Bhurey v. Board Of Revenne U. P. At Allahabad — 1984 DIGILAW 420 (ALL)

JUDGMENT K. P. Singh, J. 1. THIS is a plaintiff's writ petition against the judgment of the Second Appellate Court dated 6-2-1978 in Second Appeal No. 3 of 1971-72 (Muzaffarnagar) Bhurey and another v. Phool Singh and others. 2. THE plaintiff-petitioner no. 1 had approached the Trial Court with the allegations that the tenure-holder Phool Singh had executed a lease dated 6-11-1965 in his favour and since then he had been in possession over the disputed land. THErefore, he acquired sirdari right in the disputed land and the right and interest of Phool Singh became extinct in the disputed land. The contesting defendants namely Man Singh and Beg Ram refuted the contentions raised on behalf of the plaintiff with the allegations that the tenure-holder Phool Singh had executed an agreement to sell in their favour on 14-7-65 and with a view to nullify the agreement to sell he executed a lease in favour of the petitioner no. 1 fictitiously. It was further alleged that the plaintiff had no right and title to the disputed land hence the suit should be dismissed. 3. ALL the revenue courts have negatived the claim of the plaintiff' petitioners and aggrieved by their judgment they have approached this Court under Article 226 of the Constitution, 4. THE learned counsel for the petitioner has contended before me that the tenure-holder Phool Singh executed an invalid lease in favour of the petitioner no. 1, hence the right and title of the tenure-holder became extinct in the disputed land and the petitioner no. 1 acquired sirdari right in the disputed land. The second contention raised on behalf of the petitioner no. 1 is that Gaon Sabha did not institute any suit against petitioner no. 1 hence the petitioner no. 1 has acquired sirdari right in the disputed land on the basis of his adverse and continuous possession for more than statutory period. 5. THE third contention raised on behalf of the petitioners is that in the circumstances of the present case the petitioner's possession became adverse against the tenure-holder from the date of lease and due to the mere circumstances that tenure-holder had executed an invalid lease hence his interest became extinct in view of the provisions of section 189 (aa) of the Act No. I of 1951. 6. THE fourth contention raised on behalf of the petitioners is that the petitioner no. 6. THE fourth contention raised on behalf of the petitioners is that the petitioner no. 2 has been in possession over the disputed land since long hence he at least acquired sirdari right in the disputed land, but the revenue courts have erroneously negatived his claim in the disputed land. I have considered the contentions raised on behalf of the petitioners and I have gone through the judgments attached with the writ petition. 7. DURING the course of arguments the learned counsel for the petitioner placed reliance upon the ruling reported in Pitamber Govinda Bhavsar v. Abdul Gafur Abdul Rajak, AIR 1972 Bom. 43 , and stressed Head Note (C) wherein it has been indicated that; "Where a lease is invalid the possession of lessee or his transferee becomes adverse from the date and the lessor's suit for possession filed beyond 12 years from the lease is time barred." 8. IT is note-worthy that even in this case it has been indicated that the lessee cannot acquire by prescription a right higher than a right conveyed to him, which would mean that by being in possession for more than statutory period the lessee would acquire only lessee right in the disputed land. The next case relied upon by the learned counsel for the petitioners in support of his contention that the petitioners should acquire sirdari right on the basis of the adverse possession is reported in Bhola Ram v. Bhagwati, 1978 ALJ 574. 9. THE aforesaid case is distinguishable because it dealt with the case of void sale and not void lease. In my opinion the transaction of sale stands on a quite different footing than transaction of mortagage or lease. THErefore, the petitioners cannot derive any benefit out of the observation made in this ruling. 10. THE learned counsel for the petitioners also placed reliance upon the reported ruling in Mst. Kirpal Kaur v. Bachan Singh, AIR 1958 SC 199 and has contended that the invalid lease cannot be looked into for deciding the nature of possession enjoyed by the petitioners. Head Note 'C has been referred to, which reads as below ;- "THE agreement between the parties cannot be admitted in evidence to show the nature of possession of one of the parties subsequent to it? date. Head Note 'C has been referred to, which reads as below ;- "THE agreement between the parties cannot be admitted in evidence to show the nature of possession of one of the parties subsequent to it? date. THE party being in possession before the date of the (sic) to admit it in evidence to show the nature of her possession subsequent to it would be to treat it or operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and therefore, to give effect to the agreement contained in it which admittedly cannot be done for want to registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by section 49 of the Registration Act." The above quoted observation indicates that in the aforesaid ruling the possession had started prior to the agreement between the parties and the agreement was relied upon to nullify the nature of possession which had started prior to the agreement in question. Therefore, the aforesaid ruling is distinguishable and inapplicable to the facts and circumstances under my consideration. Admittedly the possession of the petitioner no. 1 starts with the executiion of lease in his favour, hence I am of the view that the document of lease in favour of the petitioners being invalid can be looked into for collateral purpose while deciding the nature of possession enjoyed by the petitioner no. 1 in the disputed land. 11. THE next case in support of the petitioners' contention that invalid lease is inadmissible in evidence for deciding the claim of the petitioner and cannot be looked into is reported in U. P. Government Collector v. Nanhoo Mal Gupta, 1960 AWR 164. 