# Fateh Bahadur Singh v. D.D.C. & Ors

- **Citation:** (2021) 2 ILRA 881
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-22
- **Case number:** Consolidation No. 543 of 1994
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fateh-bahadur-singh-v-d-d-c-ors-46836
- **Pages:** 9

## Headnote

A. Civil Law - Consolidation of Holdings
Act, 1953 - Sections 9-A, 11(1), 48 - Land
Records Manual - Para 89-A, 89-B, 102-B -
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. (Para 18)

Therefore, it was for the petitioner to prove that
entry was made after following the due
procedure of law as prescribed under the Land
Records Manual and was duly communicated to
the main tenant and it was within his
knowledge. But he has failed to prove it.
Therefore the petitioner is not entitled on the
basis of adverse possession and alleged
permissive possession is also not sustainable as
the petitioner could not show as to how
Bhagauti Deen (whose name was recorded in
the revenue records) was representative of
family and the possession of father of petitioner
was also not found in basic year. (Para 21)

B.
In
case
of
adverse
possession,
communication to the owner and his
hostility towards the possession is must.
(Para 20)
882 INDIAN LAW REPORTS ALLAHABAD SERIES
The revisional authority has allowed the revision
without considering as to how the land in
dispute has come to the opposite parties and
whether the claim of the respondents is
sustainable in the eyes of law or not. (Para 22)

Writ petition partly allowed. (E-3)

Precedent followed:

## Text

2 All. Fateh Bahadur Singh Vs. D.D.C. & Ors.
881

20. Even if the authority, on the basis
of report, is of the view that the entries are
forged, the affected persons are required to
be given opportunity of being heard to
show the justification of entries made in
their favour. The authority is also under
obligation to record reasons as to how the
entries are forged.

21. In view of above, this Court is of
the considered opinion that the impugned
order has been passed not only in flagrant
violation of the principles of natural justice
as well as provisions contained in Section
48 of the Consolidation of Holdings Act
but it is cryptic order without assigning any
reasons. Therefore it has no legs to stand in
the eyes of law and is liable to be set aside
with direction to the opposite party no.1 to
consider afresh and pass the order in
accordance
with
law
after
affording
opportunity to the petitioners.

22. Accordingly, the impugned order
dated 10.11.1997 passed in Revision
No.1150,1112,
1113
and
1114
of
1997(Chedda Khan and others versus
Deputy Director of Consolidation) is set
aside. The opposite party no.1 is directed to
decide the revisions afresh in accordance
with law and the observations made herein-above.

23. The parties shall appear before the
opposite party no.1 alongwith the certified
copy of this order on 22.02.2021. The
opposite party no.1 shall make its earnest
endeavour
to
decide
the
revisions
expeditiously and within a period of six
months from the date of production of
certified copy of this order.

24. With the aforesaid, the writ
petition is partly allowed. No order as to
costs.
----------
(2021)02ILR A881
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 543 of 1994

Fateh Bahadur Singh ...Petitioner
Versus
D.D.C. & Ors. ...Respondents

Counsel for the Petitioner:
R.P. Singh, Vijay Kumar

Counsel for the Respondents:
M.P. Yadav

A. Civil Law - Consolidation of Holdings
Act, 1953 - Sections 9-A, 11(1), 48 - Land
Records Manual - Para 89-A, 89-B, 102-B -
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. (Para 18)

Therefore, it was for the petitioner to prove that
entry was made after following the due
procedure of law as prescribed under the Land
Records Manual and was duly communicated to
the main tenant and it was within his
knowledge. But he has failed to prove it.
Therefore the petitioner is not entitled on the
basis of adverse possession and alleged
permissive possession is also not sustainable as
the petitioner could not show as to how
Bhagauti Deen (whose name was recorded in
the revenue records) was representative of
family and the possession of father of petitioner
was also not found in basic year. (Para 21)

B.
In
case
of
adverse
possession,
communication to the owner and his
hostility towards the possession is must.
(Para 20)
882 INDIAN LAW REPORTS ALLAHABAD SERIES
The revisional authority has allowed the revision
without considering as to how the land in
dispute has come to the opposite parties and
whether the claim of the respondents is
sustainable in the eyes of law or not. (Para 22)

