# Azadar Hussain Khan & Ors v. D.D.C. Faizabad & Ors

- **Citation:** (2021) 8 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-02
- **Case number:** Consolidation No. 1473 of 1981
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azadar-hussain-khan-ors-v-d-d-c-faizabad-ors-47179
- **Pages:** 11

## Headnote

186 INDIAN LAW REPORTS ALLAHABAD SERIES
A. UP Consolidation of Holdings Act, 1953 -
Sections 9(2) & 11(1) - Administration of
Justice - Hierarchy of Courts - Remand of
the matter by the Superior court on particular
issue - Inferior court decided the other issue
also - Legality thereof - Appellate authority,
to whom the case was remanded, travelled
beyond the term of remand and considered
the issues which were neither considered by
the superior court nor the matter was
remanded to consider the same - Held, the
appellate authority considered and decided
the case without authority of law - High
Court quashed the impugned orders holding
it not sustainable in the eyes of law. (Para 16
and 26)
B. Land Record Manual - Paragraphs 89-A,
89-B & 102-B - Ownership - Adverse
possession - Claim - Three 'neck' nec vi,
nec clam and nec precario - Proof thereof
- Party, who is claiming on the basis of
adverse possession in some property, is to
prove as to the date, time and manner in
which he entered into possession and
when the possession converted into open,
hostile and adverse - A person claiming
title by adverse possession has to prove
three 'neck' nec vi, nec clam and nec
precario. In other words, he must show
that
his
possession
is
adequate,
in
continuity, in publicity and in extent.
(Para 18 and 22)
C.
Court's
procedure
-
No
counter
Affidavit filed - Allegations made in the
writ petition are uncontroverted - Effect -
Held, it can be safely presumed that the
allegations made in the writ petition are
true
otherwise
it
would
have
been
rebutted by the other side. (Para 25)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

8 All. Azadar Hussain Khan & Ors. Vs. D.D.C. Faizabad & Ors.
185
independent
and
competent
witnesses
before the court of law, such partition could
not be said to have taken place at all. The
Consolidation Officer in his order says that
the sale deeds were proved by the witnesses
of the Vendee. The Consolidation Officer
also says that the boundaries were verified
by by such witnesses. However, he does
not say in his order that the share of the
Vendee
was
proved
to
have
been
determined by a family partition by such
witnesses. This property in question was
still a joint property of the petitioner and
his brothers and, therefore, if his brothers
alienated the same without the consent of
the petitioner, such as sale would be void
and not a voidable document. Every
alienation of joint Hindu family property
without the consent of the coparcener
makes the sale deed void. Even if such land
was not joint Hindu family property, it
being a property having joint ownership of
the petitioner and his brothers without a
regular partition between them any sale of
such property would be void.

37. The facts of this case are a glaring
example of failure to exercise jurisdiction
by
the
Consolidation
Authorities
to
consider the validity of the sale deeds set
up by the brothers of he petitioner of a joint
holding which had mentioned definite
boundaries demarcating the share of
vendors allegedly sold off to the vendee
without the family settlement being proved
at any stage of the proceedings. Also, the
question of fragmentation of Chak No.493
was not considered which would render
such sale deeds void in terms of Section
168A of the U.P.Z.A. & L.R. Act. The first
sale made in 1996 was made to a stranger
who had no contiguously situated land near
Chak No.493. It was made before the cut
off date of 23.08.2004 leaving only 1.26
acres with the petitioner and 1.26 acres
with Vijay Kumar. This aspect of the
matter was not looked into at all by the
Consolidation Authorities. A misreading of
evidence in the form of two sale deeds
resulted in a finding being recorded against
the petitioner which was perverse to say the
least.

38. The impugned orders dated
28.01.2015, 12.06.2015 and 11.09.2015
deserves to be set aside and are set aside.

39. The writ petition is allowed.

40. The matter is remanded to the
Deputy Director of Consolidation to
consider the report dated 28.04.2015 of the
Assistant Consolidation Officer and also
the evidence if any to be produced by the
parties and to pass fresh order in
accordance with law. The entire exercise be
completed expeditiously, say, within a
period of six months from the date of
production of a copy of this order.
----------

(2021)08ILR A185
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.08.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 1473 of 1981

Azadar Hussain Khan & Ors. ...Petitioners
Versus
D.D.C. Faizabad & Ors. ...Respondents

Counsel for the Petitioners:
S.K. Mehrotra, Ishwar Dutt Shukla, Santosh
Kumar Mehrotra

