This is third round of litigation in the High Court which arises out of the proceedings under the Uttar Pradesh Consolidation of Holdings Act in pursuance of the objection filed by the petitioners herein in respect of the plot nos.737/1, 737/2, 738/1 and 738/3 situate in the village Jagdishpur Changan, Pargana Nawabganj, Tehsil Soraon, District Allahabad.
In the basic year the aforesaid plots were recorded as Banzar in the name of Gaon Sabha. An objection by Babu Lal son of Ram Pratap whose decendants are the petitioners herein was filed on the allegation that the objector (herein after to referred as the petitioners) had been in occupation and possession of the aforestated disputed plots since the time immemorial and are being cultivated by him. He has installed a tubewell and has become Sirdar by operation of law. The plots in dispute are not Banzar and it is wrongly recorded in the name of Gaon Sabha. It was prayed that the objection be accepted and his name be recorded as Sirdar vide objection dated 19th of November, 1974.
The Gaon Sabha contested the matter by denying the claim of the objector namely Babu Lal and came out with the case that the plots in dispute have always been Banzar land and is rightly recorded in the name of the Gaon Sabha.
The parties led evidence in support of their respective cases. The only issue, thus, which fell for consideration before the consolidation Courts was whether the petitioners have acquired Sirdari right over the disputed plots and/or whether it is Gaon Sabha land.
The case has a chequered history as it suffered successive remand orders passed either by Settlement Officer of Consolidation or by the Deputy Director of Consolidation. In the earlier round of litigation, the objections filed by the petitioners were rejected by the Consolidation Officer and the matter had travelled to the Deputy Director of Consolidation who decided the matter in two revisions being revision Nos.122/242 and 121/243, Babu Lal Vs. Gaon Sabha, by the judgment dated September 8th, 1976 and allowed both the revisions partly. The revision so far as plot nos.636/6, 733/6, 739/1, 739/4, 735/5, 748/4 and 738/4 are concerned was rejected. This portion of the judgment of the Deputy Director of Consolidation has attained finality and is not in dispute. The revisions were allowed in respect of the plot numbers which are presently in dispute namely 737/1, 737/2, 378/1 and 738/3 situate in village Jagdishpur by passing an order of remand. The Deputy Director of Consolidation found that in respect of six plots for which the revisions were dismissed, the petitioners could not produce any evidence in support of their case that they are in occupation thereof by way of adverse possession. In respect of the remaining four plots presently in dispute, it was noticed by him that the entries in the revenue record are doubtful. There is difference in Khatauni entry and Khasra entry. The Khasra of 1357 Fasli must be in the record room and it could not be possessed by Lekhpal. It was further observed that burden lay upon the petitioners to explain the discrepancy. After remand, the Consolidation Officer mainly on the basis of the oral evidence led by the petitioners recorded a finding that the petitioners have been able to prove their adverse possession and therefore, they have become Bhumidhar of the land in dispute by the judgement dated July 17, 1979.
Although no appeal was filed by the Gaon Sabha but one Heera Lal son of Srinath, the respondent no.4 herein, filed an appeal being appeal no.90 of 2002 before the Settlement Officer of Consolidation on the allegations that the petitioners got a fresh file prepared and managed to obtain an order from the Court of Consolidation Officer, against law. The land in dispute is about ten Bighas in area and the petitioners want to grab the property of Gaon Sabha by hook or crook.
The First Appellate Court, the Settlement Officer of Consolidation, examined the matter and noticed that on earlier two occasions the objections filed by the petitioners were rejected. A person cannot perfect his title by way of adverse possession on the basis of oral evidence in absence of documentary evidence in his favour. The order of the Consolidation Officer is principally based on the oral evidence and thus, cannot be allowed to stand. The entry in 1356 Fasli in the revenue record was found doubtful in the earlier round of litigation by the Deputy Director of Consolidation and the doubt having not been cleared by the petitioners, in absence of any evidence to show that the petitioners were in occupation of the disputed plots before and after the abolition of Zamindari, they cannot acquire any right, title or interest in the Gaon Sabha property legally. There were two appeals before the Settlement Officer of Consolidation one against the order passed by the Consolidation Officer and another one in respect of the proceedings under Rule 109 of the Rules framed under the Act. Both these appeals were heard and decided together and were allowed by a consolidated judgement dated 9.6.2005. Feeling aggrieved the petitioners carried the matter in revision no.1749/1457 before the Deputy Director of Consolidation which has been dismissed it by the impugned order dated 9.1.2006. Challenging these two orders one passed by the First Appellate Court and another by the Deputy Director of Consolidation, the present writ petition has been filed.
Sri M.N. Singh, learned counsel for the petitioners raised the following points for consideration before me:-
1. The appeal filed by the respondent no.4 herein before the Settlement Officer of Consolidation against the order of the Consolidation Officer was not maintainable at his instance. The Gaon Sabha did not file appeal and as such the matter attained finality.
