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Sunday, October 11, 2015

Disputes about entries in revenue records = The dispute relates to Plot Nos. 795, 796 and 903 situated in village Bahauddinpur, District Azamgarh. The said plots were admittedly recorded in the name of the respondent Nos. 3 and 4 in the basic year record. The names of the appellants were shown to be recorded in the possession column. In the consolidation proceedings, both the appellants and the respondents filed their objections. The appellants claimed their right over the land in question by virtue of their possession and entry in their favour in the revenue records. However, respondent Nos. 3 and 4 prayed for expunction of the names of the appellants who have been wrongly recorded. Oral and documentary evidence were filed before the Consolidation Officer in respect of respective cases. The Consolidation Officer, vide order dated 29.03.1974, allowed the petition filed by the respondent Nos. 3 and 4 herein and directed for expunction of the names of the present appellants which were shown to be in possession. Being aggrieved, the appellantsFrom the entire aforestated evidence, it is clear that the name of revisionists came in existence against land from 1358, 1359 crop year. It is the case of defendant that they are Seerdar from occupier on the basis of this possession prior to abolition of zamindari and entries available prior to abolition of zamindari does not prove the case of defendant because these are doubtful and not reliable.; The Assistant Settlement Officer (Consolidation), in his order, has held the possession of defendant continuously since 1354 crop year which is totally wrong and incorrect because the name of the defendant for the first time has come against L.Nos. 795, 796 in 1357 crop year and that too is in remarks column whereas the Sikmi Column is blank. Hence, had these entries correct, the name of defendant would have come in the column of Sikmi and not in the possession column. ;There is no such evidence that the defendant paid compensation to original cultivator after abolition of zamindari. Against this, the name of revisionists was entered on the basis of Form No. 101 which proves that compensation was paid to original cultivator. After abolition of zamindari, the name of defendant is found against L.No. in 1368 crop year whereas it is also doubtful and case of defendant is not on the basis of adverse possession as well. Hence, these entries also have no importance.=From the findings recorded by the Deputy Director, Consolidation, it is clear that those Khasra/Khatauni have been excluded in which there were over writings or some unwarranted entries. If that be the position, then the order passed by the Deputy Director, Consolidation holding that the contesting respondents acquired the right of Adhiwasi/Seerdars cannot be said to be based on re-appreciation of evidence afresh. It is only a case of examining the correctness and validity of the entries in the Khasra/Khatauni filed by the parties. this Court in Leela Rajagopal & Ors. vs. Kamala Menon Cocharan &Ors. 2014 (10) Scale 307 in para 14 has held that appreciation or re- appreciation of evidence must come to a halt at some stage of the judicial proceedings and cannot percolate to the constitutional court exercising, jurisdiction under Article 136. For ready reference, para 14 is reproduced below:- “Before parting we would like to observe that the very fact that an appeal to this Court can be lodged only upon grant of special leave to appeal would indicate the highly circumscribed nature of the jurisdiction of this Court. In contrast to a statutory appeal, an appeal lodged upon grant of special leave pursuant to a provision of the Constitution would call for highly economic exercise of the power which though wide to strike at injustice wherever it occurs must display highly judicious application thereof. Determination of facts made by the High Court sitting as a first appellate court or even while concurring as a second appellate court would not be reopened unless the same give rise to questions of law that require a serious debate or discloses wholly unacceptable conclusions of fact which plainly demonstrate a travesty of justice. Appreciation or re-appreciation of evidence must come to a halt at some stage of the judicial proceedings and cannot percolate to the constitutional court exercising jurisdiction under Article 136.” 15) In view of the foregoing discussion, we are of the considered opinion that the impugned order passed by the High Court does not call for any interference hence the appeal fails and is accordingly dismissed. However, the parties shall bear their own costs.


