# Mahesh Chandra Saxena & Ors v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 177
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-16
- **Case number:** BEFORE THE HON'BLE SAURABH LAVANIA J. Writ B No. 288 of 2024
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-chandra-saxena-ors-v-state-of-u-p-ors-52231
- **Pages:** 58

## Headnote

C.S.C

U.P.
Zamindari
Abolition
and
Land
Reforms Act,1950-Section 20 (b)-Entries
indicated in the documents relied by the
Petitioners are not genuine-in 1356 Fasli , the
land in dispute was recorded as "Imarati Lakdi
ka Jungle" (Timber Trees) in U.P. Land Records
Manual-land not recorded in the name of Raja
Brijraj Bahadur Singh-area of said Gata was
reduced by making correction/cutting in the
Khatauni and U.P. Land records Manual -these
cutting/corrections were made without any
order of competent Revenue Official-benefit of
Sec. 20 (b) of the Act, 1950 would be available
to the Petitioners if the entry was genuine-no
right available to them based upon the sale
deed as their basis is not a valid document-
'Sublato Fundamento Cadit Opus'-'Nemo
dat quod non habet'.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,901 of 197,372. This is a partial read: ask again with offset=39901 for what follows._

7 All. Mahesh Chandra Saxena & Ors. Vs. State of U.P. & Ors.
177

23. After considering the facts and
circumstances and discussions made above,
now it is not necessary to replicate on the
issue of the notice served by the petitioner
to the respondent. The deposit as demanded
by the petitioner from the respondent prior
to the framing of the issues is admitted by
both the parties i.e. by the learned counsel
for the petitioner and learned counsel for
the respondent hence amount was deposited
on the first date of hearing, prior to the
framing of the issues. The property which
the petitioner has alleged in his reply to the
objection filed by the respondent in a suit,
it is an admitted case that it is a residential
house in which the respondent is residing
with his family and it is also admitted that
no evidence was led before the trial court
whether it can be used for the commercial
purposes or not and nor it has been
mentioned that it is being used by the
respondent for commercial purposes, as
such the petition is devoid of merit and is
liable to be dismissed.

24. The writ petition is dismissed.
----------
(2024) 7 ILRA 177
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA J.

Writ B No. 288 of 2024

Mahesh Chandra Saxena & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Nagendra Kumar Khare, Mohammad Aslam
Khan, Mohan Singh

Counsel for the Respondents:
C.S.C

U.P.
Zamindari
Abolition
and
Land
Reforms Act,1950-Section 20 (b)-Entries
indicated in the documents relied by the
Petitioners are not genuine-in 1356 Fasli , the
land in dispute was recorded as "Imarati Lakdi
ka Jungle" (Timber Trees) in U.P. Land Records
Manual-land not recorded in the name of Raja
Brijraj Bahadur Singh-area of said Gata was
reduced by making correction/cutting in the
Khatauni and U.P. Land records Manual -these
cutting/corrections were made without any
order of competent Revenue Official-benefit of
Sec. 20 (b) of the Act, 1950 would be available
to the Petitioners if the entry was genuine-no
right available to them based upon the sale
deed as their basis is not a valid document-
'Sublato Fundamento Cadit Opus'-'Nemo
dat quod non habet'.

W.P. dismissed. (E-9)

List of Cases cited:

1. Ram Avadh & ors. Vs Ram Das & ors. (2008)
8 SCC 58

2. Jasraj Inder Singh Vs Hemraj Multanchand.
(1977) 2 SCC 155

3. Mohd. Karrar Ali and 2 others Vs the St. of
U.P., AIR 1954 All 753

4. T.N. Godavaraman Thirumulpad etc. Vs
U.O.I.& ors.; AIR 1997 SC 1228

5. Consolidation No. 1268 of 1979 (St. of U.P.
Through The Divisional Forest Officer Vs The
Deputy Director of Consolidation, U.P. & ors.)

6. St. of U.P. Vs Dy. Director of Consolidation &
ors.; AIR 1996 SC 2432

7. Gyanendra Singh & anr. Vs Additional
Commissioner, Agra Division, Agra & ors.; 2003
(95) RD 286

8. Sharad Kumar Dwivedi Vs St. of U.P. & ors.
2022 SCC OnLine All 466
178 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Writ - C No.1001953 of 2006 (Ramesh Vs
Additional Commissioner, Lucknow And 2 Ors.)

10. T.N. Godavaraman Thirumulpad etc. Vs
U.O.I.& ors.; (1997) 2 SCC 267

11. Bachan & ors. Vs Kankar & ors. (1972) 2
SCC 555

12. Mohd. Ramzan Khan Vs D.D.C., Allahabad &
ors.; 2009 SCC OnLine All 1111

13. Gujj Lal & ors. Vs Dy. Director of
Consolidation, Firozabad and Ors., 2015 SCC
OnLine All 8063

14. Smt. Sonawati & ors. Vs Sri Ram & anr.;
1967 SCC OnLine SC 128

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Mohd. Arif Khan, learned
Senior Advocate with Advocate(s) Sri
Nagendra Kumar Khare, appeared for
petitioners. Advocate(s) Sri Hemant Kumar
Pandey and Sri Dev Prakash Mishra,
appeared for the State.

