JUDGMENT Ashok Bhushan, J.
1. Heard learned Counsel for the petitioners and Sri S.N. Tripathi, learned Counsel appearing for the respondent No. 4.
By this writ petition, the petitioners have prayed for quashing the judgment and order dated 18.9.2007, passed by the Deputy Director of Consolidation dismissing the revision of the petitioners filed against the order of Assistant Settlement Officer, Consolidation dated 18.4.1977, by which the appeal of the petitioners was dismissed against the order of the Consolidation Officer dated 15.4.1975.
3. This writ petition arises out of proceedings under the U.P. Consolidation of Holdings Act, 1953. The brief facts necessary to be noted for deciding the writ petition are; that the disputes relates to two plots i.e. plot No. 291 area 22 decimal of Khata No. 231, plot No. 291/1, area 11 decimal of Khata No. 177, which in the basic year were recorded in the names of Mahadeo, Ram Lalla sons of Thakur Prasad and the possession of Ram Pratap was noted. In plot No. 291/1 area 11 decimal, the name of Thaxur Prasad was recorded and the possession of Badri, son of Rameshar was recorded. Objection under Section 9 of U.P. Consolidation of Holdings Act, 1953 was filed by Ram Kinkar and others, the predecessor-in-interest of the petitioners with regard to plot No. 291 area 22 decimal claiming that their names be recorded expunging the name of recorded tenure holder, Similar objection was filed with regard to plot No. 291/1 area 11 decimal. Mahadeo filed objection claiming that his name be recorded over plot No. 291/11 area 11 decimal as recorded tenure holder. The recorded tenure holder also prayed for partition of shares. The Consolidation Officer vide order dated 15.4.1975 dismissed the objection filed by Ram Kinkar, the predecessor-in-interest of the petitioners. The entry of possession of Ram Narain and Badri was expunged. The objection of Badri and others were also dismissed and in place of Thakur Prasad deceased, the name of Mahadeo and Ram Lalla was directed to be recorded in Khata No. 177. Two appeals were filed by Ramakant and Ram Kumar against the order of the Consolidation Officer. Both the appeals were dismissed. Revision was filed by the petitioners challenging the order of the Settlement Officer, Consolidation and Consolidation Officer. The revision was dismissed by the Deputy Director of Consolidation vide order dated 18.9.2007 against which the present writ petition has been filed.
3. The petitioners' case before the consolidation authorities was that plot No. 291 area 33 decimal, which was recorded as Sir of Ram Acharaj Nath and others an exchange was permitted vide order dated 22.7.1948 of Sub Divisional Officer with petitioners' plot No. 198,199,158/2 which was Sir and Khudkasht of the petitioners. It is claimed that on the basis of the said exchange, the names of the petitioners were recorded in possession in 1356 Fasali but said entry was omitted thereafter. The petitioners claim that their names were again recorded in Khatauni of 1369 Fasali to 1371 Fasali as Sirdar by directing the expunction of the name of Thakur Prasad. The petitioners' claim that in plot No. 291, the petitioners have their Abadi. The claim of the objector was resisted by the recorded tenure holder claiming that recorded tenure holder's name was recorded from 1357 to 1362 Fasali and they have become Adhivasi and Sirdar. It is claimed that in proceedings under Chapter IX A of U.P. Zamindari Abolition and Land Reforms Act, a case was decided by the Sub Divisional Officer on 26.7.1958 accepting the claim of Thakur Prasad and others, as Adhivasi and claim of Rambali son of Acharaj Nath and others the erstwhile Zamindar was rejected. The recorded tenure holders claimed that their names had been continuing in the revenue record as Sirdar till the basic year. Challenging the exchange claimed by the petitioner, it was stated that Zamindar Acharaj Nath had no authority to exchange without ejecting Thakur Prasad, the Sikimi tenant and no right could accrue to the petitioners on the basis of said exchange, if any.
4. Learned Counsel for the petitioners challenging the orders passed by the consolidation authorities contended that the petitioners' name were recorded on the basis of exchange vide order dated 22.7.1948 of Sub Divisional Officer under Section 53 of the UP. Tenancy Act, 1939. The petitioners' case is that by virtue of exchange, the petitioners became Sirdar and after abolition of Zamindari, they became Bhumidhar, alternatively it was contended that they being in possession since 1356 Fasali, the petitioner became Adhivasi under Section 20(b) of UP. Zamindari Abolition and Land Reforms Act. It is contended that name of Thakur Prasad and others being recorded in 1357 to 1362 Fasali only in column 20, they cannot acquire Adhivasi right. Their entry was of an unauthorized occupants hence they could not acquire Adhivasi and Sirdari rights. The report of Assistant Consolidation Officer was there on the record which mention that the land is in nature of Abadi.
5. Learned Counsel for the petitioners placed reliance on the judgment of the Apex Court in the case of Smt. Sonawati and Ors. v. Sri Ram and Anr. .
Learned Counsel appearing for the respondents refuting the submissions of learned Counsel for the petitioners, contended that Thakur Prasad and others ancestors of the respondents were in possession in 1356 Fasali as well as in 1359 Fasali hence, they acquired Adhivasi and Sirdari rights. Learned Counsel for the respondents relied on the Entry of 1359 Fasali, where Thakur Prasad was recorded with Muddat of five years. It is submitted that Thakur Prasad being in possession, the exchange as claimed by the petitioners with Acharaj Nath the Sir holder shall not give any right to the petitioners since Thakur Prasad was never ejected. It is further submitted that in proceedings under chapter IX A of the Act by order dated 26.7.1958, Thakur Prasad and others were held to be Adhivasi and objections of Rambali and others were rejected hence, the contesting respondents are Adhivasi and said order cannot be challenged by the petitioners. It has been submitted that entry in 1369 Fasali which is claimed by the petitioners, does not refer to any case Number of Sub Divisional Officer or nature of proceedings by which the name of Thakur Prasad was sought to be expunged. The respondents claim that name of Thakur Prasad was throughout continuing in the record till the basic year which was proved by filing Khatauni of 1357 Fasali to 1362 Fasali and 1363 Fasali to 1371 Fasali. Learned Counsel for the respondents has placed reliance on the judgment of this Court in the case of Bhola Nath Upadhyay v. Deputy Director reported in 1985 ALJ 1296.
6. I have considered the submissions of learned Counsel for the parties and have perused the record.
The claim of the petitioners is based on exchange of plot No. 291 which was Sir of Acharaj Nath Tiwari with plot No. 198, 199, 158/2 which was Sir and Khudkasht of ancestors of the petitioners. The exchange is claimed under Section 53 of the U.P. Tenancy Act by order dated 20.7.1948 of the Sub Divisional Officer. The Deputy Director of Consolidation in the impugned order has referred to the report obtained from record room that no such file of exchange is entered, which observations of the Deputy Director of Consolidation have been challenged by the petitioners and it has been submitted that there was sufficient material to substantiate the claim of the exchange. Without entering into correction or otherwise of above observation the claim of exchange as set up by petitioners is being considered. The land was recorded as Sir of Acharaj Nath and others. By exchange, the predecessor-in-interest of the petitioners at best would have acquired the same rights which were held by Acharaj Nath. The proceedings under Chapter IX A of the Act were initiated in which no objection was filed by the petitioners and the objection was filed by Rambali son of Acharaj Nath. The objection of Rambali was decided by order of the Sub Divisional Officer dated 26.7.1958 rejecting the claim of Rambali and accepting the claim of Thakur Prasad as Adhivasi and Sirdar. All the three courts have referred to and relied on the order passed by the Sub Divisional Officer dated 26.7.1958 in proceedings under Chapter IX A of the Act. The Full Bench of this Court in the case of Avdhesh Singh and Ors. v. Bikarma Ahir and Ors. reported in AIR 1975 Allahabad 324 considered the question regarding finality of Compensation Statement under Section 240 J of the Act Following was laid down by the Full Bench in paragraph 6:
Section 240-H lends support to this view. An objection has to be filed before the Compensation Officer. If the objection is to the effect that the land mentioned in the Compensation Statement is not land referred to in Sub-section (1) of Section 240-A, the Compensation Officer is required to frame an issue to that effect and to refer it for disposal to the Court which would have jurisdiction to decide a suit under Section 229-B read with Section 234-A in respect of the land and in such an event all the provisions relating to the hearing and disposal of such suits shall apply to the reference as if it were a suit. On account of the deeming Clause towards the end of Section 240-H(2)(a) the objection takes the form of a suit. A suit under Section 229-B read with Section 234-A. According to Schedule I, has to be decided by an Assistant Collector of the First Class. In the very nature of things neither an Adhivasi, if any mentioned in the Compensation Statement, nor any one else claiming to be an Adhivasi can conceivably be interested in establishing that the land mentioned in the Compensation Statement is not of the nature referred to in Sub-section (1) of Section 240-A. In fact, every person claiming to be an Adhivasi of the land in question would be interested in showing that it is land of that nature, otherwise he would not become Sirdar. Only land-holders whose rights are claimed to have been acquired by reason of a notification under Section 240-A can be interested in asserting that the land mentioned in the Compensation Statement is not land of the nature contemplated by Section 240-A and hence in filing an objection of the nature envisaged by Section 240-H(2)(a). If, however, in the objection contemplated by Section 240-H(2)(a) the Adhivasi recorded or unrecorded is impleaded as a party, he and the land-holder both wild be bound by the decision arrived at in the consequent proceedings on the principle of resjudicata and it will be open to neither of them to contend in a separate suit that the decision was incorrect. An Adhivasi who is not a party to the proceedings would however, remain unaffected by the decision. An objection as envisaged by Section 240-H(b) can be raised by persons interested in showing that either they alone to the exclusion of the person shown as land-holder in the Compensation Statement or along with him are land-holder entitled to compensation. Section 240-H(2) lends support to the conclusion that consequent on the publication of the Compensation Statement under Section 240-F any one claiming to have title as land-holder and entitled to compensation must file an objection in accordance with Section 240-G. The decisions given on objections of the nature contemplated by Section 240-H(2)(a) and (b) are decisions by courts and would bind the State, the land-holders concerned and in case some one claiming to be an Adhivasi has been impleaded or has or on his own initiative become a party to the proceedings under Section 240-H(2)(a) such Adhivasi. The decisions given by competent courts on objections under these provisions cannot by any principle of law be open to challenge in collateral proceedings. The decisions given by Courts concerned on objection of the nature envisaged by Section 240-H(2)(a) and (b) become incorporated in the final statement signed and sealed by the Compensation Officer under Section 240-J.
7. The Full Bench concluded that Compensation Statement amounts to adjudication of title between the land-holder and the person claiming Adhivasi right and the principle of res-judicata and constructive res-judicata will apply only to an Adhivasi who has been a party to the proceedings consequent on an objection of the nature contemplated under Section 240-H(2)(a) of the Act. The Full Bench in paragraph 12 has answered the questions referred to it which are being quoted herein below:
My answer to the first four questions referred to us are as follows:
(1) Finality of Compensation Statement under Section 240-J U.P. Zamindari Abolition and Land Reforms Act extinguishes the rights and title of the land-holder and the land-holder is debarred from showing in collateral or separate proceedings that the land is not held by an Adhivasi, except in cases where the provisions of the Act have not been followed or where the Compensation Statement has been prepared in disregard of the fundamental principles of judicial procedure Katikara Chintamani Dora v. Guatreddi Annamanaidu . If the requirements of the Act have not been complied with or the fundamental principles of judicial procedure have been disregarded, the Compensation Statement signed and sealed by the Compensation Officer under Section 240-J(2) of the Act can be assailed in collateral proceedings.