                                                                  REPORTABLE


                         IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       1 CIVIL APPEAL NO. 3594 OF 2011



Ram Bahal & Anr.                                        .... Appellant(s)

            Versus

Deputy Director of Consolidation
Azamgarh & Ors.                              .... Respondent(s)


                                      2

                               J U D G M E N T
R.K. Agrawal, J.

1)    The present appeal has been filed against the order dated  28.07.2003,
passed by the High Court of Judicature at  Allahabad  in  Civil  Misc.  Writ
Petition No. 247 of 1997 whereby  the  High  Court  dismissed  the  petition
preferred by the appellants herein while confirming the order of the  Deputy
Director of Consolidation, Azamgarh  and  the  Consolidation  Officer  dated
11.11.1976 and 29.03.1974 respectively.
Brief Facts:
2)    The dispute relates to Plot Nos. 795, 796 and 903 situated in  village
Bahauddinpur, District Azamgarh.  The said plots  were  admittedly  recorded
in the name of the respondent Nos. 3 and 4 in the basic  year  record.   The
names of the appellants were shown to be recorded in the possession  column.
 In the consolidation proceedings, both the appellants and  the  respondents
filed their objections.  The appellants claimed their right  over  the  land
in question by virtue of their possession and entry in their favour  in  the
revenue records.  However, respondent Nos. 3 and 4 prayed for expunction  of
the names of the appellants  who  have  been  wrongly  recorded.   Oral  and
documentary evidence were filed before the Consolidation Officer in  respect
of  respective  cases.   The  Consolidation  Officer,   vide   order   dated
29.03.1974, allowed the petition filed  by  the  respondent  Nos.  3  and  4
herein and directed for expunction of the names of  the  present  appellants
which were shown to be  in  possession.   Being  aggrieved,  the  appellants
preferred an appeal  before  the  Settlement  Officer,  Consolidation.   The
Settlement Officer, Consolidation, vide order dated 15.12.1975, allowed  the
appeal and the appellants were permitted to be recorded as Seerdar over  the
land in dispute.  Aggrieved by the order dated 15.12.1975,  the  respondents
filed a revision before the  Deputy  Director,  Consolidation.   The  Deputy
Director  of  Consolidation,  vide  order  dated  11.11.1976,  allowed   the
revision and restored the judgment and order of  the  Consolidation  Officer
dated  29.03.1974.   The  order  dated  11.11.1976,  passed  by  the  Deputy
Director, Consolidation, as also the  order  of  the  Consolidation  Officer
dated 29.03.1974 were challenged by the present appellants before  the  High
Court.
3)    In the High Court, the appellants claimed  the  acquisition  of  their
rights on the basis of adverse possession which according to them have  been
properly  examined  by  the  Settlement  Officer,  Consolidation  and  after
assessing the material on record a clear finding of fact had  been  recorded
regarding continuous possession of the appellants and therefore, it  is  not
a case for interference  by  the  Deputy  Director,  Consolidation,  in  the
revisional jurisdiction under  Section  48  of  the  U.P.  Consolidation  of
Holdings Act.  Further, it was the case set up by the appellants that  there
was no perversity in the order of the Settlement Officer,  Consolidation  or
that it was based on no evidence and therefore the finding of fact  recorded
by the Settlement Officer, Consolidation could not have been  set  aside  by
the Deputy Director of Consolidation.
4)    It was further claimed that the Deputy Director of  Consolidation  was
not justified in reassessing the evidence and to give his own  findings  and
at the most, he could have remanded the matter to the Consolidation  Officer
for giving fresh findings.
5)    On the other hand, the claim of the contesting  respondents  was  that
as the Settlement Officer,  Consolidation  has  allowed  the  claim  of  the
appellants therein by taking erroneous approach of  the  facts  and  by  not
properly interpreting the entry  which  has  been  brought  on  record,  the
Deputy Director of Consolidation, had every authority to go into the  matter
and, on proper analysis and after appreciation of  the  entry,  to  disagree
with the order of the Settlement Officer, Consolidation.  It is not  a  case
of reassessment of evidence rather it is a case  of  correct  interpretation
of the revenue entry.  It was further submitted before the High  Court  that
in the Khatauni extract 1359 Fasli, the  contesting  respondents  have  been
shown in possession and therefore they became Adhiwasi and  Seerdar  of  the
land in dispute and so far possession of  the  appellants,  even  if  it  is