Counsel for the Respondents:
C.S.C., Rajeshwar, Rakesh Kumar Nayak
186 INDIAN LAW REPORTS ALLAHABAD SERIES
A. UP Consolidation of Holdings Act, 1953 -
Sections 9(2) & 11(1) - Administration of
Justice - Hierarchy of Courts - Remand of
the matter by the Superior court on particular
issue - Inferior court decided the other issue
also - Legality thereof - Appellate authority,
to whom the case was remanded, travelled
beyond the term of remand and considered
the issues which were neither considered by
the superior court nor the matter was
remanded to consider the same - Held, the
appellate authority considered and decided
the case without authority of law - High
Court quashed the impugned orders holding
it not sustainable in the eyes of law. (Para 16
and 26)
B. Land Record Manual - Paragraphs 89-A,
89-B & 102-B - Ownership - Adverse
possession - Claim - Three 'neck' nec vi,
nec clam and nec precario - Proof thereof
- Party, who is claiming on the basis of
adverse possession in some property, is to
prove as to the date, time and manner in
which he entered into possession and
when the possession converted into open,
hostile and adverse - A person claiming
title by adverse possession has to prove
three 'neck' nec vi, nec clam and nec
precario. In other words, he must show
that
his
possession
is
adequate,
in
continuity, in publicity and in extent.
(Para 18 and 22)
C.
Court's
procedure
-
No
counter
Affidavit filed - Allegations made in the
writ petition are uncontroverted - Effect -
Held, it can be safely presumed that the
allegations made in the writ petition are
true
otherwise
it
would
have
been
rebutted by the other side. (Para 25)
Writ petition allowed. (E-1)
Cases relied on :-
1. Rama Kant Vs Board of Revenue, U.P. at
Allahabad & ors., 2005(23) LCD 1057
2. Radha Raman Samanta Vs Bank of India,
2004 (1) SCC 605
3. Paper Products Ltd. Vs Commissioner of
Central Excise, Mumbai, 2007 (7) SCC 352
4. S. Ravindra Singh & anr. Vs 3rd A.D.J.,
Faizabad & ors., 1994(12) LCD 820
5. Pramod Kumar Chaturvedi Vs St. of U.P. &
ors., 2006 (24) LCD 1364
6. Indrapal Singh Vs The Deputy Director of
Consolidation Kheri & anr., 2019 (37) LCD 1233
7. Ishwarchand etc. Vs Board of Revenue U.P.
at Allahabad & ors., 2019 (142) RD 676
8. Ravinder Kaur Grewal Vs Manjit Kaur, AIR
2019 SC 3827
9. Chandrika (Dead) by LRs Vs Sudama (Dead)
through LRs, AIR 2919 SC 2119
10. Deepak Tandon Vs Rajesh Kumar Gupta,
AIR ONLINE 2019 SC 72
11. Writ-B No. 98 of 1976, Mohd. Musthfa Vs
Deputy Director of Consolidation & ors.,
12. Writ-B No. 1440 of 2019, Ami Chand & anr.
Vs Deputy Director of Consolidation & 18 ors.
13. Mohan Lal Vs Anandibai & ors., AIR 1971 SC
2177
14. Mohd. Raza Vs Deputy Director of
Consolidation & anr., R.D. 1997 (R.D.) 276
15. Gurumukh Singh & ors. Vs Deputy Director
of Consolidation, Nainital & ors., 1997 (80) RD
276
16. Sadhu Saran & anr. Vs Assistant Director of
Consolidation, Gorakhpur & ors., 2003 (94) RD
535
17. P.T. Munichikkanna Reddy & ors. Vs
Revamma & ors., 2008 (26) LCD 15
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri I.D. Shukla, learned
counsel for the petitioners, Shri Rajeshwar,
learned counsel for legal heirs of opposite
party no.3 i.e. 3/a and 3/b. Notice on behalf
of opposite party no.1 and 2 has been
accepted by the learned Chief Standing
Counsel.
8 All. Azadar Hussain Khan & Ors. Vs. D.D.C. Faizabad & Ors.
187

2. This petition has been filed
challenging the judgment and order dated
05.03.1979 passed by the Settlement
Officer Consolidation under Section 11(1)
of the Consolidation of Holdings Act 1953
( here-in-after referred as the Act of 1953)
and
the
judgment
and
order
dated
09.12.1980 passed by the Deputy Director
of Consolidation, Faizabad.

