IMPORTANT POINT
Possession under an executory contract does not confer rights of adverse possession, as it is considered permissive rather than adverse.

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. 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 ‘per