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Kedari Lal & Others v. Board Of Revenue Alld. & Others - WRIT - B No. 40520 of 2003  RD-AH 444 (13 November 2003)
COURT NO. 40
Civil Misc. Writ Petition No. 40520 of 2003
Kedari Lal and others.....................................Petitioners.
The Board of Revenue U.P. Allahabad and Ors.....Respondents.
Hon. S.N.Srivastava, J.
This case gives glimpses as to what amount of ingenuity and guiles are exercised by someone very proximately related to a hapless disabled minor in grabbing his property. The dispute in the instant case hovers over plot nos. 59/3, 77, 85/0.69 and 85/0.96 situated in village Moora Semnagar alias Pandari Pargana and Tahsil Bisalpur District Pilibhit.
The facts squeezed out of the findings recorded by the courts below are that Jokhey Lal father of the respondent no. 4 was the Bhumidhar of the plots in question and was entered as such in the revenue record when he expired leaving behind Dwarika Prasad, then aged about one year. It is borne out from the findings that Dwarika Prasad was born in the year 1967 and further that the name of Jokhey continued in the revenue record even after his death and the name of Dwarika Prasad was mutated by an order passed under P.A. 11 on 11.3.1976 subsequently. It appears from the record that Munna Lal who was the real (Phupha) of the respondent no. 4 and the only male relations in the close proximity, got his name entered in Varg 9. After the death of Munna Lal, his sons forced themselves upon the plots in question and even after the respondent no.4 had regained entry of his name in the revenue records and the petitioners who are sons of Munna Lal did not part with the possession, the litigation erupted. The dispute escalated into filing of two suits under section 229 B of the U.P. Z.A. & L.R. Act-one by Dwarika Prasad Opp. Party no.4 for claiming his Bhumidhari rights and for expunging entry in Varg 9 and the other suit came to be filed by Kedari Lal and others sons of Munna Lal in the year 1992 whereby they claimed Bhumidhari rights on the basis of their possession spanning over 20 years. The suit of the petitioners reached the culminating point with decree being passed in favour of the petitioners and declaring them as Bhumidhar while the suit of Dwarika Prasad ended up in dismissal. The decisions aforestated received the seal of approval in appeal preferred before the Additional Commissioner. However, a second appeal came to be filed by Dwarika Prasad before the Board of Revenue which met with success and in consequence decisions of the courts below were upturned and the suit of the petitioner came to be dismissed. It is in the above perspective that the matter has come up before this Court under Article 226 of the Constitution.
I have heard learned counsel for the petitioners and Sri S.K.Lakhpatia appearing for the contesting Opp. Party. It bears no dispute that Dwarika Prasad at the time when entry in Varg 9 came to be recorded in favour of Munna Lal, was a minor and further that he was related to Dwarika Prasad as Phupha (husband of father's sister). It is borne out from the record that Dwarika Prasad after the death of his father was recorded in the revenue record as Sirdar but after the death of his father Jokhey, he being minor, Munna Lal got his name recorded in Varg 9 in the year 1376 Fasli. Subsequently, it appears, petitioners taking advantage of the entry in Varg 9 forced themselves upon the property. It would also appear from the record that the name of Dwarika Prasad came to be recorded by an order passed under P.A. 11 and even after when his name came to be recorded in Varg 9 and the names of sons of Munna Lal continued in the revenue records, the litigation as aforestated erupted. The solitary ground on which is founded the claim of the petitioners is their possession (not in accordance with law) over the property spanning over 20 years.
The learned counsel for the petitioners tried to whittle down reasoning of the Board of Revenue by canvassing that the right of Munna Lal had already accrued and matured under section 210 of the U.P.Z.A. & L.R.Act and further that the Board of Revenue erred in law in reversing the decree while recording finding that the petitioners had not perfected their rights. He further canvassed that Munna Lal was a proximate relation of Dwarika Prasad and thus he acquired right by possession not in accordance with law. It is lastly canvassed that the finding recorded by the trial court and the appellate court relating to possession has not been reversed by the Board of Revenue and by this reckoning, the order passed by the Board of Revenue is liable to be quashed. Per contra, Sri S.K.Lakhpatia contended that Dwarika Prasad was aged about one year when his father died and there being no male member in the near relations, Munna Lal stepped in and he was merely looking after the affairs of the minor and by this reckoning, no adverse rights could accrue in his favour.
