Ram Lal v. D.D.C.And Others

Judgment Reserved on 3.10.2023 Delivered on 13.10.2023. Court No. - 48 Case :- WRIT - B No. - 1701 of 1974 Petitioner :- Ram Lal Respondent :- D.D.C.And Others Counsel for Petitioner :- P.P. Chaudhary,Achal Singh,Sanjai Kumar Pandey Counsel for Respondent :- S.D. Pathak,Dinesh Pathak,Jokhan Prasad,Mahendra Prasad,Mahendra Pratap,P.K. Chaudhary,P.K.Chaudhary,Rakesh Pathak,S.C. Hon'ble Saurabh Shyam Shamshery,J.

¶1Heard Sri Sanjai Kumar Pandey, learned counsel for the petitioner and Sri Rakesh Pathak, learned counsel for respondents.

¶2In present case, initially dispute was in respect of two parcel of land i.e. Gata No.361/1 area 0-2-10 and Gata No.399/1 area 0-14-10 situated in Village Nahri Tappa, now District-Siddharth Nagar, however, the petitioner has not pressed his claim in respect of Gata No.361/1-9-2-10 and, therefore, dispute remains only in respect of Gata No.399/1, 0-14-10.

¶3Earlier there were proceedings between parties under Section 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called the "Act of 1950"). Suit was decreed in favour of petitioner. However, during appeal thereof, since consolidation proceedings commenced, in village concerned, therefore, appeal was abated. During consolidation proceedings, objections were filed by both parties under Section 9A (2) of Uttar Padesh Consolidation of Holdings Act, 1953 (hereinafter called the "Act of 1953").

¶4The case set up by original petitioner was that his father was in possession of land in dispute and after his death, he continued in possession and for that revenue record of 1364-69F and 1370-74F were referred.

¶5Per contra, claim of original respondents was based on a registered Bainama dated 21.5.1963 executed by Smt. Mudai in favour of original respondents and that in pursuance of it, possession was handed over to original contesting respondents. The Consolidation Officer has framed following three issues: "1. Whether Sadal etc. are bhumidhar of Plot No.361/0-2-10, 399/1/0-14-10 on the basis of registered sale deed.

¶2Whether Samber s/o Nagashar is sirdar in possession over plot No.361/0-3-10.

¶3Whether Ram Lal s/o Nirhu is sirdar in possession over plot No.399/1/0-14-10."?

¶6The Consolidation Officer after hearing the parties and considering documents on record accepted the objections filed by original petitioner and rejected the objection filed by contesting respondents vide order dated 30.8.1971. Relevant finding thereof are mentioned hereinafter: "First I take the case of Ram Lal. Ram Lal has stated that he is in possession since long. Sadal says that he is in possession from the date of sale deed. Sadal has not stated that previous to sale deed Bhan Shanker etc. were in possession. It means that they were in possession of Ram Lal before execution of the sale deed. Several evidence is against Sadal etc. and in favour of Ram Lal as regards papers the name of the father of Ram Lal is recorded in remarks since 1364F. to 1369F. and from 1370F to 1374F. of Ram Lal. After his name is recorded in class IX

under the oders of S.K. Brahm Shanker etc. never ejected to Ram Lal. So Ram Lal became sirdar when Ram Lal became sirdar then Brahm Shanker etc. were not bhumidhar and were not entitled to execute the sale deed." (Emphasis Supplied)

¶7Contesting original respondents have preferred an appeal before the Settlement Officer of Consolidation. However, same was dismissed by order dated 30.12.1971. Though copy thereof is not on record. However, a typed copy thereof was handed over by counsel for petitioner during hearing which has not been objected by learned counsel for respondents. Relevant part of the order is mentioned hereinafter: "

अपीलकतारकाकथनहैिकिववािदतगाटोकेभूिमधरपहलेबहशंकरवगैरह

थे।उनकेबीचएकरवानगीबंटवाराहुआ।िजससेयहगाटेशीमतीमुइदाकेनाम

हुये।शीमतीमुइदानेउनकाबैनामाअपीलकतारकेहकमेकरिदया।

उकबैनामा

देखनेसेपताचलताहैिककेवलगाटा

काउलेखबैनामेमेहै। यदिप

अपीलकतारकाकथनहैिकगलतीसेगाटासंखया361

काउलेखबैनामेमे

छूटगयाहै।

खसरा

12....

