# Bhagwati Deen v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 559
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-25
- **Case number:** Writ- B No. 1528 of 1983
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwati-deen-v-state-of-u-p-ors-48559
- **Pages:** 23

## Headnote

(A) Land Law - The Uttar Pradesh
Consolidation of Holdings Act, 1953 -
Section 9-A (2) , 11 (1) , 30 , 48 - The
Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 - Section 20 , 20
(b) , 209 , 229-B , 240 , 240 (J) , 240 (A)
to 240 (M) , 240 (H) (2) (a) -The U.P. Land
Revenue Act, 1901 - Section 28 & 33 -
The
Uttar
Pradesh
Consolidation
of
Holdings, Rules, 1954 - Rule 109 , 109-A -
a person who claims adhivasi rights, his
name must have been recorded in 1356
560 INDIAN LAW REPORTS ALLAHABAD SERIES
fasli in the Khasra or Khatauni which is
duly prepared in terms of the provisions of
the Land Revenue Act - An entry in the
revenue records do raise a presumption
but the same is rebuttable in nature - Any
entry which is not prepared in accordance
with law cannot confer any benefit to a
party claiming the same.(Para - 34,43 )

Claim over disputed plots - ground - petitioner
in occupation of disputed plots in question much
prior to the abolition of Zamindari - acquired
sirdari rights after abolition of Zamindari -
alternate plea - petitioner was recorded as an
occupant in 1359 Fasli and was in cultivatory
possession - three years prior to abolition of
Zamindari - acquired adhivasi rights - later
matured into sirdari in 1362 Fasli - continued to
be in possession - private respondents -
expunged name of petitioner - replaced by their
own names - petitioner instituted a suit for
declaration of his rights - both SOC as well as
DDC meticulously considered submissions and
material available on record - finding - merely
because of one entry in 1359 fasli which is also
not proved nor having been made in accordance
with the provisions contained under the Land
Revenue Act - no benefit could be granted to
the petitioner. (Para -2,3, 43 )

HELD:- No error committed by the SOC and the
DDC which may require any interference of this
Court in exercise of powers conferred under
Article 226 of the Constitution of India. (Para -
44)

Petition dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,980 of 80,057. This is a partial read: ask again with offset=39980 for what follows._

5 All. Bhagwati Deen Vs. State of U.P. & Ors.
559

18. In the present case, it is clear that
the cut-off marks of general category
candidates are shown to be above 418.77
whereas the cut-off marks for OBC stood at
410.6. On the basis of marks obtained by
the petitioner while belonging to the OBC
category, she has clearly qualified the
benchmark and she is thus entitled to be
included amongst the selected candidates of
OBC category. Once a candidate having
410.6 marks was appointed, as to why a
candidate obtaining 417.9 marks may not
have
a
preferential
right
remains
inexplicable by the State. The individual
right which had accrued to the petitioner
was not open to be frustrated on the
strength of any irrelevant document of
which the production does not seem to be
in the course of prudent behaviour
particularly when there is no mention in the
original record that the petitioner had failed
to produce the original OBC category
certificate dated 4.2.2016. The recording of
consequence i.e. ''General' unless backed
by an authentic proof of failure to produce
the category certificate, in my humble view,
is an arbitrary act falling within the scope
of judicial review and the Court would not
shut the doors of justice in a case like the
one at hand.

19. The record does not support the
case of the State which was carefully
examined. The Court has extracted the
entire details of documents verification and
physical standard test reports herein-above.

20. In the result, once the right of
appointment
having
accrued
to
the
petitioner on equal basis was acted upon in
respect of the other OBC category selected
candidates, there is no reason as to why the
petitioner may not be extended the same
benefit with the issuance of appointment in
her favour.

21. This Court accordingly directs the
competent authority to proceed with the
benefit of selection including notional
seniority as has accrued to the petitioner at
par with the other selected candidates
having equal merit or less.