12. I have no quibble that the invalid lease for want of registration cannot be held admissible in evidence for conferring title upon the lessee, but I am of the view that invalid lease can be looked into for collateral purpose while deciding the nature of possession enjoyed by the lessee. The learned counsel for the petitioners also placed reliance upon the ruling reported in Hari Prasad Agarwala v. Abdul Haq, AIR 1951 Patna 160, and had emphasised that a person in possession under an invalid lease is a mere trespasser hence according to the learned counsel for the petitioners, petitioner no. The learned counsel for the petitioners also placed reliance upon the ruling reported in Hari Prasad Agarwala v. Abdul Haq, AIR 1951 Patna 160, and had emphasised that a person in possession under an invalid lease is a mere trespasser hence according to the learned counsel for the petitioners, petitioner no. 1 acquired valid title to the disputed land on the basis of his adverse possession for more than statutory period. In the aforesaid ruling one of the Hon'ble Judges vide paragraph 14 has observed as below ;- "On the question of possession, it was argued that the position of the appellants was that of licensees and not trespassers. Assuming that contention to be correct, though I doubt its correctness, the appellants can be licensees only with regard to Bahira DIH. I do not understand how they can be licensee in respect of property which was in some body else's possession." 13. IN my opinion the position of lessee under an invalid lease cannot be characterised as that of a rank trespasser. Under general law it has been indicated that by adverse possession such a lessee acquires right of a lessee by being in possession for more than statutory period. Just like an illegal mortgagee acquires the right of a mortgagee by being in possession for more than statutory period and the position of a mortgagee is that of a licensee in the eye of law, I think that similarly the possession of invalid lessee would also be equated with the incidents of invalid mortgagee maturing into right of mortgagee after the lapse of staturory period. His employment of the property leased would be with the consent of the lessor. 14. His employment of the property leased would be with the consent of the lessor. 14. THE learned counsel for the petitioners also invited my attention to the provisions of section 165 of Act No. 1 of 1951 as it stood on the relevant date and read as below ;- "When a bhumidhar other than one referred to in section 157 has let out his holding or any part thereof the lessee will, notwithstanding anything contained in any law or contract or document of lease become and be deemed to be- (a) Where the total area of the land held by him together with the land held by his family, including the land, if any, let out to him or any member of his family, does not exceed twelve and a half acres, sirdar thereof, and (b) where the total area as aforesaid exceeds (twelve and a half) acres, a purchaser thereof and the provisions of Sections 154 and 163 shall mutatis mutandis apply." The lease in the present case has not been held as invalid due to the provisions of section 157, rather it has been held in violation of Rule 138 of the UP ZA and LR Act and section 158 of Act Mo. 1 of 1951. The aforesaid section 158 reads as below:- "Notwithstanding anything contained in the Transfer of Property Act, 1882, or the Indian Registration Act, 1908 a lease for a term exceeding one year or from year to year may be made either by a registered instrument or in the prescribed manner." Section 159 of Act No. I of 1951 reads as below "A lease, which fails merely to comply with the provisions of section 158 shall not, for purposes of section 167, be deemed to be a transfer made in contravention of the provisions of this Act." 15. SECTION 163 of Act No. I of 1951 in the year 1965 contemplated ejectment of an illegal transferee at the instance of the Gaon Sabha. According to the amended provisions of sections 209 and 210 of the UP ZA and LR Act any trespasser cannot acquire sirdari right in the land belonging to Gaon Sabha. The amendment has been given retrospective effect which means that a trespasser from July, 1952 cannot acquire sirdari right in the property belonging to Gaon Sabha. 16. According to the amended provisions of sections 209 and 210 of the UP ZA and LR Act any trespasser cannot acquire sirdari right in the land belonging to Gaon Sabha. The amendment has been given retrospective effect which means that a trespasser from July, 1952 cannot acquire sirdari right in the property belonging to Gaon Sabha. 16. EVEN if the argument of the petitioners is accepted that the right and title of the tenure holder became extinct in the disputed land the legal result would be that the property would vest in the Gaon Sabha and the petitioner cannot acquire sirdari right in the disputed land due to the recent amendment in sections 209 and 210 of the UP ZA and LR Act. To my mind the petitioner no. 1 does not get any right to the disputed land in view of the provisions of Secs. 159, 163, 167 read with sections 209 and 210 of the UP ZA and LR Act. Therefore, the revenue courts have not patently erred in negativing the claim of the petitioner no. 1. 17. AS regards the claim of petitioner no. 2 the learned counsel for the petitioners has not been able to satisfy me as to when the petitioner no. 2 occupied the disputed land and how he claims to have acquired sirdari right in the disputed land. The petitioner no. 2 was impleaded in the suit during the course of litigation and it does not appear that any specific case was set up by petitioner no. 2 in the suit, hence the learned counsel for the petitioners has not been able to convince me that the impugned judgments suffered from patent error of law even in negativing the claim of petitioner no. 2 in the disputed land. 18. IN the circumstances of the present case it is not necessary to deal with the claim of the contesting opposite parties in the disputed land. If the petitioners do not get title to the disputed land, their claim has been rightly negatived by the revenue courts and at their instance the impugned judgment cannot be interfered with. In the result the writ petition fails and is accordingly dismissed. There would be no order as to costs. Petition dismissed.