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2022 DIGILAW 238 (ALL)

Jogendra Singh v. Addl. Commissioner

2022-02-22

DINESH KUMAR SINGH

body2022
JUDGMENT : 1. Heard Sri V.K. Pandey, learned counsel for the petitioner and Sri J.P. Maurya, learned Additional Chief Standing Counsel for the State-opposite parties. 2. The present writ petition has been filed seeking quashing of the orders dated 8.2.1993 passed by the prescribed authority and 24.6.1994 passed by the appellate authority under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (for short ‘the Act, 1960’). 3. The dispute relates to Gata No.9/1/1M measuring 45.36 acres belonging to Amar Singh, opposite party no.7. Gata No.9/1/1/ along with some other gatas was jointly recorded in the name of Gur Bux Singh, Resham Singh and Trilochan Singh sons of Kartar Singh, Ratan Singh and Amar Singh. Total area of Gata No.9/1 was 136.09 acres, in which Amar Singh had share of 35.36 acres. It is said that all these tenure holders on the basis of mutual partition came into possession over their respective shares without any hindrance. Ceiling proceedings under the Act, 1960 were commenced against Amar Singh in the year 1982. Vide order dated 30.8.1982, the prescribed authority declared the said land of Amar Singh as surplus beyond the ceiling limit. 4. It is also said that when the ceiling authority tried to take possession of the said land in May, 1999, the petitioner could know about the order dated 30.8.1982 passed by the prescribed authority declaring the aforesaid land of the petitioner as surplus. The petitioner on 9.5.1989 filed objection under Section 11(2) of the Act, 1960 before the prescribed authority. The prescribed authority dismissed the objection vide order dated 15.5.1989 on the ground of limitation. 5. Against the said order dated 15.5.1989, the petitioner filed Appeal No.276 of 1988-89 before the appellate authority. The appeal was allowed vide order dated 6.1.1990 and the matter was remanded back to the prescribed authority for deciding the objection afresh on merit in accordance with law. 6. In the objection, the petitioner claimed that he was recorded as tenant in Class-IX in khatauni of 1369 Fasli and as per the law, he became sirdar of the aforesaid land prior to 1375 Fasli, which corresponds to the year 1968. 6. In the objection, the petitioner claimed that he was recorded as tenant in Class-IX in khatauni of 1369 Fasli and as per the law, he became sirdar of the aforesaid land prior to 1375 Fasli, which corresponds to the year 1968. Further contention of the petitioner was that before the due date i.e. 24.1.1971/8.6.1973 by virtue of operation of law, the petitioner had become sirdar on the ground that he was in adverse possession for the period of six years i.e. in the year 1376 Fasli and, therefore, the said land could not have been included in the land holding of Amar Singh. 7. The prescribed authority framed the following issues for the decision:- (i) Whether the objector/petitioner had become bhumidhar of the land in question on the ground of his adverse possession before coming into force the Act, 1960? If yes, then what would be the effect? (ii) Whether the objector/petitioner is entitled for any other relief. 8. The prescribed authority held that the petitioner’s possession was not recorded in any of khasras of Fasli years 1371 to 1391. His name was recorded in Class-IX of khatauni for 1371-1391 Fasli. The prescribed authority did not believe the claim of the petitioner that he was in possession of the land in question since 1369 Fasli inasmuch as he did not produce any documentary evidence to substantiate the said claim. The prescribed authority further was of the view that if the petitioner was recorded in possession of the land, then he would have filed a case under Section 229-B of U.P.Z.A.& L.R. Act to establish his right. 9. The prescribed authority also held that the consolidation proceedings were going on in the village and in khasra partal, in PA2 Ka in Class-IX, the disputed land is mentioned. The Chakbandi Lekhpal in his statement has specifically said that in Column Nos.7, 8 and 9 of PA2 Ka, name of the petitioner was not mentioned against the disputed land, whereas Column Nos.7 and 8 of PA2 Ka, name of persons, who are in possession and sikmi persons are mentioned. The prescribed authority also find that name of the lease holders after the said land was declared as surplus land of Amar Singh, got recorded from 1386 Fasli itself. The prescribed authority also find that name of the lease holders after the said land was declared as surplus land of Amar Singh, got recorded from 1386 Fasli itself. The prescribed authority held that petitioner had never been in possession of the said land and thus, rejected the objection of the petitioner vide order dated 8.2.1993. 10. Aggrieved by the said order passed by the prescribed authority, petitioner filed Appeal No.289/92-93/94035 under Section 13 of the Act, 1960. The appellate authority vide impugned order dated 26.4.1994 did not find any substance in the claim of the petitioner over the land in question on the ground of his alleged adverse possession and thus, affirmed the order passed by the prescribed authority. The appellate authority was of the view that when it was not shown that the petitioner was in possession in khasras of 1371-1391 Fasli, entry of his name in Class-IX would not have any legal effect in favour of the petitioner. 