Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1368 of 2001 (M/S) (Old CMWP No. 7480 of 1983) Shri Basant Collective Agricultural Farming Cooperative Society Ltd., Madhaiya Bakshi, Bazpur, District Nainital through its President Shri Gurdeep Singh son of Sri Lal Singh, resident of village Madhaiya Bakshi, Tahsil Bazpur, District Nainital. …… Petitioner. Versus The State of Uttar Pradesh and others. … Respondents. Sri B.S.Parihar, learned counsel for the petitioners. Sri Sudhir Kumar, learned Brief Holder for the State on behalf of the respondent no.1. None present on behalf of respondent nos. 4/1 to 4/3. Date August 18, 2008. Hon’ble B.S.Verma, J. This writ petition has been filed to issue a writ, order or direction in the nature of certiorari quashing the orders dated 6.4.1983 and 22.2.1980 passed by the respondent no.2 and 3 respectively. Brief facts, giving rise to the present writ petition, according to the petitioner, are that the petitioner is a cooperative society registered under the provisions of the U.P. Cooperative Societies Act since the year 1959 and is covered by Section 77(1)(b) of the U.P. Cooperative Societies Act 1965 and is exempt from the purview of the ceiling law. The petitioner society is in possession of plot no. 14/4, measuring 97 Bighas in village Madhaiya Bakshi, Tahsil Bazpur, district Nainital, for the last more than twenty years and has become Bhumidhar of the same by adverse possession. The original tenure holder of the aforesaid plot was Shri Amar Nath Jaitley, respondent no. 4 (since deceased), but the petitioner society has acquired Bhumidhari rights over the same by adverse possession. Notice under Section 10(2) of the U.P. 2 Imposition of Ceiling on Land Holdings Act was issued to said Amar Nath Jaitley-respondent no.4. According to the petitioner, by order dated 30-8-1978, certain land of respondent no. 4 including 50 Bighas, 13 Biswa of plot no. 14/4, of the said village was declared as surplus vacant land. An appeal was filed against the order dated 30-8-1978 and the appellate court by order dated 2- 11-1979 declared land measuring 391 Bighas 11 Biswa in terms of the irrigated land including 50 Bighas, 13 Biswas unirrigated land of the aforesaid plot no. 14/4 as surplus land out of the holding of respondent no.4. The petitioner filed objections before the Prescribed Authority-respondent no.3 that the petitioner is in possession of 97 Bighas land of plot no. 14/4 for the last twenty years and had acquired Bhumidhari rights by adverse possession. As such the land of the aforesaid plot could not be treated as the holding of respondent no.4 and could not be declared as surplus land. A copy of the objections has been annexed as Annexure No. 1. It has been stated in paragraph no. 10 of the memo of writ petition that the petitioner in support of its contention filed a copy of Khasra of village Madhaiya Bakshi, Tahsil Bazpur, district Nainital for the year 1374 Fasli to 1384 Fasli. The petitioner also examined the President of the petitioner society and the Pradhan of the Gaon Sabha Bandwara, while the State examined Sri Shri Ram Registrar Qanungo Bazpur. The Prescribed Authority by its order dated 22-2-1980 dismissed the objection of the petitioner on the ground that no evidentiary value could be attached to the Khasra records as the same were not prepared in accordance with the provisions of Land Record Manual. It was observed by the Prescribed Authority that in the Khasra of 1374 Fasli, the first entry of possession of the petitioner had not been recorded in accordance with provisions of Land Records Manual and the entry did not disclose that Form PA- 10 was ever issued. Aggrieved by the said order, the petitioner 3 filed an appeal before the First Additional District Judge, Nainital. The appellate court partly allowed the appeal to the extent of 2 Bighas, 3 Biswas vide judgment dated 17-11-1980. However, the appellate court did not accept the contention of the petitioner and observed that the Khasra records were not prepared in accordance with the provisions of Land Records Manual. The appellate court observed that the Khasra entry of 1374 Fasli did not show the fact as to the issuance of Form PA-10 at the time of initial entry of the name of the petitioner in the Khasra record and as such no evidentiary value could be attached to the Khasra records as the same had not been prepared in accordance with paragraphs A-80 and A-81 of the Land Records Manual. Aggrieved by the order passed by the appellate court, the petitioner filed a writ petition No. 1898 of 1981 before