http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: BACHAN & ANOTHER

       Vs.

RESPONDENT: KANKAR & OTHERS

DATE OF JUDGMENT26/07/1972

BENCH: RAY, A.N. BENCH: RAY, A.N. BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 2157            1973 SCR  (1) 727  1972 SCC  (2) 555  CITATOR INFO :  E          1989 SC2296  (5)

ACT: U.P.  Land Revenue Act 1901-S. 28 and 33-U.P.  Land  Reforms Manual-Chapter-  A (v)-If a fictitious entry in  the  Khasra can  be real entry if the Patwari enters it in discharge  of his public duties.

HEADNOTE: The  appellant’s father claimed to be a sub-tenant  of  Math Sri   Chand.   Respondents  on  the  other   hand,   claimed possession  of the plots and also claimed  Adhivasi  Sardari rights  on  the  basis of being  occupants.   In  1953,  the appellants’ father filed a suit against the respondents  and the  Sarbara  kar of the Math, and a decree  was  passed  in favour of the appellants’ father.  The decree was upheld  on appeal.   The respondents filed a Second appeal in the  High Court.   The  second  appeal was stayed  because  of  conso- lidation proceedings. The  respondents  were  recorded, under S.  8  of  the  U.P. Consolidation of Holdings Act, as Sirdars in respect of  the said plots by expunging the name of the appellants’  father. The  appellants, thereafter, filed an objection under S.  12 of  the Act, but the objection was dismissed by  the  Conso- lidation Officer.  The appellants filed an appeal, which was also dismissed by the Settlement Officer. The appellants’ revision petition was, however, remanded  to the Consolidation Officer for further enquiry by the  Deputy Director  ’of  Consolidation.  Before the remand  order  was passed by the Deputy Director, the statement of the proposal had been published under S. 20(1) of the Consolidation  Act, 1953.  The appellants did not file objection under S.  20(2) of  the  Act.  Eventually, the allotment of  the  plots  was confirmed  in favour of the respondents and  possession  was delivered  to  them.   New  revenue  records  were   finally prepared and published.  In 1963, the Consolidation  Officer dismissed  the objection of the appellants.  The  appellants filed  an appeal under S. 12 of the Act (U.P.  Consolidation of  Holdings Act).  The appeal was allowed.  The  Settlement Officer  directed  that  the names  of  the  respondents  be expunged and that the names of the appellants be entered  on record  The respondents filed a revision  application  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

was dismissed by the Deputy Director of Consolidation on the ground  that the entry in favour of the respondents’  father was fictitious. In the circumstances, the respondents filed a writ  petition in the High Court.  The respondents asked for setting  aside the  order of the Deputy Director of Consolidation and  that of  the  Settlement  Officer passed in  1963.   The  learned single  Judge quashed the orders.  The order was  maintained by  the Bench Decision of that High Court.  The  High  Court held that though the entry in. favour of the respondents was motivated by hostility or ill-will, again-St the  appellant, it was made by the Patwari in discharging his duties and  so the entry could not be fictitious.  The learned single Judge as well as the Division Bench held that the respondents were entitled  to Adhivasi rights merely on account of  the,entry and  it was wholly irrelevant whether the entry was  correct or not.  Allowing the appeal,. HELD  : (1) A fictitious entry is one which is not  genuine. It  is  an unreal entry Sonavati & Ors., v. Sriram  &  Anr., [1968] 1 S.C.R. 617, re- 728 ferred to. [731E] Under S. 20 of the U.P. Jamindari Abolition and Land Reforms Act 1956, a Khasra (field book) has to be prepared under  S. 28 and 33 of the U.P. Land Revenue Act, 1901.  The U.P. Land Reforms  Manual in Chapter A(v) in paragraphs A-55  to  A-67 lays down the manner in which the Khasra showing  possession has  to  be prepared by the Patwari in the  areas  to  which Jamindari  Abolition  and  Land Reforms  Act  1950  applies. There  are detailed instructions about the manner  in  which the  inquiry should be carried out about  actual  possession and  change  in possession and corrections in  the  map  and field  book and the form in which Khasra is to be  prepared. The  form  of Khasra is given in paragraph A-80.   The  form shows  that the Lekh Pal has to prepare a consolidated  list of entries after proper investigation.  Again, paragraphs A- 70 to A-73 of the U.P. Land Records Manual show how  entries have to be made in Khataunis every year, showing the  nature of  tenure  of each holder.  The Khatauni is meant to  be  a record of tenure holders.  The manner of changes to be  made there is I-aid down in paragraphs A-82 to A-83.  Entries are to be checked.  Extract has to be sent to the Chairman, Land Management Committee, as contemplated in paragraph A-82. Khasra  is  a field book provided for by S. 28 of  the  Land Revenue Act.  Khatauni is an annual register prepared  under S.  32  of the Land Revenue Act, 1901.  The entry  under  S. 20(b)  (i) of the U.P. Zamindari Abolition and Land  Revenue Act, in order to enable the person to obtain Adhivasi Rights must be an entry under the provisions of law. This Court has held that entries which are not genuine could not  confer  Adivasi rights.  It is obvious  that  an  entry which  is incorrectly introduced into the  records,  becomes utterly  useless without any lawful basis.  In  the  present case,  the  entry was introduced by the Patwari  by  dubious methods.  Such entry is mendacious As a result, the order of the High Court must be set aside. [732F-733D] Ramdas  and  Another v. Deputy  Director  of  Consolidation, Ballia and Ors., A.I.R. 1971 S.C. 673, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1167  of 1967. Appeal by special leave from the judgment- and decree  dated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

