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Bharit and Ors. Vs. the Hon'ble Board of Revenue, U.P., at Allahabad and Ors. (15.09.1972 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 3017 of 1969
Judge
Reported inAIR1973All201
ActsLimitation Act, 1963 - Schedule - Articles 64 to 65
AppellantBharit and Ors.
RespondentThe Hon'ble Board of Revenue, U.P., at Allahabad and Ors.
Appellant AdvocateBhuvaneshwar Pd., Adv.
Respondent AdvocateK.P. Singh, ;R.N. Singh, Advs. and ;Standing Counsel
Excerpt:
limitation - adverse possession - articles 64 and 65 of limitation act, 1963 - possession of transferee in case of sale - not on behalf of transferor - because transferor purported to part with his interest in property - transferee remains in possession on his own claims based on terms of sale - if document of sale invalid - no title to transferee - possession adverse to transferor. - .....the above extract established that a person in possession under an invalid grant acquired title by adverse possession.6. the reason is not far to seek. if a person executes a deed of sale of his rights and interest he purports to transfer all that he possesses in the property which is the subject-matter of the sale. the transferee claimed prima facie to remain in possession in accordance with the terms of the deed of sale, namely, as the full owner of the rights which were the subject-matter of transfer. in case the sale is found to be invalid for any reason the passing of the title may be frustrated; but nonetheless the transferee claimed to remain in possession in accordance with the terms of the invalid sale deed, namely as the full owner of the rights in the plots, which were the.....
Judgment:

Satish Chandra, J.

1. A learned Single Judge has referred the following two questions of law to a larger Bench:

'1. Whether on the facts and in the circumstances of this case the possession of Jagan from the date of the transfer of occupancy tenancy in his favour would be permissible on behalf of the transferor or adverse to his interests?

2. In case the possession of the original transferee was permissive in its nature will the possession of his heirs subsequent to his death continue to be permissive or will it become adverse to the rights of the original transferor?'

2. The writ petition in which the reference has been made arose out of a suit for ejectment and possession under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act filed by the respondents. The plaintiff respondents claimed to be occupancy tenants of the plots in dispute. On 18th Octobar, 1948 they executed a deed of sale of their rights in the plotsin dispute in favour of one Jagan, the father of the petitioners. The plaintiff-respondents' case was that the sale of occupancy being prohibited by law the sale was illegal, but nonetheless the possession of the transferees was permissive and as a licensee. The licence having been revoked, the transferees were no longer entitled to remain in possession. The present suit was instituted against the sons of Jagan after his death, in 1956.

3. The trial Court dismissed the suit On, appeal it was, however, decreed. The appellate decree was affirmed by the Board of Revenue. The Board of Revenue has relied upon a Single Judge decision of this Court in Chidda v. Joint Director of Consolidation, 1968 RD 205 and has held that the sale was illegal because the transfer of occupancy tenancy was prohibited, yet the possession of the transferees amounted to a permissive possession and on behalf of the transferor or tenants. Their possession being as licensees, the said licence stood revoked by the institution of the suit and consequently the transferees were trespassers after the revocation of the licence.

4. At the hearing of the writ petition before the learned Single Judge reliance was placed on behalf of the petitioners on a certain decision of the Supreme Court which in the opinion of the learned Single Judge cast doubt on the validity of the view taken in Chidda's case, 1968 RD 205. He consequently referred the two questions mentioned above to a larger Bench. This is how the petition has come up before this Bench.

5. In Chidda's case, 1968 RD 205 a tenant co-opted Chidda as a co-tenant. Shortly thereafter he executed a sale deed in favour of Chidda transferring his remaining interest in the tenancy plots. On these facts the learned Judge held:

'It will be seen that the petitioners entered into possession, if at all, with the permission of the landlord Chandrika Prasad and Kunwar Sen, the tenant-in-chief in the year 1948 under a written agreement. The petitioner's possession over the other half of the tenancy was by reason of the fact that he purported to have purchased the tame from Kunwar Sen under a sale-deed. Mr. Kazmi has not been able to cite any authority before me to show as to how in these circumstances the possession of his client could be said to be adverse.'

The learned Judge proceeded to hold:

'Ordinarily when a person enters into possession under an instrument of transfer Which is subsequently found to be invalid, then the title remains with the transferor, even though the possession might be of the transferee, but such a possession would in law be a permissive possession being on behalf of the transferor. It cannot be said to be adverse to the transferor.'

In our opinion this decision does not lay down the law correctly. A similar question arose before the Supreme Court in Collectorof Bombay v. Municipal Corporation of the City of Bombay, AIR 1951 SC 469. The Court observed:

'......... the position of the respondentCorporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title to it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1885. ......'

This view of the Supreme Court was affirmed by it in State of West Bengal v. Dalhousie Institute Society, AIR 1970 SC 1778 where it was held that the above extract established that a person in possession under an invalid grant acquired title by adverse possession.

6. The reason is not far to seek. If a person executes a deed of sale of his rights and interest he purports to transfer all that he possesses in the property which is the subject-matter of the sale. The transferee claimed prima facie to remain in possession in accordance with the terms of the deed of sale, namely, as the full owner of the rights which were the subject-matter of transfer. In case the sale is found to be invalid for any reason the passing of the title may be frustrated; but nonetheless the transferee claimed to remain in possession in accordance with the terms of the invalid sale deed, namely as the full owner of the rights in the plots, which were the subject-matter of sale. It is from this point of view it has been said that the possession of such a transferee is adverse to the transferor from the very first day when the transferee enters possession of the land.

7. The possession of a transferee in the case of sale is not on behalf of the transferor, because the transferor has purported to part with his entire interest in the property. The transaction did not create or retain any privity between the parties. In such a situation, the transferee's possession could not in law, be on behalf 'of the transferor. The transferee remains in possession in his own claim based on the terms of the sale. If the document of sale is invalid the transferee gets no title under it. His possession will not be referable to any legal title, it would be adverse to the transferor.

8. In the present case the sale deed was in respect of tenancy right After thelapse of that two year prescribed period of limitation, the transferee acquired under Section 180 (2) of the U. P. Tenancy Act, hereditary tenancy rights. In our opinion Chidda's case, 1968 RD 205 in so far as it decided that Chidda's possession was permissive in relation to the portion which was the subject-matter of the sale does not lay down the law correctly.

9. We would answer the first question by saying that the possession of Jagan from the date of the transfer of occupancy tenancy was adverse to the transferor and was not permissive on behalf of the transferor.

10. In view of our answer to the first question question No. 2 does not arise and need not be answered. The papers may now be laid before the learned Single Judge for the decision of the case on merits.


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