recorded, having not been proved to be in accordance with law,  they  cannot
get any right on the basis of adverse possession.  Even the entry in  favour
of  the  appellants  has  not  been  found  by   the   Settlement   Officer,
Consolidation to be continuous and in accordance with  law,  and  therefore,
the plea of adverse possession cannot be accepted.
6)    The High Court, after going through the evidence  on  record  came  to
the finding that the Settlement Officer, Consolidation has referred  to  the
arguments of the parties at quite length but  so  far  as  finding  part  is
concerned, has given a clear finding,  on  the  basis  of  the  entries,  in
favour of Ram Adhar and thereafter his sons became Seerdar of  the  land  in
dispute but not the appellants as Seerdar.   The  High  Court  further  held
that there is no finding by the Settlement Officer, Consolidation  that  the
entry in favour of the predecessors of the respondents is valid and  correct
and there is  also  finding  about  the  rights  of  the  respondents.   The
Consolidation Officer and the Deputy Director,  Consolidation  had  given  a
finding that the predecessors of respondents were recorded  as  sub  tenants
and by virtue of the  entry  in  their  favour,  they  became  Adhiwasi  and
Seerdar  which  has  not  been  disturbed   by   the   Settlement   Officer,
Consolidation.  The High Court came to the conclusion that  the  finding  in
favour of the appellants appears  to  have  been  given  by  the  Settlement
Officer, Consolidation on the premise that inspite of decree  in  favour  of
the respondents under Section 229-B of the U.P. Zamindari Abolition  &  Land
Reforms Act  (in  short  ‘the  Act’)  possession  was  not  taken  from  the
appellants.  By referring  the  order  passed  by  the  Deputy  Director  of
Consolidation, the High  Court  came  to  the  conclusion  that  the  Deputy
Director, Consolidation has not reappraised the evidence but it looked  into
the correctness and validity of the entries recorded in the  Khatauni  filed
by the respective parties.  He has referred to  each  and  every  entry  and
because there was  over  writing  in  some  of  the  entries,  the  Khatauni
containing over writings  was  discarded.   The  High  Court,  consequently,
declined  to  interfere  in  the  order  passed  by  the  Deputy   Director,
Consolidation and dismissed the writ petition.
7)    Heard Mr. Ajay Kumar Misra, learned senior counsel for the  appellants
and Mr. R.K. Gupta and Mr. Shekhar, learned counsel for the respondents.
8)    Learned senior counsel appearing for  the  appellants  submitted  that
the original owner of the Plot No. 903 in dispute had migrated  to  Pakistan
and as per the  Order  of  the  Custodian  dated  17.10.1957,  the  year  of
migration was presumed to be 1355 Fasli and in that year, the father of  the
appellants was also found in  possession  by  the  Custodian  up  till  1364
Fasli.  The appellants had to pay 20 times of the  circle  rate  to  acquire
Bhumidari rights under Section  20B  of  the  Act  which  was  paid  by  the
appellants and thus they acquired lawful rights.  So far as  Plot  Nos.  795
and 796 are concerned, these plots were in the possession of the  appellants
prior to the enforcement of the Act and  therefore  they  were  recorded  as
occupants of the land in 1355 Fasli to 1359 Fasli.  They became Adhiwasi  in
possession and subsequently Seerdar.  Therefore, it conferred right  to  the
appellants over the property in dispute.
9)    The contesting respondents are claiming their right on  the  basis  of
entry of sub tenancy starting from 1358 Fasli which has  been  found  to  be
wrong entry by the  Settlement  Officer,  Consolidation  and  therefore  not
given due weightage.  Learned senior counsel for  the  appellants  submitted
that in view of the  above,  the  respondents  had  no  right  nor  were  in
possession as they themselves filed a suit being No. 920 under Section  229-
B of the Act whereby they claimed relief of possession from the  appellants.
 The decree passed in the said suit  stood  abated  in  second  appeal  vide
order dated 27.05.1974  as  consolidation  proceedings  had  started.   This
shows that the respondents were never in possession  of  the  land  and  the
entry coming for the first time in the 1358 Fasli was  wrong  entry  and  it
was never established from any record as to how sub tenancy was  created  in
favour of the  respondents.   The  Settlement  Officer,  Consolidation,  had
therefore, rightly held that the appellants became Adhiwasi  and  thereafter
became Seerdar.
10) According to the appellants, the order of the Consolidation Officer  and
the Deputy Director of Consolidation as also the High  Court  are  based  on
some proceedings under Section 33/39 of the Land  Reforms  Act  which  is  a
