Heard learned counsel for the petitioners, learned Standing Counsel representing the respondent Nos. 1 and 2 and the learned counsel representing the respondent Nos. 3 to 5 and perused the record available on this petition.
By means of this petition instituted under Article 226 of the Constitution of India, the petitioners are challenging the order dated 18.06.2007, passed by the Settlement Officer of Consolidation, whereby the appeal filed by the respondents against the orders dated 08.07.1993 and 23.07.2004, passed by the Consolidation Officer has been allowed and the said orders of the Consolidation Officer have been set aside. The learned appellate court has accordingly ordered that the name of the recorded tenure holder Mst. Raghuraji, daughter of Pherai be expunged and in her place names of respondents-Buddhu, Sukai and Ram Prasad, sons of Ram Lal be recorded. By the said order, the objections filed by Jhingur, son of Dhani and Jagannath and others (petitioners herein) have been rejected.
The petitioners have also challenged the order dated 19.07.2007, passed by the Deputy Director of Consolidation, whereby learned revisional court while exercising the powers under Section 48 of the U.P. Consolidation of Holdings Act, has dismissed the revision petition filed by the petitioners against the order dated 18.06.2007 which was passed by the Settlement Officer of Consolidation.
For the purposes of appropriately appreciating the controversy and the issues involved in this petition, the following pedigree is relevant to be mentioned:
Nohari Pherai Shiv Raj Dhani Rajwanta (wife) Ram Das Ram Lal Jhingur Jokhan Baldeo Keshav Ram Buddhu Sukai Ram Prasad (OP-3) (OP-4) (OP-5) Kashi Ram Ghirau Raghuraji (daughter) (died issueless) Raghuraji is said to have parted with her rights to (1) Jagannath, (2) Sheo Nath, (3) Sukh Nath, (4) Vishwanath and (5) Ram Nath.
Undisputedly, the land in question, namely, the land comprising in old Gata No. 819, having an area of 2 Bhiga, 17 Biswas and 16 Biswansis, situate in Village Parsawan Mahola, Pargana Paschimrath, Tehsil Bikapur, District Faizabad was recorded in the name of Nohari. After his death the said plot got recorded in the name of Pherai. The name of Rajwanta, W/o Pherai was recorded in PA-11, under Section 33-A of the U.P. Land Revenue Act treating it to be a case of undisputed mutation on the death of Pherai. Thus, when first round of consolidation operation was held, the basic year entry in respect of the land in question in the revenue records was in the name of Rajwanta. On commencement of consolidation proceedings, objections under Section 9A(2) of the U.P. Consolidation of Holdings Act were filed by Ram Das and Ram Lal on the basis of adverse possession. The said objection was, however, rejected by the order passed by the Consolidation Officer, on 14.10.1966 and the land in question was ordered to be recorded in the name of Raghuraji, the daughter of Rajwanta.
Against the said order dated 14.10.1966, Ram Das and Ram Lal filed an appeal under the relevant provision of U.P. Consolidation of Holdings Act which, too, was dismissed by the appellate court, vide order dated 31.01.1967. Thereafter, against the said order dated 31.01.1967, a second appeal under the then existing provisions of U.P. Consolidation of Holdings Act was filed, which, too, was dismissed by the learned Deputy Director of Consolidation, vide his order dated 13.02.1968, which has been filed as Annexure No.5 to the writ petition. By the said order, the entry in the name of Raghuraji was maintained. On the basis of said order passed by the Consolidation Court, a chak was carved out giving valuation of the old plot no.819 in favour of Raghuraji.
Petitioner Nos. 1, 2, 3, 4 and one Ram Nath purchased the land in question from Raghuraji, vide registered sale deed dated 17.07.1980. Jagannath, Sheo Nath, Shukh Nath and Vishwanath are the petitioner Nos. 1 to 4 in this writ petition, whereas one son of Ram Nath, namely, Ghirau and his wife Sajana are the petitioner Nos. 5 and 6 in this petition. On the basis of sale deed dated 17.07.1980, a mutation application was made by vendees, under Section 34 of the U.P. Land Revenue Act, however, mutation case could not be decided and in the meantime village was notified for consolidation operations by issuing a notification under Section 4 of the U.P. Consolidation of Holdings Act for the second round of the consolidation and accordingly as a consequence, the mutation case instituted on the basis of said sale deed dated 17.07.1980 was abated.
On commencement of second round of consolidation, objections were filed by the respondents claiming their rights over the land in question. The Consolidation Officer, vide his order dated 08.07.1993 allowed the claim of the petitioners and rejected the claim laid by the sons of Ram Lal who are the respondent Nos. 3, 4 and 5 in this writ petition.
