Court No. - 11
Case :- WRIT - B No. - 5032 of 1986 Petitioner :- Yamuna Respondent :- D.D.C.
Counsel for Petitioner :- H.S.N. Tripathi,Baijant Kumar Mishra Counsel for Respondent :- H. Ahmad,Gautam,Om Prakash Yadav,Ramesh Upadhyay,S.C.
Hon'ble Salil Kumar Rai,J.
Heard Sri C.S. Agnihotri, counsel for the petitioner and Sri P.N. Saxena, Senior Counsel representing respondent nos. 2 and 3 and the heirs of respondent no. 2.
The plot in dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises is Plot No. 56/82. Rogi and Chokat were the sons of one Fakir. Bhuteli, Rajdeo and Prem were the sons of Rogi. Raghu, Birbal and Sudama were the sons of Chokat. Rajdeo and Sudama have been arrayed as respondent nos. 2 and 3 in the present writ petition. The petitioner was recorded in the revenue records of the basic year relating to the disputed plot and consequently, during the consolidation operations in the village, the respondent nos. 2 and 3 filed objections under Section 9- A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') before the Consolidation Officer, Saivrahi, District Deoria. The contention of the respondent nos. 2 and 3 in their objections was that their ancestors were recorded tenure holders of the disputed plot and they were the recorded tenure holders in the revenue records relating to 1359 Fasli. It was stated in the objections filed by respondent nos. 2 and 3 that the petitioner had been wrongly recorded in the revenue records relating to the disputed plot. On the aforesaid objections of respondent nos. 2 and 3, Case No. 3899 under Section 9-A(2) of the Act, 1953 was registered before the Consolidation Officer. The petitioner submitted his reply to the objections filed by respondent nos. 2 and 3 stating that the name of petitioner was recorded in the revenue records by virtue of order dated 20.4.1959 passed by the Naib Tehsildar, Padrauna in Case No. 295 registered for correction of records and in which the brothers of respondent nos. 2 and 3 had admitted the possession of the petitioner over the disputed plot. The Consolidation Officer vide his order dated 15.9.1982 allowed the objections of respondent nos. 2 and 3 on the ground that the order dated 20.4.1959 passed by the Naib Tehsildar, Padrauna in Case No. 295 was without jurisdiction and did not confer any right on the petitioner. It was further held by the Consolidation Officer that respondent nos. 2 and 3 were minors in 1959 and the possession of the petitioner over the disputed plot was admitted by Raghu and Bhuteli only, who were the brothers of respondent nos. 2 and 3, and who had put their thumb impressions on the document containing their admission and was not binding on respondent nos. 2 and 3 as Raghu and Bhuleti were not the guardian of respondent nos. 2 and 3. Against the order dated 15.9.1982 passed by the Consolidation Officer, the petitioner filed Appeal No. 2659 before the Settlement Officer of Consolidation which was allowed by the Settlement Officer of Consolidation vide his order dated 22.6.1983. In his order dated 22.6.1983, the Settlement Officer of Consolidation held that the admission in Case No. 295 was made by the father of respondent nos. 2 and 3 and was, therefore, binding on respondent nos. 2 and 3. Against the order dated 22.6.1983 passed by the Settlement Officer of Consolidation in Appeal No. 2659, the respondent nos. 2 and 3 filed Revision No. 337 before the Deputy Director of Consolidation, Padrauna, District Deoria i.e. respondent no. 1 and respondent no. 1 vide his order dated 24.1.1986 allowed the aforesaid revision by setting-aside the order of the Settlement Officer of Consolidation and thereby restored the order dated 15.9.1982 passed by the Consolidation Officer. The order dated 24.1.1986 passed by respondent no. 1 has been challenged in the present writ petition.
The counsel for the petitioner has argued that the admission in Case No. 295 regarding possession of the petitioner over the disputed plot was relevant as evidence of possession of the petitioner even if the order dated 20.4.1959 passed by the Naib Tehsildar was without jurisdiction and the order dated 24.1.1986 passed by respondent no. 1 is vitiated due to non-consideration of relevant materials in as much as while passing his impugned order dated 24.1.1986, the respondent no. 1 has not considered the admission made by the brothers of respondent nos. 2 and 3. It was argued by the counsel for the petitioner that the admission regarding possession of the petitioner over the disputed plot proved that the petitioner was in possession of the disputed plot and had perfected his title by adverse possession. It was further argued by the counsel for the petitioner that, in any case, the petitioner was in possession of the disputed plot since 1366 Fasli onwards and, therefore, the objections of respondent nos. 2 and 3 were liable to be dismissed in as much as the petitioner had perfected his title over the disputed plot due to his possession at least since 1366 Fasli. It was further argued by the counsel for the petitioner that a co-owner would be bound by the admission made by another co-owner and, therefore, the admission made by brothers of respondent nos. 2 and 3 was binding on respondent nos. 2 and 3 and the order dated 24.1.1986 passed by the Deputy Director of Consolidation holding that the admission made by the brothers of respondent nos. 2 and 3 was not binding on the respondents is contrary to law. In support of his arguments, the counsel for the petitioner has relied upon the judgments of this Court in Algoo & Ors. vs Director of Consolidation & Ors. 1979 RD 150, Pawan vs Uttar Pradesh Board of Revenue & Ors. 1987 RD 139, Gautam Sarup vs Leela Jetly 2008 (7) SCC 85 and Raj Kumar vs Official Receiver of Estate of Chiranji Lal Ram Chand, Ludhiana 1996 (2) SCC 288.
