LALU AND OTHERS Vs. VAKIL

JUDGEMENT

(1.) HEARD Counsel for the parties. Challenge in this petition is the judgment of the Deputy Director of Consolidation dated 21.4.1975 by which the revision filed by the respondent No. 1 has been allowed. There appears to be no disputes about the fact. The land is in two village i.e. village Belrai and Hakimrai. The land of village Belrai was recorded in the name of the petitioner and over some of the khatas of the village Hakimrai also name of the petitioner was recorded. Objection was filed by the respondent No. 1/Vakil claiming rights in the land on the ground that he is son of Usman and he having inherited the property is co -tenant. Claim was resisted on the ground that respondent No. 1 is son or Sardar and he is not son of Usman. Consolidation Officer by its judgment dated 13.1.1973 has accepted the claim of the opposite party No. 1 in respect of some of the khatas. Against the order of the Consolidation Officer two appeals were filed, one by the petitioner and one by opposite party. Appeal filed by the petitioner was allowed and the appeal filed by the opposite party was dismissed. Against the order of the Settlement Officer Consolidation opposite party filed a revision which has been allowed by the judgment, which is under challenge before this Court.

(2.) AFTER hearing the Learned Counsel for the parties at some length and after examining the matter it is clear that all the three consolidation authorities have recorded a finding that respondent No. 1 has not proved himself to be son of Usman and thus on the ground that he has succeeded the property as co -tenant his rights as claimed cannot be accepted. Thereafter, the Consolidation Officer and Deputy Director of Consolidation appears to have allowed co -tenancy rights to the opposite party on the ground of adverse possession. Finding is based on the premises that name of opposite party is continuing in the papers and he was also in possession. Be as it may, without going into the correctness of the findings about possession of the opposite party and correctness about entry in the revenue papers, this Court is satisfied that the view taken by the Settlement Officer Consolidation that for giving rights to the opposite party on the basis of the adverse possession a specific plea in that respect was required to be taken and thus as it is claimed that there is no specific plea by the opposite party for acquiring co -tenancy rights by adverse possession, the acceptance of his claim needs fresh attention of the Deputy Director of Consolidation. A perusal of the judgment of the Courts below also indicate that neither there is any issue in respect of perfection of rights by the opposite party No. 1 on the basis of adverse possession nor the record discloses that there was specific pleading in this respect. Be as it may be it is for the Deputy Director of Consolidation to examine the record and to ascertain from the pleadings that whether a specific plea about perfection of rights on the basis of adverse possession was taken or not and in that situation what will be the proper course of action and then to decide the rights of the parties in the light of the available evidence. Needless to say that for giving rights on the basis of adverse possession a specific plea has to be there upon which issue is to be framed and it is then the Courts are required to decide the claim of the party in the light of the evidence in that regard. This Court is satisfied that the Deputy Director of Consolidation has not considered the claim of the opposite party in a proper perspective and thus matter needs fresh attention in the light of the observation made in this judgment. Accordingly, this petition succeed and is allowed. The impugned judgment and order of the Deputy Director of Consolidation is hereby quashed. The matter is sent back to the concerned Revisional Court for deciding afresh preferably within a period of three months from the date of receipt of certified copy of this order. It is made clear that the revisional authority will not be influenced by any observation made in this judgment and will decide the matter independently, in accordance with law.