# Mata Din Singh v. D.D.C. Basti & Ors

- **Citation:** (2023) 8 ILRA 408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-08
- **Case number:** Writ B No. 2067 of 1983
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mata-din-singh-v-d-d-c-basti-ors-50662
- **Pages:** 15

## Headnote

Sri A.C. Nishad (Standing Counsel), Sri Anil
Sharma (Sr. Advocate), Sri P.K. Singh, Sri
S.L. Yadav, Sri B.K. Srivastava, Dr. Vinod
Kr. Rai, Sri Gulab Shanker Singh, Sri Rajesh
Ji Verma, S.C.

Civil Law-U.P. Consolidation of Holdings
Act,1953 - U.P. Land Records ManualClause (9) of Part-II of Para A-124 - Code
of Civil Procedure-1908-Order 3 Rule 1 &
2- Power of attorney holder can only appear in
his personal capacity and could depose only
whatever knowledge he has about the case but,
cannot depose as a witness on behalf of the
party and cannot depose for the acts done by
the principal-No finding was returned that PA-10
was served upon the recorded tenure holders
and contesting respondents have failed to prove
that fact and have also not able to show that
there was a reference of PA-10 in the revenue
entries and all Courts under Consolidation Act
have not returned any finding in regard to
preparation of PA-10 and whether entries of
possession were made in terms of and
observing procedure prescribed in 'the Manual'
and for reference-Authorities

Petition allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,854 of 51,320. This is a partial read: ask again with offset=39854 for what follows._

408 INDIAN LAW REPORTS ALLAHABAD SERIES
prefer an application for interim protection
within a week w.e.f. 28.08.2023, which
shall
be
considered
and
decided
expeditiously.

23. It is provided that till disposal of
the application seeking interim protection,
the parties are directed to maintain statusquo regarding the property in issue. It is in
view of substantial justice between the
parties. However, this protection would be
available if the application seeking interim
protection is filed in terms of this order.

The petition is allowed in above terms.
----------
(2023) 8 ILRA 408
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ B No. 2067 of 1983

Mata Din Singh ...Petitioner
Versus
D.D.C. Basti & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh(Sr. Advocate), Sri Santosh
Kumar, Sri Krishan Mohan, Sri M.N. Singh

Counsel for the Respondents:
Sri A.C. Nishad (Standing Counsel), Sri Anil
Sharma (Sr. Advocate), Sri P.K. Singh, Sri
S.L. Yadav, Sri B.K. Srivastava, Dr. Vinod
Kr. Rai, Sri Gulab Shanker Singh, Sri Rajesh
Ji Verma, S.C.

Civil Law-U.P. Consolidation of Holdings
Act,1953 - U.P. Land Records ManualClause (9) of Part-II of Para A-124 - Code
of Civil Procedure-1908-Order 3 Rule 1 &
2- Power of attorney holder can only appear in
his personal capacity and could depose only
whatever knowledge he has about the case but,
cannot depose as a witness on behalf of the
party and cannot depose for the acts done by
the principal-No finding was returned that PA-10
was served upon the recorded tenure holders
and contesting respondents have failed to prove
that fact and have also not able to show that
there was a reference of PA-10 in the revenue
entries and all Courts under Consolidation Act
have not returned any finding in regard to
preparation of PA-10 and whether entries of
possession were made in terms of and
observing procedure prescribed in 'the Manual'
and for reference-Authorities

Petition allowed. (E-15)

List of Cases cited:

1. Janki Vashdeo Bhojwani & anr.Vs IndusInd
Bank Ltd. & ors., AIR 2005 SC 439

2. Gurmukh Singh & anr.Vs DDC/ADM (F&R),
1996 SCC Online All 823 : (1997) 88 RD 276

3. Bhagwati Deen Vs Sheetladin & ors., (2022)
156 RD 602 : 2022 SCC Online All 349

4.
Hemaji
Waghaji
Jat
Vs
Bhikhabhai
Khengarbhai Harijan & ors., AIR 2009 SC 103

5. P.T. Munichikkanna Reddy & ors. Vs
Revamma & ors., 2007 (6) SCC 59

6. Uttam Chand (Dead) through LRs Vs Nath
Ram (Dead) through LRs & ors., 2020 (11) SCC
263

(Delivered by Hon'ble Saurabh Shyam
Shamshery J.)

1. This case is arising out of
consolidation
proceedings
of
village
Ratanpur
Rai, Tappa
Puraina, Tehsil
Haraiya, District Basti.

2. The case of original petitioner
(Mata Din Singh (since deceased)) was that
in the basic year, name of Jairaj Singh (his
8 All. Mata Din Singh Vs. D.D.C. Basti & Ors.
409
father) and Ram Nihal Singh were recorded
as tenure holders, whereas name of
Rambadan Singh (since deceased and
predecessors of original respondent nos. 4
to 7) was recorded in Clause (9) of revenue
records.

3.

Predecessors
of
contesting
respondents have claimed sirdar rights on
basis of their alleged continuous possession
of more than 25 years.

4. During proceedings, witnesses
were examined from both sides. From the
side of petitioner, objector has examined
himself whereas contesting respondent did
not appeared before Authority and one
Ramjanam
Singh
appeared
being
a
mukhtar-e-khas of respondent Rambadan
Singh and another witness Anshuman
Singh also appeared for respondent. Certain
revenue records were also placed by both
the parties.

5. The Consolidation Officer vide
order dated 24.01.1978 has rejected the
objections of petitioner and allowed the
objections filed on behalf of contesting
respondents and their names were directed
to be entered into revenue records as sirdar.
The relevant findings of the Consolidation
Officer are as follows :-

"प्रकतवादी गण िी ओर से जो भी िागजी प्रमाण
दाकखल है वे दौरान चिबन्दी िे है अतः वे प्रकतवादी गण िे पक्ष में
अकिि सहायि नहीं हो सिता और चिबन्दी िे पूवद िा िोई ऐसा
प्रमाण िागजी या िोई कनष्पक्ष गवाह नहीं प्रस्तुत किया गया है
कजससे वादी िे बयान पर अकवश्वास किया जाय यद्यकप कि वादी िा
िब्जा प्रमाणों िे आिार पर िेवल 10 साल िा ही साकबत होता
है किांतु कनष्पक्ष गवाह िे बयान से यह साकबत है कि िब्जा 12
साल से अकिि िा है और किसी कनष्पक्ष गवाह द्वारा उसमें कवरूद्ध
बयान नहीं हुआ है और जैराम कसांह िे कवरूद्ध कदनाांि 29.1.76
प्रभावी है अतः वादी िे िागजी प्रमाणों व साक्ष्यों िे आिार पर
वादी िो सीरदार घोकर्त िरने िा अवकचत्य प्रमाकणत है तदनुसार
वाद कवन्दु सिारात्मि कनणीत किया जाता है वादी मृति है उसिे
वाररश कवश्वनाथ कसांह दशदन नाथ कसांह, अजय िुमार आयु 13 वर्द
कवजय िुमार कसांह अवस्था आयु 8 वर्द सांरकक्षिा सोमारी माता है
जो कनकवदवाद है।"

6. The petitioner and others filed an
appeal
before
Settlement
Officer
of
Consolidation,
however,
same
was
dismissed by an order dated 18.02.1982.
Relevant part of order is mentioned
hereinafter :-

"जहाँ ति अपील िताद िे कवद्वान अकभभार्ि िे
इस तिद िा प्रश्न है कि 1369फ० िे एस०िे० िे आदेश िा
अमल दरामद है। एस०िे० ने स्वयां आदेश खतौनी में अांकित नहीं
किया है। इसकलये यह आदेश सही नहीं है। मैं उनिे इस तिद
में(अस्पष्ट) एस०िे० िे आदेश प०ि०10 पर पाररत होता है तथा
अमल दरामद भी उस समय खतौनी पर किया जाता था। इसकलये इस
अमल दरामद में िोई सांकदग्ि होने िी बात नहीं है। अपीलिताद िे
कवद्वान अकभभार्ि ने यह तिद रखा कि ए०आर०िे० िे बयान में
यह बात आई है कि खसरे िे इन्राजों में कभन्नता है परन्तु उन्होंने
अपने मूल बयान तथा कजरह दोनों में यह बात िही है कि कभन्नता
स्याही िे िारण है इसकलये िेवल इस आिार पर इतने लम्बे
इन्राजों िो सांकदग्ि या गलत नहीं माना जा सिता।"

"जहाँ ति रामबदन कसांह िे अदालत में हाकजर
होिर स्वयां बयान न देने िा सवाल है, रामबदन कसांह उस समय
पुकलस कवभाग में नौिरी िरते थे तथा उन्हें छुट्टी न कमलने िे िारण
यह बयान देने नहीं आ सिे। उनिे स्थान पर उनिे मुख्तार तथा भाई
राम जन्म कसांह बयान देने िे कलये अदालतम में हाकजर हुये, इसकलये
रामबदन कसांह िे अदालत में हाकजर न आने िे िारण उनिे
अकििारों पर िोई अन्तर नहीं पडता। उत्तर वादी िी ओर से यह
बहस िी गयी कि यह मोिदमा 26.9.78 िो एि तरफ हुआ था
तथा 18.3.81 िे बाद यह आदेश 10/- रूपये हरजा अदा िरने
पर रेस्टोर हुआ था और यह हरजा अभी ति अदा नहीं किया गया है
उनिा यह तिद भी सही है कि इस आिार पर यह अपील खाररज
होने योग्य है।

उपरोक्त कववेचन िे आिार पर मैं इस कनष्िर्द पर
पहुँचता ह ँ कि कववाकदत भूकम 1369 फ० से लगातार राम बदन
कसांह िा आिार वर्द ति कवरोिात्मि अध्यासन व और अपने इस
िब्जे िे आिार उन्होंने कववाकदत भूकम पर सीरदारी अकििारी
अकजदत िर कलये थे और उने लडिे व वाररस इन गाटों पर बतौर
सीरदार दजद होने िे अकििारी थे। चिबन्दी अकििारी ने कववाकदत
गाटों पर कलकखत खातेदारों िा नाम खाररज िरिे उत्तर वादीगण िा
410 INDIAN LAW REPORTS ALLAHABAD SERIES
नाम बतौर सीरदार दजद िरने में िोई भूल नहीं िी है। अपील में िोई
बल नहीं है।"

7. Both the above referred orders
were challenged by petitioner before
Deputy Director of Consolidation by way
of filing a revision petition, however, same
was also dismissed by an order dated
09.02.1983 and relevant part of order is
mentioned hereinafter :-

"इसिे अकतररक्त कनगरानी िताद िे कवद्वान अकिवक्ता
िी तरफ से यह तिद किया गया कि खाता नां० 48 िे नम्बरान
236, 244 पर िोई हि नहीं माांगा गया है कजस पर उन्हें िोई
अकििार कबना उज्रदारी नहीं कदया जाना चाकहये तथा 236,244
नम्बरान कववाकदत खाते िे नहीं है और न ही कववाकदत खातेदारों िा
पारीि मुिदमा ही बनाया गया है अतः उस पर अकििार नहीं
कमलना चाकहये। पत्रावली िे अवलोिन से स्पष्ट है कि गाटा
सां०236,244 पर हि नहीं माांगा गया है किन्तु िायदवाही
चिबन्दी प्रकक्रयाओां में िारा 9 िे प्रिाशन िे बाद िी गयी है।
अतः कनगरानीिताद िो इससे िोई लाभ नहीं कमल सिता। यह भी
तिद किया गया कि िब्जा गासवाना कबना किसी आिार िे है किन्तु
कनगरानी िताद द्वारा स्वयां रांकजश िी बात स्वीिार िी गयी है।
कनगरानीिताद िे कवद्वान अकिवक्ता ने यह भी तिद किया कि िोई
प०ि० 24 नहीं बना है आरन जारी हुआ है किन्तु प०ि०24 जारी
िरने िा प्राकविान 1965 िे सांशोिन से लागू हुआ है अतः
1373 प० में जारी होने िा िोई औकचत्य नहीं था तथा उस समय
कनयमानुसार प०ि०10 जारी होता था जो 1369 प० में जारी है
इसिे अकतररक्त यह भी तिद किया गया कि कनगरानीिताद पर
अिीनस्थ न्यायालय द्वारा जो हजादना लगाया गया था उसे अदा भी
नहीं किया गया। कनगरानीिताद द्वारा हजादना न अदा िरने िा िोई
िारण नहीं दशादया गया और न हजादना अदा िरने िा प्रयास किया
गया इस प्रिार सम्पूणद वाद पर गौर िरने से यह स्पष्ट है कि
कववाकदत आराजी पर कवपक्षीगण िा अनाकििार िब्जा सकबत है जो
िाफी लम्बे अरसे से तथा अकििार पाने िे कमयाद से भी अकिि
समय से है। कनगरानीिताद िी तरफ से िेवल जैराज कसांह िे वाररसों
द्वारा आपकत्त िी गयी है। आिार वर्द में दजद राम कनहाल िी तरफ से
िोई आपकत्त नहीं दाकखल िी गयी है। जो इन्राज है वह कनयमानुिूल
है कजसिे आिार पर कवद्वान चिबन्दी अकििारी एवां कवद्वान सहायि
बन्दोबस्त अकििारी चिबन्दी ने कवपक्षी गण िा नाम कववाकदत
आराजी में बतौर सीरदार अांकित होने िे आदेश किये है जो
न्यायोकचत है अतः कनगरानी में िोई बल नहीं है। कनगरानी कनरस्त
होने योग्य है।"

8. Above referred orders dated
24.01.1978, 18.02.1982 and 09.02.1983 are
impugned in this writ petition.

9. Sri V.K. Singh, learned Senior
Advocate assisted by Sri Santosh Kumar,
Advocate appearing for petitioners has
submitted
that
undisputedly
original
petitioner was tenure holder and contesting
respondents
were
in
unauthorized
possession of land in dispute and their
names being mutated on basis of such
nature of possession which would not
create any substantive right in their favour.
There was a finding of Consolidation
Officer that according to revenue records,
even in some of years, respondents were
not in possession over the land in dispute as
well as the Consolidation Officer has
recorded
a
finding
that
respondents'
possession was proved upto 10 years only
and only on surmises, it was held that they
were in possession for 12 years, therefore,
all three Authorities have erroneously
accepted the argument of respondents that
they have perfected their rights on basis of
alleged unopposed possession of twelve
years over the land in dispute.

10. Learned Senior Advocate also
submitted that evidence given by mukhtarkhas was not acceptable and that entries
were not made in terms of provisions of
U.P. Land Records Manual (for short "the
Manual").

11. In order to buttress the arguments,
he has placed reliance upon judgments of
Supreme Court and this Court in Hemaji
Waghaji
Jat
vs.
Bhikhabhai
Khengarbhai Harijan and others, AIR
2009 SC 103; Vidhyadhar vs. Manik Rao
and others, (1999) 3 SCC 573; Smt.
Bitiya Bano vs. DDC, 1979 SCC Online
All 502, 1980 RD 190; Janki Vashdeo
8 All. Mata Din Singh Vs. D.D.C. Basti & Ors.
411
Bhojwani and another vs. IndusInd
Bank Ltd. And others, AIR 2005 SC 439
: (2005) 2 SCC 217; Gaya Prasad vs.
Nathu Singh and others, 2019 (4) AWC
3600; Sunehri Lal vs. Smt. Premwati,
2015 All. C.J. 738 and Ganga Ram and
others vs. DDC and another, 1982 RD
Page 1.

12. Per contra, Sri Anil Sharma,
learned Senior Advocate assisted by Sri
P.K.
Singh,
Advocate
appearing
for
respondents has referred provisions of
Clause (9) of Part-II of Para A-124 of the
Manual, which states that :-

"Occupiers of land without the
consent of the person entered in column 4
of the khasra."

13. Learned Senior Advocate has
further
submitted
that
contesting
respondents were in possession of land and
it was in the knowledge of petitioners but
no proceedings were initiated against them,
therefore, they have perfected their title on
the
strength
of
their
uninterrupted
possession for twelve years.

14. Learned Senior Advocate further
urged that claim of rival parties was
decided on the basis of revenue records
placed by Ramjanam Singh being mukhtarkhas of respondent Rambadan Singh, being
legally permissible. It was not the case that
mukhtar-khas had given some evidence of a
fact which was exclusive in the knowledge
of respondent Rambadan Singh. According
to revenue records, contesting respondents
were shown under the category of Clause 9,
a substantive piece of evidence that they
were in possession of land without consent
of persons whose name was entered in
column 4 of the khasra. Learned Senior
Advocate has placed reliance upon a
judgment of Supreme Court passed in the
case of Ramdular vs. Deputy Director of
Consolidation, Jaunpur, 1994 Supp 2
SCC 198: 1994 1 SCR 735.

15.

Learned
Senior
Advocate
appearing for respondents has further
submitted that petitioners have created
absolutely a new case for the first time
before this Court.

16. In rejoinder, learned Senior
Advocate appearing for petitioner has
submitted that respondents are outsiders
and normally lived in other village and they
have never been in possession over the land
in dispute as well as their cultivatory
possession over the land in dispute was not
proved.

17. Heard learned Senior Advocates
appearing for rival parties, perused record
and written submissions.

18. On basis of above referred facts,
rival submissions and judgments relied
upon, issues for consideration before this
Court are as follows :-

(a) Whether statement made by
mukhtar-khas as a witness is admissible or
not, if yes, to what extent?

(b) Whether entry under Clause-9
of Part-II of Para A-124 of 'the Manual'
and khasra of relevant period would itself
be sufficient to prove adverse possession,
and, if no?

(c)
Whether
contesting
respondents have perfected their rights on
basis of their possession of twelve years on
land in dispute i.e. whether their possession
was nec vi, nec clam, nec precario, i.e.
adequate
in
continuity,
adequate
in
publicity and adverse to a competitor in
denial of title and his knowledge?
412 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In reference to above referred
issue (a), i.e. nature of evidence of a
mukhtar-khas, it would be relevant to refer
few paragraphs of a judgement passed by
Supreme Court in the case of Janki
Vashdeo Bhojwani (supra) -:

"13. Order 3 Rules 1 and 2 CPC
empower the holder of power of attorney to
"act" on behalf of the principal. In our view
the word "acts" employed in Order 3 Rules
1 and 2 CPC confines only to in respect of
"acts" done by the power-of-attorney
holder in exercise of power granted by the
instrument. The term "acts" would not
include deposing in place and instead of
the principal. In other words, if the powerof-attorney holder has rendered some
"acts" in pursuance of power of attorney,
he may depose for the principal in respect
of such acts, but he cannot depose for the
principal for the acts done by the principal
and not by him. Similarly, he cannot
depose for the principal in respect of the
matter of which only the principal can
have a personal knowledge and in respect
of which the principal is entitled to be
cross-examined.

14. xxxxxx

15. xxxxxx

16. xxxxxx

17. On the question of power of
attorney, the High Courts have divergent
views. In the case of Shambhu Dutt Shastri
v. State of Rajasthan [(1986) 2 WLN 713
(Raj)] it was held that a general power-ofattorney holder can appear, plead and act
on behalf of the party but he cannot
become a witness on behalf of the party. He
can only appear in his own capacity. No
one can delegate the power to appear in the
witness box on behalf of himself. To appear
in a witness box is altogether a different
act. A general power-of-attorney holder
cannot be allowed to appear as a witness on
behalf of the plaintiff in the capacity of the
plaintiff.

18. The aforesaid judgment was
quoted with approval in the case of Ram
Prasad v. Hari Narain [AIR 1998 Raj 185 :
(1998) 3 Cur CC 183] . It was held that the
word "acts" used in Rule 2 of Order 3 CPC
does not include the act of power-ofattorney holder to appear as a witness on
behalf of a party. Power-of-attorney holder
of a party can appear only as a witness in
his
personal
capacity
and
whatever
knowledge he has about the case he can
state on oath but he cannot appear as a
witness on behalf of the party in the
capacity of that party. If the plaintiff is
unable to appear in the court, a commission
for recording his evidence may be issued
under the relevant provisions of CPC.

19. In the case of Pradeep
Mohanbay (Dr.) v. Minguel Carlos Dias
[(2000) 1 Bom LR 908] the Goa Bench of
the Bombay High Court held that a power
of attorney can file a complaint under
Section 138 but cannot depose on behalf of
the complainant. He can only appear as a
witness.

20. However, in the case of
Humberto Luis v. Floriano Armando Luis
[(2002) 2 Bom CR 754] on which reliance
has been placed by the Tribunal in the
present case, the High Court took a
dissenting view and held that the provisions
contained in Order 3 Rule 2 CPC cannot be
construed to disentitle the power-ofattorney holder to depose on behalf of his
principal. The High Court further held that
the word "act" appearing in Order 3 Rule 2
CPC takes within its sweep "depose". We
are unable to agree with this view taken by
the Bombay High Court in Floriano
Armando [(2002) 2 Bom CR 754].

21. We hold that the view taken
by the Rajasthan High Court in the case of
Shambhu Dutt Shastri [(1986) 2 WLN 713
8 All. Mata Din Singh Vs. D.D.C. Basti & Ors.
413
(Raj)] followed and reiterated in the case of
Ram Prasad [AIR 1998 Raj 185 : (1998) 3
Cur CC 183] is the correct view. The view
taken in the case of Floriano Armando Luis
[(2002) 2 Bom CR 754] cannot be said to
have laid down a correct law and is
accordingly overruled." .
(emphasis supplied)

20. In present case, Rambadan Singh,
original contesting respondent has not
appeared
to
depose
before
the
Consolidation Officer and on his behalf his
mukhtar-khas,
Ramjanam
Singh
has
appeared and got recorded his statement
and
also
produced
relevant
revenue
records.

21. As referred in Janki Vashdeo
Bhojwani (supra), power of attorney
holder (mukhtar-khas) can only appear in
his personal capacity and could depose
only whatever knowledge he has about the
case but, cannot depose as a witness on
behalf of the party and cannot depose for
the acts done by the principal. Therefore,
evidence
of
mukhtar-khas
would
be
admissible only to the extent to which he
has personal knowledge. However, since
only the original respondent had personal
knowledge
about
his
cultivatory
possession, therefore, any evidence in that
regard as deposed by his mukhtar-khas
would not be admissible and further that
documents placed on record by mukhtarkhas are the documents from the revenue
records, therefore they would be admissible
according to law and consequence thereof
only would fall.

22. In reference to issue (b) i.e. about
entries in the revenue records, it would be
relevant to refer a judgment passed by the
co-ordinate Bench in Gurmukh Singh and
Another vs. DDC/ADM (F&R), 1996
SCC Online All 823 : (1997) 88 RD 276
and relevant paragraphs 7, 8 and 9 thereof
are reproduced below-:

"7. Similar view was expressed
by this Court in Ganga Ram v. D.D.C.,
1982 RD 1, wherein it was observed that
the person who alleges that P.A. 10 was
prepared and served upon the recorded
tenure holder has to prove that fact.
Learned counsel for the petitioner has
referred to the decision of the Board of
Revenue
in
Ranvir
Singh
v.
(Smt.)
Satyawati, 1990 RD 435, wherein the
Board of Revenue distinguished the case of
this Court in the case of Jamuna Prasad
(supra). It was held therein that there was
presumption with regard to the correctness
of public document and correctness of the
entries made in the annual register when
the papers relating to compliance of Para
80-A and A-81 of the Land Records
Manual is proved on evidence available on
the record and it is proved that P.A. 10 was
issued, its service is to be presumed on the
recorded tenure-holder. It was, on the facts
of that case, it was found that adverse
possession was proved. The Board of
Revenue could not have taken a contrary
view already expressed by the Court in the
case of Jamuna Prasad (supra).

8.
Learned
counsel
for
the
petitioner has further placed reliance upon
a decision of Board of Revenue in Hazari v.
Mathura, 1992 RD 79, wherein it was held
that where a person being not a rank
trespasser is in continuous possession to the
full knowledge of the recorded tenure
holder, issuance of P.A. 10 is not necessary.
This decision is not an authority on the
question that where the person is claiming
adverse possession and relies upon the
recorded entries, he is not to establish that
the entries were made in accordance with
law.
414 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The petitioners led evidence to
prove adverse possession. They relied upon
the Khatauni 1375-1377 F and also twelve
year Khasra, 1386-1397 F. Surjan Singh,
father of the petitioners also tendered oral
evidence. Khatauni 1375 F indicated that
respondent No. 3 Mangal Singh, father of
respondent No. 4 was recorded as sirdar of
the land in dispute. In column No. 9 there is
entry that Jagtar Singh is in possession and
has been shown in column No. 9 in respect
of plot No. 150. This entry is alleged to
have been made by the Supervisor
Qanungo. The petitioners did not lead any
evidence to show that before making such
entry the Supervisor Qanungo had issued
any notice to the recorded tenure-holder.
The petitioner did not file any copy of
Khasra which could show that in the
remarks column the date of the Partal and
the date of issuance of P.A. 10 was made.
The diary of the Lekhpal was also not
summoned. The petitioner was relying
upon these entries to prove his adverse
possession. The person who is recorded as
tenure-holder is otherwise entitled to notice
when
an
authority
makes
an
entry
regarding possession against him, which in
effect creates a right in favour of another
person in respect of the and for which the
entry is made in the Khasra. Secondly,
respondent No. 2 has believed the oral
evidence adduced on behalf of the
respondents 3 and 4 that Jagtar Singh was
related to them. Respondent No. 3 is
brother in law of Jagtar Singh and
respondent No. 4 is his nephew. The
findings recorded by the respondents are
not illegal."
(emphasis supplied)

23. In a recent judgment passed by a
coordinate Bench in Bhagwati Deen vs.
Sheetladin and others, (2022) 156 RD
602 : 2022 SCC Online All 349, the issue
in hand was considered and it was observed
in paragraph 28 of aforesaid judgment that
-:

"28. Lately, this Court also had
the occasion to consider the aforesaid issue
of adverse possession in the case of Chit
Bahal
Singh
v.
Joint
Director
of
Consolidation, decided on 29.04.2022 and
by relying upon the decision of Babu Ali v.
D.D.C. (Supra) the plea of adverse
possession was rejected. The relevant paras
explaining the law and the preparation of
entries and what ingredients have to be met
are being extracted hereinafter:-

"11. The para-89-A, 89-B and
102-B of the Land Records Manual (herein-after referred as "the manual'), relevant
for the purpose, are extracted below:-

"89-A. List of changes.-After
each Kharif and rabi portal of a village the
Lekhpal shall prepare in triplicate a
consolidated list of new and modified
entries in the Khasra in the following form:

Form No. P-10

Khasra No. of Plot Area

Details of entry in the last year

Details of entry made in the
current year

Verification
report
by
the
Revenue Inspector

Remarks

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
8 All. Mata Din Singh Vs. D.D.C. Basti & Ors.
415
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."

12. Reading of the aforesaid
provisions makes it clear that if any entry is
made in PA-10, the same shall be
communicated to the person or persons
concerned recorded in columns 3 and 4 or
their heirs and obtain their signatures.
Records on being submitted to the Revenue
Inspector, he shall ensure at the time of
Padtal i.e. verification of the village that it
has been issued in all the cases and the
signatures obtained by the recipients.
Therefore, in case, any entry made on the
basis of adverse possession the same was to
be communicated to the person concerned
and the person claiming is required to
prove that it was in accordance with the
manual and as to what was nature of
possession and when it started in the
knowledge of the tenant and the possession
was continuous and how long it continued.

13. This Court considered this
issue in the case of Mohd. Raza v. Deputy
Director of Consolidation, 1997 RD 276
and held that the entries in the revenue
papers not prepared by following the
procedure prescribed under the Uttar
Pradesh Land Records Manual and PA-10
notice was not served on the main tenant,
such entries are of no evidentiary value and
would not confer any right.

14. This court, in the case of
Gurumukh Singh v. Deputy Director of
Consolidation, Nainital, (1997) 80 RD 276,
has also held that the entries will have no
evidentiary value if they are not in
accordance with the provisions of Land
Records Manual and the burden to prove is
on the person who is asserting the
possession
on
the basis
of
adverse
possession. Relevant paragraphs 6 and 7
are extracted below:-

"6. It is clear from Para A-102C
of the Land Records Manual that the entries
will have no evidentiary value if they are
not made in accordance with the provisions
of Land Records Manual. There is
presumption of correctness of the entries
provided it is made in accordance with the
relevant provision of Land Records Manual
and secondly, in case where a person is
416 INDIAN LAW REPORTS ALLAHABAD SERIES
claiming adverse possession against the
recorded tenure-holder and he denies that
he had not received any P.A. 10 or he had
no knowledge of the entries made in the
revenue records, the burden of proof is
further upon the person claiming adverse
possession to prove that the tenure-holder
was duly given notice in prescribed Form
P.A. 10. Para A-81 itself provides that the
notice will be given by the Lekhpal and he
will obtain the signature of the Chairman,
Land Management Committee as well as
from the recorded tenure-holder. It is also
otherwise necessary to be provided by the
person claiming adverse possession. The
law of adverse possession contemplates
that there is not only continuity of
possession as against the true owner but
also that such person had full knowledge
that the person in possession was claiming
a title and possession hostile to the true
owner. If a person comes in possession of
the land of another person, he cannot
establish his title by adverse possession
unless it is further proved by him that the
tenure-holder had knowledge of such
adverse possession.

7. In Jamuna Prasad v. Deputy
Director of Consolidation, Agra, this Court
repelled the contention that the burden of
proof was upon the person who challenges
the correctness of the entries. It was
observed:

"Learned
counsel
for
the
Petitioner
argued
that
there
was
a
presumption of correctness about the
entries in the revenue records and the onus
lay upon the Respondent to prove that the
entries showing the Petitioner's possession
had not been in accordance with law. This
contention is untenable Firstly, it is not
possible for a party to prove a negative fact.
Secondly, the question as to whether the
notice in Form P.A. 10 was issued and
served upon the Petitioner also is a fact
which
was
within
his
exclusive
knowledge."

"Petitioner's contention that the
burden lay on the Respondents to disprove
the authenticity and destroy the probative
value of the entry of possession cannot be
accepted. In my opinion, where possession
is asserted by a party who relies mainly on
the entry of adverse possession in his
favour and such possession is denied by the
recorded tenure-holder, the burden is on the
former to establish that the entries in regard
to his possession was made in accordance
with law."

15. This Court, in the case of
Sadhu Saran v. Assistant Director of
Consolidation, Gorakhpur, (2003) 94 RD
535, has held that it is well settled in law
that the illegal entry does not confer title.
Therefore even if the entry has been made,
it does not confer right title or interest if it
is not in accordance with law and the
prescribed procedure. This Court and the
counsel for the parties also could not get
the same in the Lekhpal diary. The
provision of
PA-24
has
come
vide
notification dated 03.07.1965, therefore it
is also of no assistance because entry could
not have been made on the basis of PA-24
in Khatauni of 1373 fasli and it is also
without number and year."
(emphasis supplied)

24. In the present case, no finding was
returned that PA-10 was served upon the
recorded tenure holders and contesting
respondents have failed to prove that fact
and have also not able to show that there
was a reference of PA-10 in the revenue
entries and all Courts under Consolidation
Act have not returned any finding in regard
to preparation of PA-10 and whether entries
of possession were made in terms of and
observing procedure prescribed in 'the
Manual'
and
for
reference,
relevant
8 All. Mata Din Singh Vs. D.D.C. Basti & Ors.
417
procedure and paragraphs of 'the Manual'
are quoted below-:

"A80. List of Changes :- After
each kharif and rabi partal of a village, the
Lekhpal shall prepare in triplicate a
consolidated list of the entries mentioned in
paragraphs A71 to A73 and A84 in
following form .........

A81. List how to be utilized :-
(1) The lekhpal shall fill in first five
columns and handover a copy of the list to
the
Chairman
of
Land
Management
Committee. He shall also prepare extracts
from the list and issue to the person or
persons recorded in column 3, 4 and 5
thereof or to their heirs, if the person or
persons concerned have died, obtaining
their signatures in the copy of list retained
by him. Another copy shall be sent to the
supervisor kanungo.

(2) The supervisor kanungo shall
deal with the list in the manner prescribed
in sub paragraph (iv) of paragraph 423. He
shall also ensure that extracts have been
issued in all the cases, and signature of
recipients obtained. If he finds that an
extract has not been issued in any case, he
shall get it issued in his presence. This is
important so that the person affected, if he
is aggrieved, may apply for correction of
papers to the tehsildar or the Sub Divisional
Officer, as the case may be.

A82. Report of Changes :- The
copy of the list with the lekhpal containing
the signatures of the recipients of the
extract shall be attached to the khasra
concerned and filed with the registrar
kanungo along with it on or before 31 July,
of the following year [sub-paragraph (iv) of
paragraph A60].

A83. Immediately after the kharif
partal the lekhpal shall submit to the
supervisor kanungo a statement in duplicate
showing all holdings in his halka of a
bhumidhar, sirdar or asaami of Gaon
Samaj whose cultivable area has decreased
or increased by diluvion of alluvian. The
supervisor kanungo shall by personal
inspection check all the entries in the
statement
and
after
making
such
corrections, as may be necessary, submit
the statement in duplicate to the tehsildar
for taking action under rule 205-B of the
U.P.
Zamindari
Abolition
and
Land
Reforms Rules, 1952.

102C.
Entry
of
possession
column 21 (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 note the date and serial
number of the diary in the remarks column
of the khasra against the entry concerned.

(2) As the list of changes in form
PA-10 is prepared after the completion of
the partal of a 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
paragraphs A80 and A81, the entry in the
remarks column of the khasra will not be
deemed to have been made in the discharge
of his official duty."

25. In this regard, it would be relevant
to reiterate the observations made in
Gurmukh Singh (supra) that the entries
will have no evidentiary value, if are not
entered, in accordance with the provisions
of 'the Manual'. As referred above, in the
present case, no finding was returned by
Courts below that the procedure prescribed
in 'the Manual' was duly followed. Even
418 INDIAN LAW REPORTS ALLAHABAD SERIES
there is no material before this Court to
hold that while making the entries,
procedure prescribed under 'the Manual',
such as whether the lekhpal has prepared
the changes in triplicate, a copy thereof was
handed over to the Chairman, Land
Management Committee, changes were
reported, statement was submitted to the
supervisor kanungo, partal of the village
was conducted, procedure prescribed under
Para 102-C, etc. were duly followed.
Therefore, only on basis of entries being
under clause (9) of Part II of Para A-124 of
'the Manual', it could not be held that c
JurisprudenceJurisprudenceJurisprudence
ontesting respondents were in continuous
possession on the land in dispute for a
period of 12 years and thus perfected their
right on the strength of adverse possession.

26. In view of above discussion and
conclusion, there is no necessity for this
Court to consider the third issue. However,
since certain arguments were raised in this
regard, therefore, now this Court proceeds
further to consider issue (c) i.e. nature of
possession also.

27. In this regard, it would be
apposite to refer a judgment of Supreme
Court in Hemaji Waghaji Jat (supra)
wherein following relevant paragraphs of
P.T. Munichikkanna Reddy and others Vs.
Revamma and others, 2007 (6) SCC 59
were reiterated with approval that -:

"24. In a relatively recent case in
P.T. Munichikkanna Reddy v. Revamma
[(2007) 6 SCC 59] this Court again had an
occasion to deal with the concept of
adverse possession in detail. The Court also
examined the legal position in various
countries particularly in English and
American systems. We deem it appropriate
to reproduce relevant passages in extenso.
The Court dealing with adverse possession
in paras 5 and 6 observed as under : (SCC
pp. 66-67)

"5. Adverse possession in one
sense is based on the theory or presumption
that the owner has abandoned the property
to
the
adverse
possessor
on
the
acquiescence of the owner to the hostile
acts and claims of the person in possession.
It follows that sound qualities of a typical
adverse possession lie in it being open,
continuous and hostile. (See Downing v.
Bird [100 So 2d 57 (Fla 1958)] ; Arkansas
Commemorative Commission v. City of
Little Rock [227 Ark 1085 : 303 SW 2d 569
(1957)] ; Monnot v. Murphy [207 NY 240 :
100 NE 742 (1913)] ; City of Rock Springs
v. Sturm [39 Wyo 494 : 273 P 908 : 97 ALR
1 (1929)] .)

6. Efficacy of adverse possession
law in most jurisdictions depends on strong
limitation statutes by operation of which
right to access the court expires through
efflux of time. As against rights of the
paper-owner, in the context of adverse
possession,
there
evolves
a
set
of
competing rights in favour of the adverse
possessor who has, for a long period of
time, cared for the land, developed it, as
against the owner of the property who has
ignored the property. Modern statutes of
limitation operate, as a rule, not only to cut
off one's right to bring an action for the
recovery of property that has been in the
adverse possession of another for a
specified time, but also to vest the
possessor with title. The intention of such
statutes is not to punish one who neglects
to assert rights, but to protect those who
have maintained the possession of property
for the time specified by the statute under
claim of right or colour of title. (See
American Jurisprudence, Vol. 3, 2d, p. 81.)
It is important to keep in mind while
studying the American notion of adverse
8 All. Mata Din Singh Vs. D.D.C. Basti & Ors.
419
possession, especially in the backdrop of
limitation statutes, that the intention to
dispossess cannot be given a complete goby. Simple application of limitation shall
not be enough by itself for the success of an
adverse possession claim."
(Italic part is emphasised in original and
underline part is emphasised by this Court)

28. Recently the Supreme Court in
Uttam Chand (Dead) through LRs vs.
Nath Ram (Dead) through LRs and
others, 2020 (11) SCC 263 has reiterated
earlier judgments and observed that -:

"15.
The
matter
has
been
examined by a Constitution Bench in M.
Siddiq (Ram Janmabhumi Temple-5 J.) v.
Suresh Das [M. Siddiq (Ram Janmabhumi
Temple-5 J.) v. Suresh Das, (2020) 1 SCC
1] wherein, it has been held that a plea of
adverse possession is founded on the
acceptance that ownership of the property
vests in another, against whom the claimant
asserts possession adverse to the title of the
other. The Court held as under: (SCC pp.
703-706, paras 1142-1143 & 1147-1150)

"1142.
A
plea
of
adverse
possession is founded on the acceptance
that ownership of the property vests in
another against whom the claimant asserts
a possession adverse to the title of the
other. Possession is adverse in the sense
that it is contrary to the acknowledged title
in the other person against whom it is
claimed.

xxxxxxxxxxxx

1143. A person who sets up a plea
of adverse possession must establish both
possession which is peaceful, open and
continuous possession which meets the
requirement of being nec vi nec claim and
nec precario. To substantiate a plea of
adverse possession, the character of the
possession must be adequate in continuity
and in the public because the possession
has to be to the knowledge of the true
owner in order for it to be adverse. These
requirements have to be duly established
first by adequate pleadings and second by
leading sufficient evidence. Evidence, it is
well settled, can only be adduced with
reference to matters which are pleaded in a
civil suit and in the absence of an adequate
pleading, evidence by itself cannot supply
the deficiency of a pleaded case.