2. The name of the petitioners is recorded in the revenue record in 1356 Fasli. Thus, the petitioners have acquired Sirdari right under section 20(i) (b) of the U.P. Zamindari Abolition and Land Reforms Act. Elaborating the argument it was submitted that the view taken by the two Courts below that the oral evidence in absence of documentary evidence with regard to the plea of adverse possession is inconsequential, is untenable in law. The finding recorded in the earlier round of litigation that the entry in the revenue record is of doubtful nature is of little value.
3. The plea sought to be raised by the Gaon Sabha that the present proceedings are barred by the principle of res judicata is not tenable in law, as the earlier suit was in respect of different plots. Admittedly, the petitioners had filed a suit being suit no.2 of 1970-71 under section 229B of the U.P. Zamindari Abolition and Land Reforms Act in respect of the plot nos.739/1 area 2-16-0, 737/3 area 4-0-0, 738/2 area 5-0-0 and 783/3 area 1-4-0 situate in village Jagdishpur Changan, Pergana Nawabganj, Tehsil Soraon, District Allahabad for declaration of their rights as Sirdar, on the allegations that the petitioner (Babu Lal) had been in possession of the land in dispute for the last 30-35 years and has become Sirdar thereof. The suit was dismissed by the Sub Divisional Officer, Soraon, District Allahabad and it has attained finality.
The submission is that the plot numbers involved therein except one plot being plot no.738/3 area 1-4-0, were different and therefore, the said judgement will not operate res judicata in respect of the other plots which were not subject matter in the suit.
In reply Dr. (MS) Madhu Tandon, learned standing counsel, submitted that the petitioners are playing hide and seek game with the Courts. She submitted that the property in dispute is Gaon Sabha property and in view of Section 11-C, it is duty of the consolidation Courts to protect the Gaon Sabha property, notwithstanding the fact that no objection, appeal or revision was filed by Gaon Sabha. The objection raised by the petitioners is technical in nature and looking to the larger public interest, at any rate, discretion vests in the High Court in exercise of writ jurisdiction specially not to entertain such plea which would defeat larger public interest. She submitted that it is a case of total fraud. The petitioners after passing of the remand order by the Deputy Director of Consolidation which was challenged unsuccessfully before this Court in the writ petition No.7031 of 1972 took away the relevant papers from the file and they manipulated the things in such manner to get a fresh file reconstructed. The attention of the Court was invited towards the various orders passed earlier in the earlier two rounds of litigation to show that the consolidation authorities took pains to find out the veracity and correctness of the revenue extract 1356 Fasli which is sheet anchor of the petitioners' case by visiting the record room. Surprisingly, no such record in the record room recording the name of petitioner in any of the revenue record could be found out. The argument is that the petitioners cannot get any advantage of the fraud played by them by inserting the name of Babu Lal fraudulently in the revenue record. It was also submitted that the present proceedings are barred by principle of res judicata in view of the failure of the petitioners in their suit referred to above. The argument is that there has been change of plot numbers from time to time and as such it cannot be said that the plots presently in dispute were not subject matter in the said suit. Alternatively, even if the plots are different, the petitioners litigated under the same "title" in respect of the plots presently in dispute and as such the principle of res judicata would be attracted.
Sri S.C. Verma, learned counsel appearing on behalf of private respondent no.4, Heera Lal who was appellant before the Settlement Officer of Consolidation, submitted that the first point raised by the petitioners' counsel stands concluded by a judgement of this Court between the parties in the earlier round of litigation in the writ petition no.17788 of 1984:Sri Babu Lal Vs. Deputy Director of Consolidation Allahabad, Gaon Sabha and Heera Lal by the judgment dated 4th of December, 1984. He adopted the same line of argument as that of the learned standing Counsel, on other points.
Considered the respective submissions of the learned counsel for the parties.
Taking the first point first, it may be noted that the present writ petition was admitted by the following order dated 2nd of November, 2010:-
"Heard learned counsel for the petitioner.
Admit.
Issue notice.
The argument advanced on behalf of the petitioner is that respondent no.4 who has no locus to maintain an appeal or revision against the order of the Consolidation Officer as he had no right, title or interest over the land in dispute filed the appeal which has been illegally allowed by the Settlement Officer Consolidation and the revision filed by the petitioner has been dismissed.
Till further orders of this Court, the effect and operation of the impugned orders dated 19.10.2010 and 09.01.2006 passed by respondent no.1 and the impugned order dated 09.06.2005 passed by respondent no.2 shall remain stayed."
The admission order demonstrates clearly that the point which found favour with the Court at the time of the admission was whether the appeal file by the respondent no.4 before the Settlement Officer of Consolidation was maintainable or not. In other words, had he any locus to maintain the appeal.
