Anjani Kumar Mishra, J@mdashHeard Shri Kunal Ravi Singh, learned Counsel for the petitioner and Shri C.K. Rai, learned Counsel for the
respondents. The dispute in the writ petition relates to khata Nos. 28 and 29 of village Taunga Kalan, Pargana Khairagarh, District Allahabad.
2. Only some of the plots of the aforesaid khata are said to be in dispute namely, 241/2, area 1-3-10 of Khata No. 28 and plots Nos. 49/1,
124/1, 125/1, 125/2, 126, 127/1, 131, 145, 157, 163M, 164, 165, 176, 244, 256 and 292, total of 16 plots having an area of 14-3-0. In the
basic year record, the name of the Ayodhya Prasad, the petitioner was not recorded over khata No. 28 while over the khata No. 29 the name of
Ayodhya Prasad, Smt. Sahdei widow of Sarju Prasad, and Smt. Lohari widow of Babu Lal were recorded as sirdar. There was an entry under
class-9 in favour of the respondents who were to be found in possession during portal.
3. An objection under section 9-A (2) was filed by the respondents claiming title to the aforementioned plots on the basis of adverse possession.
The respondents also claimed 1/3rd share in khata No. 29 on the basis of a sale-deed dated 20.7.1968 alleged to have been executed by Smt.
Lohari in favour of the minor sons of Dwarika Prasad, Badri Prasad and Jagdish Prasad respectively. Thus, apart from the claim of the adverse
possession, the claim of the respondents to 1/3rd share in khata No. 29 was based on this registered sale-deed.
4. The petitioner contested the objection alleging that Smt. Lohari was unheard of for last twenty five years and she would be presumed to be
dead. A bhumidhari sanad was obtained by some imposter and thereafter a sale deed in favour of the respondents was also executed by the same
imposter claiming to be Smt. Lohari. It was further alleged that proceedings under section 134 of the U.P.Z.A. & L.R. Act for grant of bhumidhar
is sanad in favour of the alleged imposter had been decided against her and upon failing to secure rights on the basis of the bhumidharis sanad,
fraudulent entries in the records were made whereupon a suit under sections 229-B and 209 of the U.P.Z.A. & L.R. Act was filed by them which
however abated on the start of the consolidation operations.
5. The Consolidation Officer (the CO) by his order dated 28.4.1976 rejected the objection on the finding that the notice under section PA-10 had
not been issued and entries were in consistent and not continuous and did not contain the diary number etc. There existed no entries in the khasras
of 1374 and 1375 fasli in favour of the objectors.
6. Aggrieved by the order of the CO, the respondents filed an appeal which was dismissed by the Settlement Officer, Consolidation (the SOC) on
4.7.1978.
7. The Deputy Director of Consolidation (the DDC) by the order dated 25.6.1980 allowed the revision and upheld the claim of the respondents.
Hence this writ petition challenging the revisional order.
8. Learned Counsel for the petitioner has submitted that the DDC has allowed the revision without taking into consideration the findings recorded
by the CO that the entries under class-9 were not continuous and inconsistent and that the diary number etc. of the Lekhpal were not mentioned
therein.
9. The DDC also failed to take into consideration the findings recorded by the CO and the SOC that there were no entries of possession in favour
of the respondents in the Khasras of 1374 and 1375 fasli.
10. It has next been submitted that there was no entry in the khatauni regarding any order of Supervisory Kanoongo in accordance with paragraph
433 of the Land Record Manual. The findings recorded by the CO and the SOC that notice under PA-10 was neither issued or received by the
petitioners, was not reversed by the DDC in a judgment of reversal. The PA-10 issued in 1967 was fraudulent inasmuch as one of the petitioner
was minor till 1369 fasli. On the basis of the aforementioned submissions, it has been prayed that the order impugned be set aside.
11. Learned Counsel for the respondents has submitted that the entries in the revenue records of the petitioner on under clause-9 in the revenue
records were in the process of 1360 to 1366 fasli. The period of limitation for acquiring rights by adverse possession was six years at the relevant
time. The first break in the entries is thereafter it is, therefore contended that respondents had already perfected their rights always of adverse
possession prior to the first break in the entries. It is however admitted that there are no khasras entries in 1374 and 1375 fasli in favour of the
respondents.
12. It has next been contended that the suit under section 229-B only section 209 UPZA & LR Act was filed in 1969 after a period of limitation
has expired and, therefore, the claim of the respondent has rightly been upheld by the DDC.
13. In rejoinder, learned Counsel for the petitioner has submitted that the entries in khasra mention Dwarika and others. Dwarika Prasad was son
of Babu Lal. This entry was also with regard to plot No. 14 but there is no plot No. 14 in dispute. This shows that the entries relied upon by the
respondents in support of their claim were fraudulent. He has also submitted that some entries are in favour of Dwarika Prasad while other entries
are in favour of his father.
14. As regards the submission that at time the father and son had been shown unauthorized occupation. Learned Counsel for the respondent has
submitted that since they belong to the same family. This discrepancy would not have any effect on the merits of claim of the respondents and as
such discrepancy is wholly immaterial.
15. Upon a consideration and submission made by the learned Counsel for the parties and upon perusal of the impugned order, it emerges that the
submission made by the learned Counsel for the petitioner that the relevant findings returned by the CO as also SOC have not been reversed by
the DDC has force. It would be relevant to note that the connection of the learned Counsel for the petitioner respondent that their name continued
in the revenue records for continuous period of six years which was the period of limitation for acquiring rights adverse possession is also not
correct. It is not in dispute that in the Khasra of 1367 fasli which is within the six years period, the entry under class-9 is in the name of Babu Lal,
the father of the objector, I do not agree the submission made by the learned Counsel for the respondent that since Babu Lal was the father of the
objector Dwarika Prasad which is immaterial as to whose name was recorded as unauthorized occupation.
16. In my considered opinion, rights of adverse possession would accrue in favour of the unauthorized occupation and such rights are not a person
will acquire rights of adverse possession only if he remains upon a possession for a period specified whereupon he may acquire rights upon
prescription in case, the statutory period had not refused and the name in persons recorded his occupation, the first occupation would again have
remain in continuous possession for the period of limitation before his acquiring rights of prescription and for this purpose the period of limitation
would start fresh from the date he again entries into open and hostile possession.
17. In such view of the matter, I am of the considered opinion the judgment of the DDC is liable to be set aside.
18. In the context, learned Counsel for the respondent has submitted that the matter be remanded back to the DDC for passing a fresh orders in
this regard and after examining all the entries of all the relevant orders. Accordingly and in view of the discussion above, I allow the writ petition
and set aside the impugned order dated 25.6.1980 and remand the matter back to the DDC to pass a fresh order in the light of the observations
made above. Since the matter is very old one, it is further provided that this exercise will be completed as expeditiously as possible preferably
within a period of three months from the date of production of a certified copy of this order before him.
