Hem Chandra Balutia v. Sri Madhwanand

HI GH COURT OF UTTARAKHAND AT NAI NI TAL

W r it Pet it ion ( M/ S) No. 1 3 8 7 of 2 0 0 8

Hem Chandra Balutia

… Petitioner

Vs. Sri Madhwanand and Others

… Respondents With

W r it Pet it ion ( M/ S) No. 1 3 8 4 of 2 0 0 8

Hem Chandra Balutia

… Petitioner

Vs. Madhwanand and Others

… Respondents

Advocate: Mr. Rajesh Kumar Joshi, Advocate, for the petitioner Mr. Rajesh Pande, Standing Counsel, for the State. Mr. Pradeep Hairiya, Advocate, through video conferencing, for the respondent. Ms. Harshi Gupta, Advocate, holding brief of Mrs. Anjali Bhargava, Advocate, for the Gaon Sabha.

Hon 'ble Sh ar ad Ku m ar Sh ar m a, J.

Before putting the facts of the case as per the framework of law, this Court feels it apt, to deal with the law first. As far as the provisions of U.P.Z.A. & L.R. are concerned, as per the constitutional mandate, as envisaged by Schedule IX, it has been given a special status by including it in Entry 11 of Schedule IX, which has been within the ambit of Article 31B of the Constitution of India. Article 31B of the Constitution of India in itself, prescribes that certain statutes, which are included under Schedule IX, will have a validation of act and the actions taken therein and all other arguments as extended contrary to it, will not invalidate an action or a right flowing from the provisions of a special act, covered by Schedule IX, because it provides that any Act, Regulation or Provision which are inconsistent with or takes away or abridges any of the rights conferred by the provisions of the special statute covered under

Schedule IX, that would be notwithstanding to any judgment, decree and order of any Court or such act or regulation.

¶2Under the provisions of U.P.Z.A. & L.R. Act, a declaration of a right over a holding in possession of a person normally called as 'tenure holder', under revenue term, is envisaged under Section 229B of the said Act. In an eventuality, if a person is holding possession over the land without title, which is an admitted case herein, the principal recorded owner has had to resort to the proceedings, which are substantive in nature as contained under Section 209 of the U.P.Z.A. & L.R. Act, which reads as under: -"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.] "

¶3If the principal provisions, as extracted above are taken into consideration, it gives a Forum which is available to the principal owner, to evict a person in possession, it has been substantively provided under Section 209. That means, it is a substantial remedial measure prescribed to the recorded tenure holder to seek an ejectment of any

person occupying the land without title. Admittedly, and also even as per the evidence on record, there is nothing to show, that the petitioner who claims himself to be the bhumidhar and executants of the agreement for sale dated

25.03.1984 in favour of the respondent, had ever resorted to any proceedings as contemplated under Section 209 of U.P.Z.A. & L.R., for seeking an eviction of the respondent from disputed land by making an assertion to the effect that they are holding possession of the land without title.

¶4Though this argument too, would be clouded in the instant case for the reason being, that the petitioner the tenure holder of the property, which was described at the foot of the plaint included the property which was lying in khet No. 100 having an area of 11 bigha, 14 biswa and 0 biswancies, which was agreed to be sold by an unregistered agreement for sale dated 25.03.1984.

¶5The petitioner landlord does not dispute the fact of execution of an unregistered agreement for sale and he further doesn't dispute the fact, that based upon the unregistered agreement for sale, the possession was already transferred to the respondent of the disputed property.

¶6When there was a rival contention raised by the present petitioner, the plaintiff respondent had instituted a Suit under Section 229B for seeking a declaration of the right as to be a bhumidhar of the aforesaid land to bring themselves within the definition of a 'tenure holder' under Section 129 to be read with Section 130 of the U.P.Z.A. & L.R. Act.

