S.S. Chauhan ORDER
S.S. Chauhan, J.
1. This petition has been filed challenging the order dated 7.5.1979 passed by the Consolidation Officer and the order dated 20.8.1980 passed by the Deputy Director of Consolidation.
2. The dispute relates to Plot No. 779, measuring 12 biswa recorded in the name of Ram Pher in the basic year in village Marai Barausa, Tehsil and District Sultanpur.
3. An objection under Section 9 of the U.P. Consolidation of Holdings Act was filed by the opposite parties, claiming exclusive right in respect of Plot No. 779, alleging therein that a suit for preemption was filed by the objector and the said suit was later on, decreed and the decree of preemption was also executed prior to abolition of zamindari and they were put in possession. After execution of decree and being put in possession, the objectors were continuously in possession over the land in dispute and their title has not been disputed at any point of time and neither any suit was filed for their eviction nor their possession was challenged at any point of time by the petitioner. The petitioner knew that the possession of the objectors was continued and the right has accrued on the basis of decree of the court and as such, the entries existing in favour of the petitioner will not confer any right in his favour and if any right has accrued, then the same has no basis and neither the right can be ascertained without any basis in contradiction to the decree of preemption, decreed by the civil court. The Consolidation Officer after taking into consideration the evidence of the parties, allowed the objection. An appeal was filed before the Settlement Officer Consolidation, which was allowed. Against the appellate order, a revision was preferred, which was allowed by the Deputy Director of Consolidation, indicating that the right of the petitioner was not substantiated under law and mere entry will not confer any right in favour of the petitioner. Hence, this writ petition.
4. Submission of learned counsel for the petitioner is that the name of the petitioner and his ancestors were continuously existing from third settlement and upto basic year entry, their names were also existing in 1356-1359 fasli and, therefore, the decree of the civil court will stand nullified and no right can accrue on the basis of the aforesaid decree. Learned counsel submits that the said decree has never been challenged at any point of time by the petitioner and without there being any challenge to the decree, the petitioner has accepted the title of the opposite parties. It has also been submitted that long standing entries confer title in favour of the petitioner and, therefore, any claim raised by the opposite parties will not be tenable under law and the right of the petitioner stands substantiated from all corners. Learned counsel for the petitioner has also submitted that the suit was decreed, but plot number has not been mentioned in the decree and, therefore, if any decree has been executed, that cannot be said to be in respect of Plot No. 779. In support of his submission, learned counsel for the petitioner has placed reliance upon the following cases:
(1) Vidhya Sagar v. Smt. Sudesh Kumari and others (Civil Appeal No. 1537 of 1974) decided on 08.10.1975;
(2) Thiruvengada Pillai v. Navaneethammal and another, MANU/SC/0942/2008 : 2009 (27) LCD 698;
(3) Gurunath Manohar Pavaskar and others v. Nagesh Siddappa Navalgund and others, MANU/SC/8191/2007 : 2008 (26) LCD 225;
(4) Karewwa and others v. Hussensab Khansaheb Wajantri and others, MANU/SC/1482/2001 : 2002 AIR SCW 40;
(5) Udai Pratap Singh Raja v. Rukmin Mst. and another, MANU/UP/0097/1951 : 1952 R.D. 128;
(6) Kunj Behari and others v. Chunni and others, 1943 R.D. 133;
(7) Imam Din v. Mt. Said Bibi (since deceased) and others, MANU/PR/0051/1948 : AIR (36) 1949 Privy Council 87;
(8) Chhangur Chand v. Jang Bahadur Chand, 1950 R.D. 31;
(9) Shri Raja Durga Singh of Solon v. Tholu and others, MANU/SC/0370/1962 : AIR 1963 SC 361;
(10) Ram Avadh and others v. Ram Das and others, MANU/SC/7713/2008 : 2009(27) LCD 712;
(11) Jai Narain Singh and others v. Deputy Director of Consolidation and others, MANU/UP/1867/2014 : 2014 (124) RD 724;
(12) Sahibdar Khan and another v. Sadloo Khan (dead) by LRs and others, MANU/SC/2354/2000 : 2002 AIR SCW 63;
(13) Kalloo (dead) through LRs v. Deputy Director of Consolidation, Basti and others, 2009 (106) RD 634;
(14) Mohan Lal and others v. Deputy Director of Consolidation and others, MANU/UP/0964/2004 : 2005 ALL. L.J. 617;
(15) Rambir Singh and others v. Deputy Director of Consolidation, Muzaffarnagar and others, 1997 (15) LCD 547;
(16) Gaya Din (dead) through LRs and others v. Hanuman Prasad (dead) through LRs and others, MANU/SC/0720/2000 : 2001 (1) AWC 344 (S.C.);
(17) Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others, MANU/SC/0029/1977 : AIR 1977 SC 890;
(18) Gulabrao Balwantrao Shinde and others v. Chhabubai Balwantrao Shinde and others, MANU/SC/0997/2002 : AIR 2003 SC 160; and
(19) Triveni Prasad and others v. The Deputy Director of Consolidation and others, 1981 RD 319.