At the very outset, it may be noted that this very plea taken before the Consolidation Courts was rejected earlier. Ultimately, the plea with regard to the non maintainability of appeal at the instance of respondent no.4 was negated. This order has become final. It came before this Court inter parties in writ petition no.17788 of 1984 Sri Babu Lal Vs. Deputy Director of Consolidation and others. This Court decided the controversy in the light of section 11-C of the Act. The relevant portion from the said judgment is extracted below:-
" In view of the aforesaid Section it is clear that even though in respect of the land of the Gaon Sabha on objection, appeal or revision could have been filed the court can protect the interest of the Gaon Sabha in case it has been found that the land has actually vested in the Gaon Sabha. It is thus abundantly clear that even though no appeal could have been filed on behalf of the Gaon Sabha, nor the revision could have been preferred, the interest of the Gaon Sabha could have been protected. In this view of the matter with profound respect to the view taken in the case of Sita Ram Vs. Deputy Director of Consolidation & others (Supre 1982 A.L.J. P. 76) the case is not indistinguishable."
It will not be out of place to mention here that the Apex Court in Shiv Nand and others Vs. DDC, JT 2000 (2) SC 332 has also subsequently interpreted section 11-C of the Act in the like manner. For the sake of convenience, paragraph 3 from the said judgment is reproduced below:-
"This Section casts a duty on the Consolidation Officer, the Settlement Officer (Consolidation) and the Deputy Director to record the property in the name of the Gaon Sabha or the State Government or any other local body or authority if, during the course of the consolidation proceedings, they notice that the property really belonged to any of them notwithstanding that they had not filed any objection, appeal or revision under the Act. This is the statutory duty of the authorities functioning under the Act and they cannot act otherwise. If, therefore, the Deputy Director of Consolidation, during the course of the hearing of revision, came to the conclusion that the claim of the appellants was not correct or that the property which originally belonged to Jethu could not be given to his sister, Smt. Ganeshia, who, as a matter of fact, was found to be not his sister, the property had to be recorded in the name of the Gaon Sabha in whom it would vest in the absence of any lawful claimant."
In para 5 of the judgment the Supreme Court has laid down in connection with Section 11-C that it is statutory duty of all the authorities functioning under the Act to give effect to the provisions of section 11-C of the Act and to record the property as having vested in the Gaon Sabha even if no claim was laid by the Gaon Sabha nor was any petition filed by the Gaon Sabha under the Act. It has gone to the extent that the said situation existed earlier also even before the introduction of Section 11-C of the Act in the statute.
The learned counsel for the petitioners placed reliance upon Jagidsh Pandey Vs. Additional Collector City and others, 2011(7) ADJ 891 wherein para 131 of Gaon Sabha Manual was up for consideration. The High Court in view of paragraph 131 of the Gaon Sabha Manual distinguished the earlier judgment while holding that the memo of revision to be filed on behalf of the Gaon Sabha cannot be signed by an unauthorized person and if such a memo is represented to a Court, the order passed thereon is unsustainable. Noticeably, the provision of Section 11-C which casts a duty on the consolidation authorities under the Uttar Pradesh Consolidation of Holdings Act was neither up for consideration nor was brought to the notice of the Court. Resultantly, the ratio laid down therein should be read and understood in the context of the facts of that case alone. It cannot be generalized to make it applicable to a proceeding under a different statute such as the Uttar Pradesh Consolidation of Holdings Act.
In view of the above, there is no substance in the above argument of the learned counsel for the petitioners as it stands concluded by a judgement of this court inter party. It is rejected accordingly.
Now, I take up the point no.2.
To begin with it is essential to have a look to the objections filed by the petitioners (which has given rise to the present litigation, filed before the Consolidation Officer). A copy of the said objection has been filed as Annexure -CA 1 to the supplementary affidavit dated 8th of November, 2011 filed on behalf of the respondent nos.5 and 6.
It is a small document consisting of only three paragraphs. In para 1 it has been stated that the entry with regard to the disputed plot nos.738/4 and 739/5 as Banzar in the revenue record is incorrect, wrong and it should be rectified. In paragraph 2 it has been pleaded that the objector (Babu Lal) is in occupation of the disputed land from the time immemorial and has been carrying out cultivation thereon and has installed a tube well for irrigation purposes after investing a sum of Rs.10,000/- and has, thus, under law acquired Sirdari right. In the last paragraph it has been stated that the land in dispute is not a Banzar land. It is cultivable land and the objector on account of his continuous possession has become Sirdar with the knowledge of the respondent (Gaon Sabha).
It is remarkable to note that there is absolutely no pleading with regard to the recording of petitioners' name in any revenue record. The only basis to claim the Gaon Sabha land as set out therein is long and continuous possession and thus acquisition of Sirdari right.
