Dismissed

Gurumukh Singh v. State and Ors.

Uttarakhand HC27 Jul 2017WPMS/1459/2006

Case brief

AI extract

What is this about?

The petitioner challenged the dismissal of his claim for a declaration of bhumidhari rights over Shreni-4 land based on adverse possession. A Single Judge of the High Court of Uttarakhand held the writ petition lacked merits as lower courts correctly denied declaratory relief for adverse possession in this context regarding Shreni-4 land. The petition was dismissed, and the stay order was vacated.

What did the court decide?

Writ petition dismissed; stay order vacated.

Gurumukh Singh Vs State and Ors. — Land Acquisition | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 1459 of 2006 (M/S)

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Gurumukh Singh ……..Petitioner.

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Versus

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State of Uttaranchal and others

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………Respondents.

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Mr. M.C. Kandpal, Senior Advocate assisted by Mr. Chitrarth Kandpal, Advocate for the petitioner.

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Mr. Pankaj Purohit, Deputy Advocate General for the State / respondent Nos. 1, 3 & 4.

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Mr. Deep Chand Joshi, Advocate for respondent Nos.5 to 8.

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Hon’ble Sharad Kumar Sharma, J. (Oral)

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This petition arises out of the proceedings under Section 229B of the Zamindari Abolition and Land Reforms Act, wherein the petitioner has sought a declaration of his rights in relation to the land lying in Khasra No. 80/3, having an area of 2.892 hectares. His contention before the court below, in the suit which was filed in 1999 was that he happens to be in adverse possession as against the State and private respondents since the aforesaid Khata No.25, which was subsequently splitted into 80-A, 80-B, 80-C and 80-D.

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He has confined the relief of declaration only in relation to Khasra No. 80-C. By the order of the Assistant Collector as rendered on 20.10.2000, he was declared as to be the bhumidhar after expunging the existing entry made in the

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revenue record showing the land to be recorded in Shreni-4 land. The reason which has been assigned by the court of Assistant Collector constituting to be the basis for declaration was only based upon the possession of the petitioner. According to the findings of the Assistant Collector it was held that the petitioner is in adverse possession, and since in the absence of there being any proceeding under Section 210, he would be acquiring the bhumidhari rights accordingly issue nos.2 and 3 was framed to the effect as to whether the entry made in the revenue record in Shreni-4 has been correctly recorded or not.

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In support of his contention before the court below he placed reliance on the khatouni pertaining to 1380-1381 fasli and 1382-1387 fasli . It is not disputed that all these khatoni shows that the land is recorded in Shreni-4. The court of Assistant Collector despite the fact that the land was recorded as Shreni, recorded the finding that the land is recorded as to be in possession of respondent Nos. 5 to 8 held that the entries made in their name was wrong. The court of Assistant Collector placed reliance on an authority as rendered by the Board of Revenue, which held that if a person is occupying a State land which is recorded in Shreni-4 and is not evicted within the stipulated time then the implications Section 210 would follow.

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Being aggrieved against the said order the Gaon Sabha and State preferred an appeal being Appeal No. 30 of 2001-02. The Appellate Court while considering the propriety of the order passed by the Assistant Collector took the view that according to the entries made in udran khatoni of 1406-1411 fasli . The disputed land is shown to be recorded in Shreni-4. If

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the entries in the khatoni of 1406 to 1411 is read with correlation to the entries of the khatoni pertaining to 1382-1387 fasli even then in the entry Khatoni of 1382-1387 fasli also recorded the land as to be Shreni-4, the benefits which the petitioner wanted to derive in the proceedings before the court below was that since the respondent Nos. 5 to 8 had occupied as seerdar in a khaam land, they with the enforcement of the Zamindari Abolition and Land Reforms Act, they ought to have been recorded as Shreni-6 and the second fold of the argument of Mr. M.C. Kandpal, learned Senior Counsel for the petitioner is that with the enforcement of Zamindari Abolition Act in the area in question where an occupant is recorded in Shreni-6 he would be acquiring bhumidhari rights, hence he ought to be granted the benefit of bhumidhari rights as contemplated under the said Act. Admittedly, according to his own pleading as read as para 3, which is as quoted here under:

