Possession rights determined under applicable land reform statutes where continuous possession without eviction claims grants rights irrespective of mortgage validity.

JUDGMENT

Saurabh Shyam Shamshery, J.

This is second round of litigation during consolidation proceedings. In first round matter reached upto the Deputy Director of Consolidation and it was remitted back to Settlement Officer of Consolidation to decide afresh.

2. On remand, an appeal filed by the petitioner was allowed vide order dated 07.09.1974, whereby possession of petitioner/ appellant was found continuous from 1954, on basis of a mortgage deed and it was held that since no proceedings were undertaken for eviction, therefore, he was settled with the right of Bhumidhari, whereas respondents were found neither in possession nor otherwise held to be entitled for right on land in dispute. Relevant part of order is mentioned hereinafter:

(Emphasis supplied)

3. A revision was filed at instance of the respondents, which was allowed in part, vide order dated 23.08.1976, whereby order of Appellate Authority was modified to the extent that respondents were held Bhumidhar and petitioner was held to be Asami in view of Section 21 d) of ZAMINDARI ABOLITION AND LAND REFORMS ACT , 1950 hereinafter referred to as "Act, 1950"). Relevant part of order is reproduced hereinafter:

(Emphasis supplied)

4. Sri. Santosh Kumar Dwivedi, learned counsel for petitioner has submitted that possession of petitioner was held by all authorities since 1954 over land in dispute. It has also been held by all authorities that no suit was filed or any action was taken by respondents or by Gaon Sabha to evict petitioner. Therefore, findings returned by Appellate Authority that petitioner has attained right of Bhumidhari was wrongly interfered to the extent that petitioner was given right of Asami only as well as respondents were wrongly held Bhumidhar though their right was rejected by two lower authorities.

5. Sri. Sanjay Kumar Ray, learned Standing Counsel appearing for State-Respondents, submitted that in view of Section 204 of Act, 1950 even today in case petitioner may be able to show that respondents have not taken any steps to evict him, still he would get benefit of above referred provision.

6. None appeared on behalf of contesting-respondents though a counter affidavit was filed on their behalf.

7. Heard learned counsel for parties and perused the material available on record. Relevant paragraphs of counter affidavit are mentioned hereinafter:

"9. That in reply the contents of paragraph 7 of the writ petition it is stated that the objection filed by the petitioner was not only dismissed on the technical grounds but also on the other grounds e.g. on the own admission made by the petitioner and absence of any entry regarding possession in favour of petitioner. It is, further, submitted that after consideration of entire records of the case consolidation officer rightly dismissed the objection filed by the petitioner.

10. That in reply to the contents of paragraph 8 of the writ petition it is submitted that statement made by the deponent in civil suit was not relevant and learned S.O.C. has rightly ignored that statement. Petitioner himself had himself admitted that he was not in possession over the plot no. 866.

11. That the contents of paragraph 9 of the writ petition are not correct as stated and as such denied. It is submitted that both the theory of exchange and mortgage were held as void and against the provision of law. As the certified copy of the statement made by the deponent was accepted by the A.S.O.C. without affording an opportunity to the deponent to confront it and to meet the same learned D.D.C. remanded