# Jogendra Singh v. Addl. Commissioner & Ors

- **Citation:** (2022) 3 ILRA 833
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-22
- **Case number:** Writ C No. 3000106 of 1994
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jogendra-singh-v-addl-commissioner-ors-48245
- **Pages:** 6

## Headnote

A. Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Sections 11(2)
& 13 - U.P.C.H. Act, 1953 - Section 9 - if
an entry is made in the revenue record
and the said entry is not fictitious or is
found to have been made surreptitiously,
then it cannot be said that such an entry
would have no legal effect. Even an
incorrect entry in law, would not lead to
the conclusion that it ceases to be an
entry. Once the entry is in existence in the
khasra or khatauni of Fasli Year 1356, that
would govern the question as to who is entitled
to take or retain possession of the and to which
the entry relates. (Para 19)

B. U.P.Z.A.& L.R. Act, 1950 - Sections
229-B, 209 & 210 U.P.Z.A. & L.R. Act,
1950 - If Sections 209 & 210 are read
together, it would be found that if a
person has retained possession of the
land otherwise than in accordance with
the provisions of law without consent of
the owner of the land (bhumidhar, sirdar
or asami) or the Gram Sabha as the case
may be, he can be ejected on a suit filed
u/s 209. If, however, the suit is not filed
u/s 209 or a decree obtained in any
other such suit is not executed before
834 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation or execution of the decree, the
person
taking
or
retaining
the
possession without the consent of the
tenure holder or the Gram Sabha would
acquire the right, title and interest of an
asami and the rights of the tenure
holder would get extinguished. The
person in possession becomes asami by virtue
of operation of law and the proceedings u/s
229-B would not be required to be filed by
him. (Para 22)

In the present case, when the entries in
khatauni have not been found to be fictitious
or made fraudulently by two authorities
below
and
the
petitioner's
name
was
recorded in Class-IX of khatauni from 1371 -
1391 Faslis, it was the duty of the prescribed
authority to decide the validity of entry by
allowing the petitioner to lead evidence.
(Para 23)

Writ petition allowed. Remanded back to
prescribed authority. (E-4)

Precedent followed:

## Text

3 All. Jogendra Singh Vs. Addl. Commissioner & Ors.
833
and
misrepresentation
on
the
other;
particularly in the context of an illiterate
and rustic woman vis-à-vis the principle of
reversal of burden. The Lower Appellate
Court has also not spoken about non est
factum in express words. But, throughout
the length and breadth of the impugned
judgment,
one
finds
the
conscious
application of the principle, obliging the
party, who happens to be the plaintiff here,
to effectively prove that the defendants,
who are illiterate and rustic woman,
understood the contents and the nature of
the transaction that the suit agreement
embodied.

49. The Lower Appellate Court,
therefore, on an application of the right
principle of law to judge the rights of
parties, including reversal of burden, in the
opinion of this Court, has, validly and
effectively, reversed the Trial Court. It must
also be remarked that in view of the
wholesome and trite application of the
principle, by which the rights of parties
have to be judged, it is not a case where it
may be said, even remotely, that the Lower
Appellate Court has proceeded to decide a
case culled by itself or what is popularly
called a third case. In the considered
opinion of this Court, the Lower Appellate
Court has decided the case of parties within
the precise parameters of the pleadings and
evidence.

50. In the opinion of this Court,
therefore, substantial question of law No.
(i) must be answered in the negative.

51. In the result, this appeal fails and
is dismissed with costs to the defendants in
all Courts.

52. Let a decree be drawn up
accordingly.
----------
(2022)03ILR A833
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ C No. 3000106 of 1994

Jogendra Singh ...Petitioner
Versus
Addl. Commissioner & Ors. ...Respondents

Counsel for the Petitioner:
V.K. Pandey, J.P. Tiwari

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Sections 11(2)
& 13 - U.P.C.H. Act, 1953 - Section 9 - if
an entry is made in the revenue record
and the said entry is not fictitious or is
found to have been made surreptitiously,
then it cannot be said that such an entry
would have no legal effect. Even an
incorrect entry in law, would not lead to
the conclusion that it ceases to be an
entry. Once the entry is in existence in the
khasra or khatauni of Fasli Year 1356, that
would govern the question as to who is entitled
to take or retain possession of the and to which
the entry relates. (Para 19)