2. By means of present petition,
the petitioners have assailed the order dated
10.04.2023 passed by respondent No. 2District Magistrate/District Deputy Director
of Consolidation, Lakhimpur Kheri in Case
No.
2050/2022,
Computerized
Case
No.D202210430002050 (Mahesh Chandra
Saxena
and
Others
vs.
Prabaghiya
Vanadhikari and Others) as also the order
dated 16.10.2019 passed by respondent
No.3-Consolidation
Officer,
Antim
Abhilekh Second, Lakhimpur Kheri in
Case No. 79/68 (Mahesh Chandra Saxena
and Others vs. Prabaghiya Vanadhikari and
Others).

3. After hearing the learned Senior
Advocate for petitioners and learned
counsel for the State, the judgment was
reserved on 18.03.2024. On this date,
learned counsel for the parties prayed for
liberty to submit their written submissions
alongwith some relevant documents, for
which they were permitted.

4. The written submissions dated
01.04.2024 signed by Mohd. Aslam Khan,
Advocate was submitted on behalf of
petitioners. Alongwith written submission
following have been annexed:-

(i) Copy of judgment passed by
the Hon'ble Apex Court in the case of Smt.
Sonawati and Others vs. Sri Ram and
Another; 1967 SCC OnLine SC 128. In
this case, based upon the entry of 1356
Fasli (1949 A.D.) rights over the land
provided to Pritam Singh were interfered
with by this Court and the judgment of this
Court was affirmed by the Hon'ble Apex
Court. The judgment of affirmation was
passed by the Hon'ble Apex Court after
observing that name of Pritam Singh was
surreptitiously entered in Khasra for 1356
Fasli (1949 A.D.) and after taking note of
Section 20(b) of U.P. Zamindari Abolition
and Land Reforms Act, 1950 (in short "Act
of 1950") and the fact that in the Khasra
Barahsala i.e. Consolidated Khasra for
1347-1358 Fasli (1940 to 1951 A.D.) Tota
Ram and Lajja Ram are shown as persons
cultivating the land and there is no record
of name of any sub-tenant on the land.

(ii) Copy of judgment passed by
the Hon'ble Apex Court in the case of Ram
Avadh and Others vs. Ram Das and
Others (2008) 8 SCC 58. In this case, the
Hon'ble Apex Court, after considering the
Section 20 of the Act of 1950 including
Explanation III therein as also the entry in
the Khatauni for the year 1356 to 1366
Fasli (1949 to 1959 A.D.) interfered in the
judgment of the High Court and the
revisional Court and affirmed the decision
7 All. Mahesh Chandra Saxena & Ors. Vs. State of U.P. & Ors.
179
of the Consolidaton Officer and Settlement
Officer of Consolidation and provided
rights to the appellants therein.
 (iii) The copy of the judgment
passed by the Hon'ble Apex Court in the
case of Jasraj Inder Singh vs. Hemraj
Multanchand. (1977) 2 SCC 155. This
judgment relates to order of remand and
according to this, the observations made in
the remand order should be complied with
by the authority to whom the matter was
remanded back.

(iv) Copy of the United Provinces
Private Forests Act, 1948 (U.P. Act No. 4
of 1949).

(v) Copy of the judgment passed
by this Court in the case of Mohd. Karrar
Ali and 2 others vs. the State of U.P.,
AIR 1954 All 753. According to this
pronouncement, U.P. Private Forests Act,
1948 has no application to the land other
than forests.

(vi) Copy of Para A-124 of U.P.
Land Records Manual.

(vii) Copy of Chapter II of Indian
Forests Act, 1927 (in short "Act of 1927")
which includes Section 20-A as applicable
in Uttar Pradesh.

(viii)
Copy
of
the
counter
affidavit filed by the State in Writ Petition
No. 174 (M/S) of 2001 (Mahesh Chandra
Saxena & Ors. vs. State of U.P. & Others)
annexing therewith the copies of Khatuani
of 1356 Fasli (1949 A.D.) and 1359 (1952
A.D.) Fasli. The copy of counter affidavit
has been filed to establish that in 1359 Fasli
(1952 A.D.) there was no cutting.

(a) It would be apt to indicate that
in the Khatauni of 1356 Fasli (1949 A.D.)
the area of Gata/Plot No. 21 is mentioned
as 431.46 acre and the name of Raja Brijraj
Bahadur Singh does not find place, (the
basis of claim of predecessor-in-interest of
petitioner
and
the
petitioners),
and
according to the same, entire land was
recorded under entry/Ziman-8(iii)(a)(1),
"Imarti Lakdi Ka Jungle".

