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2023 DIGILAW 1553 (ALL)

Ramji v. State of U. P.

2023-07-03

JAYANT BANERJI

body2023
JUDGMENT Jayant Banerji, J. The aforesaid writ petition has been filed seeking the following reliefs:- "(i) Issue an appropriate writ, order or direction, for calling the records and quashing the order dated 16.09.2013 passed by Sub-Divisional Officer, Sadar, District Mirzapur (Respondent No.3) in Case No.67 of 2012-2013 (Ram Chander v. Ramji Sharma and others (Annexure No.4)); (ii) Issue an appropriate writ, order or direction, for calling the records and quashing the order dated 19.10.2022 passed by the Board of Revenue, U.P. at Lucknow (respondent no.2) in Revision No.REV/5/2013-2014/Mirzapur (Computer Case No.R201316310051766 (Ramji and others v. Ram Chander and others (Annexure No.6))" 2. The properties in dispute are Plot Nos.1017/2 and 1018 in Village-Mulhawan (Gosaipur), Tehsil-Sadar, District Mirzapur. The case of the petitioners is that their predecessor-in-interest, namely Ganesh Prasad, was recorded to have been in possession of the plots in dispute in the khatauni of 1359 fasli. Consequent to the enactment of the U.P. Zamindari Abolition and Land Reforms Act, 1950, all estates were vested in the State with effect from 01.07.1952 which corresponds to the fasli year 1359. It is stated that in the basic year khatauni 1359, the name of the aforesaid Ganesh Prasad was recorded in possession of the plots in dispute whose class of tenure was mentioned as 'zaman-8' which denotes land held by 'adhivasis'. Consequent to a notification dated 13.10.1954 under Section 240-A of the Act, 1950, the aforesaid Ganesh Prasad, who was recorded as 'adhivasi', became 'sirdar' of the land in dispute. The consequence of Chapter-II of the Act, 1950, which contains the consequences of vesting, etc., did not apply to 'sirdari' rights, which had accrued in favour of the aforesaid Ganesh Prasad under Section 240-B of the Act, 1950. In khatauni of 1362 fasli, the aforesaid Ganesh Prasad was recorded as 'sirdar' (Class-II) with regard to the plots in dispute. By virtue of Section 139 of the Act, 1950, all persons who had acquired sirdari rights by operation of law became bhumidhar and, accordingly, the aforesaid Ganesh Prasad acquired bhumidhari rights on the disputed property. During consolidation operations held under the Uttar Pradesh Consolidation of Holdings Act, 1953 Consolidation Act, in the Statement of Principles, the disputed land was not earmarked for public purpose (land vested in Gaon Sabha or Local Authorities under Sections 117 and 117-A of the Act, 1950). During consolidation operations held under the Uttar Pradesh Consolidation of Holdings Act, 1953 Consolidation Act, in the Statement of Principles, the disputed land was not earmarked for public purpose (land vested in Gaon Sabha or Local Authorities under Sections 117 and 117-A of the Act, 1950). After requisite formalities, CH Form-2A was prepared by the Consolidator in which the aforesaid Ganesh Prasad was recorded as 'sirdar'. After the final consolidation scheme came into force, CH Form-45 was prepared and the aforesaid Ganesh Prasad was recorded as bhumidhar with transferable rights with regard to the plots in dispute. 3. On a complaint filed by the respondent no.5, proceedings under Section 33/39 of the U.P. Land Revenue Act, 1901 Land Revenue Act were initiated and the Tehsildar submitted a report on the direction of the Sub- Divisional Officer concerned. An objection was filed by the petitioners before the Sub-Divisional Officer and the petitioners also contested the case before the Sub-Divisional Officer. By the impugned order dated 16.09.2013, the Sub-Divisional Officer directed the names of the petitioners to be struck off from the revenue records and the words 'talab' and 'bheeta' be incorporated in the revenue records over the plots in dispute. The revision filed by the petitioners against the order of the Sub-Divisional Officer dated 16.09.2013 was dismissed by the impugned order dated 19.10.2022 passed by the Board of Revenue. 4. In the counter affidavit filed on behalf of the State-respondents, it has been stated that old Plot No.1017/2 has been renumbered as Plot No.654 and the old Plot No.1018 has been renumbered as Plot No.653. It is categorically stated that the aforesaid Ganesh Prasad, was never in cultivatory possession of the plots in dispute. The reason being that plots in dispute were recorded as 'bheeta' and 'talab' in the khatauni of 1346-1347 fasli and also in Khasra of 1333-1334 fasli as well as of 1359 fasli. It has been stated that a forged entry was made in the name of the aforesaid Ganesh Prasad in a different handwriting, which is not in the same sequence of the entry made in Khasra of 1359 fasli. It is stated that no crops have been mentioned in Khasra of 1359 fasli