# Heshamullah & Ors v. The U.P. Sanchalak Chakbandi, Pratapgarh & Ors

- **Citation:** (2020) 1 ILRA 1912
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-26
- **Case number:** Consolidation No. 2141 of 1981
- **Bench:** Rajan Roy, Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heshamullah-ors-v-the-u-p-sanchalak-chakbandi-pratapgarh-ors-45082
- **Pages:** 3

## Headnote

Jitendra Misra

A. Consolidation-Class-9 entry in favour
of - then too, erstwhile tenure holder did
not initiate any proceedings u/s 209 -
S.O.C considered this fact- but DDC
ignored-impugned order quashed.

Special Appeal allowed. (E-8)

## Text

1 All. Ramakant Vs. Union of India & Ors.
1913
(2020)1ILR 1912

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2019

BEFORE
THE HON'BLE RAJAN ROY, J.

Consolidation No. 2141 of 1981

Heshamullah & Ors. ...Petitioners
Versus
The
U.P.
Sanchalak
Chakbandi,
Pratapgarh & Ors. ...Respondents

Counsel for the Petitioners:
S. Mirza, Anjum Ara, Jagdish Singh,
Mohammad Aslam Khan, Shahid Raza

Counsel for the Respondents:
Jitendra Misra

A. Consolidation-Class-9 entry in favour
of - then too, erstwhile tenure holder did
not initiate any proceedings u/s 209 -
S.O.C considered this fact- but DDC
ignored-impugned order quashed.

Special Appeal allowed. (E-8)

(Delivered by Hon'ble Rajan Roy,J.)

1. None has appeared on behalf of
the contesting opposite party no.3 to argue
the matter.

2. Heard.

3. The dispute herein pertains to Gata
No.1022. The consolidation operation
started on 21.7.1973 on issuance of
notification under section 4. In the Basic
Year Khatauni the opposite party no.3
Mujibulla was recorded therein consequent
to a sale-deed said to have been executed
by the erstwhile tenure holder Habib Khan
in his favour in the year 1968 which
corresponds to 1375F. During partal a
dispute arose with regard to Sirdari rights
on the basis of adverse possession. The
petitioners who are the sons of Abdul
Majid were allegedly found to be in
possession of the land in dispute during
partal. When the dispute came up for
consideration before the Consolidation
Officer in the first round of litigation, the
Consolidation Officer (C.O.) rejected the
claim of the petitioners based on adverse
possession vide order dated 8.2.1978,
however, when an appeal was filed by the
petitioners before the Settlement Officer,
Consolidation (S.O.C.), the same was
allowed on 19.9.1978 and the order of the
Consolidation Officer was set aside and
the claim of the petitioners was accepted.
Against this the opposite party no.3 filed a
revision before the Deputy Director
Consolidation
(D.D.C.)
which
was
allowed on 10.2.1981. The order of the
S.O.C. dated 19.9.1978 was set aside and
the order of the C.O. dated 8.2.1978 was
restored. The D.D.C. while deciding the
revision was persuaded by the fact that the
name of Abdul Majid, father of the
petitioners came to be recorded in the
revenue records for the first time in 1375F
as being in possession under Class-9 entry.
According
to
him,
the
limitation
prescribed for perfection of title based on
adverse possession became 12 years with
effect from 14.11.2017 and, as, the name
of Abdul Majid was recorded from 1375F
till 1378F, for only 4 Fasli, therefore, the
aforesaid
period
of
prescription
for
perfection of title was not satisfied. He
was also persuaded by the fact that the
revenue parcha and receipts submitted by
the petitioners herein as proof of their
continuous and hostile adverse possession
were found by him to be of suspect
evidentiary value. Based on the aforesaid
he declined the claim of the petitioners and
1914 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed the revision of the opposite party
no.3.

4. The Court finds that the period of
limitation for a suit under section 209
prescribed at Serial No.30 of Appendix III
referred in Rule 338 of the U.P. Zamindari
Abolition & Land Reforms Rules 1952
was initially two years. Thereafter it has
undergone
amendments,
firstly,
on
9.4.1955,
when
this
limitation
was
extended to three years from the date of
vesting, thereafter, it was further amended
and extended to six years from the first of
July following the date of occupation vide
notification dated 27.3.1959 and thereafter
it was again amended and extended to 12
years from the first of July following the
date of occupation vide notification dated
14.11.1971.

