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2018 Supreme(All) 1756
IN THE HIGH COURT OF ALLAHABAD
SUNITA AGARWAL, J.
MAHADEV PRASAD - Appellant
Versus
D.D.C. JHANSI AND OTHERS - Respondent
Writ B No. 3229 of 2018
Decided on : 20-03-2018
Advocate Appeared:
Shiv Shankar Prasad Gupta, Adv., Vijay Kumar Gupta, Adv., Anand Kumar Yadav, Adv.
The court emphasized the importance of timely appearance and justification for delay in filing applications, and the requirement for substantiating claims of adverse possession.
Headnote:
U.P. Consolidation of Holdings Act - Land Dispute - Section 9
Fact of the Case:
A land dispute arose under Section 9 of the U.P. Consolidation of Holdings Act, 1953. The recorded tenureholder's heirs were contested, and a restoration application was filed by the petitioner after an ex-parte order expunged his name from the records.
Finding of the Court:
The court found that the petitioner's explanation for non-appearance was insufficient, and the delay in filing the restoration application was unjustified. The court also noted that new rights had been created in the land, and the petitioner's claim of adverse possession was not substantiated.
Issues: The issues revolved around the petitioner's unauthorized possession, the recorded tenureholder's heirs, and the validity of the restoration application.
Ratio Decidendi: The court held that the petitioner's explanation for non-appearance and delay was insufficient, and his claim of adverse possession was not established. The court also considered the creation of new rights in the land and the absence of evidence supporting the petitioner's claims.
Final Decision: The court dismissed the writ petition, upholding the orders rejecting the restoration application.
SUNITA AGARWAL, J.
1. Heard learned counsel for the petitioner and perused the record.
2. By means of the present petition, the orders dated 23.7.1980, 4.1.2017, 31.5.2017 and 30.11.2017 passed by the Consolidation Authorities in a proceedings under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (in short 'the U.P. C.H. Act') for rejection of restoration application filed by the petitioner are challenged.
3. The brief facts of the matter are that a suo motu proceeding under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (in short 'the U.P. C.H. Act') was initiated for correction of records noticing that the recorded tenureholder of Khata No.138 namely Allah Rakkhi and Sabboo were sons of Anandi resident of Dhona were reported dead. One Saddiq son of Pyare Khan, Raje Khan son of Munna were reported to be heirs and legal representatives. It was further recorded that the name of Mahadev Prasad son of Lakshman Prasad and Jagdish son of Parshuram and Rajdhar son of Bhawani Prasad and Smt. Lachchho wife of late Ram Prasad were recorded being in possession of the land in question in Category IX.? One Jumarat @ Pukkhan wife of Madar Bux filed objection stating therein that she was sister of the recorded tenureholder whose whereabouts were not known. He was not heard for a period of more than 30 years. She denied the claim of Raje Khan and Saddiq Khan being heirs of the tenureholder. She further denied the possession of Mahadev Prasad over the land in question and stated that the land in question was in her possession.
4. It is recorded in the order passed by the Consolidation Officer dated 23.7.1980 that despite due notice and publication, no one appeared in the matter on behalf of Jagdish Prasad. Issues were framed. Issue No.1 was related to unauthorized possession of the petitioner over the land in question in Gata No.216/1 area 1.85 Hectares (of Khata No.138). Issue No.2 was with regard to the possession of Jagdish Prasad. Issue No.3 was as to who was the actual heir and legal representative of the recorded tenureholder.
5. It is further recorded in the order impugned that Mahadev Prasad appeared in the witness box and produced one Jairam in support of his claim. The copies of Khasra 1368-1385 Fasli, Khatauni 1359-1360 Fasli were filed in order to prove his possession over the land in question. These documents were considered by the Court below and after appreciation of the oral and documentary evidences on record, the Consolidation Officer found that the claim of the possession of Mahadev Prasad and Jagdish Prasad was not substantiated from the material evidence on record. The entries in Khasra could not have been treated as final proof of the possession. Issue Nos.1 and 2 were decided against the petitioner and other claimant Jagdish. In so far as the Issue Nos.3 and 4 is concerned, it was concluded that Jumarat @ Pukkhan being sister of the recorded tenureholders would inherit the property. Accordingly, vide order dated 23.7.1980, a direction was issued to expunge the entries in Category IX and record the names of heirs of the tenureholder.
6. These orders were sought to be recalled by the petitioner Mahadev Prasad by moving an application on 19.5.2012. The application under Section 5 of the Limitation Act was also filed to submit that the petitioner was suffering from serious ailment and he was confined to bed for a long time. His only son was in Armed Forces and on 21.3.2012, when he came back after retirement, he found papers relating to the present proceeding in a box kept at the home of the petitioner. Thereafter, the petitioner approached a counsel and filed the restoration application without delay.
7. The Consolidation Officer vide order dated 4.1.2017 has rejected the restoration application. The appeal and the revision filed against the said order were also dismissed.
8. These orders are under challenge in the present petition with the assertion by the learned counsel for the petitioner that the
