RAM SURAT Vs. DEPUTY DIRECTOR OF CONSOLIDATION VARANASI

JUDGEMENT

(1.) S. N. Srivastava, J. This petition having been instituted in the year 1975, praying for the relief of quashing the judgment and orders dated 7-2-1975 and 30-10-1974 passed by Deputy Director Consolidation and Settlement Officer Consolidation respectively, has matured for hearing in the year 2004. On its institution in this Court, the learned Single Judge while issuing notice was pleased to grant interim order to the effect that the petitioners' Chak may not be disturbed. The aforestated interim order still holds good.

(2.) THE dispute in the instant petition relates to Gata No. 178. In the basic year entry, the names of petitioners were recorded to which Gulab Chand who was then arrayed as respondent No. 3 preferred objection before the Consolidation Officer. THE matter pending before consolidation officer culminated in decision in favour of petitioners. It would appear that the decision was founded mainly on the ground that ex parte decree earlier granted in favour of the petitioners operated as res judicata and consequently, held the petitioners Sirdar. Aggrieved by the decision of the Consolidation Officer, Gulab Chand respondent went up in appeal before the Settlement Officer Consolidation who reversed the decision of the Consolidation Officer and directed name of Gulab Chand to be recorded in the revenue record. This led to filing of revision by petitioners before the Deputy Director Consolidation who affirmed the decision by the Settlement Officer Consolidation. It is in the above perspective that the present petition came to be filed. THE facts anterior to it were that petitioners instituted suit No. 316 of 1968 under Section 229-B of the U. P. Z. A. & L. R. Act in relation to aforestated plots on 17-6-1968. THE suit aforestated culminated in ex parte decree on 15-10-68. On the part of Gulab Chand respondent, a suit was instituted in relation to plot No. 178 under Section 229-B of the U. P. Z. A. & L. R. Act and in this suit, the petitioners entered appearance with the plea that they had instituted suit and had already obtained an ex parte decree. On being made aware by the plea, the respondent Gulab Chand preferred application for annulling ex parte decree on 7-3-1970 and thereafter, filed restoration application on 27- 8-1972 seeking restoration of proceeding. THE suit instituted by Gulab Chand ultimately abated under Section 5 (a) of the U. P. Consolidation of Holdings Act.

(3.) COMING to the next submission advanced across the bar by the learned counsel for the petitioners, it is worthy of notice that finding recorded by the Deputy Director Consolidation that the petitioner did not mature his rights by completing a span of six years as exacted under amendment to Schedule (1) by notification dated 27-3-1959 on the date of institution of suit, is a finding of fact. It is also explicit from the record that there is no mention or reference to P. A. 10 in the years 1370 and 1372 Fasli and the suit itself was filed on 17-6-1968 which corresponds to 1375 Fasli. By this reckoning, on that date the petitioner had not completed six years of possession. The argument that the petitioner endured in possession even thereafter also and therefore, his possession shall be deemed to be continuous and petitioner shall be deemed to have perfected his title by adverse possession does not commend to me for acceptance. In this regard, I feel called to refer to a decision of learned Single Judge of this Court in Smt. Muradan v. Board of Revenue U. P. , 1973 RD 415, the quintessence of what has been ruled is that period of limitation remains suspended during consolidation proceedings. In another decision in Ragho Prasad v. Pratap Narain Agarwal, 1969 ALJ 975, a Division Bench of this Court held the view that adverse possession does not continue to run and will be arrested in time after institution of suit so as to prescribe title in favour of defendant. It was also observed that if defendant remained in possession even after institution of the suit that period cannot be counted for the purpose of adverse possession. Similar is the position relating to consolidation. The finding recorded by the Deputy Director Consolidation is a finding of fact and as held by the Apex Court in Rena Drego v. Lal Chand Soni, AIR 1998 SC 1990, the High Court cannot disturb finding of fact recorded by the lower Court.