5. On a perusal of the order of S.O.C.
conjointly with the order of the D.D.C. this
Court finds that the D.D.C. omitted to
consider certain relevant aspects of the
matter including certain documents which
were on record. He did not consider the
Khasra pertaining to 1363 Fasli wherein
the name of Abdul Majid was recorded as
a Class-9 entry as was taken note of by the
S.O.C. This was a material fact. When this
order is read conjointly with the order of
the S.D.O. dated 25.7.1969 which was
passed in proceedings for correction of the
revenue records under section 33/39 of the
U.P. Land Revenue Act 1901 initiated by
Habib Khan, the vendor and predecessor
in interest of Mujibullah- Oposite party
no.3, wherein, the S.D.O. took note of the
fact that the name of Abdul Majid was
recorded as Class-9 entry and, considering
the continuance of such entry, he observed
that, proceedings are not maintainable and
the appropriate course for him was to
initiate proceedings under section 209 of
the U.P. Zamindari Abolition and Land
Reforms Act 1950 for eviction of the
unauthorized occupant. The D.D.C. also
failed to consider another fact which was
taken note of by the S.O.C. in his
judgment, that is the subsequent (second)
proceedings initiated by Habib Khan
himself
under
section
33/39
which
culminated in the order dated 26.11.1970
vide which the S.D.O. ordered the earlier
Class-9 entry in favour of Abdul Majid to
be continued, obviously for the same
reason as mentioned in the earlier order
dated 25.7.1969. In spite of these two
orders, Habib Khan, the erstwhile tenure
holder, did not initiate any proceedings
under section 209, a fact which was taken
note of by the S.O.C., but has been lost
sight of by the D.D.C. The effect of noninitiation of any proceedings under section
209 of the Act 1950 as is spelt out in
section 210 of the Act 1950 has also not
been considered by the D.D.C.

6. Furthermore, Class-9 entry in favour of
the petitioner's father Abdul Majid and his
alleged possession, whether this was to be
considered on the basis of tagging in
continuation of such entry, if any, in favour of
the petitioners and their possession if any, has
also not been considered by the D.D.C.

7. Most importantly the D.D.C. has
been persuaded by the fact that the entry in
the revenue record pertaining to 1375F
allegedly for the first time in favour of
Abdul Majid was not in accordance with
the Land Record Manual as the requisite
diary number at P.A.10 entry are not
mentioned nor the process prescribed
under the Rules had been followed, but, he
failed to appreciate the fact that if the
name of Abdul Majid was existing as a
Class-9 entry in Khasra 1363F then at that
time the provisions contained in paragraph A-
1 All. Heshamullah & Ors. Vs. The U.P. Sanchalak Chakbandi, Pratapgarh & Ors.
1915
80 and A-81 of Chapter A-V of the Land
Records Manual had not come into force and
were
inserted
only
subsequently
vide
notification dated 18.1.1958 nor did he
consider as to what would be the effect of this
aspect of the matter if there was a Khasra of
1363 F on record with a Class-9 entry in
favour of petitioner's father Abdul Majid.

8. In this view of the matter and for
the reasons aforesaid as the D.D.C. has not
considered the findings and relevant
aspects as have been noted hereinabove
and as were considered by the S.O.C.,
therefore,
based
on
such
nonconsideration,
and
as
all
this
was
considered by the S.O.C., therefore, the
order of the D.D.C. is liable to be set aside
and the matter is liable to be remanded
back for consideration afresh in the light
of what has been stated hereinabove.

9. It is, however, made clear that so far as
the findings of the D.D.C. as to the veracity and
evidentiary value of the irrigation receipts are
concerned, they being based on appreciation of
evidence which cannot be set aside by the Writ
Court under Article 226 of the Constitution, the
said findings pertaining to the irrigation receipts
are not being interfered with and shall attain
finality. Subject to this, reconsideration shall be
made the D.D.C. as aforesaid.

10. The order impugned dated
10.2.1981 contained in Annexure No.13 is
accordingly set aside.

11. The D.D.C. shall dispose off the
proceedings aforesaid within eight months
from the date a certified copy of this order is
submitted, if necessary, by taking up the matter
on day-to-day basis as far as possible.

12. The Court has also taken note of the
interim order dated 5.5.1981 by which it was
ordered that if the petitioners are in possession
of the land in dispute, they shall not be
disturbed. There is nothing on record to show as
to who is in possession of the land in dispute as
of now nor as to who is recorded in respect of
the above at present.

13. Till disposal of the proceedings
by the D.D.C. status quo with regard to
possession of the land in dispute and
entries in the revenue records shall be
maintained and neither of the parties shall
alienate the same.

14. The writ petition is allowed in
part.
----------
(2020)1ILR 1914

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.

Writ-C No. 267 of 2019

Smt. Rajeshwari ...Petitioner
Versus
Commissioner/Additional Commissioner (J),
4th Division, Meerut & Ors. ...Respondents

Counsel for the Petitioner:
Sri Surendra Pratap Singh

Counsel for the Respondents:
C.S.C.

A. U.P. Zamindari Abolition and Land
Reforms
Act,
1950
-
Section
157AA/166/167
-
Restrictions
on
transfer by member of schedule castes
becoming Bhumidhar under section 131B - Section 157AA (4) - a person is
entitled to execute a sale deed, etc. in
favour of person(s) belonging to the
Scheduled Caste, such transfer shall not