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CASE NO.: Appeal (civil)  186 of 2008

PETITIONER: Mazhar Hassan

RESPONDENT: Gangu Singh & Ors.

DATE OF JUDGMENT: 09/01/2008

BENCH: Arijit Pasayat & Aftab Alam

JUDGMENT: J U D G M E N T [Arising out of SLP) No.25863/2005]

AFTAB ALAM,J.

       Leave granted.

       This appeal is directed against the judgment and order  dated July 20, 2005 passed by the Allahabad High Court in  Civil Misc.Writ Petition No.3620 of 1979 (connected with Writ  Petition No.4216 of 1979).  By the impugned order the High  Court set aside the orders passed by the Deputy Director of  Consolidation and the Consolidation Officer and restored the  order of the Settlement Officer, Consolidation.  The order of the  Settlement Officer, Consolidation, dated September 12, 1978,  had, in turn, set aside the order of the Consolidation Officer and  had directed for entering the names of the respondents in the  revenue records in respect of the disputed pieces of land.  The  dispute relates to plot Nos.960/1, 971/1, 973/1, 982/2, 988/1,  989, 1008/2, 1010/1, 1010/2, 1011 and 1013 situate in village  Dhampur District Bijnor in the State of Uttar Pradesh.        The material facts read and may be stated thus.  One  Hetram was the original tenure holder of the disputed plots.   His heirs Smt.Ram Murti Devi and her four sisters were able to  obtain a decree of eviction against the respondents in a suit  (being Suit No.161) filed by them under Section 209 of the  U.P.Z.A. & L.R.Act.  The decree insofar as the disputed plots  are concerned, was affirmed up to the High Court in Second  Appeal and a cross appeal filed by the parties.  The decree  holders filed an execution application on May 21, 1965, which  was registered as execution case No.21/69.  The application  was, however, dismissed by order, dated July 26, 1969 because  the decree was put to execution beyond the period of limitation.   After the rejection of their execution application, Smt.Ram  Murti Devi and others executed a sale deed, dated April 13,  1970 of a number of plots including the disputed plots in favour  of one Ali Hasan (the deceased father of the present appellant).   On the basis of the sale deed, Ali Hasan was able to get his  name mutated in the revenue records by an order passed ex- parte.  Later on, there were disputes between Ali Hasan and the  respondents in regard to possession over the disputed plots and  the dispute gave rise to proceedings under Sections 145 and  146, Cr.P.C.  Those proceedings were concluded by order,  dated September 11, 1972 by which the disputed plots were  released in favour of the respondents.         In the meantime, consolidation operations commenced in  the village and the respondents made an objection under  Section 9-A(2) of the U.P.Consolidation of Holdings Act to  expunge the name of Ali Hasan and to enter their names in his

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place, claiming ownership of the disputed land by virtue of  adverse possession.  The Consolidation Officer dismissed the  objection filed by the petitioner by order dated July 5, 1978  holding that they had not acquired Sirdari rights over the  disputed plots by adverse possession.  Against the order of the  Consolidation Officer, the respondents filed an appeal which  was allowed by the Settlement Officer Consolidation by order,  dated July 12, 1978.   The Settlement Officer held and found  that the petitioners had perfected Sirdari rights over the land in  dispute by adverse possession as the execution case filed by  Smt.Ram Murti Devi and the other decree holders was  dismissed as being barred by limitation.  Aggrieved by the  order of the Settlement Officer, both Smt.Ram Murti Devi and  her sisters and Ali Hasan filed separate revisions before the  Deputy Director of Consolidation who by a common order,  dated January 18, 1979, allowed the revisions and set aside the  order of the Settlement Officer.  The respondents then moved  the High Court in two writ petitions arising from the two  revisions.  The writ petitions, as noted above, were allowed by  a learned Single Judge; the orders passed by the Deputy  Director of Consolidation and the Consolidation Officer were  set aside and the order of the Settlement Officer was restored.         We have heard counsel for the parties and perused the  materials on record, including the High Court order coming  under appeal and the three orders passed by the consolidation  authorities besides the earlier orders passed in the suit under  Section 209 of the U.P.Z.A. & L.R. Act and the execution  proceeding arising from it.  We find that the High Court noticed  the provision of Section 210 of the U.P.Z.A. & L.R. Act that  reads as follows : \023Consequences of failure to file suit under Section  209.  If a suit for eviction from any land under  Section 209 is not instituted by a bhumidar 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 \026

(a)      where the land forms part of the holding  of a bhumidar with transferable right,  become a bhumidar with transferable  rights of such land and the right title and  interest of an asami, if any, in such land  shall be extinguished.\024                 