in the name of Ganesh Prasad. It has been stated that a forged entry was made in the name of the aforesaid Ganesh Prasad in a different handwriting, which is not in the same sequence of the entry made in Khasra of 1359 fasli. It is stated that no crops have been mentioned in Khasra of 1359 fasli in the name of Ganesh Prasad. The order of the Sub- Divisional Officer dated 16.09.2013 has been relied upon and it is stated that the names of the recorded tenure-holders over the plots in dispute had rightly been expunged inasmuch as the entry made in Khasra of 1359 fasli in the name of Ganesh Prasad was without any order of the competent authority in that regard. It has been stated that in collusion with the employees of the Revenue Department, by playing fraud, the predecessor-in-interest of the petitioners got his name recorded in Column-5 of Khasra of 1359 fasli though in Column-19 of the same Khasra, the land in dispute has been recorded as 'bheeta' and 'talab' which is contrary to the entry made in Khasra of 1333-1334 fasli. In Column-5 of Khasra 1333-1334 fasli, no person has been recorded over the plots in dispute. It has further been stated that an Enquiry Committee has been constituted to enquire into the matter. 5. Shri Raghuvansh Misra, learned counsel for the petitioners has stated that the impugned order of the Sub-Divisional Officer is without jurisdiction. It is stated that the provisions of Sections 8 and 8-A of the Consolidation Act, provide for revision of the field-book and the current annual register and preparation of Statement of Principles. The Statement of Principles are required to contain the details of land to be earmarked for public purposes out of land vested in a Gaon Sabha or a Local Authority under Section 117 of the Act, 1950. Learned counsel has referred to the provisions of Section 49 of the Consolidation Act to contend that since consolidation operations had commenced and concluded with respect to the lands in the aforementioned village as also the plots in dispute, it was for the Gaon Sabha to have raised an objection before the consolidation authorities in respect of the plots in dispute. That having not been done, jurisdiction of civil or revenue courts is barred. That having not been done, jurisdiction of civil or revenue courts is barred. It is contended that the predecessor-in-interest of the petitioners was in occupation of the plots in dispute since prior to the date of vesting and the name of the predecessor-in-interest, Ganesh Prasad, appears in 1359 fasli over the plots in dispute and, hence, such long standing entries ought not to have been interfered with by the Sub-Divisional Officer in exercise of summary jurisdiction under Section 33/39 of the Land Revenue Act. The contention is that given the fact that the entry of the name of the aforesaid Ganesh Prasad is existing in the basic year khatauni, the aforesaid Ganesh Prasad was an 'adhivasi' by operation of law under the provisions of sub-clauses (i) and (ii) of clause (b) of Section 20 of the Act, 1950. It is stated that despite an order of this Court, the respondents have not filed the revenue records of 1356 fasli in which the entry was made of the name of the aforesaid Ganesh Prasad and as such, the case of the petitioners is also covered by Explanations II and III of Section 20 of the Act, 1950. It is stated that there is presumption with regard to the correctness of entries in revenue records, which fact has been overlooked by the Sub-Divisional Officer. It is contended that it is for the State to move an application under the provisions of the Consolidation Act or to file a suit, but it cannot be a case for correction of entries of land record. It is contended that in the event the impugned orders are sustained notwithstanding the bar under Section 49 of the Consolidation Act and the long standing entry in the revenue records, the petitioners may not have any chance to sustain their rights and, therefore, the orders impugned would amount to final adjudication of the rights. 6. Shri Girish Chandra Maurya, learned counsel appearing for the respondent no.5, has stated that the impugned order of the Sub- Divisional Officer is passed in summary proceedings and, therefore, it is always open to the petitioners to file a suit for declaration with regard to the plots in dispute before the court of competent jurisdiction. It is stated that the petitioners cannot claim title merely on the basis of long standing entries. It is stated that the petitioners cannot claim title merely on the basis of long standing entries. Learned counsel has referred to the counter affidavit filed on behalf of the respondent no.5 and also to the photographs that have been enclosed therein as Annexure CA-1 to contend that even today, the plots in dispute are in the shape of 'talab' and 'bheeta'. He has referred to the judgement of the Supreme Court in the case of Hinchlal Tiwari v. Kamala Devi and others (2001) 6 SCC 496 to contend that by a fraudulent interpolation in the revenue records, the petitioners are claiming title over public utility land belonging to the Gaon Sabha and, therefore, there is no error in the order of the Sub- Divisional Officer. 