3. The facts, in brief, for adjudication
of the present controversy are that the plot
no.486/1 area 17 biswa and 10 dhur of
Khata No.15 situated in village Simai
Mohiapur, Pargana and Tehsil Akbarpur,
District Faizabad was recorded in the name
of Tazdar Khan, father of the petitioners as
'bhumidhar' in the basic year. The land in
dispute was initially recorded in the name
of
one
Zahoor
Khan,
which
was
subsequently came to be recorded in the
name of Smt. Samagira. It was sold by
Smt.Samagira by a registered sale deed
dated 01.09.1965 to the father of the
petitioners. Three objections were filed
under Section 9(2) of the Act of 1953. One
by Atta Abbas with the allegation that the
sale deed executed by Smt. Samagira was
not valid. Second objection was filed by
Shiv Raj- opposite party no.3 (now dead
and substituted by legal heirs) claiming the
land in dispute on the basis of adverse
possession. The third objection was filed by
one Dhanju in respect of plot no.627. The
petitioners filed objection to the objections
claiming
the
entire
property.
The
Consolidation Officer held Atta Abbas
entitled to half share in land in dispute
alongwith Tazdar Khan and also allowed in
favour of the opposite party no.3 Shiv Raj
and Dhanju by means of order dated
16.01.1972.

4.

The
order
passed
by
the
Consolidation Officer was challenged in
four appeals filed by one Atta Abbas and
three by Tazdar Khan, the father of the
petitioners. The appeals were decided by
the
Assistant
Settlement
Officer
Consolidation by means of order dated
13.03.1972 by a common judgment. The
appeals of Tazdar Khan, father of the
petitioners were allowed and the appeal
filed by Atta Abbas was dismissed and the
name of Tazdar Khan, father of the
petitioners was directed to be continued in
the revenue records. A revision was filed
by Atta Abbas, Dhanju and Shiv Raj i.e.
opposite
party
no.3
bearing
revision
No.1640 under Section 48 of the Act of
1953 before the Deputy Director of
Consolidation, which was decided by the
Joint Director of Consolidation by means
of order dated 18.03.1976 and the matter
was remanded to the Assistant Settlement
Officer Consolidation to decide a fresh in
regard to the two issues considered and
examined
by
the
Joint
Director
of
Consolidation.

5. The learned Settlement Officer
Consolidation
reconsidered
the
entire
dispute including the present dispute with
the opposite party no.3 and allowed the
appeal of Tazdar Khan in whose place the
petitioners were substituted in appeal on his
death with respect to the dispute between
them and Atta Abbas and the appeal of Atta
Abbas was dismissed. The appeal of Tazdar
Khan against the opposite party no.3 and
others in regard to the present dispute was
also dismissed. The appeal of Tazdar Khan
against
Dhanju
was
also
allowed.
Aggrieved by the aforesaid order a revision
was filed by the petitioners and another
revision was filed by Atta Abbas. Both the
revisions were dismissed by means of order
dated 09.12.1980 by the Deputy Director of
Consolidation. Hence the instant writ
petition has been filed.
188 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Learned counsel for the petitioners
had submitted that four appeals, one by
Atta Abbas and three by Tazdar Khan,
father of the petitioners were decided by a
common
judgment
and
order
dated
13.03.1972. One revision No.1640 under
Section 48 of the Act of 1953 was filed by
all the three, but the revision was decided
only in regard to two issues considered
with regard to the revision of Atta Abbas
and the matter was remanded to reconsider
and decide a fresh in regard to the said two
issues.
But
the
Settlement
Officer
Consolidation reconsidered the entire case,
as such he travelled beyond the term of
remand which could not have been done.
The revision filed by the petitioners has
also been dismissed without considering it
and the grounds raised by the petitioners.
Therefore the orders passed by the court's
below are illegal and without authority of
law and not sustainable in the eyes of law.