The above stand was refuted by the Gaon Sabha. The parties led evidence. It appears that at the stage of evidence, the petitioners placed reliance upon revenue extract of 1356 and 1359 Fasli wherein his name was recorded in Ziman 10A in the certified copies filed by him. On the basis whereof it was argued that he has perfected his title by way of adverse possession and he should not be put to any disadvantage if by mistake his name was not recorded. The Consolidation Officer found that copy of Khasra (record of possession) was not filed to prove possession by the petitioners initially. At subsequent stage, he filed the copies of Khasra 1356, 1359 Fasli etc. which were found to be doubtful as they were not produced at the earlier stage and copies of these Khasras were issued by Jokhan Lal Patwari. The Consolidation Officer being suspicious of correctness of these copies took trouble to pay visit to the record room. On his visit to record room, he examined the original Khatauni of 1356 and 1359 Fasli and detected that the name of petitioner (Babu Lal) was added subsequently which was scored off thereafter. He further found that the plots which are in the name of the petitioners in Ziman 10A are the same very plots which are recorded in these two years as Banzar. He concluded that the copies of these revenue records were issued to the petitioner after fabricating the entries in the record room and on the basis of false and fabricated entry, the petitioner could not get any right, title or interest in the disputed plots. For the sake of convenience, the relevant portion from the order/judgement dated 21st October, 1975 passed by the Consolidation Officer, Shankergarh, Allahabad is reproduced below:-
"tgkWa rd lu~ 1356Q0 o 1359Q0 dh udy [krkSuh dk iz'u gS ;s [krkSuh dh udy Hkh lafnX/k gSA eSusa U;k;fgr esa vfHkys[kkxkj dpgjh esas tkdj lu~ 1356Q0 o 1359Q0 dh [krkSfu;ksa dk voyksdu fd;kA [krkSuh esa oknh ds uke dk bUnzkt c<+k;k x;k FkkA vkSj vc eq>s bUnzkt dVk gqvk feykA vkSj tks xkVs oknh ds uke esa fteu 10v esa ntZ fd;s x;s Fks ogha xkVs catj [kkrs esa Hkh nksuksa o"kksZ esa vafdr gSA vr% oknh ds uke dk bUnzkt lu~ 1356Q0 o 1359Q0 esa QthZ bUnzkt djds udy tkjh dh xbZ gSA QthZ lcwr ds vk/kkj ij oknh dks dksbZ vf/kdkj izkIr ugha gks ldrsA vr% nkok oknh fujLr fd;k tkrk gSA** The above order records a definite finding with regard to fictitious nature of entries in the certified copy produced by the petitioners.
The aforesaid order was confirmed in appeal no.947/952 on 13-12-1975 by the Settlement Officer of Consolidation. The matter was carried further in revision being revision nos.122/242 and 121/243 before the Deputy Director of Consolidation. An argument was put forward by the petitioners before the Deputy Director of Consolidation that no opportunity of hearing to rebut was given to them (Babu Lal) while rejecting the revenue extracts being of doubtful nature. It was argued that the Consolidation Officer on the basis of inspection of the original revenue record held that the revenue entries as contained in the revenue extract filed by the petitioners is fictitious without affording any opportunity to rebut it. This contention found favour with the Deputy Director of Consolidation. He noticed that the burden lay upon the petitioners to prove that the entries recording his possession are genuine. For this limited purpose, he had remanded the matter back to the Consolidation Officer. A perusal of the order of the Deputy Director of Consolidation would show that the oral evidence with regard to the possession of the petitioners was not accepted by him as trustworthy. Thereafter, he directed the parties to appear before the Consolidation Officer on 29th of September, 1976 with the direction to the Consolidation officer to permit the parties to lead additional evidence in this regard. This was the first round of litigation up to the revisional stage. The petitioners did not lead any evidence to prove the genuineness and correctness of the revenue entries in record. They shifted their stand and practically gave up their case which was built up on the basis of disputed revenue entries, at the subsequent stages of the litigation.
After remand, the matter was re-examined by the Consolidation Officer who again decided the dispute by the order dated 8th of February, 1978 by rejecting the objections. He found that the petitioner was not in occupation of the disputed plots immediately before the abolition of Zamindari and has not acquired Sirdari rights. For acquisition of Sirdari right, the law as then stood, the prescribed period was six years (subsequently, this period has been deleted and henceforth nobody can acquire Sirdari right by adverse possession on Gaon Sabha land) which was not completed. The petitioner could not produce the relevant evidence to prove his continuous possession over the disputed plots. The matter was carried in appeal before the Settlement Officer of Consolidation who again remanded the matter by the order dated 4th of December, 1978 to the Consolidation Officer.
This time, after remand the Consolidation Officer by the order dated 17th of July, 1979 on the basis of oral evidence produced by the petitioners and spot inspection made by him, held that the property in dispute ceased to be Gaon Sabha property. A fair reading of the order of the Consolidation Officer would show that he was obsessed with the view that the petitioner has been in possession of the land in dispute for a period of more than 12 years prior to 1974 and therefore, he has acquired the title by way of adverse possession. The possession has been proved by oral evidence. This is the total consideration to accept the petitioners' objection.
The order of the Consolidation Officer, as mentioned herein above, on the appeal preferred by Heera Lal, respondent no.4 herein, has been reversed by the Settlement Officer of Consolidation and the order of the Settlement Officer of Consolidation has been confirmed in revision by the impugned order.