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“ That whole land of village Bharatpur no.-1, Tehsil Haldwani, District Nainital was the land belonging to Khaam village and the Respondent Nos. 5 to 8 were shown in the Revenue records and in the possession over the land in Varg-4 wrongly while possession of Respondent nos.5 to 8 is required to be shown on the Varg-6 but due to the error committed by the Tehsil Authorities, the land is shown in Varg-4 showing the land belonging to the State while in accordance to the Provision of Law, the land belonging to Khaam village and the person who is in possession of the land is become the Seerdar of the land and on the application of the U.P.Z.A.L.R. Act in the area declared as Bhumidhar under Varg-1 on the land in dispute, while neither the respondent nos. 5, 6, 7 and 8 or the petitioner is declared as the Bhumidhar on the land in dispute, inspite of

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various representations and applications to Tehsil Authorities. ”

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He has pleaded that the land was in possession of the private respondent and further there is no khasra on record, which is a document of possession, showing the length of possession of the petitioner over the land in question because the entry in khatoni can never be taken for the purposes of showing possession. It is only a document of title and thus the court of Additional Commissioner held that no bhumidhari rights could be granted to the petitioner.

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The said judgment on being challenged in the Second Appeal has also been affirmed taking an identical view that since the land being Shreni-4 land no bhumidhari rights will be created on the enforcement of Zamindari Abolition and Land Reforms Act and dismissed the Second Appeal. The learned Counsel for the parties candidly admitted that the proceedings before the court below was confined to the declaration of rights. The declaration of rights of the land lying in Shreni-4 is not permissible under law coupled with the fact that according to the petitioner himself, he has not correlated his possession with his title by placing the appropriate document on record rather a contradictory plea has been taken by him.

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In the recent judgment rendered by Hon’ble Apex Court in the case of State of Haryana vs. Mukesh Kumar and others 2012 (115) RD 349 this was a case which deals with a situation where the State has instituted a Suit, seeking a relief for declaration that they have acquired the rights of ownership by way of adverse possession over the land in dispute. The

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Hon’ble Apex Court in the aforesaid judgment in its para 50 has laid down as under:-

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“50. In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommended the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.”

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Hon’ble Apex Court in the case of State of Haryana vs. Mukesh Kumar and others (Supra) in its para 45 and 46 has held that a theory of adverse possession now has to be given a serious re-look as it is absolutely imperative in the larger interest of the people. Para 45 and 46 are quoted herein below:-

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“45. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people.

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Adverse possession allows a trespasser- a person guilty of a tort, or even a crime, in the eyes of law- to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible.”

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Hon’ble Apex Court in its judgment rendered in the case of Gurdwara Sahib vs. Gram Panchayat Village Sirthala and Another (2014) SCC, 669 in its para 7 has held as under:-

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“7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot

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seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.”

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This judgment creates an absolute bar that even though the plaintiff has been found in possession he cannot claim a declaration of right.

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It has been held that a person who claims a right over a land exclusively based on adverse possession, he can only retain possession on the basis of adverse possession but cannot get a right of declaration of ownership. Another argument which was extended by the learned Senior Counsel is to the effect that in other connected matters the persons had been declared as to be owner against the land recorded in Shreni-4. Thus, the judgment will not be a precedent for taking a wrong as an example for commission of another wrong. There cannot be a negative punity.

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Thus, to that extent of concurrent finding recorded by all courts below on the declaration of rights, the writ petition lacks merits and is dismissed. Stay order stands vacated.

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(Sharad Kumar Sharma, J.) 27.07.2017

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Nahid

Gurumukh Singh v. State and Ors.

Case brief

What is this about?

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Gurumukh Singh v. State and Ors.

Case brief

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