Uma vs DY. Director of Consolidation, Ballia and Others

Ram Surat Ram (Maurya), J.—Heard Sri Abhishek Kumar for the petitioner. List has been revised but no one appears for respondents. The writ petition has been filed for quashing the order of Deputy Director of Consolidation, Ballia (respondent-1) dated 27.8.1999, passed in Revision Nos. 1627 and 1628, Uma v. Patia and others and order of Assistant Settlement Officer Consolidation, Ballia (respondent-2) dated 22.4.1997, passed in Appeal No. 406, Ganesh v. Patia and Appeal No. 407, Patia v. Ganesh, in the title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act"). The dispute relates to plot No. 1961 (area 0.59 acre) situated at village Sahulai, pargana Sikandarpur Purbi, district Ballia. In basic consolidation year, khata 701 (consisting of plot Nos. 1961 (area 0.59 acre), 1962 (area 0.30 acre), 1963 (area 0.18 acre), 1964/1 (area 0.20 acre), 1965/1 (area 0.21 acre), 1971 (area 0.36 acre), 1972 (area 0.34 acre) and 1973 (area 0.35 acre) (total area 2.54 acre) was recorded in the names of Patia (respondent-4) and Jankia (respondent-5) (hereinafter referred to as the respondents). Ganesh (the father of the petitioner) filed an objection (registered as Case No. 370 of 1984) u/s 9A of the Act, claiming co-tenancy of 1/2 share in the khata in dispute. However in his oral statement, Ganesh confined his claim in respect of entire area of 0.59 acre of plot No. 1961 and abandoned his claim of co-tenancy in respect of entire plots of khata 701. Ganesh, in his statement gave a pedigree, in which he had stated that one Bhuwal was the common ancestor of the parties who had four sons namely Feku, Harhangi, Naurangi and Shiv Saran. Harhangi and Shiv Saran died issueless. Ganesh was son of Naurangi and Patia widow of Bhukhan was grand daughter-in-law of Feku and Jankia is the daughter of Bhukhan. Plot No. 1961 was the self acquired property of Naurangi and Shiv Saran. Feku died during life time of his other brothers. The respondents have no right over plot 1961. On behalf of the respondents, Patia was examined and she in her statement has stated that the land in dispute was the self acquired property of her husband Bhukhan and his brothers Amar and Ganesh have no right over it.

The case was tried by the Consolidation Officer II, Antim Abhilekh, Ballia, who by his judgment dated 29.4.1986 held that name of Ganesh was recorded over plot No. 1961 (area 0.59 acre) in khatauni of 1345-F, along with the names of Bhukhan and Amar, sons of Sukhdeo and Shiv Saran son of Bhuwal as such Ganesh was co-sharer of 1/2 share in plot No. 1961 along with the respondents. Ganesh filed an appeal (registered as Appeal No. 406, Ganesh v. Patia) and Patia and Jankia filed another appeal (registered as Appeal No. 407, Patia v. Ganesh) from the aforesaid order. Both the appeals were consolidated and heard by Assistant Settlement Officer Consolidation, Ballia (respondent-2), who by his order dated 22.4.1997 held that although in khatauni of 1345-F, name of Ganesh was recorded along with the name of the husband of Patia over the land in dispute as ''non-occupancy tenant'' but in subsequent year, the land in dispute was exclusively recorded in the name of the husband of Patia as such neither title nor possession of Ganesh was proved. On these findings appeal of Patia was allowed and appeal of Ganesh was dismissed by order dated 22.4.1997.

The petitioners filed two revisions (registered as Revision Nos. 1627 and 1628, Uma v. Patia and others) from the orders. The revisions were heard by Deputy Director of Consolidation, Ballia (respondent-1), who by his order dated 27.8.1999, held that the petitioner could not adduce any evidence to show that after 1345-F he was ever in possession over the land in dispute as such his title and possession over the land in dispute was not proved. On these findings the revisions were dismissed. These orders are challenged in this writ petition.

