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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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