Lalloo and Others vs Deputy Director of Consolidation and Others

B.L. Yadav, J.—By this petition under Article 226 of the Constitution of India, the prayer is that the order dated 9-7-93 passed by the Deputy Director of Consolidation allowing the revision filed by Respondent nos. 4 to 6, u/s 48 or the U.P. Consolidation of Holdings Act. (for short the Act), setting aside, the order of the Settlement Officer (Consolidation) dated 4-5-87, maintaining the order of the Consolidation Officer dated 27 -2-79 may be quashed by issuing a writ of certiorari.

The portrayal of essential facts need no detain much, as the facts of the case are almost admitted. Proceedings u/s 9-A(2) of the Act commenced in respect of plot No. 831/2 area 45 and plot No. 835/2 area 1.11 which were recorded in the basic year in Varg 9 in the name of Ghanshyam father of Respondent nos. 4 to 6. An objection was filed before the Assistant Consolidation Officer by one Nawal Kishore, Respondent No. 5 claiming sirdari rights on the basis of adverse possession, alleging that the entry in the basic year in the name of Petitioners as main tenants, bhumidhar/sirdar, was fictitious. The Petitioners filed a reply contesting the claim of Respondent nos. 4 to 6 alleging that Respondent nos. 4 to 6 have not been in possession and the eutries in the remark column of Varg 9 were not prepared in accordance with law, nor the contesting Respondents 4 to 6 were ever in possession and they manipulated the entries, which deserve to be expugned and their objection deserve to be dismissed.

The Consolidation Officer, by this order dated 27-2-1979 (Annexure-1), decided the case in favour of Respondent nos. 4 to 6. Thereafter the petitioner''s appeal u/s 11(1) of the Act was allowed by the Assistant Settlement Officer (Consolidation) by his order dated 17-11-79 (Annexure-2), and the revision preferred by the Respondent No. 4 to 6 were allowed by the impugned order, against which the present petition has been filed.

In this case counter affidavit has been filed on behalf of Respondent nos. 4 to 6, and a suggestion was made by both the parties that without waiting for the rejoinder affidavit, the petition itself be decided on merits. Consequently I proceed to decide the writ petition on merits.

Sri S. S. Tyagi, learned counsel for the Petitioners urged that the basic year entries in the name of Respondent nos 4 to 6 were fictitious, inasmuch as No. P. A. 10 notices were prepared as contemplated under Para A-80 of the U.P. Land Records Manual (compendiously the Manual), nor these notices were . served on the main tenant, the Petitioners 1 and 2, or their father Kishori Lal, nor on Petitioners nos. 3 & 4, nor P. A. 10 notices "were served on the Chairman of the Land Management Committee as required by Paras A-81 and A-81-A of the Manual, hence the entires in the remarks column in the names of the contesting Respondents 4 to 6 have no probative value. The oral evidence relied upon by the Asstt. Settlement Officer (Consolidation) have also not been considered but petitioners'' rent receipts and irrigation slips filed by them prove their continuous possession, and that the possession of Respondent nos. 4 to 6, in any case was not continuous, inasmuch as after the year 1379 Fasli there was no Khasra extract filed, and similarly for 1371 Fasli and no Khasra extract was filed by Respondent nos. 4 to 6 snowing their possession. This is clear by a perusal of Annexure 41 at page 28 and Annexure-4 at page 52 of the paper book. There is no presumption of continuity of possession in favour of a trespasser. The contesting Respondents could not mature adverse possession unless they were in continuous adverse possession for more than the prescribed period.

Sri K. D. Tripathi, learned counsel appearing on behalf of Respondent nos. 4 to 6, who has filed his caveat, urged that P. A. 10 notices were correctly prepared and the procedure prescribed was followed, and notices were served on the main tenant and also on the Chairman of the Land Management Committee, that the possession of the contesting Respondents was continuous and they have matured sirdari rights and later on bhumidhari rights, and that the writ petition is devoid of merits and the same deserves to be dismissed.

Having heard the learned counsel for the parties, the points for determination are as to whether the entries in Varg 9 as shown in the basic year were prepared according to the procedure prescribed; and whether Respondent nos. 4 to 6 were in continuous adverse possession forgmere than the prescribed period so as to mature sirdari rights.