Against the said order dated 08.07.1993, passed by the Consolidation Officer, certain proceedings of restoration and appeal etc. were drawn and ultimately the matter was again decided by the Consolidation Officer, vide his order dated 23.07.2004. The Consolidation Officer by the said order dated 23.07.2004 maintained the earlier order dated 08.07.1993.
Against the said order dated 23.07.2004, an appeal was filed by the respondents before the Settlement Officer of Consolidation, which was allowed by the Settlement Officer of Consolidation, vide order dated 18.06.2007. The Settlement Officer of Consolidation set aside the order dated 08.07.1993 and the order dated 23.07.2004, passed by the Consolidation Officer and ordered that the name of Raghuraji, daughter of Pherai be expunged and in her place the name of Ram Lal and thereafter names of his successors, namely, Buddhu, Sukai and Ram Prasad (respondent nos. 3, 4 and 5) be recorded.
The order dated 18.06.2007 was challenged by the petitioners by way of instituting revision petition under Section 48 of the U.P. Consolidation of Holdings Act which, however, has been dismissed by the revisional court, vide order dated 19.07.2007. These are the two orders dated 19.07.2007 and 18.06.2007, passed by the Deputy Director of Consolidation and Settlement Officer of Consolidation respectively which are under challenge herein.
The emphasis of the learned counsel appearing for the petitioners is that the respondents had laid their claim on the basis of adverse possession, however, they have not been able to prove that they perfected their rights on that basis. Submission is that it is well settled that a person claiming title on the basis of adverse possession has to prove that the possession is adequate and is in continuity, and also that adverse possession has been in the knowledge of the other party. His further submission is that any person claiming title on the basis of adverse possession has to establish as to when the possession became adverse. His submission, thus, is that the respondents could not establish the adverse possession over the land in dispute and that the order, thus, passed by the Consolidation Officer dated 08.07.1993 as reiterated by him again on 23.07.2004 did not suffer from any error or illegality and hence said orders did not call for any interference by the Settlement Officer of Consolidation or the learned Deputy Director of Consolidation. In this view, the submission of learned counsel for the petitioners is that the orders impugned in this petition, namely, the orders dated 19.07.2007 and 18.06.2007, passed by the Deputy Director of Consolidation and Settlement Officer of Consolidation respectively are erroneous. In respect of his submission, learned counsel for the petitioners has relied upon the judgments in the case of (1) Bangalore Development Authority Vs. N. Jayamma, reported in [2016 (34) LCD 1463], (2) Ram Anak and others Vs. Smt. Rajpati and others, reported in [2004(22) LCD 102], (3) Balkrishan Vs. Satya Prakash and others, reported in [2001(19) LCD 1082], (4) Sant Bux Singh Vs. Joint Director of Consolidation, Faizabad and others, reported in 1986 (4) LCD 216 and (5) Kedari Lal Vs. Board of Revenue, reported in 2004 (2) AWC 1158.
On the other hand, learned counsel representing the respondent Nos. 3 to 5 has vehemently submitted that in fact the dispute was already decided by the order dated 17.02.1963, passed by the Consolidation Officer whereby the respondents were ordered to be recorded as Sirdar in the earlier consolidation operations and the order dated 17.02.1963 was not taken into consideration by the Consolidation Officer while passing the order dated 14.10.1966, whereby the name of Raghuraji was ordered to be recorded from whom the petitioners are said to have purchased the land in question by way of sale deed dated 17.07.1980.
Submission of learned counsel for the respondents is, thus, that once in respect of the some land the Consolidation Officer had already passed the order on 17.02.1963, it was not open to the Consolidation Officer to have passed the order subsequently on 14.10.1966 ignoring the earlier order dated 17.02.1963. Further submission is that while passing the order dated 14.10.1966, the Consolidation Officer in fact had reviewed the earlier order dated 17.02.1963 and since under the scheme of U.P. Consolidation of Holdings Act, no power of review is vested in the consolidation courts/authorities, the order dated 14.10.1966 was completely unlawful and since on the basis of said order dated 14.10.1966, no right can be said to have accrued upon Raghuraji-predecessor-in-interest of the petitioners from whom the petitioners have purchased the land, vide sale deed dated 17.07.1980, therefore, the claim of the petitioners based on the said sale deed is absolutely not tenable.
I have considered the submissions made by learned counsel representing the respective parties.