सेपकटहोताहैिकगाटा

मेलगातार 1365

फ०सेरामपालवगर

अंिकतचलाआयाहैऔरउसकेहकमेिवदान

जूिडिशयलअफसरनौगढनेिडगीभीकरदीहै।इसआदेशकेिजरहिवदान

अितिरकआयुकगोरखपुरमंडलकेसमकभीअपीलहुयीथीजोअबेटहोगई

है।रामलालकेइतनेदीघरकालीनअधयासनकोसंिदगधनहीमानाजासकता

औरऐसीिसथितमेशीमतीमुइदाकोइसगाटेकािवकयकरनेकाकोई

अिधकारनहीथा।अतःिवदानचकबनदीअिधकारीकािनषकषरविनणरयसही

जानपडताहैऔरउसमेहसताकेपकीआवशयकतानहीजानपडता।

जहांतक

गाटा361

कापशनहैउसेिसदकरनेमेअपीलकतारपूरीतरहअसफलरहा

है।अपीलिनराधारहैऔरखािरजकरनेयोगयहैतथातदनुसारहीिनसतािरत

कीजातीहै।" (Emphasis Supplied)

¶8Both above referred authorities have placed reliance on revenue records in favour of Ram Lal i.e. original petitioner and that he was in long continuous possession of land in dispute, therefore, since vendor was not in possession of land in dispute, she was not legally entitled to execute a sale deed consequently, vendee also could not get any right over land in dispute.

¶9In above circumstances, original respondents preferred a revision before the Deputy Director of Consolidation which was allowed by impugned order dated 18.12.1973, whereby orders passed by two lower authorities were set-aside. Relevant part thereof is reproduced hereinafter. "4.

गाटासं

0 399/1

केिवषयमेिनगरानीकतारगणोकाकहनाहैिकिववािदत

गाटेकोउनहोनेिदनांक

21.05.68

केरिजसटडरबैनामेकेआधारपरमु०मुइदा

आिदसेखरीदाऔरबैनामेकेआधारपरवेइसगाटेकेभूिमधरहै।दोनो

अधीनसथनयायालयोनेिनगरानीकतारगणोकीकमशःआपितऔरअपीलखािरज

करदीऔरिववािदतगाटे

कासीरदाररामलालकोघोिषतिकया। अधीनसथ

नयायालयोकेआदेशसेकुबधहोकरपसतुतिनगरानीदायरकीगयीहै।

5.

मैनेउभयपकोकेिवदानअिधवकाओंकीबहसकोसुनातथाअवर

नयायालयोकीपताविलयोकाअवलोकनभीिकया।

6.