As regards the first point, suffice it to say that in view of para A-102C (3) of the Manual, the P.A. 10 notices indicating the commencement of adverse possession on the spot have to be served on the main tenant and also on the Chairman of (he Land Management Committee, and the notices itee�f had to be prepared in red ink after giving date and other particule prescribed. A perusal of the impugned order indicates that notices were not prepared or served as required by Paras A-80, A-8I and A-81-A of the Manual, From a perusal, of the order of the Consolidation Officer (Annexure-1 to the petition), who decided the case in favour of the contesting Respondents, it is manifest that a finding has been recorded that in 1361 Fasli in respect of P.A. 10 notice, date and number etc. were given. But there is no finding that the P.A. 10 notice was served on the main tenant, the Petitioners, or on Kishori Lal, (he father of Petitioners 1 & 2,- rather the Consolidation Officer has held that the entires in the name of contesting Respondents or in the name of their father were correct and they were in possession. Whereas the Assistant Settlement Officer (Consolidation) in appeal has held that to establish possession otherwise than in accordance with law, issuance of P.A. 10 notices was pre-requisite and a copy of the same must have been served on the main tenant and also on the Pradhan of the Gaon Sabha. But this compliance was not made. It is accordingly obvious that neither P.A. 10 notices were prepared in accordance with law, nor they were served on the main tenant, hence such entries have no evidentiary value. ( Sonawati and Others Vs. Sri Ram and Another, .

The burden to prove that entries showing adverse possession in favour Of the contesting Respondents were made in accordance with law, was on them. Dut they failed to lead any evidence to discharge the burden. On the basis of such entries neither the possession or adverse possession of the contesting Respondents could be proved or assumed nor any right accrues in their favour (see Jamuna Prasad Vs. The Deputy Director of Consolidation and Others, ; Sheo Mangal Lal Vs. Deputy Director of Consolidation and Others, ). The Deputy Director of Consolidation did not set aside these findings, and just arbitrary allowed the revision preferred by the Respondents.

10 As regards the next question, suffice it to say that the appellate authority was conscious about the irrigation slips and receipt filed by the Petitioners and it has taken into account these irrigation slips and receipts fot payment of irrigation, and also the entires in the revenue papers. The oral evidence was also considered, as is obvious from a perusal of page 52 of the paper book that the statement of Kishori Lal, father of Petitioners 1 & "2 was considered. Similarly other oral evidence was also considered

Not only that the entries in favour of the person claiming adverse possession has to be made in accordance with the procedure prescribed law, but such entries must be continuous. In case there is any break in adverse possession, there is no presumption of continuity of adverse possession. From ape�usa� of the order of the (sic) Officer, it is dear that m 1379 Fasli ''Khasra extract was famished, and similarly in 1371 Fasli also no fehasra extract was filed by the contesting Respondents, which shows that continuity of possession came to an end. Consequently it is obvious that the contesting Respondents claiming to be in adverse possession, were not in continuous possession. Once the adverse possession of a person comes to an end, it-means ,he has to prove his fresh adverse possession. As. there is no presumption of continuity of possession in favour of the persons claiming title on the basis of adverse possession, consequently it could not be said that the possession of the contesting Respondents who claimed to be in possession Otherwise than in accordance with law, was continuous. From a perusal of -the. appellate Court judgment and also from the evidence available, it is evident that, the Petitioners continued in possession, as is clear from a number of irrigation slips and the rent receipts and the receipts for payment of (sic). No such receipt or evidence has been filed by the contesting Respondents. Consequently, ''I do not find any substance in the submissions of the learned counsel for the Respondents that they (Respondent No. 4 to 6) matured sirdari/bhumidhari rights by remaining in adverse possession for more than the prescribed period.

In view of the discussion made above, it is obvious that neither P. A. 10 notices were prepared in accordance with law, nor they were served on the main tenant or the land holder. In case P. A. 10 notices were not prepared in accordance with law and it was not served on the main tenant the Petitioners or their father and the Chairman the Land Management Committee, the adverse possession could not be (sic) to commence in favour of the person claiming title on the basis of such possession. As the entires in the name of the contesting Respondents were prepared not in accordance with law, and as they failed to file" any irrigation skip or rent receipt''s etc., consequently, they could not be deemed to be in continuous possessie so as to mature sirdari rights u/s 210 of the U.P. Z.A. and L.R. Act. I am accordingly of the view that the Deputy Director of Consolidation has committed manifest error of law apparent on the face of record in allowing the revision.

In view of the premises aforesaid, the present petition succeeds and is allowed. The impugned judgment and order dated 9-7-93, passed by tac Deputy Director of Consolidation, Jhanshi is quashed. The Petitioners would be recorded over the plots in dispute as the main tenants or bhumidhars, and the entires in the name of contesting Respondents 4 to 6 would be expunged. There shall, however, be no order as to costs.