JUDGMENT : Syed Qamar Hasan Rizvi, J. 1. By means of the instant writ petition under Article 226 of the Constitution of India the petitioners have challenged the order dated 30.06.1980 passed by the Consolidation Officer, Barabanki in a proceeding under section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953. The petitioners have also challenged the order dated 06.11.1982 passed by the Director of Consolidation in Revision No-598/203 under section 48 of the U.P. Consolidation of Holdings Act, 1953. 2. The dispute pertains to the plot of land bearing Khata No. 26, Khasra 841 measuring area 1-11-0 situates at Village: Lain, Pargana: Ramnagar, Tehsil-Fatehpur, District Barabanki. 3. The petitioners have come up with the case that the previous tenure holder namely Puttu Khan died issueless and consequent upon his death the land in question devolved upon his real brothers Ismail Khan and Habib Khan who executed a registered sale-deed dated 24.11.1966 in their favour and the possession of the land was also delivered. However, in the registered sale-deed dated 24.11.1966 the parentage of both the transferers was mistakenly shown as ‘son of Puttu’ though they are said to be the brothers of Puttu. 4. The petitioners applied for mutation of their names which was contested by Shiv Dulare. The names of the petitioners were allowed to be mutated vide order dated 11.06.1968. 5. The names of the petitioners Chhotey Lal and Rajju stood recorded in the basic year Khatauni. In the field-to-field Partal during the consolidation proceedings the petitioners were found to be in possession of the land in question to the extent of their ½ share each. 6. An Objection under Section 9 -A (2) was filed by the aforesaid Shiv Dulare before the Consolidation Officer thereby claiming ownership of the land in dispute on the strength of adverse possession since the time of the aforesaid Puttu Khan. The claim was allowed by the Consolidation Officer by means of order dated 30.06.1980. 7. Against the order dated 30.06.1980 passed by the Consolidation Officer, an appeal was preferred by the petitioners before the Asstistant Settlement Officer, Consolidation, Barabanki, which came to be allowed by means of order dated 24.08.1981 thereby holding the possession of the opposite parties to be permissive and not adverse. 8. 7. Against the order dated 30.06.1980 passed by the Consolidation Officer, an appeal was preferred by the petitioners before the Asstistant Settlement Officer, Consolidation, Barabanki, which came to be allowed by means of order dated 24.08.1981 thereby holding the possession of the opposite parties to be permissive and not adverse. 8. The respondents preferred a Revision against the order dated 24.08.1981 passed by the Assistant Settlement Officer Consolidation which came to allowed and the order dated 30.06.1980 passed by the Consolidation Officer was upheld while the order dated 24.08.1981 passed by the Assistant Settlement Officer Consolidation was set aside. 9. The above named Shiv Dulare also filed a Suit under Section 229 -B/209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in the year 1967 claiming title to the property on the basis of adverse possession. However, the aforesaid Suit came to be abated on 28.08.1968 on account of non-substitution of the defendant Ismail. 10. The petitioners also filed a Suit under Section 209 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 against Shiv Dulare on 11.06.1971 which came to be decreed in their favour vide order dated 29.09.1972. Feeling aggrieved, Shiv Dulare preferred an appeal before the Commissioner, Faizabad Division, Faizabad in the year, 1975 but the same was abated, as the village was brought under consolidation operation. 11. Laxmi Shankar the Opp. Party No. 1 is the grandson of Shri Shiv Dulare while Prem Narayan and Jai Narayan Opposite Parties No. 2 and 3 are the sons of Shiv Dulare. 12. Heard Shri Ashok Kumar Verma, leaned counsel for the petitioner and Shri Repu Daman Shahi, learned counsel for the private opposite parties and Shri Badrish Kumar Tripathi, learned Additional Chief Standing Counsel for the State-opposite party and perused the record. 13. The submission of learned counsel for the petitioners is that on account of the aforesaid order dated 28.08.1968 passed in Suit filed by Shiv Dulare under Section 229 -B/209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 claiming title to the property on the basis of adverse possession, which came to be abated on account of non-substitution of the defendant Ismail, the said claim of Shiv Dulare on the basis of adverse possession stands barred in view of the provisions of Order XXII Rule 9 of the CPC. A specific plea in this regard has been taken by the petitioners in Paragraph No. 9 of the writ petition and have brought on record the copy of order dated 28.08.1968 passed in Case No. 110/16 of 67-68 “Shiv Dularey vs. Ismail and others” along with their Rejoinder Affidavit dated 22.02.2024 14. The Opposite Parties, in Paragraph No. 16 of their counter affidavit, have not addressed the aforesaid specific averment made by the petitioners and have given a vague reply. 