the Allahabad High Court, which was allowed vide order dated 13-4- 1982. The judgment passed in appeal was set aside and the case was remanded to the appellate court to decide the appeal afresh. The High Court of Allahabad has observed that certain changes had been brought about by the Notification dated 3-7-1965 and it was no longer necessary to issue Form PA-10 instead an entry was required to be made in Form PA-24. The learned Appellate Court had been directed to consider whether the provisions of PA-24 had been complied with and requirement of the amended Paras A-80, A-81 and A-82 of the Land Records Manual had been made. After remand, the appeal was heard afresh by the then Special Judge (Additional District Judge) Nainital. The appellate court has observed that “since there is no mention of the issuance of PA-24 against the first entry of 1374 fasli recording the possession of the appellant against the disputed plot, no sanctity can be attached thereto. It is also preposterous that the first entry of possession of the appellant has been made in column no.5, and not in the remarks column of the khasra.” The appellate court did not 4 accept the contention of the petitioner-appellant that the entry of the possession of the petitioner in column no. 5 of Khasra for the fasli year 1374 was in accordance with para 87(i)(e) of the Land Record Manual for the reason that para 87 only says as to how the entries of sub-tenants and others would be made in Khasras, but the same does not relate to the change of entries of possession. The appellate court observed that “I am definitely of the view that the entry of possession in favour of the appellant in column no. 5 of the khasra for the fasli year 1374 was not in accordance with paras A-80, A-81 and 423 of the Land Records Manual and as such the same could not be recognized. The objection of the appellant was rightly rejected by the Prescribed Authority.” Ultimately, the appeal was partly allowed vide judgment dated 6-4-1983. It was ordered that the Prescribed Authority would take as surplus land of the tenure-holder Amar Nath Jaitley out of the disputed plot no. 14/4 situated in village Madaiya Bakshi only to the tent of 48 Bighas 10 Biswas in terms of unirrigated land. It was also ordered that the deficiency, if any, would be made out from other plots of the original tenure- holder Amar Nath Jaitley. Aggrieved by the order dated 6-4-1983 passed by the Prescribed Authority as well as the order dated 22-2-1980 passed by the appellate court, the present writ petition has been filed on the ground that the courts below have failed to consider the evidence on record without considering the objection of the petitioner and that no finding was recorded by the courts below as to whether the petitioner had acquired Bhumidhari rights by adverse possession or not. The petitioner has also filed supplementary affidavit and along with the same, copy of extract of Khasra from 1396 Fasli 5 to 1407 Fasli, from 1399 Fasli to 1404 Fasli, from 1405 Fasli to 1410 Fasli have been annexed as Annexure SA-1 to Annexure SA- 3 to the supplementary affidavit. The State has filed counter affidavit. The affidavit was sworn in by Sri Mahendra Singh Rajput, the then Tehsildar Bazpur. It has been stated in the counter affidavit that the provisions of U.P.Z.A. and L.R.Act are applicable to the land in question. It has been further stated that in writ jurisdiction, finding whether in the year 1374 Fasli the entry of possession of the petitioner on the basis of adverse possession for the first time in Khasra was made or not, is a finding of fact, which cannot be interfered with in exercise of writ jurisdiction. I have heard learned counsel for the parties and perused the record including the averments made in the memo of writ petition, supplementary affidavit as well as the counter affidavit filed by the State-respondent. The main contention of the learned counsel for the petitioner is that petitioner is a cooperative society registered under the U.P. Cooperative Societies Act since the year 1959 and is covered by Section 77(1)(b) of the said Act and is exempt from the purview of the Ceiling Law. The land in dispute pertains to Khasra No. 14/4 measuring 97 Bigha of Village Maddaiya Bakshi, Tahsil Bazpur (Udham Singh Nagar). The main ground of challenge is that the petitioner society has been in possession of the disputed land for more than 25 years and has become bhumidhar by adverse possession. It has also been contended by the learned counsel for the petitioner that the provisions of A-80, A-81 and A-81-A of the Land Records Manual are applicable only to those area to which the provisions of U.P.Zamindari Abolition and Land Reforms Act 1950 are applicable and the same was made applicable to village 6 Mandaiya Bakshi, Tahsil Bazpur by Notification dated 30-6-1969 issued under Section 2(1)(b) of the U.P.Z.A.