# Agya Ram v. Joint Director of Consolidation & Ors

- **Citation:** (2025) 3 ILRA 223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-03
- **Case number:** Writ B No. 4405 of 1985
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/agya-ram-v-joint-director-of-consolidation-ors-53048
- **Pages:** 18

## Headnote

C.S.C., Bal Keshwar Srivastava, Sri N.R.
Tripathi, Sri Pankaj Kumar Srivastava, Pinki
Devi, Sri Puttu \Lal Mishra, Sri Q.M.
Haque, Sri R.K. Tripathi, Sri S.P. Dubey,
Sri Shri Prakash Verma, Sri Vinod Kumar
Gupta, Sri Z. Jilani

A.
Civil
Law
-U.P.
Consolidation
of
Holdings
Act,1953-Section
9(A-2)-Cotenancy and Succession rights-Adverse
possession -Family settlement-Mutation
proceedings-The dispute concerned Khata
No.s5 and 41 in Village Pipra Ekdanga,
District Gonda-Upon commencement of
consolidation , names of Agya Ram, Parag,
and Smt. Chhitna were recorded with
shares-Smt.
Yashodhara(daughter
of
Hardwar) filed objections claiming cotenancy with her sister Chhitna-Agya Ram
and Parag also claimed larger shares
based on a compromise deed (1959) and a
family settlement, asserting the land was
ancestral property from one Matai-The
Consolidation Officer held the property
224 INDIAN LAW REPORTS ALLAHABAD SERIES
was
self-acquired
by
Hardwar
and
devolved
upon
his
daughters,
Smt.
Yashodra and Smt. Chhitna, under section
171 of the U.P.Z.A.& L.R. Act,1950,
granting each 1/3rd share alongside the
petitioners-The
Settlement
Officer
on
appeal altered this, excluding Agya Ram
and Parag entirely and distributing the
property equally between Chinta and
Yashodhra's heirs-The Deputy Director of
consolidation upheld this, rejecting the
compromise and family settlement for lack
of evidence and held that possession
alone does not establish title or adverse
possession-The
court
held
that
the
property was not proved to be ancestralthe compromise of 1959 was unproved
and non-binding, especially in mutation
proceedings-The
plea
of
adverse
possession failed due to contradictory
pleadings, lack of evidence, and nonfulfillment
of
legal
requirements-The
family settlement was not credible, lacked
proper documentation and excluded key
parties like Smt. Yashodhara-The writ
petitions were devoid of merit and were
accordingly dismissed-The orders of the
Consolidation
authorities
were
upheld.(Para 1 to 46)

The writ petitions are dismissed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,939 of 61,324. This is a partial read: ask again with offset=39939 for what follows._

3 All. Agya Ram Vs. Joint Director of Consolidation & Ors.
223
concerned, the issue in the said
case arose on account of the plea raised that
when the transfer application was filed
before the Board of Revenue, it was not
disclosed that earlier transfer application
was filed before the Collector, Kashganj,
which
was
dismissed,
on
which
submission, the learned Single Judge came
to the conclusion that power of transfer
under Section 212 is a concurrent power to
be exercised by any of the authorities
mentioned in sub-section (2) of Section 212
of the Code, 2006, however, after coming
to the said conclusion a further observation,
as under, was made :

 "None of the authorities exercises
either appellate or revisional jurisdiction over
an order on a transfer application, which may
have been passed by a authority subordinate to
it."

18. We are of the opinion that the said
observations were made without reference to
the relevant provisions, including Section 210
of the Code, 2006 and without discussion on
the subject matter.

19. In view of the above discussions,
our answer to the question referred to us as
under :

I. A revision petition under Section
210 of the Code, 2006 would be maintainable
against an order passed/transferring any case
or proceedings in exercise of powers under
Section 212(2) of the Code, 2006.

II. The observations made in the
case of Sharda Singh (Supra) in relation to
the revisional jurisdiction, do not lay down
correct law.

20. The reference is answered
accordingly.

21. Let the matter be placed before
the appropriate Bench.
----------
(2025) 3 ILRA 223
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.03.2025

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ B No. 4405 of 1985
Connected with
Writ B No. 3396 of 1987

Agya Ram ...Petitioner
Versus
Joint Director of Consolidation & Ors.
 ...Respondents

Counsel for the Petitioner:
 Sri S. Mirza, Sri H.S. Sahai, Sri Q.M.
Haque, Sriu S. Mirza, Sri U.S. Sahai

Counsel for the Respondents:
C.S.C., Bal Keshwar Srivastava, Sri N.R.
Tripathi, Sri Pankaj Kumar Srivastava, Pinki
Devi, Sri Puttu \Lal Mishra, Sri Q.M.
Haque, Sri R.K. Tripathi, Sri S.P. Dubey,
Sri Shri Prakash Verma, Sri Vinod Kumar
Gupta, Sri Z. Jilani