B. U.P.Z.A.& L.R. Act, 1950 - Sections
229-B, 209 & 210 U.P.Z.A. & L.R. Act,
1950 - If Sections 209 & 210 are read
together, it would be found that if a
person has retained possession of the
land otherwise than in accordance with
the provisions of law without consent of
the owner of the land (bhumidhar, sirdar
or asami) or the Gram Sabha as the case
may be, he can be ejected on a suit filed
u/s 209. If, however, the suit is not filed
u/s 209 or a decree obtained in any
other such suit is not executed before
834 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation or execution of the decree, the
person
taking
or
retaining
the
possession without the consent of the
tenure holder or the Gram Sabha would
acquire the right, title and interest of an
asami and the rights of the tenure
holder would get extinguished. The
person in possession becomes asami by virtue
of operation of law and the proceedings u/s
229-B would not be required to be filed by
him. (Para 22)

In the present case, when the entries in
khatauni have not been found to be fictitious
or made fraudulently by two authorities
below
and
the
petitioner's
name
was
recorded in Class-IX of khatauni from 1371 -
1391 Faslis, it was the duty of the prescribed
authority to decide the validity of entry by
allowing the petitioner to lead evidence.
(Para 23)

Writ petition allowed. Remanded back to
prescribed authority. (E-4)

Precedent followed:

1. Wali Mohammad (deceased) by LRs Vs. Ram
Surat & ors., (1989) 4 SCC 574 (Para 19)

Present petition challenges orders dated
08.02.1993,
passed
by
prescribed
authority and 24.06.1994, passed by
appellate authority.

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. Heard Sri V.K. Pandey, learned
counsel for the petitioner and Sri J.P.
Maurya, learned Additional Chief Standing
Counsel for the State-opposite parties.

2. The present writ petition has been
filed seeking quashing of the orders dated
8.2.1993 passed by the prescribed authority
and 24.6.1994 passed by the appellate
authority under the provisions of the U.P.
Imposition of Ceiling on Land Holdings
Act, 1960 (for short ?the Act, 1960?).

3. The dispute relates to Gata
No.9/1/1M
measuring
45.36
acres
belonging to Amar Singh, opposite party
no.7. Gata No.9/1/1/ along with some other
gatas was jointly recorded in the name of
Gur Bux Singh, Resham Singh and
Trilochan Singh sons of Kartar Singh,
Ratan Singh and Amar Singh. Total area of
Gata No.9/1 was 136.09 acres, in which
Amar Singh had share of 35.36 acres. It is
said that all these tenure holders on the
basis of mutual partition came into
possession over their respective shares
without any hindrance. Ceiling proceedings
under the Act, 1960 were commenced
against Amar Singh in the year 1982. Vide
order dated 30.8.1982, the prescribed
authority declared the said land of Amar
Singh as surplus beyond the ceiling limit.

4. It is also said that when the ceiling
authority tried to take possession of the said
land in May, 1999, the petitioner could
know about the order dated 30.8.1982
passed
by
the
prescribed
authority
declaring
the
aforesaid
land of
the
petitioner as surplus. The petitioner on
9.5.1989 filed objection under Section
11(2) of the Act, 1960 before the prescribed
authority.
The
prescribed
authority
dismissed the objection vide order dated
15.5.1989 on the ground of limitation.

5. Against the said order dated
15.5.1989, the petitioner filed Appeal
No.276 of 1988-89 before the appellate
authority. The appeal was allowed vide
order dated 6.1.1990 and the matter was
remanded back to the prescribed authority
for deciding the objection afresh on merit
in accordance with law.