&L.R. Act with effect from 01-7-1969. It was vehemently submitted that in the case at hand, the provisions as contained in Chapter V of the Land Records Manual are applicable. The contention of the learned counsel for the petitioner is that in the year 1374 Fasli in which the entry of the possession of the petitioner was made for the first time in Khasra, the provisions of ZA&LR Act were not applicable at that time. At the outset, it may be mentioned that in paragraph no. 23 of the memo of writ petition, it was stated by the petitioner that “in the year 1374 Fasli the year in which the entry of the possession of the petitioner was made for the first time in the khasra record, the provisions of U.P.Zamindari Abolition and Land Reforms Act were not applicable and as such the entry of first possession in the khasra had to be made in accordance with the provisions contained in Chapter of the Land Records Manual and not in accordance with the provisions contained in Chapter A-V of the Land Records Manual.” In the counter affidavit, there is no denial at all of the averments made in paragraph 23 of the writ petition. It finds place to mention here that the provisions of Chapter A-V of the Land Records Manual are applicable to the areas to which the Zamindari Abolition and Land Reforms Act, 1950 applies. For reference only, the provisions of amended paras A-80 and A-81 of the Land Records Manual are being reproduced as under:- “A-80. The Lekhpal while on Partal in the village shall keep with him a book of memorandum of facts of possession in cases of the type mentioned in paras A-72 (ii) and A-72 (iii). The pages in the book shall be machine numbered from 1 to 100. Whenever cases of possession of person over plots in respect of which Columns 4 and 5 are blank or plots over which the name of a 7 person is already recorded in Columns 4 and 5 come to his notice the Lekhpal shall make enquiries regarding the nature of the possession and record the facts in brief in Column 6 of the memorandum in Form PA 24 given below. He shall, at the same time, record in his diary the number of the plots in respect of which entries have been made by him in the memorandum together with the serial number of the entries made therein. Such entry in diary shall not under any circumstances mention any names of person found in possession of the nature of claim or dispute.” “A-81. (i) After completing the Kharif, Rabi or Zaid Partal of a village each page of the memorandum in Form PA-24 shall be signed by the Lekhpal and the total number of entries made in the memorandum will be written in the column meant for the purposes at the top of each page. (ii) The pages of the memorandum relating to the village of which complete Partal has been made shall be dettached from book and delivered personally by the Lekhpal to the Supervisor Kanungo within ten days from the completion of the Partal. The Lekhpal shall obtain in his diary the signatures of the Supervisor Kanungo in acknowledgement of this memorandum. The Supervisor Kanungo shall, while acknowledging receipt of the memorandum, specify the date when he intends to visit the village for checking the Partal of the Lekhpal. The Supervisor Kanungo will take further action on the memorandum in accordance with the procedure given in para 423.” It would not be out of place to mention here that after remand of the case under the order dated 13-4-1982 passed by the Allahabad High Court, the appeal was heard afresh by the appellate court and as per direction given in the writ petition, the provisions of amended paragraph A-80, A-81 and A-82 of the Land Records Manual were considered by the appellate court. It is pertinent to mention here that the Allahabad High Court, while deciding the earlier writ petition was on the 8 controversy whether for making the entry of adverse possession, PA-10 was to be issued or PA-24. The Allahabad High Court in view of Notification dated 3-7-1965 has held that instead of issuing PA-10, the entry was required to be made in PA-24. The legal argument of the learned counsel for the petitioner is that the provisions of Para A-80, A-81 and A-81-A as contained in Chapter A-V of the Land Records Manual are applicable only to those areas, where the provision of