Shambhu Dayal vs Joint Director of Consolidation and others

The dispute is with regard to land in Khata No. 325 situate in Village Uncha Islamabad, Post Kumhauti, Pargana Kishni, Tehsil Bhongaon, District Mainpuri.

In the basic year, the aforesaid khata was recorded in the name of the petitioner. The Gaon Sabha respondent no. 3 herein filed an objection before the Assistant Consolidation Officer claiming the right and title in the aforesaid khata on the ground that the name of the petitioner was recorded on the basis of an ex parte judgment and order dated 20th December, 1965 passed by Judicial Officer in a case filed u/s 229-B of the U.P.Z.A. & L.R. Act, which has been set aside and therefore, continuance of the entry of the petitioner''s name in the revenue record is wrong.

The petitioner in reply, submitted that the disputed land was settled with him by the Zamindar before abolition of zamindari and he has been in occupation thereof since then. Earlier, he was paying land revenue to the Zamindar and thereafter, it is the State Government who is realizing the land revenue from him. It was claimed that he became Sirdar and Gaon Sabha has nothing to do with the land.

The parties led evidence oral and documentary in support of their respective cases.

The petitioner examined himself as also Shri Mahendra Pratap Singh and Shri Basidhar the then Lekhpal of the village. He also filed khasra 1364 F, khatauni of 1374 F and 1377 F. The Gaon Sabha examined one Shri Ram Shankar. The Consolidation Officer after considering all the material on record ordered that name of the petitioner be expunged from Khata No. 325 and thus, allowed the objection of the Gaon Sabha.

The matter was carried successfully in appeal by the petitioner before the Settlement Officer, Consolidation (the S.O.C.) who by the judgment and order dated 11th December, 1973 allowed the appeal and ordered for continuing the name of petitioner as Sirdar. The Gaon Sabha preferred a revision before the Joint Director of Consolidation who by the impugned order dated 8th September, 1978 allowed the revision and set aside the judgment and order of the S.O.C. and restored the order of the Assistant Consolidation Officer.

Heard Shri K.S. Chauhan, learned counsel for the petitioner and Dr. Hari Nath Tripathi, learned special counsel for the Gaon Sabha.

The main thrust of the argument of the learned counsel for the petitioner is that the revision was not maintainable as permission to file it was not obtained by the Land Management Committee. The permission which is on record is only with respect to contest the case. It was further submitted that the Joint Director of Consolidation while reversing the judgment of the S.O.C. has not met the reasoning given by the S.O.C. Elaborating the argument, it was submitted that the Joint Director of Consolidation has omitted to consider the oral evidence of the petitioner and as such, the order is vitiated.

In reply, learned counsel for the Gaon Sabha supports the impugned order and submits that the oral evidence was not of much relevance and substantial justice has been done by the impugned order. It was further submitted that the sole petitioner Shambhu Dayal has expired leaving behind no heir. A substitution application has been filed on the basis of a Will dated 20th September, 1992 which is forged and fabricated document. The substitution application was filed with considerable delay and the Will which has been relied upon, has not been established before a competent court of law. It would be travesty of justice if the order impugned in the present writ petition is set aside. At any rate, the property is now escheat and vest in the Gaon Sabha.

Considered the respective submissions of the learned counsel for the parties and perused the record referred by them.

Taking into consideration the first point, first with regard to the maintainability of the revision. Indisputably, from the very beginning, name of the petitioner over the disputed land is being questioned by the Gaon Sabha. The case of the Gaon Sabha is that property in dispute vests in it and the name of the petitioner was wrongly recorded.

It may be noted that very wide power has been conferred on the Joint Director of Consolidation u/s 48 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as ''the Act''). In addition to an application for revision by an aggrieved person, suo moto power also vests in the Joint Director of Consolidation to call for examine the record of any case decided or proceeding taken by any subordinate authority for the purposes of satisfying himself as to the legality of the proceeding: or as to correctness of the legality or propriety of any order other than an interlocutory order.

Reference can be made to para-20 of Sheo Nand and others vs. Joint Director of Consolidation, Allahabad and others, 2000 (2) A.W.C. 1276 (S.C.).

The Joint Director of Consolidation has noticed that there is a permission by the Land Management Committee to contest the case. This will also ipso facto include the permission to take appropriate proceeding by filing application or revision to safeguard the interest of Gaon Sabha. The said objection was rightly repelled by the Joint Director of Consolidation.