6. In the objection, the petitioner
claimed that he was recorded as tenant in
Class-IX in khatauni of 1369 Fasli and as
3 All. Jogendra Singh Vs. Addl. Commissioner & Ors.
835
per the law, he became sirdar of the
aforesaid land prior to 1375 Fasli, which
corresponds to the year 1968. Further
contention of the petitioner was that before
the due date i.e. 24.1.1971/8.6.1973 by
virtue of operation of law, the petitioner
had become sirdar on the ground that he
was in adverse possession for the period of
six years i.e. in the year 1376 Fasli and,
therefore, the said land could not have been
included in the land holding of Amar
Singh.

7. The prescribed authority framed the
following issues for the decision:-

(i)
Whether
the
objector/petitioner had become bhumidhar
of the land in question on the ground of his
adverse possession before coming into
force the Act, 1960? If yes, then what
would be the effect?

(ii)
Whether
the
objector/petitioner is entitled for any other
relief.

8. The prescribed authority held that
the
petitioner?s
possession
was
not
recorded in any of khasras of Fasli years
1371 to 1391. His name was recorded in
Class-IX of khatauni for 1371-1391 Fasli.
The prescribed authority did not believe the
claim of the petitioner that he was in
possession of the land in question since
1369 Fasli inasmuch as he did not produce
any documentary evidence to substantiate
the said claim. The prescribed authority
further was of the view that if the petitioner
was recorded in possession of the land,
then he would have filed a case under
Section 229-B of U.P.Z.A.& L.R. Act to
establish his right.

9. The prescribed authority also held
that the consolidation proceedings were
going on in the village and in khasra partal,
in PA2 Ka in Class-IX, the disputed land is
mentioned. The Chakbandi Lekhpal in his
statement has specifically said that in
Column Nos.7, 8 and 9 of PA2 Ka, name of
the petitioner was not mentioned against
the disputed land, whereas Column Nos.7
and 8 of PA2 Ka, name of persons, who are
in possession and sikmi persons are
mentioned. The prescribed authority also
find that name of the lease holders after the
said land was declared as surplus land of
Amar Singh, got recorded from 1386 Fasli
itself. The prescribed authority held that
petitioner had never been in possession of
the said land and thus, rejected the
objection of the petitioner vide order dated
8.2.1993.

10. Aggrieved by the said order
passed
by
the
prescribed
authority,
petitioner
filed
Appeal
No.289/9293/94035 under Section 13 of the Act,
1960.
The
appellate
authority
vide
impugned order dated 26.4.1994 did not
find any substance in the claim of the
petitioner over the land in question on the
ground of his alleged adverse possession
and thus, affirmed the order passed by the
prescribed
authority.
The
appellate
authority was of the view that when it was
not shown that the petitioner was in
possession in khasras of 1371-1391 Fasli,
entry of his name in Class-IX would not
have any legal effect in favour of the
petitioner.

11. Sri V.K. Pandey, learned counsel
for the petitioner submits that as per Para
911 of the Land Records Manual, Class-IX
entry in khatauni Para-II gives rise to
judicial proceedings. Error/omission in the
entry recording possession of a person shall
be corrected after hearing the contending
parties taking evidence and recording
836 INDIAN LAW REPORTS ALLAHABAD SERIES
findings.
It
postulates
judicial
determination and is subject to scrutiny by
the competent authority in exercise of his
revisional power.

12. Learned counsel for the petitioner
further submits that the omission/error in
not recording the possession of the
petitioner despite entry of his name in
Class-IX of the khatauni, was required to
be decided in the proceedings that whether
the entries were correct or not correct as
per the Land Records Manual. The said
determination should have taken place on
the
basis
of
evidence
and
proper
opportunity to the petitioner to lead
evidence on the point of showing validity
of recording entry of his name in Class-IX
of the khatauni.

13. Learned counsel for the petitioner
also submits that petitioner's claim has been
rejected merely on the ground that in
corresponding khasra, there was no entry of
his possession and, therefore, mere entry in
Class-IX would not be sufficient. He
further submits that the said finding has not
been
recorded
after
scrutinizing
the
omission/error of recording the possession
of the petitioner in corresponding khasra as
is mandated under the Land Records
Manual.