mutation proceeding and any admission made in a mutation proceeding  is  not
binding on  the  maker  in  a  title  matter.   Moreover,  in  the  mutation
proceedings, the appellants were not party and hence, cannot be relied  upon
against them.  Learned counsel for the appellants placed  reliance  on  Smt.
Sonawati and Ors. vs. Sri Ram and Anr. AIR 1968 SC  466,  Jhutan  Singh  vs.
Badri & Ors. 1962 Revenue Decisions 239, Bhurey vs. Pir Bux  1973  ALJ  313,
Laxmi Narain vs. D.D.C., Varanasi 1986 Revenue Decisions 410  and  Pir  Khan
vs. Deputy Director of Consolidation, District  Kanpur  1965  ALJ  591.   It
was, therefore, submitted  that  the  orders  passed  by  the  Consolidation
Officer, Deputy Director, Consolidation and the High Court be set aside  and
that of the Settlement Officer, Consolidation be restored.
11)   Learned counsel for  the  respondents,  however,  submitted  that  the
Consolidation Officer and the Deputy Director, Consolidation,  had  given  a
categorical finding that the predecessors of respondents  were  recorded  as
sub-tenants and by virtue of entry in their  favour,  they  became  Adhiwasi
and Seerdar  which  has  not  been  negatived  by  the  Settlement  Officer,
Consolidation.   The  appellants  are  not  laying  any  claim  against  the
respondents on the basis of the possession and the  authorities  have  found
that there is only  mention  of  few  Khasra/Khatauni  entries  without  any
reference to even any oral evidence.  Merely because the possession  on  the
basis of the decree in favour of the respondents  was  not  taken  from  the
appellants, it cannot be said that the appellants were in lawful  possession
of the plots in  question.   Some  of  the  khatauni/khasra  contained  over
writings, and  therefore,  they  were  rightly  left  aside  by  the  Deputy
Director of Consolidation.  Even the appellants could  not  give  the  exact
date or the year in which premium had been paid for  taking  the  rights  in
their favour.  Even no claim of  adverse  possession  was  established.   He
further prayed that the judgment and order passed by the High  Court  should
be maintained.
12) We have given our anxious consideration to the various pleas  raised  by
learned counsel  for  the  parties.   We  find  that  the  Deputy  Director,
Consolidation had examined the various copies of  Khasra/Khatauni  filed  by
the parties and had come to the conclusion that copy  of  Khasra  1357  crop
year has been filed in which Sumer, father of the  present  appellants,  has
been mentioned having possession of  Land Nos. 795 including  796.   Against
Land No. 779, there is a cross mark.   An of  khasra  is  blank.   Khasra  of
1358 crop year has been filed.   In  this,  pgainst  remaining  two  numbers,  no
cross mark has been put and Sikmi columossession  of  Sumer  has  been
entered in remarks column against Land Nos. 795, 796 and in  the  column  of
Sikmi,  the  name  of  Adhar,  s/o  Munesar  (father   of   the   contesting
respondents) is entered.  In the remarks column of Land No. 903,  the  names
and possession of Rohim Palton, Sumer, Phenku are entered.  This  Khasra  is
not reliable because when the name of Sumer was entered in 1357  crop  year,
then recording possession of Sumer again for Land  Nos.  795,  796  in  1358
Crop year and the name of Adhar  coming  in  the  Sikmi  column  make  these
Khasras doubtful.  The names of Rahim and Palton, having possession on  Land
No. 903, are  found  whereas  the  Sikmi  column  is  blank  which  is  also
doubtful.  Khasra 1359 crop year has been  filed.   In  this,  the  name  of
Adhar is mentioned in Sikmi column and possession of Sumer, son of  Munesar,
is mentioned  against  L.Nos.795,  796.   Possession  is  mentioned  against
L.No.903 and then it has been struck off or has been written above  Bhopare.
 In the Sikmi column also, there is cutting over the  entries  against  this
number.  Khasra for 1362 crop year has been filed.  In  this,  the  name  of
Adhar against L.No.795 is available as before in the Sikmi column.   In  the
L.No. 796 also, the name of Adhar is available as  before  in  Sikmi  column
and in the remarks column the name of Sumer s/o  Munesar  is  written.   The
name of Adhar is also available against L.No. 903 and after making entry  of
possession of Adhar and others, this has  been  struck  off  and  Rahim  and
others have been written in their place.  Khasra  for  1363  crop  year  has
been filed and it is also like 1362 crop  year  khasra.   In  L.No.903,  the
possession of Rahim, Pudan and Sumer and Phenku have been written and  there
is no entry in remaining two numbers.   These  same  entries  are  found  in
khasra  of  1354  crop  year.   Notice  of  office  of  Assistant  Custodian
(Judicial) has been filed and it has  too  much  overwriting  and  the  same
