2019 Supreme(UK) 504
SHARAD KUMAR SHARMA
PARMESHARI BAI – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
Advocates:
For the Petitioner:Mr.M.S. Bhandari, Advocate
For the Respondent:Mr. Narain Dutt, Brief Holder and Mr. Sudhir Kumar, Advocate
For the Petitioner:Mr.M.S. Bhandari, Advocate
For the Respondent:Mr. Narain Dutt, Brief Holder and Mr. Sudhir Kumar, Advocate
Judgement Key Points
- The dispute concerns land in village Jogipura, Tehsil Bajpur, District Udham Singh Nagar, specifically Khasra Nos. 118B (1.455 hectares), 113 (1.657 hectares), and 118A (0.051 hectares), totaling 3.163 hectares. (!)
- Parties share a common family tree descending from Mohrari Ram, with sons Dharam Chandra, Darshan Ram, and Hakam Chandra; plaintiff Kashmir Chand is a grandson of Dharam Chandra, and petitioners are successors of Hakam Chandra.[26000137010001]
- The two writ petitions involve similar facts and law from the same family clan, decided together, with minor distinctions in claimed properties.[26000137010002][26000137010003]
- Plaintiff claims possession via a one-year lease from 1984 for cultivation by family predecessor, continued for over 20 years, seeking declaration as Bhumidhar (Shreni 1ka) under Section 129 of Zamindari Abolition Act via adverse possession under Section 229B.[26000137010004] (!) (!) [26000137010006][26000137010007]
- Khasra No. 113 leased under Government Grants Act (Sections 2, 3); no adverse possession claim possible against state land.[26000137010008]
- Trial court (Assistant Collector) dismissed suit on 14.06.2007, holding no adverse possession title against family.[26000137010011]
- First appellate court (Additional Commissioner) allowed appeal on 28.02.2013, declaring title on adverse possession for Khasra No. 118B only.[26000137010012][26000137010014]
- Second appeal before Board of Revenue dismissed on 01.11.2014.[26000137010013]
- No right to title via adverse possession claimable by co-owner or family member against property handed for cultivation within same clan.[26000137010005][26000137010009][26000137010015] (!) [26000137010016][26000137010017][26000137010022][26000137010023][26000137010024] (!) [26000137010025][26000137010026] (!) (!) (!) (!) (!) (!) [26000137010027] (!) [26000137010041]
- Possession by family relative presumed permissive, not hostile; requires ouster, open denial of title, exclusive enjoyment to knowledge of others.[26000137010010][26000137010041]
- Sections 156, 157, 165 of Zamindari Abolition Act restrict leases but inapplicable to intra-family arrangements not under Transfer of Property Act Section 105.[26000137010019] (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) [26000137010020][26000137010021]
- Writ petition allowed; impugned orders quashed, restoring trial court dismissal.[26000137010042]
JUDGMENT
Hon'ble Sharad Kumar Sharma, J (Oral)
Before venturing into the vitalities of the arguments extended by the learned counsel for the parties to the writ petition, it becomes essential for this Court to precisely deal with the factual backdrop under which the present writ petition has arisen. The facts of the case are that the property, which is a subject matter of consideration in the proceedings under Section 229B, i.e. in a Suit for declaration of title under the Zamindari Abolition Act of 1950, constituted of Khasra No. 118B having an area of 1.455 hectares, Khasra No. 113 having an area of 1.657 hectares and Khasra No. 118A having an area of 0.051 hectares, that means total area in dispute would be 3.163 hectares, which was lying in village Jogipura, Tehsil Bajpur, District Udham Singh Nagar. Hereinafter the property described aforesaid would be called as the property in dispute.
2. Admittedly, the parties to the writ petition or in the proceedings of the Suit for declaration of right have a following common family tree, i.e. one Mr. Mohrari Ram was succeeded by his three sons Dharam Chandra, Darshan Ram and Hakam Chandra. The eldest son Dharam Chand was succeeded by thr
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