11. Sri V.K. Pandey, learned counsel for the petitioner submits that as per Para 911 of the Land Records Manual, Class-IX entry in khatauni Para-II gives rise to judicial proceedings. Error/omission in the entry recording possession of a person shall be corrected after hearing the contending parties taking evidence and recording findings. It postulates judicial determination and is subject to scrutiny by the competent authority in exercise of his revisional power. 12. Learned counsel for the petitioner further submits that the omission/error in not recording the possession of the petitioner despite entry of his name in Class-IX of the khatauni, was required to be decided in the proceedings that whether the entries were correct or not correct as per the Land Records Manual. The said determination should have taken place on the basis of evidence and proper opportunity to the petitioner to lead evidence on the point of showing validity of recording entry of his name in Class-IX of the khatauni. 13. Learned counsel for the petitioner also submits that petitioner's claim has been rejected merely on the ground that in corresponding khasra, there was no entry of his possession and, therefore, mere entry in Class-IX would not be sufficient. He further submits that the said finding has not been recorded after scrutinizing the omission/error of recording the possession of the petitioner in corresponding khasra as is mandated under the Land Records Manual. 14. He further submits that the said finding has not been recorded after scrutinizing the omission/error of recording the possession of the petitioner in corresponding khasra as is mandated under the Land Records Manual. 14. Learned counsel for the petitioner further submits that petitioner's entry in Class-IX of khatauni is sufficient proof of his adverse possession and it was sufficient evidence to prove his adverse possession. He further submits that petitioner was not required to file proceedings under Section 229-B of U.P.Z.A.& L.R. Act. If the stipulated period of adverse possession get completed, then the original tenure holder cannot initiate proceedings under Section 209 U.P.Z.A. & L.R. Act and, as per Section 210 of U.P.Z.A. & L.R. Act, the person having adverse possession, would obtain the right of those person against that property, if he has completed the stipulated period of adverse possession. 15. Learned counsel for the petitioner also submits that there has been no finding recorded by the prescribed authority or by the appellate authority that petitioner used fraudulent means or fabricated the record of khatauni. Entry in Class-IX of a person, is an entry of recording his possession. He, therefore, submits that the orders passed by the prescribed authority and the appellate authority are bad in law and are liable to be quashed. 16. On the other hand, Sri J.P. Maurya, learned Additional Chief Standing Counsel has supported the orders passed by the two authorities below and has submitted that petitioner could not prove his claim of adverse possession. He did not file the khasra (record of possession) of the relevant years before the prescribed authority. The petitioner did not file objection under Section 9 of the U.P.C.H. Act during the consolidation proceedings in the village claiming to be sirdar on the basis of adverse possession of the land in question. It appears that by influence/fraudulent means, he could get his name recorded in Part-II of Class-IX of khatauni and such an entry in the khatauni, would not vest any right in favour of the petitioner. 17. Sri J.P. Maurya has further submitted that two authorities below have concurrently held that petitioner could not prove his adverse possession over the land in question before the due date and, therefore, this Court may not interfere with the findings of fact recorded by the two authorities below. 17. Sri J.P. Maurya has further submitted that two authorities below have concurrently held that petitioner could not prove his adverse possession over the land in question before the due date and, therefore, this Court may not interfere with the findings of fact recorded by the two authorities below. He has also submitted that after the said land of Amar Singh was declared as surplus, leases had been executed in favour of the landless persons. The petitioner was never in possession of the said land. Therefore, the writ petition being without any merit and substance, is liable to be dismissed. 18. I have considered the submissions advanced on behalf of the learned counsel for the petitioner as well as by the learned Additional Chief Standing Counsel and perused the record of the writ petition. 