The learned counsel for the petitioners submitted that the possession of the petitioner over the disputed plots for a period of more than 12 years was found proved on the basis of oral evidence, the Courts were not justified in discarding the oral evidence and holding otherwise. Emphasis was laid by him on Section 20(b) (i) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act to show that the petitioners have become Bhumidhar thereunder. The submission is that the title flows from entry in revenue record of 1356 Fasli as provided under section 20(b) (i) of the Act.
In contra, the learned standing counsel submitted that a right will flow in favour of a person whose name is validly recorded as occupant in 1356 Fasli. If the entry in the revenue record is fabricated one, no one can take advantage of a false and fabricated revenue entry. In other words, a person cannot take advantage of a fabricated entry.
There are two aspects of the case. Firstly, whether the entry of 1356 Fasli recording the name of petitioner in column Ziman 10-A is a genuine one or not. At the cost of repetition it may be stated briefly that the Consolidation Officer in the first round of litigation personally examined the original revenue extracts in the revenue record and found that the name of the petitioners was added and subsequently it was scored off. The original record was lying in the record room but the copy which was produced by the petitioner was issued by Patwari (Jokhu Lal). The Deputy Director of Consolidation in his earlier order dated 8th of September, 1976 has noticed that the certified copy could be issued by the record room and not by Patwari Jokhu Lal. The Consolidation Officer became suspicious when before him the purported certified copy issued by the Patwari was filed. To clear the doubt he visited the record room to unearth the truth and found that in the original record the name of the petitioner was added subsequently and was scored off thereafter. He also found that these plots are recorded as Banzar in the revenue record in favour of Gaon Sabha. Strangely enough, this time when the matter reached to the Consolidation Officer (third time) he very conveniently ignored these vital aspects of the case and preferred to rely upon the lips of the witnesses of the petitioners as also on spot inspection forgetting that the original order of remand dated 8th of September, 1976 was passed by the Deputy Director of Consolidation to give an opportunity to the petitioners to dispel the suspicious circumstances surrounding the revenue entry. When the record is consigned to the record room its certified copy cannot be issued by Patwari as he did not possess the original record consigned to record room. No attempt was made by the petitioner to lead any evidence to establish that the entry of his name in the revenue record is not fabricated one but is a genuine one. The order of remand was passed on the request of the petitioners to give them an opportunity to produce the evidence to show that the revenue entry in the revenue record is correct, which they failed to prove. The petitioners did not avail the additional opportunity which was provided to them by the remand order instead they changed their stand. In this factual scenario the submission of the learned counsel for the petitioners that there is no evidence to show that the entry is of doubtful nature or that the earlier order of the Consolidation Officer dated 21st of October, 1975 having been set aside by the Deputy Director of Consolidation and no reliance on it can be placed, has no substance. An entry in revenue record is a matter of record. The Consolidation Officer on the actual examination of original record in the record room found that the entry of petitioner's name is fabricated one, deserves acceptance unless proved otherwise by cogent evidence. The petitioners in spite of grant of fresh opportunity afforded to them could not lead any positive evidence in their favour. The irresistible conclusion is that the entries recording the name of Babu Lal in the copies produced are fabricated one and are liable to be ignored.
In Bachan and another Vs. Kankar and others, AIR 1972 SC 2157 the Apex Court has held that an entry incorrectly introduced by Patwari into the record of rights in favour of a person is suspicious, confers no right on such person under section 20(b) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act. The relevant portion is reproduced below:-
"A fictitious entry is one which is not genuine. It is an unreal entry. A fabricated entry is a fictitious entry."
The petitioners placed reliance upon a decision of Apex Court in Ram Awadh and others Vs. Ram Dass and others (2008) 8 SCC 58 and submitted that even if the name of the petitioner was wrongly recorded, in view of the above pronouncement, the petitioners would become Bhumidhar. In view of paragraphs 14 and 15 in particular. To appreciate this, it is apt to notice the facts of that case, in brief. Name of one Faqira therein was recorded in the year 1956 Fasli which continued to be recorded up to 1366 Fasli. The appellant therein purchased the property from Faqira. The sale deed was contested by the other co-tenure holder namely Snehi whose name was recorded along with Faqira on the ground that the name of Faqira was wrongly recorded for the first time in 1356 Fasli and therefore, he had no right. The Apex Court in this factual background held with the aid of section 55(1) (b) of Transfer of Property Act that the appellant therein was a bonafide purchaser for value without notice. He had purchased the property from the recorded tenure holder from Faqira, whose name was recorded along with the co-tenure holder Snehi in 1356 Fasli up to 1366 Fasli to 1368 Fasli. Evidently, the facts of that case and the controversy involved therein are totally different than the facts of the present case. There, the Apex Court examined the controversy from the point of view of purchaser who purchased the property from recorded tenure holder and the name of the vendor continued to be recorded in the revenue record over a decade, which is not so here. Here, the case case is of stray entries one or two that too fabricated ones. The decision of the Apex Court was rendered in a different factual background and therefore is distinguishable and is not applicable to the facts of the present case.
