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Judgment
Alok Singh, J.—Present petition is filed assailing the judgment and order dated 08.03.1995, passed by the Consolidation Officer, Roorkee; order dated 28.02.2003, passed by the Settlement Officer Consolidation and order dated 30.07.2003, passed by the Deputy Director of Consolidation. Undisputedly, land of khasra No. 836/3, measuring 17 Biswas, 887/1 measuring 3 Biswas, 887/3 measuring 4 Biswas, 892/1 measuring 1 Bigha 10 Biswas was part of khewat No. 1/1, recorded in the name of Tara Chand Mussadi Lal before the abolition of Zamindari; in the khasra khatauni of the 1359 fasli i.e. 1952 name and possession of Rodhu, father of the present petitioners was recorded as class 3 (Asami);. After the issuance of notification under Section 4 of the U.P. Consolidation of Holdings Act, spot inspection was carried out by the Consolidation Authorities; petitioners were found cultivating the land and in possession thereof; possession of the petitioners was recorded in Form C.H. 5; vide order dated 27.02.1989, petitioners'' name was directed to be mutated over the land of khasra No. 836/3, 887/1, 887/3 and 892/1, being the sole legal heirs and sons of Rodhu; Bulla, father of the respondent nos. 4, 5 and 6 filed application before the Assistant Consolidation Officer under Section 9 of the U.P. Consolidation of Holdings Act, saying that land of khasra No. 892/1 measuring 1 Bigha 10 Biswas, Village Imalikheda Dharampur, Pargana and Tehsil- Roorkee, District Haridwar was laying vacant and unoccupied on the spot, therefore, he has occupied the land and started cultivating the same and he is in actual possession of the land for last more than 12 years hence, he has matured his title by way of adverse possession, therefore, his name and possession be recorded in the Consolidation record; on the application of the Bulla, father of the respondent nos. 4, 5 and 6, petitioners herein preferred their objections on 03.07.1992 saying that over the land of khasra No. 892/1, their father Rodhu remained in possession throughout his life and after his death, petitioners are in possession and Bulla, father of the respondent nos. 4, 5 and 6 was never remained in possession, therefore, his application may be rejected; thereafter, Bulla, father of the respondent nos. 4, 5 and 6 filed supplementary application/replication on 07.01.1993 taking all together contrary stand therein that Rodhu, Bulla and Nakali were three real brothers and land of khasra No. 892/1, 836/3, 887/3 was jointly held by all the three brothers before the abolition of Zamindara and after abolition of Zamindara mutual partition took place among the three brothers and land of khasra No. 892/1 measuring 1 Bigha 10 Biswa was given in the share and in possession of Bulla, father of the respondent nos. 4, 5 and 6 and he is in exclusive possession for the last more than 12 years on the basis of mutual partition arrived at among the three brothers; all the three Courts below having observed that Bulla was in possession right from 1379 fasli, therefore, he has acquired rights and rights of Rodhu and his sons (petitioners) stood extinguished, therefore, name and possession of Bulla be recorded over the land of khasra No. 892/1; thereafter, since, Bulla has also died hence name and possession of the respondent nos. 4, 5 and 6 be recorded as legal heirs of Sri Bulla. Feeling aggrieved, petitioners have preferred present petition under Article 227 of the Constitution of India.
I have heard Mr. M.S. Tyagi, learned counsel for the petitioners, Mr. R.C. Arya, learned Standing Counsel for the State/respondent nos. 1, 2 and 3 and Mr. Sharad Sharma, learned Senior Counsel assisted by Mr. Pradeep Chamyal, learned counsel for the respondent nos. 4, 5 and 6 and have perused the record.
Learned counsel for the parties do not dispute that land of khasra nos. 836/1,887/1 and 892/1 (Land in question), Village Imalikheda Dharampur, Pargana and Tehsil Roorkee, District Haridwar was of khewat No. 1/1 of which Tara Chand Mussadi Lal were the owner/zamindar. There is no dispute to the fact that at the time of abolition of Zamindari in the year 1952, basic year 1359 fasli, the sole name and possession of the Rodhu, father of the present petitioners was recorded in the khasra and khatauni. It is also not in dispute that as per Section 21 of the U.P.Z.A. & L.R. Act, Rodhu being non-occupancy tenant acquired the asami right.
Mr. M.S. Tyagi, learned counsel for the petitioners contends that in the first application Bulla, father of respondent nos. 4, 5 and 6 has claimed that land of khasra No. 892/1 was laying vacant, therefore, he has occupied the same and after twelve years, he has matured title on the basis of adverse possession while in the subsequent application/replication Bulla has taken plea that land of khasra No. 892/1 was given to him in the mutual partition. Both the pleas are opposite to each other which itself shows that Bulla has absolutely no right or possession over the land in question. He further contends that Rodhu, father of the present petitioners was cultivating this land from the period prior to abolition of Zamindari and his name and possession always remained recorded. Further contends that even during the spot inspection done by the Consolidation Authorities, petitioners were found cultivating the land and in the actual possession of the land and their possession was recorded in the Form C.H. 5 by the Consolidation Authorities. Had Bulla been in possession, his possession would have been recorded in Form C.H. 5.
