Mata Badal Singh and Others vs District Deputy Director of Consolidation/Collector and Others

Ram Surat Ram (Maurya), J.—Heard Sri Mohammad Arif Khan, Senior Advocate, assisted by Sri Mohd. Moinuddin Khan, for the petitioners and Sri Ashok Kumar Pandey, for the contesting respondents.

This writ petition has been filed against the orders of Settlement Officer Consolidation dated 15.09.2012 and Deputy Director of Consolidation dated 11.12.2014, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

The dispute relates to land of khata 16 [consisting plots 52/1 (area 2-9-12 bigha), 275/1 (area 0-1-0 bigha), 275/2 (area 0-19-10 bigha) and 326 (area 1-14-0 bigha) of village Barawan, pargana Rudauli, district Faizabad, which was recorded in basic consolidation year, in the name of Ghirau son of Nankau (father of respondent-3). Mata Badal Singh, Mahant Singh and Ram Bahadur Singh sons of Hanuman Singh (the petitioners) filed an objection (registered as Case No. 259/336/364/385) under Section 9-A of the Act, for recording their names as bhumidhar of the land in dispute. The petitioners stated that they were in possession of the land in dispute from a long time. From the time of entry of their names in column-9 of khatauni, they have perfected their title and acquired bhumidhari right and respondent-3 has lost his title. The petitioners were in possession of the land in dispute. Ghirau filed a counter objection, stating therein that in collusion of Lekhpal, forged entry in column-9, of the khatauni of names of the petitioners had been made of which he had no knowledge. The petitioners are not in possession of the land in dispute. Initially Consolidation Officer, by order dated 26.09.1995, allowed the objection of the petitioners and the appeal filed by respondent-3 was dismissed by order dated 21.05.2000. However, the revision filed by respondent-3 was allowed by order of Deputy Director of Consolidation, dated 15.02.2006 and the matter was remanded to Consolidation Officer for fresh decision. The petitioners challenged the aforesaid order in Writ Petition No. 175 (Consolidation) of 2006, which was dismissed on 23.10.2009. The petitioners filed Special Leave Petition (Civil) No. 2699 of 2010, against aforesaid order, which was also dismissed on 01.02.2010.

After remand, Consolidation Officer, by order dated 19.05.2012, held that a part of plot 52 was acquired by State of U.P. under Land Acquisition Act, 1895. District Judge, Barabanki by his judgment dated 12.12.1978 held that the petitioners had become its owner on the basis of adverse possession and awarded compensation to them. The appeal filed by Ghirau from aforesaid award, was dismissed by High Court on 20.07.1981. From oral evidence, irrigation slip and receipt, possession of the petitioners, over the land in dispute was proved. On these findings, objection of the petitioners was allowed and their names were directed to be recorded as bhumidhar with transferable right.

Respondent-3 filed an appeal (registered as Appeal No. 1585) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 15.09.2012 held that entry of column-9 of khatauni 1374 F was not made according to procedure of Paragraphs-A-80, A-81 and A-102-C of U.P. Land Records Manual, in as much as, the petitioners could not prove that PA-10 was issued/served upon land holder and Chairman, Land Management Committee, before making entry. No evidence has been adduced to prove that the petitioners were in continuous possession for the statutory period. On the basis of sale deed dated 9.8.1966, name of Ghirau was recorded by order dated 30.06.1968 over land in dispute, which was continued till basic consolidation year. On these findings, he allowed the appeal and set aside the order of Consolidation Officer and maintained name of respondent-3.

The petitioners filed a revision (registered as Revision No. D-20140423001041) against the order. The revision was heard by District Deputy Director of Consolidation, who by order dated 11.12.2014 held that the petitioners could not state the date from which their adverse possession was started. They could not prove their continuous possession for the statutory period as such they failed to prove their case. On these findings, the revision was dismissed. Hence this writ petition has been filed.