7. The learned Standing Counsel appearing for the State- respondents states that the plots in dispute are non-agricultural land comprising of 'bheeta' and 'talab'. It is contended that the burden of proof is on the petitioners to establish their rights and title which they have failed to discharge. It is further stated that the petitioners are required to establish their cultivatory possession over the plots in disputes which they have failed to do. In the Khasra for the fasli years 1333 and 1334 as well as in the khatauni Jamabandi of 1347 fasli, the plots in dispute are recorded as 'talab' and 'bheeta' and given the provisions of Sections 4 and 6(a)(i) of the Act, 1950, the plots in dispute stand vested in the State of Uttar Pradesh free from all encumbrances. In support of his contention, the learned Standing Counsel has relied upon judgements in the cases of Harihar Nath v. Deputy Director of Consolidation and Ors. 2004 (97) RD 378 (Paragrpaph 6); Jagpal Singh v. State of Punjab & Ors. (2011) 11 SCC 396 (Paragraph 20); and Surendra Nath Chaubey & Anr. v. State of U.P. & Ors. 2019 (144) RD 32 . Learned Standing Counsel has urged that it is for the first time in this writ petition that the petitioners have set up a claim of being an 'adhivasi' and seeking benefit of Section 20 of the Act, 1950. It is further contended that a finding has been recorded by the Sub-Divisional Officer that the flow of water has been blocked by the petitioners. 8. It is further contended that a finding has been recorded by the Sub-Divisional Officer that the flow of water has been blocked by the petitioners. 8. Shri Pradeep Singh, learned counsel for the Gaon Sabha has stated that no documents pertaining to consolidation proceedings have been filed by the petitioners. It is stated that it was for the petitioners to have demonstrated by evidence the Statement of Principles made by the consolidation authorities which they have failed to do and as such, no benefit of consolidation proceedings can be derived by the petitioners in the present writ petition. 9. In his rejoinder, Shri Raghuvansh Misra, learned counsel for the petitioners, has rebutted the contention of the learned Standing Counsel which was that cultivatory possession of the petitioners has to be established, by contending that mere entry in the revenue records of the name of Ganesh Prasad, predecessor-in-interest of the petitioners, is sufficient. In this regard, the learned counsel has referred to a judgement of the Supreme Court in the case of Amba Prasad v. Mahboob Ali Shah & Ors. 1964 RD 303 (page 309) . It is his contention that possession is not required to be proved for purpose of benefit of Section 20 of the Act, 1950. It is stated that by operation of law, the predecessor-in-interest of the petitioners, Ganesh Prasad, became 'adhivasi' of the plots in dispute and was entitled to take or retain possession thereof. Learned counsel has referred to Annexure-7 to the writ petition to show that the name of Ganesh Prasad is recorded in zaman-8 in the khatauni for the fasli year 1359 with regard to the plots in dispute. Learned counsel has stated that in Chapter A-VIII of the U.P. Land Records Manual, in paragraph A-124, the arrangement of land within each village in the khatauni is provided. In Part-II of this paragraph, zaman-8 is stated to be land held by 'adhivasis'. It is stated that in view of the provisions of Sections 240-A and 240-B of the Act, 1950, Ganesh Prasad, the predecessor-in-interest of the petitioners became bhumidhar with transferable rights of the plots in dispute. 10. In Part-II of this paragraph, zaman-8 is stated to be land held by 'adhivasis'. It is stated that in view of the provisions of Sections 240-A and 240-B of the Act, 1950, Ganesh Prasad, the predecessor-in-interest of the petitioners became bhumidhar with transferable rights of the plots in dispute. 