RAM BAHAL Vs DEPUTY DIRECTOR, CONSOLIDATION .
Bench: RANJAN GOGOI,R.K. AGRAWAL
Case number: C.A. No.-003594-003594 / 2011
Diary number: 3181 / 2006
Advocates: P. NARASIMHAN Vs
SHEKHAR KUMAR
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3594 OF 2011
Ram Bahal & Anr. .... Appellant(s)
Versus
Deputy Director of Consolidation Azamgarh & Ors. .... Respondent(s)
J U D G M E N T R.K. Agrawal, J.
1) The present appeal has been filed against the order dated
28.07.2003, passed by the High Court of Judicature at Allahabad in
Civil Misc. Writ Petition No. 247 of 1997 whereby the High Court
dismissed the petition preferred by the appellants herein while
confirming the order of the Deputy Director of Consolidation,
Azamgarh and the Consolidation Officer dated 11.11.1976 and
29.03.1974 respectively.
Brief Facts:
2) The dispute relates to Plot Nos. 795, 796 and 903 situated in
village Bahauddinpur, District Azamgarh. The said plots were
admittedly recorded in the name of the respondent Nos. 3 and 4 in
the basic year record. The names of the appellants were shown to be
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recorded in the possession column. In the consolidation proceedings,
both the appellants and the respondents filed their objections. The
appellants claimed their right over the land in question by virtue of
their possession and entry in their favour in the revenue records.
However, respondent Nos. 3 and 4 prayed for expunction of the
names of the appellants who have been wrongly recorded. Oral and
documentary evidence were filed before the Consolidation Officer in
respect of respective cases. The Consolidation Officer, vide order
dated 29.03.1974, allowed the petition filed by the respondent Nos. 3
and 4 herein and directed for expunction of the names of the present
appellants which were shown to be in possession. Being aggrieved,
the appellants preferred an appeal before the Settlement Officer,
Consolidation. The Settlement Officer, Consolidation, vide order
dated 15.12.1975, allowed the appeal and the appellants were
permitted to be recorded as Seerdar over the land in dispute.
Aggrieved by the order dated 15.12.1975, the respondents filed a
revision before the Deputy Director, Consolidation. The Deputy
Director of Consolidation, vide order dated 11.11.1976, allowed the
revision and restored the judgment and order of the Consolidation
Officer dated 29.03.1974. The order dated 11.11.1976, passed by the
Deputy Director, Consolidation, as also the order of the Consolidation
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Officer dated 29.03.1974 were challenged by the present appellants
before the High Court.
3) In the High Court, the appellants claimed the acquisition of their
rights on the basis of adverse possession which according to them
have been properly examined by the Settlement Officer, Consolidation
and after assessing the material on record a clear finding of fact had
been recorded regarding continuous possession of the appellants and
therefore, it is not a case for interference by the Deputy Director,
Consolidation, in the revisional jurisdiction under Section 48 of the
U.P. Consolidation of Holdings Act. Further, it was the case set up by
the appellants that there was no perversity in the order of the
Settlement Officer, Consolidation or that it was based on no evidence
and therefore the finding of fact recorded by the Settlement Officer,
Consolidation could not have been set aside by the Deputy Director of
Consolidation.
4) It was further claimed that the Deputy Director of Consolidation
was not justified in reassessing the evidence and to give his own
findings and at the most, he could have remanded the matter to the
Consolidation Officer for giving fresh findings.
5) On the other hand, the claim of the contesting respondents was
that as the Settlement Officer, Consolidation has allowed the claim of
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the appellants therein by taking erroneous approach of the facts and
by not properly interpreting the entry which has been brought on
record, the Deputy Director of Consolidation, had every authority to
go into the matter and, on proper analysis and after appreciation of
the entry, to disagree with the order of the Settlement Officer,
Consolidation. It is not a case of reassessment of evidence rather it is
a case of correct interpretation of the revenue entry. It was further
submitted before the High Court that in the Khatauni extract 1359
Fasli, the contesting respondents have been shown in possession and
therefore they became Adhiwasi and Seerdar of the land in dispute
and so far possession of the appellants, even if it is recorded, having
not been proved to be in accordance with law, they cannot get any
right on the basis of adverse possession. Even the entry in favour of
the appellants has not been found by the Settlement Officer,
Consolidation to be continuous and in accordance with law, and
therefore, the plea of adverse possession cannot be accepted.
