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PETITIONER: MUNESHWAR (DEAD BY LRS.

       Vs.

RESPONDENT: RAJA MOHAMMAD KHAN & ORS.

DATE OF JUDGMENT:       20/08/1998

BENCH: M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T D.P. Wadhwa, J.      Appellant is  aggrieved by  judgment dated  December 2, 1980 of  the Allahabd  High Court  rejecting his  objections filed by  him under  Section 9  of the U.P. Consolidation of Holdings Act,  1953 (For short the Consolidation Act’) which objections had  been upheld  by the  authorities under  that Act.      Consolidation proceedings  were taken up in the village of  the   appellant  under   Section  8   and  8-A   of  the Consolidation Act.  Thereafter, notices were issued inviting objections to the records so prepared.  The land in question in the  records was shown in the names of the respondents to which the  appellant filed objections.  Under Section 9-A of the Consolidation  Act the Consolidation Officer by judgment dated July  12, 1972  upheld the objections of the appellant and names  of the  respondents were removed from the records and  name   of  the   appellant  was  entered  as  ’Sirdar’. Respondents  took   up  the  matter  in  appeal  before  the Settlement Officer  (Consolidation), who  dismissed the same by order  dated September  27,  1972.  The  matter  was  yet further taken  in revision  by the  respondents and by order dated April 12, 1973 Deputy Director Consolidation dismissed the revision.   Respondents  thereafter filed  writ petition under Article  226 of the Constitution in the Allahabad High Court which  by impugned  judgment dated  December  2,  1980 quashed the orders of all the three authorities.  The result was that disputed land stood in the names of the respondents in the revenue records under the Consolidation Act.      To understand  the rival  contentions  we  may  briefly refer to the background of the case.      The appellant  claimed that he was the sole heir of his father Baldev, who was having tenancy rights in the land and after the  death  of  his  father  appellant  inherited  the tenancy rights. Appellant said that Shivrati, who claimed to be his  brother, was  not in  fact his brother and that when his father  remarried his  second wife  was already having a son named Shivrati. However, in the revenue record the names of both  the  appellant  and  Shivrati  were  entered  which entries according to the appellant were false and were being

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heirs of  Baldev made by Patwari of the village in collusion with Shivrati.  baldev  died  sometime  in  1945,  appellant claimed he  had been  in exclusive possession of the land as owner irrespective of the entries in the revenue records.      In 1959  Shivrati filed  a  suit  for  partition  under Section 176 of the U.p. Zamindari Abolition and Land Reforms Act, 1950  (for short  ’Zamindari Abolition  Act’). The case set up  by the  appellant that  Shivrati was not his brother was negatived  and on  February 24,  1961 final  decree  was passed for  partition  in  favour  of  Shivrati.  An  appeal against the judgment and decree thus passed was taken by the appellant but  that was dismissed by judgment dated July 17, 1961. The decree for partition became final. It is, however, admitted case  of the  parties that  this decree  was  never executed and that appellant always remained in possession of the land  since the  death of  his father  which, as  stated above, was some time in 1945.      During the pendency of the appeal against the decree of partition, Shivrati,  it would appear deposited ten times of the land  revenue and  on May  1, 1961  obtained  ’Bhumidari sanad’ of  the  land  in  his  name.  Shivrati,  thereafter, executed two  sale deeds dated May 4, 1961 and June 20, 1961 in favour  of the  respondents in respect of the land of his share under the decree.      In 1962  respondents filed a suit against the appellant in the  Court of  Additional Munsif  claiming Rs.  500/-  as damages on  the ground  that Shivrati  had  transferred  the possession of  the land in question to them in 1961 and that the respondents  had sown crop of wheat etc. in the land and that the  appellant unauthorisedly  harvested  the  crop  on March 10,  1962 while the respondents were themselves in the process of  harvesting the  same. Respondents  said that  in that process  they suffered  a loss  of Rs.  800/- but  they limited their  loss to  Rs. 500/-  and filed  the  suit  for recovery of  the same.  Appellant  contested  the  suit.  He denied that  respondents were ever in possession of the land or that  they had  grown any crop there. Various issues were framed in  the suit.  The court  held that  the plea  of the respondents that they were in possession of the land was not true and  that the  possession of  the land was not true and that the  possession of  the land  always remained  with the appellant. As  a  matter  of  fact,  the  court  noted  that respondent No.1 had admitted that possession of the land was never delivered  to Shivrati  or to any of the respondent in consequence of final decree of partition passed in favour of Shivrati. The  court said  it was  hard to believe that when possession had  not been  obtained through  execution of the decree Shivrati  would have  delivered possession of his own share to  the respondents.  As a  matter of  fact the  court remarked that Shivrati appeared to be a tool in the hands of the respondents.  The court  by judgment  dated may 25, 1964 dismissed  the   suit  of   the  respondents   holding  that possession of  the land  always remained  with the appellant and that  it was he who was growing his crop there. For some years the  respondents kept  quiet and then on June 19, 1968 filed suit for possession under Section 209 of the Zamindari Abolition Act.  On October 10, 1969 this suit abated in view of the  provisions of Section 5 of the Consolidation Act. By that date  notification under Section 4 of the Consolidation Act had  been issued  for bringing  the land in the district under consolidation  operations. Clause  (a) of  sub-section (2) of  Section 5  of the  Consolidation Act  provided  that every proceeding for correction of records in every suit and proceeding in  respect of  declaration of rights or interest in any  land lying  in  the  area,  or  for  declaration  or

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adjudication  of   any  other   right  in  regard  to  which proceeding can  or ought  to be taken under the Act, pending before any court or authority, whether of the first instance or of  appeal, reference  or revision,  shall, on  an  order being passed in that behalf by the court or authority before whom such  suit or  proceeding is pending stand abated. Then in pursuance  to Section  9 of  the  Consolidation  Act  the appellant brought  proceedings before  the Consolidation Act the appellant  brought proceedings  before the Consolidation Officer that  disputed land was wrongly entered in the names of the  respondents and  that appellant was in possession of the land  for  the  last  twenty  years.  The  case  of  the appellant was  that he  had acquired  rights in whole of the land as owner and in any case he became entitled to the land falling to  the share  of Shivrati  on the  basis of adverse possession and  he also  took up  the plea that Shivrati was not the  son of  Baldev, his  father. Issues were framed and parties led  evidence.  Consolidation  Officer  by  judgment dated July  12, 1972, held that it was the appellant who was in possession  of the  land and  that the  ownership of  the respondents came  to an  end. he  held  that  the  appellant became ’Sirdar’  on the  basis of the adverse possession and since the  respondents did  not file  any suit  in time  for possession. Zamindari Abolition Act recognizes three classes of  tenure-holders,   namely,  ’bhumidhar’,   ’Sirdar’,  and ’asami’  (Sec.   129).     Accordingly  the   names  of  the respondents were  removed from  the record  and that  of the appellant was  entered as  ’Sirdar’ regarding  the  disputed land under  Section 210  of  the  Zamindari  Abolition  Act. Settlement Officer,  Consolidation in  appeal, filed  by the respondents, also held that it was the appellant (before us) who was  in possession  of the  whole land, which was proved from the  records and  entries. Again, in the revision filed by   the    respondents   before    the   Deputy   Director, Consolidation, same view was taken. The operative portion of the order in revision dated April 12, 1973 reads as under:-           "After    evaluating     above      mentioned facts  and evidence  from      the judgments of the  courts below,      it is  clear from  the  facts,  the      possession  of   land  in   dispute      remained       with       Muneshwar      continuously and  Shivrati and Raja      Mohd. never  had possession. In the      absence of the formal mutation I am      of the opinion that Muneshwar never      lost  his  possession  of  land  in      dispute. Raja  Mohd. etc.  did  not      obtain possession  even  after  the      sale deed  and  so  the  sale  deed      never  got  executed.    hence  the      decision  of  the  lower  court  is      legal  and   hence   the   revision      petition is dismissed."      High Court,  however, in the writ petition filed by the respondents observed  that the  suit by  the respondents  in 1968 was  filed within  limitation and  it abated because of the start  of consolidation operations and that it could not be said  that ’sirdari’  rights accrued  in  favour  of  the appellant. The High Court said that Section 210 specifically provided that  if decree  under Section 209 was not executed within a  particular period ’sirdari’ rights would accrue in favour of the judgment-debtor but there was no corresponding section in the Zamindari Abolition Act to the same effect in the case  of decree  for partition.   High Court, therefore,

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was of  the view  that since  suit under  Section 209 of the Zamindari Abolition  Act was  filed  within  the  period  of limitation the  consolidation authorities committed an error in holding  that ’sirdari’  rights accrued  in favour of the appellant and further that even if the respondents could not get the possession after the final decree, no rights accrued in favour  of the  appellant within  that period and as much High Court  quashed the  order passed  by the  consolidation authorities. View  taken by  the High  Court  is  now  being challenged by the appellant before us.      We may, at this stage, refer to the relevant provisions of law:      U.p. Consolidation of Holdings Act,      1953      "9-A. Disposal of cases relating to      claims to  land  and  partition  of      joint holdings  - (1) The assistant      consolidation Officer shall -      (i)   where  objections in  respect           of claims to land or partition           of joint  holdings are  filed,           after  hearing   the   parties           concerned; and      (ii) where no objections are filed,           making such  enquiry as he may           deem necessary,      settle the  disputes,  correct  the      mistakes and  effect  partition  as      far  as   may  be  by  conciliation      between   the   parties   appearing      before him  and pass  orders on the      basis of conciliation.      (2) .......      (3)  The   Assistant  Consolidation      Officer, while  acting  under  sub-      section (1)  and the  Consolidation      Officer, while  acting  under  Sub-      section (2),  shall be deemed to be      a court  of competent jurisdiction,      anything to  the contrary contained      in any other law for the time being      in force notwithstanding."      U.P. zamindari  Abolition and  Land      Reforms Act. 1950      "176. Holding  of  a  bhumidhar  or      Sirdar divisible. - (1) A bhumidhar      or Sirdar  may sue  for division of      his holding.      (2) To  every such  suit  the  Gaon      Samaj concerned  shall  be  made  a      party."      209. Ejectment of persons occupying      land  without   title.-  A   person      taking or  retaining possession  of      land otherwise  than in  accordance      with the  provisions of the law for      the time being in force, and -      (a)  where the  land forms  part of           the holding  of  a  bhumidhar,           Sirdar of  asami  without  the           consent  of   such  bhumidhar,           Sirdar or asami,      (b)  Where the  land does  not form           part  of   the  holding  of  a           bhumidhar,  Sirdar   or  asami

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         without consent  of  the  Gaon           Samaj.      Shall be   liable  to ejectment  on      the suit,  in cases  referred to in      clause (a) above, of the bhumidhar,      Sirdar or  asami concerned,  and in      cases referred  to  in  clause  (b)      above, of  the Gaon Samaj and shall      also be liable to pay damages."      "210. Failure  to file  suit  under      Section 209  or to  execute  decree      obtained thereunder.-  If a suit is      not brought  under Section 209 or a      decree obtained in any such suit is      not executed  within the  period of      limitation provided  for the filing      of the suit or the execution of the      decree,  the   person   taking   or      retaining possession shall -      (i)  where the  land forms  part of           the holding of a bhumidhar, or           Sirdar,   become    a   Sirdar           thereof and  the rights, title           and interest  of an  asami, if           any, on  such  land  shall  be           extinguished,      (ii) where the  land forms  part of           the holding  of  an  asami  on           behalf  of   the  Gaon  Samaj,           become   an    asami   thereof           holding from year to year,      (iii) in  any  case  to  which  the           provisions of  clause  (b)  of           Section 209  apply,  become  a           Sirdar or  asami holding  from           year to year as if he had been           admitted to  the possession of           the land by the Gaon Samaj."      U.P. Zamindari  Abolition and  Land      Reform Rules, 1952      "338.  The  suit  applications  and      other  proceedings   specified   in      Appendix IIT  shall  be  instituted      within the  time specified  therein      for them, respectively."                    Appendix III Entry 53 ------------------------------------------------------------ Sr. Section Description of suit,    Period     Time  from No. of the  application and other   of         which period     Act     Proceeding              Limita     begins to run                                     tion ------------------------------------------------------------ 21  176    Suits for partition of     None      None            holding of bhumidhar or            Sirdar ------------------------------------------------------------ 30 209    Suit for ejectment of a           person taking or retaining           possession of the land unl-           awfully and for damage :           (i) If the person was in    Three           possession of the land on   years    From the date           the date of vesting and the          of vesting           period of limitation for his           ejectment specified in the U.P.

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         Tenancy Act, 1939, had not           expired.           (ii) In case of occupant re- Three           fered to in Section 144.     years   From the date                                                of declarati-                                                on under Sec-                                                tion 144           (iii) In cases where land    Six           whose possession is taken   Years    From 1st of           or retained unlawfully,              July followi-           forms a part of the holding          ng the date           of a bhumidhar, Sirdar or asami.     of occupation           (iv) In any other case -           (a) Where action under Rule  Twelve               115-C has been started   years   From the date               before the expiry of the         of the order               period of limitation under       under rule               sub-item (b).                    115-E           (b) In other cases.          Twelve                                        years   From the 1st                                                of July foll-                                                owing the                                                date of                                                occupation ----------------------------------------------------------- 53   ....  For the execution of any    One     The date of            decree other than a money   year    final decree            decree                              in the case ----------------------------------------------------------      Limitation Act, 1963      "27.  Extinguishment  of  right  to      property. - At the determination of      the period  hereby limited  to  any      person for  instituting a  suit for      possession  of  any  property,  his      right to  such  property  shall  be      extinguished.      In Din  Dayal &  Anr. vs.  Rajaram [AIR  1970 SC 1019], this Court  was considering  the arguments  of the appellant before it  that in  view of the principle underlying Section 28 of  the Indian  Limitation Act,  1908, which principle is not confined  to suits and applications for which limitation is prescribed  under that Act but is of general application, the plaintiffs’ right to the suit properties must be held to have been  extinguished. In  other words, the contention was that  in   view  of   the  aforementioned   provisions,  the plaintiffs had  not merely  lost  their  right  to  sue  for possession of  the  suit  properties,  their  right  in  the properties itself  had been  extinguished. This  Court  held that it  is  well  settled  that  the  principle  underlying Section 28  of the  Indian Limitation  Act,  1908  (same  as Section 27  of the  Indian Limitation,  1963) is  of general applications for  which a period of limitation is prescribed under the  Limitation Act.  in the present case, however, we are concerned with the consequences which followed when suit under Section  209 of  the Zamindari  Abolition Act  is  not filed against  the person  in possession  of the land within the period prescribed.      From the  record before  us it is not clear if the suit filed by  Shivrati was  merely for  partition or  it was for partition and  possession of  his separate  share. Since the appellant was  claiming exclusive possession of the land, it would appear  to us  that the  suit was  for  partition  and possession. Admittedly  no execution was taken out after the final decree  was passed  on February  24, 1961.  Before the

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time for  execution of  the decree  had elapsed ownership of the land  falling to the share of Shivrati changed hands and he executed  two sale  deeds in  favour of  the respondents. Suit under  Section 209  of the  Zamindari Abolition Act was filed on  June 19, 1968. Authorities under the Consolidation Act as  well as the High Court proceeded on the footing that suit under  Section 209  was maintainable.  Since the  final decree in  partition suit  by Shivrati could not be executed it is  debatable if  recourse could  be had  to Section 209, particularly when  share of  Shivrati had not been separated and possession  always remained  with the appellant. be that as it  may  the  authorities  under  the  Consolidation  Act reached concurrent  finding that  appellant was  in  adverse possession of  the land  and though  the respondents claimed their right  as owners  but since the suit under Section 209 was not  filed within  the period  of limitation  prescribed appellant became  a ’Sirdar’  thereof. Under  Section 209  a suit had to be filed within six years beginning "from 1st of July following  the date of occupation" as provided in Entry 30  of  Appendix  III  to  the  Rules  under  the  Zamindari Abolition Act.  It could  not be  disputed that  the suit in question was  filed more  than six  years from  the date  as provided in  Entry 30  of Appendix  III as aforesaid. Record shows that it was always the appellant who was in possession of the  land from  the date  his father  Baldev died  to the exclusion of any other person.      There is  another feature  of the case which relates to attempts made  by the  respondents to  get possession of the land  from  the  appellant.  First  respondent  had  been  a Patwari. The  other respondents  are his  kinsmen. In March, 1962 appellant  and nine others were prosecuted for offences under Section  147, 148, 323, 324, 395 and 397 IPC. This was on a  complaint made  by the  first respondent that when the respondents went  to the  land for  harvesting the crop they were attacked  by the  appellant  and  his  party.  Sessions Judge, who  tried the  case, found  the case to be false and acquitted all  the accused holding that the respondents were never in  possession  of  the  land  and  that  it  was  the appellant who  had grown  his crops  there and was ploughing the same.   Not  satisfied  first  respondent  instituted  a complaint under  Sections 218/109  IPC against the appellant and Patwari  of that village (who  was holding the office at that the  Patwari made  wrong entries in the revenue records showing possession  of  the  appellant  of  the  land.  This complaint was  also dismissed by the Magistrate holding that it was  the appellant  who was  in possession  of the  land. During the  course of  evidence in  these cases  it came  on record from  the statement  of Shivrati  that  the  land  in question valued  Rs. 7,000/-  but then  he sold the same for Rs. 1200/-  to the  respondents. It  is interesting  to note that in  the suit  filed by  the respondents for recovery of Rs. 500/-  claiming to  be same as loss they had stated that they, in fact, suffered a loss amounting to Rs. 800/-. For a land of  value of Rs. 1200/- the respondents claimed to have suffered loss  of Rs. 800/- only on one crop! All this leads us to  conclude that Shivrati was a tool in the hands of the first respondent  who was earlier Patwari and then the first respondent adopted all sorts of foul means to dispossess the appellant.      We are  of the  considered view  that in  a matter like this High  Court should  not have  interfered  in  the  writ jurisdiction  to   upset  the  concurrent  findings  of  the authorities under  the Consolidation Act holding that it was the appellant who was in possession of the land and the suit under Section  209 of the Zamindari Abolition Act not having

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been filed  within the  period of  limitation appellant  had become ’Sirdar’  thereof in view of Section 210 of that Act. As a  matter of  fact no  decree had been passed as the suit filed under  Section 209  abated. Consequences  as given  in Section 210  follow when there is failure to file suit under Section 209 or to execute decree obtained thereunder. In the present case  the authorities  under the  Consolidation  Act came to the conclusion that suit under Section 209 was filed beyond the period of limitation and conferred sirdari rights on the  appellant. In Hasan Ali and others vs. State of U.P. and other  (AIR  1990  SC  1980),  a  case  also  under  the Zamindari Abolition  Act, in  somewhat similar circumstances this Court  said that  High Court  should not have exercised jurisdiction under  Article 226 of the Constitution. In that case High  Court had held that the view as to the possession taken  by   all  the  three  consolidation  authorities  was manifestly erroneous  inasmuch as  the possession could have been only  permissive and  not adverse. This Court said that High Court  while exercising  jurisdiction under Article 226 of the  Constitution was  not justified  in  arriving  at  a contrary  conclusion  in  face  of  the  clear  evidence  of possession and  entries in the records of right sufficiently discussed by the three consolidation authorities.      Accordingly  we   allow  this  appeal,  set  aside  the impugned judgment  of the High Court and restore that of the consolidation authorities  under the  U.P. Consolidation  of Holdings Act.  The  appellant  will  be  entitled  to  costs throughout.