The basis of claim of the petitioners is the sale deed dated 17.07.1980 executed by Raghuraji in their favour. Mutation application filed by the petitioners on the basis of said sale deed dated 17.07.1980 was abated on account of notification of consolidation operations in the village for the second time. In the second round of consolidation operations, the matter was again contested between the parties wherein the petitioners as also the respondents contested the matter before the Consolidation Officer who vide his order dated 08.07.1993 rejected the claim of the respondents and allowed the claim of the petitioners on the basis of compromise. The said compromise is on record as Annexure No.7 to the writ petition at pages 36 and 37, a perusal of which reveals that the said compromise was entered into between Raghuraji and the petitioners and one Ram Nath. The order dated 08.07.1993 itself states that the said order is an exparte order i.e. the order was passed in absence of Buddhu and others (respondent Nos. 3 to 5). Admittedly, Buddhu and others, who are the respondent Nos. 3 to 5 in this petition are not the party to the compromise. The compromise was entered into only between Raghuraji and the petitioners who were claiming their rights on the basis of sale deed dated 17.07.1980 executed by Raghuraji in their favour.
It, thus, appears that the case of the respondents was not considered at all by the Consolidation Officer while passing the order dated 08.07.1993. The issue in this case, thus, is as to what was the claim on the basis of which the respondents are claiming their rights in the land in dispute and as to whether they have been able to establish their claim.
The respondent Nos. 3 to 5 moved an application seeking restoration of the case and setting aside of the order dated 08.07.1993, however, their claim of restoration was rejected by the Consolidation Officer, vide his order dated 23.07.2004. Thus, it is clear that the claim of the respondents was not considered at all on merits by the Consolidation Officer for the reason that Consolidation Officer, vide his order dated 23.07.2004 has reiterated the earlier order dated 08.07.1993 which ultimately is based on compromise entered into between Raghuraji and the petitioners to which respondent Nos. 3 to 5 were not the party.
In fact, the basis of the claim put-forth by the respondent Nos. 3 to 5 claiming their rights in the land in question is the order dated 17.02.1963, passed by the Consolidation Officer and their assertion is that the order dated 14.10.1966, passed by the Consolidation Officer in the earlier consolidation proceedings whereby the name of Raghuraji is said to have been recorded is a forged order in respect of which no case was found to be registered. The respondents while contesting the matter before the appellate court i.e. Settlement Officer of Consolidation filed a certified copy of the order dated 17.02.1963, passed by the Consolidation Officer in the earlier consolidation proceedings, according to which name of Rajwanta, wife of Pherai was ordered to be expunged and the name of Ram Lal who is predecessor-in-interest of respondent Nos. 3 to 5 was ordered to be recorded as Sirdar. Learned appellate court has also taken into account the Amaldaramad of the said order dated 17.02.1963, which is available on CH Form 45 prepared in the earlier consolidation proceedings. It was, thus, contended by the respondents before the appellate court that once the order dated 17.02.1963 was passed in favour of the predecessors-in-interest of the respondent Nos. 3, 4 and 5, it was not open to the Consolidation Officer to have passed another order dated 14.10.1966. It was also contended by the respondents before the appellate court that in the aforesaid factual background, the sale deed dated 17.07.1980 would not confer any right on the transferee.
The Settlement Officer of Consolidation has considered the entire matter in detail and has recorded a finding that from the record and the evidence available, it is established that original recorded tenure holder of the land in dispute was Rajwanta, wife of Pherai and that Consolidation Officer in Case No.3105/1 passed an order on 17.02.1963 that the name of Rajwanta be expunged and that of Ram Lal, son of Dhani be recorded as Sirdar. He has also recorded a finding that the Amaldaramad of the said order dated 17.02.1963 was also made in CH Form 45 at Khata No. 663 prepared in the earlier consolidation operations.
The matter, thus, was appropriately probed by the Settlement Officer of Consolidation who has also recorded a finding that since Amaldaramad of the order dated 17.02.1963 was not made by CH Form 23 timely, as such the name of Raghuraji appears to have got entered in the record on the basis of the order of the Consolidation Officer dated 14.10.1966. He has also categorically recorded a finding that if in respect of the land in dispute the Consolidation Officer had already passed an order dated 17.02.1963 then he did not have any jurisdiction to have passed the order subsequently on 14.10.1966. He has also found that it thus appeared that Amaldaramad of the order dated 14.10.1966 was forged for the reason that the file from where the order dated 14.10.1966 is said to have emanated stood destroyed and no certified copy of the said order was produced. The Settlement Officer of Consolidation has further observed that even if the order dated 14.10.1966 is said to be a genuine order, the same will have to be ignored for the reason that it was without jurisdiction as the Consolidation Officer before passing the said order dated 14.10.1966, had already determined the rights in the land in dispute, vide his earlier order dated 17.02.1963.