Writ petition partly allowed. (E-3)

Precedent followed:

1. P.T. Munichikkanna Reddy & ors. Vs
Revamma & ors., 2008 (26) LCD 15 (Para 9)

2. Gurumukh Singh & ors. Vs Deputy Director of
Consolidation, Nanital & ors., 1997 (80) RD 276
(Para 9)

3. Mohd. Raza Vs Dy. Director of Consolidation
& anr., 1990 RD 165 (Para 9)

4. Sandhu Saran & anr. Vs. Assistant Director of
Consolidation, Gorakhpur & ors., 2003 (94) RD
535 (Para 9)

5.
Mohd.
Raza
Vs.
Deputy
Director
of
Consolidation & anr.; R.D. 1997 (R.D.) 276
(Para 17)

Present petition challenges order dated
20.05.1994, passed by Deputy Director of
Consolidation.

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

1. Heard, Shri Vijay Kumar, learned
counsel for the petitioner and Shri M.P.
Yadav, learned counsel for the respondent
no.3.

2. On the statement of learned counsel
for the respondents no.3 and 4 Shri M.P.
Yadav
that
the
legal
heirs
and
representatives of the respondent no.4 have
entered into compromise with the petitioner
and they are no longer interested in
pursuing the matter and only respondent
no.3 wishes to contest the case, it is
recorded in the order dated 04.01.2021 and
he argued only on behalf of respondent
no.3. The present writ petition has been
filed
for
quashing
the
order
dated
20.05.1994 passed in Revision No.1658,
under Section 48 of U.P. Consolidation of
Holdings Act, 1953 (here-in-after referred
as Act of 1953) by the respondent no.1.

3. The dispute in the instant case
relates to plot no.4350, area 0-18-0 of
Khata No.518 which was recorded in the
name of Gherai S/o of Rekhai and plot
no.3908 and 3909 of Khata No.577 which
was recorded jointly in the name of
Dargahi S/o Sampat i.e. respondent no.4
and Gherai S/o Rekhai in the basic year of
consolidation started from 22.08.1978.
However on the aforesaid plots the name of
father of petitioner namely Sarju Singh was
recorded in clause-9. However, during
verification (Padtal) possession of Shri
Kamla Pratap Singh S/o Akchhaibar Singh
was found.

4. On publication of records, four
objections were filed under Section-9A of
the Act of 1953. One by Kamla Prasad
Singh S/o Akchhaibar Singh claiming the
right on Gata No.4350, area 0-15-0 on the
basis of possession. Second objection was
filed by the father of the petitioner Sarju
Singh claiming plot no.4350 area 0-15-0 on
the basis of continuous possession from
prior zamindari abolition consequently
being bhumidar and adverse possession by
virtue of entries in clause-9 on plot no.3908
area 0-8-0 and 3909 area 0-9-0. The third
objection was filed by Babu Lal i.e.
respondent no.3 claiming succession on
plot no.3908, area 0-8-0 and 3909, area 09-0 on account of death of his father Gherai
S/o Rekhai. The fourth objection was filed
by Ram Sukh Singh and others. The
objections of Kamla Prasad Singh and
others was rejected for want of prosecution.
The objections of Ram Sukh Singh and
2 All. Fateh Bahadur Singh Vs. D.D.C. & Ors.
883
others for co-tenancy was also rejected.
The objections of the petitioner in regard to
plot no.4350, 3908 and 3909, on the basis
of clause-9 entry, was rejected. The
objections of respondent no.3 were allowed
by the Consolidation Officer by means of
the order dated 17.04.1986.

5. Being aggrieved the petitioner had
filed an appeal under Section 11(1) of the
Act of 1953, which was allowed by the
Settlement Officer Consolidation (here-inafter referred as SOC) by means of the
order dated 21.12.1987 and the order
passed by the Consolidation Officer was
amended. The name of the petitioner was
directed to be recorded in Gata No.4350,
3908 and 3909. The respondents no.3 and 4
filed a revision under Section 48 of the Act
of 1953 which has been allowed by the
Deputy Director of Consolidation (here-inafter referred as DDC) and the order dated
21.12.1987 passed by the SOC has been
set-aside and the order passed by the
Consolidation Officer has been upheld.
Hence the present writ petition has been
filed
challenging
the
order
dated
20.05.1994 passed by the DDC.