6) The High Court, after going through the evidence on record came
to the finding that the Settlement Officer, Consolidation has referred
to the arguments of the parties at quite length but so far as finding
part is concerned, has given a clear finding, on the basis of the
entries, in favour of Ram Adhar and thereafter his sons became
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Seerdar of the land in dispute but not the appellants as Seerdar. The
High Court further held that there is no finding by the Settlement
Officer, Consolidation that the entry in favour of the predecessors of
the respondents is valid and correct and there is also finding about
the rights of the respondents. The Consolidation Officer and the
Deputy Director, Consolidation had given a finding that the
predecessors of respondents were recorded as sub tenants and by
virtue of the entry in their favour, they became Adhiwasi and Seerdar
which has not been disturbed by the Settlement Officer,
Consolidation. The High Court came to the conclusion that the
finding in favour of the appellants appears to have been given by the
Settlement Officer, Consolidation on the premise that inspite of decree
in favour of the respondents under Section 229-B of the U.P.
Zamindari Abolition & Land Reforms Act (in short ‘the Act’)
possession was not taken from the appellants. By referring the order
passed by the Deputy Director of Consolidation, the High Court came
to the conclusion that the Deputy Director, Consolidation has not
reappraised the evidence but it looked into the correctness and
validity of the entries recorded in the Khatauni filed by the respective
parties. He has referred to each and every entry and because there
was over writing in some of the entries, the Khatauni containing over
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writings was discarded. The High Court, consequently, declined to
interfere in the order passed by the Deputy Director, Consolidation
and dismissed the writ petition.
7) Heard Mr. Ajay Kumar Misra, learned senior counsel for the
appellants and Mr. R.K. Gupta and Mr. Shekhar, learned counsel for
the respondents.
8) Learned senior counsel appearing for the appellants submitted
that the original owner of the Plot No. 903 in dispute had migrated to
Pakistan and as per the Order of the Custodian dated 17.10.1957, the
year of migration was presumed to be 1355 Fasli and in that year, the
father of the appellants was also found in possession by the
Custodian up till 1364 Fasli. The appellants had to pay 20 times of
the circle rate to acquire Bhumidari rights under Section 20B of the
Act which was paid by the appellants and thus they acquired lawful
rights. So far as Plot Nos. 795 and 796 are concerned, these plots
were in the possession of the appellants prior to the enforcement of
the Act and therefore they were recorded as occupants of the land in
1355 Fasli to 1359 Fasli. They became Adhiwasi in possession and
subsequently Seerdar. Therefore, it conferred right to the appellants
over the property in dispute.
9) The contesting respondents are claiming their right on the basis
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of entry of sub tenancy starting from 1358 Fasli which has been
found to be wrong entry by the Settlement Officer, Consolidation and
therefore not given due weightage. Learned senior counsel for the
appellants submitted that in view of the above, the respondents had
no right nor were in possession as they themselves filed a suit being
No. 920 under Section 229-B of the Act whereby they claimed relief of
possession from the appellants. The decree passed in the said suit
stood abated in second appeal vide order dated 27.05.1974 as
consolidation proceedings had started. This shows that the
respondents were never in possession of the land and the entry
coming for the first time in the 1358 Fasli was wrong entry and it was
never established from any record as to how sub tenancy was created
in favour of the respondents. The Settlement Officer, Consolidation,
had therefore, rightly held that the appellants became Adhiwasi and
thereafter became Seerdar.
10) According to the appellants, the order of the Consolidation Officer
and the Deputy Director of Consolidation as also the High Court are
based on some proceedings under Section 33/39 of the Land Reforms
Act which is a mutation proceeding and any admission made in a
mutation proceeding is not binding on the maker in a title matter.
Moreover, in the mutation proceedings, the appellants were not party
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and hence, cannot be relied upon against them. Learned counsel for
the appellants placed reliance on Smt. Sonawati and Ors. vs. Sri
Ram and Anr. AIR 1968 SC 466, Jhutan Singh vs. Badri & Ors.
1962 Revenue Decisions 239, Bhurey vs. Pir Bux 1973 ALJ 313,
Laxmi Narain vs. D.D.C., Varanasi 1986 Revenue Decisions 410
and Pir Khan vs. Deputy Director of Consolidation, District
Kanpur 1965 ALJ 591. It was, therefore, submitted that the orders
passed by the Consolidation Officer, Deputy Director, Consolidation
and the High Court be set aside and that of the Settlement Officer,
Consolidation be restored.
