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GIRJA SHANKER & OTHERS versus DY. DIRECTOR OF CONSOLIDATION, BANDA CAMP MAHOBA & OTHERS

High Court of Judicature at Allahabad

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Girja Shanker & Others v. Dy. Director Of Consolidation, Banda Camp Mahoba & Others - WRIT - B No. 40699 of 2006 [2006] RD-AH 15236 (4 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 40699 of 2006

Girja Shanker & others vs. Deputy Director of Consolidation, Banda

& others

Hon'ble Krishna Murari, J.

By means of this petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 10.5.2006 passed by Deputy Director of Consolidation.

The dispute relates to plot no. 408 situate in village Khiriya Kalan, Pargana & Tehsil Kulpahad, District Mahoba . In the basic year the name of respondent no.5 was recorded in Column-I as main tenant and Shiv Dayal the predecessor of peititoner no.1 was recorded in Column-IX. The petitioner nos. 2 to 4 were found to be in possession over different area of the said plot during ''partal'. Shiv Dayal father of petitioner no.1 and petitioner nos. 2 to 4 filed objections under Section 9 of U.P. Consolidation of Holdings Act (for short ''the Act') claiming rights on the basis of adverse possession. The Consolidation Officer consolidated all the objections and vide order dated 20.2.2003 dismissed the same. The petitioners went up in appeal before the Settlement Officer Consolidation  which was allowed. Aggrieved by he said order, the contesting respondents filed a revision. The revisional court vide impugned judgment has allowed the same and set aside the order of the Settlement Officer Consolidation  and confirmed the order of the Consolidation Officer.

It has been urged by learned counsel for the petitioners that the adverse possession of the petitioners was fully established by documentary evidence in the form of khasra entries, irrigation receipts as well as orders passed in proceedings under Section 145 Cr.P.C. but  the same has wrongly been ignored and disbelieved by the Consolidation Officer and Deputy Director of Consolidation. It has further been urged that Deputy Director of Consolidation has wrongly disturbed the finding of fact recorded by the Settlement Officer Consolidation  while allowing the appeal filed by the petitioners as he has no such jurisdiction while exercising revisional power conferred by Section 48 of the Act. Reliance in support of the said contention has been placed on a judgment of the Hon'ble Apex Court in the case Shiv Nandan vs. Deputy Director of Consolidation, 2000(91) RD 213.

In reply, it has been submitted by learned counsel for the respondents that the Deputy Director of Consolidation  found that the name of the petitioners were not recorded in khasra in accordance with law and the procedure prescribed under U.P. Land Records Manual has not been followed as such rightly disbelieved the khasra entries.

I have considered the argument advanced by learned counsel for the parties and perused the record.

The Consolidation Officer has recorded a finding that the petitioners have failed to prove their continuous possession for twelve years and as such, were not in possession as prescribed under the Statute for perfecting rights by adverse possession and for that reason dismissed the claim of the petitioners. He has not adverted himself to the illegality or validity of the khasra entries. The Settlement Officer Consolidation while analyzing the evidence recorded a finding that though the entries in Column-IX have not been made in red ink as provided in the U.P. Land Records Manual but the petitioners cannot be held responsible for that and cannot be denied rights on account of mistake committed by the authorities empowered to maintain the record. He has also not adverted himself nor recorded a finding with regard to the illegality or validity of the entries made in Column-IX. The Deputy Director of Consolidation has recorded a categorical finding that there was no evidence on record that any notice under PA-10 was issued or served upon the main tenant and Pradhan.

In order to establish their claim of adverse possession, the petitioner relied upon the khasra entries and also tendered oral evidence. There was nothing on record to indicate that before making entries in Column-IX of the khasra any notice was issued to the recorded tenure-holder. The Deputy Director of Consolidation has found that even this fact was not stated in the oral statement. There was nothing on record to indicate that the date of ''partal' and date of issuance of PA-10 was mentioned in the khasra. The petitioners also failed to summon the diary of the Lekhpal.

It is well settled that the person who recorded as a tenure-holder is entitled to notice when an authority makes an entry regarding possession against him and only then a right is created in favour of another person in respect of the land for which entry of possession is made in the khasra. It is also equally well settled that where revenue entries have not been made in accordance with the provision of Land Records Manual such entries have no evidentiary value and the burden to prove the correctness of the entries lies on the person who relies upon the same for declaration of rights in his favour. Reference in this connection may be made to the case of Mohd. Raza vs. Deputy Director of Consolidation , Banda, 1990 Revenue Judgment 281, Gurmukh Singh vs. Deputy Director of Consolidation, 1998(1) All.C.J. 93, Ganga Ram & others vs. Deputy Director of Consolidation & others, 1992 RD 1 and Jamuna Prasad vs. Deputy Director of Consolidation, 1980 All.C.J. 506.

In view of the settled legal position on the point, the Deputy Director of Consolidation, rightly did not place any reliance on the entries in Column-IX which were in favour of the petitioners.

In so far as the second argument advanced by learned counsel for the petitioners is concerned, no doubt the Hon'ble Apex Court in the case Shiv Nandan (Supra), relied upon by learned counsel for the petitioners, has held that normally the Deputy Director of Consolidation in exercise of its revisional powers is not expected to disturb the finding of fact recorded concurrently by Consolidation Officer and the Settlement Officer Consolidation. However, this observation has been qualified in the same paragraph as follows :

"but where the findings are perverse, in the sense that they are not supported by any evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director of Consolidation  to scrutinize the whole case again so as to determine the correctness of the legality or propriety of the orders passed by the authorities sub-ordinate to him. In a case like the present, where the entries in the revenue record are fictitious or forged or they were recorded in contravention of the statutory provision contained in the U.P. Land Records Manual or other allied statutory provision, the Deputy Director of Consolidation would have full power under Section 48 to reappraise or reevaluate the evidence on record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries made not in accordance with law."

In view of the above observations of the Hon'ble Apex Court, the Deputy Director of Consolidation having found that khasra entries relied upon by the petitioners having not made in accordance with provision of the U.P. Land Records Manual rightly refused to place reliance upon the same and thus cannot be said to have exceeded his jurisdiction in any manner as suggested by learned counsel for the petitioners.

In view of the above, even the second argument advanced by learned counsel for the petitioners is devoid of any merit and not liable to be accepted.

For the reasons stated above, I find no merit in the writ petition and the same accordingly, stands dismissed.

Dt.4.9.2006

Nd.


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