Rebutting the contention of counsel for the petitioner, the counsel for respondent nos. 2 and 3 argued that as the claim of the petitioner over the disputed plot was based on adverse possession, the petitioner had a heavy burden to prove his possession over the disputed plot which he failed to discharge and, therefore, the respondent no. 1 rightly allowed Revision No. 337 vide his order dated 24.1.1986. It was further argued by the counsel for respondents that the possession of the petitioner shown in the revenue records since 1366 Fasli was because of the order dated 20.4.1959 passed in Case No. 295 which was without jurisdiction and did not confer any right on the petitioner. It has been argued by the respondents that in view of the aforesaid, the writ petition lacks merit and is liable to be dismissed. In support of his contention, the counsel for respondents has relied upon the judgment in Baijnath & Ors. vs Board of Revenue, U.P. at Allahabad & Ors. 2018 (138) RD 691.
I have considered the rival submissions of the counsel for the parties and perused the records.
It is evident that the order dated 20.4.1959 passed by the Naib Tehsildar in Case No. 295 was without jurisdiction in as much as the proceedings in Case No. 295 were registered under Sections 33/39 of the Uttar Pradesh Land Revenue Act, 1901. At the relevant time, the Naib Tehsildar did not have the power to pass any order regarding correction of records. As would appear from the records of the case, the issue in Case No. 295 related to a title dispute between the petitioner and the recorded tenure holders and beyond the scope of proceedings under Sections 33/39 of U.P. Land Revenue Act, 1901. Therefore, the Consolidation Officer as well as respondent no. 1, in their orders dated 15.9.1982 and 24.1.1986, rightly refused to rely on the order dated 20.4.1959 passed by the Naib Tehsildar while deciding the dispute between the petitioner and respondent nos. 2 and 3. However, the counsel for the petitioner has argued that the admission made by the brothers of respondent nos. 2 and 3 regarding his possession over the disputed plot was binding on the respondents as it was an admission by a co-owner and was also relevant to decide the claim of the petitioner that he had perfected his title over the disputed plot by adverse possession. In support of his argument, the counsel for the petitioner relied upon the judgment of this Court in Algoo (supra). It has been argued by the counsel for the petitioner that the Consolidation Officer and respondent no. 1 had committed an error of law apparent on the face of record in rejecting the aforesaid admission made by the brothers of respondent nos. 2 and 3. I am not able to accept the contention of the counsel for the petitioner. As would be evident from the judgment of this Court in Algoo (supra), the admission made by the brothers of respondent nos. 2 and 3 was merely a relevant piece of evidence and not conclusive evidence regarding possession of the petitioner over the disputed plot. It is not clear from the records annexed with the writ petition as to whether Case No. 295 was instituted by the petitioner claiming adverse possession over the disputed plot or on any other ground. Further, apart from the purported admission made by the brothers of respondent nos. 2 and 3, the petitioner was not able to produce any other evidence to support his claim of adverse possession over the disputed plot. As held by this Court in Baijnath (supra), the petitioner had a heavy burden to prove his adverse possession over the disputed plot which he failed to discharge in the proceedings before the consolidation authorities. It is also evident that the document containing the admission in favour of the petitioner contained only the thumb impression of the brothers of respondent nos. 2 and 3 and not of the respondents who were minor at that time and the brothers of respondent nos. 2 and 3 were not their guardian. In view of the aforesaid, the brothers of respondent nos. 2 and 3 could not have entered into any compromise on their behalf and could not have given a discharge on behalf of respondent nos. 2 and 3. Thus, the contention of the counsel for the petitioner that respondent no. 1 and the Consolidation Officer had erred in law in not considering the admission made by the brothers of respondent nos. 2 and 3 cannot be accepted and is, hereby, rejected.
The next contention of the counsel for the petitioner that, in any case, the petitioner was in possession of the disputed plots since 1366 Fasli and, therefore, had perfected his title by adverse possession by the time respondent nos. 2 and 3 filed their objections before the Consolidation Officer can also not be accepted. It is evident that the possession of the petitioner has not been proved by any witness but the petitioner relies only on the revenue entries in his favour since 1366 Fasli. The revenue entries in his favour were a result of the order dated 20.4.1959 passed in Case No. 295 which as held earlier were without jurisdiction and therefore do not help the petitioner. A perusal of the order dated 24.1.1986 also shows that the petitioner was recorded in the revenue records as mortgagee of the disputed plot and therefore the petitioner cannot claim any adverse possession over the disputed plot.
In view of the aforesaid, the order dated 24.1.1986 passed by respondent no. 1 allowing Revision No. 337 is according to law and requires no interference by this Court under Article 226 of the Constitution of India. The writ petition lacks merit and is, hereby, dismissed.
Order Date :- 29.5.2018 Satyam