# Babu Ali & Anr v. D.D.C. & Ors

- **Citation:** (2021) 9 ILRA 1096
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-07
- **Case number:** Consolidation No. 788 of 1986
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-ali-anr-v-d-d-c-ors-47337
- **Pages:** 10

## Headnote

C.S.C., Ashish Jaiswal, D.C. Mukarjee, S.
Mirza, Surendra Pal Singh

A. Adverse possession - Land Records
Manual - Para-89-A, 89-B & 102-B - Form
No. PA-10 - if any entry is made in Form
No.
PA-10,
the
same
is
to
be
communicated to the persons concerned,
recorded in columns 3 and 4 or their heirs,
by the Lekhpal and is required to obtain
their signatures in the copy of the list
retained by him - If PA-10 notice is not
served on the main tenant, such entries
are of no evidentiary value and would not
confer any right - illegal entry does not
confer title - 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 - burden to
prove that the entries is in accordance
with the provisions of Land Record Manual
is on the person who is asserting the
possession
on
the
basis
of
adverse
possession (Para 12, 13, 14, 15)

B. Adverse possession - in case of adverse
possession, communication to the owner
and his hostility towards the possession is
must - there shall not be presumption of
continuous
on
the
basis of
adverse
possession unless year to year entries is
made, in accordance with law, in the
9 All Babu Ali & Anr. Vs. D.D.C. & Ors.
1097
Khasra or Khatauni and is proved by
cogent and trustworthy evidence - 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 (Para 16, 17)

Father of petitioner 'Kallu' was recorded tenure
holder in basic year Khatauni - Petitioner filed
objection for recording the name being legal
heir - opposite party no.3 Rasool filed objection
claiming the plots in dispute on the basis of
adverse possession - Held - In case the entry
was made in the name of the opposite party
no.3 under clause-9 on the basis of PA-10 it was
incumbent upon the opposite party no.3 to
prove by adducing cogent evidence that the
same was made in accordance with law and the
PA-10 was served on the original tenure holder -
Respondent failed to prove as to when the
opposite party no.3 entered into the possession
in the knowledge of the petitioner and
continued his possession for the required period
- Claim on the basis of adverse possession not
sustainable. (Para 20)

Allowed. (E-5)

List of Cases cited :

## Text

1096 INDIAN LAW REPORTS ALLAHABAD SERIES
be passed on merits, in the absence of their
being any settlement or compromise
between the parties.

23. Submission of Ms. Shikha Sinha
that the application for transfer to Lok
Adalat can be filed by any of the parties
does not require any consideration in the
present case, as no such issue is involved,
whether the transfer was made on the
application of one party or the other, and as
the fact remains undisputed that the case
was transferred to the Lok Adalat. The
transfer of case to the Lok Adalat from the
court of Deputy Director of Consolidation
is also not under challenge.

24. For the aforesaid reasons, the
impugned order dated 20.05.1998 cannot
be sustained and is hereby quashed.

25. The revision filed by opposite
party no. 2 stands restored to its original
number before the Deputy Director of
Consolidation, Faizabad, which shall be
proceeded with and decided in accordance
with law after affording opportunity of
hearing to all the parties concerned,
expeditiously, as the matter pertains to the
year 1998, preferably within a period of six
months from the date of production of copy
of this judgment before the said authority.

26. In the interest of justice, it is
further provided that for a period of six
months or till decision of the revision by
the Deputy Director of Consolidation,
whichever is earlier, the possession of the
petitioner over half of the plot no. 555/1
shall not be disturbed.

27. The writ petition is allowed with
the aforesaid observation/direction.
----------
(2021)09ILR A1096
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.09.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 788 of 1986

Babu Ali & Anr. ...Petitioners
Versus
D.D.C. & Ors. ...Respondents

Counsel for the Petitioners:
R.K. Sharma, D.K. Trivedi, Dwijendra
Mishra, U.K. Pandey

Counsel for the Respondents:
C.S.C., Ashish Jaiswal, D.C. Mukarjee, S.
Mirza, Surendra Pal Singh

A. Adverse possession - Land Records
Manual - Para-89-A, 89-B & 102-B - Form
No. PA-10 - if any entry is made in Form
No.
PA-10,
the
same
is
to
be
communicated to the persons concerned,
recorded in columns 3 and 4 or their heirs,
by the Lekhpal and is required to obtain
their signatures in the copy of the list
retained by him - If PA-10 notice is not
served on the main tenant, such entries
are of no evidentiary value and would not
confer any right - illegal entry does not
confer title - 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 - burden to
prove that the entries is in accordance
with the provisions of Land Record Manual
is on the person who is asserting the
possession
on
the
basis
of
adverse
possession (Para 12, 13, 14, 15)