(b) It would be relevant to
indicate that from the certified photocopy
of the Khatauni of 1359 Fasli (1952 A.D.),
(annexed as Annexure No. 4 to the writ
petition), it is evident that area of Gata/Plot
No. 21 i.e. 431.46 acres mentioned in
Khatauni of 1356 Fasli (1949 A.D.) was
reduced by making correction/cutting to
393.91 acres and this correction/cutting
was made without any order of the
competent Revenue Official and it bears
signature of someone, whose designation
has not been disclosed. It is also evident
from this Khatauni that after reducing the
original area i.e. 431.46 acres to 393.91
acres different Gata(s)/Plot(s) were carved
out as Gata No(s). 21, 21/2, 21/3, 21/4,
21/5, 21/6 & 21/7. In the Khatauni, the
names of Daal Singh S/o Mom Raj Singh,
Gopal Singh S/o Sagar, Buddha S/o
Kamma, Surta S/o Buddha, Param Singh
S/o Mom Raj Singh and Amru S/o Ram
Ram, respectively, showing Barley (Jow)
crop against Gata No(s). 21/1 to 21/7,
respectively, and this was also carried out
without any order in this regard.

5. The written submission dated
24.05.2024 by the State, signed by Sri
Hemant Kumar Pandey, Sri Dev Prakash
Mishra and Sri Yogesh Kumar Awasthi,
annexing therewith following documents
was submitted. Alongwith this written
submissions following have been annexed:-

(i) Copy of the sale deed(s) of
Mahesh Chandra Saxena and Sanjiv Kumar
Saxena, Nanhey Lal Sharma, Smt. Vijay
Rani Sharma, Nanhey Lal Sharma, Smt.
Kamla Saxena, Smt. Vijay Rani Sharma,
respectively.
180 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Copy of the Khatauni of 1356
Fasli (1949 A.D.) and 1359 Fasli (1952
A.D.).
 (iii) Copy of the order dated
18.07.2018 passed by the Consolidation
Officer.
 (iv) Copy of the report dated
07.06.1999 prepared and submitted by Sri
Arun
Kumar
Mishra,
Commissioner,
Lucknow Division, Lucknow before the
Principal Secretary, Forests Department.

(v) Copy of Form-41 prepared
during consolidation proceedings.

(vi) Copy of Form-45 prepared
during consolidation proceedings.
(vii) Copy of Khatauni for
1424-29 Fasli (2017-2022 A.D.).

(viii) Copy of the judgment
passed by the Hon'ble Apex Court in the
case of T.N. Godavaraman Thirumulpad
etc. vs. Union of India and Others; AIR
1997 SC 1228. In this case, the Hon'ble
Apex Court described the word 'Forest'.

(ix) Copy of judgment passed by
this Court in Consolidation No. 1268 of
1979 (State of U.P. Through The
Divisional Forest Officer vs. The Deputy
Director of Consolidation, U.P. and
Others). In this case, the Hon'be Apex
Court has issued certain guidelines to save
the forest and to reduce the de-forestation.

(x) Copy of judgment passed by
the Hon'ble Apex Court in the case of State
of U.P. vs. Dy. Director of Consolidation
and Others; AIR 1996 SC 2432. This case
also deals with Forest land and according to
this case, no right would be available over
the Forest land after notification in terms of
Section 4 and 20 of the Indian Forest Act,
1927.

(xi) Copy of Section 20-A of
Indian Forest Act, 1927.
 (xii)
Copy
of
order
dated
03.06.2016 issued by the Chief Conservator
of Forest, U.P., Lucknow for making
compliance of the directions issued by the
Hon'ble Apex Court in the case of T.N.
Godavaraman (Supra).

(xiii) Copy of judgment passed
by the Hon'ble Apex Court in the case of
T.N. Godavaraman Thirumulpad vs.
Union of India & Ors. dated 03.12.2010.

6. The facts indicated in the
written submissions dated 01.04.2024 filed
by learned counsel for petitioners and the
facts indicated in the petition are similar
and learned Senior Advocate in his oral
submissions placed all the relevant facts
and law before this Court in support of his
contention. Accordingly, to take note of
relevant
facts
and
the
submissions
advanced by the learned Senior Advocate,
the
averments
made
in
the
written
submissions dated 01.04.2024 are extracted
hereinunder:-

"1. The property in dispute,
namely, Plot no.21. having an area of
431.61
acres,
situate
in
Mohal
Mustahakam, Village, Alenganj, Pargana,
Bhud, District, Kheri, before abolition of
Zamindari i.e. in khatauni 1356 Fasli was
recorded in the Khewat Khatauni of Raja
Brijraj Bahadur of Jhandi Estate in Ziman
8 (3) (i) of Non-Z.A. khatauni i.e. "Krishi
Yogya Banjar Bhumi and Imarati Lakari
Ke Van". The predecessor in interest of the
petitioners occupied cultivable portion of
plot no.21 in 1358 Fasli and had sown
barley crop without the consent of the
Zamindar with the result, their names were
entered/ recorded in khatauni 1359 Fasli
prepared by the Lekhpal in Red Ink in
Ziman 5-A as U.P. Land Records Manual
was applicable to Non-Z.A. Area of Oudh
with a duration of one year.