10. It is contended by the learned counsel for the petitioners that given the provisions of Section 11-A of the Consolidation Act, the Gaon Sabha, which had admittedly not filed any objection under Section 9 of the Consolidation Act would not be permitted to file any objection claiming right or title to the plots in dispute nor could it be heard by the Deputy Director of Consolidation or any other competent authority on such objection. In support of this contention, the learned counsel for the petitioners has relied upon a decision of this Court in Gram Sabha, Kudra v. Noor Mohd Khan 1974 RD 350 . It is reiterated by him that in the present case, no objections were filed by the Gaon Sabha and even in this writ petition no objection has been filed. It is contended that the entries that have been ordered to be corrected by the order of the Sub-Divisional Officer are entries made in consolidation proceedings which cannot be altered in summary proceedings. It is stated that Section 11-C of the Consolidation Act provides suo motu power to the consolidation authorities, who may direct any land which vests in the State Government or the Gaon Sabha or any other Local Body or Authority to be recorded in their name even though no objection, appeal or revision is filed by the Government or Gaon Sabha or Body or Authorities which, it is contended, has admittedly not been done in the present case. 11. Learned counsel for the petitioners has referred to the decision of a coordinate Bench of this Court in Mangroo Ram v. State of U.P. & Ors. 2011 (113) RD 538 to contend that it is open for the State to file an appropriate application before the consolidation authorities to establish its right. With regard to the judgement in the case of Harihar Nath (supra) cited by the learned Standing Counsel, the learned counsel for the petitioners has stated that the case before the High Court arose out of consolidation proceedings and consideration of 'adhivasi' rights was not an issue before the High Court. With regard to the judgement in the case of Harihar Nath (supra) cited by the learned Standing Counsel, the learned counsel for the petitioners has stated that the case before the High Court arose out of consolidation proceedings and consideration of 'adhivasi' rights was not an issue before the High Court. Learned counsel has referred to clause (iv) of Paragraph 98 of Chapter A-V of the U.P Land Records Manual to contend that the plots in dispute shall not be vested in the Gaon Sabha in terms of Section 117 of the Act, 1950. It is stated that under Section 117, only those lands will be vested in the Gaon Sabha which are mentioned in Section 117 and, therefore, the aforesaid plots of land, which are mentioned as 'talab' and 'bheeta' over which the petitioners have acquired bhumidhari rights, cannot be entrusted to the Gaon Sabha. 12. Though the learned counsel for the petitioners as referred to at length to the various provisions of the Consolidation Act, however no records of the consolidation proceedings have been filed by them before this Court. There are no averments regarding the dates of commencement and conclusion of consolidation proceedings. If it is the case of the petitioners that plots in dispute, which are admittedly recorded as 'bheeta' and 'talab', are covered by the definition of 'land' appearing in sub-section (5) of Section 3 of the Consolidation Act and, therefore, amenable to the jurisdiction of consolidation courts, then they ought to have demonstrated by filing evidence before this Court regarding the orders passed in this regard and the steps taken by consolidation authorities with regard to the plots in dispute. In his impugned order dated 16.09.2013, the Sub-Divisional Officer has dealt with at length on the objections raised on behalf of the petitioners and has also considered the material on record. The report of the Tehsildar was scrutinized in which it was reflected that in the Khasra pertaining to the fasli years 1333-1334, the plots in dispute were recorded as 'talab' and 'bheeta'. In the khatauni for the fasli year 1347, the plots in dispute were recorded as 'talab' and 'bheeta'. The report of the Tehsildar was scrutinized in which it was reflected that in the Khasra pertaining to the fasli years 1333-1334, the plots in dispute were recorded as 'talab' and 'bheeta'. In the khatauni for the fasli year 1347, the plots in dispute were recorded as 'talab' and 'bheeta'. The Sub-Divisional Officer recorded that the Tehsildar in his report has specified that without there being any order of a competent authority, the name of Ganesh Prasad, the predecessor-in-interest of the petitioners, has been recorded in the khatauni of the village concerned for the fasli year 1359. It was, therefore, observed by the Sub-Divisional Officer that the plots in dispute are plots covered by the provisions of Section 132 of the Act, 1950 over which no bhumidhari rights shall accrue. It was held that the revenue record deserves to be corrected and it was ordered accordingly. The Board of Revenue has upheld the order of the Sub-Divisional Officer by dismissing the revision filed by the petitioners. The Board noted that there was no order of any competent authority for recording the name of the predecessor-in-interest of the petitioners, namely Ganesh Prasad in the khatauni for the fasli year 1359. Accordingly, the revision filed by the petitioners was dismissed. 