A.
Civil
Law
-U.P.
Consolidation
of
Holdings
Act,1953-Section
9(A-2)-Cotenancy and Succession rights-Adverse
possession -Family settlement-Mutation
proceedings-The dispute concerned Khata
No.s5 and 41 in Village Pipra Ekdanga,
District Gonda-Upon commencement of
consolidation , names of Agya Ram, Parag,
and Smt. Chhitna were recorded with
shares-Smt.
Yashodhara(daughter
of
Hardwar) filed objections claiming cotenancy with her sister Chhitna-Agya Ram
and Parag also claimed larger shares
based on a compromise deed (1959) and a
family settlement, asserting the land was
ancestral property from one Matai-The
Consolidation Officer held the property
224 INDIAN LAW REPORTS ALLAHABAD SERIES
was
self-acquired
by
Hardwar
and
devolved
upon
his
daughters,
Smt.
Yashodra and Smt. Chhitna, under section
171 of the U.P.Z.A.& L.R. Act,1950,
granting each 1/3rd share alongside the
petitioners-The
Settlement
Officer
on
appeal altered this, excluding Agya Ram
and Parag entirely and distributing the
property equally between Chinta and
Yashodhra's heirs-The Deputy Director of
consolidation upheld this, rejecting the
compromise and family settlement for lack
of evidence and held that possession
alone does not establish title or adverse
possession-The
court
held
that
the
property was not proved to be ancestralthe compromise of 1959 was unproved
and non-binding, especially in mutation
proceedings-The
plea
of
adverse
possession failed due to contradictory
pleadings, lack of evidence, and nonfulfillment
of
legal
requirements-The
family settlement was not credible, lacked
proper documentation and excluded key
parties like Smt. Yashodhara-The writ
petitions were devoid of merit and were
accordingly dismissed-The orders of the
Consolidation
authorities
were
upheld.(Para 1 to 46)

The writ petitions are dismissed. (E-6)
List of Cases cited:

1. Bhagwati Deen Vs Sheetiadin (2022) SCC
Online All 349

2. Sohan Lal Vs Distt. D.D.C Hardoi &
ors.MANU/UP/4198/2022

3. Kale & ors. Vs DDC & ors.(1976)3 SCC 119
4.
Ram
Milan
Vs
Kripa
Shanker
&
ors.MANU/UP/2728/2023

5. Bhoop Singh Vs Ram Singh Major &
ors.(1995) 5 SCC 709

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Shri U.S.Sahai, learned
counsel for the petitioners, Shri Mohd.
Kashif Rafi and Shri Prakash Verma,
learned counsel appearing on behalf of
heirs of deceased respondent no.5 and Shri
Pankaj Srivastava learned counsel for
respondent no.7.

2. This judgement will decide Writ
Petition No.4405 of 1985 (Agya Ram and
another
Vs.
Assistant
Director
Consolidation and others) and connected
Writ -B No.3396 of 1987 (Chhotey Lal and
another
Vs.
Assistant
Director
of
Consolidation and others ).

3. Since both the writ petitions
assail the common order passed by the
Settlement Officer of Consolidation and the
Deputy Director of Consolidation and
involve common facts and questions of
law, hence both the petitions have been
clubbed and are being decided by this
common judgement. Since the petitions are
pending since 1985 and 1987 and few of
the parties have expired and their legal
heirs have been brought on record, however
for the sake of convenience, the court shall
be referring to the parties as they were
originally
impleaded
before
the
consolidation courts.

4. The dispute relates to Khata
No.5 which is a bhumidhari Khata and
Khata No.41 which is a Sirdari Khata,
situated in village Pipra Ekdanga, Pargana
and Tehsil Utraula, District Gonda.

5.
Upon
commencement
of
consolidation operations in the village in
question, the names of Agya Ram, Parag
and Smt. Chhitna was recorded. Half share
was shown of Smt. Chhitna whereas Agya
Ram and Parag had 1/4th share therein.

6.
Smt.
Yashodra
filed
her
objections under Section 9 (A-2) of the
U.P. Consolidation of Holdings Act, 1953
3 All. Agya Ram Vs. Joint Director of Consolidation & Ors.
225
(hereinafter referred to as the "Act of
1953")
claiming
co-tenancy
right
alongwith her sister Smt. Chhitna. The
petitioners Agya Ram and Parag also filed
their objections stating therein that they
together had 2/3rd share in both the Khata
Nos.5 and 41 which was incorrectly shown
as half share with Chhitna whereas she only
had 1/3rd share therein. This was claimed
on the basis of a compromise said to have
been entered between the parties in
mutation proceedings before the court of
Tehsildar on 28.2.1959.

7. Another set of objections was
filed by Awadh Ram claiming co-tenancy
rights but the same was turned down and
thereafter he did not pursue his claim any
further and for the said reason, the main
contest remained between Smt. Chhitna,
Smt. Yashodra and Parag and Agya Ram.