B. Adverse possession - in case of adverse
possession, communication to the owner
and his hostility towards the possession is
must - there shall not be presumption of
continuous
on
the
basis of
adverse
possession unless year to year entries is
made, in accordance with law, in the
9 All Babu Ali & Anr. Vs. D.D.C. & Ors.
1097
Khasra or Khatauni and is proved by
cogent and trustworthy evidence - 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 (Para 16, 17)

Father of petitioner 'Kallu' was recorded tenure
holder in basic year Khatauni - Petitioner filed
objection for recording the name being legal
heir - opposite party no.3 Rasool filed objection
claiming the plots in dispute on the basis of
adverse possession - Held - In case the entry
was made in the name of the opposite party
no.3 under clause-9 on the basis of PA-10 it was
incumbent upon the opposite party no.3 to
prove by adducing cogent evidence that the
same was made in accordance with law and the
PA-10 was served on the original tenure holder -
Respondent failed to prove as to when the
opposite party no.3 entered into the possession
in the knowledge of the petitioner and
continued his possession for the required period
- Claim on the basis of adverse possession not
sustainable. (Para 20)

Allowed. (E-5)

List of Cases cited :

1.
Mohd.
Raza
Vs
Deputy
Director
of
Consolidation & anr. R.D. 1997 (R.D.) 276

2. Gurumukh Singh & ors. Vs Deputy Director of
Consolidation, Nainital & ors. 1997 (80) RD 276

3. Sadhu Saran & anr. Vs Assistant Director of
Consolidation, Gorakhpur & ors. 2003 (94) RD
535

4. Putti & ors. Vs Assistant Director of
Consolidation, Bahraich & ors. (2007) 2 All ALJ
43

5. P.T. Munichikkanna Reddy & ors. Vs
Revamma & ors. 2008 (26) LCD 15

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri Dwijendra Mishra,
learned counsel for the petitioners and Shri
Ashish Jaiswal, learned counsel for the
legal heirs of opposite party no.3 i.e.
opposite parties no.3/1/1 to 3/4/7. Notice
on behalf of opposite parties no.1 and 2 has
been accepted by learned Chief Standing
Counsel.

2. This petition has been filed
challenging the orders dated 05.11.1981
and
22.05.1984
passed
by
Assistant
Settlement Officer of Consolidation and
order dated 28.11.1985 passed by the
Deputy Director of Consolidation, Sitapur.

3. The dispute in the instant writ
petition relates to Khata No.123, consisting
of Plot Nos. 2100/2, 2101/1 measuring
0.70, 2113
measuring
0.5
and 244
measuring 0.46, which was recorded in the
basic year Khatauni in the name of Kallu,
the father of the petitioner Mohd. Hussain
@ Ghamar, who has now been substituted
by his legal heir after his death. Mohd.
Hussain @ Ghamar had filed an objection
during consolidation that he was the son of
Kallu, therefore his name be recorded on
the plots in dispute. One Sukai filed an
objection claiming rights on the basis of
adverse possession but later on he gave a
statement and his objection was rejected by
the Consolidation Officer. No appeal or
revision was filed by him. The opposite
party no.3 Rasool now deceased and
substituted by his legal heirs in the present
writ petition had filed an objection
claiming the plots in dispute on the basis of
adverse possession. The Consolidation
Officer, after considering the oral and
documentary
evidence,
rejected
the
objections of the opposite party no.3
holding that he has failed to prove his
continuous adverse possession on the plots
in dispute and directed to record the name
of the petitioner being the son and legal
heir of the deceased Kallu. The opposite
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
party no.3 filed an appeal which was
allowed ex-parte by means of the order
dated 05.11.1981 and the order passed by
the Consolidation Officer was set-aside. It
was recorded in the order that the notice of
appeal has been returned with the refusal of
the petitioner. The petitioner moved an
application for recall of the order. The said
application was rejected in absence of the
petitioner on 19.03.1984. Therefore, the
petitioner
moved
an
application
for
restoration on 20.03.1984 on the ground
that the train of the petitioner was delayed
therefore he reached the court at about
05:00 P.M., when he came to know that his
application has been rejected and his
counsel had not come to court. The
opposite party no.2 rejected the application
for restoration filed by the petitioner by
means of the order dated 22.05.1984.
Thereafter the petitioner filed a revision
before
the
Deputy
Director
of
Consolidation i.e. opposite party no.1
challenging the order of rejection of the
restoration application. Another revision
was filed by the petitioner challenging the
original order dated 05.11.1981 passed by
the opposite party no.2 in appeal alongwith
an application under Section 5 and 14 of
the Limitation Act. The Consolidation
Officer, after hearing the parties, dismissed
the revisions by means of the order dated
28.11.1985. Hence the present writ petition
has been filed.

4. Learned counsel for the petitioner
had submitted that after death of father of
the petitioner Mohd. Hussain @ Ghamar,
the name of the petitioner was liable to be
recorded in the revenue records. Therefore,
he
had
filed
the
objection
during
consolidation
proceedings
which
was
allowed after considering the pleadings and
evidence holding that the petitioner is the
legal heir of deceased Kallu and the
opposite party no.3 has failed to prove his
adverse possession in accordance with law.
The appeal filed by the opposite party no.3
was allowed ex-parte because he, in
collision with the post man, had got the
notice of the appeal returned as refused. On
coming to know, the petitioner had filed an
application for recall but the same was
dismissed in absence of the petitioner
because he could not reach in time and his
counsel had not appeared in the court. But
the application filed by the petitioner, on
the very next date for recall of the order,
was arbitrarily and illegally rejected.
Therefore, the petitioner had filed the
revisions against the order passed on the
application for recall and the original order
passed in appeal. The revisions have also
been dismissed without considering the
grounds raised by the petitioner in arbitrary
and illegal manner recording perverse
findings.

5. Learned counsel for the petitioner
had further submitted that the name of the
opposite party no.3 has been directed to be
recorded on the basis of adverse possession
under clause-9 on the basis of PA-10.
While the same was not issued in
accordance with law and served on the
original tenure holder therefore it was
without following the procedure prescribed
under Land Records Manual and not
tenable in the eyes of law. Therefore, the
impugned orders are not sustainable and
liable to be quashed and the writ petition is
liable to be allowed.

6. Per contra, learned counsel for the
opposite parties had submitted that the
possession of the opposite party no.3 was
found in the basic year Khatauni on the
basis of adverse possession. The opposite
party no.3 had given evidence that he had
plowed the field treating his own but the
9 All Babu Ali & Anr. Vs. D.D.C. & Ors.
1099
Consolidation Officer had allowed the
objection without considering the evidence
adduced by the opposite party no.3. The
petitioner had not appeared before the
appellate court despite sufficient service.
Therefore, the appeal was rightly decided
ex-parte in accordance with law. The
Appellate Authority has held that the
possession of the opposite party no.3 is
recorded in accordance with PA-10. The
application for recall filed by the petitioner
was rightly rejected by opposite party no.3
as despite knowledge the opposite party
no.3 had not appeared, the revision filed by
the opposite party no.3 also has rightly
been
dismissed
considering
grounds/pleadings of the parties and
evidence. There is no illegality or infirmity
in the impugned orders. The writ petition is
misconceived and it is liable to be
dismissed.

7. I have considered the submissions
of learned counsel for the parties and
perused the record.

8. The father of the petitioner ''Kallu'
was the recorded tenure holder in the basic
year Khatauni. The petitioner had filed an
objection for recording the name being
legal heir. The objection filed by Sukai
claiming right on the basis of adverse
possession was rejected on his statement.
The opposite party no.3 Rasool (now
deceased) had filed an objection claiming
the plots in dispute on the basis of adverse
possession. After considering the pleadings
of the parties, two issues were framed. One;
as to whether Rasool son of Badlu is
Bhumidhar on the basis of adverse
possession on the land in dispute, second;
as to whether Ghamar @ Mohd Hussaun is
heir of the deceased Kallu. The issue no.2
has been decided holding Ghamar @
Mohd. Hussain as legal heir of the
deceased Kallu as it was accepted by the
parties and no objection was raised. The
issue no.1 was decided in favour of the
petitioner holding that there is no reference
of PA-10, though the possession of Rasool
is recorded in Khana Kaifiyat of 12 years
1368 Fasli.

9. It has also been recorded that
Rasool had not stated in his statement that
he had got PA-10. The entry in favour of
the opposite party no.3 in the copy of
Khatauni from 1371-73 Fasli is without
reference of date and year of PA-24.
Therefore the recording has no relevance. It
has also been recorded that the witness Sri
Ram had stated that Rasool had forcibly
plowed 25 years ago while the quarrel was
about 10-12 years old and it used to happen
daily, whereas Rasool had stated that the
quarrel had happened one or two days.
Accordingly, the Consolidation Officer
found that the opposite party no.3 has
failed to prove his adverse possession.
Therefore, he directed to record the name
of the petitioner namely Ghamar @ Mohd.
Hussain in place of his father Kallu and
directed to expunge the possession of the
opposite party no.3 Rasool son of Badlu by
means of the order dated 17.06.1981.

10. The opposite party no.3 had filed
the appeal, which was decided ex-parte on
a report of postal department that the
petitioner has refused to receive the
summon. The appeal was allowed on the
ground that the name of the opposite party
no.3 was recorded under clause-9 on the
basis of PA-10 in Khasra 1368 Fasli and in
the Khatauni 1371-73 Fasli in accordance
with PA-24 and by the oral evidence it is
also proved that the opposite party no.3 is
in possession from a long time. He has
matured his titled on the basis of adverse
possession and since Ghamar is not present
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
it is apparent that he has no objection to the
possession of Rasool. But without setting
aside
the
findings
recorded
by
the
Consolidation Officer and considering as to
whether the entry of the opposite party
no.3, under clause-9, on the basis of PA-10
is in accordance with the Land Records
Manual or not held that the order passed by
the Consolidation Officer is not proper and
just and set-aside the same. Therefore the
findings recorded in the appellate order are
not in accordance with law and not tenable.

11. The para-89-A, 89-B and 102-B
of the Land Records Manual (here-in-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

Kha
sra
No.
of
Plot
Ar
ea

Det
ails
of
entr
y in
the
last
year

Det
ails
of
entr
y
mad
e in
the
curr
ent
year

Verific
ation
report
by the
Revenu
e
Inspect
or

Ram
arks

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.

(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
9 All Babu Ali & Anr. Vs. D.D.C. & Ors.
1101
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 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.

14. 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. 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
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 and
Others, this Court repelled the contention
that the burden of proof was upon the
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
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
and
Another
Vs.
Assistant
Director of Consolidation, Gorakhpur
and Others; 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
and Others Vs. Assistant Director of
Consolidation, Bahraich and Others;
(2007) 2 All ALJ 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 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
9 All Babu Ali & Anr. Vs. D.D.C. & Ors.
1103
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 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. 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 and Others;
(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. Animus possidendi is one of
the ingredients of adverse possession.
Unless the person possessing the land has a
requisite animus the period for prescription
does not commence. As in the instant case,
the appellant categorically states that his
possession is not adverse as that of true
owner, the logical corollary is that he did
not have the requisite animus. (See Mohd
Mohd. Ali v. Jagadish Kalita, SCC para
21)"

22.
A
peaceful,
open
and
continuous possession as engraved in the
maxim nec vi, nec clam, nec precario has
been noticed by this Court in Karnataka
Board of Wakf v. Government of India
and Other; (2004) 10 SCC 779 in the
following terms:

"Physical
fact
of
exclusive
possession and the animus possidendi to
hold as owner in exclusion to the actual
owner are the most important factors that
are to be accounted in cases of this nature.
Plea of adverse possession is not a pure
question of law but a blended one of fact
and law. Therefore, a person who claims
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
adverse possession should show: ( a) on
what date he came into possession, (b)
what was the nature of his possession, (c)
whether the factum of possession was
known to the other party, (d) how long his
possession has continued, and (e) his
possession was open and undisturbed. A
person pleading adverse possession has no
equities in his favour. Since he is trying to
defeat the rights of the true owner, it is for
him to clearly plead and establish all facts
necessary
to
establish
his
adverse
possession"

23. It is important to appreciate
the question of intention as it would have
appeared to the paper-owner. The issue is
that intention of the adverse user gets
communicated to the paper owner of the
property. This is where the law gives
importance to hostility and openness as
pertinent qualities of manner of possession.
It follows that the possession of the adverse
possessor must be hostile enough to give
rise to a reasonable notice and opportunity
to the paper owner."

18. In view of above, the judgment
passed by the Appellate Authority without
considering the law of adverse possession is
not sustainable. Application for recall of exparte order was moved, which was dismissed
for non-prosecution. Therefore an application
for recall was filed. The applications were
rejected by means of the order dated
22.05.1984. The first application for recall of
the main order was rejected on the ground
that the petitioner had knowledge of summon
and the registered notice was returned with
the report that the petitioner had refused to
receive. A plea was taken that the report of
refusal has been got submitted by the
opposite party no.3 in collusion with the post
man. A counter affidavit was filed by the
opposite party no.3; Rasool stating that the
post man had gone to the place of the
petitioner from 24.07.1982 to 27.07.1982 and
he had submitted a report of refusal. But it
has not been considered as to how the
opposite party no.3 had knowledge that the
post man had gone to the place of the
petitioner from 24.07.1984 to 27.07.1984 and
as to when the petitioner refused to receive
the same. The second application for recall
filed on 20.03.1984 has been rejected on the
ground that the petitioner had knowledge of
the order passed by the court, which has not
been disputed by the petitioner, but the
ground taken by him that his train had left
from Mahmudabad therefore he reached
Sitapur at 05:00 PM and his counsel had not
appeared in the Court has not been
considered. Therefore, this Court is of the
view that the application for recall filed by
the
petitioner
was
dismissed
without
considering the grounds raised by the
petitioner in accordance with law and
correctly.

19. The revisions filed by the petitioner
against the rejection of application for recall
and the appellate order on merit have also
been dismissed. The first revision has been
dismissed on the ground that the petitioner
used to file revision against the interim
orders, therefore, the petitioner used to linger
on the proceedings and the Appellate
Authority had not committed any mistake by
deciding the appeal on merit by means of the
order dated 05.11.1981 and accordingly the
application for recall has rightly been
rejected. But failed to consider the grounds
raised by the petitioner which were sufficient
and the ground taken by the revisional
authority is not tenable because an aggrieved
person has a right to file revision in
accordance with law.

20. The other revision filed against
the original order dated 05.11.1981 has
9 All Bharat Prasad & Ors. Vs. D.D.C., Sitapur & Ors.
1105
been dismissed holding that the entry of the
opposite party no.3 under clause-9 has
rightly been made after issuance of the PA10 in accordance with law, therefore the
possession of the opposite party no.3 has
rightly been found from 1368 Fasli and no
evidence
has
been
adduced
by
the
petitioner which may indicate that the
petitioner has ever evicted the opposite
party no.3 from the land in dispute and the
petitioner has failed to produce any
constructive, oral and written evidence,
accordingly held that the opposite party
no.3 has matured his right on the basis of
adverse possession and dismissed the
revision. But the revisional court failed to
consider the legal position in regard to the
entry under clause-9 on the basis of PA-10
as discussed above. In case the entry was
made in the name of the opposite party no.3
under clause-9 on the basis of PA-10 it was
incumbent upon the opposite party no.3 to
prove by adducing cogent evidence that the
same was made in accordance with law and
the PA-10 was served on the original tenure
holder. It was also required to be proved as
to when the opposite party no.3 entered
into the possession in the knowledge of the
petitioner and continued his possession for
the required period. But it has not been
proved by the opposite party no.3 and no
finding has been recorded in this regard.

21. In the present case, as per the
findings, recorded by the Consolidation
Officer, there was contradiction in the
evidence in regard to the possession of the
petitioner and the entry, which finding has
not been set aside by the appellate or
revisional authority. None of the courts have
recorded the finding in regard to adverse
possession in accordance with law and Land
Records Manual and the service of PA-10 on
the original tenure holder, which was
mandatory. Therefore this Court is of the
view that the opposite party no.3 has failed to
prove his adverse possession on the land in
dispute, therefore his claim was not
sustainable, so no fruitful purpose would be
served by remanding the case and it will be a
futile exercise.

22. In view of above and considering
the overall facts and circumstances of the
case, this Court is of the view that the
impugned orders are not sustainable in the
eyes of law and liable to be quashed and the
writ petition is liable to be allowed.

23. The writ petition is, accordingly,
allowed.
The
impugned
orders
dated
05.11.1981 and 22.05.1985 passed by
Assistant Settlement Officer of Consolidation
and order dated 28.11.1985 passed by the
Deputy Director of Consolidation, Sitapur are
hereby quashed. No order as to cost.

24. The Lekhpal diary be returned
forthwith.
----------
(2021)09ILR A1105
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.09.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 986 of 2005

Bharat Prasad & Ors. ...Petitioners
Versus
D.D.C., Sitapur & Ors. ...Respondents

Counsel for the Petitioners:
K.N. Srivastava, S.C. Sitapuri

Counsel for the Respondents:
C.S.C., Ashish Srivastava, Manoj Kumar
Srivastava, Narendra Gupta, Sudhir Kumar
Misra