Coming to the merits of the case, a bare perusal of the three orders of the consolidation courts would show that it is admitted case of the parties that the name of the petitioner came to be recorded in pursuance of an ex parte order dated 20th December, 1965 of the Judicial Officer. Indisputably, the said order was set aside by the order dated 1st May, 1967.

The petitioner unsuccessfully challenged the order dated 1st May, 1967. The order dated 20th December 1965 having been set aside in the eyes of law, the order dated 20th December, 1965 became non est. Continuance of petitioner''s name in pursuance of non est order dated 20th December, 1965 evidently is wrong. It follows that presumption of correctness which is available to a recorded tenure holder in the revenue record, in the present case is rebutted. This part of the judgment was not disputed by the learned counsel for the petitioner. It leads to the conclusion that the recording of name of the petitioner in the revenue record was without any basis.

Now the question as to whether the petitioner has proved successfully that he has acquired sirdari right being in possession for a considerable period of time needs consideration.

At the very outset, it may be noted that even the Settlement Officer, Consolidation who had decided the case in favour of the petitioner, has noticed that the land in dispute was recorded after abolition of zamindari as banzar land meaning thereby the land in dispute after abolition of zamindari was Gaon Sabha property. The entry of banzar land continued and was wrongly expunged and the name of petitioner was added for the first time only on the basis of ex parte order dated 20th December, 1965, which was set aside on 1st May, 1967.

The judgment of the Settlement Officer, Consolidation holding in favour of the petitioner is based on eight revenue receipts, evidencing payment to Ex-Zamindar and few irrigation slips relating to 1363 and 1364 F. This is all, which the petitioner could produce in support of his case with regard to possession.

He tried to prove the revenue receipts by calling one Mahendra Pratap Singh who claims himself as Rent Collector of Ex-Zamindar, namely, Shri Sudhar Singh. A copy of his statement has been filed as annexure-R.A.-1 to the rejoinder affidavit. He has deposed that Exhibit D-3 & D-4, the two receipts were issued by him. Exhibit-D-1, D-2 & D-3 are relating to 1359 F and Exhibit-D-4 is with regard to 1358 F. Shri Mahendra Pratap Singh has stated that no lease deed or Patta was executed in favour of the petitioner Shambhu Dayal, in reply to the court''s question. He further stated that it was let out to Shambhu Dayal about 4-5 years prior to the abolition of zamindari. Evidently, there is no evidence of such letting before or after the abolition of zamindari.

The receipts which are on record are for two years, namely, 1358 F and 1359 F. Admittedly, no document was produced to show that Shri Mahendra Pratap Singh was authorized to issue any such receipts to any person nor he could produce any document to show that these receipts were issued in the ordinary course of business. He has stated that Shri Sudhar Singh was the Ex Zamindar who died about 50 years ago. Shri Mahendra Pratap Singh has disclosed his age as 58 years on the date of the statement. In the absence of any corroborative material such as counter foil or any evidence to show that Shri Mahendra Pratap Singh was authorized to collect the rent or issue receipts, these receipts are of little evidentiary value. The Settlement Officer, Consolidation has mechanically decided the case in favour of the petitioner without making any analysis of the statement of Shri Mahendra Pratap Singh or of the receipts. He proceeded on the footing that by appearance, these receipts are cold once. The said approach is obviously faulty. The burden was upon the petitioner to prove that the land in dispute was let out to him by the Ex Zamindar and he was in occupation of the disputed land on the date of commencement of the zamindari abolition or acquired sirdari right, which he failed to do so. Noticeably, there is no evidence that the petitioner''s name was recorded in 1356 F or 1359 F.

Taking the rent receipts on their face value, they are for two years i.e. 1358 F and 1359 F. The Settlement Officer, Consolidation was therefore, not justified in drawing the conclusion on the basis of these receipts that the petitioner was in occupation of the disputed land before the abolition of zamindari. These receipts are private documents and could be managed very easily. The land in dispute was admittedly recorded in the name of Gaon Sabha after abolition of zamindari. There is no answer as to why the petitioner did not take any step immediately after the abolition of zamindari for recording of his name. The zamindari was abolished on 1st July, 1952. The suit came to be filed sometime in the year 1965.