(2) The Compensation Statement signed and sealed under Section 240-J(2) of the Act is final between the land-holder and the State alone.
(3)The Compensation Statement amounts to an adjudication of title between the land-holder and the person claiming Adhivasi rights and the principle of res-judicata and constructive res-judicata will apply only to an Adhivasi who has been a part to proceedings consequent on an objection of the nature contemplated by Section 240-H(2)(a) of the Act.
(4) The land-holder against whom Compensation Statement has become final and who has received compensation has no locus standi to reagitate his rights in respect of the land in question.
The judgment of the Apex Court in the case of Abdul Qadir v. Maimoona Khatoon reported in 1996 R.D. 229 has been referred to by learned Counsel for the petitioners. The Apex Court in the aforesaid judgment approved the judgment of the Full Bench in Awadhesh Singh (supra).
8 The petitioners who claimed exchange from Acharaj Nath in stepped into the shoes of land holder and having not filed any objection in proceedings under chapter IX A, it is not open for them to claim right over the land in dispute more so when objection filed by sons of Acharaj Nath from whom the petitioners claim exchange, has been rejected and the petitioners were held to be Adhivasi. The claim of Thakur Prasad of Adhivasi which was upheld in the proceedings under chapter IX A is binding between the petitioners and the land holder. It is relevant to note that it is not the case of the petitioners that plot No. 291 was in personal cultivation of Zamindar Acharaj Nath or it was Sir Khudkasht of Zamindar. In the Khatauni 1356 Fasli which was filed, the name of Thakur Prasad was recorded with Muddat of three years which indicates that in 1356 Fasali, Thakur Prasad was continuing in possession. In 1359 Fasali, the name of Thakur Prasad was entered with Muddat of five years. Learned Counsel for the petitioners contended that since the petitioners were not party to the compensation proceedings, the said order has no effect on the rights of the petitioners. This submission of learned Counsel for the petitioner cannot be accepted since Section 240G provides filing of objection by any person interested upon the statement prepared under Section 240F. The petitioners, who stepped into the shoes of the land holder according to their own case having not filed any objection, it is not open for them to claim that they are land holders of the land in dispute. The alternate submission of the petitioners is that the petitioners' possession was recorded in 1356 Fasali and thus, they became recorded occupants and were entitled to be declared as Adhivasi, also needs to be considered.
9. From the judgments of all the three courts, it does not appear that Khatauni of 1356 Fasali proving that the petitioners were recorded occupants was filed nor in the writ petition, the petitioners have brought on record the Khatauni of 1356 Fasali to establish that they were recorded occupants. The petitioners' claim that they were recorded occupants and thus became Adhivasi, has not been substantiated before the courts below nor can be accepted in this writ petition. Reliance has been placed by learned Counsel for the petitioners on the judgment of the Supreme Court in the case of Smt. Sonawati (supra). In the said case, one Tota Ram and Lajja Ram were declared to be Bhumidhar and after obtaining sanad in their favour they sold their interest on October 20, 1951 to Sri Ram and Ram Prasad. The name of Tota Ram and Lajja Ram were recorded in 1356 Fasali and 1359 Fasali. Preetam Singh resisted the claim of Sri Ram on the ground that he was recorded in possession in 1359 Fasali. The Apex Court held that the case of Preetam Singh could not be supported from the entries which was relied that he was recorded occupant in the Khasara and Khatauni of 1356 Fasali. Following was held in paragraphs 4 and 5:
But the entries on which reliance was placed by Pritam Singh do not support his case that he was recorded as an occupant in the khasra or khataun of 1356 Fasli. In the certified extract of the khasra for 1356 Fasali (Ext. A/1) tendered in evidence by Pritam Singh in the column 'Name and estate of cultivator' the entry is "Tota Ram and others" and in the column for 'remarks' the entry is 'Pritam Singh s/o Pyarelal of Sankuri". Our attention has not been invited to any provision of the U.P. Tenancy Act or instructions issued by the Revenue authorities which tend to establish that the name of an occupant of land is liable to be entered in the column reserved for 'remarks'. In order that a person may be regarded as an adhivasi of a piece of land, Section 20(b) of Act 1 of 1951 requires that his name must be recorded in the khasra or khatauni for 1356 Fasli as an occupant. The Assistant Collector has pointed out that according to paragraph 87 of the Land Records Manual it is necessary for a Patwari to make an enquiry about the status of the occupant, and if he thinks that a claimant is an occupant, he should enter the name in red ink in khasra as - "Kabiz sajhi etc." Admittedly Pritam Singh was not shown as Kabiz or Sajhi, nor was the entry posted in red ink.