22. This exercise shall be carried out
not later than a period of six weeks from
the date a certified copy of this order is
served to the competent authority along
with the representation.

23. The writ petition is allowed with
no order as to cost.
----------
(2022)05ILR A559
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.05.2022

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ- B No. 1528 of 1983

Bhagwati Deen ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
M. Sultan, R.R. Dev, Ripu Daman Shahi, Vijai
Bahadur Verma

Counsel for the Respondents:
C.S.C., S.P. Shukla, Saryu Prasad Tiwari

(A) Land Law - The Uttar Pradesh
Consolidation of Holdings Act, 1953 -
Section 9-A (2) , 11 (1) , 30 , 48 - The
Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 - Section 20 , 20
(b) , 209 , 229-B , 240 , 240 (J) , 240 (A)
to 240 (M) , 240 (H) (2) (a) -The U.P. Land
Revenue Act, 1901 - Section 28 & 33 -
The
Uttar
Pradesh
Consolidation
of
Holdings, Rules, 1954 - Rule 109 , 109-A -
a person who claims adhivasi rights, his
name must have been recorded in 1356
560 INDIAN LAW REPORTS ALLAHABAD SERIES
fasli in the Khasra or Khatauni which is
duly prepared in terms of the provisions of
the Land Revenue Act - An entry in the
revenue records do raise a presumption
but the same is rebuttable in nature - Any
entry which is not prepared in accordance
with law cannot confer any benefit to a
party claiming the same.(Para - 34,43 )

Claim over disputed plots - ground - petitioner
in occupation of disputed plots in question much
prior to the abolition of Zamindari - acquired
sirdari rights after abolition of Zamindari -
alternate plea - petitioner was recorded as an
occupant in 1359 Fasli and was in cultivatory
possession - three years prior to abolition of
Zamindari - acquired adhivasi rights - later
matured into sirdari in 1362 Fasli - continued to
be in possession - private respondents -
expunged name of petitioner - replaced by their
own names - petitioner instituted a suit for
declaration of his rights - both SOC as well as
DDC meticulously considered submissions and
material available on record - finding - merely
because of one entry in 1359 fasli which is also
not proved nor having been made in accordance
with the provisions contained under the Land
Revenue Act - no benefit could be granted to
the petitioner. (Para -2,3, 43 )

HELD:- No error committed by the SOC and the
DDC which may require any interference of this
Court in exercise of powers conferred under
Article 226 of the Constitution of India. (Para -
44)

Petition dismissed. (E-7)

List of Cases cited:-

1. Avdhesh Singh & anr. Vs. Bikarama Ahir &
ors. ,1975 RD 132 (Special Bench)

2. Tauley & ors. Vs. D.D.C. & ors. , 1982 RD 327

3. Smt. Sonawati & ors. Vs. Sri Ram & ors.
,1968 RD 151

4. Bachan & anr. Vs. Kankar & ors. ,1972 RD
219

5. Jagdamba Prasad Vs. Rafiuddin & ors. , 1967
RD 173 (DB)
6. Babu Ali Vs. D.D.C. & ors. , 2021 (8) ADJ
579.

7. Putti & ors. Vs. Asst. D.D.C., Bahraich & ors. ,
2006 SCC Online (Alld) 1286

8. Chit Bahal Singh & ors. v. J.D.C. & ors.,
29.04.2022

9. Wali Mohd. Vs. Ram Surat & ors., 1991 (9)
LCD 79

10. Udai (Dead), Ram Lakhan (Dead), Karedin &
ors. Vs. D.D.C., Varanasi & ors. ,1990 (8) LCD
266

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

1. In the instant petition, the dispute
relates to Plot Nos. 1838/1, 1823/1, 1816,
1817, 1815, 1824/2 and 1828/1 of Gata No.
306 of Village Lokpur, Pargana, Barsona,
Tehsil and District Sultanpur which was
recorded in the name of the private
respondent nos. 1, 2 and 3 in the basic year
Khatauni.