15. In support of his contention that in the wake of the first Suit having been abated the second Suit for the same relief was not maintainable and was barred by the provisions of Order XXII Rule 9(1) of the Code of Civil Procedure, the learned counsel for the petitioner has placed reliance upon the judgment passed by this Court in the case of “ Kalloo Khan @ Rahmat Khan and others vs. Bachcha Babu Khan and others ” reported in 2012(115) RD 489 . 16. It has further been submitted on behalf of the Petitioners that the statements of Shiv Dulare, in the three proceedings i.e. mutation proceedings, recorded on 24.05.1967 (Annexure RA-2/SRA 2/ SRA 3) in Suit under section 229 B/209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 recorded on 11.04.1968, (Annexure RA-3) and in another Suit under section 229 B/209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 recorded on 29.09.1972 (Annexure RA-4) it has been admitted by him that his possession was permissive as he was permitted by Puttu to cultivate. It has also been stated that Krishveer Singh was the original tenant and Puttu was Adhivasi of the land by whom it was given to him to do cultivation as such his possession cannot be adverse to Puttu Khan and the same was, rather, permissive. 17. It is also contended by the learned counsel for the petitioners that the consolidation authorities have acted erroneously in holding the possession of Shiv Dularey from 1364 F by ignoring the Khasra entries and oral evidence including his admission which clearly established that the possession of Shiv Dularey was permissive, and he was dispossessed several times as such the continuity of possession was broken. 18. 18. The counsel for the petitioner has placed reliance upon another judgement as reported in 2013 (120) RD 337 “ Girish Chandra Singh and others vs. Sheo Nath and others ” to support his contention that the burden of proof lies on the person who claims adverse possession. He has further contended that mere long possession cannot satisfy the requirement of adverse possession. 19. The relevant paragraphs of the aforesaid judgement are being reproduced below: “…………19. Adverse possession is a plea to usurp title over immoveable property of another/others which otherwise a claimant does not possess. Its successful claim would mean that real owner shall be denuded of his title and the same would stand conferred upon the claimant. Pleadings, thus, are of utmost importance in order to claim a right founded on adverse possession. They have to be very clear and emphatic and to the extent of covering every necessary ingredient to satisfy the claim of adverse possession. No one can take advantage of default on the part of other side but has to set up his case on his own, failing which it is he, who has to suffer. Since the claim based on adverse possession results in defeating the very right/title of an otherwise rightful person, law is very strict in this regard. It needs a thorough and minute enquiry into the claim of the person, who asserts title on the basis of adverse possession. 20. Pleadings are necessary. Recently, the Apex Court has considered in detail the various authorities on the question of adverse possession in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, [ (2009) 16 SCC 517 : AIR 2009 SC 103 : 2009 (106) RD 784 (9C).] and in para 18 observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 21. The Court also referred to its earlier decision in D.N. Venkatarayappa v. State of Karnataka, [ (1997) 7 SCC 567 .] observing: “Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession.” 22. In D.N. Venkatarayappa (supra), the Court emphasized the importance of pleading as also the pre requisites of plea of adverse possession and said: “3…. What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the latter allowed the former, without any let or hindrance, to remain in possession and enjoyment of the property adverse to the interest of the true owner until the expiry of the prescribed period. The classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario.” “… ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.” “apart from the actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession.” “A person who under the bona fide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession.” “… one of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up title hostile to the title of the true owner.” “…there is not even a whisper in the evidence of the first petitioner with regard to the claim of adverse possession set up by the petitioners. It is not stated by the petitioners that they have been incontinuous and uninterrupted possession of the lands in question.” “But, the crucial facts to constitute adverse possession have not been pleaded. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant’s possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. Thereby, the appellant’s possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The Counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant.” “Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession” “…person, who comes into possession under colour of title from the original grantee if he intends to claim adverse possession as against the State, must disclaim his title and plead his hostile claim to the knowledge of the State and the State had not taken any action thereon within the prescribed period.” “5…. in claiming adverse possession certain pleas have to be made such as when there is a derivative title as in the present case, if the appellants intend to plead adverse possession as against the State, they must disclaim their title and plead this hostile claim to the knowledge of the State and that the State had not taken any action within the prescribed period, it is only in those circumstances the appellants; possession would become adverse. There is no material to that effect in the present case. Therefore, we are of the view that there is no substance in any of the contentions advanced on behalf of the appellants.” 20. The petitioners have filed a consolidated list of Para-A 71 and A 80 of Land Records Manual (RA 5) which contains the extract of A 80 w.e.f. 1361 fasli to 1372 fasli. Therefore, we are of the view that there is no substance in any of the contentions advanced on behalf of the appellants.” 20. The petitioners have filed a consolidated list of Para-A 71 and A 80 of Land Records Manual (RA 5) which contains the extract of A 80 w.e.f. 1361 fasli to 1372 fasli. Their submission is that it is only in the extract of 1365 fasli where date and diary number has been mentioned but in the rest of the years from 1366 fasli to 1372 fasli no date and diary number has been mentioned to show that the recorded tenant Puttu or his heirs were served with notices of PA 10 as such merely because in 1364 fasli there was no provision for issuing PA 10 in the Land Records Manual in 1364 fasli, in the absence of reference of PA 10, the khasra extracts cannot be relied specifically when the claim on such entries stood barred in view of the suit filed by Shiv Dulare Section 229 B/209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 which was abated and barred in view of provisions of Order XXII Rule 9 of CPC. While placing reliance upon the aforesaid judgment the petitioners submit that the procedure prescribed under Law Records Manual for recording the possession and with due respect no such procedure is adopted as regards the khasra extracts. The further contention is that at present the petitioners are in peaceful possession and as no document has been filed on behalf of opposite parties after 1372 fasli. 21. The submission made by the learned counsel for the opposite parties is that Shiv Dulare (the predecessor in interest of the contesting opposite parties), was a Shikmi Kashtkar (sub-tenant) as per Section 47(4) of UP Tenancy Act 1939 who became Sirdar under Section 19 (vii) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 on the day of vesting i.e. 01.07.1952. 22. His further contention is that the possession of the opposite parties was confirmed by all the three orders i.e. (Annexure No. 1, 2 and 3). The Consolidation Officer as well as Deputy Director of Consolidation recorded findings confirming their adverse possession. 23. 22. His further contention is that the possession of the opposite parties was confirmed by all the three orders i.e. (Annexure No. 1, 2 and 3). The Consolidation Officer as well as Deputy Director of Consolidation recorded findings confirming their adverse possession. 23. It has also been submitted on behalf of the opposite parties that the order passed in proceeding under Section 145 of CrPC also confirms their possession over the land and that the petitioners have admitted before the Assistant Settlement Officer that they had no possession over the land in dispute. 24. The learned counsel for the Opposite Parties has placed reliance upon the following judgments i. Dharm Devi Vs DDC 1976 SCC online ALD 259 ii. Gurudwara Sahib vs Gram Panchayat Village Sirthala and Another. (2014) 1 SCC 669 25. The first authority relied upon by the learned counsel for the Opposite Parties Dharam Devi v. Deputy Director of Consolidation, Allahabad, 1976 SCC OnLine All 259: (1976) 2 ALR 747 is not attracted in the case at hand. In the said case, the court held that the documents which are voidable can be cancelled by the Civil Court only and the consolidation authorities have no jurisdiction to ignore those documents, instead they are under a duty to give effect to those documents till they are cancelled by a competent court of law. While following a Supreme Court judgment in Gorakh Nath Dubey v. Hari Narain Singh (1973) 2 SCC 535 and a Full Bench judgment of this court in Ram Nath v. Munna 1976 R.D. 220 the court was of the view that if a sale deed or document of transfer is void, the consolidation authorities have jurisdiction to disregard the same while determining title in respect of the land but if the document is voidable then the consolidation authorities have no jurisdiction to disregard the sale deed, in that event the civil court is the only forum to adjudicate upon the validity of the sale deed and the consolidation authorities are bound to give effect to the sale-deed. 26. 