13. As far as the arguments of the learned counsel for the petitioners that long standing entries in the revenue records would require drawing of a presumption with regard to their correctness, it is noted that long standing entries hold only presumptory value and they cannot be taken to be as absolute proof for pressing the principles of estoppel, acquiescence and waiver. It is the case of the State- respondents that the entry in the khatauni for the fasli year 1359 has been made without any order of the competent authority. In the counter affidavit filed on behalf of the State-respondents, the allegations of forgery, manipulation of entry and collusion has been made in respect of which an enquiry has also been launched. In the counter affidavit filed on behalf of the State-respondents, the allegations of forgery, manipulation of entry and collusion has been made in respect of which an enquiry has also been launched. It has been stated by the State-respondents in the counter affidavit that in collusion with the employees of the Revenue Department, by playing fraud, the predecessor-in-interest of the petitioners has got his name recorded in Column-5 of Khasra for the fasli year 1359 though in Column-19 of the same Khasra, the plots in dispute have been recorded as 'bheeta' and 'talab' which is contrary to the entry made in Khasra for the fasli years 1333-1334 inasmuch as in Column-5 of Khasra for the fasli years 1333-1334, no person has been recorded over the land in dispute, and, as such the petitioners cannot be given advantage of forged entry made in Khasra for the fasli year 1359 in the name of Ganesh Prasad. It has further been stated that no crops have been mentioned in Khasra 1359 fasli and as such Ganesh Prasad could not be said to be in cultivatory possession over the plots in dispute. 14. In the case of Vishwa Vijay Bharati v. Fakhrul Hassan & Ors. (1976) 3 SCC 642 , it has been held by the Supreme Court as under :- "14. It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title. 15. In Amba Prasad v. Abdul Noor Khan [ AIR 1965 SC 54 : (1964) 7 SCR 800 ], it was held by this Court that Section 20 of the U.P. Act 1 of 1951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the khasra or khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati v. Sri Ram [ AIR 1968 SC 466 : (1968) 1 SCR 617 , 620] that "the civil court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant." We have supplied the emphasis in order to show that the normal presumption of correctness attaching to entries in the revenue record, which by law constitute evidence of a legal title, is displaced by proof of fraud." 15. However, it is important to note that reference to the above judgement of the Supreme Court has been made herein only to address the argument raised on behalf of the petitioners regarding long standing entries existing in the revenue records. The finding of the Sub-Divisional Officer in summary proceedings for correction of entries that the entries made in the khatauni of the fasli year 1359 were without any order of the competent authority, would be subject to the same being demonstrated before a competent court having jurisdiction to record a finding of fact in any suit that may be filed by the petitioners. 16. The claim of the petitioners that their predecessor-in-interest, Ganesh Prasad, had acquired 'adhivasi' rights under Section 20 of the Act, 1950 would also be based on the validity of the entry made in the khatauni of the village in respect of the plots in dispute pertaining to the fasli year 1359 being upheld by a court of competent jurisdiction. Moreover, it has been argued by the learned Standing Counsel that this plea has been raised by the petitioners for the first time in this writ petition. 17. In paragraph 5 of the writ petition, the stand of the petitioners that Ganesh Prasad had been in cultivatory possession of the plots in dispute even prior to zamindari abolition, would have to be seen in the light of the averments made in the counter affidavit filed on behalf of the State-respondents that even in the Khasra for the fasli year 1359, in which the name of Ganesh Prasad appears, no crops have been mentioned. 18. 18. Thus, for the reasons aforesaid, no interference is called for in the writ proceedings in view of the facts and circumstances of the case. It is open to the petitioners to seek adjudication of their claim by filing a suit for declaration or such other suit or proceedings as they may be advised. Needless to say, if any such suit or proceedings are filed/initiated by the petitioners, the same would be considered independently on their merits. It is clarified that the observations made here in above are only for purpose of adjudication of the present writ petition and would not be taken as an opinion by this Court on merits of the case of either of the parties. 19. With the aforesaid observations, this writ petition is disposed of.