation Officer dated 1.1.1972 which was numbered as Appeal No. 900. The aforesaid order of the Consolidation officer was also challenged by two other persons Baleshwar Rai and Ram Prakash who are not parties in the present writ petition, by filing two appeals which were numbered as Appeal Nos. 800 and 917. All the three appeals were heard and decided by the Assistant Settlement Officer of Consolidation (respondent No. 2) by his order dated 21.7.1972 (Annexure 2 to the writ petition). By the said order, Appeal No. 900 preferred by the respondent no. 800 and 917. All the three appeals were heard and decided by the Assistant Settlement Officer of Consolidation (respondent No. 2) by his order dated 21.7.1972 (Annexure 2 to the writ petition). By the said order, Appeal No. 900 preferred by the respondent no. 3 before the Assistant Settlement Officer of Consolidation was allowed while Appeal Nos. 800 and 917 were dismissed. By the order passed by the respondent no. 2, basic year entries were restored and the petitioner's father's objection was dismissed. Against the order of the respondent no. 2, petitioner filed revision before the Deputy Director of Consolidation, Ghazipur (respondent No. 1) which was numbered as Revision No. 1061/305 before the Joint director of Consolidation, Varanasi and dismissed by him by the impugned order dated 28.3.1980 (Annexure IV to the writ petition). 4. Learned counsel for the petitioner submitted that the Consolidation Officer, after a meticulous marshalling of the facts and microscopic scrutiny of the documentary evidence on record, had allowed the petitioner's objection and rejected that of the respondent nos. 4 to 7 holding that the petitioner had matured his rights in the disputed plot by adverse possession and had become sirdar of the disputed plot on the basis of long standing possession but the respondent no. 2 illegally allowed the appeal preferred before him by the respondent no. 3 Jamuna Rai alone and restored the basic year entries illegally holding that the petitioner's father had not acquired sirdari rights over the disputed plot on the basis of adverse possession. He next submitted that the respondent no. 2 had patently erred in law in holding that the entry existing in favour of the petitioner's father in 1359 F was of no help to him as the same was recorded on the basis of exchange and not on the basis of sub-tenancy and illegally discarded the entries of occupant recorded in favour of petitioner's father in 1365 F, 1366 F, 1373 F, 1369 F, 1371 F, 1370 F, 1372 F, 1376 F, 1368 F, 1377 F, 1375 F, irrigation slips issued by the Irrigation Department of the State Government in favour of the petitioner's father, extracts of khasra 1361F, 1363, 1362F, 1372F, 1370F and extracts of the khatauni of 1369 F and 1370 F from which long, continuous and hostile possession of the petitioner over the disputed plot fully proved. He has lastly submitted that the respondent no. He has lastly submitted that the respondent no. 1 totally failed to consider that in view of the fact that the name of the petitioner's father was recorded as occupant of the disputed plot in 1359 F, he had become Adhiwasi of the same on the date of coming into force of the U. P. Zamindari Abolition and Land Reforms Act (U. P. Act No. 1 of 1951) and thereafter he had become sirdar of the disputed plot under Section 240 A of U. P. Act No. 1 of 1951. 5. Sri Vishnu Singh, learned counsel appearing for the contesting respondents submitted that the Deputy Director of Consolidation as well as the Settlement Officer of Consolidation have considered the entire material in great detail and recorded findings on the question of fact which are based upon relevant material on record and since the learned counsel for the petitioner has failed to demonstrate that the same suffers from any error of law, the writ petition is liable to be dismissed. He has next submitted that the petitioner is not entitled to any benefit of the entry existing in his father's favour in 1359F as the said entry was not continued in the fasli of few years. He lastly submitted that the impugned orders which are based upon relevant considerations and supported by cogent reasons, merit no interference by this Court in the exercise of its inherent jurisdiction u/s.(sic article) 226 of the Constitution of India and the writ petition which is devoid of any merit, deserves to be dismissed. 