26. The learned counsel for the Opposite Parties has also placed reliance upon judgment passed by the Hon’ble Apex Court in the case of “Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another ”, reported in (2014) 1 SCC 669 , wherein the Hon’ble Supreme Court has held that the possession cannot be disturbed except by due process of law and it would be open to the appellant to plead in defence that the appellant had become the owner of property by adverse possession. The judgement is based on the popular proposition no declaration can be sought on the basis of adverse possession in as much as adverse possession can be used as a shield and not as a sword. 27. However, the view expressed in the aforesaid judgement has undergone considerable changes in recent judgements by the Hon’ble Apex Court. In the case of Ravinder Kaur Grewal v. Manjit Kaur , reported in (2019) 8 SCC 72 9 a larger bench of the Hon’ble Supreme Court, while overruling the judgment passed in “Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another”, reported in (2014) 1 SCC 669 held that there is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The relevant paragraphs of the aforesaid judgement are being reproduced below: “………49. The conclusion reached by the High Court is based on an inferential process because of the language used in the IIIrd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column 3 of Schedule of the Act nowhere suggests that suit cannot be filed by the plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute. The large number of decisions of this Court and various other decisions of the Privy Council, High Courts and of English courts which have been discussed by us and observations made in Halsbury’s Laws based on various decisions indicate that suit can be filed by the plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of the Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurdwara Sahib v. Gram Panchayat Village Sirthala [Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 : (2014) 1 SCC (Civ) 630] and of the Punjab and Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary. 50. In Gurdwara Sahib v. Gram Panchayat Village Sirthala [Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 : (2014) 1 SCC (Civ) 630] proposition was not disputed. A decision based upon concession cannot be treated as precedent as has been held by this Court in State of Rajasthan v. Mahaveer Oil Industries [State of Rajasthan v. Mahaveer Oil Industries, (1999) 4 SCC 357 ] , Director of Settlements, A.P. v. M.R. Apparao [Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638] and Uptron (India) Ltd. v. Shammi Bhan [Uptron (India) Ltd. v. Shammi Bhan, (1998) 6 SCC 538 : 1998 SCC (L&S) 1601] . Though, it appears that there was some expression of opinion since the Court observed that there cannot be any quarrel that plea of adverse possession cannot be taken by a plaintiff. The fact remains that the proposition was not disputed and no argument to the contrary had been raised, as such there was no decision on the aforesaid aspect, only an observation was made as to proposition of law, which is palpably incorrect. 51. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation in Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff. 52. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession. 53. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re- entry by the owner or subsequent acknowledgment of his rights. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re- entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated. ……… ………… 62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. 63. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. 63. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession. 64. Resultantly, we hold that decisions of Gurdwara Sahib v. Gram Panchayat Village Sirthala [Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 : (2014) 1 SCC (Civ) 630] and decision relying on it in State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj [State of Uttarakhand v Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579 : (2017) 4 SCC (Civ) 671] and Dharampal v. Punjab Wakf Board [Dharampal v. Punjab Wakf Board, (2018) 11 SCC 449 : (2018) 5 SCC (Civ) 148] cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title byadverse possession can be taken by the plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on the aforesaid basis in case of infringement of any rights of a plaintiff…….” 28. It is clearly borne out from the record that the statements of Shiv Dulare in the three proceedings i.e. mutation proceedings recorded on 24.05.1967 (Annexure RA-2/SRA 2/ SRA 3) in suit under Section 229 B/209 UPZA & LR Act recorded on 11.04.1968, (Annexure RA-3) and in another suit under Section 229 B/209 UPZA & LR Act recorded on 29.09.1972 (Annexure RA-4) it has been admitted by him that his possession was permissive as he was permitted by Puttu to cultivate. It has also been stated that Krishveer Singh was the original tenant and Puttu was Adhivasi of the land by whom it was given to him to cultivate as such his possession cannot be adverse to Puttu Khan and the same was, rather, permissive. It has also been stated that Krishveer Singh was the original tenant and Puttu was Adhivasi of the land by whom it was given to him to cultivate as such his possession cannot be adverse to Puttu Khan and the same was, rather, permissive. The relevant portions of the statements made by Shiv Dulare in mutation proceedings recorded on 24.05.1967; in Suit under Section 