The Counsel for the petitioner submitted that Ganesh was recorded jointly along with Bhukhan and Amar, sons of Sukhdeo and Shiv Saran son of Bhuwal, in 1345-F khatauni as ''non-occupancy tenant'' over the land in dispute. Thereafter, Ganesh was recorded as occupant in 1356-F khatauni over plot No. 1961 (area 0.59 acre). Being a ''recorded occupant'' in 1356-F khatauni, Ganesh became ''adhivasi'' of the land in dispute u/s 20(b) and ''bhumidhar with non-transferable right'' u/s 240B of U.P. Act No. 1 of 1951. He submitted that the word ''occupant'' occurring u/s 20(b) of U.P. Act No. 1 of 1951 as has been defined by the Supreme Court in Amba Prasad v. Mahboob Ali Shah 1964 RD 303 (SC), means that the person in actual possession. In which it is held that between the proprietor and a tenant, the tenant and between the tenant and the sub-tenant, the latter and between him and a person recorded in the remarks column as dawedar qabiz, the ''dawedar qabiz'' are the occupants. He submitted that as Ganesh was recorded in the remark column in 1356-F Khasra as such he was the ''recorded occupant'' and after date of vesting, has become Sirdar. The orders of the consolidation authorities are illegal and liable to be set aside.

I have considered the arguments of the parties and examined the record. There are two documents, in which name of Ganesh was recorded, namely 1345-F khatauni wherein names of Ganesh son of Naurangi, Bhukhan and Amar sons of Sukhdeo and Shiv Saran son of Bhuwal were recorded as ''non-occupancy tenant'' over the land in dispute along with other plots and the other document is 1356-F Khasra in which name of Patia was recorded in the column of tenant and Ganesh was recorded in the remark column over plot No. 1961 (area 0.59 acre). Ganesh abandoned his claim of co-tenancy based on 1345-F khatauni and claimed exclusive right over one plot, namely, plot No. 1961 (area 0.59 acre) in his oral statement before the Consolidation Officer. Two documents are contradictory to each other as if Ganesh was a joint tenant then he could not claim his exclusive possession as such in between two contradictory stands he had preferred one stand of exclusive possession. Therefore no reliance can be placed over the khatauni of 1345-F in his favour.

Now the question arises as to whether Ganesh has become ''adhivasi'' on the basis of khasra of 1356-F u/s 20(b) of U.P. Act No. 1 of 1951. In order to appreciate the controversy, the relevant portion of section 20 is quoted below:--

Section 20-Every person who--

(a) .....

(b) was recorded as occupant,--

(i) of any land [other than grove land or land to which section 16 applies or land referred to in the proviso to sub-section 3 of section 27 of U.P. Tenancy (Amendment) Act, 1947] in the khasra or khatauni of 1356-F prepared u/s 28 and 33 respectively of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901) or who was on the date immediately proceeding the date of vesting entitled to regain possession thereof under Clause (c) of sub-section (1) of section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act No. X of 1947), or

(ii) .......

shall unless he has become a bhumidhar of the land under sub-section (2) of section 18 or an asami under clause (h) of section 21, be called ''adhivasi'' of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof.

Thus in order to claim ''adhivasi'' right u/s 20(b) of U.P. Act No. 1 of 1951, the person must be a recorded occupant in the khasra or khatauni of 1356-F prepared u/s 28 and 33 respectively of the U.P. Land Revenue Act, 1901.

The case of the petitioner is that Ganesh was recorded occupant in khasra 1356-F. Section 28 of U.P. Land Revenue Act, 1901 (before its amendment in 1951) provides that the Collector shall maintain the khasra in accordance with Rules framed u/s 234 of the Act, 1901, Section 33 requires the Collector to maintain the record of right and for that purpose to prepare annually an amended set of registers enumerated u/s 32. Clause (c) of section 32 refers to "a register of all persons cultivating or otherwise occupying land specifying the particulars required by section 55". The khasra and khatauni have to be prepared in accordance with the Rules framed u/s 234 of the Act, 1901. In exercise of powers u/s 234 of the Act, 1901, the Rules have been framed and known as Land Records Manual. Chapter V, Paragraphs-55 to 102 deals with preparation of khasra. Paragraph-60 provides that khasra shall be prepared in Form P-3. Form P-3 consist 21 columns. Column-5 is meant for the name of cultivator, Column-6 is for subtenant, tenant of sir, tenants of permanent tenure holders, or rent free grantee or grantee at a favourable rate of rent or occupier of land without the consent of the person entitled to admit as subtenant. Column-21 is the remark column.