8.
Before
the
Consolidation
Officer, the case as set up by the petitioners
namely Agya Ram and Parag was that the
disputed Khatas in question were procured/
created by Hardwar and Har Krishan who
were real brothers. It was further stated that
a family settlement was arrived at between
the parties and as a consequence 2/3rd
share came in the hands of Parag and Agya
Ram together whereas 1/3rd share was that
of Smt. Chhitna. It was further stated that
since Hardwar was the elder brother, hence
his name was recorded and after his death,
the name of his wife Smt. Pran Dei was
recorded. After the death of Pran Dei, in
the mutation proceedings, before the
Tehsildar, a settlement/ compromise was
arrived at wherein Smt. Chhitna had
acknowledge and accepted the share of
Parag and Agya Ram together having 2/3rd
whereas Smt. Chhitna would have 1/3rd.
Thus, it was stated that the entry in the base
year Khatauni noticing half share of
Chhitna was incorrect and Smt. Chhitna
though had filed her separate objections
they were not tenable as Smt. Chhitna in
pursuance of the compromise entered
before the Tehsildar was estopped from
taking a contrary plea nor she could
challenge the 2/3rd share of the petitioners.

9. Awadh Ram who had filed his
set of objections claimed that the property
in question was created by the common
ancestor Matai who was survived by his
four sons namely Hardwar, Har Krishan,
Hardutt and Har Prasad. It was further
stated that Hardwar was the eldest and
hence his name was duly recorded in
representative
capacity.
However,
the
family continued to remain joint and as
such upon the death of Matai, the rights in
the two disputed Khatas came to be
devolved on the four sons of Matai and
Awadh Ram being the son of Har Prasad
who had his co-tenancy rights in the
property. It was also stated that Smt.
Chhitna,Parag
and
Agya
Ram
had
fraudulently got their names mutated to the
exclusion of Awadh Ram and accordingly
the said entries were incorrect.

10. The third set of objections were
filed by Smt. Yashodra who is the daughter
of Hardwar and she claimed that the
property was self created by her father
namely Hardwar and after his death, it
devolved on Smt. Pran Dei and upon the
death of Smt. Pran Dei who at the relevant
time was survived by her two daughters
namely
Chhitna
and
Yashodra.
Accordingly,
Smt.
Chhitna
has
no
exclusive right to exclude the share of Smt.
Yashodra and she had half share in the
disputed Khata.

11. Smt. Chhitna while filing her
objections had stated that at the time of
226 INDIAN LAW REPORTS ALLAHABAD SERIES
death of Smt. Pran Dei, Smt. Yashodra had
relinquished her rights and therefore she
could not claim any right. Smt. Chhitna
also disputed the right of Parag and Agya
Ram on the premise that the property in
question was created solely by Hardwar
and upon the death of Hardwar, the
property devolved on Smt. Pran Dei and
from Pran Dei, Smt. Chhitna got her
exclusive right. Smt. Chhitna also disputed
that no such compromise was arrived at in
the court of Tehsildar on 28.2.1959 as
alleged by Parag and Agya Ram. She also
disputed that Har Krishna who was the
brother of Hardwar did not have any right
in the property and therefore no right could
devolved on Parag and Agya Ram, hence
Smt. Chhitna must be considered and
recorded as the sole tenure holder of both
the Khatas in dispute.

12. At this stage, it will be relevant
to notice that Smt. Yashodra died during
the proceedings and she was represented
and her claim was contested by her son
Raghu Nandan. Upon the death of Smt.
Chhitna, her case was taken forward by her
son namely Chhotey Lal whereas Parag and
Agya Ram who died during the pendency
of the writ peition are represented by the
legal heirs of Parag and Agya Ram who are
the petitioners.

13. In the light of the aforesaid
conflicting
claims
filed
before
the
Consolidation Officer, who framed eight
issues. After permitting the parties to lead
evidence,
the
Consolidation
Officer
recorded a finding that it could not be
proved that the property in question was
ever recorded in the name of Matai, the
common ancestor. The oldest revenue
record which was placed on record by Smt.
Chhitna was a copy of Khatauni of 1358
fasli (1951 C.E.) year wherein Khata Nos.5
and 41 were recorded in the name of
Hardwar son of Matai. It also held that
Awadh Ram could not bring any document
on record to indicate that disputed Khatas
at any point of time was recorded in the
name of Matai, hence in absence thereof, it
could not be said that the property was
ancestral and it devolved on the four sons
of Matai.

14. He further held that Awadh
Ram could not indicate that the name of
Hardwar was recorded in the representative
capacity and with the said findings, the
claim of Awadh Ram was turned down.