From the facts on record and also from consideration of the submissions made across the bar, following two questions crystallize for determination- (1) whether the near relative could claim having perfected his title on ground of adverse possession while looking after the affairs of a minor as guardian in near relation as in the instant case and (2) whether the limitation could be brought into play in the matter of institution of suit by a minor in the fact-situation as in the instant case.
I have scrutinized the findings recorded by the Board of Revenue in juxtaposition with the findings recorded by the two courts below. The Board of Revenue has recorded a categorical finding that entry in favour of Munna Lal in Varg 9 was made without issuing PA 10 and further that Munna Lal had not perfected his title by possession for not being in possession in accordance with law but was looking after the affairs of minor Dwarika Prasad as guardian and that no adverse right could accrue in his favour. It is also clear from the finding of the trial court that Dwarika Prasad was one year old when his father Jokhey Lal died and further that Dwarika Prasad was born in the year 1967. It also crystallizes that the name of Dwarika Prasad was mutated by an order passed under P.A. 11 on 11.3.1976 and further that the name of Jokhey Lal continued even after his death and the name of Dwarika Prasad came to be mutated subsequently.
From a careful scrutiny of the record, it is apparent that the trial court and First Appellate court have not recorded any finding on the count whether entry in Varg 9 came to be made after issuing PA 10 in accordance with Land Record Manual and it would rather appear that the authorities hastened to converge to the conclusions in favour of the petitioners without any valid justification or basis. The Board of Revenue has recorded a clear finding that no P.A. 10 was issued to form the basis for entry in Varg 9. Even if it be assumed that Munna Lal was in possession, that possession was on behalf of the minor as guardian and nothing more when his name came to be recorded in Varg 9, inasmuch as there is not a vestige of evidence to indicate that Munna Lal came over possession with the consent of Bhumidhar and as such it cannot be deemed to be not in accordance with law as consistent with the provisions of Sections 209 and 210 of the U.P.Z.A. & L.R.Act. Section 209 of the U.P. Z.A. & L.R.Act is abstracted below.
"209. Ejectment of persons occupying land without title.--(1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force,-
(a) where the land forms part of the holding of a Bhumidhar or Asami without the consent of such Bhumidhar, or Asami,
(b) where the land does not form part of the holding of a Bhumidhar, or Asami, without the consent of the Gaon Sabha.
Shall be liable to Ejectment on the suit, in cases referred to in clause (a) above, of the Bhumidhar, or Asami, concerned, and in cases referred to in clause (b) above of the Gaon Sabha and shall also be liable to pay damages.
(2) To every suit relating to a land referred to in clause (a) of sub-section (1) the State government shall be impleaded as a necessary party."