229 B/209 Uttar Pradesh Zamindari Abolition & Land Reforms Act recorded on 11.04.1968 and in another suit under Section 229 B/209 Uttar Pradesh Zamindari Abolition & Land Reforms Act recorded on 29.09.1972 are being extracted below: From the aforesaid facts it becomes abundantly clear that Shiv Dularey came into possession of the land lawfully under the permission or consent given by Puttu Khan and, therefore, the plea of adverse possession is not available to the opposite parties. The pleas of adverse possession and coming into possession under the permission by Puttu Khan are mutually inconsistent with the law and does not permit a plaintiff to resort to. 29. The Hon’ble Supreme Court in Narasamma v. A. Krishnappa, (2020) 15 SCC 218 while dealing with an identical question observed as under: “…..34. The aforesaid judgment in turn relied upon the judgment in Mohan Lal [Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639 ] , which observed in para 4 as under: (SCC pp. 640-41) “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.” 37. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.” 37. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1 ]. ……………. ……………….. 38. We may also note another judicial pronouncement in Ram Nagina Rai v. Deo Kumar Rai [Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324 : (2018) 5 SCC (Civ) 722] dealing with a similar factual matrix i.e. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time. 39. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date………..” 30. Regarding the contention of the learned counsel for the petitioners that the procedure as provided under the Land Records Manual in respect of the possession has not been followed and further the entries are not proved, is concerned, it would be relevant to go through the judgement passed by this Court in the case of Sheo Mangal Lal v. Deputy Director of Consolidation, 1979 AWC 37 . The relevant paragraphs of this judgement are being extracted below: “……..2. Learned counsel for the petitioner has urged that the Deputy Director of Consolidation has erroneously held the entries of possession in favour of respondent No. 4 in accordance with the prescribed rules. He urged that the entries were made in contravention to paragraph A-80 and paragraph A-81 of U.P. Land Records Manual. Learned counsel for the petitioner has urged that the Deputy Director of Consolidation has erroneously held the entries of possession in favour of respondent No. 4 in accordance with the prescribed rules. He urged that the entries were made in contravention to paragraph A-80 and paragraph A-81 of U.P. Land Records Manual. According to the learned counsel, requirement under the aforesaid provisions is that when an entry of possession is made in favour of any person, it is necessary to issue a copy of such entry to the tenure holder whose name is entered in the main column and to obtain signatures of the tenant on the copy of the list retained by supervisor Kanungo. 3. He has further urged that neither a copy of the entry was given to the petitioners nor their signatures were obtained, hence the entry was wholly fictitious and in contravention to the aforesaid rules. Learned counsel for the petitioners has also urged that copy of the entry was also not issued to the Pradhan of the Gaon Sabha as required under the aforesaid provision of rules hence also the entries were wholly fictitious and could not be taken into consideration. As the entries were in contravention of law hence the findings of the Deputy Director of Consolidation based on those entries are wholly erroneous and there is a manifest error of law in the judgment of the Deputy Director of Consolidation. 5. After considering the arguments of the learned counsel for the parties, I find force in the contention of the learned counsel for the petitioners. In order to appreciate the contention, it is necessary to reproduce paragraphs A-80 and A-81 of U.P. Land Records Manual applicable at the relevant time. It is true that the provisions of paragraphs A-80 and A- 81 were amended from time to time and were also either deleted or introduced but the provision which was applicable at the time of making the entries of 1369 F. was as follows:— “A-80.—After each kharif and rabi partal of a village the lekhpal shall prepare in triplicate a consolidated list of the entries mentioned in paragraphs A-71 to A-73 in the following form: Form P-A 10 1 2 3 4 5 6 7 Khasra of Plots Are a Entry in Col. 4 of the Khasra Entry in Col 5 of the Khasra Entry in the remarks column of the Khasra Verificati on report by the Superviso r Kanungo Remarks A-81. List how to be utilized—(1) The Lekhpal shall fill in first five columns and hand over a copy of the list to the chairman of the land management committee. He shall also prepare extracts from the list and issue to the person or persons recorded in cols. 3, 4 and 5 thereof or to their heirs if the person or persons concerned have died, obtaining their signature in the copy of the list retained by him. Another copy shall be sent to the Supervisor Kanungo. (2) The Supervisor Kanungo shall deal with the list in the manner prescribed in sub-paragraph (iv) of paragraph 423. He shall also ensure that extracts have been