The Allahabad High Court, in a petition filed under U.P. Abolition of Zamindari and Land Reforms Act, 1950, observed that when the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse, and since the possession was given only based on a sale agreement and not the actual sale deed itself and since the possession of the land was acquired by the permission of the vendor, the petitioner could not claim adverse possession against the respondent.
Brief Facts:
The petitioner agreed to sell a property in Moradabad district on 12.11.1973 for ₹9,000/-. He paid ₹7,000/- and took possession of the land, with the balance to be paid at the time of executing the sale deed. However, the sale deed remained unexecuted for several years. Aggrieved by this, the petitioner filed a suit for specific performance in 2011. During the pendency of this suit, he also filed a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, seeking a declaration of his rights over the property. This suit was dismissed because the agreement to sell was not executed, and that the original respondent, being a Sirdar, lacked the authority to execute such an agreement. The appeals filed by the petitioner before the Commissioner, Moradabad, and the Board of Revenue were also dismissed. Consequently, the petitioner filed the present writ petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner argued that since no proceeding was taken by the father of the original defendant/ original respondent under Section 209 of Act 1950 within the prescribed limitation, 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. Further, it was submitted that the agreement to sell, as well as the petitioner’s possession over the plot in dispute, was not disputed, and whether the vendor had the power to execute the agreement or not was the issue before Revenue Courts. Therefore, it was wrongly considered against the petitioner/plaintiff.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent argued that the 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 of 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.
Observations of the Court:
The court referred to Sections 209 and 210 of the Uttar Pradesh Zamindari and Land Reforms Act, 1950, and held that a suit could not be maintained under Section 209 of the Act if the possession of the land in dispute was attained by consent of the vendor. It was stated by the court that a plain reading of Section 209(a) of Act 1950 pre-supposes that possession was without the consent of Bhumidhar, Sirdar or Asami or the Gram Sabha and if possession of a 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.
Further, the court stated that the present case was that of an “executory contract” since the possession was given only based on an agreement to sell and not the actual sale deed itself and since the possession of the land was acquired by the permission of the vendor, the petitioner could not claim adverse possession against the respondent. The court further referred to the decision in the case of Achal Reddy v. Ramakrishna Reddiar and Ors., wherein it was observed that 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 the 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 and in the latter case the principle of estoppel applies to estop the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor.
The decision of the Court:
The court dismissed the petition.
Case Title: Shahid Hussain vs. Board of Revenue U.P. and Ors.
Coram: Hon’ble Mr Justice Saurabh Shyam Shamshery
Case No.: Writ B No. - 2398 of 2019
Advocate for the Applicant: Arvind Srivastava, Deepak Kumar Pandey, Krishna Kumar Singh, Rituvendra Singh Nagvanshi
Advocate for the Respondent: Arun Kumar Srivastava, C.S.C., Dharm Vir Jaiswal, Harsh Vikram, Manoj Kumar Sharma, Shri Ram Pandey
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