July 13, 1965 of the Allahabad High Court in Special  Appeal No. 314 of 1965. M.   V. Goswami, for the appellant. A.   P.  Singh Chauhan, D. P. S. Chauhan and V. C.  Prashar, for the respondents. The Judgment of the Court was delivered by Ray,  J.  This  is  an appeal by  special,  leave  from  the judgment dated 13 July, 1965 of the High Court of  Allahabad dismissing Special Appeal No. 314 of 1965. The respondents in the present appeal confined their  relief in  the  High  Court to plots No. 573 and  1039  of  village Hathawra, Pargana and Tehsil Saidpur, District Ghazipur. 729 The facts in the present appeal are these.  The  respondents made  an application under Article 226 of  the  Constitution for   quashing   the  order  of  the  Deputy   Director   of Consolidation   dated  7  September,  1963  dismissing   the revision  petition of the respondents against the  order  of the  Settlement Officer (Consolidation), Ghazipur  dated  22 June, 1963 ordering the entry of the names of the appellants in respect of the plots in dispute in the present appeal. The  circumstances under which the names of  the  appellants were entered and the; names of the respondent were  expunged by the appropriate authorities are as follows. Litigation concerning the plots in dispute had gone on.  Ram Dhari, father of the appellants claimed to be sub-tenants of Math   Sri  Chand  in  respect  of  the  said  plots.    The respondents  on  the other hand claimed  possession  of  the plots and also claimed adhivasi sirdari rights on the  basis of  being occupants.  Mansa Ram Sarbarakar of the Math  made an  application under section 145 of the Criminal  Procedure Code against the respondents.  The respondents brought civil suit  in  the year 1953 against Math Sri Chand  and  claimed tenancy  rights by adverse possession.  The parties  entered into a compromise of the suit.  The respondents as a  result of  the compromise were held to be sirdars of the  plots  in dispute.  The proceedings under section 145 of the  Criminal Procedure Code also ended in favour of the respondents. Ram  Dhari  and  his sons the present  appellants  were  not parties  either to the suit filed by the respondents or  the proceedings under section 145 of the Criminal Procedure Code brought  by Mansa Ram against the respondents.   Ram  Dhari, father  of  the  appellants filed a suit in  the  year  1953 against the respondents and Mansa Ram.  On 21 December  1955 there  was a decree in favour of Ram Dhari.  The decree  was upheld on appeal on 21 July, 1958.  The respondents filed  a second  appeal  in the High Court.  The  second  appeal  was stayed because of consolidation proceedings. The  respondents were recorded under section 8 of  the  U.P. Consolidation  of Holdings Act as sirdars in respect of  the said plots by expunging the name of Ram Dhari, father of the appellants.   The  appellants  mother  thereafter  made,  an application  against the said order passed by the  Assistant Consolidation  Officer  under  section 8 of  the  Act.   The Assistant Consolidation Officer ordered that the order might be  re-agitated  subsequently under section 12 of  the  Act. The  appellants filed an objection under section 12  of  the Act.  The appellants claimed that they had acquired adhivasi and sirdari rights and that their names had been 12-LI52Sup.CI/73 730 recorded.  The objection was dismissed on 8 May, 1960 by the Consolidation  Officer.   The  appellants  filed  an  appeal against  the  judgment dated 8 May, 1960.   The  appeal  was dismissed  by  the Settlement Officer (Consolidation)  on  4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