2. The names of the predecessor
in interest of the petitioners were recorded
in khatauni 1359 Fasli over plot nos.21/2
7 All. Mahesh Chandra Saxena & Ors. Vs. State of U.P. & Ors.
181
to 21/7 (annexure no.4). The said entry
continued. The village was brought under
consolidation operations, after issue of
notification under section 4 of U.P.
Consolidation of Holdings Act (hereinafter
called) the Act and the names of the
predecessor in interest of the petitioners
were recorded. Notification under section
52 of the Act was published in 1392 Fasli
and the records were remitted to Tehsil
Authorities, Tehsil, Gola, District, Kheri.
Fresh khatauni was prepared in 1395 Fasli
and the names of the predecessor in
interest of the petitioners, namely, Dal
Singh & others were recorded over new
nos. 22Kha to 22Chha.

3. The petitioners purchased the
land in dispute, admeasuring 31.35 acres
from the recorded tenure holders under
registered sale deeds dated 17.3.1997,
28.4.1997, 2.5.1997, 1.7.1997 and 4.7.1997
for valuable sale consideration.

4. In pursuance to the sale deeds,
possession was delivered to the petitioners
and their names were also mutated in
revenue records. Prior to the purchase by
the petitioners, they made enquiries and
they
were
informed
by
the
Forest
Settlement Officer, Kheri that the plots in
dispute were not acquired by the Forest
Department for reserve forest. It is
submitted that a notification under section
4 of Indian Forest Act in respect to an area
of 246.67 acres was issued relating to plot
no * 0.22 = 21/2 old number and other
plots. Thereafter a notification under
section 20 of the Act was issued in respect
to aforesaid plots on 26.4.1968 (annexure
no.8).

5. As stated above, after purchase
of the property in dispute from the recorded
bhumidhars, the names of the petitioners
were mutated and they are bonafide
purchasers for valuable consideration
without notice.

6. After a lapse of 45 years, an
application was made by the Divisional
Forest Officer (opposite party no.4) for
deleting the names of the predecessor in
interest
of
the petitioners
from
the
aforesaid plots, stating therein that the
property in dispute is reserve forest. Sub
Divisional Officer, Gola Gokran Nath,
called upon a report from the Tehsildar,
Gola, who submitted a report on 16.5.1995
(annexure no.10), stating therein that the
recorded tenure holders as per the report
of the Lekhpal and Supervisor Kanoongo
are in continuous possession and are
paying its land revenue. A notification
under section 20 of the Act was issued. On
a comparison of the settlement map, it is
apparent that plot nos.22 and 27 are
outside reserve forest, standing on plot
nos.21 and 23 and reserve forest situate at
a distance of one km away from the plots in
dispute. The Sub Divisional Officer, on a
consideration of entire facts and the
evidence on record, including the report
submitted by the Tehsildar, rejected the
application made by the Forest Department
vide order dated 30.6.1995.

7.
After
rejection
of
the
application made by the opposite party
no.4, no action was taken by the Forest
Department, assailing the said order by
filing an appeal or revision and the
petitioners, as stated above, are in
continuous cultivtory possession.

8.
It
is
submitted
that
as
mentioned above, the petitioners being in
occupation in 1358 Fasli and were
cultivating the land in dispute and being
recorded as occupants in 1359 Fasli, by
virtue of section 20 (b) of the Act read with
Rule 177 - A , they became Sirdar and
lateron Bhumidhar by virtue of amendment
made under section 131 of U.P.Zamindari
Abolition & Land Reforms Act, as has been
laid down by this Hon'ble Court as well as
182 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court in the case of Smt. Sonawati,
1968 R.D. pages 151 and 2008 (8) SCC,
page 58, Ram Avadh & others versus
Ramdas & others.

9. The petitioners submit that
longstanding entries could not be corrected
in proceedings under section 33/39 of
U.P.Land Revenue Act, as neither the State
Government nor the Forest Department
had ever assailed the longstanding entries
recorded in the name of the predecessor in
interest of the petitioners and after
purchase. in the name of the petitioners,
hence the application for correction of the
entries made by the opposite party no.4
was rightly rejected by the Sub Divisional
Officer, Gola.

10. The petitioners further submit
that no notification, either under section 4,
6 or under section 20 of Indian Forest Act
had so far been issued in respect to the
plots in dispute. As mentioned above, since
the land was lying vacant, the predecessor
in interest of the petitioners starting
cultivating the land in dispute without the
consent of the landlord and being in
occupation, their names were recorded by
the concerned Lekhpal in Ziman 5-A of
U.P. Land Records Manual applicable to
Oudh.

11. Again an application was
made by the Divisional Forest Officer,
South, Kheri for correction of the entries in
revenue records in respect to the plots in
dispute, on which a report was again called
upon from the Tehsildar, Gola Gokran
Nath.

12. Sub Divisional Officer, Gola,
even without affording any opportunity of
hearing to the petitioners, passed an order
on 28.10.1999 (annexure no. 13) for
deleting the names of the petitioners and
recording the land in dispute in the name of
Forest Department "Imarati Lakari Ke
Jangal, Zere-Intezam, Forest Department."