Then, reliance was placed on Rattan Chand and others Vs. Mori and others (2010) 11 SCC 768 paragraphs 10 and 11 in particular. These paragraphs are reproduced below:-
"10. The High Court has examined the material on record and has pointed out that this is a case of absolutely "no evidence". The High Court was conscious of the fact that if there was any finding of fact based on evidence by the first appellate court, it should not interfere with such finding. The High Court interfered because it came to the conclusion that there was no evidence or reason at all as to why and how the name of Durga was entered as an occupancy tenant.
11. The High Court also relied upon several decisions which held that where someone is registered and shown as occupancy tenant, if someone else's name is entered as non-occupancy tenant without any explanation, the first entry should be preferred and not the unexplained subsequent entry. It is in these circumstances, the High Court has reversed the finding of the first appellate court and restored the finding of the trial court that Durga was not a non-occupancy tenant. The High Court has also noticed that Defendants 1 to 3 being co-owners cannot at the same time claim to be non-occupancy tenants also."
And I find no application of the Apex Court decision to the present case.
Section 20(b) (i) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act was matter of consideration by the Apex Court in Amba Prasad Vs. Mahboob Ali, AIR 1965 SC 54 wherein the Apex Court after reproducing section 20(b) (i) has held that the scheme of the section says that certain person "recorded as occupant" of lands (other than grove-land or land to which Section 16 applies) shall be known as Adhivasi and shall be entitled to retain or regain the possession although after the date of vesting. It has been noticed that the terms "occupant" and "recorded" are not defined in the Act. Khasra records possession and enjoyment. In this view, the word "occupant" must mean a person holding the land in possession or actual enjoyment. The emphasis has been laid on the words "recorded" and "enjoyment". If the entry of 1356 Fasli is discarded as Farzi entry there is no question of application of section 20(b) (i) of the Act. The petitioners initially did not base their claim on the revenue extract in the objections preferred under section 9-A (2) of the Act and the claim was based wholly on the plea of adverse possession. Sections 209 and 210 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act deals with the ejectment of persons occupying a land without title. With regard to the unauthorized occupant over Gaon Sabha land initially the prescribed period of limitation was six years. The law has been amended by Amendment Act No.35 of 1976 and now, no limitation is provided for the Gaon Sabha for ejectment of a trespasser. It may be noted that w.e.f. 14th October, 1971, the period of limitation from 12 years to 30 years was enhanced with regard to the land belonging to Gaon Sabha. It has been held by this Court that the amendment is retrospective in nature. Reference can be made to Rizwan Vs. Deputy Director of Consolidation, 2003 (95) RD 714 paragraphs 7 and 8. After reproducing section 210 as amended, in paragraph 7 it has been laid down that the amendment leaves no manner of doubt that it has been given retrospective effect. Necessary implication of which is that a person having been in unauthorized possession even from the date of enforcement of the Uttar Pradesh Zamindari Abolition and Land Reforms Act i.e. since July, 1952, would not acquire any Bhumidhari right on Gaon Sabha property. The necessary consequence that flows from this amendment in essence is that even if a person had been in actual possession for 12 years or more and even if suit under section 209 of U.P.Z.A. and L.R. Act had not come to be filed, any person in occupation thereof cannot acquire Bhumidhari rights on the land belonging to Gaon Sabha. Thus, a trespasser of Gaon Sabha land cannot acquire any title by adverse possession. This aspect of the matter was under consideration before the Consolidation Officer on the earlier two occasions but the Consolidation Officer lost the sight of fact when it came up for the third time before him. There apears to be a sea change with regard to adverse possession over a public property, in recent times. It is axiomatic to consider few judicial verdicts given by the Apex Court.
In the State of Rajasthan Vs. Harkool Singh, (2000) 5 SCC 652, the Apex Court has held that the concrete proof of open, hostile and continuous possession is required in order to substantiate a claim of perfection of title by adverse possession. It cannot be decreed on the basis of sketchy evidence. It is laid down that so far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question is required to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third party encroacher title where he had none. (Emphasis laid) In Mandal Revenue Officer Vs. Goundla Venkaiah (2010), 2 SCC 461, a case of adverse possession under the Andhra Pradesh Land Grabbing (Prohibition) Act against the public property, it has been laid down as follows:-
"47. In this context, it is necessary to remember that it is well-nigh impossible for the State and its instrumentalities including the local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularised. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers."
In R. HANUMAIAH & ANR. v. SECRETARY TO GOVERNMENT OF KARNATAKA REVENUE DEPARTMENT & ORS.JT 2010 (4) SC 411, in para 16 it has been held as follows:-
"16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title)."