¶7In the Suit thus filed by the respondent, the proposed purchaser, he had sought for the following decree:- PPPPP अतएवP ्ቦ ीमानP सPे ्ቚ ाथ१नाP हPै िकP िन?िलपखतP अनुतोशP वहकP वादीP पखलाफP ्ቚ ितवादीगणPसादरP्ቚ दानPकरनPे कीPकृपाPकीPजाय।P P अPPP िकPबादPपআቔ PकPे पदPनंPPPPमेPविण१तPभूिमPखसराPनंPPPPPPरकबईPPPPबीघाPPPP िब?ाPभूिमPमेPवादीPकोPसंॿቅ मणीयPभूिमधरPघोिषतPकरPिदयाPजायPे P बPP िकP अगरP बादP कीP अपीलP नायबP तहसीलदारP महोदयP कPे आदेशP िदनांकP PPPPPPPPकPे िवॺ?PिकसीPकारणP?ीकारPनPहोPतोPनायबPतहसीलदारPह?् ?ानीPिदनांकP PPPPPPPPिमसलPनंPPPPPPPPPसनPPPPPPPिकयाPगयाPहPै Pिनर्PिकयाPजाये।P P सPP िकP वादीP कीP दा०खा०P अपीलP बावतP उ्P िमसलP PPP PP PPPP सनP PPPPPP ?ीकारP्ቦ ीमानP?ाराPिकयPे जानPे कPे उपरानP्ቚ ितवादीगणPPPलगायतPPPकाPनामPदज१P करकPे उसकPे ?ानPपरPवादीPकाPनामPसंॿቅ मणीयPभूिमधरीPमेPकागजादPमालPमPे अंिकतP िकयाPजाये।PP P दPP अ्PअनुतोषPPजोPिकP्ቦ ीमानPउिचतPसमझPे वहकPवादीPपखलाफP्ቚ ितवादीगणP सादरP्ቚ दारPिकयाPजाये।PPP

¶8When the notices were issued in the Suit, the petitioner filed a written statement on 21.03.1997, denying the plaint averments. But what would be more surprising and which would be having a direct bearing on the case at hand is that in what manner the relief was modulated by the defendant in the written statement, which is extracted hereunder, wherein he has prayed for setting aside the order passed by the Tehsildar in 1994. PPPPP यहPिकP्ቚ ाथ?Pिन?PअनुतोषPपानेPकाPअिधकारीPहैPPPP P ¼v½P यहPिकPिडॿቅ ीPबहकPजबाबदेिह्ाPपखलाफPवादीPइसPअमरPकीPसािदरPQjek;दीPजायPिकP्ቚ ाथ?P जबाबदेिह्ाP िववािदतP भूिमPij;Hkwfe?kj;हPैP औरP नायबP तहसीदारPgYnokuh;}kjk;पाररतP आदेशP िदनांकP PPPPPPPPवादीPकीPबदिनयतीPएवPं ostk;ea'kk;सPे पाररतPहोPजानPे सPे ्ቚ ाथ?PकPे Hkwfe/kjh;अिधकारोPं परPकोईP ्ቚ भावPनPपडनेPसेPकािबलेP[kkfjth;ds;gSA; P ¼c½; यहPिकPिडॿቅ ीPबहकP्ቚ ाथ?P्ቚ ितवादीPइसPअमरPकीPसािदरPQjek;दीPजायPिकP्ቚ ाथ?Pजबाबदेिह्ाP कीPशेषPरकमPअदाPनPकरPपानेPकेPकारणPिववािदतPभूिमPपरPनाजायजPएवPं अनािधकृतPक्ेदारPचलेPआनेP सेPosn[kyh;िकयाPजाकरPdCtk;आराजीP्ቚ ाथ?Pजबाबदेिह?ाPकोPfnyk;k;जानेPकेPसाथPसाथPवादीP?ाराP अदाPकीPगयीPरकमPc;kuk;PPPPPPPPPरपयेPवादीPकोPअदाPकरPिदयाPजायP।P P ¼cl½; यहPिकP[kpkZ;मुकदमाPएवंPअनिधकृतPब्ेPकीPअविधPकाPहजा१नाPजोPHkh;माननीयP्ायालयP coDr;आदेशPcहकP्ቚ ाथ?Ptबाबदेिह्ाPmfpr;समझेPवहPHkh;सािदरPफरमाPिदयाPजायP।P P ¼n½; यहPिकPअ्PअनुतोPजोPHkh;्ायालयP्ቦ ीमानPcoDr;QSlyk;cgd;्ቚ ाथ?P्ቚ ितवादीPउिचतPle>as; ogh;Hkh;lkfnj;Qjek;fn;k;tk;AP

Secondly, he has prayed for to refund the money i.e. the partial sale consideration, which was paid to him on the basis of an unregistered agreement for sale dated

25.03.1984 and to revert back the possession of the land in question, which was a relief incorporated by way of an amendment.

¶9Let us deal with these reliefs and the counterclaim at this stage itself. The subject permissible under Order 8 Rule 6A in the pending suit, as made applicable by the provisions contained under Section 341 of the U.P.Z.A. & L.R. Act, would be, qua the principal relief sought in the plaint. The issue pertaining to the order as it was passed by the Tehsildar on 30.04.1994, would be absolutely an alien subject which couldn't have been prayed for, in the counterclaim to be quashed.

¶10What is more important to remark here is that the petitioner in the counterclaim, despite of being conscious of the agreement for sale dated 25.03.1984, has not prayed for quashing or cancellation of the alleged unregistered agreement for sale, rather he has prayed for refund of the money. The refund of money without questioning the validity of a document admittedly executed by the predecessor of the petitioner allegedly handing over of the possession, would be an alternative relief without disturbing the principal document by virtue of which the partial sale consideration had exchanged hands.

¶11The question would be, as to whether he could at all have modulated relief 2 for refund of money without challenging the validity of the agreement of sale dated

25.03.1984 at first. The answer would clearly be 'no'. The reason is that when acceptance of partial sale consideration is in a consequence of execution of an agreement deed, there cannot be a refund of money, until and unless the principal document is subjected to challenge.

¶12Another question, which may be having a vital bearing over the entire dispute, is that as to whether the relief B of returning back of possession at all, could have been claimed in the counterclaim by the petitioner of handing over the possession? The handing over of possession in the instant case would be barred by the provisions contained under Section 210 of U.P.Z.A & L.R. Act, which is extracted as hereunder: -"[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 non-transferable 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.]"

¶13The embargo of Section 210 will come into play for the reason being, that the time period prescribed for initiation of the proceedings for eviction under the Limitation Act, has admittedly expired, because the factum of handing over of possession on 25.03.1984, is an admitted case of the

petitioner and it is yet again an admitted case, that the petitioner had filed the counterclaim only on 21.03.1997 i.e. much beyond the period of limitation which has been prescribed for filing a Suit for handing over of possession and as such, the bar of Section 210 would always exist against the present petitioner, qua relief B, as it has been sought for in the counterclaim.

¶14Another question, which has been argued by the learned counsel for the petitioner is, as to whether the possession of the respondent on the basis of agreement for sale dated 25.03.1984, would at all be treated as to be permissive possession or an adverse possession? These two terminologies have to be distinctly dealt with. The possession would have been a permissive possession, as soon as the agreement for sale was executed by the predecessor of the petitioner on 25.03.1984, but it would acquire a status of being an adverse possession when the petitioner has waived of his right to institute a Suit under Section 209, wherein after that the possession of the respondent/ plaintiff would be adverse to the claim of the petitioner.

¶15The aspect of adverse possession would mean, that it should be was a hostile possession in the knowledge of the petitioner and if the hostility of possession continues, the status of possession of the respondent would be of an adverse possession and not a permissive possession, as it has been argued.

¶16Even otherwise also, with a gradual process of time, the law has also been changed and as per the judgment of

the Hon'ble Apex Court, wherein the Hon'ble Apex Court has reckoned a declaration of right of the occupant of a land based upon an adverse possession, which would be a principle directly applicable in the instant case, as envisaged by the Hon'ble Apex Court in the judgment as reported in 2 0 1 9 ( 8 ) SCC 7 2 9 , Ravin dr a Kum ar Gr ew al an d ot h er s Vs. Man j it Kau r an d ot h er s, the relevant paras of which are extracted hereunder: "50. In Gurdwara Sahib v. Gram Panchayat Village Sirthala [ Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 : (2014) 1 SCC

(Civ) 630] proposition was not disputed. A decision based upon concession cannot be treated as precedent as has been held by this Court in State of Rajasthan v. Mahaveer Oil Industries [ State of Rajasthan v. Mahaveer Oil Industries, (1999) 4 SCC 357] , Director of Settlements, A.P. v. M.R. Apparao [ Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638] and Uptron (India) Ltd. v. Shammi Bhan [ Uptron (India) Ltd. v. Shammi Bhan, (1998) 6 SCC 538 : 1998 SCC (L&S) 1601] . Though, it appears that there was some expression of opinion since the Court observed that there cannot be any quarrel that plea of adverse possession cannot be taken by a plaintiff. The fact rem ains that the proposition was not disputed and no argument to the contrary had been raised, as such there was no decision on the aforesaid aspect, only an observation was made as to proposition of law, which is palpably incorrect.

¶63When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession."

