# Mohammad Sami & Ors v. Addl. Director of Consolidation, Faizabad & Ors

- **Citation:** (2022) 2 ILRA 253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-27
- **Case number:** Writ B No. 52 of 1991
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-sami-ors-v-addl-director-of-consolidation-faizabad-ors-48111
- **Pages:** 7

## Headnote

(A) Civil Law - Adverse possession - Land
Record Manual, Paras A80, A81 - PA 10 -
Adverse
possession
contemplates
continuity of possession as against the
true owner & that true owner had full
knowledge, that the person in possession,
was claiming a title and possession hostile
to the true owner - burden of proof - in
case where a person is claiming adverse
possession against the recorded tenure
holder and recorded tenure holder 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 20)

During the consolidation proceedings, opposite
party no.2 filed objection in respect of three
plots i.e. 294, 295 and 296 claiming sirdari
rights on the basis of his adverse possession -
Two consolidation authorities concurrently held
that as per the provisions of Paras A80 and A81
of the Land Records Manual, father of original
petitioners was not given notice of PA-10 before
recording possession of opposite party no.2 on
his tenure holding, therefore, opposite party
no.2 could not claim adverse possession in
respect of the land in dispute - thumb
impression found in 1370 Fasli was without
showing name of the noticed person, no thumb
impression or signature are given in 1372 Fasli -
name of opposite party no. 2 was recorded in
Khatauni without giving notice of PA-10 &
254 INDIAN LAW REPORTS ALLAHABAD SERIES
without following the mandatory provision - but
without adverting to such finding, the Assistant
Director of Consolidation (ADC) held opposite
party no. 2 to be in possession of the land on
the basis of the entry of his father in Column-12
in the Khatauni of 1356 Fasli - ADC not correct
in setting aside the concurrent findings of fact,
order passed by ADC set aside

Writ Petition allowed. (E-5)

## Text

2 All. Mohammad Sami & Ors. Vs. Addl. Director of Consolidation, Faizabad & Ors.
253
India. Even otherwise, the order dated
2.9.2013 and 31.7.2013 restraining the
formation of an Association cannot be
termed as 'reasonable restriction by law' as
required under Article 19 (2) of the
Constitution of India, further even if, for
the sake of arguments the orders issued
restraining the formation of Association be
considered as a law in terms of Article 13
(3) of the Constitution of India, the same is
also clearly in violation of Article 14 of the
Constitution of India as there appears to be
no justification for placing the restriction
for forming an Association.

45. In view of the findings as
recorded above and agreeing with the
submissions made by counsel for the
petitioners, the petitions deserve to be
allowed. The orders impugned are set
aside with directions that the petitioners
shall be permitted to continue and shall be
paid their salary/wages to which they were
entitled prior to dismissal in accordance
with law.

46. The writ petition stands allowed
in terms of the said. As regards the arrears,
I am not inclined to pay the same on the
basis of "no work no pay".

47. I record my appreciation for the
assistance given by Shri Hritudhwaj
Pratap Sahi, Advocate to assist this Court
on the question of scope of civil post in
respect of the duties performed by the
petitioner.
----------
(2022)02ILR A253
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.
Writ B No. 52 of 1991

Mohammad Sami & Ors. ...Petitioners
Versus
Addl. Director of Consolidation, Faizabad
& Ors. ...Respondents

Counsel for the Petitioners:
H.S. Sahai, Haider Abbas, Mohd. Yasin,
Rakesh Kr. Pandey Dani, Rakesh Kumar
Pandey, Usman Siddiqui

Counsel for the Respondents:
C.S.C., A.S. Chaudhary, J. Saeed, P.V.
Chaudhary, Z. Jilani

(A) Civil Law - Adverse possession - Land
Record Manual, Paras A80, A81 - PA 10 -
Adverse
possession
contemplates
continuity of possession as against the
true owner & that true owner had full
knowledge, that the person in possession,
was claiming a title and possession hostile
to the true owner - burden of proof - in
case where a person is claiming adverse
possession against the recorded tenure
holder and recorded tenure holder 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 20)

During the consolidation proceedings, opposite
party no.2 filed objection in respect of three
plots i.e. 294, 295 and 296 claiming sirdari
rights on the basis of his adverse possession -
Two consolidation authorities concurrently held
that as per the provisions of Paras A80 and A81
of the Land Records Manual, father of original
petitioners was not given notice of PA-10 before
recording possession of opposite party no.2 on
his tenure holding, therefore, opposite party
no.2 could not claim adverse possession in
respect of the land in dispute - thumb
impression found in 1370 Fasli was without
showing name of the noticed person, no thumb
impression or signature are given in 1372 Fasli -
name of opposite party no. 2 was recorded in
Khatauni without giving notice of PA-10 &
254 INDIAN LAW REPORTS ALLAHABAD SERIES
without following the mandatory provision - but
without adverting to such finding, the Assistant
Director of Consolidation (ADC) held opposite
party no. 2 to be in possession of the land on
the basis of the entry of his father in Column-12
in the Khatauni of 1356 Fasli - ADC not correct
in setting aside the concurrent findings of fact,
order passed by ADC set aside

Writ Petition allowed. (E-5)

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

1. The present writ petition has been
filed seeking quashing of the order dated
29.1.1991 passed by the Assistant Director
of Consolidation, Faizabad (Now Ayodhya
Ji), whereby Revision No.31/15 filed by
Ale Hasan, opposite party no.2 (now dead)
under Section 48 of the U.P. Consolidation
of Holdings Act, 1953 (for short ''the Act')
was allowed.

2.

The
Assistant
Director
of
Consolidation vide impugned order while
allowing the revision, had directed for
deletion of the name of the petitioners from
the land in Gata Nos.294/0-19-15, 295/018-0 and 296/0-17-0 which are part of
Khata No.48 and for recording the name of
opposite
party
no.2
as
intermediary
bhumidhar in the record of 1360 Fasli.

3.

During
the
consolidation
proceedings, opposite party no.2 (since
deceased) filed objection in respect of the
land of three plots of Khata No.48 i.e. 294,
295 and 296 claiming sirdari rights on the
basis of his adverse possession. The dispute
between the parties could not be reconciled
before the Assistant Consolidation Officer
and the matter was referred to the
Consolidation Officer. Opposite party no.2
in order to establish the adverse possession,
filed copies of the Khatauni of 1350 Fasli
and un-certified copy of Khasra of 1355
Fasli. Opposite party no.2 also filed
Khatauni of 1356 Fasli, wherein the
disputed plots were recorded in Part-II of
Khatauni, but in Khasra of 1359 Fasli, it
was found that name of opposite party no.2
was written in the remarks column after
scoring out the name of some other person.

4. The Consolidation Officer vide
order
dated
26.12.1979
rejected
the
objection filed by opposite party no.2 after
considering the evidence and submissions
placed by the parties. The Consolidation
Officer framed two issues for decision,
which are as under :-

"1. Whether Ale Hasan is sirdar
under Section 210 of U.P.Z.A. & L.R. Act in
respect of disputed three plots of Khasra
No.48 and ;

2. Whether the petitioners herein
are in possession of the land in dispute as
sirdar and whether the entry in Column-9
in favour of Ale Hasan is a forged entry ?"

5. The Consolidation Officer held that
entry in Column-9 in favour of opposite
party no.2 was not made in accordance
with Paras A80 and Para A81 of Land
Records Manual and, therefore, opposite
party no.2 could not claim adverse
possession in respect of the land in dispute.
So far as the receipts regarding land rent
and canal dues were concerned, it was said
that petitioners had already filed an FIR
about the missing of these receipts and,
therefore, the same could not be relied on
to hold the possession of opposite party
no.2 over the land in dispute and thus, the
Consolidation Officer rejected the objection
of opposite party no.2.

6. Being aggrieved by the said order
dated
26.12.1979
passed
by
the
2 All. Mohammad Sami & Ors. Vs. Addl. Director of Consolidation, Faizabad & Ors.
255
Consolidation Officer, opposite party no.2
filed an appeal before the Settlement
Officer, Consolidation. The Settlement
Officer, Consolidation vide order dated
23.4.1982 dismissed the appeal filed by
opposite party no.2. The Settlement Officer,
Consolidation held that opposite party no.2
himself had admitted that his father was
Shikmi Khasthkar of the disputed land,
which means he was a sub-tenant of the
disputed land. A sub-tenant recorded in
1358 Fasli could not claim to be adhivasi
and, he could not become sirdar as claimed
by him. As per the provisions of Sections
240A and 240B of U.P.Z.A. & L.R. Act,
every adhivasi became sirdar on the date
immediately preceding the appointed date
i.e. 30.10.1954 after the State Government
notification issued in the official gazette.
For ready reference, Sections 240A and
240B read as under:-

"240A. Acquisition of rights,
title and interest of land-holder in the land
held by adhivasi. - (1) As soon as may be
after the commencement of the U.P. Land
Reforms (amendment) Act. 1954. the State
Government may, by notification published
in the official Gazette, declare that as from
a date to be specified therein the rights,
title and interest of the land-holder in the
land which, on the date immediately
preceding the said date, was held or
deemed to be held by an adhivasi, shall as
from the beginning of the date so specified
(hereinafter called the appointed date),
shall cease and vest, except as hereinafter
provided, in the State free from all
encumbrances.

(2) It shall be lawful for the State
Government, if it so considers necessary, to
issue, from time to time the notification
referred to in sub-section (1) in respect only
of such area or areas as may be specified
and all the provisions of subsection (1)
shall be applicable to and in the case of
every such notification.

240B.
Consequences
on
acquisition of rights, title and interest
under
Section
240-A.
-
Where
a
notification under Section 240-A has been
published in the official Gazette, then,
notwithstanding anything contained in
Chapters II and IX of this Act, but save as
otherwise
provided,
the
following
consequences shall ensue in the area to
which the notification relates, namely-

(a) every person who, on the date
immediately preceding the appointed date,
was or has been deemed to be an adhivasi
shall with effect from the appointed date,
become [bhumidhar with non-transferable
rights] of the land referred to in Section
240-A and held by him as such and shall
have all the rights and be subject to all the
liabilities conferred and imposed upon
[bhumidhars with non-transferable rights]
by or under this Act;

............"

7. Being aggrieved by the said order
dated 23.4.1982 passed by the Settlement
Officer, Consolidation, opposite party no.2
had preferred a revision before the
Assistant Director of Consolidation. The
Assistant Director of Consolidation had
reversed the concurrent findings of fact
recorded
by
the
two
consolidation
authorities below and allowed the revision
as mentioned above.

8. Learned counsel for the petitioner
has
submitted
that
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
256 INDIAN LAW REPORTS ALLAHABAD SERIES
another person, he can not establish his title
by adverse possession unless it is further
proved by him that the tenure holder had
knowledge of such adverse possession. He
has further submitted that the Consolidation
Officer has meticulously observed that as
per the provisions of Paras A80 and A81 of
the Land Records Manual, father of
original petitioners was not given notice of
PA-10 before recording possession of
another person on his tenure holding, which
is evident from Khasra of 1368 Fasli
annexed with PA-10, wherein Plot Nos.294
and 295 are mentioned while 1369 Fasli,
1370 Fasli, 1371 Fasli and 1372 Faslis
were also annexed with PA-10, wherein
Plot Nos.294, 295 and 296 are mentioned,
but thumb impression found in 1370 Fasli
was without showing name of the noticed
person. In 1371 Fasli thumb impression
was found on same footage and no thumb
impression or signature are given in 1372
Fasli, which would reveal that father of the
original petitioners, namely, Khairullah was
not noticed with PA-10 in accordance with
law before recording possession of another
person on his tenure holding, which is a
mandatory requirement under Paras A-80
and A-81 of the Land Records Manual.

9. It has further been submitted that in
violation of the aforesaid mandatory
requirement, the possession recorded over
the disputed land, is without authority of
law, illegal and invalid being against the
mandatory requirement of Paras A-80 and
A-81 of the Land Records Manual. It has
also been submitted that opposite party
no.2 himself has admitted that his father
was Shikmi Khasthkar (sub-tenant) of the
disputed land. In view of the provisions of
Sections 240A and 240B of the U.P. Land
Reforms (Amendment) Act, 1954, a person
who was in cultivatory possession of the
land in 1359 Fasli, became an adhivasi with
effect from 1.7.1952 and, once a land
holder rights ceased and vested in the State,
the
adhivasi
became
a
sirdar
as
consequential measure. He has further
submitted that every adhivasi became sirdar
on the date immediately preceding the
appointed date i.e 30.10.1954 after the
publication
of
the
Government's
notification in the official gazette.

10. Learned counsel for the petitioner
has further submitted that w.e.f. 1.7.1952,
right, title and interest of the land holder on
the land immediately preceding the said
date, was held or deemed to be held as an
adhivasi. Every adhivasi became sirdar
(bhumidhar with non -transferable rights)
on the date immediately preceding the
appointed date i.e. 30.10.1954. It has also
been submitted that from the evidence
adduced by the parties, it is evident that
neither opposite party no.2 nor his father
was adhivasi/sirdar of the disputed land and
two
consolidation
authorities
had
concurrently held so in their orders. It has
also
been
submitted
that
revisional
authority has not only re- appreciated the
whole evidence, but has misread the same
while setting aside the concurrent findings
of fact recorded by the two authorities
below.

11. Learned counsel for the petitioner
has placed reliance on the judgment of this
Court rendered in C.W.M.P. No.32871 of
1996, Gurmukh Singh and others Vs.
Deputy
Director
of
Consolidation,
Nainital
and
others,
decided
on
20.12.1996 (1997 RD 276), to buttress his
submission.

12. It has also been submitted that it
was not essential for an adhivasi or a
person deemed to be an adhivasi to be in
actual possession of the land on 29.10.1954
2 All. Mohammad Sami & Ors. Vs. Addl. Director of Consolidation, Faizabad & Ors.
257
in order that he should acquire sirdari rights
under Section 240-B of the U.P.Z.A. &
L.R. Act, provided that his adhivasi rights
are not extinguished before that date by
lapse of time or otherwise. If he was out of
possession on that date while still retaining
the rights, it did not matter whether he was
dispossessed by his landholder or by a
stranger
or
for
what
period
his
dispossession
lasted.
He
has
further
submitted that chak was carved out in
favour of the original petitioners and they
are in possession over the disputed land. It
is, therefore, submitted that writ petition
should be allowed and the impugned order
being unsustainable, is liable to be quashed.

13. On the other hand, Sri P.V.
Chaudhary, learned counsel for opposite
party no.2, has submitted that disputed land
relate to Khata No.48 consisting of Plot
Nos.249/0-19-15, 295/0-18-0 and 296/017-5, situate in Village Sahnemau, Pargana
and Tehsil Akbarpur, District Faizabad
(Now Ambedkar Nagar). The said land was
recorded in the name of the petitioners.
Consolidation operation started and the
village concerned came to be notified under
Section 4 of the Act in or about 1970-1971.
He has further submitted that father of
opposite party no.2 was recorded without
title in the knowledge of the petitioners
(tenants) right from 1354 Fasli (year 1947)
and, therefore, he perfected his right over
the land and must be recognised under
Section 20 of the U.P.Z.A. & L.R. Act.

14. Learned counsel for opposite
party no.2 has also submitted that before
enforcement of U.P.Z.A. & L.R. Act, 1950,
which
came
into
operation
on
26.1.1951(1358 Fasli), United Provinces
Tenancy Act was in operation and, as the
name of opposite party no.2 was recorded
right from 1354 Fasli (year 1947), his right
must be recognized under Section 180(2) of
the United Provinces Tenancy Act. It has
further been submitted that even under
Section 20 of the U.P.Z.A. & L.R. Act, a
person, who was in possession of any land
on the appointed date, he is recognized as
an adhivasi. Opposite party no.2 remained
in possession over the land in continuation
of his father right from 1354 Fasli i.e. year
1947 and, the recorded tenant never tried to
evict him upto the start of consolidation
operation in the year 1970-1971. Therefore,
under Section 209 of the U.P.Z.A. & L.R.
Act, rights of opposite party no.2 got
perfected under Section 210 of the U.P.Z.A.
& L.R. Act. It has also been submitted that
when the provisions of U.P.Z.A. & L.R. Act
came into operation, the limitation for
ejectment of a person occupying the land
without title was three years. He has further
submitted that notice of PA-10 was not
required inasmuch as this provisions was
introduced in the Land Records Manual on
25.2.1958 and thereafter, it was deleted on
31.7.1965, whereas the entry of possession
of opposite party no.2 was there much
before 1354 Fasli (year 1949).

15. Learned counsel for opposite
party no.2 has also submitted that opposite
party no.2 was in possession of the land
and, it was proved by receipts regarding
rent as well as canal dues submitted by
him, and the argument of learned counsel
or the petitioners that tenure holder lost the
receipts, for which an FIR was lodged, is
wholly untenable and could not have been
accepted. Payment of the rent and the canal
dues were made by opposite party no.2
himself. Name of the recorded tenant was
mentioned in the rent receipts because he
was recorded in the Khatauni. It is
submitted that finding recorded by the
revisional authority that though the receipts
were in the name of the petitioners, but the
258 INDIAN LAW REPORTS ALLAHABAD SERIES
payment was made by opposite party no.2,
can not be discarded. It has also been
submitted that opposite party no.2 had
perfected the title in view of the provisions
of Section 20 of the U.P.Z.A. & L.R. Act
and under Section 210 of the U.P.Z.A. &
L.R. Act. He has, therefore, submitted that
writ petition being without any merit and
substance, is liable to be dismissed.

16. I have considered the submissions
advanced on behalf of learned counsel for
the petitioners as well as by the learned
counsel for opposite parties.

17. The revision has been allowed by
the Assistant Director of Consolidation
only on the ground that in the Khatauni of
1356 Fasli, opposite party no.2 has been
mentioned in Column-12 for more than
three years as person in possession without
right. It has further said that since opposite
party no.2 had produced the rent receipts
and canal dues though in the name of the
petitioner, which would prove that opposite
party no.2 was in possession over the land
and he was paying the rent.

18. Though the Assistant Director of
Consolidation has power under Section 48
of the Act to interfere with the finding of
fact recorded by the authorities below, but
the power can not be exercised in the
manner as has been exercised by the
Assistant Director of Consolidation in the
present
case.
Two
authorities
have
concurrently held on the basis of evidence
produced by the authorities that name of
opposite party no.2 was recorded without
following the due procedure and without
adverting to such finding, the Assistant
Director of Consolidation has held opposite
party no.2 to be in possession of the land
on the basis of the entry of his father in
Column-12 in the Khatauni of 1356 Fasli.

19. The Assistant Director of
Consolidation has not adverted to the
findings recorded by the two authorities
below regarding the perfection of title on
the basis of possession of opposite party
no.2 as adhivasi, which was negatived by
them. Opposite party no.2 had claimed the
actual possession of the land on three
disputed
plots
as
mentioned
above.
However, two authorities have concurrently
held that name of opposite party no.2 was
recorded in Khatauni of 1354 Fasli and
upto 1355, 1359 Faslis without following
the mandatory provision without giving
notice of PA-10 as is provided in Paras A80
and A81 of the Land Records Manual.

20. In the case of Gurmukh Singh
(supra), this Court in paragraph 6 of the
judgement held as under :-

"6. It is clear from para 102-C of
the Land Records Manual that the entries
will have no evidentiary value if they are
not made in accordance with the provisions
of Land Records Manual. There is
presumption of correctness of the entries
provided it is made in accordance with the
relevant provision of Land Records Manual
and secondly, in case where a person is
claiming adverse possession against the
recorded tenure holder and he denies that
he had not received any P.A.10 or he had
no knowledge of the entries made in the
revenue records, the burden of proof is
further upon the person claiming adverse
possession to prove that the tenure holder
was duly given notice in prescribed form
P.A.10. Para A-81 itself provides that the
notice will be given by the Lekhpal and he
will obtain the signature of the Chairman,
Land Management Committee as well as
from the recorded tenure holder. It is also
otherwise necessary to be provided by the
person claiming adverse possession. The
2 All. Ram Prakash Vs. Deputy Director of Consolidation, Hardoi & Ors.
259
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."

21. Even on facts, it is found that
entries in subsequent Fasli years i.e. 1368,
1369, 1370, 1371 and 1372 appear to be
forged inasmuch as in Khatauni of 1368
Fasli, there is PA-10 mentioned, in which
Plot Nos.294 and 295 are mentioned, while
in Khataunis of 1369, 1370, 1371 and 1372
Faslis, there is PA-10, wherein Plot
Nos.294, 295 and 296 are mentioned, but
thumb impression was found in 1370 Fasli
without showing name of the noticed
person. In 1371 Fasli thumb impression
was found on same footage and no thumb
impression or signature are found in 1372
Fasli. Thus, no notice of PA-10 in
accordance with law was given to the
recorded tenure holder before recording the
name of opposite party no.2 in Column-9.
The rent and canal dues receipts, which are
in the name of the petitioners, can not be
relied on and, it can not be said that
opposite party no.2 was in possession of
the land in question as the rent receipts
were in the name of the original tenure
holder and, as per the original tenure
holder, they got lost, for which he had
lodged an FIR.

22. In view thereof, I am of the view
that the Assistant Director of Consolidation
was not correct in setting aside the
concurrent findings of fact recorded by the
two authorities below regarding entries of
opposite party no.2 and, therefore, the order
passed by the Assistant Director of
Consolidation is not tenable in law and is
liable to be set aside.

23. Writ petition is accordingly
allowed and the impugned order dated
29.1.1991 passed by the Assistant Director
of Consolidation, Faizabad (Now Ayodhya
Ji) is hereby set aside. Consequences to
follow.
----------
(2022)02ILR A259
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PRITINKER DIWAKER, J.

Consolidation No. 6574 of 2016

Ram Prakash ...Petitioner
Versus
Deputy Director of Consolidation, Hardoi &
Ors. ...Respondents

Counsel for the Petitioner:
Mr.
Prabhakar
Vardhan
Chaudhary,
Advocate

Counsel for the Respondents:
Mr. Manjive Shukla, Addl. Chief Standing
Counsel

(A) Civil Law - Delay Condonation - U.P.
Consolidation of Holdings Act, 1953, S. 11,
S. 53B - Limitation Act, 1963, S. 5 - Delay
in filing Appeal - If an appeal is filed
beyond the time limit, party is entitled to
seek condonation of delay in filing appeal
- an application has to be filed specifying
the grounds on which delay in filing the
appeal is sought to be condoned - firstly
delay condonation application has to be
considered - It is only after that the