15. The Consolidation Officer,
further went on to hold that since it was
clearly proved that the property was selfacquired by Hardwar and upon the death of
Hardwar, it devolved on his wife Pran Dei
who died sometimes in the year 1959 and
thereafter Pran Dei was succeeded by her
two daughters namely Smt. Chhitna and
Yashodra. It further held that even though
in terms of Section 171 of the U.P. Z.A. &
L.R.Act, 1950 (hereinafter referred to as
"Act of 1950") the property would devolve
on the two daughters of Hardwar but since
a
compromise
was
entered
between
Chhitna and Agya Ram and Parag and they
have been in possession of the disputed
plots, but, the fact remains that Yashodra
was also the real sister of Chhitna and
daughter of Hardwar. Therefore, in absence
of any relinquishment at the behest of Smt.
Yashodra in accordance with law, she
could not be deprived of her share.
Therefore,
the
Consolidation
Officer
granted 1/3rd share to Smt. Yashodra, 1/3rd
to Smt. Chhitna and 1/3rd jointly to Agya
Ram and Parag. It also noticed that since
Smt. Yashodra had died during the
pendency of the proceedings before the
Consolidation Officer, hence her share
3 All. Agya Ram Vs. Joint Director of Consolidation & Ors.
227
would be inherited by her son and similarly
the share of Smt. Chhitna would be
inherited by her sons namely Chhotey Lal
and Ram Achebar.

16.
This
judgement
of
the
Consolidation Officer dated 10.12.1982
came
to
be
challenged
before
the
Settlement Officer, Consolidation. Three
appeals came to be filed; one by the legal
heirs of Smt. Yashodra ; the other by the
legal heirs of Smt. Chhitna and the third by
Agya Ram and Parag. The Settlement
Officer of Consolidation after hearing the
parties, dismissed the appeal of Agya Ram
and Parag and further held that since it was
not disputed that Smt. Yashodra and Smt.
Chhitna were the daughters of Hardwar,
hence both would have half share therein
which was going to be distributed amongst
legal heirs of Smt. Chhitna and Smt.
Yashodra. The Settlement Officer of
Consolidation went on to consider the
shares amongst the legal heirs of Smt.
Yashodra and Smt. Chhitna and held that
since Chhitna was survived by her two sons
namely Ram Achebar and Chhotey Lal
they would have 1/4th share therein
whereas the other half would be inherited
by Raghu Nandan son of Yashodra.

17. The judgement passed by the
Settlement Officer of Consolidation dated
13.3.2008 further came to be assailed
before
the
Deputy
Director
of
Consolidation where again three revisions
were filed Revision No.724 was filed by
Agya Ram and Parag as they were
completely ousted as it had been held by
the Settlement Officer of Consolidation that
they had no right in the disputed Khatas.
Revision No.723 was filed by Raghu
Nandan (son of Yashodra) wherein he
disputed the distribution of shares amongst
him and his other cousin brothers (sons of
Chhitna). The third revision came to be
filed by the heirs of Chhitna.

18. All the three revisions were
clubbed together and decided by a common
judgement dated 22.4.1985 passed by
Deputy Director of Consolidation, Gonda
wherein it held that there could be no
compromise which could bind the parties
arrived at in mutation proceedings in the
year 1959 as all the concerned parties were
not parties to the said compromise. It also
noticed that the plea taken by Agya Ram
and Parag that there was a family
settlement also could not be proved in
accordance with law as it had already been
held concurrently that the property in
question was not created by Matai but only
by Hardwar. As per the law of succession,
the property would devolve only on the
legal heirs of Hardwar i.e. his two
daughters namely Chhitna and Yashodra.
Smt. Chhitna on her own even by
compromise or alleged settlement could not
create rights in favour of a party who had
no right. Any right created in favour of a
third party could only be done by an
instrument such as a Will, Gift or a Sale but
not by a compromise nor as a family
settlement. It thus concluded that merely by
getting the names recorded, Agya Ram and
Parag could not claim right to the property
specially when Smt. Chhitna herself
disputed the alleged compromise said to
have been arrived at in the court of
Tehsildar in the year 1959. Also for the
reason that the alleged compromise was
signed only by Parag and neither Chhitna
nor Yashodra or Agya Ram had put their
signatures/thumb impressions.

19.
The
Deputy
Director
of
Consolidation
also
held
that
mere
possession at the behest of Agya Ram and
Parag could not confer any right or title and
228 INDIAN LAW REPORTS ALLAHABAD SERIES
the plea of adverse possession as raised by
Agya Ram and Parag was not sustainable in
law. Accordingly, the revision of Agya
Ram and Parag was dismissed.

20.
Considering
the
revision
preferred by the legal heirs of Smt. Chhitna
and Yashodra, the Deputy Director of
Consolidation found that once both Smt.
Chhitna and Yashodra had expired but in
absence of any date of death, it could not
be ascertained that whose share would be
succeeded by which of the legal heirs and
in what proportion, hence in order to
adjudicate the respective shares of the legal
heirs of Yashodra and Chhitna, the Deputy
Director of Consolidation remanded the
matter to the Consolidation Officer with the
limited directions vide its judgement dated
22.4.1985.

21. It will further be relevant to
notice that insofar as Agya Ram and Parag
are concerned, since they were completely
non suited and excluded by the Deputy
Director of Consolidation as well as
Settlement Officer of Consolidation, hence,
they preferred Writ Petition No.4405 of
1985. Similarly, the legal heirs of Chhitna
also assailed the order of remand passed by
the Deputy Director of Consolidation,
hence, they filed Writ Petition No.3396 of
1987.