6. Submission of learned counsel for
the petitioner was that the name of the
father of the petitioner was recorded on the
plots in question on the basis of order
passed by the supervisor Kanoongo on
23.02.1965 under P.A. 10 in place of
Bhagauti Deen S/o Samsher which is
apparent from a copy of Khatauni of 136973 Fasli, a copy of which has been filed by
the petitioner alongwith the Supplementary
affidavit. He further submitted that name of
the father of the petitioner was recorded in
1385 Fasli also. The entry, in the name of
the grand father of the petitioner namely
Vishwanath Singh, is coming on plot
no.3908 and 3909 since 3rd settlement i.e.
Soyam, a copy of which has been filed
alongwith supplementary affidavit and no
reply has been submitted. The learned
Consolidation Officer had wrongly and
illegally rejected the objections filed by the
petitioner merely on the ground that the
date of order is not mentioned as such the
name of the father of the petitioner was not
recorded in accordance with para 80-A and
81-A which appears to be a typographical
error as the correct provision is 89-A and
89-B while the respondent had failed to
prove their title and possession. Therefore
the petitioner had filed the appeal before
the
SOC
which
was
allowed
after
considering the pleadings and evidence in
accordance with law recording a finding
that the name of the father of the petitioner
Sarju Singh was recorded as occupant in
1359 Fasli on Gata No.4350 and on
disputed Gata No.3908 and 3909 in 1359
Fasli. The name of the father of the
petitioner is recorded in clause-9 and as
actual cultivator Sarju Singh is recorded.

7. He further submitted that the
revisional authority, without setting-aside
the finding of SOC, allowed the revision on
the ground that the provisions of Land
Records Manual have not been followed in
issuing P.A. 10 under para 102 (C) of the
Land Records Manual and the crop is not
shown, only the name of Sarju Singh is
recorded. But failed to consider that the
name of the father of the petitioner was
recorded in place of Bhagauti Deen who
was representative of the family of the
petitioner therefore the impugned order is
not sustainable in the eyes of law.

8. Learned counsel for the respondent
no.3 vehemently opposed the submissions
of learned counsel for the petitioner and
had submitted that the petitioner has taken
inconsistent pleadings of title as well as
884 INDIAN LAW REPORTS ALLAHABAD SERIES
adverse which are not permissible. For
adverse possession, the petitioner was
required to show as against whom he is
claiming the adverse possession and the
period and date of entry was required to be
proved. He further submitted that the case
of petitioner on the basis of adverse
possession is in accordance with the
provisions of the Land Records Manual and
admittedly the title of the petitioner was not
there. Therefore the petitioner has no right
on the plot in question. He further
submitted that finding regarding entry in
the revenue records recorded by the
revisional
authority
has
not
been
challenged. Admittedly, in the basic year
entry the name of the respondent was
recorded and possession of Kamla Prasad
was found. The alleged entry made in
favour of the petitioner under clause-9 is
not in accordance with Land Records
Manual therefore the same does not give
any right to the petitioner.

9. On the basis of above, learned counsel
for the respondent no.3 submitted that the order
passed by the DDC is in accordance with law
which does not suffer from any illegality or
error and the writ petition has been filed on
misconceived and baseless grounds and it is
liable to be dismissed. Learned counsel for the
respondent has relied on P.T. Munichikkanna
Reddy and Others Vs. Revamma and Others;
2008 (26) LCD 15, Gurumukh Singh and
Others Vs. Deputy Director of Consolidation,
Nainital and Others; 1997 (80) RD 276,
Mohd. Raza Vs. Dy. Director of Consolidation
and another; 1990 RD 165 and Sadhu Saran
and Another Vs. Assistant Director of
Consolidation, Gorakhpur and Others; 2003
(94) RD 535.

