Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 2387 (ALL)

Shahid Hussain v. Board of Revenue U. P.

2024-11-22

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT : Saurabh Shyam Shamshery, J. Factual Matrix 1. An agreement to sale dated 12.11.1973 was executed by father of original Respondent-4 in favour of petitioner with regard to plot in dispute i.e. plot no. 1141, area 1 acre 07 dismal, located at Village Pakbara, Tehsil and District Moradabad, for Rs. 9,000/-out of which Rs. 7,000/-was paid and possession of property was given to petitioner and rest of Rs. 2000 was required to be paid at the time of execution of sale deed. 2. Petitioner remained silent for many decades and kept waiting for execution of sale-deed and finally filed a suit for specific performance in the year 2011. The relevant relief sought in suit is mentioned hereinafter : 3. The above suit is still pending. An Amin’s report dated 16.08.2017 submitted in said suit is placed on record that the petitioner is in possession of plot in dispute. 4. In the same year original Respondent-4 has filed a suit for permanent injunction against petitioner, which is also still pending. An Amin’s report dated 30.05.2011 was submitted in said suit is also on record that petitioner has possession over plot in dispute. 5. In the same year, petitioner has also filed a suit under Section 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referredtoas“Act,1950”)that he be declared ^^laØe.kh; Hkwfe/kj dk'rdkj** over plot in dispute since his possession on plot in dispute was more than 12 years and that original contesting respondent has failed to execute agreement for sale. In written statement contesting defendant/original contesting respondent denied execution of agreement to sale. 6. In above suit following issues were framed:- 7. The above suit was dismissed vide order dated 17.09.2018 on ground that, agreement to sale was not executed and even original contesting respondent had no power to execute the agreement to sale, since he was only a Sirdar, who could not execute a sale-deed or agreement to sale and possession if any, was only permissive that with permission of contesting original respondent/ original defendant. Relevant part of it is reproduced hereinafter :- 8. The aforesaid judgment was challenged by way of filing of an appeal before the Commissioner, Moradabad however, it was dismissed by order dated 25.05.2018. Relevant part thereof is reproduced hereinafter:- 9. Relevant part of it is reproduced hereinafter :- 8. The aforesaid judgment was challenged by way of filing of an appeal before the Commissioner, Moradabad however, it was dismissed by order dated 25.05.2018. Relevant part thereof is reproduced hereinafter:- 9. A challenge to aforesaid order was referred preferred before the Board of Revenue by way of filing a second appeal, which got dismissed by order dated 09.08.2018, at the stage of admission. Relevant part of order is reproduced hereinafter:- Argument on behalf of Petitioner 10. Sri R.C. Singh, learned Senior Advocate, assisted by Sri Deepak Kumar Pandey, learned counsel for petitioner, argued that since no proceeding was taken by father of original defendant/ original respondent under Section 209 of Act, 1950 (Ejectment of persons occupying land without title) within the prescribed limitation, therefore, its consequence as provided under Section 210 of Act, 1950 would follow i.e. petitioner would become Bhumidhar, however, all Revenue Courts failed to appreciate it. 11. Learned Senior Advocate further submitted that agreement to sale as well as petitioner’s possession over plot in dispute was not disputed and whether vendor had power to execute the agreement or not was not the issue before Revenue Courts, therefore, it was wrongly considered against petitioner/plaintiff. 12. Petitioner/ plaintiff has perfected his right on basis of adverse possession. Learned Senior Advocate has placed reliance on Puttu Singh and others Vs. Kirat Singh and others, 1966 R.D. 42 and Bharit and others Vs. The Hon’ble Board of Revenue, U.P. at Allahabad and other, AIR 1973 ALL. 201 . Argument of Contesting Respondent 13. Sri N.C. Rajvanshi, learned Senior Advocate assisted by Sri Ram Pandey, learned counsel appearing for Respondent-4, i.e., contesting respondent by referring Sections 209 and 210 of Act, 1950 argued that petitioner would not fall within the ambit of ‘persons’ mentioned in Section 209 of Act, 1950 since according to his case he was put in possession on plot in dispute with consent of vendor, whereas to avail consequence of not filing a suit under Section 209 of Act, 1950 as provided under Section 210 of Act, 1950 would be available only if possession was without consent of Bhumidhar, which is not the case in hand. Discussion and Analysis 14. Present case requires interpretation of Sections 209 and 210 of Act, 1950 and for reference both are reproduced hereinafter:- 209. Discussion and Analysis 14. Present case requires interpretation of Sections 209 and 210 of Act, 1950 and for reference both are reproduced hereinafter:- 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, or asami without the consent of such bhumidhar, or asami; (b)where the land does not form part of the holding of a bhumidhar, or asami without consent of the Gaon Sabha, shall be liable to ejectment on the suit in cases referred to in Clause (a) above of the bhumidhar, 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.” “210. Consequence of failure to the 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 pail of the holding of a bhumidhar with transferable rights, become a bhumidhar with a transferable rights of such land and the right, title and 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 nontransferable rights I and the right, title and interest of an asami, if any, in such land shall be I 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.” 15. 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.” 15. A plain reading of Section 209(a) of Act, 1950, pre-supposes that possession was without consent of Bhumidhar, Sirdar or Asami or the Gram Sabha and if possession of person was a permissive one, a suit cannot be maintained under Section 209 of Act, 1950, therefore, its consequence as contemplated in Section 210 of Act, 1950 would not follow. 16. If case of petitioner is considered in view of averments, it would be a case of an “executory contract” since possession was handed over only on basis of “agreement to sale”, awaiting complete execution of remaining conditions of said sale and only after its execution, it would become a ‘sale’ when title of property got vested with purchaser. 17. Supreme Court in the case of Achal Reddy Vs. Ramakrishana Reddiar and others, (1990) 4 SCC 706 has considered a difference between an ‘executory contract’ and ‘sale’ and for reference its para 9 and 10 being relevant are mentioned hereinafter :- “9. There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate court as well as the second appellate court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concur- rent findings that the plaintiff had title inspite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, there- fore, urge before us on the basis of the findings in the earlier suit to which he was not a party that Ex. A. 1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10.7.1946 and 17.7.1947 is adverse or only permissive. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10.7.1946 and 17.7.1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got toto possession under an executory contract of sale in a permissible charac- ter cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which, there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse. 10. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse. 10. In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The correctness of the decision in Annamalai v. Muthiah (supra) cannot, therefore, be doubted.” (Emphasis supplied) 18. The above consideration is squarely applicable in present case on facts also that a purchaser who got into possession under an executory contract of sale would be on only permissive in character, he cannot contend that his possession was adverse and it will remain as a permissive possession in contradiction to a possession in the case of sale. Judgments relied by learned Senior Advocate for petitioner in Puttu Singh (supra) and Bharit (supra) would, therefore, not be applicable in present case since it was in regard to ‘sale’ and not in regard to an ‘executory contract’. Present case is squarely covered by Achal Reddy (supra) on facts as well as on law against the petitioner’s case. Conclusion 19. The outcome of above discussion is that there is no ground to interfere in concurrent findings of three Revenue Courts. Therefore, present writ petition is accordingly, dismissed.