Heard Shri I.D. Shukla, learned counsel for the petitioners and Shri Dileep Singh, learned counsel for the opposite parties.
This is a writ petition under Article 226 of the Constitution of India challenging an order dated 20.07.1995 passed by the Deputy Director of Consolidation under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as ''the Act, 1953').
The dispute pertains to Khata No. 58 comprising Gatas No. 316, 342, 355, 548, 359, 615, 652, 655 and 933. Consolidation operations commenced in 1376-78 fasli i.e. sometimes in the early 1970s.
The facts of the case in brief are that in the basic year Khatauni the private opposite parties herein were recorded tenure holders in respect of the land in question since 1952. The petitioners herein filed objections claiming bhoomidhari rights on the ground that the land was ''Sir Khudkast' of their predecessor in interest Shiv Managal Misra which had in fact been mortgaged with the forefathers of the private opposite parties. Their objections were rejected as time barred on 09.12.1972 but the Settlement Office Consolidation vide his order dated 26.03.1973 set-aside the order of the C.O. dated 09.12.1972 and remanded the matter back for a decision afresh. Thereafter, the matter was decided on merits. The objections of the petitioners herein were rejected by the Consolidation Officer on 07.08.1989 by holding that there was no evidence to show that the mortgage had been redeemed. The opposite parties, the recorded tenure holders, had stated that they were in possession since prior to 1955, therefore, even if the mortgage had been redeemed as was being claimed by the objectionists (petitioners herein) the recorded tenure holders were entitled to rights in the land in question on the basis of possession, which obviously meant adverse possession.
Being aggrieved the petitioners herein filed an appeal under Section 11 of the Act, 1953 before the Settlement Officer Consolidation, who allowed the same vide his judgment dated 20.07.1995. The S.O.C. took note of the contention of the petitioners herein based on the mortgage dated 15.05.1928 in favour of the forefathers of the opposite parties, the plea of perfection of bhoomidhari rights under Section 14 of the Act, 1950 after the date of vesting, as also, the claim of the respondents that the land in fact was recorded in the name of certain other agriculturists and they had taken possession of the same from them, meaning thereby, their denial of the mortgage. The S.O.C. after considering the evidence on record held that the land in question was the property of the ancestor of the petitioners, Shiv Mangal Misra and was recorded as such in the Khewat pertaining to third settlement wherein, he was recorded as the mortgagor and the forefathers of the opposite parties i.e. Shatrughan, was recorded as mortgagee. The land was Sir Khudkasht of the predecessors in interest of the petitioners. Similar entries were there in respect of the lands in question in Khatauni of 1359 fasli, wherein, the opposite parties herein were mentioned as mortgagees and the forefathers of the petitioners were mentioned as mortgagors. The S.O.C. considered the facts of the case in the light of the provisions of Section 14 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ''the Act, 1950') and held that in view thereof the rights of the opposite parties to hold or possess such land as mortgagee got ceased and their possession thereafter was permissive and not adverse and in fact they had not even setup a case of adverse possession against the appellants- petitioners herein, as, they were denying their title itself and were claiming that the land was recorded in the name of some other agriculturists. He held that the possession of the respondents before him would be that of a licensee and would not amount to adverse possession. He also found that the respondents before him had not been able to prove, by adducing any evidence, that how the land in question had been acquired by them from agriculturists/ cultivators and that no evidence was adduced to show that the land in question was recorded in their name under the orders of some competent authority, therefore, the entries in their name were found to be without any basis.
Being aggrieved the opposite parties herein filed a revision. The Revisional Court upturned the order of the S.O.C. on the ground that the land was not Sir Khudkasht and that the opposite parties herein, who were revisionists before the D.D.C., had perfected their title by adverse possession by being in possession since 1955 till start of the Consolidation operations in 1972 i.e. more than 12 years.
The contention of the learned counsel for the petitioners was that the opposite parties herein had not setup a claim of adverse possession as had been correctly noticed by the S.O.C. in his judgment. Moreover, the continued possession of the mortgagee after the coming into force of Act, 1950 was permissive and not adverse possession as had been held by a Full Bench of this Court after considering the relevant provisions of Section 14 and 210 etc. of the Act of 1950 in the case of Balwant Vs. Deputy Director of Consolidation reported in 1975 RD 107 (FB) which had subsequently been followed by a Single Judge Bench of this Court in the case of Tribeni Vs. Chakauri and Ors. reported in 1982 RD 185, therefore, the entire basis of the order of the D.D.C. is a wrong factual and legal premise. He also contended that the D.D.C. had not given any reason for setting aside the finding of the S.O.C. that the land was Sir Khudkasht of the predecessors in interest of the petitioners.
The learned counsel for the opposite parties Shri Dileep Singh contended that the petitioners had asserted in their objections that they should be given possession of the land in question which belied their contention that they had come into possession in 1955 as such the possession of the opposite parties was established and it was adverse.
