JUDGMENT S.K. Singh, J.
1. Challenge in this petition is the judgments of the Deputy Director of Consolidation and Settlement Officer Consolidation dated 10th January, 1975 and 4th June, 1974 (Annexures-3 and 2 respectively) and also judgment of the Deputy Director of Consolidation dated 4th August, 1975 by which petitioner's application to re-hear the matter was rejected.
2 There appears to be no dispute about the fact that petitioner was recorded in the basic year record as seerdar. An objection was filed by the respondent No. 4 claiming bhumidhari rights over the land on the basis of registered sale deed dated 30th November, 1960, executed by Kumar who was original recorded tenure holder. Claim of the respondent was resisted by the petitioner on the ground that petitioner happened to be in cultivatory possession in 1359 fasli and thereafter he has been in continuous possession and thus by virtue of the entry in 1359 fasli he has become adhivasi and seerdar and in any view of the matter subsequent possession being adverse on that ground also he has perfected his rights. Both the parties led their oral and documentary evidence as has been recorded in the order of the Consolidation Officer upon which Consolidation Officer by order dated 4th May, 1973, rejected objection filed by the respondent No. 4 and maintained the basic year entry. Respondent No. 4 on filing appeal, succeeded vide judgment of the Settlement Officer of Consolidation dated 4th June, 1974 who directed expunction of the name of the petitioner and for recording of name of respondent No. 4 as bhumidhar. Revision filed by the petitioner was dismissed by the Deputy Director of Consolidation by order dated 10th January, 1975 and thereafter application to re-hear the matter was also rejected on 4th August, 1975 and thus two orders of the Deputy Director of Consolidation and one of the Settlement Officer of Consolidation, as referred above, are under challenge before this Court.
3. Parties' counsel have been heard at some length,
4. Submission of the learned counsel for the petitioner is that Consolidation Officer by giving finding about possession of the petitioner in 1359 fasli has accepted his rights and, therefore, it was obligatory on the part of the Settlement Officer Consolidation and Deputy Director of Consolidation to have reversed that finding and as it has not been done, the Judgments are legally vitiated. Further argument is that the petitioner has proved his continuous possession and in fact respondents have neither pleaded nor it has been found by the Settlement Officer of Consolidation and the Deputy Director of Consolidation that the possession of the petitioner in 1359 fasli was unlawful and therefore, in view of the U.P. Land Reforms (Supplementary) Act petitioner has acquired right of adhivasi and thereafter seerdar. Lastly, it has been submitted that voluminous documents showing petitioner's possession and title as has been relied upon by the Consolidation Officer has not been referred and the reasonings and findings given by the Consolidation Officer has not been met and reversed by the two Courts and therefore, on this score also the impugned judgments needs interference by this Court.
5. In response to the aforesaid submissions, learned counsel for the respondent submits that petitioner has never pleaded that he has been in possession in 1359 fasli in his own rights and findings as given by the Consolidation Officer also do not say that petitioner was in lawful possession and therefore, no inference can be drawn about lawful possession of the petitioner specially in view of the fact that at no point of time prior to the entry of 1359 fasli petitioner was shown to be original owner in any capacity either in the record or in any proceedings and thus it is submitted that claim of the petitioner on the basis of entry in 1359 fasli of getting right under Supplementary Act cannot be accepted. It is further argued that two courts below have given a finding that the petitioner has not been in continuous possession as in some of the khasra extract name of the petitioner is not recorded and the entry in some of the khasra extract is not in accordance with law and therefore, the aforesaid finding basically being finding of fact, interference as has been prayed by the petitioner in the impugned orders should not be made. In support of the submission that possession if it is shown in 1359 fasli khasra on the basis of which party claims rights unless proved to be lawful possession for which there has to be a pleading, evidence and the findings no right can be allowed on that ground, reliance has been placed on the decision given by the Apex Court in case of Smt. Sonawati and Ors. v. Sri Ram and Ors., 1968 RD 151.
6. In view of the aforesaid arguments, as noted above, the Court has examined the pleadings and judgments of the courts below.
7. There appears to be no dispute about the fact that Kumar happened to be the original tenant of the land from whom respondent No. 4 claims to have obtained the land by means of registered sale deed dated 30.11.1960. The validity of the sale deed has not been disputed by Kumar the recorded person and in fact on 18th July, 1961, mutation was also ordered in favour of the respondent No. 4 on the basis of sale deed, referred above. There is also no dispute about the fact that name of the petitioner was recorded for the first time in khatauni extract 1366-1368 fasli, admittedly on account of judgment and decree passed in his favour in the proceeding under Section 229B of the U.P.Z.A. and L.R. Act dated 12th March, 1962. In view of the observation as has come in the judgment of the Settlement Officer of Consolidation and certified copy of the judgment of the Additional Commissioner as was placed before this Court during course of argument which was passed in the proceedings under Section 229B of U.P.Z.A. and L.R. Act, referred above, it is clear that the suit filed by the petitioner in which decree was passed on 12.3.1962 was withdrawn by him. Be that as it may, it has also come in the judgment that at some stage proceedings of the suit under Section 229B of U.P.Z.A. and L.R. Act was also abated under the provisions of U.P. Consolidation of Holdings Act. Accordingly, so far the entry in the name of the petitioner in khatauni extract is concerned that having come into existence only on the basis of the decree which either on account of withdrawal of the suit or on account of abatement of the suit cannot be treated to be valid continuance upto basic year record unless petitioner is able to demonstrate before the consolidation authorities and before this Court that but for the decree in his favour in 229B suit his name could have come in record.
