Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1215 of 2004 Bakhtawar Singh and others. …….Petitioners. Versus Deputy Director of Consolidation and others. …Respondents. Present: Mr. Parikshit Saini, Advocate for the petitioners. Mr. R.C. Arya, Brief Holder for the State/respondent no. 1. Mr. M.S. Tyagi, Advocate for respondent no. 2. Dated: 27.12.2010 Hon’ble Sudhanshu Dhulia, J. 1. Heard learned counsel for the petitioners and learned counsels for the respondents. 2. This writ petition has been filed by the petitioners praying for a writ, order or direction in the nature of certiorari to quash impugned order dated 30.10.1992 passed by the Deputy Director of Consolidation, Muzaffarnagar in Revision Nos. 282 to 288 Smt. Kaso Vs. Bakhtawar and others. By the said impugned order passed under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (from hereinafter referred to as the Act), Deputy Director of Consolidation, Muzaffarnagar in his revisional power has set aside the order of the Settlement Officer Consolidation, Muzaffarnagar dated 29.12.1987 and the order of the Consolidation Officer dated 23.12.1985 and directed that the name of Smt. Kaso (since deceased) be recorded in the revenue record against that of the present petitioners. 3. Brief facts of the case are that the petitioners claim to be “Bhumidhar” of Plot No. 141, which has an area of 5 “Bigha” and 11 “Biswa”. However, the name of 2 respondent no. 2 Smt. Kaso has been recorded in the revenue records in Category 9, which is entry on the basis of “adverse possession”. In other words, respondent Smt. Kaso claims title on the land in dispute on the basis of her adverse possession, as she was recorded as Category-9 i.e. having adverse possession on the land in the revenue records. Now, respondent no. 2 Smt. Kaso claims the benefit of Section 210 of the U.P. Zamindari Abolition and Land Reforms act, 1950 (from hereinafter referred to as the Zamindari Abolition Act). Section 210 of the Zamindari Abolition Act reads as follows: “[210. Consequences of failure to file suit under section 209.—If a suit for eviction from any land under section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall— (a) where the land forms part of the holding of a bhumidhar with transferable rights, become a bhumidhar with transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished; (b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights and the right, title and interest of an asami, if any, in such land shall be extinguished; 3 (c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year.] [Provided that the consequences mentioned in clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.]” 4. In other words, the case of respondent no. 2 Smt. Kaso has been that she is recorded in the revenue records having possession on the disputed land by means of adverse possession and since she had adverse possession on the land in dispute for a particular number of years as provided by the statute, and during this period no suit for ejectment was filed by the petitioners, she (Smt. Kaso) has now become “Sirdar” on the property. She thus filed a suit in the year 1973 being Suit No. 73 of 1973 before the Court of Sub Divisional Officer, Tehsil Sadar, Muzaffarnagar under Section 229B of the Act, seeking declaration to the effect that she was in possession over the said plot and now has acquired “Sirdari” rights under Section 210 of the Zamindari Abolition Act, as such she may be declared as “Sirdar” of the property. This suit was contested by the petitioners on the grounds that respondent no. 2 has nothing to do with the said land and they are actual “Sirdars” of the property. However, the learned Assistant Collector 1st Class, Muzaffarnagar decreed the suit of respondent no. 2 on 7.8.1976. Against the order of the Assistant Collector 1st Class, Muzaffarnagar, the petitioners filed an appeal before the Commissioner, Meerut Division, Meerut, which was allowed on 25.1.1977. Against the said judgment of the Commissioner, Meerut Division, 4 Meerut, a second appeal was filed by respondent no. 2 Smt. Kaso before the Board of Revenue at Allahabad. This appeal was allowed on 15.2.1982 and the order of the Addl. Commissioner was set aside and the matter was remanded to the Additional Commissioner, Meerut Division, Meerut for fresh adjudication. After the remand, the appeal of the petitioners was again allowed on 11.10.1982. Against this order of the Additional Commissioner, Meerut Division, Meerut, Smt. Kaso filed a second appeal before the Board of Revenue. While this second appeal was pending before the Board of Revenue at Allahabad, a notification was issued under Section 4 of the Act and in view of the provisions of the Act, the second appeal filed before the Board of Revenue stood abated on 29.10.1985. Section 4 of the Act reads as follows: “[4. Declaration and notification regarding consolidation.