Khursheed and Others vs State of U.P. and Others

Ram Surat Ram (Maurya), J.—Heard Sri Arvind Kumar Singh, for the petitioners and Standing Counsel for the respondents. The writ petition has been filed against the order of Deputy Director of Consolidation dated 2.5.2003 and Settlement Officer Consolidation dated 20.8.2001 and Consolidation Officer dated 14.2.2001, passed in title proceedings under U.P. Consolidation of Holdings Act-1953 (hereinafter referred to as the ''Act'').

During Consolidation, the petitioners filed an objection (registered as Case No. 321), u/s 9A of the Act, for recording their names over the land in dispute as bhumidhar with transferable right. It has been stated by the petitioners that they have been in possession over the land in dispute since before 1365-F and by way of adverse possession their title over the land in dispute has been matured. The objection was tried by the Consolidation Officer, Rampur who by order dated 14.2.2001, held that the petitioners have been in continuous possession over the land in dispute since 1365-F, khatauni of the year, 1365-F, 1369-F, 1370-1372-F and 1373-F, 1375-F have been weeded out. As such, how and from what period the names of the petitioners had been discontinued was not proved. It is also not proved that from whose order the entry of the possession of the petitioners has been deleted from the record. Since the possession of the petitioners has been admitted from the witnesses of Gaon Sabha also, accordingly, the names of the petitioners were directed to be recorded in Column III of the khatauni, over the land in dispute.

The petitioners filed an appeal from the aforesaid order, claiming that their names be recorded as bhumidhar with transferable rights instead of asami. The appeal was heard by Settlement Officer, Consolidation who by order dated 20.8.2001 held that Consolidation Officer has illegally directed for recording the names of the petitioners over the land in dispute. Accordingly, the order of Consolidation Officer dated 14.2.2001 was set aside by order dated 20.8.2001. The petitioners filed a revision (registered as Revision No. 206/515 of 2002-03) from the aforesaid order which has been dismissed by order dated 2.5.2003 passed by Deputy Director of Consolidation. Hence this writ petition has been filed.

The Stamp Reporter has reported that the writ petition has been filed with the delay of 10 years 84 days. The petitioners, in paragraph 17 of the writ petition, nave stated that the Counsel appearing before the Revisional Court has not intimated him about the order dated 2.5.2003, timely. When the earlier Counsel Mohd. Hassan expired then the petitioners made query through another Counsel and they came to know that the revision was dismissed. Thereafter the petitioners applied for certified copies of the impugned orders on 30.9.2013 and the writ petition was filed on 3.10.2013.

Since the revision was filed by the petitioners themselves, as such, in the normal practice before the Subordinate Court, it is expected that petitioners might have been attending every dates fixed in the revision. The explanation given by the petitioners of the inordinate delay of more than 10 years is not liable to be accepted. In case the petitioners themselves had not taken any care about 10 years then there was no occasion for them to make enquiry in September 2013 in respect of the order. However, as this Court is exercising the writ jurisdiction, accordingly, the merit of the case is also examined.

In paragraph 8 of the writ petition, the petitioners have stated that they had filed copies of the khasra from the year 1362-F to prove possession over the land in dispute. Neither before this Court nor before the Consolidation Court, the petitioners disclosed their title over the land in dispute. The case of the petitioners is based upon possession over the land in dispute, since 1362-F. Statement of Khursheed (petitioner-1) as recorded before the Consolidation Officer has been filed as Annexure-5 to the writ petition, in which he has stated that the petitioners'' ancestors had cultivated the banjar land and made it as cultivable. The land in dispute is the land of river bed. Thus on the basis of the statement of the petitioners itself it is clear that the land in dispute is land of State of U.P. and the petitioners claimed their possession over it from 1362-F, i.e. after the date of vesting.

Section 210 of U.P. Act No. 1 of 1951 has been amended by U.P. Act No. 35 of 1976 with retrospective effect. Due to amendment of section 210, adverse possession cannot confer any title over the State land. Accordingly, on the basis of possession of the petitioners no right can accrue to them over the State land. The land in dispute is land of river bed and included u/s 132 of U.P. Act No. 1 of 1951, as such, on the basis of the possession, the petitioners cannot claim for recording his name over the land in dispute as bhumidhar.

The Counsel for the petitioners relied upon the judgment of this Court in Bhillar and Others Vs. Deputy Director Consolidation and Others, , and contended that on the basis of long possession the petitioners have acquired bhumidhar right over the land in dispute. In this case possession was claimed since 1288-F, i.e. from long before the date of vesting. The case law relied upon by the Counsel for the petitioners has no application in this case. The writ petition has no merit and is dismissed.