11) Learned counsel for the respondents, however, submitted that
the Consolidation Officer and the Deputy Director, Consolidation, had
given a categorical finding that the predecessors of respondents were
recorded as sub-tenants and by virtue of entry in their favour, they
became Adhiwasi and Seerdar which has not been negatived by the
Settlement Officer, Consolidation. The appellants are not laying any
claim against the respondents on the basis of the possession and the
authorities have found that there is only mention of few
Khasra/Khatauni entries without any reference to even any oral
evidence. Merely because the possession on the basis of the decree in
favour of the respondents was not taken from the appellants, it
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cannot be said that the appellants were in lawful possession of the
plots in question. Some of the khatauni/khasra contained over
writings, and therefore, they were rightly left aside by the Deputy
Director of Consolidation. Even the appellants could not give the
exact date or the year in which premium had been paid for taking the
rights in their favour. Even no claim of adverse possession was
established. He further prayed that the judgment and order passed
by the High Court should be maintained.
12) We have given our anxious consideration to the various pleas
raised by learned counsel for the parties. We find that the Deputy
Director, Consolidation had examined the various copies of
Khasra/Khatauni filed by the parties and had come to the conclusion
that copy of Khasra 1357 crop year has been filed in which Sumer,
father of the present appellants, has been mentioned having
possession of Land Nos. 795 including 796. Against Land No. 779,
there is a cross mark. Against remaining two numbers, no cross
mark has been put and Sikmi column of khasra is blank. Khasra of
1358 crop year has been filed. In this, possession of Sumer has been
entered in remarks column against Land Nos. 795, 796 and in the
column of Sikmi, the name of Adhar, s/o Munesar (father of the
contesting respondents) is entered. In the remarks column of Land
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No. 903, the names and possession of Rohim Palton, Sumer, Phenku
are entered. This Khasra is not reliable because when the name of
Sumer was entered in 1357 crop year, then recording possession of
Sumer again for Land Nos. 795, 796 in 1358 Crop year and the name
of Adhar coming in the Sikmi column make these Khasras doubtful.
The names of Rahim and Palton, having possession on Land No. 903,
are found whereas the Sikmi column is blank which is also doubtful.
Khasra 1359 crop year has been filed. In this, the name of Adhar is
mentioned in Sikmi column and possession of Sumer, son of
Munesar, is mentioned against L.Nos.795, 796. Possession is
mentioned against L.No.903 and then it has been struck off or has
been written above Bhopare. In the Sikmi column also, there is
cutting over the entries against this number. Khasra for 1362 crop
year has been filed. In this, the name of Adhar against L.No.795 is
available as before in the Sikmi column. In the L.No. 796 also, the
name of Adhar is available as before in Sikmi column and in the
remarks column the name of Sumer s/o Munesar is written. The
name of Adhar is also available against L.No. 903 and after making
entry of possession of Adhar and others, this has been struck off and
Rahim and others have been written in their place. Khasra for 1363
crop year has been filed and it is also like 1362 crop year khasra. In
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L.No.903, the possession of Rahim, Pudan and Sumer and Phenku
have been written and there is no entry in remaining two numbers.
These same entries are found in khasra of 1354 crop year. Notice of
office of Assistant Custodian (Judicial) has been filed and it has too
much overwriting and the same cannot be relied upon. Copy of
Khatoni of 1366 crop year has been filed in which the name of Asfaq
has been entered in the main column and the name of Ram Adhar
son of Munesar has been entered in category 9. In 1368 crop year,
the name of Asfaq and others were deleted and the name of Adhar
entered as Seerdar on the basis of order passed in Case No. 341
under Section 33/39. In 1370 crop year, the name of Bahal, Kirpal
are entered as category 9. Khasra 1368 crop year has been filed in
which an entry has been recorded that possession of Ram Kirpal,
Bahal on L.Nos. 795, 796 has been found. Same entry is also
available in L.No.903. There is no reference of any P.K.No.10 enquiry
and diary number. Hence, this khasra is not at all reliable. Khasra
of 1369 crop year has been filed in which as per order of Girdawar,
Kanungo P.No. 10 dated 09.11.1961 entries of pendency of case are
recorded against L.Nos. 795, 796. The defendant should not get any
benefit of these entries. Khasra of 1371 crop year has been filed in
which the name of Bhobhal and others are entered in the main
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column. From the entire aforestated evidence, it is clear that the
name of revisionists came in existence against land from 1358, 1359
crop year. It is the case of defendant that they are Seerdar from
occupier on the basis of this possession prior to abolition of zamindari
and entries available prior to abolition of zamindari does not prove the
case of defendant because these are doubtful and not reliable. The
Assistant Settlement Officer (Consolidation), in his order, has held the
possession of defendant continuously since 1354 crop year which is
totally wrong and incorrect because the name of the defendant for the
first time has come against L.Nos. 795, 796 in 1357 crop year and
that too is in remarks column whereas the Sikmi Column is blank.
