Ram Ratan and Another vs Deputy Director of Consolidation and Others

Binod Kumar Roy, J.—The Petitioners pray to quash the revisional order dated 4.3.1981 passed by the Assistant Director of Consolidation, Ghaziabad in Revision No. 180/1966 as also the order dated 9.2.1972 passed by the Consolidation Officer, Meerut in case No. 214.

The Facts:

The dispute between the writ Petitioners and Respondent No. 3 centres around right, title and Interest in regard to lands bearing plot Nos. 2008 and 2009 appertaining to Khata No. 314 of village Loni. The disputed plots at one time were the St of one Nazir Hussain, who migrated to Pakistan in 1947, whose property including the aforementioned plots, were declared as evacuee property. On 5.10.1955, a warrant of eviction was issued against the Petitioners under the provisions of the Administration of Evacuee Property Act. The custodian took possession on 10.3.1956 and auction-sold the disputed plots to Respondent No. 3 as he was the highest bidder. A sale certificate was issued in his favour on 17.10.1958. Respondent No. 3 applied for mutation of his name over the said plots, which was dismissed by the mutation authority on a finding that he was not in possession. Respondent No. 3 filed a regular suit on 8.2.1966 u/s 229B of the U.P. Z.A. & L.R. Act for declaration of his Bhumidhari right and for possession in the event he is found to be out of possession which was decreed by the trial court. The Petitioners went up in appeal against the decree which was dismissed by the Additional Commissioner vide order dated 28.4.1969. The Petitioners then went up in Second Appeal which, however, abated u/s 5 of the U.P. Consolidation of Holdings Act as the village was brought under the consolidation operations on 25.11.1969 as disclosed by Mr. Verma. Thereafter the Petitioners filed an objection claiming Sirdari rights on the basis of adverse possession, which was resisted by Respondent No. 3 on the ground that he is bhumidhar in possession. The Consolidation Officer rejected the objection of the Petitioners holding that Respondent No. 3 has become title-holder on the basis of the sale certificate whereas the Petitioners had not matured their title by adverse possession. The Petitioners went up in appeal, which was allowed by the Settlement Officer, Consolidation, holding them to be Sirdar on the basis of adverse possession. Respondent No. 3 went up in revision, which was dismissed against which he came up before this Court in Writ Petition No. 6711 of 1973 impleading the Petitioners as Respondents 4 and 5. While remitting the revision, this Court had held as follows : The only basis on which the contesting Respondents claiming title by adverse possession and, therefore, in order to prove title by adverse possession it is necessary to enquire when did the contesting Respondents come in possession after the property had been sold away to the Petitioner and from what date the period of limitation would be computed. Without a proper consideration on these issues, the case could not be disposed of lawfully." After remand, the revisional authority allowed the revision of Respondent No. 3 and set aside the order of the appellate authority observing/holding to the following effect: (Q The lands in question, which were of Nazir Hussain, who had gone to Pakistan, had become evacuee property, (ii) The lands remained in the custody and possession of Kallu Sah from 10.3.1957 to 17.10.1958 as supurdgar of the custodian and thereafter Bharat Singh auction-purchased it on 21.12.1958, when the sale certificate dated 17.10.1958 was registered, who also took possession on 29.4.1968. (iii) The claim of the opposite party that the disputed property was not an evacuee property of the custodian and that auction was wrongly held, etc., are all baseless, because they never fought against the custodian who had passed correct orders. (iv) The Petitioner is Bhumidar. (v) in Khasara of 1366 Fasli, there is no mention of any crop and the possession of opposite party Ram Ratan, etc, was entered in 1367 Fasli, which has to be excluded as the agricultural year has not been completed and his possession has to be calculated from 1368 Fasli which remained till 1372 Fasli, which comes to 5 years, and thereafter they had not remained in possession, whereas the suit was filed in 1373 Fasli and the opposite parties were found dispossessed, (vi) The onus to prove that the opposite parties took possession from the Petitioner after the issuance of the auction sale certificate was on the opposite party which they failed to prove and hence they cannot be accepted to be in possession. (vii) The opposite party should have filed their objection as per the Rules before the Assistant Consolidation Officer and not before the Consolidation Officer and accordingly their objection was contrary to the Rules.