The counsel for the petitioners submitted that respondent-3 claimed that land in dispute was purchased by Ghirau from Ram Shabd through sale deed dated 09.08.1966 but sale deed was not filed in any Court. Through this sale deed, an area of 5-4-8 bigha was allegedly sold for Rs. 1000/-, which proves that Ram Shabd was not in possession of the disputed land nor possession was delivered to Ghirau at that time as Hanuman, father of the petitioners was in possession of it, as admitted by Ghirau in his statement recorded in criminal case, initiated by him against the petitioners under Section 147 /148 /323 /324 IPC, in which, Ghirau in his statement had stated that he had obtained sale deed of the land in dispute 10-20 years ago and accused persons did not leave possession of it. To avoid any dispute, he did not go to the land in dispute. Admission of Ghirau is best evidence which can be relied against him as held by Supreme Court in Narain Bhagwantrao Gosabi Balajiwale v. Gopal Vinayak Gosabi, AIR 1963 SC 100 . Naib Tahsildar, in his report dated 17.01.1968, also found possession of Hanuman. As possession over transferred land was not delivered to Ghirau as such sale deed was not valid as held by Supreme Court in Kaliaperumal Vs. Rajagopal and Another, . Tahsildar illegally directed for mutation of the name of Ghirau by order dated 30.06.1968. The order was challenged by Hanuman but in the meantime he was murdered and the petitioners could not pursue the matter. However, the petitioners remained in possession of the land in dispute. Ghirau filed a suit under Section 209 of U.P. Act No. 1 of 1951, for ejectment of the petitioners on 22.08.1975, which was later on dismissed. A part of plot 52 was acquired by State of U.P. under Land Acquisition Act, 1895, in which compensation was initially prepared in name of Ghirau. The petitioners filed LA Reference No. 60 of 1976, which was allowed by District Judge, Barabanki, by award dated 12.12.1978, after hearing the parties, holding that Hanuman was in continuous possession over land in dispute since 1374 F (corresponding to 1966) and perfected his title under Section 210 of U.P. Act No. 1 of 1951. Award dated 12.12.1978 was upheld by this Court, by judgment dated 20.07.1981. Neither Ghirau nor Khushi Ram could get possession over the land in dispute. The suit for ejectment of the petitioners filed by Ghirau was also dismissed. The petitioners filed a questionnaire to prove that fire incident had taken place in 1978 in Collectorate Record Room Barabanki, in which revenue papers up to 1383 F (i.e. 1976) were burnt. PA-10 could not be filed due to fire incident, but there were mass of documentary and oral evidence on record to prove continuous possession of the petitioners from 1966 to 1980, when consolidation was started. In order to prove possession, the petitioners filed copies of irrigation slip and receipts and also examined witnesses Mata Badal and Sukh Lal but the Court below have illegally ignored the evidence on record. Orders of respondents-1 and 2 are illegal and liable to be set aside.

In reply to the aforesaid arguments, the counsel for the respondent submitted that it is incorrect to say that possession over transferred land was not delivered to Ghirau at the time of sale deed dated 09.08.1966. The father of the petitioners was not in actual possession rather a forged entry has been made in his favour in column-9 of the khatauni. When Ghirau filed application for mutation of his name on the basis of sale deed, a report dated 17.01.1968, relating to column-9 entry of Hanuman, was submitted by Naib Tahsildar. After hearing the parties, Tahsildar found Ghirau was in possession and allowed the mutation application as while deciding mutation application, he was required to decide possession according to provisions of Section 40 of U.P. Land Revenue, Act, 1901. Hanuman lost mutation case up to Board of Revenue, U.P. finally in 1973. In compliance of mutation order, column-9 entry of khatauni was expunged. Even if revenue record up to 1383 F was burnt, entries of column-9 prior to it, are not relevant as it has been corrected by judicial order by Revenue Court in mutation proceeding. In basic consolidation record, i.e. 1388 F, name of Ghirau was recorded in revenue record and there was no entry of the names of the petitioners in column-9. The petitioners filed objection, claiming their right on the basis of possession as such burden of proof was upon them to prove that they had perfected their right over the land in dispute. They failed to prove their possession over the land in dispute. So far as judgment of District Judge dated 12.12.1978 is concerned, it has not become final and First Appeal filed by Ghirau was dismissed in default in which restoration application has been filed, which is pending. He relied upon judgment of Board of Revenue, U.P. in Mangal v. Prem Lal, 2002 (93) RD 29 and this Court in Balchan and Others Vs. Dy. Director of Consolidation Mau and Others , in which it has been held that issue/service of PA-10 on the land holder and Chairman, Land Management Committee before recording possession of any person in column-9 is mandatory and in the absence of service of PA-10, entry has no evidenciary value. Adverse possession has been deprecated by Supreme Court in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and Others, and State of Haryana Vs. Mukesh Kumar and Others, . Judgment of this Court in Shambhoo Vs. Deputy Director of Consolidation, , in which it was held that it is obligatory on part of the person to plead and prove his adverse possession.

