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2012 Supreme(UK) 630
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
B.S.Verma, J.
Mubarak Hussain and another - Petitioners
Vs.
The Deputy Director of Consolidation Rudrapur Nainital (Now U.S.Nagar) and others - Respondents
Writ Petition (M/S) No. 4013 of 2001
Decided On : September 05, 2012
Advocate Appeared:
Mr. Arvind Vashisht, Advocate, with Mr. G.C.Lakhchaura, Advocate learned counsel for the petitioners.
Mr. N.P.Sah, learned Standing Counsel, for the respondent nos. 1 and 2.
Mr. Ramji Srivastava, Advocate, learned counsel for the respondent nos. 3/1 and 3/2.
Adverse possession must be adequate in continuity, publicity, and extent. Possession under an executory contract of sale cannot be considered adverse possession.
Headnote:
Patta - Land Dispute - Government Grants Act - Section 11(1) of Consolidation of Holdings Act - [Section 11(1) of Consolidation of Holdings Act] - The court discussed the legal provisions related to the inheritance of land and adverse possession. It highlighted the requirement for adverse possession to be adequate in continuity, publicity, and extent. The court emphasized that possession under an executory contract of sale cannot be considered adverse possession. The court also pointed out that lease land cannot be lawfully transferred to a third person.
Fact of the Case:
The petitioners sought to quash an order related to a land dispute. The dispute arose from the allocation of a Patta under the Government Grants Act to the father of the petitioners. The respondent claimed adverse possession based on an unregistered agreement to sale.
Finding of the Court:
The court found that the possession claimed by the respondent did not constitute adverse possession as it did not meet the legal requirements. The court also held that lease land cannot be lawfully transferred to a third person and that possession under an executory contract of sale cannot be considered adverse possession.
Issues: The issues included the legal inheritance of the land and whether the respondent had perfected his right through adverse possession.
Ratio Decidendi: The court emphasized the legal requirements for adverse possession and highlighted that possession under an executory contract of sale cannot be considered adverse possession.
Final Decision: The writ petition was allowed, the impugned orders were set aside, and the judgment and order passed by the Consolidation Officer were upheld.
By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the impugned order dated 11-1-1994 and 13-5-1993 passed by the Deputy Director of Consolidation and the Settlement Officer Consolidation respectively.
Briefly stated the facts giving rise to the present writ petition, according to the petitioners, are that a Patta was allotted to Bhullan, father of the petitioners, by the Collector under the Government Grants Act. Copy of the Patta and Khatauni have been annexed by the petitioners as Annexure-1 to the writ petition. The land in dispute pertains to plot No. 360/3, area 0.94 Bigha, plot no. 366/2, 1 Bigha and plot no. 361/3 area 0.57 Bigha, situated at village Daduwala, Tehsil Kashipur, district Nainital.
The petitioners filed objection before the Consolidation Officer claiming that the names of the petitioners be recorded in place of their father Bhullan, since he had died. The respondent no.3 filed objection on the ground that the land in question has been purchased and an unregistered agreement to sale was executed by Sri Bhullan in favour of the mother of respondent no.3, Smt. Vero wife of Gurunam Singh. The respondent no.3 Sewa Singh claimed his adverse possession on the basis of unregistered agreement for sale through his mother since she had paid Rs. 8,000/- for purchase of the land in question.
The Consolidation Officer on the basis of the objection filed by the parties, framed following Issues:-
1. Who legally inherits land of Khata No. 154?
2.Whether Sewa Singh has perfected his right on the basis of adverse possession? If so, its effect?
After perusing the evidence adduced by the parties, the objection of respondent no. 3 was rejected by the Consolidation Officer on the ground that on the basis of receipt of irrigation, which has been filed by Sewa Singh, pertains of his own Bhumidhari land and on the basis of receipt, the possession cannot be presumed adverse against the petitioners, who are legal heirs of late Bhullan. Learned Consolidation Officer also held that Sewa Singh failed to prove his adverse possession continuously for the last preceding 12 years. Ultimately, by order dated 17-1-1993, the Consolidation Officer directed that the name of deceased Bhullan be replaced by his legal heirs over Khata No. 154 and the claim of the respondent no.3 Sewa Singh was rejected.
Aggrieved by the said order, the respondent no.3-Sewa Singh preferred an appeal (Appeal No. 225 under Section 11(1) of Consolidation of Holdings Act before the Settlement Officer Consolidation (for short SOC). The S.O.C. has set aside the order of the Consolidation Officer on the ground that the appellant had filed the receipt from 1385 Fasli to 1388 Fasli and has also produced one Vinod Kumar Saxena, an employee of Irrigation Department. Learned SOC has given a find that Bhullan had given possession to the mother of respondent no.3-Sewa Singh after receiving Rs. 8000/- from her.
Aggrieved further by the order passed by the S.O.C., the petitioner preferred a revision before the Deputy Director of Consolidation. In the revision, the learned Deputy Director of Consolidation affirmed the finding of the S.O.C. on the same ground on which the appeal was allowed and presumed the possession on the basis of irrigation receipt, which gave rise to the present writ petition.
This fact is not disputed that the possession of respondent no.l3-Sewa Singh had never been recorded in the Khasra entry.
I have heard learned counsel for the parties.
Learned counsel for the petitioner has contended that the learned Consolidation Officer has specifically given a finding that the irrigation receipt, which has been filed by Sewa Singh is of a land belonging to him of Bhumidhari right. Learned SOC has set aside this finding without observing what Sri Vinod Kumar Saxena has said on the basis of irrigation report in respect of 4 years, i.e. 1385 Fasli to 1388 Fasli, but has presumed the adverse posse