14. Learned counsel for the petitioner
further submits that petitioner's entry in
Class-IX of khatauni is sufficient proof of
his adverse possession and it was sufficient
evidence to prove his adverse possession.
He further submits that petitioner was not
required to file proceedings under Section
229-B of U.P.Z.A.& L.R. Act. If the
stipulated period of adverse possession get
completed, then the original tenure holder
cannot initiate proceedings under Section
209 U.P.Z.A. & L.R. Act and, as per
Section 210 of U.P.Z.A. & L.R. Act, the
person having adverse possession, would
obtain the right of those person against that
property, if he has completed the stipulated
period of adverse possession.

15. Learned counsel for the petitioner
also submits that there has been no finding
recorded by the prescribed authority or by
the appellate authority that petitioner used
fraudulent means or fabricated the record
of khatauni. Entry in Class-IX of a person,
is an entry of recording his possession. He,
therefore, submits that the orders passed by
the prescribed authority and the appellate
authority are bad in law and are liable to be
quashed.

16. On the other hand, Sri J.P.
Maurya, learned Additional Chief Standing
Counsel has supported the orders passed by
the
two
authorities
below
and
has
submitted that petitioner could not prove
his claim of adverse possession. He did not
file the khasra (record of possession) of the
relevant
years
before
the
prescribed
authority. The petitioner did not file
objection under Section 9 of the U.P.C.H.
Act during the consolidation proceedings in
the village claiming to be sirdar on the
basis of adverse possession of the land in
question.
It
appears
that
by
influence/fraudulent means, he could get
his name recorded in Part-II of Class-IX of
khatauni and such an entry in the khatauni,
would not vest any right in favour of the
petitioner.

17. Sri J.P. Maurya has further
submitted that two authorities below have
concurrently held that petitioner could not
prove his adverse possession over the land
in question before the due date and,
therefore, this Court may not interfere with
the findings of fact recorded by the two
3 All. Jogendra Singh Vs. Addl. Commissioner & Ors.
837
authorities below. He has also submitted
that after the said land of Amar Singh was
declared as surplus, leases had been
executed in favour of the landless persons.
The petitioner was never in possession of
the said land. Therefore, the writ petition
being without any merit and substance, is
liable to be dismissed.

18. I have considered the submissions
advanced on behalf of the learned counsel
for the petitioner as well as by the learned
Additional Chief Standing Counsel and
perused the record of the writ petition.

19. This Court in the case of Wali
Mohammad (deceased) by LRs vs. Ram
Surat and others, (1989) 4 SCC 574 has
held that if an entry is made in the revenue
record and the said entry is not fictitious or
is found to have been made surreptitiously,
then it cannot be said that such an entry
would have no legal effect. Even an
incorrect entry in law, would not lead to the
conclusion that it ceases to be an entry.
Once the entry is in existence in the khasra
or khatauni of Fasli Year 1356, that would
govern the question as to who is entitled to
take or retain possession of the and to
which the entry relates. Paragraph 6 of the
aforesaid judgement reads as under :-

"6. Coming to the present case,
although the Additional Commissioner has
held that the entry was fictitious, that
conclusion seems to have arrived at merely
on the basis that Wali Mohammad was in
possession in Fasli Year in question, with the
result that the entry in the Khasra or
Khatauni showing Ram Kumar as the
occupant could not be correct. There is
nothing to show that the said entry was
fictitious or was made fradulently or was
incorrectly introduced by reason of iII-will or
hostility towards Wali Mohammad. In these
circumstances, the entry may not be correct
but it could not be said to be fictitious or
regarded as non est. Merely because the entry
might be incorrect, that would not make any
difference to the determination of the
question as to who is entitled to be declared
to be the Adhivasi of the land under the
provisions of section 20(b) of the said Act. We
agree with the conclusion and reasoning of
the High Court."

