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Mohan Vs. the Director of Consolidation, U.P., Kanpur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. Nos. 5590 and 5591 of 1970
Judge
Reported inAIR1973All566
ActsTenancy Law; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 9
AppellantMohan
RespondentThe Director of Consolidation, U.P., Kanpur and ors.
Appellant AdvocateBharat Ji Agrawal, Adv.
Respondent AdvocateU.S. Awasthi, Adv. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
.....cannot be tacked to the possession of other trespasser to enable him to prescribe right by adverse possession - when two trespassers are independent - position different -when the two trespassers have jural relationship. - - there was no good relationship between them. 7. it is now well settled by various authorities of this court and other courts that the possession of one trespasser cannot be tacked to the possession of other trespasser to enable him to prescribe right by adverse possession, if thetwo trespassers are independent. --a person who is in possession of land without title has, while he continues in possession and before the statutory period has elapsed, a transmissible and inheritable interest in the property, but that interest is liable at any moment to be..........an objection was filed by smt. chandana. respondent no. 3, claiming sirdari rights on the basis of adverse possession. her stand was that her father forcibly took possession of the land in dispute and after his death about ten years back, her mother. smt. sheo rani, came in possession and after her death, which took place about three years back, she obtained possession of the disputed plots and thus by continuous possession for more than six years, she had matured title. the claim was resisted by the petitioners, who alleged themselves to be in possession of the disputed plots.4. the consolidation officer dismissed the objection on the ground that respondent no. 3 had not matured title, as she was not in possession for more than six years. on appeal, the settlement officer.....
Judgment:
ORDER

1. These two connected petitions are directed against the order of the Director of Consolidation dated 13th August. 1970.

2. The two writ petitions relate to two different khatas Nos. 37 and 83. In the basic year record, the two petitioners were recorded as sirdars of the disputed plots.

3. An objection was filed by Smt. Chandana. respondent No. 3, claiming sirdari rights on the basis of adverse possession. Her stand was that her father forcibly took possession of the land in dispute and after his death about ten years back, her mother. Smt. Sheo Rani, came in possession and after her death, which took place about three years back, she obtained possession of the disputed plots and thus by continuous possession for more than six years, she had matured title. The claim was resisted by the petitioners, who alleged themselves to be in possession of the disputed plots.

4. The Consolidation Officer dismissed the objection on the ground that respondent No. 3 had not matured title, as she was not in possession for more than six years. On appeal, the Settlement Officer (Consolidation) reversed the order of the Consolidation Officer and allowed the objection of respondent No. 3, holding that she had matured title. The order of the Settlement Officer (Consolidation) was confirmed in revision by the Director of Consolidation. The petitioners have now come to challenge the order of the Director of Consolidation. .

5. The sole contention raised on behalf of the petitioners is that Smt Chandana had not been in possession for more than the prescribed period and, therefore, she did not prescribe any title by adverse possession and the possession of her father and mother could not be tacked on to her possession to enable her to mature title by adverse possession. In support of this contention, reliance was placed on Bishambhar Nath v. Director of Consolidation. U. P. at Hardoi, 1970 All WR (HC) 370. In that case, it was held that:

'A right by adverse possession is a right acquired under law and it cannot be conferred. Further, the adverse possession of two persons at different times cannot be tacked even though they may be related together as brothers.' In that case, it was found as a fact that the two trespassers were not the own brothers as alleged and so that was a case of possession by two independent trespassers. There was no good relationship between them.

6. The matter can be looked at from two aspects:

(i) if the trespassers have jural relations;

(ii) if the trespassers are independent trespassers.

7. It is now well settled by various authorities of this Court and other Courts that the possession of one trespasser cannot be tacked to the possession of other trespasser to enable him to prescribe right by adverse possession, if thetwo trespassers are independent. But the position is different if one trespasser derives his interest from the other or in other words, they have any jural relationship.

8. In Mst. Ram Piari v. Budh Sen, AIR 1921 All 389 dealing with Article 144 of the Limitation Act. a Division Bench of this Court laid down the following proposition:--

'A person who is In possession of land without title has, while he continues in possession and before the statutory period has elapsed, a transmissible and inheritable interest in the property, but that interest is liable at any moment to be defeated by the entry of the rightful owner; and if such person is succeeded in possession by one claiming through him, who holds till the expiration of the statutory period, such a successor has then as good a right to the possession as if he himself had occupied for the whole period.'

9. In Secy, of State v. Debendra Lal Khan It was laid down that:

'If the plaintiff can establish that he and those from or through whom he derives right have for 60 years been in possession adverse to the Crown of the fishery, any right of the Crown thereto is extinguished, and the plaintiff is entitled to succeed in his claim.'

10. In Jatu Das v. Mt. Sulochana Mundain : AIR1957Pat37 a Division Bench of the Patna High Court had the occasion to consider Article 144 read with Section 2(4) and (8) of the Limitation Act. In that case, it was held:

'Art. 144 read with Sub-sections (4) and (8) of Section 2 shows that the expression 'the possession of the defendant' in Article 144 includes also the possession of the person from or through whom the defendant derives his liability to be sued. The periods of adverse possession of two or more defendants can be tacked together if one defendant derives his interest from the other.'

11. The reasoning which was applicable in the interpretation of Article 144 of the Limitation Act read with Section 2(4) and (8) can equally apply to the present case.

12. In Gurbinder Singh v. Lal Singh : [1965]3SCR63 , the Supreme Court made a distinction in the case of trespassers who had jural relationship and the trespassers who had no such relationship. In case of independent trespassers, the defendant is not entitled to tack on the previous possession of that person to his own possession. In this view of the matter, the order of the Director of Consolidation is fully justifiedby the various authorities of this Court land other Courts and he has committed no error, much less a manifest error of law.

13. The writ petitions have no force. They are accordingly, dismissed. In the circumstances of the case, the parties will bear their own costs.


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