22. It will be relevant to notice here
that Raghu Nandan son of Yashodra
participated
in
the
proceedings
for
determination of share in terms of remand
order passed by the Deputy Director of
Consolidation dated 22.4.1985 and in
furtherance thereof, the order was passed
by Consolidation Officer and Settlement
Officer of Consolidation which came to be
assailed in the revision wherein the Deputy
Director of Consolidation by means of the
order dated 28.10.2009 had categorically
upheld the shares between the heirs of
Chhitna and Yashodra and this was further
challenged
in
Writ
Petition
No.732
(Consolidation) of 2009 which came to be
dismissed
for
non
prosecution
on
27.10.2014 and the recall application which
was moved was also dismissed on 2.8.2019
and to that extent, the inter se claim
between the heirs of Chhitna and Smt.
Yashodra came to be concluded, finally.

23. In the aforesaid backdrop, the
only two writ petitions which survived
were Writ Petition Writ -B No.4405 of
1985 and Writ -B No.3396 of 1987.

24. Shri U.S.Sahai, learned counsel
appearing for the petitioners in Writ
Petition Writ -B No.4405 of 1985 has
submitted that the orders passed by the
Settlement Officer of Consolidation and
Deputy Director of Consolidation are bad
in the eyes of law since they do not take
note of the law of succession which would
govern the rights of the parties in the
correct perspective. It has been submitted
that the property belonged to Matai and
upon his death, it devolved on his four
sons. He further urged that upon the death
of Hardwar, the property would devolve on
his widow Pran Dei and after the death of
Smt. Pran Dei, since Chhitna and Yashodra
were married daughters, they would not
inherit the property rather Agya Ram and
Parag being the sons of Har Krishan would
be preferential heirs in terms of order of
succession as per U.P.Z.A.& L.R.Act,
1950, hence, they would be entitled to
succeed to the entire share of Hardwar. He
further
urged
that
the
Consolidation
authorities have misconstrued the factum of
the compromise which in effect was a
family settlement. Once the property was
ancestral and it had devolved on the four
3 All. Agya Ram Vs. Joint Director of Consolidation & Ors.
229
sons
of
Matai,
Agya
Ram,
Parag,
Yashodra,
Smt.
Chhitna,
these
were
children in the third generation from Matai
and they were legally entitled to enter into
a family settlement readjusting their shares
in the manner as they pleased and it cannot
be said that the compromise or the family
settlement was bad in the eyes of law.

25. Shri Sahai, learned counsel for
the petitioner has further submitted that
even otherwise it was not disputed that
Agya Ram and Parag were in settled
possession of the property in question and
their continuous possession was admitted to
the contesting parties. Thus, they had
already
perfected
their
rights
and
alternatively they would have the right in
the property on the basis of adverse
possession as well.

26. Moreover, it is urged that at no
point of time, name of Smt. Yashodra was
incorporated. Accordingly, she could not
have any right and this aspect has not been
considered by the Settlement Officer of
Consolidation and the Deputy Director of
Consolidation
who
have
erroneously
excluded and completely deprived the
petitioners of their shares in the disputed
Khatas. It is thus urged that the impugned
orders passed by the Settlement of
Consolidation and the Deputy Director of
Consolidation are patently illegal and as
such deserve to be set aside.

27. Mohd. Kashif Rafi and Shri
Prakash Verma, learned counsel who
appeared on behalf of the heirs of Chhotey
Lal and Ram Achebar (both sons of Smt.
Chhitna) and Shri Pankaj Srivastava,
learned counsel who appeared on behalf of
the heirs of Raghu Nandan (son of
Yashodra)
supported
the
judgements
passed by the Settlement Officer of
Consolidation and Deputy Director of
Consolidation and prayed that the writ
petitions be dismissed.

28. It was also contended that the
plea of adverse possession as raised by the
learned counsel for the petitioners was not
sustainable as it was a mutually destructive
plea where on the one hand, the petitioners
claim rights on the basis of co-tenancy
having perfected their rights in terms of a
compromise of 1959, hence their claim of
co-ownership
and
adverse
possession
cannot be sustained, simultaneously. It was
further urged that even if the plea of
compromise and adverse possession is
considered separately, even then the
ingredients required to establish the same,
were neither fulfilled nor any evidence in
this regard was led, hence on the strength
of aforesaid plea, the impugned orders
cannot be said to be bad.

29. It was also urged that the
learned counsel for the petitioners have
argued a contradictory plea to what had
been pleaded before the Consolidation
Courts. It is not permissible for the
petitioners to change their stand during the
course of arguments whereas their entire
case as per the pleadings before the
Consolidation Officer and even uptill filing
of the writ petition had been that the
property was created by the father of
Chhitna namely Hardwar and the father of
the petitioners namely Har Krishan. Having
abandoned the aforesaid plea in absence of
any evidence, it was now not open for the
petitioners to state that the property was
ancestral and moreover there was no
material on record to establish the same
specially when the Consolidation Officer
had already recorded a finding of fact that
the property was created by Hardwar alone.
It is thus submitted that the submissions
230 INDIAN LAW REPORTS ALLAHABAD SERIES
advanced by the learned counsel for the
petitioners are not sustainable and as such
the writ petitions deserve to be dismissed.