10. Refuting to the arguments of the
learned counsel for the respondent no.3,
learned counsel for the petitioner submitted
that the possession may be permissive or
adverse and the petitioner had permissive
possession as no objection was ever raised.
He had further submitted that the question
of following the procedure of recording the
entry of clause-9 in PA-10 does not arise
because the name of Bhagauti Deen,
representative
of
the
family
of
the
petitioner, was recorded in the revenue
records. He also submitted that the
submission of learned counsel for the
respondent is also misconceived because
para 102-B is in regard to Khasra whereas
the name of the petitioner was recorded in
Khatauni. The name of the father of the
petitioner was recorded in Khatauni on the
basis of order of the supervisor kanoongo
dated 23.02.1965. Therefore the impugned
order is not sustainable in the eyes of law
and liable to be quashed.

11. I have considered the submissions
of learned counsel for the parties, perused
the orders and the documents placed on
record.

12. The name of Sarju Singh father of
the petitioner was recorded under clause-9
on the basis of adverse possession in the
basic year. The name of Gherai S/o Rekhai
father of the respondent no.3 was recorded
on Gata No.4350/0-18-0 in Khata No.158
and Dargahi S/o Sampat, the respondent
no.4 (deceased & substituted by his legal
heirs in the petition) and Gherai S/o Rekhai
in Gata No.3808/0-8-0 and 3909/0-9-0 in
Khata No.577. The objection of the
petitioner was rejected and objection of the
respondents no.3 and 4 was allowed by
Consolidation Officer on the ground that
the name of Sarju Singh was recorded on
the basis of an order passed by the
Supervisor Kanoongo which is not in
accordance with para 80-A and 81-A of the
Land Records Manual and PA-10 and date
2 All. Fateh Bahadur Singh Vs. D.D.C. & Ors.
885
is not mentioned. The appeal filed by the
petitioner was allowed and the order passed
by the Consolidation Officer was amended
and a direction was issued to record the
name of the petitioner on the plots in
question on the ground that the respondents
have failed to prove as to how their names
were recorded in the revenue records and
the Consolidation Officer has made a
mistake by not allowing the petitioner on
the basis of possession where the name of
the Sarju Singh was recorded under Clause9 on the basis of an order passed by the
Supervisor Kanoongo in 1366-1370 Fasli,
1371-1373 Fasli and continued to be
recorded as Sikimi in Khasra of 1372-1374
Fasli.

13. The respondents had filed
revision, aggrieved by the order passed in
appeal, on the ground that the land in
dispute was obtained by the revisionist
i.e. the respondents from Akchhaibar
Singh and not from petitioner and he has
no concerned with the petitioner or his
father. The objection raised by the
petitioner was that the name of Sarju
Singh was recoded under Clause-9 by the
Supervisor Kanoongo and the possession
is proved by the Khasra of 12 years. The
revisional court allowed the revision on
the ground that the entry in the name of
Sarju Singh was not in accordance with
the Land Records Manual and no crop is
also recorded in Khasra of 12 years and
only the name of Sarju Singh is recorded
and no date is mentioned and plot
no.4029
was
sold
by
Rekhai
to
Akchhaibar Singh S/o Surya Bali Singh
on the basis of which the Sub-Divisional
Officer had passed an order for mutation
in 16.02.1966 from which it is proved
that in 1366 Fasli the title of Gherai S/o
Rekhai was undisputed and he has also
sold some of the plots of his Khata.

14. The petitioner had initially
claimed the right over the plot no.4053 area
0-15-0 on the basis of being cultivator as
Kashtkar Maurushi, who became Sirdar
after abolition of Zamidari and after a long
possession he has become the Bhumidar.
On the other two plots i.e. 3908 and 3909
on the basis of entry under clause-9 in
pursuance of an order passed by the
Supervisor Kannongo. But subsequently on
the basis of entry in clause-9 by the order
of Suprvisor Kannongo on plot no.4350 but
no date is given and on plot nos.3908 and
3909 on the basis of order dated 23.02.1965
passed by Supervisor Kannongo, as is in
paragraph
9
of
writ-petition
also.
Therefore, the petitioner claimed the right
on the plots in question on the basis of
adverse possession but failed to show as to
against whom in plot no.4350 and against
Bhagauti Deen in plot no.3908 and 3909,
who is said to be representative of family
and it has argued before this court that
possession was permissive. Therefore the
stand has been changed again. However the
permissive possession may not give any
right and the inconsistent stand has been
taken. The right on the basis of adverse
possession will accrue only if it is in
accordance
with
law.
The
learned
Consolidation
Officer
and
Revisional
Authority have found the entry not in
accordance with the U.P. Land Records
Manual.