Very recently, the Apex Court in the case of State of Haryana Vs. Mukesh Kumar and others, 2011 (3) ARC 655 has examined the English and American Law on adverse possession specially in the context of Article 21 of the Constitution of India. It has noticed that a person completing the adverse possession has no equities in his favour since he is trying to defeat the right of true owner. The Apex Court felt that time has come to have a relook to the existing law of adverse possession and suggested to amend it by making substantial changes in the law in larger public interest and if the Parliament decides to retain the law of adverse possession, the period of claimant's possession be enhanced to 30 to 50 years. Paragraphs 47 and 48 are reproduced below:-
35. "A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission. This Court in Revamma (supra) observed that to understand the true nature of adverse possession, Fairweather v. St Marylebone Property Co [1962] 2 WLR 1020 : [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16 termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law. As against the rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property.
36. The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context."
xx xx xx xx xx xx xx "47. Adverse possession allows a trespasser - a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible.
48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change."
Keeping in view the judicial pronouncements from time to time, let us examine the impugned orders and the order of the Consolidation Officer who accepted the claim of adverse possession. The Consolidation Officer proceeded to accept the claim of the adverse possession on the oral evidence led by the petitioners, without there being any corroborative material. He was obsessed of the view that the possession of the petitioners has not been opposed by the Pradhan of Gaon Sabha who failed to turn up in spite of notice and the standing counsel for Gaon Sabha did not oppose. Is it sufficient to hold the possession, if any, of a person as adverse in respect of public property in particular. Answer is obviously 'no'. With respect to agricultural lands two kinds of records are maintained -- One is record of right called Khatauni and the another one is record of possession called Khasra. The Land Record Manual provides a detailed procedure for carrying out spot inspection three times in a year to record the possession of a person whether he is a tenure holder or a trespasser. A Khasra is the best piece of evidence to show the possession of a person whether authorized one or unauthorized one as the case may be. Obviously, in absence of Khasra entries, it is always dangerous and inappropriate to accept the claim of adverse possession on the basis of oral evidence not supported by any corroborative material. Non turning up of Pradhan of the village and no objection by the counsel for the Gaon Sabha is itself indicative of the fact that the things were managed over. It is apparent on record, as noticed herein above, Gaon Sabha for the reasons best known to it did not file any appeal against the order of the Consolidation Officer. In the earlier two rounds of litigation up to the stage of Deputy Director of Consolidation and High Court also, the dispute was decided in favour of Gaon Sabha by rejecting the claim of the adverse possession. The matter was remanded with a view to give fresh opportunity to the petitioners to prove their claim by producing cogent and tangible evidence, but it appears that the concession given by the higher consolidation courts was misunderstood by the petitioners and was not received by them in the right perspective. Law with regard to the adverse possession is well settled and it is not necessary to burden this judgment. The Deputy Director of Consolidation rightly rejected the claim of the adverse possession and he rightly refused to accept the petitioner's claim solely on the basis of the oral evidence. It is a question of believing and disbelieving of oral evidence. On the facts of the present case, if the consolidation courts found that the oral evidence is not sufficient to prove the adverse possession, no illegality has been committed by them. The observation of the Deputy Director of Consolidation in the impugned order that no right by way of adverse possession on the basis of the oral evidence can be granted in respect of Gaon Sabha property is in consonance with the Supreme Court judgements referred to above and I find no fault therein.
Now, I take up the third point regarding the res judicata. Babu Lal (petitioners' predecessor in interest) had filed the case No.2 of 1970-71 in respect of the plot nos.739/1, area 2-16-0, 737/3, area 4-0-0, 738/2 area 5-0-0, 738/3 area 1-5-0 situate in village Jagdishpur Changan, Pergana Nawabganj, Tehsil Soraon, District Allahabad with the allegation that he has been in possession of the land in dispute for the last 30-35 years and has become Sirdar thereof. The suit was contested by Gaon Sabha. On the basis of the pleadings five issues were framed therein. The issues no.1 and 2 which are relevant for the present purposes, are being reproduced below:-
These two issues were taken together and have been decided against the petitioners by holding that they are not Sirdar of the land in suit and that it is the property of Gaon Sabha. The trial Court has noticed that only a Khatauni Extract 1359 Fasli showing that the plaintiff is tenant of class - 7 with duration of ten years has been filed. No Khasra was filed. In absence of Khasra extract, the trial Court held that there is no evidence on record to show that the land has ever been cultivated. The Lekhpal and Pradhan who were examined, deposed that the land in suit is Gaon Sabha property. The final conclusion, as recorded, is as follows:-
"...................... In view of discussion made above I find that the plaintiff is not Sirdar of the land in suit and that it is property of Gaon Sabha."
The suit was dismissed and the decree of the trial Court has been confirmed in appeal.
Sri M.N. Singh, learned counsel for the petitioners, submitted that except plot no.738/3, the other plots are not common and therefore, the contention that the present claim of the petitioners is barred by res judicata is untenable. On a careful consideration, I find no substance in the above argument. The identity of the property is not relevant consideration. Section 11 of C.P.C which deals with the res judicata says that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same party, litigating under the same title. The important words are "litigating under the same title". All the plots in dispute are situate in village Jagdishpur Chhangan which are recorded as Banzar land in the name of Gaon Sabha in the revenue record. The petitioner laid the claim by filing suit for declaration of his title under section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act on the basis of his long possession and thus, the acquisition of Sirdari right in the land in suit. The same title has been set out before the Consolidation Courts also, giving rise to the present writ petition. The identity of the property may be different.