6. In my opinion, the only issue for determination in the writ petition is whether the petitioner whose father was recorded as occupant of the disputed plot in 1359 F, had become Adhiwasi under Section 231 of U. P. Act No. XXXI of 1952 and later sirdar of the disputed plot under Section 240 A of U. P. Z. A & L. R. Act. Entry of 1359 F clearly indicates that on the date of vesting the petitioner's father was in possession over the disputed plot. There is no evidence on record that the respondent no. 3 had filed any suit for ejectment of the petitioner's father from the land in dispute under Section 210 of U. P. Z. A. & L. R. Act. The respondent nos. There is no evidence on record that the respondent no. 3 had filed any suit for ejectment of the petitioner's father from the land in dispute under Section 210 of U. P. Z. A. & L. R. Act. The respondent nos. 3 to 7 had filed a suit before the Assistant Collector, District-Ghazipur under Section 229B of U. P. Z. A. & L. R. Act for being declared bhumidhars of the disputed plot. The said suit was decreed by the trial court vide judgment and decree dated 1.1.1966. Against the judgment and decree dated 1.1.1966 the petitioner's father had preferred an appeal before the Commissioner, Varanasi Division, Varanasi which was numbered as Appeal No. 411 of 1966 and allowed by him by his judgment and decree dated 2.9.1968 (Annexure 7 to the writ petition) and copy of the said judgment was filed by the petitioner's father before the Consolidation Officer. The Additional Commissioner, Varanasi Division, Varanasi in his order dated 2.9.1968 had recorded a categorical finding of fact that the appellant was in unbroken possession of the disputed plot since 1356 F or earlier and rights of the plaintiff-respondents if any, in the disputed plot, had stood extinguished. It appears that against the judgment and decree of First Appellate Court, the respondent nos. 3 to 7 had preferred a second appeal before the Board of Revenue which upon commencement of the consolidation operation in the village where disputed plots are situated, stood abated. 7. Now I proceed to examine the issue whether the petitioner had become sirdar of the disputed plot under Section 240 of U. P. Z. A & L. R. Act or not? 8. There is no dispute about the fact that the petitioner's father was recorded as occupant of the disputed plot in 1359 F. Section 3 of U. P. Land Reforms (Supplementary) Act, 1952 (U. P. Act No. XXXI of 1952) (hereinafter referred to as the 'Act of 1952') which is relevant for our purpose reads as hereunder:---- "3. 8. There is no dispute about the fact that the petitioner's father was recorded as occupant of the disputed plot in 1359 F. Section 3 of U. P. Land Reforms (Supplementary) Act, 1952 (U. P. Act No. XXXI of 1952) (hereinafter referred to as the 'Act of 1952') which is relevant for our purpose reads as hereunder:---- "3. Persons in cultivatory possession in 1359 Fasli to be adhivasis or asamis- (1) Every person who was in cultivatory possession of any land during the year 1359 fasli but is not a person who as a consequence of vesting under Section 4 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act No. I of 1951) (hereinafter referred to as the said Act), has become a bhumidhar, sirdar, adhivasi or asami under Section 18 to 21 of the said Act shall be and is hereby declared to be, with effect from the appointed date? (a) if the bhumidhar or sirdar of the land was, or where the land belongs jointly to two or more bhumidhars or sirdars, all of them were, on the appointed date person or persons referred to in items (i) to (iv) of sub-section (2) of Section 10 of the said Act, an asami from year to year, or (b) if the bhumidhar or sirdar was not such a person, an adhivasi, and shall be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi, as the case may be, by or under the said Act. Explanation.---A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar, sirdar, adhivasi or asami concerned in the actual performance of agricultural operations. Explanation.---A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar, sirdar, adhivasi or asami concerned in the actual performance of agricultural operations. (2) Where an adhivasi or asami declared under sub-section (1) has been dispossessed otherwise than in due course of law, he or any person claiming through him may apply within six months of the date of making the entry referred to in sub-section (2) of Section 4 to the Assistant Collector, in charge of the Sub-Division for putting him in possession of the land and the provision of Section 232 of the said Act shall, in so far as may be, apply to and the order of the Assistant Collector shall be executable in the same manner as an order under sub-section (4) of the said section." 9. The contesting respondents' counsel has failed to show anything from the record which may indicate that the petitioner's father was cultivating the plot in dispute either as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidar, sirdar, adhivasi or asami concerned in the actual performance of agricultural operations so as to deprive the petitioner of the benefit of Section 3(1) of the Act of 1952. 10. Although learned counsel for the contesting respondents also argued that the petitioner's predecessor, his father was cultivating the plot in dispute not as a sub-tenant but on the basis of exchange but he has failed to demonstrate from the record that any theory of exchange was setup by either of the parties before the consolidation authorities. Hence, the aforesaid arguments of the learned counsel for the contesting respondents deserves to be rejected summarily. 