issued in all the cases and signatures of the recipients obtained. If he finds that an extract has not been issued in any case, he shall get it issued in his presence. This is important so that the persons affected if he is aggrieved may apply for correction of papers to the Tahsildar or the Sub-Divisional Officer as the case may be.” 31. Insofar as the contention of the learned counsel for the petitioners that the consolidation authorities have acted illegally by wrongly taking into account the period of possession of the opposite parties during which the litigation between the parties was going on, is concerned; the Court finds that the period of limitation for a Suit under Section 209 prescribed at Serial No.30 of Appendix III referred in Rule 338 of the U.P. Zamindari Abolition & Land Reforms Rules 1952 was initially two years. Thereafter it underwent amendments, firstly, on 09.04.1955, when the period of limitation was extended to three years from the date of vesting. It was further amended and extended to six years from the first of July following the date of occupation vide Notification dated 27.03.1959 and thereafter it was again amended, vide Notification dated 14.11.1971, and extended to 12 years from the first day of July following the date of occupation. 32. The finding recorded by the Deputy Director of Consolidation insofar as he disagrees with the Settlement Officer Consolidation with regard to the nature of possession of the opposite parties appears to be erroneous and perverse. 32. The finding recorded by the Deputy Director of Consolidation insofar as he disagrees with the Settlement Officer Consolidation with regard to the nature of possession of the opposite parties appears to be erroneous and perverse. The relevant paragraph of the judgement is being extracted below: 33. A perusal of the above findings recorded by the Deputy Director of Consolidation would reveal that the same is both vague and contradictory. On one hand, he states that any possession not in accordance with the law would qualify as adverse possession. On the other hand, he notes that the provision for making an entry in Form PA-10 was implemented only after 1365 F, while the Revisionists/Opposite Parties entry appears in the Khasra of 1364 F. In essence, the DDC is attempting to have best of both worlds. He gives the Opposite Parties/Revisionists the advantage of their entry not being made in accordance with law, specifically, without an entry in Form PA-10 as required by the Uttar Pradesh Land Records Manual or without issuing notice to the main tenant on the basis that the procedure was not in effect at that time. Simultaneously, he supports their claim of adverse possession on the ground of its not being in accordance with law. 34. The finding recorded by the DDC to the effect that there is no evidence to show that the possession of the Opposite Parties/Revisionist is with the consent of the tenure holder (Objected in by the dependents as it is ¼,slk lk{; ugha gS ftlls tkfgj gks lds fd fuxjkuhdrkZ dk dCtk vafdr vuqefr ls gS½ is also perverse as Shiv Dulare himself admitted in his own statements that he was permitted by Puttu to cultivate the land as he had taken ill and was unable to cultivate the same. The statements of Shiv Dulare in the three proceedings i.e. mutation proceedings recorded on 24.05.1967 (Annexure RA-2/SRA 2/ SRA 3) in suit under Section 229 B/209 UPZA & LR Act recorded on 11.04.1968, (Annexure RA-3) and in another suit under Section 229 B/209 UPZA & LR Act recorded on 29.09.1972 (Annexure RA-4) were available on record of the courts below wherein it has been admitted by him that his possession was permissive as he was permitted by Puttu to cultivate. It has also been stated that Krishveer Singh was the original tenant and Puttu was Adhivasi of the land by whom it was given to him to cultivate as such his possession cannot be adverse to Puttu Khan and the same was, rather, permissive. 35. It is trite in law that admission is substantive evidence of the fact admitted and the same is capable of forming foundation of the rights of the parties. An admission must be unambiguous, clear and precise. To constitute admission in law, statement should be ex facie unequivocal and categorical and not vague. The apex court in Nagindas Ramdas v. Dalpatram Ichharam , (1974) 1 SCC 242. “7. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of he facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong. 36. When an admission is proved, though it is not conclusive evidence, the facts contained in it may reasonably be presumed to be true, until the admission is explained satisfactorily and the presumption is rebutted. They can be shown to be wrong. 