—(1) (a) The State Government may, where it is of opinion that a district or part thereof may be brought under consolidation operations, make a declaration to that effect in the Gazette, whereupon it shall become lawful for any officer or authority who may be empowered in this behalf by the District Deputy Director of Consolidation— (i) to enter upon and survey, in connection with rectangulation or otherwise, and to take levels of any land in such area; (ii) [to fix pillars in connection with rectangulation, and]; (iii) to do all acts necessary to ascertain the suitability of the area for consolidation operations. 5 (b) The District Deputy Director of Consolidation shall cause public notice of the declaration issued under clause (a) to be given at convenient places in the said district or part thereof. (2) (a) When the State Government decides to start consolidation operations, either in an area covered by a declaration issued under sub-section (1) or in any other area, it may issue a notification to this effect. [(b) Every such notification shall be published in the Gazette and in a daily newspaper having circulation in the said area and shall also be published in each unit in the said area in such manner as may be considered appropriate.] 5. Therefore, in view of the above provision, the matter was now to be decided in the consolidation proceedings. The matter, therefore, proceeded before the Consolidation Authorities. Notices were sent to the relevant parties. From the records, it is clear that Smt. Kaso did not appear before the Consolidation Officer and in her place, her husband appeared before the Consolidation Officer. It was stated that Smt. Kaso is actually a Pardanasheen lady and it is her husband, who is in actual possession and doing agriculture on the said land on her behalf. Since he is doing agriculture on the said land on behalf of Smt. Kaso, and therefore in law, the actual adverse possession on the property will be deemed to be that of Smt. Kaso, she being a Pardanasheen lady. The Consolidation Officer, however, held that the petitioners are actual “bhumidhar” of land in question and the name of Smt. Kaso was wrongly recorded under Category-9 on 6 the basis of adverse possession, and she failed to prove her continuous possession for 12 years for acquiring rights under Section 210 of the Zamindari Abolition Act. It was held that she was, in any case, was not in cultivatory possession over the land in dispute, as the statement has come on behalf of her husband Raj Singh, who admitted that he is in possession over the land and his wife Smt. Kaso is actually a Pardanasheen lady. The Consolidation Officer, therefore, rejected the claim of possession of Smt. Kaso on the disputed property and directed the entry of Smt. Kaso to be expunged and the name of the petitioners to be recorded as “Bhumidhar” of Plot No. 141, which is having an area of 5 “Bigha” and 11 “Biswa”. Against the judgment of the Consolidation Officer, Smt. Kaso filed seven appeals before the Settlement Officer. The appeals of Smt. Kaso were also dismissed on the ground that she has failed to prove her actual cultivatory possession on the property in question, and the entries made in Category-9 in her favour have not been rightly made by the concerned revenue authorities. Against the judgment of the Settlement Officer, Smt. Kaso filed seven revisions. These revisions have been allowed by the Deputy Director of Consolidation on the ground that respondent no. 2 Smt. Kaso has actually proved that she was in actual cultivatory possession on the property in dispute, though she is a pardanasheen lady, and relying upon the judgment passed in Smt. Bitiya Bano Vs. Dy. Director of Consolidation and others, R.D. 1980 Page 190, the Deputy Director of Consolidation has held that even though the actual cultivatory possession may be of her husband, it will be deemed to be of pardanasheen lady. Order which is under challenge is that of Deputy Director 7 of Consolidation, which does not seem to have met the legal issues raised in the revisions before him and has dealt with the issue in a rather slipshod manner. 6. Respondent no.2 Smt. Kaso claims possession on the land on basis of adverse possession. Undoubtedly, there is an entry in revenue record, which shows that respondent no. 2 is an unauthorized occupant on the said property. In other words, she has shown her name as Category-9. A person, which claims a right on a property on the basis of adverse possession has to prove that he / she is in adverse possession of the property against the wishes of the actual owner as well as against the law. In other words, a great burden is cast under law for a party, who claims rights on a property on the basis of adverse possession. Therefore, this Court has to examine that under what circumstances, the name of respondent no.2 Smt. Kaso was shown in the revenue record as Category-9 i.e. for adverse possession. 