Decided on December 13,2013

Deputy Director of Consolidation and Ors. Respondents


Brahma Singh Verma, J. - (1.) BY means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the judgments and orders dated 11.3.1996 passed by Settlement Officer Consolidation (Annexure No. 6) and dated 1.5.1999 passed by Deputy Director of Consolidation (Annexure No. 19). The dispute in the present writ petition relates to khata No. 129 khasra No. 862/1, 863/1, 864/1 and 865 -A situated in village Majhola. Khatima, District Udham Singh Nagar. The respondent Nos. 3 and 4 claim themselves to be owners by adverse possession on parts of the aforesaid land on the basis of their alleged continuous possession since 1966. The proceedings under the Consolidation of Holdings Act (for short, the Act) started in the year 1986 by issuance of notification dated 20.9.1986 u/s. 4 of the Act. Pursuant to the initiation of proceedings under the Act, the respondent No. 3 filed his objections u/s. 9 -A of the Act claiming themselves owners of the land on the basis of adverse possession on the hand in question since 1966. Similar objection was also filed by respondent No. 4 who also claimed themselves to be in physical possession of a part of the land in dispute. Besides this, additional objection was also filed on behalf of the respondent No. 4 claiming themselves to be a legal person and it was stated by them that they are society registered under the Societies Registration Act since 1978. Against the objections filed by respondent Nos. 3 and 4, the predecessor of the petitioner i.e. his mother Smt. Rukmani Devi, who was a recorded tenure holder of the land in dispute filed her objections wherein Smt. Rukmani Devi categorically denied the possession of the respondents. It was also stated that respondent No. 3 and 4 were not owners of the land in dispute by adverse possession. It was further stated that a society cannot be equated with an individual and hence cannot mature its title over the land in dispute by adverse possession. It was also stated that objections filed on behalf of respondent No. 3 are not maintainable as they were filed by one Father Rudolf Rodrgredges who had no concerned with the society and that he was contesting the matter in personal capacity. Thereafter both the parties led oral as well as documentary evidence. On the basis of material available on record, the learned Consolidation Officer (for short C.O) vide his order dated 17.1.1996, dismissed the objections of respondent Nos. 3 and 4. Aggrieved by the order of learned CO., appeal was filed by Catholic Diocese of Bareilly and Medical Sisters through their representatives managers, before the Settlement Officer Consolidation (for short S.O.C) which was registered as consolidation appeal No. 1518 of 1995 -96. By judgment and order dated 11.3.1996, learned S.O.C. has allowed the appeal on the ground that the statement of Ganga Ram, husband of Smt. Rukmani, recorded in case No. 51/172 of 1974 is admissible against Smt. Rukmani devi, which proved the possession of Catholic Diocese of Bareilly over the land in dispute. Secondly, that the statement of Father Mandosa given in ceiling case is also admissible against Smt. Rukmani Devi and he stated that Smt. Rukmani Devi had a right to cross -examine Ganga Ram and Father Mandosa, but she did not do so, hence the statements are admissible. Thirdly, that on the basis of revenue receipt and entry made by the Supervisor Kanungo P.K. 24 rent receipt it was held since Zamindari Abolition was enforced on 1st July, 1969 and prior to enforcement Father Mandosa was in possession and became sirdar by operation of law. Further aggrieved, the petitioner filed a revision in the court of Deputy Director of Consolidation (for short, D.D.C). The ground taken in the revision was that the S.O.C. has based his judgments on inadmissible evidence therefore the judgment is perverse and that any religious society cannot acquire right on a land by way of adverse possession. Adverse possession is an individual right and the constructive possession is not admissible, as Father Rudolf has stated before Consolidation Officer that he was in possession of the land through his servants and that his servants were cultivating the land. During the pendency of revision, Smt. Rukmani Devi died, who was then substituted by her legal heir Ram Prasad Verma (the petitioner herein). After hearing the learned counsel for the parties and perusing the record, learned D.D.C. by his judgment and order dated 7.5.1999, affirmed the findings of learned S.O.C. and dismissed the revision. Feeling aggrieved by the order passed by learned S.O.C. dated 11.3.1996 and learned D.D.C. dated 7.5.1999, the petitioner has filed the present writ petition.