When the finding recorded by the learned Settlement Officer of Consolidation is examined, what I find is that while passing the order dated 14.10.1966, the order passed on 17.02.1963 was completely ignored. The Consolidation Officer in the subsequent consolidation proceedings passed an order on 08.07.1993, however, Consolidation Officer did not consider the claim of the respondent Nos. 3 to 5. The order dated 08.07.1993 is admittedly an exparte order and is based on compromise entered into between Raghuraji and the petitioners. It is the appellate court which has considered the claim of the respondent Nos. 3 to 5 based on the order dated 17.02.1963 passed in the earlier consolidation proceedings by the Consolidation Officer.
It is also relevant to notice that though the matter was again considered by the Consolidation Officer, however, the order dated 23.07.2004 was passed by the Consolidation Officer on technicalities. The case of the respondent Nos. 3 to 5 based on the earlier order dated 17.02.1963 was not considered by the Consolidation Officer. The Settlement Officer of Consolidation has not doubted the existence of the order dated 17.02.1963 passed in Case No. 3105/1 by the Consolidation Officer. He has also relied upon the CH Form 45 whereupon Amaldaramad of the order dated 17.02.1963 was also found. The Settlement Officer of Consolidation has also relied upon Nakal Goswara and irrigation receipts and has given a categorical finding that the respondents were able to establish their rights over the land in dispute. From the records as are available in this petition, it is clear that the order dated 17.02.1963, passed by the Consolidation Officer was ignored for the reason that Amaldaramad of the said order was not made timely. The order dated 14.10.1966 was passed by the Consolidation Officer in ignorance of the order dated 17.02.1963 and thereafter records were prepared in the name of Raghuraji and her successors-in-interest, namely, the petitioners on the basis of the sale deed dated 17.07.1980.
It is noticeable that the order dated 17.02.1963 passed by the Consolidation Officer in the earlier consolidation proceedings whereby the name of the respondents/ their predecessor-in-interest were ordered to be recorded was never challenged by the petitioners or their predecessors-in-interest. The said order remained unchallenged and a categorical finding in this regard has been recorded by both the learned courts below.
Learned Deputy Director of Consolidation has also recorded a finding to the aforesaid effect and has held that the order dated 14.10.1966 could not have been passed ignoring the earlier order dated 17.02.1963. Learned Deputy Director of Consolidation has in fact concurred with the findings recorded by the Settlement Officer of Consolidation after considering the entire evidence himself.
From evaluation of the entire facts and circumstances of the case as can be culled out from the pleadings available on record as also from perusal of the impugned orders passed by the Settlement Officer of Consolidation and the learned Deputy Director of Consolidation, what is noticeable is that both the courts below have recorded concurrent finding of facts that names of the respondents/their predecessors-in-interest were ordered to be recorded, vide order dated 17.02.1963 and the said order dated 17.02.1963 remained unchallenge and thus became final on issuance of notification under Section 52 of the U.P. Consolidation of Holdings Act in respect of earlier round of consolidation operations.
Accordingly, Raghuraji from whom the petitioners are claiming rights in the property on the basis of sale deed dated 17.07.1980 could never be held to be the owner of the land in question and accordingly the sale deed dated 17.07.1980 would not confer any right on the petitioners. It is also noticeable that the basis of the claim of the petitioners is the order dated 14.10.1966, existence of which has been doubted by both the courts below and further more, even if the said order dated 14.10.1966 is treated to be a genuine one, I have no doubt to hold that the said order passed by the Consolidation Officer was completely without jurisdiction having been passed in ignorance of the earlier order dated 17.02.1963, passed by the Consolidation Officer whereby the name of the respondents/their predecessors-in-interest was ordered to be recorded as Sirdar. On the basis of the order dated 14.10.1966, thus, neither any right can be said to have accrued upon Raghuraji/predecessors-in-interest of the petitioners nor upon the petitioners who are claiming their rights in the land in question on the basis of sale deed dated 17.07.1980 executed by Raghuraji. Since no right had accrued in the land in question to Raghuraji, the claim of the petitioners on the basis of sale deed dated 17.07.1980 is also not sustainable.
In view of the concurrent finding of facts recorded by both the learned courts below and also for the reasons as aforementioned, I am not inclined to interfere in this petition, which is hereby dismissed.
Parties to the case will, however, bear their own costs.
Order Date :- 22.08.2019 Sanjay