2. The petitioner had filed his
objections under Section 9-A (2) of the Uttar
Pradesh Consolidation of Holdings Act, 1953
(hereinafter referred to as Act of 1953)
staking claim over the disputed plots on the
ground that the petitioner was in occupation
of the disputed plots in question much prior
to the abolition of Zamindari and thus had
acquired sirdari rights in the land in dispute
after the abolition of Zamindari. An alternate
plea was also raised that since the petitioner
was recorded as an occupant in 1359 Fasli
and was in cultivatory possession. three years
prior to the abolition of Zamindari, hence, he
acquired adhivasi rights which later matured
into sirdari in 1362 Fasli and continued to be
in possession.

3. It was also stated that the private
respondents were influential persons who
5 All. Bhagwati Deen Vs. State of U.P. & Ors.
561
by using their influence got the name of the
petitioner expunged and replaced by their
own names. On becoming aware of the
aforesaid, the petitioner had instituted a suit
under Section 229-B of the Uttar Pradesh
Zamindari Abolition and Land Reforms
Act, (hereinafter referred to as U.P.Z.A. &
L.R. Act) for declaration of his rights
before the Competent Court, however, with
the
commencement
of
Consolidation
Operations, the suit of the petitioner abated
in light of the order dated 19.07.1975.

4. It was also stated that the petitioner
had been conferred with sirdari rights in
terms of Section 240 (J) of the U.P.Z.A. &
L.R. Act and the private respondents had
received compensation in respect of the
land, accordingly, all rights of the private
respondents got extinguished and they
could not claim any right in the disputed
plots nor re-agitate the claims.

5. The private respondents contested
the objections filed by the petitioner before
the Consolidation Officer on the ground
that the private respondents were recorded
as cultivatory tenants having hereditary
rights. They had acquired sirdari rights and
continued to be in possession, prior to the
abolition of Zamindari and even thereafter.
Even during the first consolidation, there
was some dispute regarding the rights of
the private respondents which was duly
adjudicated and the records were corrected
and the names of the private respondents
continued. It was also stated that the
alleged entry in favour of the petitioner was
false and fictitious and no benefit of the
same could be claimed by the petitioner.

6. It was also stated that the private
respondents
had
not
received
any
compensation and proceedings under Section
240 (J) of the U.P.Z.A. & L.R. Act, if any,
were not in accordance with law nor the same
had any effect on the rights of the private
respondents.

7. The Consolidation Officer, (Area No.
4, Musafikhana), Sultanpur by means of his
order
dated
07.10.1980
accepted
the
contentions of the petitioner and after
deleting the name of the private respondents
incorporated the name of the petitioner in
respect of the disputed plots. The private
respondents being aggrieved against the order
of
the
Consolidation
Officer
dated
07.10.1980 preferred an appeal under Section
11 (1) of the U.P.C.H. Act which came to be
allowed by the SOC, Sultanpur by means of
order dated 30.11.1981.

8. The petitioner being aggrieved
against the aforesaid order dated 30.11.1981
passed by the SOC, Sultanpur in appeal
preferred a revision under Section 48 of the
U.P.C.H. Act, 1953 before the Deputy
Director of Consolidation, Sultanpur which
was dismissed by means of order dated
30.11.1981 affirming the order passed by the
SOC.

9. Being aggrieved against the
aforesaid
two
orders,
the
petitioner
instituted the instant petition wherein this
Court by means of order dated 17.03.1983
admitted the petition. During the pendency
of the petition, the original petitioner
Bhagwan Deen expired and was substituted
by his son whereas the private respondent
nos. 1, 2 and 3 also expired and are
represented by their legal heirs. However,
for the sake of convenience, this Court
shall be referring to the parties as originally
impleaded at the time of institution of this
petition. The parties have exchanged their
counter and rejoinder affidavits including
the supplementary affidavit which is on
record.
562 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Sri Vijay Bahadur Verma and Sri
R.D. Shahi, learned counsel for the
petitioner have attacked the order passed by
the
SOC, Sultanpur
and
the
DDC,
Sultanpur primarily on three grounds:-