The Board of Revenue has rightly passed order observing that possession of Munna Lal was not otherwise in accordance with law and in any case, possession whatsoever would be deemed to be on behalf of Dwarika Prasad, who was minor at that time. In any case, as held by the Board of Revenue, Munna Lal or as the case may be, the petitioners have not completed statutory period so as to make out a case of adverse possession, which could be said to be the basis to lend countenance to the claim of acquiring their rights over the plots in question. Moreover, it would rather appear that Munna Lal who was husband of sister of Jokhey Lal, and was displayed to be in possession in Varg 9 could not be said to be in possession not in accordance with law as there is no indicia on the record that the entry came to be recorded according to the procedure prescribed in law. In case this entry had come to be recorded otherwise in accordance with law, it may have furnished foundation for the claim that any person had perfected the title by reason of being in possession otherwise in accordance with law. At the maximum Munna Lal's possession would be deemed to be no more than one on behalf of original tenure holder i.e. Dwarika Prasad respondent no.4 who had succeeded the property. The mere fact that entry came to be recorded bearing the name of Munna Lal though without issuing P.A. 10, no consequence would ensue of investing the petitioners with any right. Besides, Jokhey Lal himself died before 1968 and Dwarika Prasad being minor at that time, if name of Munna Lal came to be recorded otherwise in accordance with law, no adverse rights could accrue in favour of Munna Lal or his sons particularly regard being had to the fact that Munna Lal had stepped into as care-taker/guardian there being none else except Munna Lal in the near relations. By any reckoning, Munna Lal was merely in the capacity of guardian (though not appointed in accordance with law), with the ostensible object of supplementing the child's want of capacity and judgment. Here in the instant case, as stated supra, Munna Lal got his name mutated in Varg 9 without following the due procedure of law and subsequently, name of Dwarika Prasad came to be recorded by an order passed under P.A 11 and therefore, it cannot be said that no step was taken on behalf of Dwarika Prasad. As stated supra, it is on the record that Dwarika was born in the year 1969 and it brooks no dispute that at the time of death of his father, Dwarika Prasad was one year old. By this reckoning it is not difficult to assume that Jokhey Lal died in the year 1967 which corresponds to 1376 Fasli year in which name of Munna Lal was recorded in the revenue record. The quintessence that flows from the above is that at the time of entry of the name of Munna Lal, Dwarika Prasad was still a minor and his father had already died. In the entire perspective, all that can be said about the present case is that the entry in Varg 9 was a stray and sporadic act and it was obtained clandestinely taking advantage of his position as guardian of the respondent no. 4. It is also borne out from the record that name of Dwarika Prasad came to be mutated in the revenue record on the basis of an order dated 11.3.1976 passed under P.A. 11. Besides, there is nothing specific on the record to indicate as to what formed the basis for acquiring any right by Munna Lal over the property of the minor and in absence of anything concrete or tangible, the claim over the property by Munna Lal or his heirs cannot be countenanced in law. It thus does not appear that the possession of the petitioners had any element of adverse possession. Be that as it may, the possession of Munna Lal as stated supra, was in the capacity of guardian not otherwise in accordance with law. In the perspective of above discussion, the questions (1) is answered in negative.
Another ancillary question that calls for consideration is whether Munna Lal took possession or he or his heirs were retaining possession otherwise in accordance with law. The expression "taking and retaining" is of pivotal importance. A perusal of finding of the Board of Revenue and also the materials on record, leave no manner of doubt that petitioners' father Munna Lal came into possession otherwise in accordance with law. As a matter of fact, he came into possession over the agricultural property ostensibly for taking care of the affairs of the minor after the death of his father. Once possession was taken not otherwise in accordance with law, it becomes adverse to possession in accordance with law. It should be borne in mind that parties are proximate relatives and looking after of affairs of the agricultural property of a minor child by a near relative does not qualify to "taking or retaining possession" otherwise in accordance with law. Besides, there is no material on record to induce the finding that petitioners possession became adverse and not in accordance with law within 12 years from the date of filing of the suit or they perfected any title consistent with the provisions contained in section 209 of the U.P.Z.A. & L.R.Act.