7. Learned counsel for the petitioners has stated that as per para A-80 of U.P. Land Records Manual, before recording name of any person as Category-9 i.e. adverse possession on the land, certain procedure has to be followed and notices have to be issued to the parties. Paras A-80 and A-81 read as follows:- “A-80. The Lekhpal while on partal in village shall keep with him a book of memorandum of facts of possession in cases of he 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 8 which the name of a 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. Village…………………Pargana………………Tahsi l………………………..Session any year…….Total No. of entries in …………..Date of commencement……………..of partal ………………the memorandum…………..of partal. Date of conclusion of partal…………..Date on which this form…………………is handed over to [Sahayak Bhulekh Adhikari]. Serial No. Serial No. of diary with date Khasra Plot No. of area Entry in column 4 of the Khasra Entry in column 5 of the Khasra List of report Remarks 1 2 3 4 5 6 7 Signarure of Lekhpal with date…………….. Note.- The list shall be maintained village wise and entries relating to more than one village will not be one page. 9 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 purpose 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 detached from book and delivered personally by the Lekhpal to the [Bhulekh Nirikshak] within ten days from the completion of the partal. The Lekhpal shall obtain in his diary the signatures of the Supervisor Kanungo in acknowledgment or this memorandum. The [Bhulekh Nirikshak] 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 [Bhulekh Nirikshak] will take further action on the memorandum in accordance with the procedure given in para 423].” 8. The above procedure in law has been established in order to meet the principles of natural justice and fair play and to check and curb arbitrariness, nepotism and corruption. There is nothing on record to show that before recording the name of respondent no.2 Smt. Kaso as Category-9, the procedure as given in the law in Paragraphs A80 and A81 was adopted. Moreover, in order to prove the adverse cultivatory possession, a person who claims adverse cultivatory possession must actually be 10 physically cultivating the property. Respondent no. 2 Smt. Kaso has been shown to be a pardanasheen lady and actual possession is being done on her behalf by her husband Raj Singh. Therefore, this Court fails to understand as to under what circumstances Smt. Kaso was shown to be in actual cultivatory possession of the property. 9. Learned counsel for the petitioners has cited following case laws: 1. Smt. Bitiya Bano Vs. Dy. Director of Consolidation and others R.D. 1980 Page 190 (H.C.) 2. Jag Prasad Pandey Vs. D.D.C. Basti and others R.D. 1984 Page 474 (H.C.) 3. Bhola Nath Upadhyaya Vs. Dy. Director of Consolidation, Deoria and another R.D. 1985 Page 325 (H.C.) 4. Ram Dular Vs. Dy. Director of Consolidation, Jaunpur and others R.D. 1994 Page 290 (S.C.) 5. Gaya Din (D) through LRs and others Vs. Hanuman Prasad (D) through LRs and others (2001) 1 SCC 501. 10. The above case laws cited by he counsel for the petitioners are on the issue that in order to establish adverse possession, a person must show his own actual cultivatory possession, and not of some other person. Secondly, before making an entry under Category-9, the procedure as laid down in paragraph A-80 of Land Records Manual must be followed. This position of law has been discussed above. 11 11. Learned counsel for the respondents on the other hand cited following case law to support his case:- 1. Asha Ram Vs. Dy. Director of Consolidation, Banda and others R.D. 1997 (88) Page 316 (H.C.). 2. Babu Vs. District Dy. Director Consolidatoin and others R.D. 1996 Page 90 (L.B.,H.C.)” 12. In the above case laws cited by the respondent are only on the revisional power of the Deputy Director of Consolidation under Section 48 of the Act. There is no dispute regarding the powers of the Deputy Director of Consolidation. The case is being decided on its merit, irrespective of the powers of the Deputy Director of Consolidation. 13. This Court is of the view that the name of Smt. Kaso shown as Category –9 was done without adopting the due process established by law. Moreover, in any case, an adverse possession cannot be shown of respondent no. 2 Smt. Kaso as she was not admittedly on actual cultivatory possession on the property in dispute. As such, the order of the Deputy Director of Consolidation has not discussed these vital issues, and the order dated 30.10.1992 is in violation of law. Order dated 30.10.1992 passed by the Deputy Director of Consolidation is therefore set aside. The writ petition stands allowed. 14. No order as to costs. (Sudhanshu Dhulia, J.) 27.12.2010 Rathour