S.R.Misra - (1.) BY means of the present writ petition, the petitioner has assailed the orders passed by respondent nos. 1 to 3 on the ground that they have not considered the oral evidence and if the matter would have been considered in proper perspective, the petitioner would have acquired adverse rights in respect of plot nos 344 (0.61 acres) and 528 (p. 37 acres).
(2.) BRIEFLY stated the facts are that in the basic year, plot nos. 344 and 528 were entered in the name of Kedar. Petitioner filed an objection to the effect that he acquired rights on account of exchange and by virtue of said exchange, plots 344 and 528 were given to him and in lieu thereof, plot nos. 5, 6 7, 116, 64 and 176 were given to the contesting respondent, namely, Kedar. Sri A. N. Bhargava, learned counsel for the petitioner urged that there has been a valid exchange in 1952 and since then the petitioner and his ancestors were in possession over the two plots given to them in exchange of plot nos. 344 and 528 and on account of remaining in possession for more than statutory period, the petitioner has acquired adverse rights. Apart from other aspects of the matter, the petitioner also ied evidence before the Consolidation Authorities but the same was not considered at all. The learned counsel placed reliance in Bharti v. Board of Revenue, 1972 RD 521. were in while considering a sale deed, which was held in respect of occupancy tenancy, this Court held that if the sale is bad then the possession of the transferee will acquire the shape of adverse light and the said possession will not be permissive or on behalf of the transferor. Sri Triveni Shankar, learned counsel for the respondent, in reply, submitted that the finding recorded by the respondent nos 1 to 3 being finding of fact, no interference is called for in the writ jurisdiction. There is no finding in favour of the petitioner that he remained in possession on the basis of so called exchange for more than the period of limitation prescribed and he also denied that there was any exchange or any entry on the basis of which such exchange was incorporated in the revenue papers.
(3.) HAVING considered the submission; advanced by the learned counsel for the parties and going through the record of the case, I find that all the three Consolidation Authorities have concurrently held that the so called exchange was never acted upon and the Consolidation Officer has also taken note of one of the conditions contemplated in exchange, which reads as under :- "KATHIT TABADLE NAME ME YAHA SARTA LIKHI HAI KI AGGAR PAKSHO KO KISHI KISHM KA KOI NUKSHAN HOTA HAI TO AISHI SURAT ME FARIK.EN NA SA.BITBA DASTOOR APNE APNE ARAJI PAR KABIJ HO JAYENGE." The Consolidation Authorities have also recorded a finding that plot nos. 344 and 528, which were admittedly the holdings of Kedar, contesting respondent, and the plots given in exchange, i e., plot nos. 5, 6, 7, 116, 64 and 176 were never entered or allotted In the name of Kedar but these plots were entered in the name of Smt Suraj Del and in the consolidation proceedings, it has been admitted between the petitioner and the contesting respondent that these plots are not included in holding of Kedar. The finding recorded by all the three Consolidation Authorities that so called exchange was sever acted upon and papers were never corrected in pursuance of the said exchange and also the finding that plots sought to be given In pursuance of the exchange were never entered into in the name of Kedar, are findings of fact. In these circumstances the view taken by the Deputy Director of Consolidation that Kedar retains title in plot nos. 344 and 528 cannot be said to be a finding which suffers from any error. So far as the plea taken by Sri Bhargava placing reliance in the ease of Bharti (supra) Is concerned, I am of the view that the facts of the present case are quite different to those in the case of Bharti (supra). In the case of Bharti (supra) it was agreed by the petitioner that by virtue of sale deed, possession had passed on and the question that arose for consideration was that what would be the status of transferee remaining in possession in pursuance of a void and invalid sale deed. The answer given by the Division Bench of this Court was that the possession of the transferee from the date of transfer of occupancy tenancy was adverse to the transferor and was not permissive or on behalf of the transferor. In the case in hand, the petitioner has failed to prove that plots given In exchange were owned by him and the contesting; respondent Kedar has taken advantage of the raid exchange. When it is admitted that so called plots in exchange have not been given to Kedar and the two suits filed earlier abated on account of consolidation proceedings no finality could be attached in respect of the two disputed plots. There being a clear clause, as already quoted in the body of this judgment, that if exchange fails for any reason, the parties will relegate to the original position, and if the petitioner has not taken advantage of that clause and if he was owner of the plots in question, it was obligatory on his part to have made claim in respect of those plots of which he is said to be the original owner and not in respect of the plot owned by Kedar. Before parting with this case, it is made clear that it is open for the petitioner to make claim of those plots which are said to have been given to Kedar provided he is the owner of those plots and legally he can make a claim in appropriate proceeding permissible under the law.;