13. Being aggrieved by the
exparte
order
dated
28.10.1999,
the
petitioners filed a revision no.54 (L.R.)
1999-2000 before the Board of Revenue,
which was allowed vide order dated
11.10.2000 (annexure no.14) and the
matter was remanded to the Sub Divisional
Officer, Gola to pass fresh orders on
merits, after impleading Gaon Sabha as
well as after affording opportunity to the
petitioners to adduce their evidence, after
examining the original records. While
remanding the matter, the Board of
Revenue had specifically observed in para
4 of the judgment to the effect that the
Forest Department could not produce any
evidence in support of its claim that the
land belongs to the Forest Department. It
was further observed in para 6 of the order
that the order dated 28.10.1999 passed by
the Sub Divisional Officer is illegal and is
liable to be set aside. The revision deserves
to be allowed in part. A direction was
issued that after registering a case under
section 33/39, by arraying Gaon Sabha as
a party, the matter may be decided afresh
and in case, the entries made in revenue
records
are
found
to
be
forged,
proceedings may be initiated against erring
officials.

14.
The
petitioners
being
aggrieved by the order dated 11.10.2000
(annexure no.14) filed writ petition (M.S.)
No.174 of 2001 which was allowed vide
judgment dated 12.9.2014. It was observed
that the petitioners claimed title under
section 20 (b) of U.P.Act No.1 of 1951 as
their predecessor in interest were recorded
occupant in khatauni 1359 Fasli and in
view of the law laid down by the Apex
Court, entry in 1359 Fasli must be genuine
and made according to the provisions of
the Land Records Manual and not a fake
entry. The said issue has not been decided
by any court or authority. No proceedings
7 All. Mahesh Chandra Saxena & Ors. Vs. State of U.P. & Ors.
183
for correction of land records were taken
under U.P. Consolidation of Holdings Act
and prior entries continued. It was further
observed that in the absence of any
notification under section 117 of U.P.
Zamindari Abolition & Land Reforms Act,
Gaon Sabha has nothing to do in the
matter. The matter was thus remanded to
the Deputy Director of Consolidation,
Kheri to conduct a proper enquiry, after
giving an opportunity of hearing to the
parties, if necessary, he may frame an issue
and remit the matter to the Consolidation
Officer for recording oral and documental
evidence of the parties and may pass
appropriate orders after receiving evidence
and findings of the consolidation officer,
after hearing the parties.

15. After remand, the Deputy
Director of Consolidation even without
complying the terms of the order of
remand, as in view of the law laid down by
the apex court in the case of Jasraj versus
Hemraj,
AIR
1977
SC
page
1011.
remanded
the
entire
matter
to
the
Consolidation Offier, where the statement
of Forest Ranger was recorded. He had
specifically stated that he does not know
the number of the plots mentioned in the
notification under section 20 of the Forest
Act. He also does not know the number of
the plots in dispute and their corresponding
numbers prior to consolidation operations.

16. It would be pertinent to point
out here that prior to passing of the order
by the Sub Divisional Officer, on the
subsequent application made by the Forest
Department (opposite party no.4) for
correction,
an
exparte
report
was
submitted behind the back of the petitioners
as they were not afforded any opportunity
to participate in the said enquiry and this
Hon'ble Court, while allowing the writ
petition filed by the petitioners, after setting
aside the orders passed by the Sub
Divisional Officer and the Board of
Revenue, remanded the matter to the
Deputy Director of Consolidation, Kheri to
conduct a proper enquiry, after giving an
opportunity of hearing to the parties. No
such enquiry, after remand of the matter by
this Hon'ble Court, was ever made and the
Sub Divisional Officer, resting upon the
exparte
report
of
the
Commissioner
(annexure no.12), he passed an order for
deleting the names of the petitioners from
the plots in dispute and recording the same
in the name of Forest Department, as
reserve forest, although this Hon'ble Court
has also observed, while allowing the writ
petition that Forest Department had failed
to substantiate its claim by leading any
evidence which is also evident from the
notification dated 1.7.1968 issued under
section 20 of the Forest Act, mentioning the
notification issued on 29.3.1954 under
section 4 of the Forest Act, wherein the
plots in dispute does not find mention,
hence the plots in dispute could not be
said/held to be reserve forest, more
particularly
in
view
of
the
State
Amendment made under section 4 of the
Indian Forest Act published on 1.2.1966.

