Jeet Singh and Others vs D.D.C. and Others

Hon''ble Prakash Krishna,J.

Plot Nos. 346/2, 345, 344, 343, 346/1 and 340 situate in village Chausana, Jadeed, Pargana Bidauli, Tehsil Kairana, District Muzaffar Nagar are the disputed property in the present writ petition which is directed against the orders dated 16th of December, 2009 passed by the Deputy Director of Consolidation, Muzaffarnagar in two connected revision Nos. 610 and 613, which were preferred against the orders dated 8.1.2008 and two orders dated 8th of June, 2009 passed by the Settlement Officer of Consolidation and partly against the order dated 4th of October, 1988 passed by the Consolidation Officer.

The background facts may be noticed in brief.

The aforestated plots were recorded in the name of Fazar Ali, the father of the Respondent Nos. 4, 5 and 6 herein. The Petitioners namely Panna, Gatti, Kantoo and Antoo sons of Munshi, Janeshwar and Teloo sons of phoola filed objections claiming to be Bhumidhars on the basis of long possession, u/s 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act in respect of the aforestated plots. The Petitioners are sons of Panna, Meghpal, Gatti, Munshi, Janeshwar etc.. A number of objections were filed by the Petitioners almost on identical pleas. In reply, the father of the contesting Respondents herein prayed that the names of Panna and Ors. be deleted from these plots as none of them has any thing to do with the plots in question. Fazar Ali claimed himself as Bhumidhar.

The parties led evidence in support of their respective cases. The Petitioners filed Khataunis and examined two witnesses namely Panna Lal, PW/1 and Lakhan, PW/2 to prove their long standing continuous possession over the disputed plots. On behalf of Fazar Ali his son Minnu and Khairudeen son of Roora were examined.

The Consolidation Officer on the basis of the material on record allowed the objections of the Petitioners in part. The case of the Petitioners was accepted in respect of plot Nos. 346/2, 345 and 344. It was ordered that the names of the Petitioners be recorded after expunging the name of Fazar Ali. In respect of other plots the case of the Petitioners was rejected and it was ordered that their names be expunged from the revenue record. Both the parties carried the matter by separate appeals before the Settlement Officer of Consolidation who allowed the appeal No. 501832/1388 preferred by Fazar Ali, by the order dated 25th of January, 2008. The other appeal preferred by the Petitioners herein was dismissed in default. It was subsequently restored, again dismissed in default on 26.6.1997 and was restored. Thereafter, it was again dismissed in default on 28.4.1998. Restoration application was filed which was dismissed in default on 10.9.1998. Restoration application to restoration was dismissed on 25.8.2004. Again, restoration application was filed which was dismissed on 8th of June, 2009. Challenging the aforestated orders two revisions were preferred which have been dismissed by the impugned order.

Heard Sri Pradeep kumar Rai, learned Counsel for the Petitioners and Sri D.K. Singh, learned Counsel for the contesting Respondents. The only point urged by the learned Counsel for the parties is whether on the facts and circumstances of the case, the Petitioners have perfected their title over the disputed plots by way of adverse possession i.e. by remaining in occupation of the disputed plots for over thirty years as alleged by them.

Sri P.K. Rai, learned Counsel for the Petitioners, submits that the names of Petitioners were recorded in Bandobast Khatauni of 1365 Fasli. This being so, the fact that the names of Petitioners were recorded in the revenue record without following the prescribed procedure or in other words without giving notice to the tenure holder is irrelevant. Submission is that the findings recorded by the Courts below that the Petitioners cannot derive any benefit from the revenue entries to prove their adverse possession as those entries were not made by following the prescribed procedure is legally unsustainable in view of the fact that in the Khatauni of 1365 Fasli which is a Bandobast Khatauni, their names were found to be recorded. Elaborating the argument, the learned Counsel for the Petitioners referred Sections 32, 53, 54, 57 of the Land Revenue Act in support of his contention that the service of notice which is mandatory requirement before recording the name of a trespasser in the revenue record as prescribed in the Land Record Manual shall be deemed to have been complied with.