रामलालिवपकीनेशीमतीमुइदाआिदपरमु0 सं0 870/196... अनतगरत

धारा229

बी०ज०िव०अिध0

केअनतगरतदायरिकयाऔरिवदानजे०ओ०

नौगढनेरामलालकावादिदनांक16.9.69

कोिडगीिकया।िवदानजे०ओ०

केआदेशकेिवरदअपीलदािखलकीगयीऔरअपीलसतरपरसमसतिववाद

िदनांक1.9.70

कोअवेटहोगया।

िवदानजे०ओ०केआदेशकेअनुसार

रामलालकानामअिभलेखोमेदजरकरनेकाआदेशकेअनुसारसमभवतः

रामलालकानामअिभलेखोमेदजरकरनेकाआदेशहुआ।चूँिकवहमुकदमेबाजी

अंितमरपनहीलेसकीथी

,

अतःपकोकेबीचइससमयिववादगुण

-

दोषके

आधारपरदेखजासकताहैजहाँतकिनगरानीकतारगणोकेसवतवकापशनहै

उसेिवकेताओंमु०मुईदाआिदकीओरसेसवीकारिकयागयाहै।

िनगरानीकतारगणोकीओरसेसनदभूिमधरी

,

रिजसटडरबैनामा

,

परगनाअिधकारी

केआदेशिदनांक

11.06.69

कीपितआिदिलिखतसाकयदािखलिकयेगयेहै

िजनसेसपषहैिकमु०मुइदाआिदनेिनगरानीकतारगणोकेपकमेबैनामाऔर

उसकेआधारपरपरगनाअिधकारीनेअमलदरामदकाआदेशिकया।

7.

जहाँतकरामलालकेसवतवकापशनहैउनहोनेकबजेकेआधारपरिववािदत

गाटेपरसीरदारीअिधकारमाँगाहै।इससमबनधमे

1363

लगायत

1374

फ 0

केखसरेकीपितदािखलकीगयीहै।

1363

फ 0

से 1369

फ 0

तकखाना ...........

कैिफयतमेिववािदतगाटेपरिनरहूकाकबजाअंिकतहैिनरहू

रामलालकेिपताथे।चूंिक

1363

फ०से

1369

फ०तककेकबजेकी

पिविषयोकेआधारपरिनरहूअपनासीरदारीअिधकारपिरपकवनहीकरसके थे ,

अतःउनकेिवषयमेहुईकबजेकापिविषयोकालाभरामलालकोनहीिमल

सकता

1971

आर०डी०पृषसं

0 523

केअनुसारअनयवयिकयोके

अनािधकारकबजेकीपिविषयोकालाभदूसरोकोनहीिदयाजासकता।

1370

फ०से

1373

फ०तकरामलालकाकबजाखानाकैिफयतमेअंिकतहैऔर 1374

फ 0

सेउनकानामिशकमीकेखानेमेआगयाहै।चूँिकरामलालऔर

मु०मुइदाआिदकेबीच

1968

यानी

1372

फ 0

मेमुकदमेबाजीशुरहुई

, अतः

उसकेबादकेकृतयोकेइनदाजोपरकोईधयाननहीिदया।जासकताहै।यिद

रामलालकाकबजा

1370

फ 0 से 1375

फ 0

तककामानभीिलयाजायेतो

भीउनकासवतवपिरपकवनहीहोता

,

कयोिककबजेकीशुरवातकेबादवाली

फसलोसेिमयादजोडनेपरही ६वषरकीअविधपूरीनहीहोती।इसके

अितिरकखानाकैिफयतकेजोभीइनदाज

( असपष

)

पकोमेसेउनमेप०क० 10 (

असपष

)

हवालानहीहै।

1973

आर०

-

डी०पृषसंखया

( असपष

) के

अनुसारयिदकबजेकेइनदाजोकेिवषयमेप०क०

कीकायरवाहीहोनेका

पमाणनहुआहोतोऐसीपिविषयाँनहीमानीजानीचािहये।इसपकाररामलाल

कासवतविववािदतभूिमपरिसदनहीहोता।

"

¶10The Revisional Authority has held that name of original petitioner (Ram Lal) was recorded in revenue records on basis of decree passed in a suit filed under section 229-B of Act of 1950, however, since its appeal was abated therefore, it has no legal value. Father of original petitioner could not perfect his right on basis of entries of 1363F to 1369F being under remark column. The entries from 1370F to 1375F would not be sufficient since not only period for adverse possession would not be complete but Form P.A. 10 was also not mentioned.

¶11Learned counsel for petitioner has submitted that Revisional Authority has acted beyond its jurisdiction and has erroneously interfered with concurrent finding of Consolidation Officer and Settlement Officer of Consolidation and replaced it by own findings. He further submitted that on basis of revenue records long continuous possession of father of original petitioner was proved and thereafter possession of original petitioner continued. Revenue Records were rightly appreciated by Consolidation Officer and Settlement Officer of Consolidation.