The other documentary evidence produced by the petitioner is certain irrigation slips. The irrigation slips were considered and rejected by the Joint Director of Consolidation on the ground that these receipts do not show the payment of any irrigation charges with respect to the land in dispute. No attempt was made in this regard to contradict or dispute the above finding of the Joint Director of Consolidation. Therefore, the petitioner cannot drive any benefit from the irrigation slips. The petitioner has not enclosed the copies of the irrigation slips to show otherwise along with the writ petition.

Taking into consideration the entire evidence on record which was examined with the help of the learned counsel for the parties, the finding recorded by the Joint Director of Consolidation cannot be said to be perverse in the sense that it is against the material on record or against the weigh of evidence, or is not based upon any evidence. The judgment of the Joint Director of Consolidation is based on correct appreciation of evidence on record.

The petitioner has not filed any document or evidence to show that the disputed land ever belonged to Ex-zamindar. He is claiming title through the Zamindar. In the absence of proof of title of Zamindari, the petitioner cannot succeed.

Before parting with the case, at the cost of repeattion, it may be noted that the name of the petitioner was wrongly recorded in the revenue record on the basis of a non existence order. Therefore, the petitioner was required to prove by cogent and reliable evidence his possession over the disputed land which he failed to do so. The Settlement Officer, Consolidation has noticed that the disputed plot is recorded as banzar land which vests in Gaon Sabha in the khatauni of 1372 F to 1374 F. This being so, a very heavy burden lay upon the petitioner to prove his case. The Assistant Consolidation Officer and the Joint Director of Consolidation both have discarded the documentary evidence led by the petitioner on the ground that they are manufactured documents. The oral evidence has been considered by me with help of the counsel for the parties. In this view of the matter, no useful purpose is going to be served by restoring the matter back to the Joint Director of Consolidation at this distance of time; the petitioner has expired leaving behind no heir in particular. Our legal system has always laid emphasis on value, weight and quality rather than quality, multiplicity or plurality of witness, as said by the Apex Court in Namdeo Vs. State of Maharashtra,

In the context of controversy, a passage from the decision of Apex Court, is reproduced below, which is a guiding factor in such matters from Mandal Revenue Officer Vs. Goundla Venkaiah and Another,

In this context, it is necessary to remember that it is well-nigh impossible for the State and its instrumentalities including the local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularised. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupant or land grabbers.

In State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., the Apex Court in paragraph-12 has laid down as follows:

So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy Vs. L. Lakshmi Reddy, adverted to the ordinary classical requirement?that it should be nec vi, nec clam, nec precario? that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus.

Before saying omega to the case, it may be noticed that an application on behalf of Suresh Chandra and seven others was filed for substitution of their names in place of the petitioner as the petitioner has died on 22nd December, 1992. The condonation of delay was sought on the ground that the deponent Shri Brijesh Kumar was not aware about the pendency of the writ petition. A counter affidavit was filed by the Gaon Sabha. For the purposes of the case, the delay was condoned and the substitution application was allowed by the order dated 26.09.2011. It may placed on record that one substitution application was filed by Shri Rajesh Chandra on the basis of unregistered Will dated 24th December, 1992 to which a counter affidavit has been filed stating that the said Will is forged and fabricated document as the petitioner has expired on 22nd December, 1992. However, the said substitution application is not on record.

The argument that the matter may be remanded back to the Joint Director of Consolidation in view of the decision of this Court in Shiva Nandan versus Board of Revenue, 1980 R.D. 73, is not well founded. It will depend on the facts and circumstances of each case. The evidence can be examined by writ court to cut short the litigation. The order of remand should not be passed in a routine manner. Remand order prolongs the litigation. If no useful purpose is going to be served by remanding the matter, the Court should not resort to remand the order specially in exercise of writ jurisdiction, which is a discretionary one and where substantial justice has been done to the parties.

Learned counsel for the petitioner has relied upon Gram Samaj, Kairadih through Sabhapati Ram Ujagar, Jaunpur versus Joint Director of Consolidation, Lucknow Camp, 1969 R.D. 356 and Babu Ram Verma versus Sub-Divisional Officer & others, 1996 A.W.C. 1035, which are not applicable to the facts of the present case.

In view of the above discussion, I find no merit in the writ petition. The writ petition is dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only), payable by the substituted heirs of the petitioner whose substitution application was allowed by the order dated 26.09.2011. They claimed their possession after the death of the petitioner. The stay order, if any, stands vacated.

In view of above discussion, it is held that the petitioner miserably failed to establish that he acquired title over the disputed land by adverse possession.