Court No. - 36
Reserved on:14.03.2018 Delivered on: 30.03.2018 Case :- WRIT - B No. - 3176 of 2018 Petitioner :- Gulab Chandra Respondent :- Deputy Director Of Consolidation And 04 Others Counsel for Petitioner :- Santosh Kumar Tiwari Counsel for Respondent :- C.S.C.,Anuj Kumar
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties.
The present petition is directed against the orders dated 29.11.2017, 16.11.2017 and 26.06.2015 passed by the Consolidation authorities in a proceeding under Section 9-A (2) of U.P. Consolidation of Holdings Act. It appears that certain persons filed objection under Section 9-A(2) of the Act claiming their rights over the lands in various Gatas of Khata no.1070. The claim of the petitioner's father Kamta Prasad was with regard to the Gata no.3611/6-18-0 based on his adverse possession.
During the pendency of the said proceeding, it appears that Kamta Prasad died and the petitioner, his son, moved an application on 22.07.1995 stating therein that Bhawani Deen son of Changu who was the Sarvakar of temple namely Sri Radha Krishna Mandir Virajman Mataundh, appointed by the Court, had died intestate on 09.06.1995. And as such, the petitioner be appointed as Sarvakar of the said temple. Another application was moved by one Jagmohan Prasad Dwivedi claiming himself to be the Sarvakar. Similarly others have also filed applications praying the same relief.
In so far as the claim of petitioner Gulab Chandra is concerned, it was held by the trial Court that name of Kamta Prasad was recorded in 1373 fasli in Arazi no.3611/6-18-0 in category 9. Thus possession of his father since 1373 fasli stood proved. In the column of original tenure holder though the name of Sri Radha Krishna temple was entered, however, in the special remarks column, Kamta Prasad son of Bhairam Sakindeh was mentioned. The entries in 1374 fasli are similar and from 1377 to 1394 fasli, name of Kamta Prasad in category 9 had continued. Thus it was held that over the land which was recorded in category 9 in the name of Kamta Prasad, he would get rights of Bhumidhar with transferable rights on the basis of his adverse possession. By order dated 15.04.2005, it was directed that the name of Kamta Prasad be recorded in Gata no.3611/6-18-0 as Bhumidhar with transferable rights.
This order was challenged in appeal which was allowed vide order dated 24.03.2007. While setting aside the order dated 15.04.2005, the matter was remitted back. The Consolidation Officer passed a fresh order dated 16.11.2007 and concluded that in Basic Year Khatauni, Khata no.1070 Gata no.3611/2.99 was recorded in the name of Sri Radha Krishni Ji Mandir Sarvakar Bhawanideen son of Changu resident of Gram Mataundh. Over the same Gata name of Kamta Prasd in category 9 was recorded. At the time of survey, possession of Kamta Prasad was not found on the spot rather it was found in possession of Bhawani Deen son of Changu as Sarvakar of the temple. It was held that through from 1372 to 1396 fasli name of Kamta Prasad was recorded but on the plea of possession no evidence was filed to substantiate his claim. The land was admittedly recorded in the name of Sri Radha Krishna Virajman Mandir as tenure holder, the entries in category 9 would not confer any right upon any person by way of adverse possession more so in view of the fact that the said land belongs to the deity. The appellate court has recorded that on a public land, on the basis of entry in category 9, no right by way of inheritance can be given to the petitioner. Even otherwise, the entries of category 9 were made against the Land Record Manual. No benefit can be derived by the petitioner on the basis of the said entry. The revisional court has also arrived at the same conclusion. It has further been recorded that the entries in 1373 fasli were made by Lekhpal in red ink and by signatures thereon are illegible, further it was not counter signed by the Supervisor, Kanoongo. Paragraph no.102 and 423 of Land Record Manual have not been followed. Moreover, the land in question is a land of temple and being recorded in the name of temple, no-one can claim right by way of adverse possession.
These orders are challenged in the present with the assertion that the entries of category 9 admittedly, in the name of the petitioner's father continuing since 1373 fasli could not have been ignored in such a manner. The Consolidation Officer has rightly granted Bhumidhari right to the petitioner's father Kamta Prasad noticing the fact that his possession is recorded in the record of rights since after 1373 fasli continuously till 1394 fasli. Further no objection was raised by the Gaon Sabha regarding the entries in the name of the petitioner's father. The State of U.P. could not have maintained appeal against the order dated 15.04.2005 after a period of one year. The remittal order dated 24.03.2007 is an illegal order. There was no other contesting party who had raised any objection regarding possession of the petitioner or his father. Reliance is placed upon the judgement of this Court in Smt. Sukhinder Jeet Kaur & others Vs. Deputy Director of Consolidation & others reported in 2003 (94) RD 353, Bala Prasad Vs. District Deputy Director of Consolidation, Banda & others reported in 2003 (94) RD 405.
As to the manner in which entries of category 9 in 1373 fasli were made in the record of rights, no submission can be made by the learned counsel for the petitioner.
As far as the original tenure holder is concerned, it is admitted that the land in question is recorded in the name of the temple namely Radha Krishan Ji Mandir. Once the property is dedicated to the deity, no-one can claim his possession over the land to the exclusion of rights of Deity. Even otherwise, there is one fact which requires to be noticed that the petitioner in his application dated 22.07.1995 filed before the Consolidation Officer claimed his right for appointment as Sarvakar of the temple of Sri Radha Krishna Ji Mandir. It is also reflected from the record that one Bhawani Deen son of Changu was appointed as Sarvakar of the temple by the Court. The entries in the name of temple as a tenure holder is not disputed.
Further the Appellate Court records that the entries in 1356 and 1359 fasli which were sought to be proved from the statement of Assistant Revenue Record Keeper and Assistant Registrar Kanungo are not reliable as admittedly these entries did not continue from 1360 to 1372 fasli rather Sri Radha Krishna Ji was recorded since after 1360 fasli as original tenure holder. This apart from the entry in Khatauni Khata no.36/1070 fasli year 1390-1395, it appears that vide order dated 15.12.1990 in case no.2324 passed by the Consolidation Officer, the entries in category 9 were directed to be expunged. The said order has become final as there has been no challenge to the same. The entries of 1373 fasli in category 9 was against the Land Record Manual. And as such no relief can be granted to the appellant on the basis of the same.
Further, the claim of the petitioner at different stages was contradictory in nature. Even otherwise, the Courts below have recorded a categorical finding that the petitioner or his father have not been able to prove their adverse possession and the manner in which the entry in category 9 over the land belonging to temple was made in the year 1373 fasli.
In so far as the contention of learned counsel for the petitioner regarding right of the State of U.P. to file appeal against the order dated 15.04.2005 is concerned, suffice it to say that the matter has now been decided on merits by three Courts after the remittal order 24.03.2007 was passed by the appellate Court. There was no challenge to the said order and the petitioner has contested in the three rounds of litigation before the Consolidation Officer, appeal and revision. He is estopped from challenging the remittal order at this stage. The arguments of learned counsel for the petitioner in this respect are misconceived.
For all the above noted reasons, this Court does not find any error in the orders impugned.
The writ petition is dismissed as such.
Order Date:- 30.03.2018 Himanshu