CHAUTHI Vs. D.D.C. AND OTHERS

JUDGEMENT

(1.) Heard Shri M.K.S. Chandel, Advocate, holding brief of Shri V.K.S Chandel, learned counsel for the petitioner as well as learned counsel for the heirs of respondent No. 2 and learned Standing Counsel representing respondent No. 1.

(2.) The dispute in the present case and in the consolidation proceedings from which the present case arises relates to Plot No. 1621/826 (hereinafter referred to as, 'disputed plot') in Khata No. 198. The petitioner was recorded as a tenure holder of the disputed plot in the basic year Khatauni. However, in the same document, respondent No. 2 was also recorded as an Asami of the disputed plot. It is also apparent from the revenue records filed in the Courts below that in the Khatauni of 1359 Fasli, the petitioner was recorded as Ziman 6 i.e. Class (6) holder of the land and respondent No. 2 was recorded as an occupier of land without the consent of person entered in Column 5 of the Khasra i.e. without the consent of the petitioner and the possession of respondent No. 2 was categorized as Ziman 20 i.e. Class (20). The aforesaid facts are not disputed and appear to have been admitted before the Courts below.

(3.) During the consolidation proceedings held in the village, objections were filed by both the petitioner and respondent No. 2. Petitioner filed objections to delete the name of respondent No. 2 as Asami from the revenue records and respondent No. 2 filed objections claiming his entitlement to be recorded as Sirdar of the disputed plot. On the aforesaid objections, Case No. 4224 under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') was registered in the Court of Consolidation Officer (hereinafter referred to as, 'C.O.'). The C.O. vide his order dated 22.1.1974 decided the objections holding that the petitioner and respondent No. 2 be retained in the revenue records as Bhumidhar and Asami, respectively. A perusal of the judgement and order dated 22.1.1974 passed by the C.O. would show that in support of his case, respondent No. 2 filed copies of the judgement dated 28.9.1951 passed by the Judicial Officer, Phoolpur and copies of Khasra from 1364 to 1377 Fasli, copies of Khasra and Khatauni of 1359 Fasli and respondent No. 2 himself appeared as witness to prove his possession. It is also evident that in support of his case before the C.O., petitioner filed copy of Khatauni of 1359 Fasli, copy of Family Register and the Bhumidhari Sanad dated 25.1.1969 and one Shri Jairam as well as the petitioner appeared as witness to prove the case of the petitioner. It also appears from the judgement dated 22.1.1974 passed by the C.O. that in Case No. 4224, respondent No. 2 had also pleaded adverse possession to claim Sirdari rights over the disputed plot. The C.O. relying on the judgmeent dated 28.9.1991 passed by the Judicial Officer, Phoolpur, held that the disputed plot was mortgaged to respondent No. 2 by the petitioner and in case respondent No. 2 was in possession as mortgagee of the disputed plot, he was entitled to be recorded as Asami of the said plot and no right accrued in his favour due to alleged adverse possession. Against the order dated 22.1.1974, the petitioner and respondent No. 2 filed Appeals under Section 11(1) of the Act, 1953, before the Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.') which were registered as Appeal Nos. 1051 and 1033 respectively. It appears that in Appeal, respondent No. 2 raised a new plea claiming Sirdari rights over the disputed plot on the basis of entries in Khasra of 1356 Fasli and dropped his claim on the basis of adverse possession. The S.O.C. vide his order dated 9.9.1974 allowed Appeal No. 1051 filed by the petitioner and dismissed Appeal No. 1033 filed by respondent No. 2 after recording a finding that respondent No. 2 had not proved the entries in revenue records of 1359 Fasli and as the petitioner was a minor in 1359 Fasli, therefore no rights vested in respondent No. 2 due to his alleged possession over the disputed plot. The relevant portion of the judgment of S.O.C. is reproduced below:-