Adverse Possession Cannot Be Claimed When Land Is Acquired Through Agreement Of Sale: Allahabad High Court

While deciding a case under the U.P. Abolition of Zamindari and Land Reforms Act, 1950, the Allahabad High Court has held that where possession of land was acquired by an agreement of sale, adverse possession cannot not be availed to claim ownership of the property.

Justice Saurabh Shyam Shamshery relied on the judgment of the Supreme Court in Achal Reddy v. Ramakrishna Reddiar and Ors., where it was held that

“Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.”

Factual Background

An agreement to sale was executed in favour of the petitioner on 12.11.1973. It was for the sale of a property in the district of Moradabad for a sum of Rs. 9000/-, out which the petitioner paid 7,000/-, and took possession of the land. The rest was to be paid at the time of execution of sale deed.

Several years passed and the sale deed remained unexecuted. Aggrieved, the petitioner filed a suit for specific performance in the year 2011. In the same year, during the pendency of the aforesaid suit, the petitioner also filed a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, in order to declare his rights over the property in question. However, the suit was dismissed on grounds that the agreement to sale had not been executed and that the original respondent had no power to execute such an agreement since he was only a Sirdar.

Thereafter, the petitioner preferred appeals before the Commissioner, Moradabad and the Board of Revenue, both of which were dismissed. Hence, he filed the present Writ Petition.

Petitioner contended that since no proceeding was taken against him under Section 209 of the Act of 1950, he would be the Bhumidar of the land in question by virtue of Section 210 of the Act. It was further argued that that the petitioner's possession over the disputed land and the agreement to sale was never contested.

It was argued that whether the original respondent had the power to execute the agreement was not an issue before the Revenue Courts and thus the same could not be considered at this stage. The petitioner claimed adverse possession over the property in question.

Per contra, the respondents contended that the petitioner did not fall within the ambit of 'persons' as mentioned in Section 209 of the Act. It was argued that since the petitioner submitted that he was given possession of the plot by consent of the vendor, he could not avail the consequences of filing a suit under Section 209 of the Act. They submitted that the same would only be available to him if he was in possession of the land without the consent of the Bhumidar.

High Court Verdict

Section 209 of the U.P. Abolition of Zamindari and Land Reforms Act, 1950 contains provisions for the ejectment of persons occupying the land without a title. Section 210 of the Act talks about the consequences of failure to institute a suit before such a person prior to the expiry of the limitation period.

The Court considered Sections 209 and 210 of the Uttar Pradesh Zamindari and Land Reforms Act, 1950, and held that a suit could not be maintained under Section 209 of Act if the possession of the land in dispute was attained by consent of the vendor.

“A plain reading of Section 209(a) of Act, 1950 pre-supposes that possession was without consent of Bhumidhar, Sirdar or Asami or the Gram Sabha and if possession of person was a permissive one, a suit cannot be maintained under Section 209 of Act, 1950, therefore, its consequence as contemplated in Section 210 of Act, 1950 would not follow,” held the Court.

The Court held that present case was that of an “executory contract” since the possession was given only on the basis of an agreement to sale and not the actual sale deed itself. It was held that since the possession of the land was acquired by the permission of the vendor, the petitioner could not claim adverse possession against the respondent.

The Court relied on the decision of the Supreme Court in Achal Reddy v. Ramakrishna Reddiar and Ors. to elucidate the distinction between an 'agreement to sale' and a 'sale'.

“In the conception of adverse possession there in an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which, there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor,” held the Apex Court.

Finding no reason to interfere in the orders of the Revenue Courts, the writ petition was dismissed.

Case Title: Shahid Hussain v. Board of Revenue U.P. and Ors. [WRIT - B No. - 2398 of 2019]

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