(i) It is urged that the two courts have
erred in misconstruing the provision of
Section 20 and Section 240 (J) of the
U.P.Z.A. & L.R. Act. It has been submitted
that ample evidence was brought on record
to establish that the petitioner was recorded
in 1359 Fasli as well as 1362 Fasli. In
terms of Section 20 of the U.P.Z.A. & L.R.
Act, any person in occupation and
cultivatory possession acquired adhivasi
rights which later in terms of Section 240
(A) to 240 (M) which was introduced by
the U.P. Act No. 20 of 1954 by inserting
Chapter IX-A in the U.P.Z.A. & L.R. Act
conferred sirdari rights. It is also submitted
that provisions have been misconstrued,
inasmuch
as,
the
petitioner
was
in
possession even prior to the abolition of
zamindari and in the document which was
brought on record Muddatkasht was shown
as two years which would indicate that the
possession of the petitioner was even prior
to the abolition of Zamindar and in any
case his name was recorded in 1359 Fasli
and thus there was no legal impediment in
the conferment of the sirdari rights which
had
matured
by
operation
of
law,
accordingly, this aspect of the matter has
been completely misconstrued resulting in
sheer miscarriage of justice.

(ii) It is also urged that even otherwise
in alternate the petitioner had perfected his
rights by adverse possession, inasmuch as,
he was recorded in 1359 Fasli and
Muddatkasht as indicated above was shown
to be two years, thus, at the relevant time
for perfecting the rights of adverse
possession, three years period was provided
which was completed successfully by the
petitioner and even on this count he had
matured his rights by adverse possession
and got adhivasi rights which later matured
into Sirdari rights and this aspect of the
matter has also been misconstrued by both
the SOC, Sultanpur as well as the DDC,
Sultanpur.

(iii) The third limb of the arguments of
the learned counsel for the petitioner is that
with the introduction of Chapter IX-A in
the year 1954 in the U.P.Z.A. & L.R. Act,
once the petitioner was conferred with the
sirdari rights and a scheme was prepared
whereunder
the
private
respondents
received
compensation
and
a
final
statement was published in terms of
Section 240 (J) of the U.P.Z.A. & L.R. Act,
thus, in so far as the private respondents are
concerned, all their rights extinguished and
after having received the compensation, it
is not open for the private respondents to
claim the land nor stake any right and this
aspect has also not been appropriately
appreciated by the two Consolidation
Authorities.

11. That the learned counsel for the
petitioner has relied upon a Special Bench
decision of this Court in the case of
Avdhesh
Singh
and
Another
Vs.
Bikarama Ahir and others reported in
1975 RD 132 (Special Bench) as well as
on Tauley and others Vs. DDC and others
reported in 1982 RD 327.

12. Per contra, Sri S.P. Tiwari,
learned counsel for the private respondents
urged that:

(i) in order to claim sirdari rights in
terms of Section 20 of the U.P.Z.A. & L.R.
Act, it was necessary for the petitioner to
establish that he was an occupant in 1356
Fasli as well as 1359 Fasli. The petitioner
was never recorded in 1356 Fasli and a
5 All. Bhagwati Deen Vs. State of U.P. & Ors.
563
mere entry which was fraudulent relating to
1359 Fasli, without any basis or backing of
an order or not made in accordance with
the provisions of the Land Revenue Act
cannot confer any benefit on the petitioner.
It is also urged that apart from 1359 and
1362 Fasli there is no other document
which relates to the entry of the name of
the petitioner.

(ii) The contention as raised by the
petitioner that he was in possession much
prior to the abolition of zamindari is also
not substantiated by any material on record.
Rather, the name of the answering
respondent have throughout being recorded
in 1356, 1359, 1362 Fasli. The answering
respondent had also filed a Khasra (for 12
years 1366 to 1377 fasli). Even in the first
round of consolidation, there was some
dispute which was also contested by the
answering respondents and the records
were corrected incorporating the name of
the private respondents. Even at that time
the petitioner had raised no objection and
this would establish that the answering
respondents have been in possession
throughout and they had matured their
rights of sirdari and consequently they have
also been granted bhumidhari rights.