36. When an admission is proved, though it is not conclusive evidence, the facts contained in it may reasonably be presumed to be true, until the admission is explained satisfactorily and the presumption is rebutted. It is well-settled that admission is the best piece of evidence and decisive of the matter, provided it is clear, certain and unambiguous and not vitiated by fraud, undue influence or coercion and should not have been extracted by misrepresentation or extending false promises. In the instant case Shiv Dularey has not denied or disputed his statements made in earlier Suits and proceedings. It is also well-settled in law that admissions made by a party in a previous proceeding may be used against him in other Suits, but such admissions cannot be regarded as conclusive, and it is open to the other party to show that it is not true. 37. It is also very significant to note that in his statements quoted above, Shiv Dulare, besides admitting that Puttu had permitted him to cultivate the land and to pay the land revenue to the State as he was not keeping well, has also admitted that the land was owned by Krishnaveer Singh and Puttu used to cultivate him and later became Adhivasi. From this statement it is abundantly clear that the Shiv Dulare’s claim of title through adverse possession was not maintainable against Puttu as he, admittedly, was not the owner of the land. 38. In order to perfect title through adverse possession the possession must be hostile to the true owner for more than 12 years and mere long and continues possession by itself cannot constitute adverse possession if it was permissive. In the case of “ Mohd. Ali vs. Jagadish Kalita and others , reported in (2004) 1 SCC 271 the Hon’ble Apex Court has held that long and continuous possession by itself, it is trite, would not constitute adverse possession. In the case of L.N. Aswathama v. P. Prakash reported in (2009) 13 SCC 229 the Hon’ble Supreme Court observed as under: “17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide P. Periasami v. P. Periathambi [ (1995) 6 SCC 523 ] , Md. Mohammad Ali v. Jagadish Kalita [(2004) 1 SCC 271] and P.T. Munichikkanna Reddy v. Revamma [ (2007) 6 SCC 59 ]. 18. We are however of the viewthat the decision in Mohan Lal [ (1996) 1 SCC 639 ] relied on by the plaintiffs is inapplicable, as the defendant therein had pleaded that he was in possession, having obtained possession in part-performance of a sale agreement. As the defendant therein admitted that he came into possession lawfully under an agreement of sale and continued to remain in such possession, there was no adverse possession. This case is different, as the defendant did not contend that he entered possession under or through the plaintiffs. His case was that he was in possession as a tenant under Gowramma from 1962 and he became the owner by purchasing the plot from Gowramma in 1985. He alternatively contended that if Gowramma did not have title and consequently his claim based on title was rejected, then having regard to the fact that he had been in possession by setting up title in Gowramma and later in himself, his possession was hostile to the true owner; and if he was able to make out such hostile possession continued for more than 12 years, he could claim to have perfected his title by adverse possession. There is considerable force in the contention of the defendant provided he is able to establish adverse possession for more than 12 years. There is considerable force in the contention of the defendant provided he is able to establish adverse possession for more than 12 years. When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of the plaintiffs that the plea of adverse possession is not available to the defendant is rejected.” 39. It has also been argued on behalf of the petitioners that since the entries in the revenue papers have not been prepared by following the procedure prescribed under the Uttar Pradesh Land Records Manual and PA-10 notice having not been served on the main tenant the same are of no avail. 40. In the case of Mohd. Raza v. Deputy Director of Consolidation ; reported in 1997 RD 276 it has been held that the entries in the revenue papers not prepared by following the procedure prescribed under the Uttar radesh Land Records Manual and PA-10 notice was not served on the main tenant, such entries are of no evidentiary value and would not confer any right. 41. In the case of Mangu v. D.D.C , 2010 SCC OnLine All 3233 this Court observed as under:— “I have very carefully gone through the orders passed by the respondent nos. 2 and 3 but 1 find that that although the respondent nos. 2 and 1 have given good reasons for holding khasra entries could not be relied upon as they were not made in accordance with the provisions of Land Record Manual and without issuing notice of P.A. form 10, neither the Settlement Officer Consolidation nor the Deputy Director Consolidation after recording the above finding examined the oral evidence adduced by the petitioner. In Shiva Nandan v. Board of Revenue U.P. 1980 RD 73 it has been held that the adverse possession can be proved by documentary evidence or by oral evidence. In Ram Naresh v. Deputy Director Consolidation 1978 RD 118, it has been held that oral evidence of possession can not be ignored particularly while reversing a finding. In Shiva Nandan v. Board of Revenue U.P. 1980 RD 73 it has been held that the adverse possession can be proved by documentary evidence or by oral evidence. In Ram Naresh v. Deputy Director Consolidation 1978 RD 118, it has been held that oral evidence of possession can not be ignored particularly while reversing a finding. In (2007) 102 RD 240 Bhaua v. Deputy Director of Consolidation, Banda this court again held that the revisional