Adverse Possession Not Considered By Appellate Authority: Allahabad High Court Remands Case To Commissioner After 28 Yrs

The Allahabad High Court recently remanded a 28 years old land dispute as the Commissioner had failed to take not of the adverse possession of the petitioners in appeal under Section 13 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960.

The bench comprising of Justice Alok Mathur held that once eviction suit against the petitioner was dismissed, fact of possession was established. In absence of proof to the contrary, the Prescribed Authority under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 ought to consider the rights of petitioners on ground of adverse possession.

Factual Background

Proceedings under Section 10 (2) (Notice to Tenure Holders Failing to Submit a Statement or Submitting an Incomplete or Incorrect Statement ) of the Act of 1960 were initiated against Rani Drig Raj Kunwar in which certain land was declared to be surplus in 1962. Petitioners, claiming to be occupants on a part of the said land declared surplus, moved objections before the Prescribed Authority for recall of the order on grounds that they were never heard. The objections were rejected in 1976 and came to be abated as per Section 14 (3) of the Act of 1960 in terms of the ordinance dated 10.10.1975.

Thereafter, objections under Section 11 (Determination Of Surplus Land Where No Objection Is Filed) of the Act were filed as per the amended ordinance dated 10.10.1975. It was stated that patta of the said land was given by Raja Harnam Singh, husband of Rani Drig Raj Kunwar and on the basis of the possession after coming into force of Zamindari Abolition and Land Reforms Act had acquired rights of the said land. Suit for eviction filed by Rani Drig Raj Kunwar under Section 202 of U.P. Z.A. & L. R. Act was decreed in 1962 and the second appeals were dismissed in favour of the petitioners. Accordingly, petitioners and others who were bhumidhari tenants before abolition of zamindari became sirdar after zamindari abolition and have been independent tenure holders since 1958.

The Prescribed Authority while deciding objections under Section 11 of the Act, observed that the petitioners could not reproduce the patta by way of which land was allegedly transferred to them. On the same ground, appeal filed before Commissioner, Lucknow was also rejected.

Petitioner approached the High Court on grounds that petitioners are in continuous possession since 1359 fasli till date. In absence of patta, the Authorities should have considered the rights of the petitioner over the disputed land by way of adverse possession. Relying on Explanation II of Section 5 of the Act of 1960, it was argued that unless evidence is produced to the contrary, petitioners should have been treated as owners of the land.

High Court Verdict

According to the Court, the main issue in the bunch of writ petitions was whether petitioners had sufficient or any right on the said land which ought to have been considered by the Prescribed Authority while concluding the ceiling proceedings against Rani Drig Raj Kunwar.

Based on the records of the case, the Court observed that petitioners have been in possession of the disputed land and only based on the possession that suit for eviction was unsuccessfully contested by Rani Drig Raj Kunwar.

The Court observed the names of the petitioners were duly recorded in the revenue records based on the consolidation proceedings.

“Once it has been shown that the petitioners have succeeded in sustaining their objections in the suit proceedings which clearly demonstrated that the persons claiming ownership they were in possession and with the knowledge of the person who was claiming herself to be owner of the said land and consequently they were in adverse possession of the said land,” held Justice Mathur.

The Court held that once the fact of adverse possession is demonstrated before the Prescribed Authority, the same ought to considered rights of petitioners on ground of adverse possession. The Court held that “by not considering so he has not exercised his jurisdiction vested in him and consequently the period during which the petitioners were in possession of the said land cannot be ignored and which should have been duly dealt with by the Prescribed Authority.”

Since an interim order had been passed in 1995 in favour of the petitioners, to meet the ends of justice, the Court remanded the case only on the ground that adverse possession be considered by the Authorities.

Case Title: Chhotey Lal v. State of U.P. and Others [WRIT - C No. - 3000009 of 1995]

Counsel for Petitioner: Shyam Mohan Pradhan

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