U.P.Z.A. and L.R.Act is applicable has to be accepted. It is not disputed that the provisions of U.P. Zamindari Abolition and Land Reforms Act 1950 were made applicable to the village concerned by Notification issued under Section 2(1)(b) of the said Act dated 30-6-1969 w.e.f. 1-7-1969 and para A-80, A-81 and A-81-A as contained in Chapter A-V of the Land Records Manual are applicable to those areas only. Since in the year 1374 Fasli in which the entry of possession of the petitioner was made for the first time in Khasra record, which corresponds to the year1966, ZA&LR Act was not applicable to the village concerned. It was vehemently argued by the learned counsel for the petitioner that the finding of the learned Appellate Court to the effect that there is no mention in the entry of the name of the petitioner in column no. 5 of the khasra for the fasli year 1374 that PA-24 had been issued is erroneous because in the case at hand the provision of para 87 of the Land Records Manual was applicable and, in column no. 6 of khasra, entry of possession of the petitioner has been recorded. Now the controversy to be decided is whether for making entry of adverse possession, which of the provisions of Land Records Manual would apply. Learned counsel appearing for the petitioner has contended that for the first time the ZA&LR Act was made 9 applicable to village Madaiya Bakshi, Tahsil Bazpur by Notification dated 30-6-1969 issued under Section 2(1)(b) of the said Act with effect from 1-7-1969. This fact has not been disputed by the State also. It has also been contended that the procedure for preparation of the map and Khasra in the area the provision of Chapter V of the Land Records Manual was applicable and not the provisions of Chapter A-V which apply to those areas where ZA&LR Act was made applicable. The entry of possession was made in favour of the petitioner society for the first time in 1374 Fasli and admittedly at that time the provisions of ZA&LR act were not applicable. As the first entry of possession in Khasra was to be made in accordance with the provisions contained in Chapter V of the Land Records Manual and not in accordance with the provisions of Chapter A-V. For the purposes of decision of the case at hand, it is necessary to refer to para 87 of the Land Records Manual, which deals with the entries of sub-tenants and others pertaining to column 6 of the Khasra. Relevant extract of para 87 is reproduced as under:- 87. Entries of sub-tenants and others (column 6).- (i) In column 6 of the khasra will be entered the persons of the following description: (a) Tenants under permanent tenure-holders in Agra, class 16 of the khatauni, (b) Tenants of sir, tenants of khudkasht of 1333-34 Fasli admitted in 1333 Fasli or subsequently and tenants of khudkasht of not less than 12 years’ standing in 1309 Fasli and still so recorded in Agra class (17) and in Avadh class (10) of the khatauni. 10 (c) Tenants under rent-free grantees at a favourable rate of rent (in Agra class (18) and in Avadh class (10-A) of the khatauni. (d) Sub-tenants in Agra class (19) and in Avadh class (11) of the khatauni. (e) Occupiers of land without the consent of the person whose name is entered in column 5 of the khasra in Agra class (20) and in Avadh class (12) of the khatauni. (ii) In any case in which a person whose name was recorded in column 6 in the preceeding year is still entitled to have his name recorded in the same column it would be sufficient to record his name, in black ink, with the word “badastur” (as before) appended at the end. (iii) If there was no entry in column 6 of the khasra in the preceding years and in Lekhpal finds at the time of partal some person belonging to one of the classes mentioned in sub-paragraph (i) in cultivatory occupation of the land, he will enter in column 6 in red ink the name parentage and rent, if any, of such person together with his status: Provided that he shall not record any such person as belonging the class (a), (b), (c) or (d) of sub-paragraph (i) unless he is satisfied by an inquiry from the parties concerned that a contractual relation of landholder and tenant exist between them. If he is not so satisfied, he shall record the person as belonging to class (e) pending such inquiry; the Lekhpal shall note the name and parentage of such person in the remarks column of khasra.” From a perusal of the provision of 87 (i), 87(ii) and 87(iii) of the Land Records Manual, it is clear that the name of the occupiers of land without the consent of the person whose name is entered in column 5 of