15. 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:
886 INDIAN LAW REPORTS ALLAHABAD SERIES
Form No.P-10
Khasra
No.
of
Plot
Area Detail
s
of
entry
in the
last
year
Deta
ils of
entry
mad
e in
the
curre
nt
year
Verifi
cation
report
by the
Reven
ue
Inspec
tor
Ra
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
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
Column of the Khasra will not be deemed
to have been made in the discharge of his
official duty."

16.

Reading
of
the
aforesaid
provisions makes it clear that if any entry is
made
in
P-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 is 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.

17. 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
2 All. Fateh Bahadur Singh Vs. D.D.C. & Ors.
887
on the main tenant, such entries are of no
evidentiary value and would not confer any
right.

18. 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
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."

19. 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.
888 INDIAN LAW REPORTS ALLAHABAD SERIES

20. 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
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
2 All. Santosh Vs. State of U.P.
889
rise to a reasonable notice and opportunity
to the paper owner."

21. The copy of the Khatauni of 136973 Fasli filed by the petitioner alongwith the
supplementary affidavit indicates that the
name of Sarju Singh S/o Vishvanath is
recorded in plot no.4350 which the petitioner
states was recorded on the basis of order
passed by Supervisor Kannoongo but no date
has been disclosed and in plot no.3908 and
3909, the name of Sarju Singh has been
recorded under clause-9 in place of one
Bhagauti Deen on the basis of the order dated
23.02.1965 under PA-10 but in the bottom
the signatures are not clear and the date is not
mentioned. Therefore, it was for the
petitioner to prove that this entry was made
after following the due procedure of law as
prescribed under the Land Records Manual
and was duly communicated to the main
tenant and it was within his knowledge. But
he has failed to prove it. Therefore the
petitioner is not entitled on the basis of
adverse possession and alleged permissive
possession is also not sustainable as the
petitioner could not show as to how Bhagauti
Deen was representative of family and the
possession of father of petitioner was also not
found in basic year.

22. The Revisional Authority on the basis
of sale of Plot No.4029 of the same Khata by
Rekhai to Akchhaibar Singh has allowed the
revision of the respondents without considering
that the revisionist had taken a plea that the
revisionist had got the land in dispute from
Akchhaibar Singh. It is also not in dispute to the
parties that in the basic year the petitioner and
respondents were not in possession. Therefore
the revisional authority has allowed the revision
without considering as to how the land in
dispute has come to the opposite parties and
whether the claim of the respondents is
sustainable in the eyes of law or not.

23.

The
petitioner
has
filed
supplementary
affidavits
and
certain
documents before this Court to show that the
name of the grand father of petitioner and
representative of the family of the petitioner
was recorded in the third settlement i.e. Soyam
but it was not disclosed before the courts
below.

24. In view of above, this Court is of the
opinion that the matter is required to be
reconsidered by the Revisional Authority in
accordance with law and in the light of the
observations
made
here-in-above.
The
petitioner may file the documents, filed before
this Court, before the Revisional Authority, for
his consideration in accordance with law while
deciding afresh.

25. The Writ Petition is, accordingly,
partly allowed. The order dated 20.05.1994
passed by Deputy Director of Consolidation,
Sultanpur is hereby quashed. The matter is
remanded
to
Deputy
Director
of
Consolidation, Sultanpur, who shall decide the
revision a fresh within a period of six months
from the date of production of certified copy
of this order. No order as to costs.
----------
(2021)02ILR A889
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 5657 of 2011

Santosh ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant: