Allahabad High Court
State Of U.P. Thru Collector Kheri vs Gurudee Singh And 2 Others on 13 April, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Case :- WRIT - C No. - 3000075 of 2002
Petitioner :- State Of U.P. through Collector Kheri
Respondent :- Gurudee Singh And 2 Others
Counsel for Petitioner :- Standing Counsel,R. Srivastava
Counsel for Respondent :- C.S.C.,H.S. Jain,R. Chandra,V.K. Pandey,Vijay Kumar Pandey,Yogita Chandra
Hon'ble Manish Mathur,J.
Heard Mr. Pankaj Srivastava learned Chief Standing Counsel appearing on behalf of petitioner and Mr. V.K. Pandey learned counsel appearing on behalf of respondent.
Petition under Article 226 of the Constitution of India has been filed against order dated 25th July, 1998 passed in appeal under section 13 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 and the consequential orders dated 13th August, 1998 and 25th July, 2001. By means of impugned order dated 25th July, 1998, appeal against order dated 5th July, 1997 rejecting objections under section 11(2) of the Act 1960 has been allowed.
Dispute pertains to a tract of land situate in village Puranpurwa, Patihan, Aithpur, Phulwaria, Gajraura which was earlier recorded in the name of original tenure holder Messers Collective Forms and Forest (Private) Limited to whom notices under Section 10(2) of the Act were served and by means of order dated 31st December, 1964, an area of 80 acres was declared surplus. Subsequently objections under Section 11(2) of the Act were filed by the opposite party No.1 on 17th May, 1983. The same were rejected by the prescribed authority vide order dated 15th November, 1990. Appeal there against was allowed vide order dated 29th January, 1992 remanding the case to the prescribed authority for decision afresh.
In pursuance to the said order, matter was reconsidered and by means of order dated 29th June, 1995 objections of opposite party No.1 were again rejected. The dispute again went up in appeal and vide order dated 19th August, 1996 it was again remanded for reconsideration by the prescribed authority, allowing the appeal. In pursuance to aforesaid directions, objections of opposite party No.1 were again rejected vide order dated 5th July, 1997, appeal there against being allowed vide impugned order dated 25th July, 1998 whereby the entire land held to be surplus in 1964 was released in favour of opposite party No.1.
Initially vide order dated 10th October 2002, the order under challenge was stayed by means of interim directions.
Learned State Counsel appearing on behalf of petitioner has submitted that the order dated 5th July 1997 passed by the prescribed authority rejecting objections of opposite party No.1 was reasoned and cogent order based primarily on the fact that the opposite party No.1 claiming to be in adverse possession over the property in question, failed to substantiate the story of adverse possession.
It is submitted that the appellate authority by means of impugned order has completely misdirected itself by looking into the aspect of the opposite party No.1 being in possession over property in question without adverting to the fact that opposite party No.1 has failed to substantiate the story of being in adverse possession.
Mr. V.K. Pandey learned counsel appearing on behalf of opposite party No.1 refuting submissions advanced by learned counsel for petitioner has submitted that the prescribed authority had clearly erred in ignoring the documentary evidence furnished by the opposite party No.1 pertaining to his possession over property in question. It is submitted that the opposite party No.1 very well proved his possession over the property in question and claim of adverse possession which was proved by the revenue records adduced in evidence clearly indicating name of petitioner over the properties. He has placed reliance on judgments of this Court rendered in the case of Satish Chand Mathur and others versus State of U.P. and others reported in 1996 JLR 151 and the Full bench decision in Abdul Wahid Khan and others versus Deputy Director of Consolidation, Jaunpur and others reported in 1968 ALJ 117 to substantiate that opposite party No.1 had consolidated his right over the property in question in terms of Section 209 and 210 of the U.P. Zamindari Abolition and Land Reforms Act 1950.
Upon consideration of submissions advanced by learned counsel for parties and upon perusal of material on record, it is apparent that the prescribed authority rejected objections of opposite party No.2 primarily on the ground that he had been unable to prove his adverse possession over the property in question. It has been recorded that although plea of possession of opposite party no.1 had been taken in terms of Section 145 Cr.P.C. but no documentary evidence was produced to prove the same. It has been recorded that although revenue record such as khasra for the years 1362 fasli to 1372 fasli have been submitted but it also apparent that subsequently during consolidation operations, petitioner's name as being in possession over properties in question has been removed. The order also indicates that the Assistant Registar Kanoongo produced the original khasra records pertaining to years 1378 to 1380 fasli to indicate that the name of opposite party No.1 no longer continued as being in possession over property in question.
From perusal of impugned order dated 25th July, 1998 passed in appeal, it is also apparent that appeal has been allowed primarily taking into account entries in the khasra records from the year 1362 to 1372 fasli indicating name of opposite party No.1 as being in possession over the property in question. The appellate authority in terms of said revenue entries has held the opposite party No.1 to be a tenure holder in terms of Section 11(2) of the Act.
From the record it transpires that the objections filed by opposite party No.1 were clearly with regard to plots numbers 2M having an area of 9.35 acres and 2M having an area of 5.62 acres situated in vilalge Puranpurwa, Pargana Paliya, District Kheri. The opposite party No.1 has clearly stated that he is in cultivatory adverse possession of the disputed property as held under proceedings under section 145 Cr.pP.C. and has perfected his rights under Section 210 of Zamindari Abolition and Land Reforms Act in absence of any suit for ejectment.
It is therefore apparent that the primary claim of opposite party No.1 over the properties in dispute was on the basis of adverse possession against the original tenure holder in terms of Section 209 and 210 of U.P. Zamindari Abolition & Land Reforms Act, 1950, which are as follows:-
"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 part 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 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.]"
The objection filed by opposite party No.1 on 17th May 1983 does not indicate the date on which he has claimed to have entered into possession over the property in question. There is absolutely no averment as to when the original tenure holder came into knowledge regarding adverse title and possession being set up by the opposite party No.1 to its detriment.
Law pertaining to claim of adverse possession is now settled to the effect that mere possession irrespective of its length does not necessarily cannote adverse possession against the true owner. For possession over the property to be adverse, requires such possession to be hostile in implied denial of title of the true owner and within his knowledge.
Hon'ble Supreme Court in the case of T. Anjanappa and others v. Somalingappa and another reported in (2006) 7 SCC 570 has already indicated conditions under which a plea of adverse possession can succeed. The same are as follows :-
"It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
Upon applicability of the aforesaid judgment in the present case, it is apparent that there is no pleading or evidence produced by the opposite party No.1 on which the plea of adverse possession could succeed. The appellate authority while placing reliance only on alleged possession of opposite party No.1 over the properties in question has clearly overlooked the factor that possession over the properties in question was being claimed by the opposite party No.1 only in terms of adverse possession without fulfiling the requirements to claim such adverse possession.
The appellate authority has clearly failed to distinguish between mere possession over property in question and adverse possession as was being claimed by the opposite party No.1. There is absolutely no discussion in the impugned order with regard to claim of adverse possession of the opposite party No.1 who has not even indicated the date on which he claims to have come into possession over property in question or even the date on which the original tenure holder came into knowledge of petitioner's hostile possession and title.
The claim of opposite party No.1 pertaining to Sections 209 and 210 of the Act of 1950 are also required to be seen in the context of claim of adverse possession by the opposite party No.1 which he has failed to prove. The Full Bench decision in the case of A.W. Khan (supra) while indicating the provisions of Sections 209 and 210 of the Act 1950, in the considered opinion of this Court would have no applicability since the opposite party No.1 has clearly failed to indicate knowledge of the original tenure holder pertaining to petitioner's hostile possession over the properties in question.
Similarly in the case of Satish Chand Mathur (supra), it has been held as follows:-
" The expression 'held' takes in both title and possession. As observed by Hon'ble Supreme Court it means to possess by legal title. What is, therefore, necessary is that the person apart from having title to the land should also have its possession either actual or notional. If a person is not having both title and actual or notional possession of the land, he cannot be said to be holder of the holdings and, therefore, cannot be treated as a tenure-holder. Mere possession, without a title, cannot make a person holder of the holding, unless he has perfected his right by prescription in consequence of adverse possession or his case falls within one of the two explanations appended to the section 5(1) of the Act. Similarly mere title without possession, actual or notional, may not make a man tenure-holder, unless he also has a right to regain possession. ........"
Clearly the aforesaid judgment would not be of any help to the opposite party No.1 since it has been clearly held that if a person is not having both title and actual on notional possession of land, he can not be said to be holder of the holdings and therefore can not be treated as a tenure holder. It has been held that mere possession without title can not make a person holder of the holding unless he has perfected his right by prescription in consequence of adverse possession. As such it is apparent that the entire gist of claim of opposite party No.1 over the properties in question being based on adverse possession could not have been allowed by the appellate authority without the opposite party No.1 substantiating his claim for adverse possession as indicated herein above.
Learned counsel for opposite party No.1 along with written submissions has annexed a plethora of judgments with regard to rights being perfected under Sections 209 and 210 of the Zamindari Abolition Act. The aforesaid judgments are as follows:-
(1) Hanuman Rai versus Dy. Director of Consolidation ,1973 R.D. 207
(2) Abdul Wahid Khan and others versus Deputy Director of Consolidation, Jaunpur and others, 1968 A.L.J. 118
(3) Ram Charan versus State of U.P. etc, 1978 AWC 677
(4) Ziley Singh versus The State of U.P and others 1978 ALL. L. J. 772
(5) Baldeo Singh versus The State of U.P. and others 1980 LLJ 31
In these judgments cited by the opposite party No.1, the single thread which follows pertains to perfection of rights of an unauthorized occupant over the property belonging to a bhumidhar. A reading of the aforesaid clearly indicates that for perfection of such right under Section 209 read with Section 210 of the Zamindari Abolition Act requires that the person taking or retaining possession of land belonging or forming part of the holding of a bhumidhar, sirdar or assami should be otherwise than in accordance with provisions of law i.e. unauthorizedly and further that it should be without consent of such bhumidhar, sirdar or assami.
For a person to succeed on the basis of aforesaid Sections 209 and 210 of the Act, therefore requires satisfaction of firstly, that the possession should be otherwise than in accordance with provisions of law i.e. unauthorizedly and secondly, without the consent of the bhumidhar, sirdar or assami to whom it belongs.
In the present case, it is apparent from the objections filed by the petitioner that there is no averment as to when the petitioner entered into possession of disputed property otherwise than in accordance with law and that such retention of possession was without consent of the original tenure holder. As has been indicated herein above, mere long possession over a property without title can not be deemed to be unauthorized or without consent of the original tenure holder unless and until such possession being claimed to be unauthorized or adverse is within the knowledge of the original tenure holder.
The petitioner has not indicated anywhere in the objection or even thereafter the date when the original tenure holder gained knowledge regarding alleged unauthorized possession of petitioner over the property in question. The khasra entries also relied upon by petitioner does not indicate as to whether such possession was permissive or unauthorized without consent of original tenure holder. As such without the petitioner satisfying twin conditions required under Section 209 of the Zamindari Abolition Act, his possession or retention thereof can not automatically be deemed to be unauthorized or without consent of the original tenure holder. As such the judgments cited by learned counsel for opposite party No.1 are of no avail to him.
Since the impugned order passed by the appellate authority has failed to consider the fact that opposite party No.1 has not been able to make out a case of adverse possession, the order dated 25th July, 1998 clearly being unsustainable is quashed by issuance of writ in the nature of Certiorari. Consequential orders dated 13th August, 1998 and 25th July, 2001 are also quashed in consequence thereof.
A writ in the nature of Mandamus is issued commanding the opposite parties to correct records pertaining to entries over the properties in question.
In the result petition succeeds and is allowed. Parties to bear their own costs.
Order Date :-13.04.2022
Prabhat