Paragraph-84 requires that if the patwari finds that a person whose name has been previously recorded in cultivatory possession and some one else is recorded in column-5, he will follow the procedure given under Paragraphs-79 to 83. Under these paragraphs, if the patwari finds that such an occupier is either heir or sub-tenant of the person recorded in column-5, he shall substitute name of such occupier in red ink as "dawedar qabiz". Paragraph-87 provides entry of the sub-tenant. Thus where no one is entered in column-6, a person claiming to be in cultivatory possession without the consent of the person whose name is entered in column-5 has to be entered in column-6 in red ink, specifying his status. Remark column entry is a provisional entry and is made only during pending inquiry by the patwari. If after inquiry, the patwari finds possession of the persons then his name has to be entered in column-5 or column-6 in red ink as "dawedar qabiz". It is such an entry which confers right of ''adhivasi'' u/s 20(b) of U.P. Act No. 1 of 1951. The provisional entry in the remark column cannot be treated as an entry of ''recorded occupant''.

The controversy in this respect has been examined by a Bench of five Hon''ble Judges of this Court in Basdeo and Others Vs. Board of Revenue and Others, , in which this Court has held that an entry not made in accordance with the prescribed rules cannot be deemed to be an entry of recorded occupant. This controversy has been examined in various cases by the Supreme Court. In Bachan and Another Vs. Kankar and Others, , the Supreme Court has held as follows:

Section 20 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 speaks of a person recorded as occupant to become adhivasi of the land and will be entitled to take or retain possession as mentioned in the section. One of the principal matters mentioned in the section is that the Khasra or Khatauni of 1356 Fasli is to be prepared under sections 28 and 33 of the U.P. Land Revenue Act, 1901. The U.P. Land Records Manual in Chapter A-V in paras A-55 to A-67 lays down the manner in which the Khasra or the field book showing possession is to be prepared by the Patwari in the areas to which Zamindari Abolition and Land Reforms Act, 1950 applies. There are detailed instructions about the manner in which the enquiry should be carried out about actual possession and change in possession and corrections in the map and field book, the form in which the khasra is to be prepared. The form of khasra is given in paras A-80. The form shows that the Lekhpal has to prepare a consolidated list of entries after partial or proper investigation. Again, para A-70 to A-73 to the U.P. Zamindari Abolition and Land Reforms Act show how entries have to be made in khataunis every year showing the nature of tenure of each holder. The khatauni is meant to be a record of tenure-holders. The manner of changes to be made there is laid down in para A-82 to A-83. Entries are to be checked. Extract has to be sent to the Chairman, Land Management Committee as contemplated in paragraph A-82 (iii). In this context section 20(b)(i) of the U.P. Zamindari Abolition and Land Reforms Act which speaks of the record "as occupant" in the khasra or khatauni of 1356 Fasli refers to the khasra or khatauni being prepared in accordance with the provisions of the Land Revenue Act, 1901. Khasra is the field book provided for by section 28 of the Land Revenue Act. Khatauni is an annual register prepared u/s 32 of the Land Revenue Act 1951. It has to be emphasised that the entry u/s 20(b)(i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 in order to enable a person to obtain adhivasi rights must be an entry under the provisions of law.

The Supreme Court further has held that entries which are not genuine cannot confirm adhivasi rights. The High Court wrongly held that though the entry was incorrect it could not be said to be fictitious. It is too obvious to be stressed that an entry which is incorrectly introduced into the records by reason of ill-will or hostility is not only shorn of authenticity but also becomes utterly useless without any lawful basis.

In Ram Harakh (Dead) by Lrs. Vs. Hamid Ahmed Khan (Dead) by Lrs. and Others, , the Supreme Court has held as follows:

It is not in dispute between the parties that in Khasra or Khatauni of 1356 Fasli the appellants'' names were mentioned. However, the moot question is whether this entry was effected under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901 after following the due procedure. There is nothing on the record of these appeals to show whether this entry was effected after following the said procedure. It is to be kept in view that this entry saw the light of day in favour of the appellants during the time when there were already litigations pending between the parties before the competent civil Courts at the instance of the respondents who were already having an earlier entry of personal cultivation in their favour being Entry 1354 Fasli. It was their contention that they were actually in possession and the defendants, namely, the appellants had no interest in the lands and they were trying to interfere with the plaintiffs'' possession during the pendency of the proceedings concerning the right, title and interest of the plaintiffs over the very same properties, namely, the suit plots.

In view of the aforesaid discussion it is found that entry of the name of Ganesh in remark column of khasra 1356-F was a provisional entry and cannot be regarded as an entry of ''recorded occupant'' so as to confer ''adhivasi'' right u/s 20(b) of the Act. Apart from this document, there is no evidence regarding possession of Ganesh over the land in dispute. Thus no illegality has been committed by respondents-1 and 2 in dismissing the objection of Ganesh. The writ petition has no merit and is dismissed.