The High Court correctly noticed that two conditions are  required to be fulfilled if the decree holder of a decree obtained  in a suit under Section 209 of the U.P.Z.A. & L.R. Act has to  loose his rights; first, he should fail to execute the decree within  the prescribed period of limitation and secondly, the person  (claiming adverse rights) should take or retain possession of the  disputed land.  Having thus noticed the requirement of law, the  High Court framed the following question that arose for its  consideration : \023Short question which arises for adjudication in  the two writ petition is whether the petitioners  perfected rights by adverse possession and have  become sirdar by virtue of Section 210 of U.P.Z.A.  & L.R.Act on the ground that decree for eviction  passed in earlier suit was not executed and was  dismissed as barred by limitation.  Section 210 of  the U.P.Z.A. & L.R.Act reads as under.\024

It then went on to answer the question in favour of the

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respondents (petitioners before the High Court) primarily  relying upon the fact that the execution application filed by the  decree holders (Smt.Ram Murti Devi and her sisters) was  dismissed as being barred by limitation.             Though, it was contended before the High Court that  after the decree was affirmed by the High Court the judgment- debtors (the present respondents) had voluntarily handed over   possession of the disputed plots to the decree holders and the  object of execution stood fulfilled and it was for that reason that  the decree was not put in execution in time and was allowed to  become time barred, the High Court brushed aside the  contention without any proper consideration.  In this regard, the  High Court observed as follows : \023Even this fact is not there in the pleadings of the  parties before the Consolidation Authorities.  It  appears that this plea has been raised for the first  time in the writ petition and there is no material on  record to substantiate the same.  In absence of any  material to show that such a plea was ever raised  before the courts below, the respondent cannot be  permitted to raise a new plea, touching factual  aspect of the matter, for the first time in the writ  petition.\024

It further observed as under :

\023In the absence of any material to establish that  Smt.Ram Murti Devi and others who are the  vendor of Ali Hasan came into the possession over  the plots in dispute after the decree of eviction.   Provision of Section 210 of U.P.Z.A. & L.R. Act  are applicable with full force as the decree of  eviction could not be executed and was dismissed  as time barred.  Thus the right of Smt.Ram Murti  Devi and others in the plot in dispute stood  extinguished.  Once they were left with no right in  the plots in dispute, no right would accrue in  favour of Ali Hasan on the strength of any sale  deed executed by them.  On the contrary the  petitioners perfected their rights in accordance  with Section 210 of the U.P.Z.A. & L.R.Act.\024

        We are afraid the High Court was in serious error in making the  above quoted observations and not giving a proper  consideration to the plea raised by the appellant.   We find that  the order of the Consolidation Officer is totally based on the  issue of possession of the disputed plots by the contending  parties.  The issue was not only raised before the consolidation  authorities but it formed the core of the dispute.  Both sides  produced documentary evidences in respect of their claim of  possession over the disputed plots and the Consolidation  Officer, on a careful examination of the materials produced  before him, came to find and hold that the respondents were  unable to prove their continuous possession over the disputed  land for 12 years and on the contrary it was the appellant who  was in possession of the disputed plots.  The relevant extract  from the order of the Consolidation Officer is as follows : \023From the side of plaintiff, land revenue receipt  has been filed, which is neither goes to prove the  plaintiff as sirdars nor bhumidar.  Against this,  from the side of defendant, copy of extract of we  years KHASRA from: 1368F to 1380F, khasra  extract of 1378F, 1380F, 1370F, 1371F, 1372F,  1373F, 1374F, 1375F, 1376F, 1377F have been

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filed, which goes to show that the continuous 12  years, possession of plaintiff, Gangoo Singh &  others over the disputed land is not proved.  To the  contrary defendants are recorded bhumidar or the  disputed plots of Khata no.9, name of defendant  Ali Hasan has been recorded on the basis of sale  deed dated 13.4.70 executed by defendants Ram  Moorti & others against which, there is no  evidence of plaintiff Gangoo Singh and others,  which could confer bhumidar right over the  disputed land in favour of Gangoo Singh and  others.  In support of his case, Gangoo Singh has  recorded his own statement but no other  independent witness was produced to prove their  possession.  Hence in this way the plaintiff has  been fully failed to prove their 12 years continued  unauthorized possession.  Therefore, plaintiff has  not been able to prove as bhumidars of the  disputed land.  The defendant Ram Moorti and  others have been proved as bhumidars of the  disputed Khata No.65 and the defendant Ali Hasan  as bhumidars of the disputed Khata No.9 issue nos.  1 & 2 are decided accordingly.\024  

The finding of possession recorded by the Consolidation  Officer was conclusive to the dispute and the High Court was in  error in overlooking this finding and holding that the  respondents would be deemed to be in possession simply  because the execution application filed by Smt.Ram Murti Devi  and other decree holders was rejected as being time barred.             In light of the discussions made above, we find that the  order of the High Court is quite unsustainable. We accordingly  set aside the order of the High Court and restore the orders  passed by the Deputy Director of Consolidation and  Consolidation Officer.  The appeal is allowed but with no order  as to costs.