The Submissions:

Mr. G. N. Verma, the learned Counsel appearing on behalf of the Petitioner, submitted as follows : The revisional authority by committing miscalculation has erred in law in not upholding the finding of the appellate authority that the Appellants/Petitioners had acquired title by adverse possession of the lands in question. in computing six years period for the purposes of recording a finding of adverse possession, the revisional authority has miscalculated. The findings of the revisional authority that the landed property was evacuee property, etc., are all incorrect and thoroughly misconceived inasmuch as nothing was brought on the record to show that the property was acquired by the custodian, as required under the provision of Administration of Evacuee Property Act, and whether there was any proceedings instituted under the Act for acquiring the property as evacuee property, he also relied upon several decisions of the Apex Court and of this Court explaining the scope of Section 46 of the Act and Section 48A of the U.P. Consolidation of Holdings Act.

Mr. Rajvanshi, the learned Counsel appearing on behalf of Respondent No. 3, on the other hand, contended that the revisional authority had correctly recorded his findings. On the findings, Respondent No. 3 took possession of the lands in question on 29.4.1968 whereas the Petitioners had filed their objection after the abatement of their second appeal by the Board of Revenue in 1970. The onus to prove that the Petitioners had acquired title by adverse possession was on them which they never discharged by adducing any cogent and reliable evidence. Accordingly, this writ petition is fit to be dismissed.

In view of the earlier observations of this Court, read with the revisional order, in my view, there is no, scope for Mr. Verma for making his submissions. From the materials on the record, as noticed in paragraph 4 of the revisional order, the, custodian had taken possession of the lands in question. On the findings, correctly recorded, Respondent No. 3 took possession of the lands in question on 29.4.1968. To crown all his possession was also found in the proceedings u/s 145, Code of Criminal Procedure thus, a heavy onus was on the Petitioners to support their claim of adverse possession by adducing satisfactory evidence.

In S.M. Karim Vs. Mst. Bibi Sakina, , toe Hon''ble Supreme Court had laid down that ''adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show that when possession becomes adverse so that the starting point of limitation against the party affected can be found." in Parsinni (Dead) by Lrs. and Others Vs. Sukhi and Others, , the Supreme Court further held as follows : "The Appellants claimed adverse possession. The burden undoubtedly lies on them to plead and prove that they remained in possession in their own right adverse to the Respondents.... A party claiming adverse possession must prove that his possession must be nec vinec clam nee precario", i.e., peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in the extent to show that their possession is adverse to the true owner."

Admittedly the basic year consolidation entry of the disputed lands, with which is attached presumption of correctness and continuity of the state of affairs, both backward and forward, was in favour of Respondent No. 3.

Frankly speaking, after perusing the objection of the Petitioners I could not find any plea of acquisition of title by adverse possession. in paragraph 7 of their objection, they assert the entry of the name of Respondent No. 3 in regard to the disputed lands during the pendency of the suit which has obvious reference to Section 229B, U.P.Z.A. & L.R. Act suit, as Farzi. I have also gone through the evidence of Petitioner No. 2 Rumal whose deposition is Annexure-5. He has claimed to be 40 years age on 23.12.1970 the day of his deposition. in his examination-in-chief, he has stated that the disputed plots were being cultivated by Chotey and Full (who are fathers of the Petitioners) from before his memory which is of 16-17 years. Nowhere in his examination-in-chief, he has talked of acquisition of title by adverse possession. in his cross-examination, he has stated to the following effect. He had not taken the lands in batal (i.e., share cropping) rather his father had taken but cannot say how and when. He had not tried to ascertain anything in regard to these lands by going in the office of the Consolidation. Bharat Singh took possession of the land after the death of Chotey. I do not know whether this land was of the custodian or not. Ram Ratan is 16 years younger to me Tarachand, their another witness, has also not stated of the alleged adverse possession of the Petitioners who had stated that he does not know whether there was any case between Ram Ratan and Bharat Singh. Their other witnesses Nathi and Aziz Khan had also not said that the Petitioners had acquired title by adverse possession of the lands in dispute. Though these witnesses had stated that the father of the Petitioner was bataidar, they had not stated as to whom he was giving produce in share or anything to the tenant. Even assuming that their claim of their father being bataidar is correct, that only means that the possession of their father was permissive. Such a possession cannot be adverse. An order of mutation does not create title. It is also not an evidence of taking possession. in this view of the matter, the Petitioners cannot succeed. The decisions cited by Mr. Verma do not apply to the facts and circumstances of the instant case and there is no force in his submissions which I reject. This unfortunate lis now must be given a final burial. Agreeing with the revisional authority, I hold that the claim of the Petitioners, in view of the facts and circumstances mentioned above, has got no legs to stand.

In the result, this application is dismissed but in the peculiar facts and circumstances, I make no order as to cost.