(2.) THE petitioner has also filed supplementary affidavit annexing the order dated 17.1.1996 passed by learned CO. and order dated 11.3.1996 passed by S.O.C. The petitioner has also filed another supplementary affidavit annexing the judgment and order dated 26.7.1994 passed by Consolidation Officer Khatima in case No. 344 Catholic Diocese Bareilly vs. Hakim Singh and certified copy of sale deed dated 21.10.1992 executed by Father Francis D'souza and copies of khatoni of the disputed land from 178 fasli to 1380 fasli and 1381 to 1683 fasli.
(3.) COUNTER affidavit has been filed by respondent No. 3 wherein the averments made in the writ petition have been denied. It has been specifically stated in para -14 that in the Catholic Christian Religion, the Pope is the head of the religious order. Since the religion is spread over the whole world and properties are gifted by people all over the world and in order to manage and preserve the properties and to administer the religion, the administration is divided into several Diocese. The Diocese in any area get itself constituted in such manner that it becomes a juristic person capable of holding and managing the property according to the law applicable to that area. The area of Kumaun and Bareilly Divisions were earlier governed by the Diocese of Lucknow and since 1988 is under the management of the Diocese of Bareilly after it was constituted. The property continued to be in possession of the same religious order. Medical Sisters of St. Joseph is also a society of Christian religious order which deals in providing medical assistance to poor and incapable persons of the society. A part of the land in dispute was given to them for establishing and running a hospital. It has been further pleaded in counter affidavit that Diocese of Lucknow and Diocese of Bareilly are part of same organization and that the registration of the Society gives it a legal status only but has no effect on its existence earlier to its registration. It has been further stated in para -22 that Late Ganga Ram was father of petitioner and husband of Smt. Rukmani Devi. He had admitted possession of the respondent Nos. 3 and 4 over the land in dispute in ceiling proceedings. Nothing has been stated in the writ petition as to why he stated against the interests of his own wife. It is further stated that certified copies of the statement of Sri Ganga Ram and memo of appeal filed in the ceiling matter were relevant and was admissible in evidence even without referring the same to the witnesses of the other party therefore the contention of the petitioner is misconceived. It is further stated that Late Ganga Ram and his wife Late Smt. Rukmani Devi were holding lands under the Government Grants Act. They had no transferable rights under the grant. However, they had transferred 113 Bigha land to Catholic Diocese of Lucknow in the year 1966 and had handed over possession of the same to the Catholic Diocese of Lucknow. The provisions of U.P. Zamindari Abolition and Land Reforms Act were not applicable to the area at that time and were applied in the year 1969. No action for eviction of Catholic Diocese of Lucknow was taken and the Catholic Diocese of Lucknow continued to be in possession of the land in dispute. In the meantime, U.P. Imposition of Ceilings of Land Holdings Act, 1960 was amended and proceedings under the said Act were initiated against both of them treating them to be one unit. In those proceedings, the possession of Catholic Diocese of Lucknow over the land in dispute was admitted. The respondent No. 3 was created in the year 1988 out of the area of Catholic Diocese of Lucknow and land for hospital was given to the respondent No. 4 by the Catholic Diocese of Lucknow as the respondent No. 4 is also the part of Catholic Christian religious order. It is further stated that presently the land in dispute is under the administrative control of respondent No. 3 and 4 and they are entitled to the benefit of anterior possession of the Catholic Diocese of Lucknow. Supplementary counter affidavit has also been filed on behalf of respondent No. 3 wherein the copy of objections and the statement recorded in ceiling case have been filed.;

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