8. In view of the aforesaid, now the Court is to examine the rights of the petitioner as claimed before this Court on the basis of the entry in 1359 fasli in which petitioner is said to be in possession and in the alternative on the basis of his claim of perfection of the rights by adverse possession. While proceeding to examine the aforesaid two aspects this Court is straightway of the view that both situations, i.e., lawful possession of the petitioner in 1359 fasli and at the same time subsequent possession entry having become unlawful cannot go together. Needless to say that for claiming rights on the basis of possession in 1359 Fasli as it is clear from Section 3 of the Supplementary Act itself, as referred above, and also on the basis of decision as given in case of Smt. Sonawati (supra), possession of the petitioner has to be lawful which clearly means that a person shown to be in possession must have lawful right to be in possession observation made by the Apex Court in this connection will be useful to be quoted here :
"Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recognised for the purpose of the Act must be lawful, and for the whole year 1359 fasli. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of Section 3 of U.P. Act of 1952."
9. The material on the record and the findings so recorded even by the Consolidation Officer do not indicate that petitioner was shown in any record of rights prior to 1359 fasli having been recorded as a owner/tenure holder of the property and thus claim of the petitioner even if he was shown to be in possession in 1359 fasli cannot be accepted. Even Consolidation Officer has not recorded any finding that petitioner was in lawful possession in 1359 fasli. It appears that Consolidation Officer was not conscious of this legal situation that unless the petitioner is able to prove his entitlement to be in possession and his possession is found to be lawful he cannot be allowed any rights. Consolidation Officer appears to have been swayed by solitary factor that petitioner was found to be in possession, although that finding also do not appear to be very much convincing and based on correct analysis of evidence on record. As basic year entry in the name of petitioner has already found to be without any valid basis, it was for petitioner to take proper pleading, lead evidence and then extract for a finding about his lawful possession on basis of entry of 1359 fasli. Findings so recorded by Settlement Officer Consolidation clearly indicates that petitioner has been paying rent to the recorded tenure holder viz., Kumar and at the same time there is statement of one Bagedu who has clearly stated that petitioner used to get cultivation for Kumar and he used to reside with Kumar. All the rent receipts are in the name of recorded person as found by the Settlement Officer of Consolidation. The khasra extract on which reliance has been placed by the petitioner has also been taken note of by the Settlement Officer, Consolidation and finding has been recorded that in some of the khasra extract petitioner's entry is not in accordance with law and in 1359 fasli there is no entry in favour of the petitioner. Thus it is clear that neither there is continuity of possession nor possession so recorded in some khasra extract is in accordance with law. The finding so recorded by Settlement Officer Consolidation has been confirmed by Deputy Director of Consolidation which cannot be said to be based on no evidence or perverse in any manner. In respect to the filing of the original sale deed by the respondent No. 4 a finding has been recorded by the Settlement Officer, Consolidation that original sale deed has been filed by him in a criminal case. In view of the aforesaid on examination of the finding given by the two courts below it is clear that neither petitioner has been able to prove his lawful possession in 1359 fasli as claimed before this Court nor he has been able to prove continuous possession for more than statutory period entitling him to get rights on the basis of adverse possession. There is one more significant aspect which is to be noted at this stage. So far the sale deed in favour of the respondent No. 4 is concerned Teerthraj who happens to be son of petitioner claiming himself to be adopted son of Kumar has filed suit for cancellation of the sale deed, i.e., Original Suit No. 64 of 1962 which was ultimately dismissed on 23rd March, 1964. Although petitioner was not party in the proceedings for cancellation of the sale deed but at the same time while recording various findings, this aspect can also be taken note of. In view of analysis made above, it is clear that Kumar happened to be recorded tenure holder who has executed registered sale deed in favour of respondent No. 4 on the basis of which mutation was also effected in his favour and the petitioner has not been able to prove any existing title either prior to the Zamindari Abolition or on the date of Zamindari Abolition Act or even thereafter. His name appears to be in the basic year record only on the basis of the decree in suit under Section 229B of U.P.Z.A. and L.R. Act which has to be ignored on the fact of the present case. Accordingly, this Court is not satisfied that judgments of two courts below can be said to be vitiated in any manner and petitioner can be said to have suffered any prejudice or any injustice on account of the impugned orders. The findings recorded by two courts below on the question of possession are essentially finding of fact in which this Court finds no ground to interfere.
10. For the reasons recorded above, this writ petition falls and is dismissed.