 17. Being aggrieved by the order
dated 16.10.2019 (annexure no.2) passed
by the Consolidation Officer, to whom, the
matter was remanded by the Deputy
Director of Consolidation, Kheri to decide
the matter on merits, though in pursuance
to the order of remand passed by this
Hon'ble
Court,
vide
judgment
dated
12.9.2014 (annexure no.15), a direction
that was issued to the Deputy Director of
Consolidation, Kheri to conduct a proper
enquiry, after giving opportunity of hearing
to the parties, decide the same. Thus the
order passed by the Consolidation Officer
(annexure no.2) was not only illegal but
also against the terms of the order of
184 INDIAN LAW REPORTS ALLAHABAD SERIES
remand, in view of the law propounded by
the Apex Court aforesaid.
 18.
Being
aggrieved,
the
petitioners filed an appeal before the
Settlement Officer of Consolidation, Kheri,
who remitted the appeal to the Deputy
Director of Consolidation, Kheri, after
quoting the observations made by this
Hon'ble Court vide judgment dated 12.9.214 (annexure no. 19).
 19. The petitioners thereupon
filed a revision under section 48 (1) of U.P.
Consolidation of Holdings Act, befoe the
Deputy Director of Consolidation, Kheri,
who also endorsed the order passed by the
Consolidtion Officer, resting upon exparte
report submitted by the Commissioner,
which was inadmissible as he had not come
in the witness box to prove the said report.
Deputy Director of Consolidation, Kheri
(opposite party no.2), except quoting the
judgments passed by the apex court had not
decided the lis as per the observations
made by this Hon'ble Court, vide judgment
dated 12.9.2014 (annexure no.15). Thus the
order passed by the opposite party no.2
was not only illegal but also without
jurisdiction as well as against the terms of
the order of remand. Now it is well settled
proposition of law as has been propounded
by the Apex Court that if the matter has
been remanded by the higher court to the
lower court with certain directions, the
lower court is bound by the terms of the
order of remand and has to decide the
matter accordingly and cannot traverse
beyond the specific terms of the order of
remand. Thus the order passed by the
opposite party no.2 is not only illegal but
also without jurisdiction.
 20. Main controversy involved, as
has been observed by this Hon'ble Court
vide 12.4.2014 (annexure no.15), has not
yet been decided and the opposite party
no.2, though he was required to decide
himself, but instead of doing so, he had
remitted the matter to the Consolidation
Officer, after deciding the matter in
accordance with law merely relying upon
the exparte report of the Commissioner
which was inadmissible. allowed the
application made by the Forest Department
and the said order has been endorsed by
the opposite party no.2.

21. The petitioners submit that
there is an enactment known as United
Provinces Forest Act, 1948 (U.P.Act No.4
of 1949) (hereinafter called) the Private
Forest Act of which section 2 provides that
the said Act will not apply to any land
which is vested in the Government or to
any land in respect of which notifications
and orders have been issued under the
Indian Forest Act. Section 3 (15) defines
the Private Forest. Section 13 deals with
the management of the forests by owners
under an approved working plan. Section
25 deals with the extinction of rights other
than the landlords' rights. Section 42 deals
with the right of rightholders to be
exercised in accordance with the rules,
while section 46 relates to the release of
vested forests. As mentioned above, the
plots in dispute had never been acquired
for reserve forest, which could not be, in
view of the submissions made hereinabove
i.e. the State Amendment, made in section 3
of the Indian Forest Act and further after
insertion
of
Chapter
5-A
by
U.P.Amendment, the claimant has been
defined in section 38-A (a) means the
claimants, claiming to be entitled to the
land or any interest therein, acquired,
owned, settled or possessed or purported to
have been acquired, owned, settled or
possessed whether under through or by any
lease or license executed before the
commencement of Act no.1, 1956 or owned
in accordance with the provisions of any
enactment, including the said Act. The
7 All. Mahesh Chandra Saxena & Ors. Vs. State of U.P. & Ors.
185
petitioners, who have acquired rights by
remaining in cutltivatory possession in
1359 Fasli, by virtue of section 20 (b) of
the Act became Sirdar and after abolition
of zamindari and later on after amendment
of Act no.131, they became bhumidhar with
transferable rights. The State, Forest
Department as well as Gaon Sabha had
failed to establish the said entry to be
forged or fictitious and the sole reliance
placed
by
the
Deputy
Director
of
Consolidation as well as Consolidation
Officer
that
there
was
a
cutting/interpolation in the khatauni, the
State through its counter affidavit has
specifically stated that subsequently an
insertion was made below the area of plot
no.21 i.e. 393.910 acres as 431.46 acres
which is evident from the khatauni filed by
the petitioners as annexure no.4 is
incorrect as the State of U.P. filed a
counter affidavit in writ petition 174 of
2001 (M.S.) filed by the petitioners in
which they had annexed the Photostat copy
of the certified copy of khatauni obtained
on 16.1.1999 as (annexure no.CA-1), there
was no such cutting or interpolation.
Photostat copy of the said khatauni is
annexed herewith. Thus the findings
recorded by the opposite parties no.2 and
3, dismissing the revision and allowing the
application made by the Forest Department
(opposite party no.4) are not only illegal
but also against the law.

22. The petitioners submit that
the provisions of United Provinces Forest
Act, 1948 came up for consideration before
this Hon'ble Court in the case of Mohd.
Karrar Ali & others versus State of U.P. &
others) reported in 1954 Allahabad, page
753, wherein it was propounded that U.P.
Private Forest Act has got no application
to the land other than forests.

23. The petitioners submit that so
far as section 20-A inserted by the State
Amendment Act in the Forest Act is
concerned, the same has got no application
and the land in dispute could not be
said/held and deemed to be reserve forest
as the land in dispute does not belong to
the category mentioned in that section and
the findings recorded by the opposite party
no.2 that the land in dispute is deemed
forest is vitiated in law. The land which is
recorded in the revenue records as forest
land belonging to the government in
respect to that the said provision will apply
and not in respect to the land in dispute of
which the petitioners became Bhumidhar
by operation of law being recorded
occupant in khatauni 1350 Fasli in
accordance with the provisions of Land
Records Manual, para 123 in Red Ink, with
the result, they became bhumidhar.

