Prakash Krishna, J. - (1.) THIS is third round of litigation in the High Court which arises out of the proceedings under the Uttar Pradesh Consolidation of Holdings Act in pursuance of the objection filed by the petitioners herein in respect of the plot Nos. 737/1, 737/2, 738/1 and 738/3 situate in the village Jagdishpur Changan, Pargana Nawabganj, Tehsil Soraon, District Allahabad.
(2.) IN the basic year the aforesaid plots were recorded as Banzar in the name of Gaon Sabha. An objection by Babu Lal son of Ram Pratap whose decendants are the petitioners herein was filed on the allegation that the objector (herein after to referred as the petitioners) had been in occupation and possession of the aforestated disputed plots since the time immemorial and are being cultivated by him. He has installed a tubewell and has become Sirdar by operation of law. The plots in dispute are not Banzar and it is wrongly recorded in the name of Gaon Sabha. It was prayed that the objection be accepted and his name be recorded as Sirdar vide objection dated 19th of November, 1974. The Gaon Sabha contested the matter by denying the claim of the objector namely Babu Lal and came out with the case that the plots in dispute have always been Banzar land and is rightly recorded in the name of the Gaon Sabha. The parties led evidence in support of their respective cases. The only issue, thus, which fell for consideration before the consolidation Courts was whether the petitioners have acquired Sirdari right over the disputed plots and/or whether it is Gaon Sabha land. The case has a chequered history as it suffered successive remand orders passed either by Settlement Officer of Consolidation or by the Deputy Director of Consolidation. In the earlier round of litigation, the objections filed by the petitioners were rejected by the Consolidation Officer and the matter had travelled to the Deputy Director of Consolidation who decided the matter in two revisions being revision Nos. 122/242 and 121/243, Babu Lal v. Gaon Sabha, by the judgment dated September 8th, 1976 and allowed both the revisions partly. The revision so far as plot Nos. 636/6, 733/6, 739/1, 739/4, 735/5, 748/4 and 738/4 are concerned was rejected. This portion of the judgment of the Deputy Director of Consolidation has attained finality and is not in dispute. The revisions were allowed in respect of the plot numbers which are presently in dispute namely 737/1, 737/2, 378/1 and 738/3 situate in village Jagdishpur by passing an order of remand. The Deputy Director of Consolidation found that in respect of six plots for which the revisions were dismissed, the petitioners could not produce any evidence in support of their case that they are in occupation thereof by way of adverse possession. In respect of the remaining four plots presently in dispute, it was noticed by him that the entries in the revenue record are doubtful. There is difference in Khatauni entry and Khasra entry. The Khasra of 1357 Fasli must be in the record room and it could not be possessed by Lekhpal. It was further observed that burden lay upon the petitioners to explain the discrepancy. After remand, the Consolidation Officer mainly on the basis of the oral evidence led by the petitioners recorded a finding that the petitioners have been able to prove their adverse possession and therefore, they have become Bhumidhar of the land in dispute by the judgment dated July 17, 1979. Although no appeal was filed by the Gaon Sabha but one Heera Lal son of Srinath, the respondent No. 4 herein, filed an appeal being appeal No. 90 of 2002 before the Settlement Officer of Consolidation on the allegations that the petitioners got a fresh file prepared and managed to obtain an order from the Court of Consolidation Officer, against law. The land in dispute is about ten Bighas in area and the petitioners want to grab the property of Gaon Sabha by hook or crook.
(3.) THE First Appellate Court, the Settlement Officer of Consolidation, examined the matter and noticed that on earlier two occasions the objections filed by the petitioners were rejected. A person cannot perfect his title by way of adverse possession on the basis of oral evidence in absence of documentary evidence in his favour. THE order of the Consolidation Officer is principally based on the oral evidence and thus, cannot be allowed to stand. THE entry in 1356 Fasli in the revenue record was found doubtful in the earlier round of litigation by the Deputy Director of Consolidation and the doubt having not been cleared by the petitioners, in absence of any evidence to show that the petitioners were in occupation of the disputed plots before and after the abolition of Zamindari, they cannot acquire any right, title or interest in the Gaon Sabha property legally. THEre were two appeals before the Settlement Officer of Consolidation one against the order passed by the Consolidation Officer and another one in respect of the proceedings under Rule 109 of the Rules framed under the Act. Both these appeals were heard and decided together and were allowed by a consolidated judgment dated 9.6.2005. Feeling aggrieved the petitioners carried the matter in revision No. 1749/1457 before the Deputy Director of Consolidation which has been dismissed it by the impugned order dated 9.1.2006. Challenging these two orders one passed by the First Appellate Court and another by the Deputy Director of Consolidation, the present writ petition has been filed. Sri M.N. Singh, learned counsel for the petitioners raised the following points for consideration before me : 1. The appeal filed by the respondent No. 4 herein before the Settlement Officer of Consolidation against the order of the Consolidation Officer was not maintainable at his instance. The Gaon Sabha did not file appeal and as such the matter attained finality. 2. The name of the petitioners is recorded in the revenue record in 1356 Fasli. Thus, the petitioners have acquired Sirdari right under Section 20 (i) (b) of the U.P. Zamindari Abolition and Land Reforms Act. Elaborating the argument it was submitted that the view taken by the two Courts below that the oral evidence in absence of documentary evidence with regard to the plea of adverse possession is inconsequential, is untenable in law. The finding recorded in the earlier round of litigation that the entry in the revenue record is of doubtful nature is of little value. 3. The plea sought to be raised by the Gaon Sabha that the present proceedings are barred by the principle of res judicata is not tenable in law, as the earlier suit was in respect of different plots. Admittedly, the petitioners had filed a suit being suit No. 2 of 1970-71 under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act in respect of the plot Nos. 739/1 area 2-16-0, 737/3 area 4-0-0, 738/2 area 5-0-0 and 783/3 area 1-4-0 situate in village Jagdishpur Changan, Pergana Nawabganj, Tehsil Soraon, District Allahabad for declaration of their rights as Sirdar, on the allegations that the petitioner (Babu Lal) had been in possession of the land in dispute for the last 30-35 years and has become Sirdar thereof. The suit was dismissed by the Sub Divisional Officer, Soraon, District Allahabad and it has attained finality. The submission is that the plot numbers involved therein except one plot being plot No. 738/3 area 1-4-0, were different and therefore, the said judgment will not operate res judicata in respect of the other plots which were not subject- matter in the suit. ;