I have considered the arguments of the counsel for the parties and examined the record. First point raised by the counsel for the petitioners that as at the time of sale deed dated 09.08.1968, possession was not given to Ghirau as such sale deed is void, is concerned, Section 5 of Transfer of Property, 1882 defined "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons and "to transfer property" is to perform such act. Thus interest in property in present and in future can be transferred. In case property is in possession of co-sharer, lessee or mortgagee then possession over transferred land cannot be transferred at the time of sale but right of transferer to receive possession has been transferred. Similarly, in case, property in illegal occupation of a third person then also right/interest in property to get back possession has been transferred and sale deed cannot be said to be illegal. Case law relied upon by the counsel for the petitioners has no application in this case as in case of Kaliaperumal''s case (supra), the transferer himself challenged validity of the sale deed and it was held that intention of the parties at the time of sale deed has to be examined. In this case, Ram Shabd never disputed sale deed.

Supreme Court in Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., , held that possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner. Possession is important when there are no title documents and other relevant records before the court, but, once the documents and records of title come before the court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the courts. A suit can be filed by the title-holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession. A title suit for possession has two parts--first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. Once the title is prima facie established, it is for the person who is resisting the title-holder''s claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the court all such documents as in the ordinary course of human affairs are expected to be there. The person averring a right to continue in possession shall, as far as possible, give a detailed particularised specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.

Column-9 entry is used to be made by Supervisor Kanoongo, in exercise of his administrative power under provisions of U.P. Land Record Manual. Earlier it was mandatory for Lekhpal to issue/serve notice in form PA-10 on the land holder and Chairman of Land Management Committee, if during partal made by him a person other than recorded tenure holder is found in possession. It has been consistently held by this Court that if issue/service of PA-10 according to provisions of Paragraph-A-81 was not proved then entry in column-9 has no evidentiary value as held in Balchan and Others Vs. Dy. Director of Consolidation Mau and Others . U.P. Land Record Manual was drastically amended by Notification No. No. 4674/1-H-1378-H-60 dated July 3, 1965 (published in U.P. Gazette, Part-1-A, dated July 10, 1965. Amended provisions are quoted below:--

"Paragraph-A-71. (5) If a person other than the tenure holder recorded in column 4 and 5 is found in possession, the Lekpal shall not make any entry regarding possession of such a person anywhere in the khasra but shall follow the procedure laid down in paras A-72 and A-80.

Paragraph-A-72 (iii) If a person other than the tenure holder recorded in column 4 and 5 claims to have sown crops in his own right to the exclusion of the rights of person or persons recorded in the columns 4 and 5, the Lekpal shall not make any entry regarding the possession of such a person or persons anywhere in the khasra but shall enter necessary particulars in the memorandum of PA-24 prescribed in para A-80.