the khasra has to be recorded in column 6 thereof. The petitioner has filed copy of khasra for the years 1374 Fasli to 1384 Fasli as Annexure No. 2 to the writ petition, a perusal of which shows that the name of the petitioner find place in column 11 6 of the khasra, hence there is nothing to dispute that the entries in column 6 of khasra for the year 1374 Fasli have been recorded in the name of the petitioner as provided under para 87 of the Land Records Manual. In this view of the matter, to my mind, it appears that in the Civil Misc. Writ Petition No. 1898 of 1981, correct position had not been brought before the Allahabad High Court that the provisions of Chapter A-V of the Land Records manual were not applicable to the land in question for the simple reason that the provisions of the U.P.Z.A. and L.R. Act were not in force to the village concerned in the year 1374 Fasli, which corresponds to the year 1966, as discussed above. Hence the question of issuance of Form PA-24 does not arise at all in the case at hand. The learned appellate court has clearly fallen in error in applying the provisions of para A-80 and A-81 of the Land Records Manual to the present case. The finding recorded by the learned appellate court to the contrary cannot be sustained in the eye of law. Learned counsel for the petitioner has further argued that the petitioner society was not evicted by the original tenure holder within the stipulated time as provided under Section 180(2) of the Uttar Pradesh Tenancy Act 1939 and by operation of law subsequently, the petitioner had acquired Sirdari rights under Section 131 of the U.P.Z.A. and L.R. Act, which was enforced in the area with effect from 1-7-1969 and later-on by operation of Land Laws Amendment Act, which was made applicable in the year 1977, the petitioner became bhumidhar with transferable rights without paying ten times of the land revenue. Although the limitation for ejectment under the U.P.Tenancy Act had expired prior to the enforcement of U.P.Z.A.and L.R.Act. After enforcement of Z.A. and L.R.Act, the limitation for ejectment was three years, which had also expired on 30-6-1972 prior to coming into force of Land Ceiling Amendment Act, i.e. 8-6-1973. Since the petitioner has become bhumidhar with transferable rights prior to initiation of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960, therefore, the land of the petitioner could 12 not be clubbed along with the holdings of the original tenure holder, late Sri Amar Nath Jaitley and after his death, along with the holdings of his legal representatives. By the Government Notification No. 226/1A-2-1(2)- 69, dated June 30, 1969 the U.P.Zamindari Abolition & Land Reforms Act, 1950 with certain modification and deletion of certain provision has been made applicable to the areas mentioned in the notification. In place of Section 131 of the said Act, the following were substituted:- “131. Every persons belonging to any of the following classes shall be called as Sirdar and shall have all the rights and be subject to all the liabilities conferred or imposed upon Sirdars or under this Act; namely:- (a) Every person who, on the date immediately preceding the appointed day held land as- (i) An occupancy tenant; (ii) A hereditary tenant, Not being a tenant referred to in clause (a) of Section 130. (iii) a grantee at favourable rate or rent. (iv) A lessee holding a lease under the provisions of the Government Grants Act, 1895 and having rights of a hereditary tenant under the terms of the lease, but not possessing the right to transfer the holding by sale, (b) Every person who is admitted as sirdar of vacant land under the provisions of this Act, (c) A tenant in any of the 42 Buxari villages specified in the annexure, appended hereto, who was recorded in Class X(1) in the Khatauni of the previous agricultural year and (d) Every person who in any other manner, acquired the rights of a sirdar under or in accordance with the provisions of this Act.” Now, it has to be seen as to what was the limitation to evict the trespasser in possession before the date of vesting under the Tenancy Act as well as under the U.P.Z.A. and L.R. Act after date of vesting. If no suit was filed against the trespasser in possession before and after the date of vesting by the original 13 tenure holder, what would be the effect of non-filing the suit within the prescribed limitation under these Acts. Under the Z.A. & L.R. Act, limitation for filing the suit under Section 209, U.P.Z.A. & L.R. Rules, Appendix III, Serial No.30, clauses (i) and (iii) provide