Chhedi Singh vs Deputy Director of Consolidation, Banda and others

Mrs. Poonam Srivastav, J.—Heard learned Counsels for the parties.

The orders impugned in the instant writ petition are dated 21.1.2003 passed by the Deputy Director Consolidation, Banda and 19.12.1980 passed by the Settlement Officer Consolidation, Banda.

The petitioner Chhedi Singh along with his two brothers Ram Dayal Singh and Deen Dayal Singh claims to be in possession over plot No. 281/1, 281/2, 283, 494, 537/1 and 537/2 since before Zamindari Abolition. Further the basis of their claim is hostile possession to the original tenure holder Jageshwar Singh, father of contesting respondents. The petitioner further claims that their names were entered in revenue records in Varg9 by virtue of an order of Naib Tehsildar dated 14.2.1955 in 1362 Fasli. This entry was well within the knowledge of father of the respondents. An application for expunging their names was allowed and name of the petitioner was expunged over plot No. 537/1. However, entry in Varg9 continued on rest of the plots till the notification under section 4 of U.P.C.H. Act (hereinafter referred to as the Act) was made sometimes in the year 1978. The petitioner further claims that despite their names were expunged in 1365 Fasli but their names again came to be recorded in 1376 Fasli. Two brothers of the petitioner Ram Dayal Singh and Deen Dayal Sing died issueless much before the notification for consolidation operation and consequently the petitioner claims that he perfected his right on the basis of adverse possession.

After notification under section 4 of the Act on 22.7.1978, the petitioner preferred an objection under section 9A of the Act for expunging the name of recorded tenure holder, father of respondent Nos. 4 to 7, on the ground that the petitioner has matured his title under section 210 U.P.Z.A. and L.R. Act. Objection preferred by the petitioner was contested by father of respondent Nos. 4 to 7 claiming that the petitioner had given the disputed land on Batai as the petitioner was a distant relation. Evidence was led by both sides and Consolidation Officer allowed the objection vide order dated 22.4.1980. The petitioner was declared as Bhumidhar and name of Jageshwar Singh was expunged from revenue records. Two appeals were preferred, one by the petitioner and another by Jageshwar Singh. Both the appeals were decided jointly by the Settlement Officer Consolidation, Banda vide order dated 19.12.1980. Appeal of contesting respondents was allowed and petitioner''s appeal was dismissed. This order was once again challenged by the petitioner in Revision under section 48 of the Act before the Deputy Director Consolidation, Banda which also stood dismissed vide order dated 21.1.2003.

I have heard the respective Counsels at length and also gone through the record. The claim of the petitioner is solely on the basis of Varg9 entry recorded in the year 1362 Fasli because of an alleged order of Naib Tehsildar, but there is nothing else to support the said order and thus does not stand substantiated. The petitioner no doubt filed Khasra of 1373 Fasli to 1375 Fasli. Statement of one witness Raju was recorded whereas respondent Jageshwar Singh also gave his oral statement in rebuttal before the Consolidation Officer denying claim of the petitioner. Two Courts below have recorded their specific opinion that entry of Varg9 in the year 1362 Fasli was made by red ink but neither any serial number nor date of the order or the identify of the signatory of the said order is disclosed. This entry was not even verified. Previous Khasra was also not produced in support of petitioner''s contention to corroborate continuous uninterrupted and hostile possession to the original tenure holders whose names stood recorded in the basic year. In the circumstances, this itself makes Varg9 entry very doubtful.

From perusal of order of the Consolidation Officer while discussing oral evidence, it is clear that evidence of contesting respondents was what he had stated in his reply to the objections under section 9A(2) of the Act. He had stated right in the beginning that the disputed plots were given to Chhedi Singh petitioner on Batai for sometime but thereafter the petitioner is not in cultivatory possession. The respondent had given on Batai because he was living at Jabalpur. This statement for the reasons best known to the Consolidation Officer was not accepted. On the contrary, the Consolidation Officer concluded that Jageshwar had knowledge about the entry of Varg9 and still nothing was done on his part to oust the petitioner, as such he had perfected his right. The findings of the Consolidation Officer have categorically been set aside by the Settlement Officer Consolidation and Deputy Director Consolidation. The Settlement Officer Consolidation has discussed in detail as well as taken into consideration the statement of Chhedi Singh which itself is contrary to his stand taken before the consolidation authorities. He admits that Jageshwar Singh is living at Jabalpur since 810 years, therefore, his occupation was by his consent and at the relevant time when the consolidation operation started, it was liable to be treated as hostile. This contradictory statement was not trustworthy and, therefore, the Settlement Officer Consolidation reversed the findings. The Deputy Director Consolidation has also clearly stated while taking into consideration the judgment of the Settlement Officer Consolidation as well as Consolidation Officer that no right can be claimed by a person on the basis of adverse possession if the provisions of Land Record Manual A80, A81 and 102C and para 423 has not been followed.

In the case of Shiva Shanker v. Deputy Director of Consolidation, Allahabad, Camp at Basti and others, 1984 RD 172 (HC) it was held that whenever an entry is made in Varg9, it means that the person is occupying the land without consent of the persons entered in column 4 of the Khasra. Paras A80 and A81 provide for issue of notice to the persons affected by the entries in Varg9 and intention of these paras is evident and thereafter notice of P.A. 10 has to be issued so that the persons affected by any such entry in Varg9 can take steps to rectify the mistake. Only if after notice no objection is taken, then presumption of adverse possession can be arrived at.

In the case of Sheo Mangal Lal v. Deputy Director Consolidation, 1979 RD 68 similar view was followed as well as in the case of Ram Shakal and another v. State of U.P., 1987 RD 264 a similar question cropped up for consideration.

In view of what has been stated above, the order passed by the Consolidation Officer appears to be absolutely erroneous. The findings of the Courts below are not open for reassessment of evidence. No good ground for interference is made out. The petitioner has miserably failed to substantiate its case. There is no merit in the writ petition. It is accordingly dismissed.