court could not have ignored the oral evidence supporting possession for more than 30 years. In (2007) 102 RD 101 Birju v. Deputy Director of Consolidation Gorkahpur, this court again took a similar view. Thus law is settled that the adverse possession can be proved by both oral as well as documentary evidence and in case this is not done the order ignoring the oral evidence particularly when reversing a finding can not be sustained. A perusal of the order of the Consolidation Officer shows that while holding the claim of 11 the petitioner over the land in dispute on the basis of adverse possession he had relied upon documentary as well as oral evidence. But the respondent No. 2 totally failed to take into consideration the oral evidence of the petitioner while reversing the finding recorded by the Consolidation Officer in his order holding that petitioner had perfected his title over the land in dispute on the basis of adverse possession.” 42. However, in the case at hand the entry in Khasra is said to have been made in the 1364 F whereas the provision for issuing notice to the main tenant came to be introduced in the year 1365 F vide notification dated 18.01.1958. 43. However, in the case at hand the entry in Khasra is said to have been made in the 1364 F whereas the provision for issuing notice to the main tenant came to be introduced in the year 1365 F vide notification dated 18.01.1958. 43. In Heshamullah v. U.P. Sanchalak Chakbandi , 2019 SCC OnLine All 8141 this Court observed as under:— “……Most importantly the D.D.C. has been persuaded by the fact that the entry in the revenue record pertaining to 1375F allegedly for the first time in favour of Abdul Majid was not in accordance with the Land Record Manual as the requisite diary number at P.A.10 entry are not mentioned nor the process prescribed under the Rules had been followed, but, he failed to appreciate the fact that if the name of Abdul Majid was existing as a Class 9 entry in Khasra 1363F then at that time the provisions contained in paragraph A-80 and A-81 of Chapter A-V of the Land Records Manual had not come into force and were inserted only subsequently vide notification dated 18.1.1958 nor did he consider as to what would be the effect of this aspect of the matter if there was a Khasra of 1363 F on record with a Class 9 entry in favour of petitioner’s father Abdul Majid…….” 44. In so far as the contention of the learned counsel for the petitioners that the same relief in the second Suit is not maintainable being barred by the provisions of Order XXII Rule 9(1) of the Code of Civil Procedure is concerned, this Court is of the view that the provisions of Order XXII Rule 9(1) of the Code of Civil Procedure is express and unequivocal which mandates that where a Suit abates or is dismissed under the Order XXII Rule 9(1) of the C.P.C., no fresh suit shall be brought on the same cause of action. Similar view has been taken by this Court in the case of Kalloo Khan @ Rahmat Khan and others (supra) wherein it has been held that once the Suit filed by the father of the petitioner was dismissed as abated the second Suit by the petitioners for the same relief was not maintainable. 45. Similar view has been taken by this Court in the case of Kalloo Khan @ Rahmat Khan and others (supra) wherein it has been held that once the Suit filed by the father of the petitioner was dismissed as abated the second Suit by the petitioners for the same relief was not maintainable. 45. Upon due consideration of facts of the instant case, this Court is of the considered opinion that in view of the settled legal position that the possession, in order to constitute an adverse possession, must be “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous, the possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner, it must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period, ( Karnataka Board of Wakf vs. Union of India 2004 (10) SCC 779 (Para 11), the case of the opposite parties claiming the benefit of adverse possession is found unsustainable. Since the burden lies upon the party claiming title by way of adverse possession to prove actual, exclusive, open, uninterrupted possession for 12 years and in the instant case, the petitioners have made out a title of the property while the opposite parties have not been able to make out a case of adverse possession. The court of Consolidation Officer and the Director of Consolidation did not examine any of these aspects in the factual matrix of the present case as well as settled law on the subject as have been discussed herein-above. The impugned order dated 30.06.1980 passed by the Consolidation Officer and the order dated 06.11.1982 passed by the Director of Consolidation cannot, therefore, be sustained and are liable to be set aside. 46. Accordingly, the writ petition stands allowed . The impugned order dated 30.06.1980 passed by the Consolidation Officer, Barabanki and the order dated 06.11.1982 passed by the Director of Consolidation in Revision under section 48 of the U.P. Consolidation of Holdings Act, 1953 are hereby set aside and the order dated 24.08.1981 passed by the Assistant Settlement Officer, Consolidation, Barabanki is restored. 47. Parties to bear their own costs.