(iii) It is submitted that initially there
was an interim order in the instant petition
but the petition came to be dismissed for
want of prosecution twice and the interim
order stood vacated which was never
restored and thereafter the answering
respondent had made an application under
Rule 109-A for implementation of the order
passed by the SOC and the DDC which
came to be allowed and the names of the
answering respondents have been recorded
as bhumidhar with transferrable rights in
the Khatauni. It has also been pointed out
that during the pendency of the petition
sometime in the year 2016, the land in
question was acquired by the State
Government for its Scheme of 6 Lane
Purvanchal Expressway. Thus, it is urged
that the findings recorded by both the SOC
as well as the DDC is based on proper
appreciation of the material available on
record as well as the law, consequently, the
writ petition deserves to be dismissed.

13. The learned counsel for the
respondents has relied upon the decision of
the Apex Court in the case of Smt.
Sonawati and others Vs. Sri Ram and
others 1968 RD 151; Bachan and Another
Vs. Kankar and others 1972 RD 219;
Jagdamba Prasad Vs. Rafiuddin and
others 1967 RD 173 (DB).

14. The Court has heard the learned
counsel for the parties at length and also
carefully perused the material available on
record.

15. In order to appreciate the
respective contentions, it would be relevant
to notice that the claim of the petitioner is
primarily based on his possession and as
per the petitioner, he was in possession as
an occupant prior to the abolition of
zamindari and his name is also recorded as
evident from the Khatauni of 1359 fasli.
Reliance has also been placed upon the
Khatauni of Village Lokpur, Pargana,
Barsona, Tehsil and District Sultanpur,
Khata 1/37 wherein the name of Bhagwati
Deen, the petitioner has been shown with
muddat kasht two years in Part-II as
shikmi. Even in Khatauni Part-II of 1362
Fasli Khata No. 149, name of Bhagwati
Deen has been shown as Shikmi and
reliance has also been placed on Form 101ZA to buttress the submissions that the
adhivasi rights of the petitioner matured
into sirdari. Irrigation receipts had also
been filed by the petitioner and his son
Dharmraj also examined himself before the
564 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation Officer reiterating his stand
and stated by him that since his father
Bhagwan Deen, the petitioner had become
old and was not able to see or walk
properly,
accordingly,
in
his
place
Dharmraj led the evidence.

16. On the other hand, the private
respondents had filed the Khatauni of 1356
fasli and 1364 to 1369 fasli, Khasra for 12
years, 1366 to 1377 fasli, CH Form-6 and
led his evidence before the Consolidation
Officer.

17. It is on the basis of the aforesaid
documentary and oral evidence led by the
parties that the Consolidation Officer found
that since the name of the petitioner was
recorded in 1359 fasli and with the advent
of Section 240 incorporated in Chapter IX
of the U.P.Z.A. & L.R. Act, the adhivasi
rights matured into sirdari rights and also
the
evidence
relating
to
possession,
especially the irrigation receipts filed by
the petitioner were taken to be the basis to
record that the petitioner was in possession
and had been conferred with the sirdari
rights and that the name of the petitioner
had been incorrectly deleted and that the
petitioner had been conferred with sirdari
rights, consequently, the name of the
respondents was expunged. These findings
were upset by the SOC which had been
confirmed by the DDC.

18. Before proceeding any further, it
will
be
relevant
to
notice
certain
provisions which have been relied upon
by the parties to buttress their respective
submissions and at the outset, it will be
necessary to first ascertain whether any
adhivasi rights have been conferred upon
the petitioner. It is only if the adhivasi
rights were conferred, then only in terms
of Chapter IX-A of the U.P.Z.A. & L.R.
Act can the sirdari rights be conferred
upon such adhivasis.