7. He further submitted that the
opposite party no.3 had not challenged the
order passed in revision no.1640 dated
18.03.1976, therefore the case of the
opposite party no.3 could not have been
reconsidered, even if the order was
quashed, because his case was neither
considered in revision nor remanded to
decide a fresh. He further submitted that
the case of opposite party no.3 was not
proved as alleged entry was made in his
favour on the basis of adverse possession
without following the due procedure and
issuance of PA-10 in accordance with law.
Therefore, the case of opposite party no.3
was not tenable at all in the eyes of law but
without considering it, his objection has
been allowed. The grounds raised in the
present writ petition by the petitioners are
uncontroverted as no counter affidavit has
been filed. In view of above the writ
petition is liable to be allowed and the
impugned orders are liable to be quashed
and the names of petitioners are liable to be
recorded and continued in the revenue
records. In support of his contentions
learned counsel for the petitioners has
relied on Rama Kant Versus Board of
Revenue, U.P. at Allahabad and others;
2005(23) LCD 1057, Radha Raman
Samanta Versus Bank of India; 2004 (1)
SCC 605, Paper Products Limited versus
Commissioner
of
Central
Excise,
Mumbai; 2007 (7) SCC 352, S.Ravindra
Singh and another Versus 3rd Addl.
District Judge, Faizabad and others;
1994(12) LCD 820, Pramod Kumar
Chaturvedi Versus State of U.P. and
others; 2006 (24) LCD 1364, Indrapal
Singh Versus The Deputy Director of
Consolidation Kheri and another; 2019
(37) LCD 1233 and Ishwarchand etc.
Versus Board of Revenue U.P. at
Allahabad and others; 2019 (142) RD
676.

8. Per contra, learned counsel for the
opposite party no.3 submitted that the
petitioners have not come with clean hands.
The courts below considered the case of the
opposite party no.3 in accordance with law
and allowed the objections of opposite
party no.3 after remand and the order
passed by the Assistant Settlement Officer
Consolidation was set aside by the Joint
Director of Consolidation with costs. The
opposite party no.3 was claiming on the
basis of adverse possession which has
rightly been considered by the courts below
and allowed. Therefore, the concurrent
finding recorded by the Court's below in
favour of opposite party no.3 cannot be
interfered with and set aside by this court.
The writ petition has been filed on
misconceived and baseless grounds. It is
liable to be dismissed with costs. In support
of his contentions learned counsel for the
8 All. Azadar Hussain Khan & Ors. Vs. D.D.C. Faizabad & Ors.
189
opposite party no.3 has relied on Ravinder
Kaur Grewal Versus Manjit Kaur; AIR
2019 Supreme Court 3827, Chandrika
(Dead) by LRs versus Sudama (Dead)
through LRs; AIR 2919 Supreme court
2119, Deepak Tandon Versus Rajesh
Kumar Gupta; AIRONLINE 2019 SC
72, Mohd. Musthfa Versus Deputy
Director of Consolidation and others;
Writ-B No.98 of 1976 and Ami Chand
And another Versus Deputy Director of
Consolidation and 18 others; Writ-B
No.1440 of 2019.

9. I have considered the submissions
of learned counsels of the parties and
perused the documents and orders placed
on record.

10. The land in question was initially
recorded in the name of one Jahoor Khan,
which was subsequently came to be
recorded in the name of Smt. Samagira
after
litigation.
She
had
got
the
'bhumidhari' rights after depositing 10
times. She sold the same by a registered
sale deed dated 01.09.1965 to Tazdar Khan
i.e. father of the petitioners. Three
objections were filed under Section 9(2) of
the Act of 1953. The petitioners filed their
objections to the objections claiming the
entire property. The Consolidation Officer
allowed the objection holding Atta Abbas
entitled to half share alongwith Tazdar
Khan and also in favour of opposite party
no.3 Shiv Raj and Dhanju by means of
order dated 16.01.1972. The order passed
by
the
Consolidation
Officer
was
challenged in four appeals, out of which
one was filed by Atta Abbas and three by
Tazdar Khan. The appeals were decided by
the
Assistant
Settlement
Officer
Consolidation by means of order dated
13.03.1972 by a common judgment. The
appeals of Tazdar Khan, father of the
petitioners were allowed and the appeal
filed by Atta Abbas was dismissed and the
name of Tazdar Khan father of the
petitioners was directed to continue in the
revenue records.

11. A common revision was filed by
Atta Abbas, Dhanju and Shiv Raj i.e.
opposite party no.3 The revision was
considered by the Joint Director of
Consolidation and decided by means of
judgment and order dated 18.03.1976. The
revisional authority after recording the facts
of the case of Atta Abbas against Tazdar
Khan observed in paragraph 3 that mainly
two issues are for consideration. No.1; as to
whether giving of half share each to both
the parties in the land in dispute by the
Consolidation Officer is justified. No.2; as
to whether the order passed by the
Assistant Settlement Officer Consolidation,
for continuation of the name of Tazdar
Khan recorded in the basic year treating the
sale deed valid in regard to the land in
dispute, was appropriate. Thereafter after
considering the same it was held that the
Assistant Settlement Officer Consolidation
has failed to examine certain aspects,
therefore he would decide again after
calling the relevant files in regard to both
the
issues.
Accordingly
allowed
the
revision and quashed the order passed by
the
Assistant
Settlement
Officer
Consolidation and remanded the matter.
Therefore it is apparent that the Revisional
Authority had considered the case of only
Atta Abbas against Tazdar Khan and the
two issues involved in the said case and
thereafter remanded the matter for a fresh
consideration. Therefore, the appellate
authority was required to re-consider only
the said issues. The other issues including
the case of opposite party no.3 were neither
considered by the revisional authority nor
the case was remanded for re-consideration
190 INDIAN LAW REPORTS ALLAHABAD SERIES
of the same. Therefore the other issues
including the case of opposite party no.3
were neither required to be considered nor
could have been considered by the
appellate authority.