cannot be relied upon.  Copy of Khatoni of 1366 crop year has been filed  in
which the name of Asfaq has been entered in the main column and the name  of
Ram Adhar son of Munesar has been entered  in  category  9.   In  1368  crop
year, the name of Asfaq and others  were  deleted  and  the  name  of  Adhar
entered as Seerdar on the basis of  order  passed  in  Case  No.  341  under
Section 33/39.  In 1370 crop year, the name of Bahal, Kirpal are entered  as
category 9.  Khasra 1368 crop year has been filed  in  which  an  entry  has
been recorded that possession of Ram Kirpal, Bahal on L.Nos.  795,  796  has
been found.  Same  entry  is  also  available  in  L.No.903.   There  is  no
reference of any P.K.No.10 enquiry and diary number.  Hence, this khasra  is
not at all reliable.  Khasra of 1369 crop year has been filed  in  which  as
per order  of  Girdawar,  Kanungo  P.No.  10  dated  09.11.1961  entries  of
pendency of case are  recorded  against  L.Nos.  795,  796.   The  defendant
should not get any benefit of these entries.  Khasra of 1371 crop  year  has
been filed in which the name of Bhobhal and others are entered in  the  main
column.  From the entire aforestated evidence, it is clear that the name  of
revisionists came in existence against land from 1358, 1359 crop  year.   It
is the case of defendant that they are Seerdar from occupier  on  the  basis
of this possession prior to abolition of  zamindari  and  entries  available
prior to abolition of  zamindari  does  not  prove  the  case  of  defendant
because these are doubtful  and  not  reliable.   The  Assistant  Settlement
Officer (Consolidation), in his order, has held the possession of  defendant
continuously since 1354 crop year  which  is  totally  wrong  and  incorrect
because the name of the defendant  for  the  first  time  has  come  against
L.Nos. 795, 796 in 1357 crop year and that too is in remarks column  whereas
the Sikmi Column is blank.  Hence, had these entries correct,  the  name  of
defendant would have come in the column of Sikmi and not in  the  possession
column.  There is no such evidence that the defendant paid  compensation  to
original cultivator after abolition of zamindari.  Against  this,  the  name
of revisionists was entered on the basis of Form No. 101 which  proves  that
compensation  was  paid  to  original  cultivator.    After   abolition   of
zamindari, the name of defendant is found against L.No. in  1368  crop  year
whereas it is also doubtful and case of defendant is not  on  the  basis  of
adverse possession as well.  Hence, these entries also have no importance.
13)   From the findings recorded by the Deputy Director,  Consolidation,  it
is clear that those Khasra/Khatauni have been excluded in which  there  were
over writings or some unwarranted entries.  If that be  the  position,  then
the order passed by the Deputy  Director,  Consolidation  holding  that  the
contesting respondents acquired the right  of  Adhiwasi/Seerdars  cannot  be
said to be based on re-appreciation of evidence afresh.  It is only  a  case
of  examining  the  correctness  and  validity  of  the   entries   in   the
Khasra/Khatauni filed by the parties.
14)   The case laws relied upon by the counsel for the  appellants  have  no
bearing upon the issues involved in the  present  appeal.   We  may  mention
here that this Court in Leela Rajagopal & Ors. vs. Kamala Menon  Cocharan  &
Ors. 2014 (10)   Scale 307 in para 14 has  held  that  appreciation  or  re-
appreciation of evidence must come to a halt at some stage of  the  judicial
proceedings and cannot percolate to  the  constitutional  court  exercising,
jurisdiction under Article 136.  For ready reference, para 14 is  reproduced
below:-
“Before parting we would like to observe that the very fact that  an  appeal
to this Court can be lodged only upon  grant  of  special  leave  to  appeal
would indicate the highly circumscribed nature of the jurisdiction  of  this
Court.  In contrast to a statutory appeal, an appeal lodged  upon  grant  of
special leave pursuant to a provision of the  Constitution  would  call  for
highly economic exercise of  the  power  which  though  wide  to  strike  at
injustice wherever it  occurs  must  display  highly  judicious  application
thereof.  Determination of facts made by the High Court sitting as  a  first
appellate court or even while concurring as a second appellate  court  would
not be reopened unless the same give rise to questions of law  that  require
a serious debate or discloses wholly unacceptable conclusions of fact  which
plainly demonstrate a travesty of justice.  Appreciation or  re-appreciation
of evidence must come to a halt at some stage of  the  judicial  proceedings
and cannot percolate to the  constitutional  court  exercising  jurisdiction
under Article 136.”

