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2014 Supreme(UK) 309
UTTARAKHAND HIGH COURT
Hon'ble Mr. Justice Alok Singh
Writ Petition No. 2644 of 2013 (M/S)
CHANDAN SINGH & ORS. – Petitioners
Versus
UMESH MASSEY & ORS. – Respondents
Decided on : 23.09.2014
For the Petitioners: Mr. T.A. Khan, Sr. Adv., assisted by Mr. A.K. Arya, Adv.
For the Respondent Nos. 1, 2,: Mr. A.S. Rawat, Sr. Adv., assisted by Mr. V.S. Rawat,
3 & 4 Advocate
For the Respondent No. 5: Mr. Gajendra Tripathi, Brief Holder
Headnote:U.P. Zamindari Abolition and Land Reforms Act, 1950, Secs. 209 and 210 and Limitation Act, 1963, Sec. 27 — Sec. 210 UPZA & LR Act is on the principle of Sec. 27, Act, 1963 — To invoke Sec. 210 UPZA & LR Act as well as Sec. 27, Limitation Act, the plaintiff had to prove that he had entered into the possession and is in continuous possession adverse to the interest of the bhumidhar for last more than 12 years within the knowledge of the bhumidhar — And despite this fact the bhumidhar did not opt to file suit for possession u/s 209. (Para 9)
mÙkj izns’k tehankjh mUewyu ,oa Hkwfe lq/kkj vf/kfu;e] 1950] /kkjk 209 vkSj 210 ,oa ifjlheu vf/kfu;e] 1963] /kkjk 27 & /kkjk 210] UPZA & LR Act /kkjk 27 vfèkfu;e] 1963 ds fl)k¡rksa ij gS & /kkjk 210 mÙkj izns’k tehankjh mUewyu ,oa Hkwfe lq/kkj vfèkfu;e o /kkjk 27] ifjlhek vf/kfu;e ds voyEcu ds fy, & oknh dks fl) djuk gksxk fd og dCtsnkj gS o fujUrj dCts ij gS tksfd Hkwfe/kj ds fgr ds izfrdwy gS fiNys 12 o”kks± ls tks fd Hkwfe/kj ds Kku esa gS & vkSj bl rF; ds ckotwn Hkh Hkwfe/kj us èkkjk 209 vf/kfu;e] Hkwfe ds dCts ds fy, okn nk;j djus dk p;u ugha fd;k FkkA ¼izLrj 9½
Hon’ble Alok Singh, J (Oral).
Petitioners have filed suit under Section 229-B of the UPZA & LR Act seeking declaration to the effect that the petitioners have matured bhumidhari rights over the property in question, therefore, name of the petitioners be mutated in the revenue records as bhumidhars thereof. It is stated in the plaint that John Kumar Massey, Dilip Kumar Massey and Rajesh Kumar have executed one agreement to sell in favour of the father of the plaintiffs on 30.12.1965 and have delivered possession of the property in part performance of the contract. It is further stated in the plaint that earlier to the agreement to sell dated 30.12.1965 for 21 bigha, another agreement to sale was executed for rest of the 7 bigha land on 12.1.1964. Suit so filed by the plaintiffs/petitioners, herein, was dismissed by the Trial Court by the impugned judgment and decree dated 18.7.2001. First appeal arising therefrom was dismissed by the Commissioner, Garhwal Division, vide judgment dated 30.4.2008 and second appeal was also dismissed by the Board or Revenue, Uttarakhand, vide judgment and decree dated 11.10,2013. Feeling aggrieved, plaintiffs/petitioners, herein, have invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India assailing the dismissal of the suit by the trial court, first appellate court as well as by the second appellate court.
2. I have heard Mr. T.A. Khan, learned Senior Counsel assisted by Mr. A.K. Arya, Advocate for the petitioners, Mr. A.S. Rawat, learned Senior Advocate assisted by Mv. V.S. Rawat, Advocate for defendants/respondent nos. 1, 2, 3 and 4, herein, and Mr. Gajendra Tripathi, learned Brief Holder for the State/respondent no. 5, and have carefully perused the record.
3. Mr. T.A. Khan, learned Senior Counsel appearing for the petitioners, has vehemently argued that since possession was delivered in favour of the father of the plaintiffs in part performance of the agreement to sell dated 12.1.1964 and 30.12.1965, therefore, in view of Section 164 of the UPZA & LR Act, plaintiffs are liable to be declared bhumidhars of the property in question. Mr. Khan has further argued that alternatively since the petitioners are in possession for more than 12 years, they have matured their title by way of adverse possession in view of Section 210 of the UPZA & LR Act.
4. Section 164 of the UPZA & LR Act reads as under :
“164. Transfer with possession by a bhumidhar to be deemed a sale. – Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply.”
5. The plain reading of Section 164 of the Act would demonstrate that possession should have been transferred for the purposes of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement.
6. In the present case, no plea was ever taken by the plaintiffs either in the plaint or thereafter before the first appellate court or second appellate court to the effect that plaintiffs or father of the plaintiffs ever extended any load to the defendants or their predecessors and defendants or their predecessors have transferred the possession of the property in favour of the predecessors of the plaintiffs for the purposes of securing such loan. Therefore, Section 164 of the Act cannot be pressed in service.
7. Section 210 of the UPZA & LR Act reads as under :
“210. Consequence of failure to file suit under Section 209. – If a suit for eviction fro