Mr. Sharad Sharma, learned Senior Counsel for the respondents No. 4, 5 and 6 submits that since family of Rodhu, Bulla and Nakali all the three brothers was joint, therefore, name and possession of Rodhu was recorded in a representative capacity, however, all the three brothers were cultivating the land in question jointly. He further submitted that thereafter mutual partition took place among the three brothers and land of khasra No. 892/1 measuring 1 Bigha 10 Biswa has fallen in the share of Bulla, father of respondent nos. 4, 5 and 6. He further contends that respondent nos. 4, 5 and 6 are taking two alternate pleas, one of mutual partition and another of the adverse possession.
Perusal of khasra-khatauni of 1359 fasli would reveal that sole name and possession of Rodhu, father of the petitioners was recorded as asami being non-occupancy tenant. There is no material on record to prove that all the three brothers namely Rodhu, Bulla and Nakali were admitted as non-occupancy tenant by the then zamindar Tara Chand Mussadi Lal. Since, there is no material to prove that Tara Chand Mussadi Lal, the then land-lord/zamindar admitted all the three brothers as joint tenants, therefore, plea of respondent nos. 4, 5 and 6 that land in question was being occupied jointly and name of Rodhu was recorded in representative capacity cannot be accepted. Since, land is not found to be jointly held by three brothers, namely, Rodhu, Bulla and Nakali, therefore, plea of partition cannot be accepted.
There is another aspect of the case i.e. at the first instance plea that property was jointly held by the three brothers and subsequently it was partitioned, was not taken. Initially, case of Mr. Bulla, father of the respondent nos. 4, 5 and 6 was that land was laying vacant and unoccupied, therefore, he has occupied the same. Plea of joint property and mutual partition was taken in subsequent pleadings/replica filed after the filing of objections by the petitioners.
In my humble opinion, alternate plea or defence can be taken by either of the parties in the civil/revenue litigation. Such alternate plea is permissible to be taken in original plaint/petition or written statement/objections, as the case may be, however, altogether contrary alternate plea is not permissible to be taken in rejoinder/replica. Rejoinder/replica should be confined to replaying the defence taken in the written statement/counter/reply.
In view of the above, since original pleading of Bulla, father of respondent nos. 4, 5 and 6 was that he has occupied the land which was laying vacant, therefore, plea of jointness of property and mutual partition taken in subsequent pleadings/replica cannot be accepted.
Let me now examine another aspect of the matter-as to whether Bulla or after his death, his three sons respondent nos. 4, 5 and 6 have acquired any rights over the disputed land pursuant to the adverse possession?
Section 210 of the U.P. Z.A. & L.R. Act reads as under:
"210. Consequence of failure to file suit under Section 209.- if a suit for eviction from any land under Section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall-
(a) where the land forms part of the holding of a bhumidhar with transferable rights, become a bhumidhar with a transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished;
(b) where the land forms part of the holding of a bhumidhar with nontransferable rights, become a bhumidhar with non-transferable rights and the right, title and interest of an asami, if any, in such land shall be extinguished;
(c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year."
[Provided that the consequences mentioned in Clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.]
Perusal of Section 210 of the Act would demonstrate that if the suit for eviction from any land under Section 209 is not instituted or decree for eviction obtained in any suit is not executed within a period of limitation, then rights of the bhumidhar/asami, as the case may be, shall stand extinguished.
Suit for eviction/possession against the trespassers has to be filed within 12 years from the date of commencement of the possession of trespassers as per Article 64 and 65 of the Limitation Act.
In my humble opinion, principle of Section 210 of U.P.Z.A. & L.R. Act are akin to provision of Section 27 of the Limitation Act which also provides that at the determination of the period of limitation to any person for instituting a suit for possession of any property, his right to such property shall stand extinguished.
No material was produced by Sri Bulla on record to prove that as to when Bulla has occupied the property in question which was laying vacant and unoccupied and as to when he started claiming adverse possession.
Undisputedly, Bulla was a real brother of Rodhu, father of the petitioners and land was recorded in the sole name of Rodhu, therefore, plea of Sri Bulla that land was laying vacant and unoccupied on the spot, therefore, he has occupied it, seems to be totally bogus and incorrect.
Either Bulla or respondent nos. 4, 5 and 6 after the death of Sri Bulla have not filed any receipt of the payment of lagan or payment of irrigation charges to demonstrate that actually they were in possession. Not only this, their possession was not found during the spot inspection made by the Consolidation Authorities and possession of the petitioners was recorded in C.H. 5 by the Consolidation Authorities on the basis of spot inspection made. Therefore, in my considered opinion, neither Bulla nor respondent nos. 4, 5 and 6 can be said to be in possession and to have acquired any right.
In my humble opinion, person claiming rights pursuant to the principle of adverse possession must prove that on the date of instituting the suit, he was/is in actual possession. In the present case, as per entries made in the Form CH-5, Shri Bulla was not in possession on the date of filing application under Section 9 of U.P. Consolidation of Holdings Act. Any entries of possession for few years prior to the commencement of consolidation can be of no help to Shri Bulla or respondent Nos. 4, 5 and 6.
Consequently, all the impugned orders do not sustain in the eyes of law. In the result, writ petition succeeds and is hereby allowed. Impugned judgments are hereby quashed.