- (1.) BINOD Kumar Roy, J. The petitioners pray to quash different orders passed by the Consolidation. Authorities.
(2.) IN view of the nature of the order which I propose to pass I do not consider expedient to state facts in detail. It appears that there was/is a serious dispute in regard to right, title and interest between the petitioner and respondent No. 1 in regard to 1 Bigha 6 Biswa and 5 Biswansi of land of "plot No. 593 of village Mardanpur; Barzi, pargana Kara, tahsil Sirathu, district Allahabad. The question which fall for consideration by the Consolidation Officer, Saini was as to whether Ram Pratap (Respondent No. , 1 herein) was Sirdar of the disputed land who claimed his rights on the basis of adverse possession, vide the order as contained in Annexure-7 the Consolidation Officer allowed the claim of respondent No. 1 which was affirmed on appeal and revision, vide the orders as contained in Annexure-9 and 11. The Submissions: The learned counsel for the petitioners submitted as follows : The assertion of fact in the order of the Consolidation Officer to the effect that respondent No. 1 had claimed Sirdari rights on the ground of acquisition of title by adverse possession is incorrect. The basic year entry was in favour of the petitioners but in the remarks column respondent No. 1 was shown to be in possession. It was the petitioner who had filed tne objection. , Respondent No. 1 had not filed any application for correcting the basic year entry in his favour. The. fact that respondent No. 1 had not'filed any objection will be apparent from his counter affidavit. Even though an opportunity was granted by this Court on 21-12-94 to the respondent No. 1 by directing him to file a further affidavit as to whether he had taken any pleading in regard to acquisition of title by adverse possession before the Consolidation Officer or not, he is not coming with any affidavit and thus his submission be accepted. Even assuming that Respondent No. 1 had filed any claim in writing before the Consolidation Officer necessary facts constituting acquisition of title by adverse possession viz nee vi clam and nee precario not having been proved by any reliable evidence the Consolidation Officer had illegally upheld this claim and his order was illegally affirmed by the appellate and the revision authorities. For these reasons the impugned orders are liable'to be quashed. The learned counsel for respondent No. 1 on the other hand, contended as follows: "since the remarks column showed respondent No. 1 in possession of the land in question it was not necessary for him to set up the plea of acquisition of title by adverse possession in writing. In this context learned counsel referred to Section 9-A (1) (ii) of the U. P. Consolidation of Holdings Act and submitted that the Consolidation Officer, is vested with powers to settle the dispute even if no objection is filed. As a plea was raised by Respondent No. 1 before the Consolidation Officer an issue was also framed. Since the parties knew that the issue of adverse possession was therein, who also led evidence this question cannot be gone into by this court. No grievance was made in this regard by the petitioners either before the appellate authority or the revisional authority. Learned counsel also placed reliance on (i) Bhagwati v. Chandramau, AIR 1976 SC 735; (ii) Preetam Singh v. Assistant Director of Consolidation, 1978 RD 327; (iii) Saheb Bux Singh v. Joint Director of Consolidation, 1976 RD 3 and (iv) Vmdhyachal v. Ram, 1982 RD 112. " By Findings:
(3.) THE law as to what constitutes adverse possession is well settled. In Dip jffarain Rai v. Pundeo Rat, AIR 1947 Patna 99 a Division Bench of the Patna High Court held as follows: " (12) THE classical requirements of adverse possession as propounded by the Privy Council from time to time, are that the possession must be nee vi nee clam nee precario, that is to say, the possession, required must be adequate in continuity, in publicity and in extent. It is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running ought, if he exercsies due vigilance, to be aware of what is happening. In Secretary of State v. Debendra Lai Khan, 61 I. A. 78 their lordships negatived the contention that it was necessary for the trespasser to bring the facts of his adverse possession to the notice of the real owner. Dr. D. N. Miner appearing for the respondents, contends that in view of the aforesaid principle of law as enunciated by their Lordships of the Privy Council, which fulfilled the above conditions would be held to be adverse since its very commencement. (13) This argument, however, overlooks the fact that the practical application of the aforesaid principles is a matter of some difficulty in reference to varying features, of particular cases. In Birishchandra Nandy v. Baijnath Jugal Kishore, 62 LA 40 their Lordships, with reference to the particular facts of that case, expressed themselvesv to say that, in their Lordships opinion, the defendants had failed to show that the plaintiff's predecessors by exercising due diligence ought to have been aware of what was happening apart from the question that the defendants possession, was adequate, in continuity and extent, and that the possession of the defendants failure of the plaintiff's predecessors to notice these things, even if they were sufficient, when seen, to put them on their guard involves, in the opinion of their Lordships, no look of reasonable vigilance on their part, and the defendants' case must fail on this point. In this case their Lordships also found that there was no attempt at concealment. (14) This dictum of their Lordships makes it very clear that mere exercise of possession exclusively and continuously would not be enough in all cases to show that the true owner if vigilant would be aware of what was happening. (15) It will appear from the following review of cases that the requirement to- make - possession adverse vary according to the peculiar facts of each case is depend upon the particular background of facts and relationship of the parties and other like circumstances in which the adverse possession commences. In Ejaz Ali Qidwai v. Court of Wards, Balrampur Estate, AIR 1935 PC 53 their Lordships of the Privy Council have said that the principle of law firmly established is that a person who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed, and thaj possession that is at its inception permissive must be shown to have become adverse by some subsequent change in its character, (16) In Abu Naif v. Secy, of State, 51 IA 257 their Lordships held that a licensee cannot claim title only from possession, however long, unless it is proved that the possession was adverse %to that of the licensor, to his knowledge and with his acquisence. Knowledge or notice of adverse act is necessary when permissible possession is admitted to be change to adverse possession. Possession of a derivative holder may be deemed, to be possession of the original owner. (17) It has also to be born in mind, as a settled principle of law, that acts which prima facie are acts of dispossession may under particular circumstances fall short of evidencing any kind of ouster. THEy may be susceptible of another explanation bear some other character or have come other object when placed in just opposition with some other facts and circumstances. " In S. M. Karim v. Bibi Sakina, AIR 1964 SC 1254, the Supreme Court held as follow: "adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that jhe starting point of limitation against* the party affected can be found. THEre is no evidence here when possession became adverse, if it at all and a mere suggestion in the relief clause that there was %n uninterrupted possession for "several 18 years or that the plaintiff has acquired "an absolute title" was not, enough to raise such a plea. Long possession is not necessary adverse possession and the prayer clause is not a substitute or a plea. " Section 9-A of the U. P. Consolidation of Holdings Act runs as follows: " (1) The Assistant Consolidation officer shall- (1) where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned; and (ii) where no objections are filed, after making such enquiry as he may deem necessary, settle the disputes, correct the mistakes and effect partition as far as may be by conciliation between the parties appearing before him and pass orders on the basis of such conciliation. (2) All cases which are not disposed of by the Assistant Consolidation Officer under sub-section (1) air cases relating to valuation of plots and all cases relating to valuation of trees, walls or other improvements, for calculating compensation therefor, and its apportionment amongst co-owners, if there be more owners than one shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose to the same in the manner prescribed. (3) The Assistant Consolidation Officer, while acting under sub-section (1) and the. Consolidation Officer, while acting under sub-section (2) shall be deemed to be a court of competent jurisdiction anything to the contrary contained in any other law for the time being in force notwithstanding. ";