KALLOO Vs. DEPUTY DIRECTOR OF CONSOLIDATION AND

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution. The relevant facts are these: At the time of basic partial under the Consolidation proceedings the names of the petitioners were recorded over plot No. 94211 of Khata No. 130 of village Mau, Pergana and Tehsil Amethi, district Sultanpur. In the course of the spot verification it was reported that Jhoori and his brother Nankoo were the co-tenants of the land along with the petitioners, their shares being II 6th each. On publication of the basic year records Jhoori filed an objection and claimed 4th share in Khata No. 130; a copy of the objection is Annexure-1. He praved that his name may be entered on the Khata to the extent of l4th along with Kalloo and Ram Sunder. The Consolidation Officer found that Jhoori was not a tenure-holder, but taking into consideration the fact that he had been in possession over the land from 1363-F to 1372 to the extent of 11 Biswas, he found that Jhoori had acquired the rights of a Sirdar by remaining in adverse possession. The appeal failed; the Settlement Officer Consolidation on the basis of the said Khasra entries took a similar view taken by the Consolidation Officer. The Deputy Director of Consolidation has affirmed the orders of both the subordinate authorities. Being aggrieved against that order the petitioners have invoked the writ jurisdiction of this court under Article 226 of the Constitution and the main submission on their behalf is that the plea of adverse possession having not been taken even in the alternative by Jhoori, it was not permissible for the court to call out a new plea and 27 return a finding holding that Jhoori had acquired Sirdari rights by remaining in adverse possession. The law is very well settled that the alternative claim must be clearly made and proved. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for several years or that the plaintiff had acquired an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession. See: S. M. Karim v. Mst. Bibi Sdkina (1). Applying this principle it is manifestly clear that Jhoori did not claim title by adverse possession; he claimed himself to be a co-tenure-holder and that being so even if he was in possession, his possession cannot be said to be adverse to true owners. No averments was made that he had acquired Sirdari rights by remaining in adverse possession over the holding. For the discussion in the above, the orders passed by the Consolidation authorities suffer from an error apparent on the face of the record and they are liable to be quashed.

(2.) IN the result the rule succeeds: The petition is allowed. An-nexures 4, 5 and 6 are quashed. An appropriate writ or direction be issued in this behalf. It is hereby declared that Jhoori and his brother Nankoo were and are not the Sirdars of the disputed land. Costs shall be recoverable from opposite party No. 5 to the extent of the assets of Jhoori in his hands.