20. In the present case, two authorities
below have not recorded any finding that
entry of the petitioner in Class-IX of khatauni
was a fictitious or was made fraudulently.

21. Sections 209 and 210 of the
U.P.Z.A. & L.R. Act, which have bearing in
the present case, read as under :-

"209.
Ejectment
of
persons
occupying land without title.-[(1)]A person
taking or retaining possession of land
otherwise than in accordance with the
provisions of the law for the time being in
force; and-

(a) where the land forms part of the
holding of a bhumidhar,[* * *]or asami
without the consent of such bhumidhar,[* *
*]or asami;

(b) where the land does not form
part of the holding of a bhumidhar,[* * *]or
asami without consent of the[Gaon Sabha],

shall be liable to ejectment on the
suit in cases referred to in Clause (a) above
of the bhumidhar,[* * *]or asami concerned
and in cases referred to in Clause (b) above
of the[Gaon Sabha][* * *]and shall also be
liable to pay damages.

[(2) To every suit relating to a
land referred to in Clause (a) of sub-section
(1)
the
State
Government
shall
be
impleaded as a necessary party.]

210. Consequence of failure to the
suit under Section 209.- If a suit for eviction
838 INDIAN LAW REPORTS ALLAHABAD SERIES
from any land under Section 209 is not
instituted by a bhumidhar or asami, or a decree
for eviction obtained in any such suit is not
executed within the period of limitation
provided for institution of such suit or the
execution of such decree, as the case may be,
the person taking or retaining possession shall-

(a) where the land forms pail of the
holding of a bhumidhar with transferable
rights, become a bhumidhar with a transferable
rights of such land and the right, title and
interest of an asami, if any, in such land shall be
extinguished;

(b) where the land forms part of the
holding of a bhumidhar with non-transferable
rights, become a bhumidhar with nontransferable rights I and the right, title and
interest of an asami, if any, in such land shall be
I extinguished;

(c) where the land forms part of the
holding of an asami on behalf of the Gaon
Sabha, become an asami of the holding from
year to year.]

[Provided that the consequences
mentioned in Clauses (a) to (c) shall not ensue
in respect of any land held by a bhumidhar or
asami belonging to a Scheduled Tribe.]"

22. If Sections 209 and 210 of the
U.P.Z.A. & L.R. Act are read together, it
would be found that if a person has retained
possession of the land otherwise than in
accordance with the provisions of law without
consent of the owner of the land (bhumidhar,
sirdar or asami) or the Gram Sabha as the case
may be, he can be ejected on a suit filed under
Section 209 of U.P.Z.A.&L.R. Act. If,
however, the suit is not filed under Section 209
of U.P.Z.A.&L.R. Act or a decree obtained in
any such suit is not executed before limitation
or execution of the decree, the person taking or
retaining the possession without the consent of
the tenure holder or the Gram Sabha would
acquire the right, title and interest of an asami
and the rights of the tenure holder would get
extinguished. The person in possession
becomes asami by virtue of operation of law
and the proceedings under Section 229-B of
U.P.Z.A. & L.R. Act would not be required to
be filed by him.

23. Thus, this Court finds that when the
entries in khatauni have not been found to be
fictitious or made fraudulently by two
authorities below and the petitioner's name was
recorded in Class-IX of khatauni from 13711391 Faslis, it was the duty of the prescribed
authority to decide the validity of entry by
allowing the petitioner to lead evidence.

24. In view thereof, the present writ
petition is allowed and the impugned orders
dated 8.2.1993 and 24.6.1994 passed by the
prescribe authority and the appellate authority
are hereby quashed. The case is remanded
back to the prescribed authority to decide the
case
afresh
in
accordance
with
law
expeditiously, preferably, within a period of six
months from today. Petitioner should appear
before the prescribed authority on 4.4.2022
along with this order.
----------
(2022)03ILR A838
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIVEK VARMA, J.

First Appeal From Order No.155 of 2022

United India Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Shashi Prabha & Ors. ...Respondents

Counsel for the Appellant:
Sri Saurabh Srivastava