July, 1960. The  appellants thereafter filed a revision petition  before the Deputy Director of Consolidation.  He remanded the  same to  the Consolidation Officer for further  enquiry.   Before the  remand  order  was passed by the  Deputy  Director  the statement  of the proposal had been published under  section 20(1)  of the Consolidation Act, 1953.  The  appellants  did not  file  objections  under  section  20(2)  of  the   Act. Eventually,  the  allotment of the plots  was  confirmed  in favour of the respondents.  Possession was delivered to  the respondents  on  29 March, 1961.  New revenue  records  were finally  prepared and published.  On 20 February,  1963  the Consolidation Officer, Ghazipur dismissed the objections  of the  appellants.   The  appellants  filed  an  appeal  under section  12 of the U.P. Consolidation of Holdings Act.   The appeal was allowed on 22 June, 1963.  The Settlement Officer accepted  the  appeal  and  allowed  the  objection  of  the appellants and directed that the names of the respondents be expunged and that the names of the appellants be entered  on records.  The respondents filed a revision application under section 48 of the Consolidation of Holdings Act, 1953.   The Deputy  Director  of Consolidation  dismissed  the  revision application on 7 September, 1963. The respondents thereafter filed a writ petition in the High Court.  The respondents, asked for quashing the order of the Deputy Director of Consolidation dated 7 September, 1963 and of  the  Settlement Officer (Consolidation) dated  22  June, 1963. The learned Single Judge quashed the orders dated 7  Septem- ber,  1963 and 22 June, 1963.  The order was  maintained  by the Bench decision of that High Court. The  respondents contentions in the High Court  were  these. The  name  of  Deep Chand, father  of  the  respondents  was recorded  as  Kabiz (meaning thereby in possession)  in  the remarks  column  of the khasra and khatauni of  1356  Fasli. The  respondents  therefore claimed that Deep Chand  was  an adhivasi  under  section  20(b) (i) of  the  U.P.  Zamindari Abolition  and  Land Reforms Act.  The  respondents  further contended  that  they became sirdars in the  year  1954  and therefore  their claims were rightly recorded as sirdars  in the revenue records. The  appellants  contentions in the High Court  were  these. Ram  Dhari, father of the appellants and other villagers  in the  year  1947 made complaints against the Patwari  of  the village.  The Sub Divisional Officer on 22 May, 1947 made an order punishing 731 the  Patwari.  The Settlement Officer in  the  consolidation proceedings rightly allowed the objection of the  appellants and  directed that the names of the respondents be  expunged and  that the names of the appellants be entered on  record. The Deputy Director of Consolidation in the order dismissing the respondents revision application treated the finding  of the  Settlement  Officer against the village  Patwari  as  a finding  that the entry in favour of Deep Chand,  father  of the respondents was fictitious. The  High Court held that though the entry in favour of  the respondents  was motivated by hostility or ill-will  against the appellants it was made by the Patwari in discharging his duties.  The High Court then said that though it might  have been an incorrect entry and the incorrectness was on account of hostility of the Patwari against Ram Dhari, father of the appellants,  yet,  the  entry  could  not  be  said.  to  be fictitious  or  forged or fabricated.  The High  Court  held that  the  entry  in favour of Deep  Chand,  father  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

respondents  under  section 20(b)(i) of the  U.P.  Zamindari Abolition  and Land Reforms Act was not a fictitious  entry. The learned Single Judge as well as the Division Bench  held that the respondents were entitled to adhivasi rights merely on account of the entry and it was wholly irrelevant whether the entry was correct or not. The High Court fell into the error of treating the entry  as irreproachable.   A  fictitious entry is one  which  is  not genuine.  It is an unreal entry. This Court in Sonawati & Ors. v. Sri Ram & Anr. (1)said that section 20 of the U.P. Zamindari Abolition and Land  Reforms Act  1951 conferred certain rights upon persons whose  names were   recorded  in  the  revenue  records  in  respect   of agricultural  land.  In Sonawati’s case(1) this Court  found that  there was strong evidence which was relied on  by  the revenue Court that the name of Pritam Singh  predecessor-in- interest  of the appellants was surreptitiously  entered  in the Khasra.  The first Appellate Court there did not at  all consider   that  evidence.   The  surreptitious   entry   in Sonawati’s case(1) was held by this Court to disentitle  the appellants  to  any adhivasi right under section 20  of  the U.P. Zamindari Abolition and Land Reforms Act. This  Court recently in Ram Das and Anr. v. Deputy  Director of  Consolidation,  Ballia  and Ors. (2  )  dealt  with  the contention  of  the  appellants on the  one  hand  who  were recorded  as Sir Khudkasht holders of the plots  in  dispute and the contention of the respondents on the other who  were entered as sub-tenants in respect of those plots in the year 1356  Fasli.   Suits  were filed between  the  parties,.   A compromise  was entered into in the suits.  It was  admitted by (1) [1968] 1 S. C. R. 17 (2) AIR 1971 S. 673 732 the respondents that the appellants were Bhoomidars and that the respondents had not interest.  The further admission  in the compromise was that the entry in the revenue records  in favour  of the respondents was fictitious.  The  respondents subsequently  applied  for  setting  aside  the   compromise decrees   on  the  ground  that  they  had   been   obtained fraudulently.    During   the   pendency   of   the    suits consolidation  proceedings under the U.P.  Consolidation  of Holdings Act, 1953 commenced.  The Consolidation Authorities held  that  the suits were not maintainable because  on  the date  on  which  the suits were filed  the  respondents  had become sirdars.  The appellants filed a writ petition  under Article  226  challenging  the order  of  the  Consolidation Authorities.   The High Court held in that case  relying  on the  earlier decisions of that Court that even if the  entry was   fictitious  the  respondents  who  were  recorded   as occupants  would, under section 20(b) of the U.P.  Zamindari Abolition and Land Reforms Act, 1951 become adhivasi of  the disputed  land.  This Court relying on the earlier  decision in  Sonawati’s  case  (supra)  held  that  when  there,  was evidence  to show that the entry was fictitious  the  person whose name was so entered on the record on the material date could not claim the right of an adhivasi. The rulings of this Court establish that the decision of the learned  Single Judge as well as that of the Division  Bench of the Allahabad High Court is erroneous.  Section 20 of the U.P.  Zamindari Abolition and Land Reforms Act, 1950  speaks of  a person recorded as occupant to become adhivasi of  the land  and  to be entitled to take or  retain  possession  as mentioned  in  the section . One of  the  principal  matters mentioned in the section is that the khasra or khatauni  ’of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