In reply, Sri D.K. Singh, learned Counsel for the Respondents, submits that in view of the findings returned by all the three consolidation courts that the names of the Petitioners were not recorded after giving notice to the tenure holder as required under the Land Record Mannual, the revenue entries in favour of the Petitioners are of no value. The Petitioners have failed to prove their possession over the disputed plots and findings in this regard being finding of fact cannot be interfered with under Article 226 of the Constitution of India. Plea of bar as provided u/s 49 of the Consolidation of Holdings Act was also put forward.

Considered the respective submissions of the learned Counsel for the parties and perused the record. Before proceeding further, it may be noticed that there appears no dispute between the parties that Fazar Ali, father of the contesting Respondents herein is the original tenure holder of the plots in question. The case of the Petitioners since the very beginning is that they have unauthorizedly taken the possession of the disputed plots by use of force and are ploughing the land in dispute to the exclusion of the tenure holder Fazar Ali. The Consolidation Officer accepted the plea of the Petitioners partially in respect of three plots only. The Settlement Officer of Consolidation and the Deputy Director of Consolidation as well, have found that the Petitioners have failed to prove their possession over the disputed plots.

Para A-81 of the Land Record Manual provides that after each Kharif and Rabi Partal of the village the Lekhpal shall prepare a list and from that list prepare extracts which would be issued to the person or persons recorded in columns 3, 4 and 5 of the Khasra The Supervisor Qanungo shall deal with the list as provided in sub-para (iv) 423. He shall 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. A copy of the list with the Lekhpal containing the signatures of the recipients of the extracts shall be attached to the Khasra concerned and filed with the Registrar Qanungo along with it on or before July 31 of the following year. The Lekhpal is also required to send extracts from column 1 to 7 of Form PA-11-A to the Chairman, Land Management Committee. Para 102-C states that if the Lekhpal fails to comply with any of the provisions contained in paras A-80 and A-81, the entries in the remarks column will not be deemed to have been made in the discharge of the official duty. It would thus appear that whenever there is a change in possession, the list of changes in entries prepared by the Lekhpal in para A-80 is not only to be sent to the Chairman of the Land Management Committee and the Supervisor Qaunungo but he has also to issue extracts to the persons affected.

In Mohd. Raza Vs. Deputy Director of Consolidation and Another, it has been held that the entries in the revenue papers in favour of the Petitioner therein, were not prepared by following the procedure prescribed under Para A-80, A- 81 and para 423(5) of the U.P. Land Records Manual and P.A. 10 notices were not served on the main tenant Respondent No. 2. Such entries are of no evidentiary value and would not confer any right on the Petitioner nor they can be of any assistance leading to the extinguishment of the right of the tenure-holder. Similar view has been taken in Gurumukh Singh v. Deputy Director of Consolidation, 1998 JCLR 1 463 wherein, it has been held that as the Petitioner therein did not file copy of Khasra which could not show that in the remarks column the date of the Partal and the date of issuance of P.A.-10 was made and the diary of the Lekhpal was also not summoned, no reliance upon these entries to prove adverse possession can be placed. The above view has been reiterated in Sadhu Saran and another v. Assistant Director of Consolidation, Gorakhpur and Ors. 2003 (94) R.D. 535.

The learned Counsel for the Petitioners does not dispute the above proposition of law but what he submits is that the said proposition of law will not be applicable to the facts of the present case as the names of Petitioners were recorded in 1365 Fasli which relates to the settlement year. The whole emphasis is that the Khatauni of 1365 Fasli being settlement Khatauni, in substance, will override the mandatory provisions referred to above.

Reference was made to Chapter IV, titled as "Revision of Maps and Records" of U.P. Land Revenue Act, 1901. The title of the Chapter is suggestive of the fact that the said Chapter relates to the revision of map and records in pursuance of the notification issued by the State Government to that effect. On bringing any local area under the survey operations of the Record Officer who may be appointed by the State Government in this behalf, the Record Officer shall prepare for each village therein a map and field book, as provided under Sections 49 and 52 thereof. Section 53 deals with preparation of new records of rights. Section 54 on which much emphasis was laid provides that the Record Officer for revising the map and records shall carry out survey, map correction, field to field Partal and test verification of current annual register in accordance with the procedure prescribed. Right to file objection to any person interested in the land having grievance with regard to the clerical mistake and errors has been provided for under Sub-section (4) of Section 54 of the Act. If any such objection is filed, Naib Tehsildar is duty bound to correct the mistake and settle the dispute by conciliation between the parties appearing before him. Section 57 which deals with presumption as to entries is reproduced below:

Presumption as to entries.-"All entries in the record-of-rights prepared in accordance with the provisions of this Chapter shall be presumed to be true until the contrary is proved; and all decisions under this Chapter in cases of dispute shall, subject to the provisions of Sub-section (3) of Section 40, be binding on all Revenue Courts in respect of the subject-matter of such disputes; but no such entry or decision shall affect the right of any person to claim and establish in the Civil Court any interest in land which requires to be recorded in the registers "prescribed by Section 32.

It was submitted on the basis of the aforesaid provisions as also Section 32 which deals with "Record of Rights" that the procedure as prescribed under the land record manual for recording the names of trespasser need not be followed. Reference was made to a decision of this Court in Mohd. Habib v. Deputy Director of Consolidation, 1976 (2) RD 257.

It is difficult to agree with the aforesaid submission of the learned Counsel for the Petitioners. The argument proceeds by ignoring the fact that there are two kinds of revenue records. One is Record of Rights popularly known as Khatauni and another is Record of Possession popularly known as Khasra.

Khatauni is a register of all persons cultivating or otherwise occupying land in a village as prescribed according to Uttar Pradesh Land Revenue Rules. It is prepared in Form P-VI. It is a document prepared as part of record-of-right. It contains entries regarding ownership, cultivation and various rights in land.

Khasra is a register of harvest inspections (parhtaal). The Lekhpal conducts the field harvest inspections in the month of October, February & April, wherein he records facts regarding crop grown, soil classification, cultivable capacity of the cultivators. The first six monthly inspection starting from Ist October is called as "Khariff" parhtaal while the second commencing from Ist February is called "Rabi" parhtaal. In the month of April the "Zaid" parhtaal is done.

In the light of the above, if we examine Chapter IV of Land Record Manual, it would show that it relates to the revision of "Maps and Khatauni" and not of "Khasra".

A conjoint reading of Sections 50, 51, 52 and 53 would show that a Record Officer under the settlement operation under Chapter IV is required to settle the dispute concerning boundaries. He is required to prepare for each village a map and field book, vide Section 52. u/s 53 he may prepare new record of rights. Record of right as per Section 32 consists of register of all persons cultivating or otherwise occupying the land specifying the particulars required by Section 55. Section 55 says that nature and class of his tenure as determined by the U.P. Tenancy Act, rent payable by the tenant and any other condition of tenure which the State Government may prescribe by record be recorded. These provisions relate only to the revision and correction of record of rights and maps and have no concern with preparation of record of possession i.e. Khasra.

In the case of Mohd. Habib (supra) it was pointed out that the Paragraph A-102-C of the Land Records Manual was introduced by the government order dated 25th of February, 1958 which corresponds 1365 Fasli. In the case on hand the entry is of 1365 Fasli. In the said very case it has been noticed that the Paragraph A-102-C was introduced as an additional provision to lay stress upon the necessity of complying of direction of Para A-80. The relevant paragraph from the judgment of Mohd. Habib (supra) is reproduced below:

All that the Additional provision did was to stress the necessity of complying with the direction of Para A-80. Therefore, the provision for issue of form P.A. 10 cannot be said to have commenced from 1365 Fasli, as the learned Counsel for the Respondent would have me believe and para A-80, as it stood before being amended by Notification No. 4674/1-H-1378-H-60 dated July 3, 1965 did not contain any words which could warrant the presumption that the directions contained therein were not mandatory or could be ignored at will. Therefore, while the provisions under para A-102-C made their enforcement very rigid, their non-compliance in the previous years cannot go unnoticed......................

After the above observations, the Court has proceeded to hold that it was perfectly open to the Deputy Director of Consolidation to decide what weight should be given to the entries, but should not have held the entries of no legal effect whatsoever.

