B.L.Yadav - (1.) BY this petition under Article 226 of the Constitution of India, the prayer is that the order dated 9 -7-93 passed by the Deputy Director of Consolidation allowing the revision filed by respondent nos. 4 to 6, under section 48 or the U. P. Consolidation of Holdings Act. (for short the Act), setting aside, the order of the Settlement Officer (Consolidation) dated 4-5-87, maintaining the order of the Consolidation Officer dated 27 -2-79 may be quashed by issuing a writ of certiorari.
(2.) THE portrayal of essential facts need no detain much, as the facts of the case are almost admitted. Proceedings under section 9-A (2) of the Act commenced in respect of plot no. 83i/2 area 45 and plot no. 835/2 area 1.11 which were recorded in the basic year in Varg 9 in the name of Ghanshyam father of respondent nos. 4 to 6. An objection was filed before the Assistant Consolidation Officer by one Nawal Kishore, respondent no, 5 claiming sirdari rights on the basis of adverse possession, alleging that the entry in the basic year in the name of petitioners as main tenants, bhumidhar/sirdar, was fictitious. THE petitioners filed a reply contesting the claim of respondent nos. 4 to 6 alleging that respondent nos. 4 to 6 have not been in possession and the eutries in the remark column of Varg 9 were not prepared in accordance with law, nor the contesting respondents 4 to 6 were ever in possession and they manipulated the entries, which deserve to be expugned and their objection deserve to be dismissed. The Consolidation Officer, by this order dated 27-2-1979 (Annexure-1), decided the case in favour of respondent nos. 4 to 6. Thereafter the petitioner's appeal under section 11 (1) of the Act was allowed by the Assistant Settlement Officer (Consolidation) by his order dated 17-11-79 (Annexure-2), and the revision preferred by the respondent no. 4 to 6 were allowed by the impugned order, against which the present petition has been filed. In this case counter affidavit has been filed on behalf of respondent nos. 4 to 6, and a suggestion was made by both the parties that without waiting for the rejoinder affidavit, the petition itself be decided on merits. Consequently I proceed to decide the writ petition on merits.
(3.) SRI S. S. Tyagi, learned counsel for the petitioners urged that the basic year entries in the name of respondent nos. 4 to 6 were fictitious, inasmuch as no. P. A. 10 notices were prepared as contemplated under Para A-80 of the U. P. Land Records Manual (compendiously the Manual), nor these notices were served on the main tenant, the petitioners 1 and 2, or their father Kishori Lal, nor on petitioners nos. 3 and 4, nor P. A. 10 notices were served on the Chairman of the Land Management Committee as required by Paras A-81 and A-81-A of the Manual, hence the entires in the remarks column in the names of the contesting respondents 4 to 6 have no probative value. The oral evidence relied upon by the Asstt. Settlement Officer (Consolidation) have also not been considered but petitioners' rent receipts and irrigation slips filed by them prove their continuous possession, and that the possession of respondent nos. 4 to 6, in any case was not continuous, inasmuch as after the year 1379 Fasli there was no Khasra extract filed, and similarly for 1371 Fasli and no Khasra extract was filed by respondent nos. 4 to 6 showing their possession. This is clear by a perusal of Annexure 41 at page 28 and Annexure-4 at page 52 of the paper book. There is no presumption of continuity of possession in favour of a trespasser. The contesting respondents could not mature adverse possession unless they were in continuous adverse possession for more than the prescribed period. Sri K. D. Tripathi, learned counsel appearing on behalf of respondent nos. 4 to 6, who has filed his caveat, urged that P. A. 10 notices were correctly prepared and the procedure prescribed was followed, and notices were served on the main tenant and also on the Chairman of the Land Management Committee, that the possession of the contesting respondents was continuous and they have matured sirdari rights and later on bhumidhari rights, and that the writ petition is devoid of merits and the same deserves to be dismissed.;