Yet another aspect dealt with by the appellate court is that the suit was not filed within three years after attaining majority and as such the suit instituted by Dwarika Prasad was liable to be dismissed. The above aspect has been picked out to turn into submission before this Court by the learned counsel for the petitioner. The submission does not commend to me for acceptance when very foundation of the submission is lacking. In the instant case there is not a vestige of evidence that possession of Munna Lal was in accordance with law or it was not sanctified by the requirements of law. On the contrary, the possession was with a view to protecting the interest of the minor by Munna Lal, a proximate relative and therefore, the plea does not cut any ice with me that the suit filed by the respondent no.4 was unsustainable having not been filed within three years of attaining majority. At the risk of repetition, it may again be observed that the name of Munna Lal came to be entered without issuing order under P.A. 10 and on the other hand, the name of the respondent no. 4 was mutated in the record by an order passed under P.A. 11 on 11.3.1976. From a perusal of the record, it is more than obvious that after death of Munna Lal his sons never remained in continuous possession and it is borne out from the fact that there is no entry in 1378, 1387 and 1395 fasli indicating possession of the petitioners. This constitutes glaring instance that Munna Lal or his sons were never in continuous possession. It is settled in law that there can be no presumption of continuous possession unless there is evidence to the effect in favour of a person claiming his rights otherwise in accordance with law. Therefore, it is accordingly held that in view of the fact-situation, law of limitation cannot be brought into play to render the suit of Dwarika Prasad liable to be dismissed. In connection with the proposition, rule of authority contained in a single Judge decision of this Court in Chandrapati v. Gunnu and Ors may be noticed. This decision was rendered by the learned Single Judge of this Court in Review Application. In this case also, applicants' father was recorded as a co-tenure holder over the disputed land in the year 1349 F when he was a care taker of the contesting Opp. Parties whose father was away from the village and during the minority of the contesting Opp. Parties, the petitioners' father got his name recorded over the disputed land. It was observed by the Court that according to the law in the year 1349 F, it was incumbent upon the petitioners' father to have written consent of the landlord with a view to get his right recognized. Since there was no written consent in favour of the father the claim was not accepted by the Court. The court went on to hold that in the case the petitioners had failed to establish the essential ingredients of estoppels and acquiescence. As regards the rights of the petitioners of that case, it was observed by the learned Single Judge as under:
"In my opinion, the applicants' father was a relation of the contesting opposite Parties and he was looking after the interest of the contesting opposite parties whose father was away from the village. Therefore, even if the applicants' father continued in possession over the disputed land for more than statutory period, he could not be permitted to acquire any right on the basis of adverse and continuous possession. It will be a sad day when a relation and caretaker would be permitted to acquire right in the property of the persons who were under his care on the basis of adverse possession."
In the instant case, it is established from the materials on record that the respondent no.4 had none to fall back upon being minor at the time of death of his father and Munna Lal being the only proximate relation in the hierarchy stepped into to take care of the child and his property. As noticed above, there is no indicia on record to indicate that the name of Munna Lal came to be recorded in accordance with law and in case Munna Lal as the circumstances suggest, maneouvred to secure mutation his name in Varg 9, he or his sons cannot claim any rights on the ground of possession not in accordance with law. It is really shocking to conscience that undue advantage was taken of incapacity of the respondent no. 4 who was then a child and I feel constrained to observe that small gains should not justify claiming of their rights by the petitioners and dragging the respondent no.4 unto this Court. I am unable to see even a semblance of a point in favour of the petitioners to sustain their claims over the property.
In my opinion, it is a fit case in which principles of corrective justice should be applied on all fours which requires restoration of the property to the respondent no. 4 and reparation of loss caused to respondent no. 4 and restitution in case there is any unjust enrichment. It is settled that judicial decisions must be made even when guidance from within the law is lacking, and in that event, judicial discretion must be conceived in positivism as permitting Judges to look outside the law for standard to guide them in supplementing old legal rules or creating new ones. In this process, the Courts should rightly reflect the moral and ethical ideals of the society and may adopt extra legal more standards in statutory and constitutional interpretations. Since it is established in the case that respondent no 4 is the rightful owner of the property and Munna Lal in the capacity of care taker had contrived things in his favour in order to make out a ground for adverse possession, and in consequence, the respondent no. 4 has been dragged unto this Court ostensibly with a view to wear him out, it would be in the fitness of things that some exemplary cost should be imposed on the petitioners.
In the above conspectus, the petition being bereft of merits is accordingly dismissed in limine. As regards the cost, which this Court proposes to impose for the harassment suffered by the respondent no. 4, I am of the view that it would meet the ends of justice if the petitioner is asked to pay cost which I quantify at Rs. 1000/- in the peculiar facts and circumstances of the case.
Dt. Nov. 13,2003.
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