11. Hence, the aforesaid arguments of the learned counsel for the contesting respondents deserves to be rejected summarily. 11. Thus, the petitioner who was in cultivatory possession of the disputed plot in the year 1359 F as is evident from the record and who was not a person who as a consequence of vesting under Section 4 of U.P.Z.A. & L.R. Act had become bhumidhar, sirdar, adhivasi or asami under Sections 18 to 21 of U.P.Z.A. & L.R. Act and recorded bhumidhar of the disputed plot, and was not a person referred to item 1 to 6 of Sub-section 2 of Section 10 of U.P.Z.A. & L.R. Act, the petitioner's father became adhivasi by virtue of Section 3(1)(b) of Act of 1952. Once the petitioner's father had become adhivasi of the disputed plot by virtue of Section 3 of Act of 1952, he became sirdar of the disputed plot under Section 240 A of U.P.Z.A. & L.R. Act which is being reproduced below:-- "240-A. Acquisition of rights, title and interest of land-holder in the land held by adhivasi- (1) As soon as may be after the commencement of the U. P. Land Reforms (Amendment) Act, 1954, the State Government may, by notification published in the official Gazette, declare that as from a date to be specified therein the rights, title and interest of the landholder in the land which, on the date immediately preceding the said date, was held or deemed to be held by an adhvasi, shall as from the beginning of the date so specified (hereinafter) called the appointed date), shall cease and vest, except as hereinafter provided, in the State free from all encumbrances. (2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time the notification referred to in sub-section (1) in respect only of such area or areas as may be specified and all the provisions of sub-section (1) shall be applicable to and in the case of every such notification." 12. Both the respondent nos. 2 and 1 had failed to examine and consider the consequences of Section 3(1)(b) of Act of 1952 and hence, the impugned orders passed by them cannot be sustained and are liable to be set aside. 13. Both the respondent nos. 2 and 1 had failed to examine and consider the consequences of Section 3(1)(b) of Act of 1952 and hence, the impugned orders passed by them cannot be sustained and are liable to be set aside. 13. Even otherwise, the petitioner had perfected his rights in the disputed plot by adverse possession as the limitation prescribed for filing a suit under Section 209 at the relevant point of time was six years and which came to be substituted by twelve years vide amendment dated 30.10.1973 whereas from the evidence on record the possession of the petitioner's father over the disputed land is proved at least w.e.f. 1359 F. The law is also settled that a suit for ejectment as provided under Section 209 of U. P. Z. A. and L. R. Act is to be filed within the prescribed limitation failing which the consequences provided by Section 210 of U. P. Z. A. & L. R. Act will ensure and other than the suit for ejectment under Section 209 of U. P. Z. A. & L. R. Act any other suit or proceedings would not arrest running of the limitation or stand in the way of the consequences of not filing the suit for ejectment within the prescribed limitation as provided by Section 210 of U. P. Z. A. & L. R. Act. 14. In view of the above, the reasons given by the respondent nos. 1 and 2 in their orders that the entry of occupant recorded in favour of the petitioner's father in 1359 F was of no help to him as the said entry was not continued in the fasli of few years, is absolutely fallacious in view of the admitted factual position that no suit was filed by the recorded tenure holders for the ejectment of the petitioner from the plot in dispute nor it is their case that they had forcibly obtained possession of the disputed plot from the petitioner and hence it would be deemed that the petitioner's father had remained in continuous cultivatory possession over the disputed plot and was in possession over the same even in the year 1965 when the respondent nos. 3 to 7 had filed the suit for declaration under Section 229-B of U. P. Z. A. & L. R. Act against the petitioner's father. 15. 3 to 7 had filed the suit for declaration under Section 229-B of U. P. Z. A. & L. R. Act against the petitioner's father. 15. In view of the foregoing discussion, I find that the submissions made by learned counsel for the petitioner have force and are liable to be accepted whereas those advanced by the learned counsel appearing for the private respondents have no merit and are liable to be rejected summarily. The impugned orders which are per se illegal, cannot be sustained and are liable to be quashed. 16. Accordingly, this writ petition is allowed. The impugned orders dated 28.3.1980 passed by the Joint Director of Consolidation, Ghazipur (Annexure 4 to the writ petition) and 21.2.1972 passed by the Assistant Settlement Officer of Consolidation, Ghazipur (Annexure 2 to the writ petition) are set aside and the order dated 1.1.1972 passed by the Consolidation Officer, Ghazipur (Annexure 1 to the writ petition) qua petitioner, is restored.