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2014 DIGILAW 414 (UTT)

CHANDAN SINGH v. UMESH MASSEY

2014-09-23

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J (Oral). Petitioners have filed suit under Section 229-B of the UPZA & LR Act seeking declaration to the effect that the petitioners have matured bhumidhari rights over the property in question, therefore, name of the petitioners be mutated in the revenue records as bhumidhars thereof. It is stated in the plaint that John Kumar Massey, Dilip Kumar Massey and Rajesh Kumar have executed one agreement to sell in favour of the father of the plaintiffs on 30.12.1965 and have delivered possession of the property in part performance of the contract. It is further stated in the plaint that earlier to the agreement to sell dated 30.12.1965 for 21 bigha, another agreement to sale was executed for rest of the 7 bigha land on 12.1.1964. Suit so filed by the plaintiffs/petitioners, herein, was dismissed by the Trial Court by the impugned judgment and decree dated 18.7.2001. First appeal arising therefrom was dismissed by the Commissioner, Garhwal Division, vide judgment dated 30.4.2008 and second appeal was also dismissed by the Board or Revenue, Uttarakhand, vide judgment and decree dated 11.10,2013. Feeling aggrieved, plaintiffs/petitioners, herein, have invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India assailing the dismissal of the suit by the trial court, first appellate court as well as by the second appellate court. 2. I have heard Mr. T.A. Khan, learned Senior Counsel assisted by Mr. A.K. Arya, Advocate for the petitioners, Mr. A.S. Rawat, learned Senior Advocate assisted by Mv. V.S. Rawat, Advocate for defendants/respondent nos. 1, 2, 3 and 4, herein, and Mr. Gajendra Tripathi, learned Brief Holder for the State/respondent no. 5, and have carefully perused the record. 3. Mr. T.A. Khan, learned Senior Counsel appearing for the petitioners, has vehemently argued that since possession was delivered in favour of the father of the plaintiffs in part performance of the agreement to sell dated 12.1.1964 and 30.12.1965, therefore, in view of Section 164 of the UPZA & LR Act, plaintiffs are liable to be declared bhumidhars of the property in question. Mr. Khan has further argued that alternatively since the petitioners are in possession for more than 12 years, they have matured their title by way of adverse possession in view of Section 210 of the UPZA & LR Act. 4. Section 164 of the UPZA & LR Act reads as under : “164. Mr. Khan has further argued that alternatively since the petitioners are in possession for more than 12 years, they have matured their title by way of adverse possession in view of Section 210 of the UPZA & LR Act. 4. Section 164 of the UPZA & LR Act reads as under : “164. Transfer with possession by a bhumidhar to be deemed a sale. – Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply.” 5. The plain reading of Section 164 of the Act would demonstrate that possession should have been transferred for the purposes of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement. 6. In the present case, no plea was ever taken by the plaintiffs either in the plaint or thereafter before the first appellate court or second appellate court to the effect that plaintiffs or father of the plaintiffs ever extended any load to the defendants or their predecessors and defendants or their predecessors have transferred the possession of the property in favour of the predecessors of the plaintiffs for the purposes of securing such loan. Therefore, Section 164 of the Act cannot be pressed in service. 7. Section 210 of the UPZA & LR Act reads as under : “210. Consequence of failure to file suit under Section 209. Therefore, Section 164 of the Act cannot be pressed in service. 7. Section 210 of the UPZA & LR Act reads as under : “210. Consequence of failure to file suit under Section 209. – If a suit for eviction from any land under Section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall – (a) where the land forms part of the holding of a bhumidhar with transferrable rights, become a bhumidhar with a transferable rights of such land and the right, title and the interest of an asami, if any, in such land shall be extinguished; (b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights and the right, title and interest of an asami, if any, in such land shall be extinguished; (c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year. [Provided that the consequences mentioned in Clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.]” 8. The plaint reading of Section 210 of the Act would demonstrate that if suit for eviction from any land under Section 209 is not instituted by the bhumidhar or asami or decree for eviction obtained in any such suit is not executed within the period of limitation, the rights of the bhumidhar shall stand extinguished on expiry of the period of limitation. 9. Section 210 of the Act is on the principle of Section 27 of the Indian Limitation Act, 1963. In my considered opinion, to invoke Section 210 of the Act as well as Section 27 of the Limitation Act, the plaintiff has to prove that he has entered into the possession and is in continuous possession adverse to the interest of the bhumidhar for last more than 12 years within the knowledge of the bhumidhar and despite this fact the bhumidhar did not opt to file suit for possession under Section 209 of the Act. 10. 10. In the present case, all the Courts below have recorded concurrent finding of fact that possession of the plaintiffs or father of the plaintiffs has not been proved. Therefore, Section 210 of the Act does not help the plaintiffs. 11. There is another aspect of the matter. 12. The sole case of the plaintiffs is that the plaintiffs were put in possession in part performance of the agreement to sell. If it is so, alleged possession of the plaintiffs was permissible possession, which cannot be held to be adverse to the bhumidhari rights. It is nowhere pleaded or proved by the plaintiffs that plaintiffs were ever willing and ready to get the sale deed executed pursuant to the alleged agreement to sell of the year 1964 and 1965, nor did plaintiffs ever opt to file suit for specific performance of contract. Therefore, the plaintiffs cannot be declared bhumidhars of the land in question. 13. Consequently, no interference is called for in the impugned judgments and decrees. Hence, writ petition fails and is hereby dismissed, however, no orders as to costs.