15)   In view of the foregoing discussion, we are of the considered  opinion
that the impugned order passed by the High  Court  does  not  call  for  any
interference hence the appeal fails and is accordingly  dismissed.  However,
the parties shall bear their own costs.

 ..…………….………………………J.
          (RANJAN GOGOI)




 .…....…………………………………J.
  (R.K. AGRAWAL)


NEW DELHI;
OCTOBER 8, 2015.
ITEM NO.1D               COURT NO.12               SECTION XI
(For judgment)
              S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                       Civil Appeal  No(s).  3594/2011

RAM BAHAL & ANR.                                   Appellant(s)

                                VERSUS

DEPUTY DIRECTOR, CONSOLIDATION & ORS.              Respondent(s)




Date : 08/10/2015      This appeal was called on for pronouncement of
            judgment today.


For Appellant(s)       Mr. P. Narasimhan, AOR


For Respondent(s)      Mr. R.K. Gupta, Adv.
                       Mr. M.K. Singh, Adv.
                       Mr. A.K. Singh, Adv.
                       Mr. Shekhar Kumar, AOR


      Hon'ble Mr. Justice R.K. Agrawal pronounced  the  reportable  judgment
of the Bench comprising Hon'ble Mr. Justice Ranjan Gogoi and His Lordship.
      The appeal is dismissed in terms of the signed reportable judgment.

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)



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