24. In view of the submissions
made hereinabove, the writ petition may be
allowed. The orders passed by the opposite
parties no.2 and 3 be set aside."

7. From the side of State opposing the
present
petition
and
supporting
the
impugned order(s), in nutshell, Sri Pandey,
learned counsel for the State submitted as
under:-

(i) Intentionally Khatauni of 1356
Fasli (1949 A.D.) of Gata/Plot No. 21 has
not been placed on record. In the 1356 Fasli
(1949 A.D.), the land in dispute was
recorded as "Imarati Lakdi Ka Jungle"
(Timber Trees), as indicated in entry (8)
(iii)(a)(1) of Para 124-A of U.P. Land
Records Manual and in this year the total
area was 431.61 acres and in the Khatauni
of 1356 Fasli (1949 A.D.) the land in
dispute was not recorded in the name of
Raja Brijraj Bahadur Singh. To establish
the same, a copy of Khatauni of 1356 Fasli
(1949 A.D.) was placed before this Court
and the same was made part of record.
186 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) In the 1356 Fasli (1949 A.D.)
without any order or recording any reasons,
the area of Gata/Plot No. 21 was reduced
from 436.46 to 431.61 acres as in the
Khatauni of 1346 Fasli (1939 A.D.) the
area was 436.46 acres. Subsequently in the
1359 Fasli (1952 A.D.), the area of
Gata/Plot No. 21 was again reduced as in
the Khatauni of 1359 Fasli (1952 A.D.),
37.55 acres were recorded in the name of
predecessor-in-interest of petitioners that
too without any order of competent
person/authority under Ziman 5-A entry,
which finds place in Para A-124 of U.P.
Land Records Manual, and the same says
that "Occupiers of lands without title when
there is no one already recorded in column
5 of the khasra".

(iii)
The
Ziman
5-A
entry
favourable to the petitioners was not based
upon any order of comptent revenue
Official and in fact, is not in accordance
with the procedure prescribed under the
U.P. Land Records Manual including
Para(s) 80, 81-A, A-80, A-81, 89-A and 89B and accordingly this entry of 1359 Fasli
(1352 A.D.), favourable to the petitioners,
is completely fictitious, baseless, bogus,
surreptitious and forged and can't be relied
upon to extend the benefits to the
petitioners.

(iv) The specific findings have
been made in the impugned order(s) on the
entry favourable to the petitioners and
accordingly petitioners ought to have
placed the relevant material on record to
impeach the said findings related to the
entries in the revenue record particularly
the entries made in the Khatauni of 1359
Fasli (1952 A.D.), in which names of
predecessor-in-interest of the petitioners
were entered after creating/carving new
Gata(s)/Plot(s) No. 21/1 to 21/7 from
Gata/Plot No. 21 that too without any order
in this regard. However, no such document
has been placed on record to impeach the
said findings.
 (v) The basis of initiation of
proceedings against the petitioners was the
report dated 07.06.1999 (Annexure No. 12
to the writ petition). According to this
report, the entries, as indicated by the
petitioners, of 1356 Fasli (1949 A.D.) and
1359 Fasli (1952 A.D.) are forged/bogus
entries and to controvert and impeach the
same, no document has been placed on
record except a questionnaire, annexed as
Annexure No. 3 to the petition, which is
also a bogus document and is not liable to
be relied upon.

(vi) If the facts mentioned in Para
4 of the petition are taken to be true, though
not correct, that Gata/Plot No. 21 area
431.61 acres situated in Mohal Mustahkam
Village-Allenganj Pargana-Bhud, TehsilGola,
District-Lakhimpur-Kheri,
before
abolition of zamindari i.e. in Khatauni of
1356 Fasli (1949 A.D.) was recorded in the
khewat Khatauni of Raja Brijraj Bahadur of
Jhandi Estate in Ziman 8(3)(1) of Non-ZA
Khatauni, then also the petitioners would
not get any right over the said land or part
of the said land because the correct entry
i.e. 8(iii)(a)(1) and the note appended to the
same itself indicate that the same was under
the control of Forest Department meaning
thereby
under
the
control
of
State
Government and further, for the reason that
at the time of submission of report dated
07.06.1999 trees were about 80-100 year
old and accordingly, present age of the
trees would be about 105-125 year and the
trees of Sal (Shakhu) were/are covered
under the expression "Timber Tree" as
indicated in the said entry i.e. 8(iii)(a)(1)
readwith note appended to the same.