¶12Learned counsel for petitioner further submitted that finding returned by Consolidation Officer and Settlement Officer of Consolidation that vendor of original respondents was never in possession in land in dispute and further finding that even after a registered Bainama, original respondents (vendee) were never put in possession was not disturbed by the Revisional Authority as well as there was no revenue record that vendor or vendee was ever in possession of land in dispute, therefore, impugned order is liable to be set-aside.

¶13Per contra, learned counsel for contesting respondents has submitted that Consolidation Officer and Settlement Officer of Consolidation misread the effect of nature of entries in revenue records. Effect of Entry of original petitioner being under Column 9 (Sikmi) was skipped from consideration by both authorities. Original petitioner or his father has never perfected his right over land in dispute.

¶14Learned counsel has further submitted that since there was a perverse finding returned by Consolidation Officer and Settlement Officer of Consolidation, therefore, Revisional Authority has rightly interfered and passed an order on basis of correct appreciation of revenue records. The vendor has sufficient documents to prove her right over land as well right to sell land in dispute to original contesting respondents and it was the basis of order of amal daramad passed by Pargana Adhikari, therefore, impugned order does not require any interference.

¶15Heard learned counsel for parties and perused the records.

¶16The issue requires consideration is that whether within limited jurisdiction (as it was) the Revisional Authority was justified in interfering with concurrent finding of two authorities.

¶17As referred above, original petitioner was given benefit of revenue entries of his as well as his father's possession in revenue records by two authorities however, the Revisional Authority has interfered on ground that original petitioner could not have perfected his right since he was a Sikmi and period of 6 years was not complete and further that details of Form P.A.10 was not referred in revenue records.

¶18It was not under dispute that name of father of original petitioner was recorded under column of 'Remarks' since 1346F to 1369F and from 1370F to 1347F and thereafter name of original petitioner was recorded in Class IX under orders of Revenue Authority. Respondents, admittedly never initiated any proceedings to eject father of original petitioner or original petitioner. At this stage, both lower authorities ought to have scrutinized that whether entry was made after due process i.e. Form P.A. 10 was prepared or not, especially when period was less than 6 years however, both lower authorities without considering validity of entry have erroneously declared that father of original petitioner became Sirdar and that since Smt. Mudai were not a Bhumidhar, therefore, she got no right to execute a sale deed in regard to land in dispute.

¶19This Court has discussed about importance and procedure of Form P.A. 10 in a judgment passed in case of Mata Din Singh Vs. Deputy Director of Consolidation & Ors 2023:AHC158629. Relevant paragraphs thereof are extracted hereinafter:: "30. On the face of it, the above approach of Consolidation Officer appears to be contrary to the settled position of law. As referred above, there must be a finding on the basis of clear and unequivocal evidence that possession was hostile to real owner and to denial of his title and knowledge, to the property claimed. There must be animus of the person doing those acts which must be ascertained from the facts and circumstances of the case. However, the Consolidation Officer has in very cursory manner has decided the issue of adverse possession, without reference of above referred essential pleadings and nature of evidence being on record. xxxxxx

¶32The Deputy Director of Consolidation has placed heavy reliance again only on the entries made in revenue records and has not considered factors relevant for taking decision in regard to adverse possession that the possession was adequate in continuity, publicity and adverse to competitor. Adverse possession requires that all three essential requirements to co-exist at the same time, viz., it should be adequate in continuity, adequate in publicity and adverse to competitors in denial of the title and his knowledge. There must be physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner. However, these important factors also skipped from consideration of Deputy Director of Consolidation as well as two Courts below.

¶33I have carefully perused the contents of memo of counter affidavit filed by the respondents, however, they have not stated any averment in regard to any of the factors referred above. Even during the course of argument, learned Senior Advocate appearing for respondents has not pointed out any relevant detail or factor on record that claim of adverse possession was positively proved in terms of the above referred factors. The Ramdular (supra) relied upon by learned Senior Advocate for respondent would not be helpful since it is on the issue of power under Section 48 of U.P. Consolidation of Holdings Act, 1953, and Revisional Authority has power to reexamine the issue but contrary in present case, Deputy Director of Consolidation has not exercised that power.