5. Learned counsel for the opposite parties has submitted that the entry is a mere record of right and the right accrues on the basis of certain contingencies as provided under law e.g. sale, gift, exchange, decree of court and other things. Entry in the name of the petitioner has to be on the basis of some prescription and in absence of any document available with the petitioner, it can be presumed that long standing entries will not confer right in favour of the petitioner in whose name the entries are existing. Learned counsel submits that the case laws relied upon by the learned counsel for the petitioner in respect of right of preemption are distinguishable on the ground that in the said case law, the decree cannot be executed after abolition of zamindari, that is the ratio of the said case law. Learned counsel further submits that the case of the opposite parties is clearly distinguishable as the decree has been executed much prior to the abolition of zamindari and they were put in possession.
6. I have heard learned counsel for the parties and perused the record.
7. The argument of learned counsel for the petitioner that plot number is not mentioned in the decree and neither any evidence has been brought on record to indicate that the suit was filed in respect of Plot No. 779, has to be taken into consideration in the light of the evidence on record. The evidence on record goes to indicate that Suit for preemption bearing No. 198 of 1940 was filed against Shivsharan and others and the said suit was decreed and in the decree, opposite parties were directed to pay Rs. 1485.62 to Shivsharan and others and thereafter, they were put in possession on the land in question regarding which, sale deed was executed. Whether the sale deed was in respect of Plot No. 779 or not, is of no consequence and neither on that basis, the decree of the court and the execution thereof and further the opposite parties being put in possession, cannot be doubted on the score that plot number is not mentioned in the decree.
8. Learned counsel for the petitioner has also drawn the attention of the Court towards the sale deed, which has been executed and the sale deed has also been taken into consideration by the Deputy Director of Consolidation and he found that in Khewat No. 1, the name of ancestors of opposite parties has been mentioned and the sale deed was made in respect of share of Ram Das. Once the share was transferred and the said share was nullified by means of the decree of the court and amount was paid and the opposite parties were put in possession, then in these circumstances, the identity of the land as disputed by the learned counsel for the petitioner, is of no consequence and neither the same can be accepted as contemplated under law.
9. The question of long standing entries existing in the name of the petitioner from third settlement upto basic year and right being claimed on that basis, has to be considered in the light of the fact that there is no contrary evidence available on record. If contrary evidence on record is available and if any entry is continued in ignorance of the decree of the court and thereby the petitioner's name continued, then such long standing entry cannot be said to be final in nature and neither the said entry will confer any right in favour of the petitioner as the said entry is against the decree of the court and also without any basis as the contrary evidence in the form of decree of the court is available. It is also to be taken into consideration that the opposite parties were put in possession in execution of decree of the court. Once the opposite parties were put in possession, then the opposite parties will remain in possession over the land regarding which, decree has been executed and if there is any other number, then the petitioner can come forward and claim the same, but in the case in hand, there is no other land available except the land in which, opposite parties were put in possession in pursuance of execution of decree. The identity of the land has also been taken into consideration by the Deputy Director of Consolidation in the form of Khewat and the share of Ram Das.
10. In these circumstances, I do not find any illegality in the orders passed by the Consolidation Officer and Deputy Director of Consolidation.
11. The writ petition is devoid of merit. It is accordingly dismissed.
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