12. After remand the appellate
authority re-considered all the four appeals
and dismissed the appeal of Atta Abbas
against Tazdar Khan and the appeal of
Tazdar Khan against Shiv Raj i.e. opposite
party no.3 and others and allowed the
appeal of Tazdar Khan and directed that the
name of heirs of Tazdar Khan shall
continue in accordance with the basic year.
The right of Dhanju was rejected. There
was no direction in regard to the opposite
party no.3 i.e. Shiv Raj but his case was
also considered and the appeal against him
was dismissed, which could not have been
done. The opposite party no.3, if aggrieved
against the revisional order, could have
challenged
the
same
in
appropriate
proceedings, but it was not challenged by
him.

13. In the case of Rama Kant Versus
Board of Revenue and others (Supra)
this court has held that the defiance to carry
out the directions issued by the superior
Court or tribunal is in effect denial of
justice and is destructive of the basic
principles of the administration of justice
based on hierarchy of Courts in our
country. It has further been held that the
order of remand became final between the
parties as the same was not challenged. The
relevant paragraphs 7 and 8 are extracted
below:-

"7. It is not open to an inferior
Court or Tribunal to refuse to carry out the
directions or to act contrary to directions
issued by a superior Court or Tribunal.
Such refusal to carry out the directions or
to act in defiance of the directions issued
by the superior Court or Tribunal is in
effect denial of justice and is destructive of
the basic principle of the administration of
justice based on hierarchy of Courts in our
country. If a subordinate Court or Tribunal
refuses to carry out the directions given to
it by a superior Court or Tribunal in
exercise of its appellate power, the result
would be chaos in the administration of
justice.

8. The order of remand dated
22.11.1979, became final between the
parties an same was not challenged. Thus,
it was not open to the trial court being an
inferior court to reframe fresh issues and to
record fresh findings. The only course open
to the trial court was to give finding on the
two issues reframed by the first appellate
court and decide the suit accordingly as
directed in the order of remand. The trial
court exceeded its jurisdiction by travelling
beyond directions contained in the remand
order and this vital aspect have been
illegally ignored by the court of first appeal
as well as second appeal."

14. The Hon'ble Supreme Court, in
the case Radha Raman Samanta Versus
Bank of India (Supra), has held that once
issues might and ought to have been raised
but had not been done so, it must be taken
that the Division Bench had rejected such
contentions. Therefore, on remand the
learned single judge was bound to address
only on one issue upon which the matter
had been remanded. The relevant paragraph
12 is extracted below:-

"12. On the earlier occasion when
the matter was considered by the Division
Bench, the respondent Bank did not raise
any issue of alternative remedy or any
question relating to non-maintainability of
the writ petition. We may also notice that
8 All. Azadar Hussain Khan & Ors. Vs. D.D.C. Faizabad & Ors.
191
when such issues might and ought to have
been raised but had not been done so, it
must be taken that the Division Bench had
rejected such contentions and the order of
the Division Bench remanding the matter to
the learned Single Judge was not carried in
appeal and became final. Therefore, the
learned Single Judge was bound to address
only on one issue upon which the matter
had been remanded. Thus, the Division
Bench could not have overlooked these
facts in the appeal arising from the order of
the learned Single Judge on the second
occasion after remand and need not have
gone into the question as to whether the
writ petition could have been entertained at
all or not. Therefore, we are of the view
that the High Court could not have
overlooked these facts and interfered with
the order of the learned Single Judge."