¶34In view of discussion and findings on above referred issues, I am of the considered opinion that all the Authorities under the Consolidation Act have erred and miserably failed to return a finding whether mandatory procedure for recording revenue entries under 'the Manual' was followed and have also erred in returning a finding about adverse possession only on the basis of revenue entries which only indicates the possession of the respondents for less than 12 years as well as that PA-10 was not prepared in terms of the procedure prescribed under 'the Manual' and further erred in placing reliance on the evidence of mukhtar-khas who was not competent to give evidence in regard to facts which were in exclusive knowledge of the original respondent qua to adverse possession. Lastly, the Authorities have also failed to give finding that possession of respondent was nec vi, nec clam, nec precario."

¶20From above it would be clearly evident that Form P.A.10 is an important piece of evidence to prove possession of original petitioner to be adverse to real owner, however, both authorities have not considered as to whether Form P.A.10 was prepared according to due process or not. The original petitioner has not brought on record any material that Form P.A.10 was prepared in due process, therefore, I don't find any error that since original petitioner failed to prove Form P.A.10, the lower two authorities have committed a legal error in ignoring a material piece of evidence. The finding returned that original petitioner had perfected his right was not only wrong rather it was perverse.

¶21In aforesaid circumstances, this Court has to consider as to whether the Revisional Authority was justified in reversing concurrent findings of two lower authorities within its limited jurisdiction (as then it was).

¶22The Revisional Authority had jurisdiction to interfere with order or orders passed by lower authority or authorities only under such circumstances when authority has exercised jurisdiction not vested in him in law or failed to exercise jurisdiction vested in him or acted in the exercise of his jurisdiction illegally or with substantial irregularity and as a result of which substantial injustice appeared to have been caused to a tenure holder. (See Act No.XXXVIII of 1958).

¶23The word 'substantial' carries importance. Word 'substantial' often means more than 'significant'. Word 'substantial' means 'having substance' 'essential', 'real', 'of sound worth', etc. According to P.Ramanatha Aiyar's: The Law Lexicon 3rd Edition, 2012 meaning of word 'substantial' is 'considerable' and is not the same as 'not substantial'. Hindi translation of word 'substantial' as used in Amendment Act is 'सारवान्' i.e. which goes to the root of dispute.

¶24The Supreme Court in Ram Avadh & Ors Vs. Ram Das & Ors., (2008) 8 SCC 58, has held that concurrent findings of two lower authorities could not be disturbed mainly on basis of assumption or without any basis. It would be relevant that above referred clauses were neither referred nor considered effect of U.P. Land Laws (Amendment) Act, 1982 (U.P.Act No.XX of 1982) enforced with effect from 10.11.1980.

¶25In above context word 'substantial irregularity' used in Section 48 of Act of 1953 (as then was) has to be interpreted. As referred above, non-consideration of an important issue that whether Form P.A.10 was prepared by due process or not would definitely be an irregularity and since entire case was based on such entry, therefore, it would definitely be a 'substantial irregularity' and further it would have definitely caused 'substantial injustice' to a tenure holder i.e. respondent herein/revisionist therein. Therefore, I am of a considered opinion that Revisional Authority was legally justified in interfering with concurrent finding of two lower authorities even within its limited jurisdiction since two lower authorities have acted with substantial irregularity and as a result of which substantial injustice was in fact caused to revisionist/respondent herein.

¶26The petitioner has failed to point out that finding returned by the Revisional Authority were perverse or contrary to record.

¶27In consideration of above discussion, I am of the view that there is no illegality or irregularity in impugned order, therefore, writ petition has no force. Accordingly dismissed.

¶28No order as to costs. Order Date :-13.10.2023 SB High Court of Judicature at Allahabad