Having heard learned counsel for the parties and perused the records, the Court finds that the D.D.C. has not given any cogent reason for recording that the land in question was not Sir Khudkasht, whereas, the S.O.C. in his order has specifically given reasons in support of his finding none of which had been considered and dislodged by the D.D.C. The S.O.C. in his order has referred to the relevant revenue records wherein the forefathers of the petitioners were recorded Sir Khudkasht in the third settlement as also in the Khatauni of 1359 fasli. He also opined that- "[ksoV eqrZfguh mlh vkjkth dk curk Fkk tks jsgu djus ds igys lhj o [kqndk'r dh vkjkth gksrh FkhA" None of the reasonings given by the S.O.C. has been considered by the D.D.C., therefore, this finding is bereft of any sound foundation and is perverse. Considering the language used in Section 48 of the Act, 1950 while exercising the revisional power the D.D.C. ought to have considered the reasons and findings given by the Court below and could have only interfered in the matter after setting-aside the same by giving cogent reasons therefor.
Further more, as regards the cryptic finding of the D.D.C. that the opposite parties herein who were revisionists before him had perfected their title by adverse possession for more than 12 years, here again, the D.D.C. failed to consider the reasoning given by the S.O.C. that the continuance of possession of the mortgagee even after the date of vesting as mentioned in the Act, 1950 would be permissive and not adverse. The reasons and findings given by the S.O.C. are in tune with the majority decision of the Full Bench this Court in the case of Balwant (supra), wherein after considering the provisions of Section 14 read with Section 6(g)(h) and 210 of the Act, 1950 it was held that the possession of the mortgagee whose rights have extinguished under Section 14(1) of the Act, 1950 on or after the date of vesting is not per se adverse but is permissive. Thus, the finding of the C.O. and D.D.C. on this count is clearly unsustainable in law. The Consolidation Officer also did not appropriately apply his mind in this regard and passed a cryptic order.
This Court also finds that the Full Bench in Balwant's case (supra) also held that the period of limitation for a suit under Section 209 of the Act, 1950 would commence to run not from the date of vesting but from the date of demand for possession. The opposite parties herein have not been able to demonstrate that there was any demand for possession at any stage and so that if no suit proceedings for ejectment were brought under Section 209 read with 210 of the U.P. Z.A. and L.R. Act, 1950 within 12 years from the date of such demand for possession, ground for adverse possession would be available. The Full Bench of this Court in Balwant's case (supra) held that even sub-section 1 of Section 14 does not contemplate that the mortgagee in possession shall cease to be entitled to retain possession over the land in any capacity whatsoever. It interpreted the words "as such" used therein as meaning the cessation of right to hold or possess any land as mortgagee in possession or usufructuary mortgagee from the date of vesting. It held that in using the words "as such" the Legislature clearly intended not to deprive the mortgagee from retaining his permissive possession over the land. It only deprived him of the rights of a mortgagee in possession or usufructuary mortgagee. To allow the erstwhile mortgagee in possession to retain possession or not was left at the discretion of the person with whose consent the mortgagee in possession had entered into possession over the land. Even though a right was given to him to take immediate possession but he was not compelled to do so if in his own interest he thought it expedient to permit the mortgagee to retain possession till the consent was revoked. If the mortgagor was of the view that it was in his interest to allow the mortgagee to retain possession over the land in lieu of interest payable under Section 6(g)(ii) there was no statutory bar in doing so. If the mortgagor does not demand possession he will be deemed to have continued his consent till such time it is revoked. The consent did not get automatically revoked on coming into force of the Act, 1950 nor did the possession become automatically adverse. In view of Sub-section (1) of Section 6 a mortgage with possession contemplated therein is deemed to have been substituted by a simple mortgage bearing such rate of interest and from such date as may be prescribed in view of the words ''save as otherwise provided in the Act' in Section 16 of the Act, 1950. It held that there was no provision in the Act, 1950 as a result of which possession of such a simple mortgage that had come into being by operation of law [Section 14 read with Section 6(g)], which was permissive in its inception may per se become adverse. It held that in the absence of any proof of revocation there will be a presumption of continuance of the consent so long as there is no denial by the person in possession to the knowledge of the Bhumidhar that his permission is permissive. The bar of Section 155 did not apply to such a simple mortgage as it was by operation of law and not by a ''Bhumindhar'. The said Full Bench decision has subsequently been followed in Tribeni's case (supra) in the year 1982. In the instant case there is no proof of revocation of consent by mortgagor or repudiation of permissive possession by mortgagee to the knowledge of mortgagor so as to establish adverse possession.
In view of the above discussion, the order of the D.D.C. can not be sustained. The same is accordingly quashed. The order of the Settlement Officer Consolidation stands revived. Consequences shall follow accordingly as per law.
The writ petition is allowed in the aforesaid terms.