(5) There is also strong evidence on the record which shows that the name of Pritam Singh was surreptitiously entered in the Khasra for 1356 Fasali. In the khasra Barashala i.e. consolidated khasra for 1347 to 1358 Fasli Tota Ram and Lajja Ram are shown as persons cultivating the land and there is no record of the name of any subtenant on the land. Before the Assistant Collector two certified extracts of the Khasra for 1356 Fasli in respect of the land in dispute were produced. In the certified extract Ext. A/1 tendered by Pritam Singh his name was shown in the 'remarks' column. In the certified extract tendered by the plaintiffs there was no such entry. The Assistant Collector did not call for the original record, nor did he attempt to probe into the circumstances in which the entry of Pritam Singh came to be made. He, however, observed that in Ext. A/1 the name of Pritam Singh was entered in the 'remarks' column against Survey No. 723/1 which had fallen in an earlier partition to the share of one Kunjilal and in respect of which Pritam Singh had never claimed any right. The First Appellate Court did not refer to these important piece of evidence. His conclusion cannot be regarded as binding upon the High Court in Second Appeal.
10. The Apex Court held that benefit of U.P. Land Reforms Act (Supplementary Act 1952) can be claimed by an Adhivasi who establish that he was in cultivatory possession of the land during the year 1359 Fasali. The Apex Court held that cultivatory possession to be recognized for the purpose of the Act must be lawful and for the whole year of 1359 Fasali. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitionsuly cannot be said to be a person "in cultivatory possession". There cannot be any dispute to the proposition laid down by the Apex Court in Sanawati's case. The Apex Court rejected the claim of Pritam Singh holding that Pritam Singh's name was surreptitiously entered in the Khasara of 1359 Fasali and he failed to prove that he was in lawful possession for the whole year of 1359 Fasali. In Sonawati's case, Tota Ram and Lajja Ram were tenants whose names were throughout recorded in Khatauni and Khasara as tenant in possession, only in remarks column the possession of Pritam Singh was claimed in 1356 and 1359 Fasali. The present is not a case where any other person is recorded as tenant of the land. In the Khatauni of 1357 to 1362 Fasali filed by the respondents, the name of landholder i.e. Zamindar Acharaj Nath was mentioned as Sir holder. It is not the case of the petitioners that the land was in personal cultivation of Sir holder Acharaj Nath. In the relevant Khatauni, no one is entered as tenant and the name of Thakur Prasad was recorded with a period of three years in 1357 Fasali and with a period of five years in 1359 Fasali. This is main distinguishing feature of the present case from the case of Sonawati where Tota Ram and Lajja Ram were recorded as tenant in possession. Materials brought on record further reveals that the claim of Thakur Prasad was accepted as Adhivasi in proceedings under chapter IX A of the U.P. Zamindari Abolition and Land Reforms Act as well as his name was recorded in Khatauni as Sirdar and the entry of Thakur Prasad was continuing till the basic year. All the consolidation courts have rejected the objection filed on behalf of the petitioner relying on relevant documentary and oral evidence brought on record. No such error has been pointed out in the order of all the three Courts, which may warrant any interference by this Court in exercise of extra-ordinary jurisdiction envisaged under Article 226 of the Constitution of India. I do not find any error in the impugned orders.
The writ petition is dismissed.