¶17The Suit proceeded being Suit No. 22/ 137 of 1995-96 and the Court of Assistant Collector, had formulated the issues on the basis of the claim and the counterclaim and had proceeded to decide the matter by the judgment and decree dated 29.06.1999, whereby the Suit as well as the counterclaim was dismissed and simultaneously a direction was issued to refund the money, which had exchanged hands based upon the agreement for sale dated

25.03.1984.

¶18The decree thus rendered, is extracted hereunder: - **mijksDr foospuk ,oa fu'd'kksZa ds vk/kkj ij nkok oknh ,oa izfroknh la 5 dk dkmaVj Dyse nksuksa gh [kkfjt fd;s tkrs gSa rFkk oknh dks funsZf"kr fd;k tkrk gS fd og izfroknh lati 5 dks "ks'k jde vnkdj fu;ekuqlkj c;ukek djk;sA i=koyh ckn vko";d dk;Zokgh nktinti gksA**

¶19Aggrieved against the said judgment and decree, as it has been passed by the Court of Assistant Collector on

29.06.1999, the respondent had preferred an Appeal being Appeal No. of 1998-99, Madhvanand Vs. Netraballabh and others, by invoking the provisions contained under Section 331 of U.P.Z.A. & L.R. Act and simultaneously an independent Appeal was preferred by the petitioner too, as against the rejection of the counterclaim, which was numbered as Appeal No. 169/ 46 of 1998-99 Hemchandra Vs. Madhvanand. The Appeals preferred by the parties were dismissed by the judgment dated

23.09.2003.

¶20The matter was carried to the Second Appeal by the parties to the writ petition and accordingly, a Second Appeal, being Second Appeal No. 189/ 2003 was preferred by respondent No. 1, Madhvanand Vs. Ballabh Balutia (since deceased and others) and the petitioner's Second Appeal, was numbered as Appeal No. 188 of 2003-04, Hemchand Vs. Madhvanand and Another. The Second Appeal after being consolidated was decided by the Board of Revenue vide its judgment dated 25.07.2008 and as a consequence thereto, the Court after considering the implications of Section 209, as referred to hereinabove has observed, that the possession of the respondent No. 1 herein, would be in adverse to the possession as contended by the petitioner to be permissive possession, and the said

inference was drawn on the basis of the judgment of the Allahabad High Court, wherein it was held, that when under Section 209 there is a transfer of occupancy of a tenancy and the sale deed or a deed of conveyance being invalid, the transfer of possession from the date of transfer would be adverse and not in a permissive possession of the transferee. Accordingly, the inference was drawn by the Court of Additional Chief Revenue Commissioner by the impugned judgment dated

25.08.2008, whereby the Second Appeal preferred by the respondent No. 1 was allowed and the Second Appeal preferred by the petitioner was dismissed.

¶21The consequential effect of the same would be, that the claim of the petitioner based upon the counterclaim raised under Order 8 Rule 6A has been concurrently decided against him by the Court and particularly as per the opinion of this Court, he will not have any right as such, to object to the declaration of title of the respondent on the basis of an adverse possession, where he admits the fact of handing over possession by the agreement for sale in 1984 and more particularly, when it is forted by the non drawing of the proceedings under Section 209, which provides an immunity of initiation of the proceedings and declaration of right against the respondent in the light of the implications of the provisions contained under Section 210 of the U.P.Z.A. & L.R. Act.

¶22In order to summarise the entire issue though it may be having a wide factual history, but if these facts are considered;

(i) That execution of agreement for sale dated 25.03.1984 and handing over of possession is admitted by the parties

(ii) The factum of possession of the respondent is admitted.

(iii) The possession of the respondent become adverse against the petitioner as per the provisions contained under Section 209 and, if not, at least, it would be adverse and hostile possession since the period of limitation has already expired as per the provisions contained under Section 210, which will rather provide an immunity to the respondent from being evicted from the land in question, which was handed over in possession by the petitioner and thus, the hostility of possession with the knowledge of the petitioner being adverse to his interest and being in his knowledge, the respondent would be entitled to be declared as to be an owner and a bhumidhar lying in shreni 1 (ka) as per the classification of bhumidhari rights and as per Section 129 to be read with Section 130 of the U.P.Z.A. & L.R. Act. More importantly, if the relief as claimed by the petitioner in the counterclaim is concerned, that in itself demolishes his case for claiming any right of possession or alternatively for the refund of money for the reasons already assigned above.

¶23Thus, the writ petitions fail and they are accordingly dismissed.

¶24Let a copy of this judgment be placed in the connected matter.

( Sh ar ad Ku m ar Sh ar m a, J.)

06.09.2023 Mahinder/