In a recent ruling, the Allahabad High Court clarified that adverse possession cannot be claimed over land acquired through an agreement to sell. The Court emphasized that when possession is obtained under such an agreement, it cannot be considered adverse possession.

Justice Saurabh Shyam Shamshery referred to the Supreme Court’s judgment in Achal Reddy v. Ramakrishna Reddiar and Ors. and noted 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
In this case, an agreement to sell a property in Moradabad was executed on November 12, 1973, for a sum of Rs. 9,000, out of which the petitioner paid Rs. 7,000 and took possession of the land. The balance was to be paid at the time of executing the sale deed. However, despite several years passing, the sale deed was never executed, prompting the petitioner to file a suit for specific performance in 2011. During the same period, the petitioner also filed a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, to assert rights over the property. However, the suit was dismissed on the grounds that the sale agreement had not been executed, and the original respondent lacked the authority to execute it, as they were merely a Sirdar.

The petitioner appealed the dismissal to both the Commissioner, Moradabad, and the Board of Revenue, but both appeals were rejected. Consequently, the petitioner approached the High Court through a writ petition.

Petitioner’s Arguments
The petitioner argued that since no action was taken under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, he should be deemed the Bhumidhar of the land under Section 210 of the Act. He contended that his possession of the land, backed by the agreement to sell, had not been contested. Additionally, he argued that the issue of whether the original respondent had the power to execute the agreement was not raised before the Revenue Courts and should not be considered at this stage. The petitioner also claimed adverse possession over the property.

Respondents' Arguments
The respondents countered by arguing that the petitioner did not meet the criteria outlined in Section 209 of the Act. They maintained that since the petitioner had taken possession with the vendor's consent, he could not invoke the provisions of Section 209, which are intended for cases where the land is possessed without the consent of the rightful owner.

High Court's Verdict
The Court examined the provisions of Sections 209 and 210 of the U.P. Abolition of Zamindari and Land Reforms Act, 1950. It held that if possession was acquired with the vendor’s consent, a suit under Section 209 could not be maintained. “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,” the Court stated.

The Court further explained that the case involved an "executory contract," where possession was given based on an agreement to sell, not an actual sale. Since the possession was granted with the vendor's permission, the petitioner could not claim adverse possession.

The Court referred to the Supreme Court’s ruling in Achal Reddy v. Ramakrishna Reddiar and Ors. to differentiate between an “agreement to sell” 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,” the Apex Court had stated.

Ultimately, the High Court found no grounds to interfere with the Revenue Courts' orders and dismissed the writ petition.

Case Title: Shahid Hussain v. Board of Revenue U.P. and Ors.

Date: November-22-2024

Bench: Justice Saurabh Shyam Shamshery

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