30. Learned counsel Shri Mohd.
Kashif Rafi and Shri Prakash Verma
appearing for the legal heirs of Chhotey Lal
and Ram Achebar (sons of Chhitna) could
not dispute the fact that though they had
challenged the order passed by the Deputy
Director of Consolidation insofar as it
remanded the matter for determining the
shares inter se between the heirs of
Chhhitna and Yashodra and this has
already been decided and the writ petition
filed by Raghu Nandan bearing Writ
Petition No.732 (Consolidation)/ 2009
impugning the order of determination of
shares in pursuance of the remand order
had attained finality, hence the said Writ -B
No.3396 (Consolidation) of 1987 also does
not survive on its own except in case if the
writ -B No.4405 (Consolidation) of 1985 is
allowed.

31. Shri Pankaj Srivastava, learned
counsel also did not dispute the fact that as
far as the heirs of Raghu Nandan are
concerned (sons of Yashodra), their rights
have already been decided in terms of the
remand order dated 22.4.1985 passed by
the Deputy Director of Consolidation and
his challenge to the same, has also attained
finality on dismissal of his Writ Petition
bearing No.732 of 2009.

32. In the light of the aforesaid
factual matrix practically it is only the Writ
Petition No.4405 of 1985 which survive for
consideration and unless the same is
allowed, it will not impact the rights of the
heirs of Chhitna and Yashodra.

33. In this view of the matter, the
Court considers it proper to deal with the
submissions of Shri U.S. Sahai in Writ -B
No.4405 of 1985.

34. To recapitulate the primary
three submissions made by Shri U.S.Sahai,
are :-

(i). The property was ancestral
and emanated from

Matai. Accordingly, upon the
death of Matai, the property would devolve
on his legal heirs i.e. the four sons namely
Hardwar, Har Kishan, Har Dutt and Har
Prasad.

(ii). Shri Sahai also submits that
Agya Ram and Parag perfected their rights
by adverse possession.

(iii). The petitioners had right in
the property on the basis of family
settlement/ the compromise arrived at in
the court of Tehsildar in the year 1959.

35. This court deems appropriate to
first take up the plea of adverse possession
as raised by the learned counsel for the
petitioners.

36. Before proceeding further, it will
be relevant to notice that the law of adverse
possession
in
respect
of
agricultural
properties operates a little differently. Even
though it is now well settled that the person
who pleads adverse possession has no
special equities in his favour as it is an
attempt to deprive the lawful owner of his
rights. Thus, in order to prove the plea of
adverse possession the party pleading it has
to strictly adhere to the pleadings and
standard of proof required to establish the
said claim.

37. It will also be relevant to state
that on one hand, the petitioners have been
claiming rights on the basis of a family
settlement and it also claims right on the
3 All. Agya Ram Vs. Joint Director of Consolidation & Ors.
231
basis of succession claiming entire rights to
the exclusion of all others. In such
circumstances, the petitioners cannot plead
adverse possession as it would be a
mutually destructive plea. Nevertheless,
even if at all, the plea of adverse possession
is considered, though it is quite contrary to
the pleadings of the petitioners who stated
that the property in question was created by
father of Chhitna namely Hardwar and
father of the petitioners namely Har
Krishan. In light of the contrary pleadings,
the bona fides of the petitioners becomes
doubtful but nevertheless in order to
successfully plead and prove the plea of
adverse possession, it ought to have been
indicated clearly as to who was the true
owner of the property? when and how the
petitioners came in the possession of the
property and from which point of time their
possession became hostile and to the
knowledge of the true owner and that from
that given point of time despite knowledge,
the true owner did not take any legal steps
to oust the persons pleading adverse
possession, only then after the expiry of
prescribed period as provided in law, the
plea can be said to be substantiated.

38. This Court in Bhagwati Deen v.
Sheetladin; 2022 SCC OnLine All 349,
had
the
occasion
to
consider
the
applicability of law of adverse possession
relating to agricultural properties and the
same was followed by this Court in Sohan
Lal vs. Distt. D.D.C. Hardoi and Ors.
MANU/UP/4198/2022 and the relevant
portion as considered by this Court in para11 of Sohan Lal (supra) is being
reproduced hereinafter:-

11. Having taken note of the
aforesaid as well as considering the
decision of this Court in the case of
Bhagwati Deen (supra), wherein a detailed
discussions has been made on the plea of
adverse possession by referring to other
decisions of this Court and of the Apex
Court. Para-28 of the said report reads as
under:-