(vii) The alleged entry of 1356
Fasli (1949 A.D.) in favour of Raja Brijraj
Bahadur
Singh,
as
indicated
in
questionnaire, is forged one and the fact
7 All. Mahesh Chandra Saxena & Ors. Vs. State of U.P. & Ors.
187
that questionnaire itself is forged/fabricated
and bogus document can be deduced from
the fact that in the year 1999 the age of
trees was found to be between 80-100 year
and accordingly in the 1356 Fasli (1949
A.D.) or 1359 Fasli (1952 A.D.) the age of
the trees must be between 40-60 year and
to impeach/controvert the same and also
the findings related to existence of trees
over the land in issue, which in fact was
admitted by Mahesh Chandra Saxena and
Nanhey Lal Sharma (Petitioner No. 4)
during their examination and the same is
evident from the impugned order dated
10.04.2023, nothing has been placed on
record and accordingly, the entries of the
1356
Fasli
(1949
A.D.)
and
1359
Fasli(1952 A.D.) including regarding crop
of Barley/Jow etc., as pleaded, are bogus
and no right could be provided to any
person including the petitioners, who have
purchased the land from the persons whose
names were recorded in the Khatauni of
1359 Fasli (1952 A.D.) without any order
in this regard.

(viii) The land indicated in terms
of entry 8(iii)(a)(1) in the revenue record is
a 'Public Utility Land' and this entry is
similar to the entry indicated in Para A-124
applicable in the area over which Act of
1950 applies and after considering the entry
i.e. 5(iii)(a)(1) provided under Para A-124,
this Court has already settled the issue in
various
pronouncements
according
to
which, no right would be available to any
person over such type of lands.
 (ix) So far as the contention of
learned counsel for the petitioners is
concerned that the petitioners are saved
under Section 20(b) of the Act of 1950. The
same has no force as petitioners' case is
basically based on entry in the revenue
record of the Khatauni of 1359 Fasli (1952
A.D.) and the Section itself indicates 1356
Fasli (1949 A.D.).

(x) The benefit of Section 20(b)
of the Act of 1950 would be available if the
entry was/is genuine and in this case, the
entry of 1359 Fasli (1952 A.D.) itself
was/is bogus and fraudulent and as such, no
right would be available to the petitioners
based upon the sale deed as their basis
itself is not a valid document in the eye of
law. In this view of the matter, maxim
'Sublato Fundamento Cadit Opus', which
means 'foundation being removed, the
structure falls', would apply in the present
case.

(xi) A person, who was not
having any title, cannot create a title. In
view of the fact that the predecessor-ininterest of petitioners were having no right
over the land in dispute in terms of entry
8(iii)(a)(1) in the revenue record as also
that without any order, the corrections were
made in the Khatauni of 1359 Fasli (1952
A.D.), no right would flow to the
petitioners despite sale deed(s) in their
favour. Reference can be made to the
maxim 'Nemo dat quod non habet' which
means 'no one can give what they do not
have'.

(xii) In this case, if the orders are
interfered with on account of jurisdiction of
respondent No.2 and/or on the ground that
respondent No.2 has failed to act in terms
of order of remand of this Court dated
12.09.2014
or
on
other
procedural
irregularities, then in that event, the
bogus/forged entries, favourable to the
petitioners, would revive in the revenue
records, which were not in consonance with
the law on issue. Thus, no interference is
required in the matter.

(xiii) The entry in the revenue
record was undisputedly in the 1356 Fasli
(1949 A.D.) and prior to same was
8(iii)(a)(1) i.e. "under the management of
Forest Department (including erstwhile
forest made over to Forest Department)"
188 INDIAN LAW REPORTS ALLAHABAD SERIES
and a conjoint reading of the same as also
Section 117 of the Act, 1950 and Section
132 of Act of 1950 would indicate that no
right can be provided to an occupier of the
forest land or land managed by the Forest
Department.

(xiv) The rights were provided to
the
predecessor-in-interest
of
the
petitioners on the basis of entry in Khatauni
of 1359 Fasli (1952 A.D.) ignoring the fact
that the original Gata/Plot No.21 indicated
in the 1356 Fasli (1949 A.D.) was
renumbered as 21/1 to 21/7 without any
order of the revenue authority and to
dispute or controvert this fact, no order has
been placed on record and accordingly, it
shall be presumed that the petitioners are
admitting the fact that without any order of
competent authority, the entries/corrections
were made while preparing Khatauni of
1359 Fasli (1952 A.D.).

(xv) In the matter, an inquiry was
also carried out by the Commissioner,
Lucknow Division, Lucknow and after
concluding the inquiry, he submitted his
report dated 07.06.1999 to the Principal
Secretary, Forest Department. The inquiry
report is part of the record as Annexure
No.12 to the present petition appended at
page No.136 and a perusal of the same
indicates that in the 1346 Fasli (1939 A.D.)
and 1356 Fasli (1949 A.D.), the land was
recorded under Category 8(iii)(a)(1), which
in fact was forest land. It also indicates that
the new numbers were allotted to original
Gata No.21 without any order of the
competent authority and this report would
override the report of Tehsildar filed in the
year 1995, which was basically based on
the entries made in 1359 Fasli (1952 A.D.)
and the Gata(s) involved in the notification
issued under Sections 4 & 6 of the Act of
1927. The report dated 17.06.1999 also
indicates that over the land in issue, there
are several trees about 82-100 year old.

(xvi)
Before
the
concerned
authority i.e.