19. The submission of learned
counsel
for
the
petitioner
which
commences with the plea of having
adhivasi rights and having been conferred
with sirdari rights and the alternate plea
of adverse possession shall be tested in
light of the legal provisions and the
decision on the aforesaid point rendered
by this Court as well as the Apex Court.
Section 20 of the U.P.Z.A. & L.R. Act
reads as under:-

"20. A tenant of Sir, sub-tenant or an
occupant to be an adhivasi.-[Every person
who-(a) on the date immediately preceding
the date of vesting was or has been deemed
to be in accordance with the provisions of
this Act]-

(i) except as provided in [sub-clause
(i) of Clause (b)], a tenant of sir other than
a tenant referred to in Clause (ix) of
Section 19 or in whose favour hereditary
rights accrue in accordance with the
provisions of Section 10; or

(ii) except as provided in [sub-clause
(i) of Clause (b)], a sub-tenant other than a
sub-tenant referred to in proviso to subsection (3) of Section 27 of the United
Provinces Tenancy (Amendment) Act, 1947
(U.P. Act X of 1947), or in sub-section (4)
of Section 47 of the United Provinces
Tenancy Act, 1939 (U.P. Act XVII of 1939)
of any land other than grove land,

(b) was recorded as occupant,-

(i) of any land [other than grove land
or land to which Section 16 applies or land
referred to in the proviso to sub-section (3)
of Section 27 of the U.P. Tenancy
(Amendment) Act, 1947] in the khasra or
khatauni of 1356-F prepared under Section
28 [33] respectively of the U.P. Land
Revenue Act, 1901 (U.P. Act III of 1901),
5 All. Bhagwati Deen Vs. State of U.P. & Ors.
565
or who was on the date immediately
preceding the date of vesting entitled to
regain possession thereof under Clause (c)
of sub-section (1) of Section 27 of the
United Provinces Tenancy (Amendment)
Act, 1947 (U.P. Act X of 1947); or

(ii) of any land to which Section 16
applies, in the [khasra or khatauni of 1356
fasli prepared under Sections 28 and 33
respectively of] the United Provinces Land
Revenue Act, 1901 (U.P. Act III of 1901),
but who was not in possession in the year
1356-F;

shall, unless he has become a
bhumidhar of the land under sub-section
(2) of Section 18 or an asami under Clause
(h) of Section 21, be called adhivasi of the
land and shall, subject to the provisions of
this Act, be entitled to take or retain
possession thereof."

20. From the perusal of the aforesaid
provisions, the part relevant for the instant
controversy is Section 20 (b) of the
U.P.Z.A. & L.R. Act. The aforesaid
provision clearly provides that any person
who was recorded as an occupant of any
land in the Khasra or Khatauni of 1356
fasli which is prepared under Section 28
and 33 of the U.P. Land Revenue Act, 1901
or who was on the date immediately
preceding the date of vesting entitled to
regain possession thereof.

21. It is in this light, if the documents
filed by the respective parties are seen, it
would indicate that the petitioner had filed
the Khatauni of 1359 fasli and 1362 fasli. It
is not disputed that the petitioner has not
filed the Khasra. His case is only on the
basis of Khatauni of 1359 and 1362 fasli,
thus, in terms of Sub Clause (b) of Section
20, the Khasra and Khatauni of 1356 fasli
has not been filed nor is it the basis of the
claim of the petitioner. Rather, he has
developed his case by summiting that in the
Khatauni of 1359 fasli, muddat kasht of 2
years has been shown which necessarily
will relate back to 1356 fasli, consequently,
he submits that he gets the right of adhivasi
in terms of the aforesaid provision.

22. In the said breath, he further urges
that since he has been in possession for
three years, accordingly, he had even
perfected his rights by adverse possession
and thus Section 20 (b) which refers to the
word "any person in occupation would
also include a person who has perfected
his rights by adverse possession" hence
rights of adhivasi came to be bestowed in
terms of the Act and with the advent of
Chapter IX-A by operation of law, his
rights of adhivasi matured in sirdari rights.