"28. Lately, this Court also had
the occasion to consider the aforesaid issue
of adverse possession in the case of Chit
Bahal
Singh
v.
Joint
Director
of
Consolidation, decided on 29.04.2022 and
by relying upon the decision of Babu Ali v.
D.D.C. (supra) the plea of adverse
possession was rejected. The relevant
paras
explaining
the
law
and
the
preparation of entries and what ingredients
have to be met are being extracted
hereinafter:-

"11. The para-89-A, 89-B and
102-B of the Land Records Manual (herein-after referred as "the manual'), relevant
for the purpose, are extracted below:-

"89-A. List of changes.-After
each Kharif and rabi portal of a village the
Lekhpal shall prepare in triplicate a
consolidated list of new and modified
entries in the Khasra in the following form:
Form No. P-10

Khasr
a No.
of Plot
Are
a
Detail
s
of
entry
in the
last
year

Detail
s
of
entry
made
in the
curren
t year
Verificatio
n
report
by
the
Revenue
Inspector
Remark
s
1
2
3
4
5
6

(ii) The Lekhpal shall fill in the
first four Columns and hand over a copy of
the list to the Chairman of the Land
Management Committee. He shall also
prepare extract from the list and issue to
the person or persons concerned recorded
in Columns 3 and 4 to their heirs, if the
person or persons concerned have died,
obtaining their signature in the copy of the
list retained by him. Another copy shall be
sent to the Revenue Inspector.
232 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) The Revenue Inspector shall
ensure at the time of his partial of the
village the extract have been issued in all
the cases and signatures obtained of the
recipients.

89-B. Report of changes.- The
copy of the list with the Lekhpal containing
the signatures of the recipients of the
extracts shall be attached to the Khasra
concerned and filed with the Registrar
(Revenue Inspector) alongwith it on or
before 31st July, of the following year (subparagraph (iv) of the paragraph 60).
 102-B.
Entry
of
possession
(Column 22) (Remarks column).- (1) The
Lekhpal shall while recording the fact of
possession in the remarks Column of the
Khasra, write on the same day the fact of
possession with the name of the person in
possession in his diary also, and the date
and the serial number of the dairy in the
remarks Column of the Khasra against the
entry concerned.

(2) As the list of changes in Form
p-10 is prepared after the completion of the
patal of village, the serial number of the list
of changes shall be noted in red ink below
the entry concerned in the remarks column
of the Khasra in order to ensure that all
such entries have been brought on the list.

(3) If the Lekhpal fails to comply
with any of the provisions contained in
paragraph 89-A, the entry in the remarks
Column of the Khasra will not be deemed
to have been made in the discharge of his
official duty."

12. Reading of the aforesaid
provisions makes it clear that if any entry is
made in PA-10, the same shall be
communicated to the person or persons
concerned recorded in columns 3 and 4 or
their heirs and obtain their signatures.
Records on being submitted to the Revenue
Inspector, he shall ensure at the time of
Padtal i.e. verification of the village that it
has been issued in all the cases and the
signatures obtained by the recipients.
Therefore, in case, any entry made on the
basis of adverse possession the same was to
be communicated to the person concerned
and the person claiming is required to
prove that it was in accordance with the
manual and as to what was nature of
possession and when it started in the
knowledge of the tenant and the possession
was continuous and how long it continued.

13. This Court considered this
issue in the case of Mohd. Raza v. Deputy
Director of Consolidation, 1997 RD 276
and held that the entries in the revenue
papers not prepared by following the
procedure prescribed under the Uttar
Pradesh Land Records Manual and PA-10
notice was not served on the main tenant,
such entries are of no evidentiary value and
would not confer any right.

14. This court, in the case of
Gurumukh Singh v. Deputy Director of
Consolidation, Nainital, (1997) 80 RD 276,
has also held that the entries will have no
evidentiary value if they are not in
accordance with the provisions of Land
Records Manual and the burden to prove is
on the person who is asserting the
possession on the basis of adverse
possession. Relevant paragraphs 6 and 7
are extracted below:-

"6. It is clear from Para A-102C
of the Land Records Manual that the
entries will have no evidentiary value if
they are not made in accordance with the
provisions of Land Records Manual. There
is presumption of correctness of the entries
provided it is made in accordance with the
relevant provision of Land Records Manual
and secondly, in case where a person is
claiming adverse possession against the
recorded tenure-holder and he denies that
he had not received any P.A. 10 or he had
no knowledge of the entries made in the
3 All. Agya Ram Vs. Joint Director of Consolidation & Ors.
233
revenue records, the burden of proof is
further upon the person claiming adverse
possession to prove that the tenure-holder
was duly given notice in prescribed Form
P.A. 10. Para A-81 itself provides that the
notice will be given by the Lekhpal and he
will obtain the signature of the Chairman,
Land Management Committee as well as
from the recorded tenure-holder. It is also
otherwise necessary to be provided by the
person claiming adverse possession. The
law of adverse possession contemplates
that there is not only continuity of
possession as against the true owner but
also that such person had full knowledge
that the person in possession was claiming
a title and possession hostile to the true
owner. If a person comes in possession of
the land of another person, he cannot
establish his title by adverse possession
unless it is further proved by him that the
tenure-holder had knowledge of such
adverse possession.