1356 Fasli is to be prepared under sections 28 and 33 of the U.P.  Land Revenue Act, 1901.  The U.P. Land Records  Manual in  Chapter  A-V in paragraphs A-55 to A-67  lays  down  the manner  in  which  the  khasra or  the  field  book  showing possession is to be prepared by the Patwari in the areas  to which  Zamindari  Abolition  and  Land  Reforms  Act,   1950 applies.   There are detailed instructions about the  manner in  which  the enquiry should be carried  out  about  actual possession, and change in possession and corrections in  the map  and field book, and the form in which the khasra is  to be prepared.  The form of khasra is given in paragraph A-80. The   form  shows  that  the  Lekhipal  has  to  prepare   a consolidated  list  of  entries  after  partial  or   proper investigation.   Again, paragraphs A-70 to A-73 of the  U.P. Land  Records  Manual show how entires have to  be  made  in khataunis  every year showing the nature of tenure  of  each holder.   The  khatauni is meant to be a  record  of  tenure holders.   The  manner of changes to be made there  is  laid down in paragraphs A-82 to A-83.  Entries are to be checked. Extract 733 has to be sent to the Chairman, Land Management Committee as contemplated  in  paragraph  A-82(iii).   In  this   context section 20 (2) (i) of the U.P. Zamindari Abolition and  Land Reforms, Act which speaks of the record "as occupant" in the khasra  or  khatauni of 1356 Fasli refers to the  khasra  or khatauni being prepared in accordance with the provisions of the  Land  Revenue  Act, 1901.  Khasra  is  the  field  book provided  for  by  section  28 of  ’the  Land  Revenue  Act. Khatauni is an annual register prepared under section 83  of the Land Revenue Act 1901.  It has to be emphasised that the entry  under  section  20  (b) (i)  of  the  U.P.  Zamindari Abolition  and Land Reforms Act, 1950 in order to  enable  a person to obtain adhivasi rights must be an entry under  the provisions of law. This Court has held that entries which are not genuine can.- lot  confer  adhivasi rights.  The High Court  wrongly  held that though the entry was incorrect it could not be said  to be  fictitious.   It is too obvious to be stressed  that  an entry  which is incorrectly introduced into the  records  by reason  of  ill-will  or  hostility is  not  only  shorn  of authenticity  but also becomes utterly useless  without  any lawful basis. The  learned Single Judge of the Allahabad High  Court  held that  the Deputy Director of Consolidation did not have  the jurisdiction  while dismissing the revision  application  in the  consolidation  proceedings to hold that the  entry  was fictitious.   The Deputy Director of  Consolidation  pointed out  that  the entry was held to be fictitious  by  a  Civil Court  also.  The Settlement Officer was the final court  of fact.   The order of the Settlement Officer found  that  the entries relied on by the respondents were malafide, contrary to  rules, and false.  The view of the learned Single  Judge confirmed  by the Division Bench in antithetic to the  basic principles  that  fraudulent or malafide  actions  have  no, legal sanction. The  High Court erred in quashing the order of  the,  Deputy Director  of Consolidation and the order of  the  Settlement Officer.  The High Court overlooked the evidence.  The  High Court  relied  on surreptitious entry as  lawful  entry.   A fabricated  entry is obviously a fictitious entry.   In  the present  case,  the entry was introduced by the  Patwari  by devious methods.  Such entry is mendacious. For these reasons, the order of the High Court is set aside. The Court fees payable by the appellants shall be  recovered

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

from the respondents and their advocate’s fee shall be taxed and  paid  by  the respondents.   The  appellants  shall  be entitled to their costs of this appeal. S.C. Appeal allowed. 734