19. This Court in the case of Wali Mohammad (deceased) by LRs vs. Ram Surat and others, (1989) 4 SCC 574 has held that if an entry is made in the revenue record and the said entry is not fictitious or is found to have been made surreptitiously, then it cannot be said that such an entry would have no legal effect. Even an incorrect entry in law, would not lead to the conclusion that it ceases to be an entry. Once the entry is in existence in the khasra or khatauni of Fasli Year 1356, that would govern the question as to who is entitled to take or retain possession of the and to which the entry relates. Paragraph 6 of the aforesaid judgement reads as under :- “6. Coming to the present case, although the Additional Commissioner has held that the entry was fictitious, that conclusion seems to have arrived at merely on the basis that Wali Mohammad was in possession in Fasli Year in question, with the result that the entry in the Khasra or Khatauni showing Ram Kumar as the occupant could not be correct. There is nothing to show that the said entry was fictitious or was made fraudulently or was incorrectly introduced by reason of ill-will or hostility towards Wali Mohammad. In these circumstances, the entry may not be correct but it could not be said to be fictitious or regarded as non est. There is nothing to show that the said entry was fictitious or was made fraudulently or was incorrectly introduced by reason of ill-will or hostility towards Wali Mohammad. In these circumstances, the entry may not be correct but it could not be said to be fictitious or regarded as non est. Merely because the entry might be incorrect, that would not make any difference to the determination of the question as to who is entitled to be declared to be the Adhivasi of the land under the provisions of section 20(b) of the said Act. We agree with the conclusion and reasoning of the High Court.” 20. In the present case, two authorities below have not recorded any finding that entry of the petitioner in Class-IX of khatauni was a fictitious or was made fraudulently. 21. Sections 209 and 210 of the U.P.Z.A. & L.R. Act, which have bearing in the present case, read as under :- “209. Ejectment of persons occupying land without title.-[(1)]A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force; and- (a) where the land forms part of the holding of a bhumidhar,[* * *]or asami without the consent of such bhumidhar,[* * *]or asami; (b) where the land does not form part of the holding of a bhumidhar, [* * *]or asami without consent of the[Gaon Sabha], shall be liable to ejectment on the suit in cases referred to in Clause (a) above of the bhumidhar,[* * *]or asami concerned and in cases referred to in Clause (b) above of the[Gaon Sabha][* * *]and shall also be liable to pay damages. [(2) To every suit relating to a land referred to in Clause (a) of subsection (1) the State Government shall be impleaded as a necessary party.] 210. Consequence of failure to the suit under Section 209. [(2) To every suit relating to a land referred to in Clause (a) of subsection (1) the State Government shall be impleaded as a necessary party.] 210. Consequence of failure to the suit under Section 209. -If a suit for eviction from any land under Section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall- (a) where the land forms pail of the holding of a bhumidhar with transferable rights, become a bhumidhar with a transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished; (b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights I and the right, title and interest of an asami, if any, in such land shall be I extinguished; (c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year.] [Provided that the consequences mentioned in Clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.]” 22. If Sections 209 and 210 of the U.P.Z.A. & L.R. Act are read together, it would be found that if a person has retained possession of the land otherwise than in accordance with the provisions of law without consent of the owner of the land (bhumidhar, sirdar or asami) or the Gram Sabha as the case may be, he can be ejected on a suit filed under Section 209 of U.P.Z.A.&L.R. Act. If, however, the suit is not filed under Section 209 of U.P.Z.A.&L.R. Act or a decree obtained in any such suit is not executed before limitation or execution of the decree, the person taking or retaining the possession without the consent of the tenure holder or the Gram Sabha would acquire the right, title and interest of an asami and the rights of the tenure holder would get extinguished. The person in possession becomes asami by virtue of operation of law and the proceedings under Section 229-B of U.P.Z.A. & L.R. Act would not be required to be filed by him. 23. Thus, this Court finds that when the entries in khatauni have not been found to be fictitious or made fraudulently by two authorities below and the petitioner's name was recorded in Class-IX of khatauni from 1371-1391 Faslis, it was the duty of the prescribed authority to decide the validity of entry by allowing the petitioner to lead evidence. 24. In view thereof, the present writ petition is allowed and the impugned orders dated 8.2.1993 and 24.6.1994 passed by the prescribe authority and the appellate authority are hereby quashed. The case is remanded back to the prescribed authority to decide the case afresh in accordance with law expeditiously, preferably, within a period of six months from today. Petitioner should appear before the prescribed authority on 4.4.2022 along with this order.