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2015 DIGILAW 2546 (ALL)

Shri Sharif Ahmad v. Faiz Mohammad

2015-08-21

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. 1. Plaintiff-respondent filed a suit for mandatory injunction claiming relief of possession on the ground that the possession of the suit property was given to the defendant in the year 1983, pursuant to an agreement to sell but no sale-deed ultimately was executed. Infact, a suit for specific performance was filed but the same was dismissed with the finding that the suit itself was barred by time. A belated appeal is stated to have been filed but the delay in filing of the appeal has not even been condoned. Plaintiff contents that the possession which has been given to the defendant could not be continued any further once the transaction of sale could not materialise and, therefore, the plaintiff was entitled to return of possession. It was stated that defendants were at best a licencee and such licencee stood revoked. Suit was contested by the defendant-appellant on the ground that the proceedings before the civil court was not maintainable as the property sought to be sold was an agricultural land and the suit for eviction could be filed under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act and the civil court has no jurisdiction by virtue of Section 331 of the Act. It was also stated that once the possession was transferred pursuant to agreement to sell, the defendant is entitled to the protection of Section 53-A of the Transfer of Property Act. Other submissions were also raised. 2. In support of the respective pleas advanced by the parties,evidence both oral and documentary were led. Courts below have decreed the plaintiff's suit by observing that once no sale-deed had been got executed, pursuant to agreement to sell, and licence had been revoked the possession of the defendant was unauthorised and the plaintiff is entitled to decree for possession of the land in question. It was also stated that the protection of Section 53-A would not be available once transaction of sale itself had not materialised and the belated attempt to secure it by filing a suit for specific performance failed. It was also stated that the protection of Section 53-A would not be available once transaction of sale itself had not materialised and the belated attempt to secure it by filing a suit for specific performance failed. So far as the question of jurisdiction is concerned, it has been held that Suit under Section 209 of U.P.Z.A. & L.R. Act could be filed only against trespasser whereas in the facts of the present case, possession was voluntarily given to different by the plaintiff, as such, the defendant could not be treated as trespasser, and as such a revenue suit under Section 209 of the Act was not maintainable. Section 209 of the Act is quoted below: - "209. Ejectment of persons occupying land without title. (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and-- (a) where the land forms part of the holding of a bhumidhar, sirdar or asami without the consent of such bhumidhar, sirdar or asami: (b) where the land does not form part of the holding of a bhumidhar, sirdar or asami without the consent of the Gaon Sabha, shall be liable to ejectment on the suit, in cases referred to in clause (a) above, of the bhumidhar, sirdar or asami, concerned, and in cases referred to in clause (b) above, of the Gaon Sabha and shall also be liable to pay damages. (2)To every suit relating to a land referred to in clause (a) of Sub-section (1) the State Government shall be impleaded as a necessary party". 3. Aggrieved by the judgment and decree passed by the courts below , defendant appellant has preferred this appeal. 4. Sri Siddharth, learned counsel appearing for the appellant, on the factual aspect, does not dispute that even after expiry of the prescribed period in the contract since sale-deed was not executed, no right survives with the defendant to continue in possession but the learned counsel submits that by no means, such a suit was maintainable before the civil court. Learned counsel for the appellant submits that once the period during which sale-deed was to be executed, had expired, the status of the defendant would be that of a trespasser and a revenue suit alone would lie under Section 209 of the Act. Learned counsel for the appellant submits that once the period during which sale-deed was to be executed, had expired, the status of the defendant would be that of a trespasser and a revenue suit alone would lie under Section 209 of the Act. Learned counsel submits that the suit before the Civil Court was barred by Section 331 of the U.P.Z.A.& L.R. Act need with Order-VII Rule-11 CPC . It is stated that the nature of the suit property has continued to remain agricultural and no declaration under Section 143 of the Act has been granted. 5. Learned counsel for the plaintiff-respondent, on the other hand, contends that since the possession was delivered to the defendant pursuant to an agreement to sell, as such, the status of the defendant, in the facts and circumstances of the case, would not turn into that of an trespasser/ unauthorised occupant after the expiry of the period with in which the sale-deed was to be got executed. 6. Learned counsel for the appellant has relied upon a decision of this Court in Khacher Mal Vs. Board of Revenue and others, 1969, Revenue Decision, 200. Per contra, learned counsel for the respondent relies upon the decision of this court in the case of Banjara Singh Vs. Board of Revenue, reported in 1991, Revenue Decisions, 268. 7. Having considered the submissions, this Court finds that the possession to the defendant-appellant had been voluntarily delivered pursuant to agreement to sell executed by the plaintiff-respondent. The act of entering in possession over suit property by defendant therefore can not be said to be otherwise than in accordance with law. The question is that once the period within which the sale-deed was required to have been executed, had expired and licence stood revoked, what would be the status of the plaintiff over the land in question. Whether the appellant would continue to have possession legally or his status would be that of a trespasser. This aspect of the matter has been adjudicated by this Court in the case of Banjara Singh (Singh). In the case of Banjara Singh ( Supra) possession was delivered pursuant to an agreement but no right ultimately got crystalised in favour of the defendant. A suit for possession was filed under Section 209 of the U.P.Z.A. & L.R. Act. This aspect of the matter has been adjudicated by this Court in the case of Banjara Singh (Singh). In the case of Banjara Singh ( Supra) possession was delivered pursuant to an agreement but no right ultimately got crystalised in favour of the defendant. A suit for possession was filed under Section 209 of the U.P.Z.A. & L.R. Act. The suit was dismissed by the revenue court, holding there in that the status of the defendant was not that of a trespasser and, therefore, a revenue suit under Section 209 of the U.P.Z.A. & L.R. Act would not lie. The contention that the possession being, otherwise then in accordance with law the suit under Section 209 of the U.P.Z.A. & L.R. Act was maintainable was repelled. 8. So far as the judgment of this Court in Khacher Mal ( Supra) is concerned, it was not a case in which any agreement to sell had been executed. It was a case in which a transaction of loan was made the basis for retaining possession and in that context, it was held that the retention of possession was and amounted to continuous act of trespass. The facts as appearing in the case of Khacher Mal (Supra) are clearly distinguishable and, therefore, is not applicable in the facts of this case. In the facts of the present case the act of taking and continuing with possession of land is not otherwise than in accordance with law. A suit under 209 of the Act would be maintainable if the case of taking or thereafter continuing in possession is otherwise than in accordance with law. This provision would not be attracted if the initial act of taking possession was in accordance with law, but latter on account of the fact that contract of sale could not materialise, and licence stood revoked, that the plaintiff has become entitled to get back possession of his land. The status of defendant appellant does not turn into that of a trespasser and the revenue suit would not be maintainable. The judgment in the case of Banjara Singh would thus apply to the facts of this case. 9. The status of defendant appellant does not turn into that of a trespasser and the revenue suit would not be maintainable. The judgment in the case of Banjara Singh would thus apply to the facts of this case. 9. So far as the other aspect of the matter is concerned, I am of the opinion that the finding returned by the courts below that the defendant is not entitled to retain possession by virtue of section 53-A of the Transfer of Property Act, is based upon correct appreciation of facts and law, which requires no interference. No substantial question of law arises in the present second appeal. 10. Second appeal is accordingly dismissed.