Although the learned standing counsel submitted that "there is no change in the identity and confusion is being created by legal engineering.", it is not necessary to enter into that controversy, as it has not been gone into by any of the Courts below, but at the same time it cannot be said what the learned standing counsel says is totally incorrect. This observation of mine finds support from the reading of the copy of objection preferred by the petitioners' predecessor in interest Babu Lal, therein plot numbers have been given as 738/4 and 739/5. At what stage and in what manner these came to be controverted as 737/1, 737/2, 738/1 and 738/3 is not clear from the writ record. Be that as it may, the learned counsel for the petitioners could not dispute that the plot no.738/3 is common, in the suit for declaration which was decided against the petitioners and the present proceedings.
The expression 'title' in section 11 refers to capacity or interest of a party. It has nothing to do with the particular cause of action on which he sues or is sued. The base of res judicata as held by the Apex Court in Srimati Raj Lakshmi Dasi and others Vs. Banamali Sen and others, AIR 1953 SC 33 and Kadapurath Illam Khalid Vs. Beemapura Palamkakkada Sulekha and others, AIR 1986 Keral 251 (FB) is the identity of title in the two litigations and not the identity of the actual property involved in the two cases.
Where the right claimed in both the suits is the same, the subsequent suit would be barred as res judicata though the right in the subsequent suit is sought to be established on a ground different from that in the former suit as held by the Apex Court in Sunderabai and another Vs. Devaji Shankar Deshpande, AIR 1954 SC 82.
Applying the above ratio to the facts of the present case, it is but obvious that the petitioners litigated under the title of his long possession over the Gaon Sabha property in village Jagdishpur Changan, Pergana Nawabganj, Tehsil Soraon, District Allahabad, against the Gaon Sabha and lost the suit. Therefore, the subsequent proceedings set to motion by filing objection under section 9-A (2) of the Act is barred by the principle of res judicata.
The plea of res judicata was put forward by the respondents herein before the consolidation courts. They did not examine the same as they have rejected the petitioners' claim on merits.
The petition is liable to be dismissed on the ground that the petitioners have not come to this Court with clean hands. Very conveniently, the petitioners have not annexed the relevant material along with the writ petition. The stay order was obtained by misleading the Court that the appeal at the instance of the respondent no.4 was not maintainable before the Settlement Officer of Consolidation. This issue was decided conclusively in this very litigation between the parties by this Court in the writ petition No.17788 of 1984: Sri Babu Lal Vs. Deputy Director of Consolidation and others on 4th of December, 1984. In all fairness, the petitioners ought to have disclosed this fact in the present writ petition. They intentionally withheld the said judgement and by misleading the Court obtained exparte stay order on same very ground which was repelled earlier. There are catena of decisions that in such circumstances a writ should not be issued. Reference can be made to a recent decision in the case of Dalip Singh Vs. State of Uttar Pradesh and others (2010) 2 SCC 114 paragraph 7 in particular. If there is suppression of material facts or twisted facts have been placed before the High Court then it will lawfully justify in refusing to entertain a writ petition filed under Article 226 of the Constitution of India vide Prestige Light Limited Vs. SBI (2007) 8 SCC 449 referred therein. This is the additional reason not to grant any relief in the present petition.
The petitioners have left no stone unturned to keep the litigation alive for the last more than around 36 years by raising frivolous and vexatious pleas with a view to grab the public property. A forceful argument was put by the learned standing counsel that the petitioners are so powerful that they managed to see that the original file of the case is lost. She invited the attention of this Court towards the document filed as Annexure-CA 4 of the Supplementary Counter Affidavit dated 1st of November, 2011 to show that after remand all the documents were taken away under the receipt by the petitioners from the court file and were never produced. Subsequently, other relevant records were found missing or untraceable. Thus, she faced very odd situation. Facts of the case noted above, disclosed that the Gaon Sabha who is custodian of Gaon Sabha land and is supposed to protect it, for the reasons best known to it, failed to pursue the matter to protect the public land. It is the respondent no.4 who spent time, energy and money to protect the disputed land. Therefore, the petitioners are directed to pay a sum of Rs.15,000/- as costs to the contesting respondent no.4 within a month, to offset the expenditure incurred by him.
The standing counsel for Gaon Sabha failed to appear on any day of hearing of the writ petition.
In view of the above discussion, I find no merit in the petition. The petition is dismissed with cost of Rs.15,000/- (Rupees Fifteen Thousand only) payable by the petitioners to respondent no.4 within a period of one month failing which it shall be recoverable as arrears of land revenue.
(Prakash Krishna, J) Order Date :- 18.11.2011 LBY