Hence, had these entries correct, the name of defendant would have
come in the column of Sikmi and not in the possession column.
There is no such evidence that the defendant paid compensation to
original cultivator after abolition of zamindari. Against this, the name
of revisionists was entered on the basis of Form No. 101 which proves
that compensation was paid to original cultivator. After abolition of
zamindari, the name of defendant is found against L.No. in 1368 crop
year whereas it is also doubtful and case of defendant is not on the
basis of adverse possession as well. Hence, these entries also have no
importance.
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13) From the findings recorded by the Deputy Director,
Consolidation, it is clear that those Khasra/Khatauni have been
excluded in which there were over writings or some unwarranted
entries. If that be the position, then the order passed by the Deputy
Director, Consolidation holding that the contesting respondents
acquired the right of Adhiwasi/Seerdars cannot be said to be based
on re-appreciation of evidence afresh. It is only a case of examining
the correctness and validity of the entries in the Khasra/Khatauni
filed by the parties.
14) The case laws relied upon by the counsel for the appellants have
no bearing upon the issues involved in the present appeal. We may
mention here that this Court in Leela Rajagopal & Ors. vs. Kamala
Menon Cocharan & Ors. 2014 (10)Scale 307 in para 14 has held
that appreciation or re-appreciation of evidence must come to a halt
at some stage of the judicial proceedings and cannot percolate to the
constitutional court exercising, jurisdiction under Article 136. For
ready reference, para 14 is reproduced below:-
“Before parting we would like to observe that the very fact that an appeal to this Court can be lodged only upon grant of special leave to appeal would indicate the highly circumscribed nature of the jurisdiction of this Court. In contrast to a statutory appeal, an appeal lodged upon grant of special leave pursuant to a provision of the Constitution would call for highly economic exercise of the power which though wide to strike at injustice wherever it occurs must display highly judicious application thereof. Determination of facts made by the High Court sitting as a first appellate court or even while concurring as a second appellate court would not be reopened unless
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the same give rise to questions of law that require a serious debate or discloses wholly unacceptable conclusions of fact which plainly demonstrate a travesty of justice. Appreciation or re-appreciation of evidence must come to a halt at some stage of the judicial proceedings and cannot percolate to the constitutional court exercising jurisdiction under Article 136.”
15) In view of the foregoing discussion, we are of the considered
opinion that the impugned order passed by the High Court does not
call for any interference hence the appeal fails and is accordingly
dismissed. However, the parties shall bear their own costs.
..…………….………………………J. (RANJAN GOGOI)
.…....…………………………………J. (R.K. AGRAWAL)
NEW DELHI; OCTOBER 8, 2015.
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ITEM NO.1D COURT NO.12 SECTION XI (For judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS
Civil Appeal No(s). 3594/2011 RAM BAHAL & ANR. Appellant(s) VERSUS DEPUTY DIRECTOR, CONSOLIDATION & ORS. Respondent(s)
Date : 08/10/2015 This appeal was called on for pronouncement of judgment today.
For Appellant(s) Mr. P. Narasimhan, AOR For Respondent(s) Mr. R.K. Gupta, Adv.
Mr. M.K. Singh, Adv. Mr. A.K. Singh, Adv.
Mr. Shekhar Kumar, AOR
Hon'ble Mr. Justice R.K. Agrawal pronounced the reportable judgment of the Bench comprising Hon'ble Mr. Justice Ranjan Gogoi and His Lordship.
The appeal is dismissed in terms of the signed reportable judgment.
(R.NATARAJAN) (SNEH LATA SHARMA) Court Master Court Master
(Signed reportable judgment is placed on the file)
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