15. The Hon'ble Supreme Court, in
the case of Paper Products Limited
Versus Commissioner of Central Excise,
Mumbai (Supra), considered the scope of
limited remand and the case of Mohan Lal
V. Anandibai and others; AIR 1971 SC
2177. The relevant paragraph 10 is
extracted below:-

"10. A bare reading of para 10
makes the position clear that it only related
to the particular plea and no other plea
which was covered by para 8. The scope of
limited remand has been highlighted by this
Court in Mohan Lalv.Anandibai[(1971) 1
SCC 813 : AIR 1971 SC 2177] . It was
observed at para 9 as follows: (SCC pp.
821-22)

"9. Lastly, counsel urged that
now that the suit has been remanded to the
trial court for reconsidering the plea of res
judicata, the appellant should have been
given an opportunity to amend the written
statement so as to include pleadings in
respect of the fraudulent nature and
antedating of the gift deed Exhibit P-3.
These questions having been decided by
the High Court could not appropriately be
made the subject-matter of a fresh trial.
Further, as pointed out by the High Court,
any suit on such pleas is already timebarred and it would be unfair to the
plaintiff-respondents to allow these pleas to
be raised by amendment of the written
statement at this late stage. In the order, the
High Court has stated that the judgments
and decrees and findings of both the lower
courts were being set aside and the case
was being remanded to the trial court for a
fresh decision on merits with advertence to
the remarks in the judgment of the High
Court. It was argued by learned counsel
that, in making this order, the High Court
has set aside all findings recorded on all
issues by the trial court and the first
appellate court. This is not a correct
interpretation of the order. Obviously, in
directing that findings of both courts are set
aside, the High Court was referring to the
points which the High Court considered
and on which the High Court differed from
the lower courts. Findings on other issues,
which the High Court was not called upon
to consider, cannot be deemed to be set
aside by this order. Similarly, in permitting
amendments, the High Court has given
liberty to the present appellant to amend his
written statement by setting out all the
requisite particulars and details of his plea
of res judicata, and has added that the trial
court may also consider his prayer for
allowing any other amendments. On the
face of it, those other amendments, which
could be allowed, must relate to this very
plea of res judicata. It cannot be interpreted
as giving liberty to the appellant to raise
new pleas altogether which were not raised
at the initial stage. The other amendments
have to be those which are consequential to
192 INDIAN LAW REPORTS ALLAHABAD SERIES
the amendment in respect of the plea of res
judicata."

16. In view of above, once limited
issues were considered by the superior
court and the matter was remanded to reconsider on the said issues the inferior
court cannot travel beyond those issues and
consider and decide the other issues and the
whole case. If a person, whose issues were
not considered, was aggrieved by the term
of remand, could have challenged the same.
But in the present case the appellate
authority, to whom the case was remanded,
travelled beyond the term of remand and
considered the issues which were neither
considered by the superior court nor the
matter was remanded to consider the same.
Therefore, this court is of the considered
view that the appellate authority considered
and decided the case of opposite party no.3
without authority of law. This was also not
considered by the revisional authority on
being challenged. Therefore the orders are
not sustainable in the eyes of law.

17.

Adverting
to
the
second
submission of learned counsel for the
petitioners that the case of the opposite
party no.3 was also not proved as alleged
entry was made in his favour on the basis
of the adverse possession without following
the due procedure and issuance of PA-10 in
accordance with law, this court finds that
after remand the appellate authority has
mentioned that during Padtal the possession
of Shiv Raj was found and only Tazdar
Khan has come to deny the possession of
Shiv Raj, whereas by the oral evidence the
possession of Shiv Raj was proved and the
oral evidence cannot be ignored. Tazdar
Khan also does not know the area and
number of the plot. The possession of Shiv
Raj is found from the time of Zahoor.
Therefore, in his opinion, the Consolidation
Officer has rightly found Shiv Raj as
Sirdar. Admittedly the opposite party no.3
was claiming on the basis of adverse
possession. The oral evidence of Kaledin,
Saidu and Nusrat Jahan filed by the
petitioners alongwith writ petition indicates
that none of them have admitted the
possession of the opposite party no.3,
rather Saidu and Nusrat Jahan have
specifically denied the possession of
opposite party no.3 and the same are
uncontroverted.

18. The party who is claiming, on the
basis of adverse possession in some
property, is to prove as to the date, time and
manner in which he entered into possession
and when the possession converted into
open, hostile and adverse. The claim under
Clause 9 on the basis of adverse possession
is not tenable at all unless it is proved that
the entry was strictly in accordance with
the provisions of the Land Record Manual
and thereafter the notice was sent to the
recorded tenure holder. A joint reading of
paragraph 89-A, 89-B and 102-B of the
Land Records Manual makes it clear that if
any entry is made in PA-10 the same is
required to be communicated to the person
or persons concerned or their heirs and
their signatures are required to be taken on
the communication. It was further required
to be reviewed by the Revenue Inspector at
the time of verification (Padtal) as to
whether the signatures of the recipient has
been obtained or not. Therefore in case any
entry made on the basis of adverse
possession
the
same
has
to
be
communicated to the person concerned and
the person claiming on the basis of said
entry is required to prove that it was in
accordance with the Land Records Manual.
Therefore it was required to be proved by
the opposite party no.3, but he failed to do
so.
8 All. Azadar Hussain Khan & Ors. Vs. D.D.C. Faizabad & Ors.
193

19. This Court considered this issue in
the case of Mohd. Raza Vs. Deputy
Director of Consolidation and Another;
R.D. 1997 (R.D.) 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.