7. In Jamuna Prasad v. Deputy
Director of Consolidation, Agra, this Court
repelled the contention that the burden of
proof was upon the person who challenges
the correctness of the entries. It was
observed:

"Learned
counsel
for
the
Petitioner argued that there was a
presumption of correctness about the
entries in the revenue records and the onus
lay upon the Respondent to prove that the
entries showing the Petitioner's possession
had not been in accordance with law. This
contention is untenable Firstly, it is not
possible for a party to prove a negative
fact. Secondly, the question as to whether
the notice in Form P.A. 10 was issued and
served upon the Petitioner also is a fact
which
was
within
his
exclusive
knowledge."

"Petitioner's contention that the
burden lay on the Respondents to disprove
the authenticity and destroy the probative
value of the entry of possession cannot be
accepted. In my opinion, where possession
is asserted by a party who relies mainly on
the entry of adverse possession in his
favour and such possession is denied by the
recorded tenure-holder, the burden is on
the former to establish that the entries in
regard to his possession was made in
accordance with law."

15. This Court, in the case of
Sadhu Saran v. Assistant Director of
Consolidation, Gorakhpur, (2003) 94 RD
535, has held that it is well settled in law
that the illegal entry does not confer title.
Therefore even if the entry has been made,
it does not confer right title or interest if it
is not in accordance with law and the
prescribed procedure. This Court and the
counsel for the parties also could not get
the same in the Lekhpal diary. The
provision
of
PA-24
has
come
vide
notification dated 03.07.1965, therefore it
is also of no assistance because entry could
not have been made on the basis of PA-24
in Khatauni of 1373 fasli and it is also
without number and year.

16. This Court, in the case of
Putti
v.
Assistant
Director
of
Consolidation, Bahraich, (2007) 2 All LJ
43, has held that the court should be slow
to declare the right on the basis adverse
possession otherwise it may become a
weapon in the hands of mighty persons to
acquire the property of the weaker sections
of society. It has further held that there
shall not be presumption of continuous
possession to declare right and title on the
basis of adverse possession unless year to
year entries made in accordance with law
in the Khasra or Khatauni and proved by
cogent and trustworthy evidence, the
burden to prove which is on the person who
claims Sirdari or Bhumidhari rights on the
234 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of adverse possession. Relevant
paragraph-41 is extracted below:-

"41. Right to claim title on the
basis of adverse possession is a legacy of
British law. Courts should be slow to
declare right on the basis of adverse
possession. In case liberal approach is
adopted to extend right and title on the
basis of adverse possession then it may
become a weapon in the hands of mighty
persons to acquire the property of the
weaker sections of the society. Accordingly,
it shall always be incumbent upon the
Courts to do close scrutiny of the evidence
and material on record within the four
corners of law as settled by Apex Court,
discussed
herein
above.
Even
little
reasonable doubt on the evidence relied
upon by a party to claim right and title on
the basis of adverse possession may be
sufficient to reject such claim under a
particular fact and circumstance. There
shall not be presumption on continuous
possession to declare right and title on the
basis of adverse possession unless year to
year entries made in accordance to law in
the Khasra or Khatauni are proved by
cogent and trust worthy evidence. burden
of proof of such entries shall lie, as
discussed herein above, on the person who
claims Sirdari or bhumidhari right on the
basis of adverse possession. In the absence
of any such proof, presumption shall be in
favour of recorded tenure-holder whose
name has been recorded in column-1 of the
Khatauni."

17. The Hon'ble Apex Court, in
the case of P.T. Munichikkanna Reddy v.
Revamma, 2008 (26) LCD 15, has held that
in
case
of
adverse
possession,
communication to the owner and his
hostility towards the possession is must.
The relevant paragraphs 19 to 23 are
extracted below:-

"19.
Thus,
there
must
be
intention to dispossess. And it needs to be
open and hostile enough to bring the same
to the knowledge and plaintiff has an
opportunity to object. After all adverse
possession right is not a substantive right
but a result of the waiving (willful) or
omission (negligent or otherwise) of right
to defend or care for the integrity of
property on the part of the paper owner of
the land. Adverse possession statutes, like
other statutes of limitation, rest on a public
policy that do not promote litigation and
aims at the repose of conditions that the
parties
have
suffered
to
remain
unquestioned long enough to indicate their
acquiescence.

20. While dealing with the aspect
of intention in the Adverse possession law,
it is important to understand its nuances
from varied angles.

21. Intention implies knowledge
on the part of adverse possessor. The case
of Saroop Singh v. Banto, (2005) 8 SCC
330 in that context held:

"29. In terms of Article 65 the
starting point of limitation does not
commence from the date when the right of
ownership arises to the plaintiff but
commences from the date the defendants
possession
becomes
adverse.
(See
Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak, (2004) 3 SCC 376).

30.