A close reading of the judgment of Mohd. Habib (supra) would show that there the entries of possession for the years from 1362 Fasli to 1372 Fasli, were up for consideration, which is not so here. Therefore, the said decision is distinguishable on facts and is not applicable. Firstly, in that case Khasra entires were up for consideration which is not so here. The entry relied upon in the present case is Khatauni year of 1365 Fasli. Secondly, the entries were for a period of ten years from 1362 Fasli to 1372. In the case on hand, there is solitary entry of 1365 Fasli. What value an entry of 1365 Fasli in settlement Khatauni would carry, was not up for consideration there. The said decision, therefore, does not advance the case of the Petitioners any further.

Then, reliance was placed on Suraj Nath Pandey and Anr. v. Deputy Director of Consolidation and others, an unreported judgement in Civil Misc. Writ petition No. 4724 of 1969 decided on 24th of September, 1971. In this case, the entries of possession from 1362 to 1371 Fasli were up for consideration. The Deputy Director of Consolidation held that these revenue entries could not be rejected on the ground of non compliance of Para A-102-C of Land Record Manual in as much as the Rule requiring the mentioning of details was not introduced in 1362 Fasli. The High Court confirmed the judgment of the Deputy Director of Consolidation on the finding that there may be some doubt about the entries subsequent to 1365 Fasli if the entries from 1362 to 1365 Fasli were accepted as genuine and believed by the Deputy Director of Consolidation, no exception could be taken to it if the father of Respondent Nos. 4 and 5 were held to be in possession on the basis of those entries from 1362 to 1365 Fasli. It was quite sufficient to enable him to mature title by adverse possession. The judgment proceeds on the footing that even if the entries from 1367 Fasli onwards are to be discarded on the ground that they were in defiance of requirements of Paragraph A-102-C of Land Record Manual the Respondents therein would still be Sirdar of the plots in dispute as the heirs of their father had already acquired the right of Sirdar by adverse possession. It would show that the proposition which is being canvassed in the case on hand was not in issue there. The observations made in the said judgment should be read in the facts and context of that case. No ratio germane for the present case was laid down therein.

As already stated hereinabove, the Petitioners could produce a solitary revenue entry of the year 1965 Fasli and that too is in respect of record of right and not in respect of Khasra entry. The finding of fact recorded by the Courts below is that the Petitioners have failed to prove their continuous adverse possession for a period of six years. They have failed to prove their case with regard to the possession either through oral or documentary evidence.

For acquisition of rights by adverse possession, the claimant has to prove that he is in actual and cultivatory possession over the land of other without his consent and against the provisions of law. What is necessary is that the possession of such person should be actual, open and hostile. The burden to prove the actual possession is on the person who alleges it. On an analysis of the evidence oral and documentary, the Courts below have come to the conclusion that the Petitioners have failed to prove their actual, open and hostile possession for the prescribed period. No benefit could be drawn from Khatauni 1365 Fasli wherein the quality of agricultural land is recorded. Khatauni is not indicative of the possession of any person. It is Khasra entry which is indicative of possession, and a Khasra entry regarding possession can be made only after following the procedure as prescribed in the Land Record Manual.

Before parting with the case it may be placed on record that the finding of the consolidation courts, that the entry of possession of the Petitioners in the Khasra was made without giving any notice to the Respondent tenure-holder, was not challenged before me at the time of hearing.

The conduct of the Petitioners is also blameworthy. Their appeal was dismissed in default on 26.6.1997 but was restored subsequently. Second time it was dismissed in default on 28.4.1998. Restoration application filed on 7.9.1998 was dismissed in default on 10.9.1998. The second restoration application dated 30.8.2000 was dismissed in default on 25.8.2004. After four years another restoration application was filed on 20.10.2008 which was dismissed on 8.6.2009 after hearing. The Petitioners got the proceedings withheld before the appellate court for more than a decade unnecessarily.

Viewed as above, I find no substance in the argument of the learned Counsel for the Petitioners that in view of the settlement Khatauni of 1365 Fasli, the non compliance of Para A-80 and A-81 of Land Record Manual is of no consequence. Any other point was not pressed.

There is no merit in the writ petition. The writ petition is hereby dismissed with cost of Rs. 10,000/- (Rupees Ten Thousand only).