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CASE NO.: Appeal (civil)  4007 of 1999

PETITIONER: Virendra Nath Thr. P.A. Holder R.R. Gupta

RESPONDENT: Mohd. Jamil & Ors  

DATE OF JUDGMENT: 14/07/2004

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

JUDGMENT: J U D G M E N T

Dharmadhikari J.

       This appeal has been preferred against the judgment dated  07.8.1997 of the High Court of Allahabad whereby revisional order  dated 10.2.1975 passed by the Deputy Director of Consolidation,  Allahabad, has been set aside and the order dated 26.3.1974 passed  by the Assistant Settlement Officer of Consolidation has been  restored.  

       Relevant facts leading to filing of this appeal are as under :-  

       In relation to the lands in question, an objection was filed by  Jan Mohammad (represented now by the respondents) in the court of  Consolidation Officer under provision of section 9A of  Uttar Pradesh  Consolidation of Holdings Act, 1953 [for short the Consolidation Act,  1953] for declaring and recording him on the land as Sirdar in  accordance with section 210 of the Uttar Pradesh Zamindari Abolition  & Land Reforms Act, 1950 [for short the Abolition Act]. The claim  of  Jan Mohammad was on the basis of his alleged adverse possession on   the land for long period of 40 years. The Consolidation Officer  accepted case of Jan Mohammad and recorded him as Sirdar on the  land.  

       The recorded owners of the lands preferred an appeal under  section 11 of the Consolidation Act to Assistant Settlement Officer of  Consolidation. In the appeal, it was pointed out that in the basic  years of Fasali 1359 and 1361 in the revenue papers i.e. Khasras  name of Jan Mohammad was recorded in respect of the lands as a  mortgagee [Murtheen]. The case of the petitioners before Appellate  Authority was that Jan Mohammad came in possession of the  property as a mortgagee and could not acquire any title by adverse  possession. The appellate authority took the view that the mortgage  of the land was for a loan of more than Rs.100/- and the mortgage- deed required compulsory registration. The appellate court came to  the conclusion that as the alleged mortgage is not evidenced by any  registered document, the oral evidence of mortgage cannot be relied.  The Appellate Authority, therefore, dismissed the appeal and  maintained the order of the Consolidation Officer directing  recording  of name of Jan Mohammad as having acquired ownership to the land  by adverse possession.  

       The petitioners then preferred a revision under section 48 of  the Consolidation Act to the court of Deputy Director of Consolidation,  Allahabad. The revisional  authority took the view that though the  unregistered written mortgage-deed being in possession of the  mortgagee, could not be produced, oral evidence was admissible to  ascertain the nature of possession of Jan Mohammad on the land.

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The revisional authority relied on the earliest entries in the Khasaras  of basic years to come to the conclusion that Jan Mohammad came  into possession of the land as mortgagee. His possession could not be  held to be adverse.  His possession would be deemed to be only  permissive as a mortgagee. The revisional authority, therefore,  relying on the entry in khasaras of fasli 1359 where Jan Mohammad  is recorded as a mortgagee, allowed the revision and dismissed his  claim for being recorded as Sirdar of the land.  

       The legal representatives of Jan Mohammad preferred writ  petition to the High Court of Allahabad.  

       The High Court in the writ petition reversed the judgment of the  revisional authority on the ground that the plea of relationship of  mortgage and mortgagee and the possession of Jan Mohammad to be  permissive was raised for the first time in revision. The High Court  held that the revisional authority was in error in upsetting orders of  the lower authorities.  

       Learned counsel representing the original recorded owner of the  lands in this appeal  submits that claim of Jan Mohammad was based  on alleged adverse possession on the land. It was an error on the  part of the High Court to hold that relationship of mortgage and  mortgagee never came up for consideration before the Consolidation  Officer and Assistant Settlement Office of Consolidation. The order of  the appellate authority has been placed on record of this appeal  which clearly shows that the alleged relationship of mortgage and  mortgagee between the parties was under discussion. Despite the  entry in the remarks column of the Khasara of the fasli years 1359  and 1361 showing Jan Mohammad as mortgagee on the land, his  possession was held to be adverse and his claim for recording him as  Sirdar on the land was allowed.  

       Learned counsel appearing for the respondents has filed written  submissions. In opposing the appeal,  it is contended that the  revisional Authority exceeded  its powers of revision under section 48  of the Consolidation Act.  

       After hearing the learned counsel for the parties and perusing  the record we find that the High Court had no justification to upset  the decision of the revisional Authority. The earliest khasara records  clearly show nature of possession of Jan Mohammad on the lands as  mortgagee. Even though, mortgage-deed which was unregistered and  being in possession of mortgagee, could not be  produced by the  mortgagor, evidence could be admitted for collateral purpose of  ascertaining  the nature of possession of Jan Mohammad. There is no  evidence that the possession of Jan Mohammad  as mortgagee ever  became adverse to the knowledge of the original owner that is the  mortgagor. The claim for recording Jan Mohammad as Sirdar on the  land was filed under section 210 of the Abolition Act which reads as  under :-  "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 \026  

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

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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;

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.  

       Section 209 of the Abolition Act confers right on a recorded  owner of the land to eject persons occupying land without title. In  case of a mortgage, the mortgagor has no right in law to eject a  mortgagee until the mortgage is redeemed. Even though, the  mortgage was not by any registered instrument, it is not disputed  that the possession of the land was taken by Jan Mohammad as a  mortgagee. If his entry on the land was as mortgagee, nature of his  possession would continue to be as mortgagee unless there is  evidence to show that,  at any point of time, he asserted  his adverse  title, by repudiating his possession as mortgagee and continued  in  adverse possession for the prescribed period of more than 12 years  to the knowledge of the mortgagor. From none of the orders either of  the original or appellate authority, any evidence seems to have been  led to establish date or period from which the possession of Jan  Mohammad became adverse to the knowledge of the recorded owner.  In the state of above evidence on record, the revisional court was  fully justified in coming to the conclusion that Jan Mohammad, who  came in possession of the land as mortgagee, cannot be recorded as  Sirdar or Bhumidar under section 210 of the Abolition Act.  

       The High Court in reversing the order of the revisional Authority  erroneously attached undue importance to the fact that there was no  specific plea or evidence led on behalf of the recorded owner that the  possession of Jan Mohammad on the land was permissive. From the  orders passed by the authorities under the Consolidation Act, it is  apparent that throughout the stand of the original recorded owner,  was that Jan Mohammad came in possession of the land as a   mortgagee. The argument of permissive possession was advanced  before the revisional Authority on the plea of mortgage. The High  Court committed a serious error in upsetting the judgment of the  revisional court on the ground of alleged want of plea of permissive  possession by the original recorded owner.  

       Consequently, we allow this appeal, set aside the impugned  judgment dated 07.8.1997 of the High Court of Allahabad and restore  the revisional order dated 10.2.1975 of Deputy Director,  Consolidation.  

       In the circumstances, we, however, make no order as to costs.