20. This court, in the case of
Gurumukh Singh and Others Vs. Deputy
Director of Consolidation, Nainital and
Others; 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. In the case of Sadhu
Saran
and
Another
Vs.
Assistant
Director of Consolidation, Gorakhpur
and Others; 2003 (94) RD 535, this court
held that it is well settled in law that the
illegal entry does not confer title. The
Hon'ble Apex Court, in the case of P.T.
Munichikkanna Reddy and Others Vs.
Revamma and Others; 2008 (26) LCD
15, has held that in case of adverse
possession, communication to the owner
and his hostility towards the possession is
must.

21. This Court, in the case of
Indrapal Singh Versus the Deputy
Director of Consolidation, Kheri and
another (Supra) considering the case
relied by the petitioners in the case of
Ishwarchand etc. Versus Board of
Revenue U.P. at Allahabad (Supra), has
held that the party laying his claim on the
basis of adverse possession in some
property has to prove as to the date, time
and manner in which possession is
converted into open, hostile and adverse.
Relevant paragraphs 29, 30, 31 and 32 are
extracted below:-

"29. A party laying his claim on
the basis of adverse possession in some
property has to prove as to the date, time
and manner in which possession is
converted into open, hostile and adverse. In
the case of Marwari Kumhar and others vs.
Bhagwanpuri
Guru
Ganeshpuri
and
another, reported in [MANU/SC/0501/2000
: (2000) 6 SCC 735], Hon'ble Supreme
Court has held that in absence of any proof
as to the date, time and the manner in
which possession gets converted into open,
hostile and adverse, the claim for adverse
possession can not be upheld.

30. Thus, Court in its latest
judgment in the case of Ishwarchand vs.
Board of Revenue U.P. at Allahabad and
others, reported in [2019 (142) RD 676]
has, in paragraph 17 observed as under:

"17. In my considered opinion,
this argument cannot be accepted because
possession can also be permissive. Till such
time, it is proved that the Lekhpal had
made the entry under Class 9 strictly in
accordance with the provisions of the Land
Records Manual and thereafter, a notice
was sent to the recorded tenure holder in
PA-10, no claim for adverse possession,
could have been decreed."

31. Thus, from the aforequoted
authorities, it is clear that to succeed in a
claim based on adverse possession the
parties so pleading must prove that
possession was continuous, open, in the
notice and knowledge of the other party
against which such possession is claimed
and hostile. The adverse possession thus,
needs to be proved on the basis of evidence
and in case of adverse possession being
claim in landed property in the State of
194 INDIAN LAW REPORTS ALLAHABAD SERIES
Uttar Pradesh, as has been held by this
Court in the case of Mata Badal Singh and
others (supra) adverse possession must be
proved after producing PA-10 and after
summoning PA-24.

32. So far as the order passed by
the Consolidation Officer in this case on
05.08.1988 is concerned, except for the
statement of the petitioner-Indra Pal Singh
and one of his witnesses, who have stated
that initially Shreepal and thereafter Indra
Pal Singh forcibly took possession of the
land in question, there was no other
relevant documentary evidence available.
PA-10 and PA-24 to prove column-9
entry, that too, in the name of Shreepal,
have not been filed, neither were they
summoned. It is further noticeable that the
order dated 05.08.1988 passed by the
Consolidation Officer also takes into
account a compromise said to have been
entered into between Indra Pal Singh and
Babu Ram. If the claim is based on
adverse
possession
and
the
original
recorded tenure holder himself stated
before the Consolidation Officer by way
of compromise that Indra Pal Singh has
been
in
possession,
the
necessary
ingredients of adverse possession cannot
be said to be proved. On account of
procedural lapse where objection filed by
the petitioner and objection filed by the
respondent No. 2 were not clubbed
together, the claim of respondent No. 2 on
the basis of sale deed is being denied. The
Consolidation Officer in his order dated
02.05.2012 has taken into account all the
aforesaid aspects of the matter, specially
the observations made by the Settlement
Officer, Consolidation in his order dated
30.03.1991 and has thus allowed the
revision petition by setting aside the
orders dated 21.11.2001 and 20.08.2003
passed by the Consolidation Officer and
Settlement Officer, Consolidation."

