Radheyshayam vs Board of Revenue

Ram Surat Ram (Maurya), J.—Heard Sri Anil Kumar Mishra, for the petitioners and Sri Shailendra Singh along with Sri R.K. Pandey, for the contesting respondent. The writ petition has been filed against the orders of Assistant Collector, dated 8.2.2010, Commissioner, dated 7.10.2011 and Board of Revenue, U.P., dated 11.9.2014, passed in suit under section 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the ''Act'').

The dispute relates to plots 41 (area 0-16-0 bigha), 288-E (area 1-8-0 bigha), 294-Ka (area 4-2-0 bigha) and 295 (area 0-15-0 bigha) of village Satauhan, tahsil Ghorawal, district Sonebhadra. Biggan (father of petitioners-1 to 3) filed a suit (registered as Suit No. 15 of 1986-87) under section 229-B of the Act, on 10.11.1986, for declaring him and his brother Jiggan as bhumidhar with transferable right of the land in dispute. The plaint case was that the plaintiff and Jiggan were in continuous cultivatory possession of the land in dispute for last 20 years and acquired sirdari and thereafter bhumidhari right over it. Their names were also recorded in column 9 of the khatauni and in column 5 of the khasra. The suit was contested by Taulan (respondent-5). He filed his written statement and denied the plaint allegations. It was stated by the respondent that he was recorded tenure holder and had been in possession of the land in dispute. The petitioners were never in possession over it. In collusion with revenue authorities forged entries in column 9 of the khatauni and well as in column 5 of the khasra were made in favour of the petitioners.

Assistant Collector (respondent-3) tried the suit. The petitioners filed khasras of the year 1380 F, 1382 F, 1383 F, 1384 F, 1385 F, 1386 F, 1388 F, 1389 F, 1390 F and 1391 F and khatauni 1369 F and 1388-1389 F. The petitioners examined Radheshyam (petitioner-1) as witness. The respondent filed khatauni 1390 F, 1395 F and khasra 1397 F and 1399 F and examined himself and one witness Bhulan. Earlier Assistant Collector by his judgment dated 26.5.1997 decreed the suit. However, judgment dated 26.5.1997 was set aside by Additional Commissioner by judgment dated 18.7.2006 in the appeal filed by the respondent and the case was remanded to Assistant Collector to record a finding as to whether entries in column 9 of the khatauni as well as in column 5 of the khasra were made after following the procedure provided under the law. After remand, Assistant Collector by order dated 8.2.2010 found that the petitioners have failed to prove their continuous possession for 12 years over the land in dispute. After remand, the petitioners could not adduce any evidence to prove his plaint case and dismissed the suit.

The petitioners filed an appeal (registered as Appeal No. 47 of 2010) from the aforesaid order. The appeal was heard by Commissioner (respondents), who by his judgment dated 7.10.2011 affirmed the findings of trial Court and dismissed the appeal. The petitioners filed a second appeal (registered as Second Appeal No. 2 of 2011-12) from the aforesaid order, which was dismissed by Board of Revenue, U.P. by his judgment dated 11.9.2014. Hence this writ petition has been filed.

The Counsel for the petitioners submitted that the father of the petitioners were in cultivatory possession of the land in dispute for last 20 years. In the year 1369 F, the village was placed in record operation and the Assistant Record Officer, after issuing notice to the respondent and verifying the possession on spot, recorded their names in column 9 of the khatauni. Entry made during Record Operation carries presumption of its correctness under section 57 of U.P. Land Revenue Act, 1901. In order to prove 12 years continuous possession, the petitioners filed copies of khasra 1380 F to 1991 F. For the year 1381 F and 1387 F, khasra were not prepared, however continuous possession was proved from oral evidence but it has been illegally ignored by the Courts below. The respondent in his oral statement has admitted that he had knowledge of the entries of possession of the petitioners made in column 9 of khatauni and column 5 of the khasra as such the entries were made in accordance with law. Judgments of the Courts below are illegal and liable to be set aside.

I have considered the arguments of the Counsel for the parties and examined the record. So far as entry of the year 1369 F is concerned, single year entry of adverse possession in column 9 of the khatauni does not confer any right. Even in the year 1369 F, three years continuous possession was necessary in order to confer sirdari right under section 210 of U.P. Act No. 1 of 1951. There is no evidence to show that this entry was continuous at that time as after 1369 F, khasra of 1380 F was filed by the petitioners.

The petitioners filed khasras of the year 1380 F, 1382 F, 1383 F, 1384 F, 1385 F, 1386 F, 1388 F, 1389 F, 1390 F and 1391 F and khatauni 1369 F and 1381-1385 F. Paragraph-A-80 of Land Records Manual requires, the Lekhpal to maintain a diary and record the date of partal, plot number and name of the person found in possession at the time of partal. Paragraph A-81-A requires to give information to Chairman, Land Management Committee and recorded tenure holders, if during partal, a person other than recorded tenure holder was found in possession. Copy of the notice be submitted to Revenue Inspector who shall verify the possession before recording in column 5 of khasra. This Court in hallo v. Deputy Director of Consolidation, 1994 RD 156 and Sabha Sunder, Ram Narayan and Surya Narayan Vs. Dy. Director of Consolidation, Ramanand, Shiva Nand and State of U.P., , relying upon the earlier judgments, held that if the entries of possession has been made without following the procedure under the law then it has no evidentiary value.

The Commissioner, in his remand order dated 18.7.2006, directed the Trial Court to examine as to whether the entries of possession made in favour of the petitioners were made after following the procedure under the law. Trial Court found that after remand the petitioners could not adduce any evidence to show that entries were made in accordance with law. Khasras filed by the petitioners do not contain date, serial number of diary of Lekhpal and service of notice in PA-10. The Counsel for the petitioners repeatedly argued that as in his statement, Taulan has admitted that entries of possession made by Lekhpal were in his knowledge as such entries could not have been ignored. I have gone through the statement of Taulan, who has stated that Lekhpal used to make entry of possession of the petitioners, taking money from them. No inference can be drawn on its basis that Lekhpal during partal found possession of the petitioners and recorded as such in his diary and issued notice in PA 10 to the land holder and Chairman, Land Management Committee and it was verified by Revenue Inspector before making entry in khasra. Thus compliance of the provision of law was not proved. Burden of proof was upon the petitioners to prove aforesaid facts by adducing evidence in this respect. The burden was not discharged by them. Last part of the statement, in which reply to the leading question put in cross-examination was given by Taulan, cannot be read alone. Statement has to be read as a whole. Findings of fact recorded by the Revenue Courts after appreciation of the evidence on record, cannot be said to be illegal. This Court in exercise of writ jurisdiction cannot re-appreciate the evidence and record a finding of fact contrary to Courts below. In view of the aforesaid discussion, there is no merit in the writ petition and it is dismissed.