Paragraph-A-80:-- The Lekhpal while on partal in the village shall keep with him a book of memorandum of facts of possession in cases of type mentioned in paras A-72 (ii) and A-72 (iii). The pages in the books shall be machine-numbered from 1 to 100. Whenever cases of possession of person over plots in respect of which the name of a person is already recorded in columns 4 and 5 come to his notice, the Lekhpal shall make inquiries regarding the nature of the possession and record the facts in brief in column 6 of memorandum in PA-24 given below. He shall, at the same time record in his diary the number of the plots in respect of which entries have been made by him in the memorandum together with the serial number of the entries made therein. Such entry in diary shall not under any circumstance mention any name of person found in possession of the name of claim or dispute.

Paragraph-A-81-A. The Lekhpal shall inform the Chairman, Land Management Committee and all tenure-holders of the village including person concerned with the entries made in the memorandum delivered to the Revenue Inspector under para-A-80 of the date of visit of the Revenue Inspector to the village and request them to remain available when the Revenue Inspector goes round the field for partal. He shall also paste a notice on the notice board of the Gaon Sabha indicating the date of visit of the Revenue Inspector to the village. A certificate will be got recorded on the copy of the notice under the signatures of the Chairman, Land Management Committee to the effect that wide publicity of the programme of the Revenue Inspector has been done amongst tenure holders of the village. This copy of notice shall be taken by the Revenue Inspector on his arrival in the village and field with the memorandum in Form PA-24."

In view of amended provisions of U.P. Land Records Manual, if a person relies upon column-9 entry, then he has to prove it by summoning PA-24.

Now issue as to what was effect of column-9 entry after passing order of order mutation of the name of Ghirau, has to be decided. Relevant provisions of U.P. Land Revenue Act, 1901 are quoted below:--

"Section 32 :-- There shall be a record of rights for each village subject to such exceptions as may be prescribed by rules made under the provisions of Section 234 . The record of right shall consist of a register of all persons cultivating or otherwise occupying land specifying the particulars required by Section 55 .

Section 34 :-- (1) Every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded under Section 33-A) shall report such succession or transfer to the Tahsildar of the Tahsil in which land is situate.

Section 40 :--Settlement of disputes as to entries in annual registers-(1) All disputes regarding entries in annual registers shall be decided on the basis of possession.

(2) If in course of inquiry into a dispute under this Section, the Tahsildar is unable to satisfy himself as to which party is in possession. He shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession."

Thus after passing judicial order of mutation by Revenue Court, administrative entry of column-9 is wiped out and no reliance can be placed on it. Burning of revenue record up to 1383 F is of no consequence as entries prior to it had been wiped out as Board of Revenue, U.P. has finally dismissed the revision of the petitioners in mutation proceeding in 1973 (1381 F). The petitioners have filed khasra 1381 F to 1383 F although at that time Lekhpal had no jurisdiction to record possession of a person other than recorded tenure holder in khasra. Thus it was an illegal entry, made contrary to provisions of law and no reliance can be placed on it. The petitioners filed khataunis 1381 F to 1391 F. Entries made in it, have been not proved summoning register/diary PA-24 or examining Lekhpal or Supervisor Kanoongo.

So far as admission of Ghirau in his statement in criminal case recorded on 26.12.1976 is concerned, in this statement, Ghirau has stated that land in dispute was lying parati on spot as such cultivatory possession of the petitioners has not been admitted. Respondents-1 and 2 found that continuous possession for statutory period as given under Section 210 of U.P. Act No. 1 of 1951 has not been proved. As stated above, entry up to 1973 have been wiped out. Since 30.06.1976, limitation of 12 years has been provided for ejectment of illegal occupant vide Entry -30 of Appendix-II of Rule 1952. Thus continuous cultivatory possession for statutory period has not been proved. Judgment of LA Reference No. 60 of 1976 dated 12.12.1978 has not become final as recall application filed by before this Court is pending as such no reliance can be placed upon it. Thus findings of facts recorded by respondents-1 and 2 that the petitioners have not perfected their title on the basis of continuous possession over the disputed land does not suffer from any illegality. This Court in exercise of writ jurisdiction, cannot interfere in it.

In view of the aforesaid discussions, the writ petition has no merit and is dismissed.