22. In the judgment relied by learned
counsel for the opposite party no.3, in the
case of Ravinder Kaur Grewal Versus
Manjit Kaur (Supra), also it has been
held that the law with regard to perfecting
title by adverse possession is well-settled.
A person claiming title by adverse
possession has to prove three "neck" nec vi,
nec clam and nec precario. In other words,
he must show that his possession is
adequate in continuity in publicity and in
extent.

23. The third submission of the
learned counsel for the petitioner was that
since the opposite party no.3 has not filed
any counter affidavit, therefore, the pleas
taken in the writ petition are to be taken
correct. Once the plea has been taken and
no counter affidavit has been filed raising
any objection, that has to be taken correct
on the face of it, if they does not otherwise
seem to be incorrect on the basis of
pleadings on record. This court, in the case
of S.Ravindra Singh and another Versus
3rd Addl. District Judge, Faizabad
(Supra), has held that the allegations have
to be taken as having been admitted or in
any case, the allegations go uncontroverted.
This is well settled principle of law that
allegations of fact made on affidavit by a
party when require to be controverted by
affidavit have not been denied and
continued have got to be taken to have been
admitted to be correct. The relevant
paragraph 24 is extracted below:-

"24. A perusal of order-sheet per
se shows that after the filing of the
objections by the petitioners, the date of
evidence was fixed and the parties had filed
documentary evidence, no oral evidence
was sought to be produced and nor the
parties did seek to produce and to adduce
any oral evidence. As I have mentioned
8 All. Dharmraj Vs. D.D.C. Faizabad & Ors.
195
earlier the allegations made in paragraph 14
of the counter-affidavit have not been
controverted or denied by the petitioners in
their rejoinder-affidavit. The allegations
have to be taken as having been admitted or
in
any
case,
the
allegations
go
uncontroverted.
This
is
well
settled
principle of law that allegations of fact
made on affidavit by a party when require
to be controverted by affidavit have not
been denied and continued have got to
taken to be have been admitted to be
correct. In the case of Juggi Lal Kamla Pat
v. Ram Janki Gupta and another, reported
in MANU/UP/0101/1962 : AIR 1962 Alld
407, it has been laid down by this High
Court as under:--

"A statement on oath, whether
true or false, has to be met by a counteraffidavit in reply, or by challenging the
statement by cross-examining the deponent.
If that is not done, it would be presumed
that the allegations, if untrue would have
been rebutted by the other side."

24. This court, in the case of
Pramod Kumar Chaturvedi Versus
State of U.P. and others (Supra), has
held that when the counter affidavit was
not filed, it is axiomatic that the
respondents no.4 has nothing to say
against the allegations and therefore the
averments,
by
reason
of
remaining
uncontroverted have to be treated as
correct in view of law laid down by the
Apex Court in its decision reported in AIR
1973 SC 627, 1982 SCC (2) 471 and 1987
SCR (4) 73.

25. In view of above since no
counter affidavit has been filed by the
opposite party no.3, the allegations made
in the writ petition are uncontroverted and
it can be safely presumed that the
allegations made in the writ petition are
true otherwise it would have been rebutted
by the other side.

26. In view of above and considering
the overall facts and circumstances of the
case the other judgments relied by learned
counsel for the opposite parties are of no
assistance to him and are distinguishable.
This court is of the considered opinion that
the impugned judgment and orders have
been passed in illegal manner beyond the
term of remand and without authority of
law and recording erroneous and perverse
findings without application of mind.
Therefore, the same are not sustainable in
the eyes of law and are liable to be
quashed.

27. The writ petition is, accordingly,
allowed. The judgment and order dated
05.03.1979, passed by the Settlement
Officer
Consolidation,
Faizabad,
contained in annexure no.3 to the writ
petition and judgment and order dated
09.12.1980, passed by the Deputy Director
of Consolidation, contained in Annexure
no.4 to the writ petition are hereby
quashed. The consequences shall follow
accordingly as per law. No order as to
costs.
----------
(2021)08ILR A195
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.07.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Consolidation No. 4584 of 1987

Dharmraj ...Petitioner
Versus
D.D.C. Faizabad & Ors. ...Respondents

Counsel for the Petitioner: