# Ram Naresh Misra v. Sita Ram & Ors

- **Citation:** (2021) 6 ILRA 238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-21
- **Case number:** Consolidation No. 2252 of 1982
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naresh-misra-v-sita-ram-ors-47035
- **Pages:** 12

## Headnote

A. Civil Law - Consolidation of Holdings
Act, 1953-Section 9(2)-co-tenureholdersdispute relating to Gata-petitioner's name
was recorded as Bhumidhar of Gata in
basic year of consolidation along with cotenureholders-issuance
of
PA-10
was
mandatory at the relevant point of time
but none of the courts below have
recorded a single finding that the PA-10
was
issued
in
accordance
with
the
procedure
under
the
Land
Records
Manual-finding of the C.O. that the
requirement of PA-10 has been fulfilled by
the objection of the petitioner-if any entry
is
made
in
PA-10,
same
shall
be
communicated to the person or their heirs
and obtain their signatures-court below
failed to consider that the name of the
petitioner was recorded as Bhumidhar in
basic year entry therefore, the objection
was required to be filed by the respondent
no.1 asserting claims against the true
owner which he failed to do.(Para 1 to 30)

B. the period of limitation prescribed for
the suit , for ejectment of a trespasser u/s
209 of the Act 1950 was six years during
the period 1969 to 1971, and it was
increased to 12 years by notification dated
14.10.1971-therefore, suit filed by the
petitioner was within limitation-therefore,
respondent no.1 is not entitled for benefit
of section 210 of the Act, 1950.(Para
28,29)

C. It is settled principle of law of adverse
possession that the person who claims title
over the property on the strength of adverse
possession and thereby wants to diverse the
true owner of his ownership rights over
6 All. Ram Naresh Misra Vs. Sita Ram & Ors.
239
such property is required to prove his case
only against the true owner of the property.
In the present case the respondent no.1
neither filed any objection against the
record
published
during
consolidation
proceedings claiming the right of adverse
possession nor accepted the ownership of
the petitioner therefore he is not entitled to
be recorded on the basis of adverse
possession. (Para 26)

The petition is allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,700 of 41,248. This is a partial read: ask again with offset=39700 for what follows._

238 INDIAN LAW REPORTS ALLAHABAD SERIES
283 (DB). Paragraph No. 11 of the
judgement is extracted herein below:-

"11. In view of above exposition of law
and considering the fact that Court below has
correctly came to the conclusion that in respect
to orders passed under the provisions of Act,
1972, Civil Court in a suit under Section 9
C.P.C., has no jurisdiction to declare orders
passed by competent authority under Act, 1972
illegal, it had not authority to proceed to decide
other issues on merits. In our view, the Court
below has rightly held that it had no jurisdiction
to try the suit. In these circumstances, the only
way open to it was to return the plaint instead
of proceeding to decide other issues on merits
and dismiss the suit. "

34. Accordingly, this Court finds merit in
the submission of learned counsel for the
appellants and modify the order of the appellate
court.

35. For the reasons given above, this
Court maintains the order and judgment of the
appellate court holding that the suit is not
cognizable by the civil court but set aside the
part of the order of the appellate court by which
it has dismissed the suit. Accordingly, this
Court directs the court below to return the plaint
to the plaintiff-appellants for presenting before
the court of competent jurisdiction.

36. For the reasons given above, the
second appeal is partly allowed with no order
as to costs.
----------

(2021)06ILR A238
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.06.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
Consolidation No. 2252 of 1982

Ram Naresh Misra ...Petitioner
Versus
Sita Ram & Ors. ...Respondents

Counsel for the Petitioner:
Hargur Charan, D.S. Pandey, V.K. Srivastava

Counsel for the Respondents:
C.S.C., H.S. Sahai, R.A. Misra, Uma Shankar
Sahai

A. Civil Law - Consolidation of Holdings
Act, 1953-Section 9(2)-co-tenureholdersdispute relating to Gata-petitioner's name
was recorded as Bhumidhar of Gata in
basic year of consolidation along with cotenureholders-issuance
of
PA-10
was
mandatory at the relevant point of time
but none of the courts below have
recorded a single finding that the PA-10
was
issued
in
accordance
with
the
procedure
under
the
Land
Records
Manual-finding of the C.O. that the
requirement of PA-10 has been fulfilled by
the objection of the petitioner-if any entry
is
made
in
PA-10,
same
shall
be
communicated to the person or their heirs
and obtain their signatures-court below
failed to consider that the name of the
petitioner was recorded as Bhumidhar in
basic year entry therefore, the objection
was required to be filed by the respondent
no.1 asserting claims against the true
owner which he failed to do.(Para 1 to 30)

B. the period of limitation prescribed for
the suit , for ejectment of a trespasser u/s
209 of the Act 1950 was six years during
the period 1969 to 1971, and it was
increased to 12 years by notification dated
14.10.1971-therefore, suit filed by the
petitioner was within limitation-therefore,
respondent no.1 is not entitled for benefit
of section 210 of the Act, 1950.(Para
28,29)

C. It is settled principle of law of adverse
possession that the person who claims title
over the property on the strength of adverse
possession and thereby wants to diverse the
true owner of his ownership rights over
6 All. Ram Naresh Misra Vs. Sita Ram & Ors.
239
such property is required to prove his case
only against the true owner of the property.
In the present case the respondent no.1
neither filed any objection against the
record
published
during
consolidation
proceedings claiming the right of adverse
possession nor accepted the ownership of
the petitioner therefore he is not entitled to
be recorded on the basis of adverse
possession. (Para 26)

The petition is allowed. (E-5)

List of Cases cited:

1. Babu Lal Vs DDC/A.D.M. & ors, Writ-B No.
43960 of 2013

2. Balchan & 2 ors. Vs DDC & ors., Writ-B
No.13437 of 2015

3. Dagadabai(Dead) by L.Rs. Vs Abbas @ Gulab
Rustam Pinjari(2017) 136 RD 552/2017(13) SCC 705

4. Ram Janam(Dead) Vs DDC,Gazipur & ors.
(2003) Suppl RD 571,

5.
Ran
Singh
Vs
DDC
&
ors;
Manu/UP/0893/2005/ 2005(99) RD 324

6. Shri Uttam Chand (D) Thru L.Rs. Vs Nathu
Ram(D) Thru L.Rs.AIR Online (2020)SC 35

7. Karnataka Board of Wakf Vs GOI & ors.
(2004) 10 SCC 779: Manu/SC/0377/04, Putti &
ors. Vs Asst. Dir, Consolidation , Bahraich & ors.
(2007) 2 ALJ 143

8. Shri Nath Vs The DDC,Ghazipur & anr. (1982)
SCC Online All 980

9. Sheo Mangal Lal Vs DDC & ors. (1978) SCC
Online All 655

10. Chandi Prasad(Dead) Thru L.Rs. Vs DDC,
Kanpur & ors (2011) 114 RD 663

11. Virendra Nath Thru P.A. Holder R.R. Gupta
Vs. Mohd. Jamil & ors,MANU/SC/0537/2004/
AIR 2004 SC 3856

12. Prem Narain & anr. Vs . Shiv Pati & ors.,
(2004) 22 LCD 1638.
13.
Chunni
Vs
St.
of
U.P.
&
ors.,
MANU/UP/2826/2015/ 2016 (130) RD 617

14. Smt Jagwanta Vs Smt. Nirmala & ors,
MANU/UP/0737/1982/1982 AWC 591(ALD)

15. Mohd. Raza Vs DDC & anr. R.D. 1997(R.D.)
276

16. Gurumukh Singh & ors. Vs DDC, Nainital &
ors. (1997) 80 RD 276,

17. Jamuna Prasad Vs. Deputy Director of
Consolidation, Agra & ors.

18. Sadhu Saran & anr. Vs Asstt. Dir. of
Consolidation, Gorakhpur & ors. (2003) 94 RD 535,

19. P.T. Munichikkanna Reddy & ors Vs
Revamma & ors (2008) 26 LCD 15,

20. Saroop Singh Vs Banto & ors. (2005) 8 SCC
330

21. Vasantiben Prahladji Nayak Vs Somnath
Muljibhai Nayak (2004) 3 SCC 376

22. Mohd Mohd. Ali Vs Jagadish Kalita, SCC Para
21

23. M.Siddique (D) thru Lrs. Vs Mahant Suresh
Das & ors. (2019) SCC Online 140

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri D.S. Pandey, learned
counsel for the petitioner and Shri Uma
Shankar Sahai, learned counsel for the
respondent no.1. The respondents no.2 to 4
are the court concerned.

2. This petition has been filed against
the judgment and orders dated 21.02.1975
passed by the Consolidation Officer (herein-after referred as C.O.), 05.09.1975
passed by the Assistant Settlement Officer
Consolidation (here-in-after referred as
ASOC) and 20.09.1982 passed by the
Deputy Director of Consolidation (here-inafter referred as DDC).
240 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The dispute in the instant writ
petition relates to Gata No.542 / area 0-416 of Khata No.47 of Village- Simra Tappa
Haweli, Pargana- Bidha, Tehsil- Tanda,
District- Faizabad now Ayodhya. The name
of the petitioner namely Hardeo was
recorded as Bhumidhar of Gata No.542 in
the basic year of consolidation alongwith
Rampher, Shiv Das and Sudama being the
co-tenure holders. However, they have not
claimed any right on the plot in question as
it has been stated that the petitioner had got
the land in dispute in partition. The
possession of the respondent no.1 i.e. Sita
Ram was recorded under clause-9 in the
revenue records. On coming to know the
petitioner had filed a suit for eviction but
during
pendency
of
the
suit
the
consolidation proceedings started therefore
the suit was abated. Therefore the petitioner
had filed an objection under Section 9(2) of
the Consolidation of Holdings Act, 1953
(here-in-after referred as Act of 1953) on
14.01.1974. The petitioner had also filed an
objection regarding deficiency of some area
of some other plots on 14.01.1974 but the
same was not found proved by the
Consolidation Authorities and before this
Court also no arguments were advanced in
regard to that. The respondent no.1 had
filed objection to the objection / claim of
the petitioner. The matter could not be
settled before the Assistant Consolidation
Officer therefore it was referred to the C.O.
for decision on merit. The C.O., after the
evidence
adduced
by
the
parties,
considered the matter and rejected the
objection / claim of the petitioner and
directed to struck off the name of the
petitioner from Gata No.542 and record the
name of the respondent no.1 as Sirdar.
Being aggrieved the petitioner had filed an
appeal bearing no.9301 under Section
11(C) before the SOC, which was also
rejected by means of the order dated
05.09.1975 by the ASOC. The Revision
No.293 / 728 under Section 48 was filed by
the petitioner which was also rejected by
means of the judgment and order dated
20.09.1982. Hence the present writ petition
has been filed. During pendency of the
present writ petition the petitioner and the
respondent no.1 died, therefore their legal
heirs have been brought on record.

4. Submission of learned counsel for
the petitioner was that the respondent no.1
had not filed any objection under Section9(2) even then the C.O. proceeded on the
assumption that the objection was filed by
the respondent no.1 and the title of the case
was also shown as Sita Ram Vs. Hardeo
illegally and in mala fide manner. The
objection of the petitioner was rejected in
an arbitrary, illegal and in a mala fide
manner on the basis of adverse possession
of respondent no.1 without fulfilling the
conditions and continuity of possession.
The C.O. also failed to consider the
mandatory provisions of issuance of PA-10
and it's service in case of entry of clause-9
on the basis of adverse possession. The
C.O. merely on presumption, has rejected
the claim of the petitioner on the ground
that the name of the petitioner might have
been recorded. A finding in regard to filing
of the eviction suit with delay has also been
recorded by the C.O. on the basis of
presumption but the appellate and the
revisional authorities have not recorded any
finding in regard to the alleged delay in
filing the suit because it was filed within
time. The learned courts below have also
not
recorded
any
finding
that
the
respondent no.1 had matured his right on
the basis of adverse possession prior to
filing of the suit by the petitioner.

5. On the basis of above, learned
counsel for the petitioner submitted that the
6 All. Ram Naresh Misra Vs. Sita Ram & Ors.
241
learned courts below, without considering
the pleadings of the parties and the
evidence and merely on the basis of
presumption, have rejected the claim of the
petitioner in an arbitrary and illegal
manner. Hence the impugned orders are not
sustainable in the eyes of law and liable to
be quashed.

6. Learned counsel for the petitioner has
relied
on
judgment
and
order
dated
27.09.2013 in Writ-B No.43960 of 2013;
Babu
Lal
Vs.
Deputy
Director
of
Consolidation/A.D.M. & Others, judgment
and order dated 18.05.2015 in Writ-B No.
13437 of 2015; Balchan and 2 Others Vs.
Deputy Director of Consolidation and
Others, Dagadabai (Dead) by L.Rs. Vs.
Abbas @ Gulab Rustam Pinjari; 2017 (136)
RD 552 / 2017 (13) SCC 705, Ram Janam
(Dead)
Vs.
Deputy
Director
of
Consolidation, Gazipur and Others; 2003
(Suppl) RD 571, Ran Singh Vs. Deputy
Director
(C)
and
Others;
MANU/UP/0893/2005 / 2005 (99) RD 324,
Shri Uttam Chand (D) Through L.Rs. Vs.
Nathu Ram (D) Through L.Rs.; AIR Online
2020 SC 35, Karnataka Board of Wakf Vs.
Government of India and Others; (2004) 10
SCC 779; Manu/SC/0377/04, Putti &
Others.
Vs.
Assistant
Director,
Consolidation, Bahraich & Others; 2007 (2)
ALJ 143, Shri Nath Vs. The Deputy
Director of Consolidation, Ghazipur and
Another; 1982 SCC OnLine All 980, Sheo
Mangal Lal Vs. Deputy Director of
Consolidation and Others; 1978 SCC
OnLine All 655, Chandi Prasad (Dead)
Through L.Rs. Vs. Deputy Director of
Consolidation, Kanpur and Others; 2011
(114) RD 663, Virendra Nath Through P.A.
Holder R.R. Gupta Vs. Mohd. Jamil and
Others; MANU/SC/0537/2004 / AIR 2004
SC 3856 and Prem Narain and Another Vs.
Shiv Pati and Others; 2004 (22) LCD 1638.

7. Per contra, learned counsel for the
respondent
no.1
submitted
that
the
respondent no.1 had got the land in dispute
from his father and an alternative plea of
adverse possession was taken by him. The
respondent no.1 had filed objection against
the objection / claim of the petitioner. The
name of the respondent no.1 was recorded
in 1367 Fasli and PA-10 was also issued
but only the number of PA-10 has not been
mentioned in the record of 12 years. At the
relevant point of time the period was six
years for claim of adverse possession. The
suit for eviction was filed by the petitioner
on 15.11.1971 with delay as the petitioner
had knowledge in the year 1966, which is
apparent from the certified copy filed by
him alongwith rejoinder affidavit. The
petitioner Hardeo, who had filed the
objection, never appeared in the witness
box although he admitted the possession of
the respondent no.1 in his objection. The
respondent no.1 had specifically stated in
his evidence that he is cultivating the land
in dispute for the last 25 years before his
father was cultivating. The plea of 'Batai'
was not stated by the son of the petitioner
in his evidence. However he has not
disputed that the respondent no.1 should
also have filed the objection.

8. On the basis of above, learned
counsel for the respondent submitted that
the learned courts below have rightly
considered the pleadings and evidence of
the parties and rejected the objection of the
petitioner. There is no illegality or error in
the impugned orders. The writ petition is
misconceived and liable to be dismissed.
Learned counsel for the respondent has
relied on Chunni Vs. State of U.P. and
Others; MANU/UP/2826/2015 / 2016
(130) RD 617 and Smt. Jagwanta Vs. Smt.
Nirmala
and
Others;
MANU
/UP/0737/1982 / 1982 AWC 591 (ALD).
242 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In reply, learned counsel for the
petitioner had submitted that the arguments
of
the
respondent
no.1
are
beyond
pleadings
which
is
apparent
from
paragraph-12 of the counter affidavit filed
before this Court in which also the
respondent no.1 has stated that the
possession of the respondent no.1 was
adverse whereas the adverse possession has
not been proved. So far as the submission
regarding delay in filing the eviction suit,
he submitted that as per submissions of the
learned counsel for the respondent no.1
also the suit, was within time. Therefore,
the submissions of learned counsel for the
respondent are misconceived.

10. I have considered the submissions
of learned counsel for the parties, gone
through the orders and perused the record
of writ petition.

11. The dispute relates to Gata
No.542 of Khata No.47. In the basic year of
consolidation, the name of the petitioner
was recorded as Bhumidhar and the
possession of the respondent no.1 was
recorded in Column-9. The petitioner had
filed the objection under Section-9(2). The
matter could not be settled therefore the
Assistant Consolidation Officer referred to
the C.O. for decision on merit. It is
apparent from the perusal of the order of
C.O. that the suit has been decided with the
title of Sita Ram Vs. Hardeo whereas the
objection was filed by the petitioner
therefore the title of the suit should have
been Hardeo Vs. Sita Ram. Four issues
were framed by the C.O. but despite the
fact that the objection was filed by the
petitioner, who was recorded as Bhumidhar
in the basic year, the first issue was framed
as to whether the petitioner is Sirdar of the
land in dispute No.542 and the third issue
was framed as to whether Sita Ram is
Bhumidhar of land in dispute. From the
finding recorded by the C.O. it is apparent
that he has not found the continuous
possession of the respondent no.1 and
recorded a findings on the presumption that
the name of the plaintiff i.e. respondent
no.1 was recorded in the year 1359 Fasli as
Sikmi and his name might have been left in
the subsequent years and thereafter it was
recorded in the year 1336-1367 Fasli. A
finding has also been recorded on the basis
of record that there is no reference of PA10 but on the basis of objection of the
petitioner the requirement of PA-10 is said
to have been fulfilled. Though a finding has
been recorded that the name of the
petitioner is also recorded with the
difference of 1-2 years but it has been
stated to be doubtful because there is no
PA-10. Therefore, it is apparent that the
learned C.O. has dealt with the matter
without
application
of
mind
and
considering the records and the relevant
law applicable because PA-10 was not
required for petitioner who was recorded as
Bhumidhar in the basic year. It was
required for the respondent no.1, who was
claiming
on
the
basis
of
adverse
possession. Therefore the findings recorded
by the C.O. are illegal perverse.

12. The name of the respondent no.1
was recorded in clause-9 on the basis of
order passed by the Supervisor Kanoongo.
There is no finding that the respondent no.1
was in continuous possession for a period
of 12 years though on the basis of record of
12 years filed before this Court it was
argued that PA-10 is mentioned in some
years but the number of PA-10 has not
been mentioned and it has not been issued
in accordance with law and not served on
the
main
tenant
i.e.
the
petitioner.
Therefore the benefit of it can not be given
to a person i.e. the respondent no.1 who is
6 All. Ram Naresh Misra Vs. Sita Ram & Ors.
243
claiming
on
the
basis
of
adverse
possession. The claim from his father has
also not been proved.

13. The appellate authority also
proceeded on the assumption that the
respondent no.1 want to get his name
recorded as Sirdar on the basis of adverse
possession but without any finding as to
whether the petitioner was in continuous
possession and considering the order
passed by the Supervisor Kanoongo and the
eviction suit filed by the petitioner recorded
his opinion that the respondent no.1 has
proved his possession on the land in dispute
from oral and documentary evidence. It has
not recorded any finding that as to whether
the Supervisor Kanoongo had passed the
order for recording the name of the
respondent no.1 after following the due
procedure of law or not.

14. The revisional authority also dealt
with the matter on the assumption that Sita
Ram has filed the objection in regard to
Gata No.542 and he has matured his right
on the land on the basis of adverse
possession therefore his name should be
recorded as Bhumidhar. The DDC also
recorded a finding that from 1359 Fasli to
1370 Fasli there is no entry of possession in
favour of the revisionists and the entry of
possession of 1371 Fasli is not in
accordance with the Land Records Manual
whereas the C.O. has accepted that the
name of the petitioner is also recorded by
the difference of 1-2 years. However, the
revisional authority has nowhere stated that
as to whose name is recorded as main
tenure holder. In regard to PA-10, without
any evidence, it has been recorded that the
order has been passed after inquiry of PA10. Accordingly the revisional authority
held that he feels that the courts below have
given the correct decision by declaring Sita
Ram as Sirdar of land in dispute on the
basis of possession. Therefore it is apparent
that the respondent no.1 has been declared
to have matured his right on the basis of
adverse possession while he was not in
continuous possession and the procedure
for recording under clause-9 on the basis of
adverse possession by issuance of PA-10
was not followed, the service of which, on
main tenant, was also mandatory. But there
is no proof of service. The courts below
have rejected the claim of the petitioner
while he was recorded as Bhumidhar in
Khatauni of basic year. The right on the
basis of adverse possession will accrue in
accordance with law and not merely
because the petitioner had stated in his
objection that the respondent was given the
land in dispute for plowing and therefore he
was in possession but he had got his name
wrongly recorded in clause-9 without due
procedure of law.

15. The para-89-A, 89-B and 102-B
of the Land Records Manual (here-in-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

K
h
a
sr
a
N
o.
of
P
lo
Area
Details
of
entry
in the
last
year
Details
of
entry
made
in the
current
year
Ve
rifi
cat
ion
rep
ort
by
the
Re
ven
Rama
rks
244 INDIAN LAW REPORTS ALLAHABAD SERIES
t
ue
Ins
pec
tor
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 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 (sub-paragraph (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."

16.

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.

17. This Court considered this issue in
the case of Mohd. Raza Vs. Deputy
Director of Consolidation and Another;
R.D. 1997 (R.D.) 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.

18. This court, in the case of
Gurumukh Singh and Others Vs. Deputy
Director of Consolidation, Nainital and
Others; 1997 (80) RD 276, has also held
that the entries will have no evidentiary
value if they are not in accordance with the
6 All. Ram Naresh Misra Vs. Sita Ram & Ors.
245
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
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 and
Others, 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."

19. This Court, in the case of Sadhu
Saran and Another Vs. Assistant Director
of Consolidation, Gorakhpur and Others;
2003 (94) RD 535, has held that it is well
settled in law that the illegal entry does not
confer title.

20. This Court, in the cases of Babu
Lal Vs. Deputy Director of Consolidation
(Supra), Balchan and two Others Vs.
Deputy Director of Consolidation and
Others (Supra), Chandi Prasad (Dead)
Through L.Rs. Vs. Deputy Director of
Consolidation and Others (Supra), Shiv
Mangal Lal Vs. Deputy Director of
Consolidation and Other (Supra) and Shri
246 INDIAN LAW REPORTS ALLAHABAD SERIES
Nath
Vs.
Deputy
Director
of
Consolidation (Supra), has consistently
held that if an entry has been made in
column-9 of the Khatauni without issuing
and service of PA-10 on the recorded
tenure holder then such an entry was illegal
and has no evidentiary value. It has further
been held that the burden to prove that PA10 was issued and served on the tenure
holder is lying upon the person relying on
the column-9.

21. In the present case the respondent
no.1 had not even filed any objection
claiming his adverse possession and it has
not been proved by him that PA-10 was
issued in accordance with the provisions of
the Land Records Manual and served on
the tenure holder whereas he has claimed
on the basis of adverse possession and PA10. On the other hand, the respondent no.1
has specifically denied in his evidence that
the land in dispute has any concern with the
petitioner therefore the claim of the
respondent no.1 is not sustainable at all
against the petitioner, who was recorded as
Bhumdhar. The right of adverse possession
is not a substantive right but result of the
waiving it willfully or omission by
negligence or otherwise of a right to defend
or care for the integrity of the property on
the part of the paper owner of the land.

22. This Court in the case of Putti and
Others
Vs.
Assistant
Director
of
Consolidation,
Bahraich
and
Others
(Supra) has held that the court should be
slow to declare the right on the basis adverse
possession otherwise it may become a
weapon in the hands of mighty persons to
acquire the property of the weaker sections of
society. It has further held that there shall not
be presumption of continuous possession to
declare right and title on the basis of adverse
possession unless year to year entries made in
accordance with law in the Khasra or
Khatauni and proved by cogent and
trustworthy evidence, the burden to prove
which is on the person who claims Sirdari or
Bhumidhari rights on the basis of adverse
possession.
Relevant
paragraph-41
is
extracted below:-

"41. Right to claim title on the basis of
adverse possession is a legacy of British law.
Courts should be slow to declare right on the
basis of adverse possession. In case liberal
approach is adopted to extend right and title
on the basis of adverse possession then it may
become a weapon in the hands of mighty
persons to acquire the property of the weaker
sections of the society. Accordingly, it shall
always be incumbent upon the Courts to do
close scrutiny of the evidence and material on
record within the four corners of law as
settled by Apex Court, discussed herein
above. Even little reasonable doubt on the
evidence relied upon by a party to claim right
and title on the basis of adverse possession
may be sufficient to reject such claim under a
particular fact and circumstance.

There shall not be presumption on
continuous possession to declare right and
title on the basis of adverse possession unless
year to year entries made in accordance to
law in the Khasra or Khatauni are proved by
cogent and trust worthy evidence. burden of
proof of such entries shall lie, as discussed
herein above, on the person who claims
Sirdari or bhumidhari right on the basis of
adverse possession. In the absence of any
such proof, presumption shall be in favour of
recorded tenure-holder whose name has been
recorded in column-1 of the Khatauni."

23. Similar view has been taken in the
case of Prem Narain and Another Vs. Shiv
Pati and Others (Supra), Ran Singh Vs.
Deputy Director (C) and Others; (Supra)
and Ram Janam Vs. Deputy Director of
6 All. Ram Naresh Misra Vs. Sita Ram & Ors.
247
Consolidation,
Gazipur
and
Others;
(Supra).

24. The Hon'ble Apex Court, in the
case of P.T. Munichikkanna Reddy and
Others Vs. Revamma and Others; 2008
(26) LCD 15, has held that in case of
adverse possession, communication to the
owner and his hostility towards the
possession
is
must.
The
relevant
paragraphs 19 to 23 are extracted below:-

"19. Thus, there must be intention to
dispossess. And it needs to be open and
hostile enough to bring the same to the
knowledge
and
plaintiff
has
an
opportunity to object. After all adverse
possession right is not a substantive right
but a result of the waiving (willful) or
omission (negligent or otherwise) of right
to defend or care for the integrity of
property on the part of the paper owner of
the land. Adverse possession statutes, like
other statutes of limitation, rest on a
public policy
that do not promote
litigation and aims at the repose of
conditions that the parties have suffered to
remain unquestioned long enough to
indicate their acquiescence.

20. While dealing with the aspect of
intention in the Adverse possession law, it
is important to understand its nuances
from varied angles.

21. Intention implies knowledge on
the part of adverse possessor. The case of
Saroop Singh v. Banto and Others;
(2005) 8 SCC 330 in that context held:

"29. In terms of Article 65 the
starting point of limitation does not
commence from the date when the right of
ownership arises to the plaintiff but
commences from the date the defendants
possession
becomes
adverse.
(See
Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak, (2004) 3 SCC 376).

30. Animus possidendi is one of
the ingredients of adverse possession.
Unless the person possessing the land has a
requisite animus the period for prescription
does not commence. As in the instant case,
the appellant categorically states that his
possession is not adverse as that of true
owner, the logical corollary is that he did
not have the requisite animus. (See Mohd
Mohd. Ali v. Jagadish Kalita, SCC para
21)"

22. A peaceful, open and continuous
possession as engraved in the maxim nec
vi, nec clam, nec precario has been noticed
by this Court in Karnataka Board of Wakf
v. Government of India and Other; (2004)
10 SCC 779 in the following terms:

"Physical
fact
of
exclusive
possession and the animus possidendi to
hold as owner in exclusion to the actual
owner are the most important factors that
are to be accounted in cases of this nature.
Plea of adverse possession is not a pure
question of law but a blended one of fact
and law. Therefore, a person who claims
adverse possession should show: ( a) on
what date he came into possession, (b)
what was the nature of his possession, (c)
whether the factum of possession was
known to the other party, (d) how long his
possession has continued, and (e) his
possession was open and undisturbed. A
person pleading adverse possession has no
equities in his favour. Since he is trying to
defeat the rights of the true owner, it is for
him to clearly plead and establish all facts
necessary
to
establish
his
adverse
possession"

23. It is important to appreciate the
question of intention as it would have
appeared to the paper-owner. The issue is
that intention of the adverse user gets
communicated to the paper owner of the
property. This is where the law gives
importance to hostility and openness as
248 INDIAN LAW REPORTS ALLAHABAD SERIES
pertinent qualities of manner of possession.
It follows that the possession of the adverse
possessor must be hostile enough to give
rise to a reasonable notice and opportunity
to the paper owner."

25. Similar view has been taken by
the Hon'ble Apex Court in the case of
Karnataka Board of Waqf and Others Vs.
Government of India and Others (Supra)
and Virendra Nath Through P.A. Holder
R.R. Gupta Vs. Mohd. Jamil and Others
(Supra).

26. The Hon'ble Apex Court in the
case of Shri Uttam Chand (D) Through
L.Rs. Vs. Nathu Ram (D) Through L.Rs.
(Supra) has held that Adverse possession is
hostile possession by assertion of a hostile
title in denial of the title of the true owner
and mere possession for some years was
not sufficient to claim adverse possession.
A Constitution Bench in the case of M.
Siddique (D) through Lrs. Vs. Mahant
Suresh Das and Others; (2019) SCC
Online 140 has 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
a possession adverse to the title of the
other. Similarly in the case of Dagadabai
(Dead) by L.Rs. Vs. Abbas @ Gulab
Rustam Pinjari (Supra) the Hon'ble Apex
Court has held that it is settled principal of
law of adverse possession that the person
who claims title over the property on the
strength of adverse possession and thereby
wants to diverse the true owner of his
ownership rights over such property is
required to prove his case only against the
true owner of the property. It is equally
well
settled
that
such
person
shall
necessarily first admit the ownership over
the property to the knowledge of the true
owner and secondly the true owner has to
be made a party to the suit to enable the
court to decide the plea of adverse
possession between the two rival claimants.
In the present case the respondent no.1
neither filed any objection against the
records published during consolidation
proceedings claiming the right of adverse
possession nor accepted the ownership of
the petitioner therefore he is not entitled to
be recorded on the basis of adverse
possession.

27. The petitioner is not entitled for any
benefit of the judgment relied by him in the
case of Chunni Vs. State of U.P. and Others
(Supra) because in the said case it has been
observed that the issuance of PA-10 was
compulsory between 1959-65. In the instant
case the name has been recorded on the basis
of the order passed by the Supervisor
Kanoongo on 15.03.1961, which could have
been passed after issuance of PA-10 and
service of the same on the original tenant
therefore in view of the aforesaid judgment
the procedure for issuance of PA-10 was
mandatory at the relevant point of time but
none of the courts below have recorded a
single finding that the PA-10 was issued in
accordance with the procedure prescribed
under the Land Records Manual. In fact it has
been proved by the finding of the C.O. that
the PA-10 was not issued and that procedure
was not followed as it has recorded that the
requirement of PA-10 has been fulfilled by
the objection of the petitioner.

28. Adverting to the question of filing
of the suit under Section 209/229 of the U.P.
Zamindari Abolition and Land Reforms Act,
1950 admittedly it was filed on 15.11.1971
i.e. 1378 Fasli. The C.O. on the basis of
evidence of the son of the petitioner that the
objection was made prior to one year of
consolidation proceedings recorded a finding
that it must have been after 1378 Fasli and if
6 All. Ram Sunder & Anr. Vs. Joint Director of Consolidation, Sultanpur & Ors.
249
it is presumed that the possession of the
respondent no.1 was recorded in the year
1972 Fasli then also the six years had not
completed therefore this finding was purely
on presumption and on the basis of this
finding the rights under Section 210 of the
Act of 1950 could not have been perfected.
Even if the submission of learned counsel for
the respondent no.1 is accepted that the
petitioner had knowledge of the entry made
in the year 1966 i.e 1373 Fasli then also it
was within six year as the suit was filed in
1378 Fasli.

29. This Court in the case of Smt.
Jagwanta Vs. Smt. Nirmala and Others
(Supra) in paragraph-2 has noted that the
period of limitation prescribed for a suit, for
ejectment of a trespasser under Section 209 of
the Act of 1950 was six years during the period
between 27.03.1969 and 13.10.1971 and this
was increased to 12 years by notification dated
14.10.1971 amending the relevant entry no.30
of appendix-3 to the rules and the serial no.24
of Schedule-2 of the act. Therefore on the date
of filing of the suit by the petitioner on
15.11.1971 the limitation for filing the suit was
12 years so it was within limitation. The
appellate authority and the revisional authority
have not recorded any finding that the suit was
time barred. Therefore also the respondent no.1
is not entitled for benefit of Section 210 of the
Act of 1950.

30. The courts below have also not
recorded the concurrent finding because they
have recorded the finding on presumption and
the appellate authority and the revisional
authority have virtually affirmed the findings of
courts below as discussed above. The courts
below have dealt with the matter on the wrong
assumption that the respondent no.1 was
claiming his title on the basis of adverse
possession but failed to consider that the
respondent no.1 had neither filed any objection
nor proved his claim on the basis of adverse
possession.