23. At this stage, it will be relevant to
notice that in so far as the law of adverse
possession in respect of revenue land is
concerned it is a little different from the
law of adverse possession relating to the
buildings and urban properties. In so far as
the limitation for perfecting rights by
adverse possession as applicable to revenue
lands is concerned it was initially a period
of continuous possession for two years but
later w.e.f. 09.04.1955, the same came to
be extended to three years. Later, in the
year 1957, this was enhanced to 6 years and
in respect of the land belonging to Gram
Sabha, it was 12 years. Subsequently, in the
year 1971, a further amendment was
introduced which enhanced the limit and
the period for claiming adverse possession
became 12 years and in respect of land
belonging to Gram Sabha it was 30 years.

24. In the aforesaid backdrop and the
limitation
which
has
been
enhanced
progressively in terms of Section 209 of the
U.P.Z.A. & L.R. Act which relates to
566 INDIAN LAW REPORTS ALLAHABAD SERIES
eviction of a person in un-authorized
occupation. However, at the relevant time
in 1955, it was 3 years which is to be seen
for the purposes of the instant case.

25. It is also to be noticed that any
person who claims the right of adverse
possession must show that he has been in
continuous possession over the land in
question.
His
name
has
been
duly
incorporated in terms of the record
prepared under the Land Record Manual.
The Khatauni which is prepared should be
in accordance with the provisions of the
Land Record Manual and thus the person
pleading adverse possession must show not
only his possession but the entries have
been prepared in accordance with the
provisions of the Land Record Manual and
the same was also in the knowledge of the
true owner who has been served with Form
PA-10 and despite the same he did not take
any action to seek the eviction of such
person in terms of the limitation provided
only then the right can be claimed.

26. It is also to be remembered that
since
the
person
pleading
adverse
possession does not have any special
equities in his favour, consequently, it is his
burden to discharge and show that the
entries were prepared in accordance with
law and in case if the entries have not been
prepared in accordance with the provisions
contained in the Land Record Manual then
the plea cannot be successfully allowed.

27. In this regard, it will be relevant to
notice the decision of this Court in the case
of Putti and others Vs. Assistant Director
of Consolidation, Bahraich and others
reported in 2006 SCC Online (Alld) 1286
which has been considered in a subsequent
decision dealing with the law regarding
adverse possession in detail in Babu Ali
Vs. DDC and Others reported in 2021 (8)
ADJ 579.

28. Lately, this Court also had the
occasion to consider the aforesaid issue of
adverse possession in the case of Chit
Bahal Singh and others v. Joint Director
of Consolidation and others, decided on
29.04.2022 and by relying upon the
decision of Babu Ali and another v.
D.D.C. and others (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 (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

Kh
asr
a
No.
of
Plo
t
Are
a
Detail
s
of
entry
in the
last
year
Detai
ls of
entry
made
in
the
curre
nt
year
Verific
ation
report
by the
Reven
ue
Inspec
tor
Re
ma
rks
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
5 All. Bhagwati Deen Vs. State of U.P. & Ors.
567
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 (sub-paragraph
(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
568 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 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
5 All. Bhagwati Deen Vs. State of U.P. & Ors.
569
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 paragraph41 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. 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)"
570 INDIAN LAW REPORTS ALLAHABAD SERIES

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, (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 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"

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."

29. If the plea of adverse possession of
the petitioner is tested in the light of the law
as noticed hereinabove, this Court has no
hesitation to hold that the plea has not been
substantially either pleaded with necessary
particulars nor it has been proved as required
in law. Needless to state that in order to
successfully urge the plea of adverse
possession, it has to be specifically pleaded
and proved with cogent evidence. The point
of time, when the possession begins and
when it notably becomes adverse. The entry
in the change of possession must be indicated
in red ink.