RAJVINDER SINGH vs JAGDISH CHANDRA
- Court
- Uttarakhand High Court
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HIGH COURT OF UTTARAKHAND AT NAINITAL
HON’BLE JUSTICE SRI MANOJ KUMAR TIWARI
Writ Petition No. 1219 of 2026 (MS)
Rajvinder Singh and others --Petitioners
Versus
Jagdish Chandra and others --Respondents
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Advocates:-
Mr. B.D. Pandey, Mr. Sanjay Bhatt, Mr. Mayank Bhatt, Advocates for the
petitioners.
Mr. Sudhir Kumar Nailwal, Standing Counsel for the State of Uttarakhand
Mr. M.C. Kandpal, Senior Advocate assisted by Mr. Devesh Kandpal, Advocate
for the respondent.
Mr. T.A. Khan, Senior Advocate assisted by Mohd. Shaify, Advocate for the
caveator.
Ms. Anjali Bhargava, Advocate for Gram Sabha
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Reserved on: 18.08.2026
Delivered on: 15.09.2026
JUDGMENT
Respondent Nos. 1 & 2 were declared as bhumidhar
with transferable right based on photocopy of
unregistered Contract for Sale, alleged to have been
executed by predecessors-in-interest of the petitioners,
even though there was no pleading regarding such
Contract for Sale in the plaint. Learned Assistant
Collector held that possession based on contract for sale
is adverse since very beginning. Thus feeling aggrieved,
petitioners have challenged the judgments rendered by
learned Assistant Collector-I class, Commissioner,
Kumaon and Board of Revenue.
2. The suit was filed by respondent Nos. 1 and 2
under Section 229-B of Uttarakhand Zamindari Abolition
And Land Reforms Act, 1950 (In short “Z.A. Act”),
contending that their predecessors-in-interest purchased
1.335 hectares of land comprised in khata Nos. 7, 1.582
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hectares of land comprised in Khata No. 8, situate in
Village Bachinagar, and 0.414 hectare of land comprised
in Khata No. 47, situate in village Bailpokhara from
predecessors-in-interest of defendant No. 3, some 20-22
years ago; however, name of predecessors-in-interest of
defendant No. 3 is still reflected in revenue records as
category ‘2’ (bhumidhar with non transferable rights).
However, the date and nature of document through
which land was allegedly purchased, was not mentioned
in the plaint of the suit.
3. In para 4 of the plaint, it was contended that
revenue authorities have not entered name of the
plaintiffs in revenue record as Bhumidhar, even though
they have perfected their title by adverse possession.
Plaintiffs sought a declaration that they have acquired
transferable bhumidhari rights by adverse possession
over the land in question and they be recorded as such
in the revenue records.
4. Defendant No. 3 (Mahendra Singh and Rajvinder
Singh), in their written statement, stated that they are
recorded as bhumidhar with non-transferable right in
revenue records and they are in cultivatory possession
over the land in question; as per Government Orders
they are entitled to be declared as bhumidhar with
transferable rights for which separate proceedings have
been initiated.
5. Defendant No. 3 in their written statement denied
that the land in question was sold, as alleged in the
plaint, to the predecessors-in-interest of the plaintiffs
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and stated that plaintiffs have not filed conveyance deed
or contract for sale with the plaint in support of that
allegation. It was further stated that defendants are
cultivating the land through bataidar (sharecropper).
6. Based on pleadings, following 07 issues were
framed by learned Assistant Collector, First Class,
English translation whereof is given below:
(i) Whether plaintiffs and defendant No. 4 are
in cultivatory possession over the land in
dispute, from the date of its purchase in
1990 till today and are paying the irrigation
fee, tax, etc?
(ii) Whether plaintiffs and defendant No. 4 have
acquired bhumidhari rights by adverse
possession as per provisions of Z.A. & L.R.
Act?
(iii) Whether plaintiffs gave legal notice to State
Government and Gram Sabha before filing
the suit?
(iv) Whether plaintiffs are entitled to the reliefs
claimed?
(v) Whether defendant No. 3, who is recorded
as bhumidhar with non-transferable right in
revenue records is entitled to be recorded in
category 1A as bhumidhar with transferable
rights. If yes, then its effect.
(vi) Whether defendants have filed a separate
suit for declaration of their rights in respect
of land in dispute. If yes, then its effect.
(vii) Whether plaintiffs were engaged as Bataidar
(Sharecropper) and whether they are
attempting to forcibly dispossess defendant
No. 3 from the land in dispute.
7. Learned Assistant Collector decided issue no. 1, 2
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and 7 together and returned findings that plaintiffs came
into possession over the land in dispute based on two
unregistered contract for sale, executed by
predecessors-in-interest of defendant No. 3, on
13.07.1989 and 23.05.1990; since contract for sale is
not a valid document for transfer of immovable property,
therefore possession of plaintiffs over the land in
question is adverse to defendant No. 3 since very
inception; defendant No. 3 never filed suit for possession
under Section 209 of Z.A. Act within limitation period,
therefore plaintiffs perfected their title by adverse
possession and are entitled to be declared as bhumidhar
in place of defendant No. 3.
8. Issue No. 3 was decided in favour of plaintiffs by
holding that legal notice was served upon the State
Government as well as Gram Sabha before filing the
suit.
9. Issue No. 4 was decided in favour of plaintiffs and it
was held that plaintiffs are entitled to the reliefs claimed.
10. As regards issue No. 5, it was held that since
defendant No. 3 declared as bhumidhar with transferable
right during pendency of the suit as per Government
Orders, therefore, said issue is disposed of accordingly.
11. As regards issue no. 6, it was held that burden was
upon defendant No. 3 to prove that he has filed separate
suit for declaring him as bhumidhar with non-
transferable right; however, defendant No. 3 has been
recorded as bhumidhar with transferable right in
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revenue record, therefore the issue is decided
accordingly.
12. Mahendra Singh and Rajvinder Singh (defendant
No. 3 in the suit), filed First Appeal challenging the
judgment rendered by learned Assistant Collector, which
was numbered as Z.A Appeal No. 79/2013-14. Learned
Commissioner, Kumaon Division cursorily dismissed the
appeal vide judgment dated 29.06.2015.
13. Mahendra Singh and Rajvinder Singh, thereafter
filed Second Appeal, which was numbered as SA No. 97
of 2015-16, which was dismissed by learned Board of
Revenue, Uttarakhand Circuit Court, Nainital vide
judgment dated 10.02.2026.
14. Learned counsel for the petitioners submits that
learned Assistant Collector committed manifest error of
law in decreeing the suit based on alleged unregistered
Contract for Sale, even though there was no reference to
such document in the plaint and the contract for sale
was not even exhibited; plaintiff No. 1 in cross-
examination stated that he had original copy of the
Contract for Sale at the time of filing of the suit, but he
did not consider it necessary to place it on record and
Contract for Sale is not available with him now as he lost
the same 2-3 months ago.
15. It is further contended on behalf of petitioners that
since there was no pleading regarding Contract for Sale
in the plaint, therefore, no issue was framed regarding
existence and significance of that document and learned
Assistant Collector erred in decreeing the suit by holding
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that possession based on Contract for Sale is adverse
since very inception. It is thus contended that learned
Assistant Collector erred in law in declaring plaintiffs to
be Bhumidhar on a ground, which was not even pleaded
by the plaintiffs.
16. Learned counsel for the petitioners further submits
that unlike a sale, Contract for Sale/Agreement to Sell in
respect of immovable property of the value of Rs. 100 or
more does not create any interest in favour of proposed
purchaser, hence it cannot be regarded as transfer of
property. He relies upon a judgment rendered by Hon’ble
Supreme Court in the case of Correspondence, RBANMS
Educational Institution Vs. Gunashekar and Another,
reported as 2025 SCC OnLine SC 793. Relevant extract
of para 15.1 of the said judgment is reproduced below:
“ 15.1. Undoubtedly, a sale deed, which amounts to conveyance, has to
be a registered document, as mandated under Section 17 of the Registration
Act, 1908. On the other hand, an agreement for sale, which also requires to
be registered, does not amount to a conveyance as it is merely a contractual
document, by which one party, namely the vendor, agrees or assures or
promises to convey the property described in the schedule of such
agreement to the other party, namely the purchaser, upon the latter
performing his part of the obligation under the agreement fully and in time.
Section 54 of the Transfer of Property Act, 1882 explicitly lays down that a
contract for sale will not confer any right or interest.”
(Emphasis supplied)
17. Learned counsel for the petitioners also placed
reliance upon the judgment rendered by Hon’ble
Supreme Court in the case of Rambhau Namdeo Gajre
Vs. Narayan Bapuji Dhotra (Dead) through LRs, reported
as (2004) 8 SCC 614 regarding the status of a person
claiming protection of Section 53-A of Transfer of
Property Act. Para 10 of the said judgment is reproduced
below:
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“10. Protection provided under Section 53-A of the Act to the
proposed transferee is a shield only against the transferor. It disentitles the
transferor from disturbing the possession of the proposed transferee who is
put in possession in pursuance of such an agreement. It has nothing to do
with the ownership of the proposed transferor who remains full owner of the
property till it is legally conveyed by executing a registered sale deed in
favour of the transferee.”
(Emphasis supplied)
18. Learned counsel for the petitioners submits that
even if it is assumed that plaintiffs were put in
possession over the land in question in part performance
of Contract for Sale, then also their possession will be
permissive and in the absence of any pleading (i)
regarding the date on which their possession became
adverse and (ii) events which changed the nature of
their possession, suit based on plea of adverse
possession could not have been decreed.
19. Learned counsel for the petitioners further submits
that though plaintiffs alleged that they purchased the
land in question with structure standing thereupon from
predecessors-in-interest of defendant No. 3; however,
the nature of document and date of its execution is not
mentioned in the plaint. It is contended that bald
statement regarding adverse possession without
anything else, is not sufficient to decree the suit
20. It is further submitted that Contract for Sale was
introduced by plaintiffs during evidence, but Contract for
Sale in original was never produced before Assistant
Collector and plaintiff No. 1 during cross-examination
stated that original Contract for Sale was available with
him at the time of filing of the suit but it has been lost
thereafter. Thus it is contended that learned Assistant
Collector erred in relying upon inadmissible document
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for decreeing the suit. It is pointed out that as per
deposition of plaintiff witness-Jodha Ram, price of the
land was allegedly settled at more than Rs. 1.00 lakh.
21. Learned counsel for the petitioners further submits
that in State of Uttar Pradesh and Uttarakhand, Contract
for Sale in respect of immovable property is compulsorily
registerable after amendment of Section 17 of
Registration Act, by U.P. Act No. 57 of 1976, effective
from 01.01.1977.
22. Learned counsel for petitioners further submitted
that learned Assistant Collector erroneously over-ruled
the objection raised by petitioners (defendant No. 3)
regarding admissibility of photocopy of Contract for Sale
in evidence by observing that defendant No. 3 could not
cite any provision of law for contending that notarised
photocopy of Contract for Sale is not admissible in
evidence.
23. It is thus contended that a document, which is in-
admissible cannot be read into evidence, merely because
the other party is not able to substantiate his objection
against admissibility of such document. It is thus
contended by learned counsel for the petitioners that
learned Assistant Collector committed manifest error of
law in decreeing the suit by ignoring the unequivocal
stand taken by defendants that plaintiffs were engaged
as bataidar (sharecropper) and possession of
sharecropper or agent is never adverse possession
against the owner of the property.
24. Learned counsel for petitioners further submitted
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that there is no entry regarding possession of plaintiffs
in PA-10 maintained by revenue authorities. Courts
below completely overlooked this aspect while deciding
the proceedings.
25. Per contra, learned counsel for the respondents
contended that Contract for Sale was executed by
predecessors-in-interest of defendant No. 3 in favour of
predecessors-in-interest of plaintiffs on 13.07.1989 and
after paying sale consideration, sale deed was also
executed, therefore plaintiffs’ possession will be treated
as adverse from the very inception. Reliance is placed
upon para 16 and 17 of the judgment rendered by
Hon’ble Supreme Court in the case of State of West
Bengal Vs. Dalhousie Institute Society, reported as
(1970) 3 SCC 802, which are reproduced below:
“16. ....................The possession of the respondent must
have been on the basis of the grant made by the
Government, which, no doubt, is invalid in law. As to what
exactly is the legal effect of such possession has been
Considered by this Court in Collector of Bombay v. Municipal
Corporation of the City of Bombay, 1951 SCC 987 : 1952
SCR 43 : AIR 1951 SC 469 as follows:
“.... the position of the respondent Corporation and its
prodecessor-in-title was that of a person having no legal title but
nevertheless holding possession of the land under colour of an invalid
grant of the land in perpetuity and free from rent for the purpose of a
market. Such possession not being referable to any legal title it was
prima facie adverse to the legal title of the Government as owner of the
land from the very moment the predecessor-in-title of the respondent
Corporation took possession of the land under the invalid grant. This
possession has continued openly, as of right, and uninterruptedly for
over 70 years and the respondent Corporation has acquired the limited
title to it and its predecessor-in-title had been prescribing for during all
this period, that is to say, the right to hold in perpetuity free from rent
but only for the purposes of a market in terms of the Government
Resolution of 1865....”
17. The above extract establishes that a person in such
possession clearly acquires title by adverse possession. In
the case before us there are concurrent findings recorded by
the High Court and the Special Land Acquisition Judge in
favour of the respondent on this point and we agree with
those findings.”
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26. Learned counsel for the respondents further
contends that possession of the plaintiffs was proved by
independent witnesses and loan taken by predecessors-
in-interest of defendant No. 3 against the land in
question, was repaid by the plaintiffs, therefore learned
Assistant Collector rightly decreed the suit.
27. Learned counsel for the respondents also relied
upon the judgment rendered by Hon’ble Supreme Court
in the case of Ravinder Kaur Grewal and others Vs.
Manjit Kaur and others, reported as (2019) 8 SCC 729.
Reliance is placed on following extract of para 62 of said
judgment, which is reproduced below:
“62......In our opinion, consequence is that once the right,
title or interest is acquired it can be used as a sword by the
plaintiff as well as a shield by the defendant within ken of
Article 65 of the Act and any person who has perfected title
by way of adverse possession, can file a suit for restoration
of possession in case of dispossession.”
28. It is further contended that since defendant No. 3
did not file any suit for ejectment against plaintiffs under
Section 209 of Uttarakhand Z.A. & L.R. Act within
limitation period therefore by virtue of provision
contained in Section 210 of said Act, plaintiffs became
bhumidhar with non transferable rights upon expiry of
limitation period. It is further contended that since
defendant No. 3 were given transferable right during
pendency of the suit, therefore learned Assistant
Collector rightly declared plaintiffs as bhumidhar with
transferable rights qua the land in question.
29. Learned counsel for respondents further submitted
that defendant No. 3, although took the stand that
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plaintiffs were inducted as bataidar (sharecropper); but
they were not able to prove that plaintiffs possession
was as bataidar (sharecropper).
30. The contentions raised on behalf of respondents
cannot be accepted. There is no pleading in the plaint
regarding sale deed executed by predecessors-in-
interest of defendant No. 3 in favour of the plaintiffs. It
is also silent regarding contract for sale. Mere statement
that the land in question was purchased by plaintiffs
some 20-22 years ago, without disclosing nature and
date of document is not sufficient for decreeing the suit.
No issue was framed regarding contract for sale or sale
deed by Assistant Collector, therefore the suit could not
be decided based on contract for sale. The finding that
plaintiffs perfected title by adverse possession because a
Contract for Sale was executed in their favour is
unsustainable. The contention that land in question was
purchased by plaintiffs by a written document is not
referable to pleading made in the plaint. Thus the view
expressed in the case of State of West Bengal Vs.
Dalhousie Institute Society (supra) is not attracted to
the facts of the present case.
31. Even otherwise also, learned Assistant Collector has
not referred to alleged sale deed and the suit was
decreed by relying only on Contract for Sale. In fact,
judgments rendered by all the Courts below are silent
regarding sale deed and are based on contract for sale.
32. A contract for sale of immovable property is a
contract that sale of such property shall take place in
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future on terms settled between the parties. It does not
of itself, create any interest in or charge on such
property. A Contract for Sale is merely a document
creating a right to obtain another document of sale on
fulfilment of terms and conditions specified therein. On
execution of contract for sale, a buyer does not become
the owner of the property and ownership remains with
the seller which is transferred to the buyer on execution
of sale deed. The buyer obtains only a right to get the
sale deed executed in his favour.
33. The witnesses examined by plaintiffs stated that
they had seen plaintiffs cultivating the land. None of
them stated that plaintiffs’ possession was adverse to
the true owner. Repayment of loan by plaintiffs, in itself
is not sufficient to declare them as bhumidhar. Learned
counsel for the petitioners denied the contention that
loan was ever repaid by the plaintiffs.
34. Reliance by respondents on judgment rendered by
Hon’ble Supreme Court in the case of Ravinder Kaur
Grewal (supra) is misplaced. What is held in that
judgment is that a person in adverse possession cannot
be evicted even by owner of the property, once 12 years’
period of adverse possession is over. The fact remains
that burden is upon the person who is claiming adverse
possession, to prove that his possession was adverse to
the knowledge of the true owner.
35. Law is well settled that mere possession for a long
time in itself does not create a right in favour of the
person, who claims to be in possession and the burden
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is upon him to plead and prove by cogent and convincing
evidence that he had hostile animus and possession
adverse to the knowledge of real owner.
36. Hon’ble Supreme Court in the case of S.M. Karim
alias Tamanna Sabeb Vs. MST BIBI Sakina, as reported
in 1964 SCC Online SC 255, held as follows :
“5. ...................Adverse possession must be
adequate in continuity, in publicity and extent and a plea
is required at the least to show when possession
becomes adverse so that the starting point of limitation
against the party affected can be found. There is no
evidence here when possession became adverse, if it at
all did, and a mere suggestion in the relief clause that
there was an uninterrupted possession for "several 12
years" or that the plaintiff had acquired "an absolute
title" was not enough to raise such a plea. Long
possession is not necessarily adverse possession and the
prayer clause is not a substitute for a plea. The cited
cases need hardly be considered, because each case
must be determined upon the allegations in the plaint in
that case. It is sufficient to point out that in Bishun
Dayal v. Kesho Prasad the Judicial Committee did not
accept an alternative case based on possession after
purchase without a proper plea.”
(Emphasis supplied)
37. Similarly, Hon’ble Supreme Court in the case of P.T.
Munichikkanna Reddy and others Vs. Revamma and
others, reported as (2007) 6 SCC 59, held as under:
“16. In similar circumstances, in Thakur Kishan Singh v. Arvind
Kumar [(1994) 6 SCC 591] this Court held: (SCC p. 594, para 5)
“ 5 . As regards adverse possession, it was not disputed even by the
trial court that the appellant entered into possession over the land in
dispute under a licence from the respondent for purposes of brick-kiln.
The possession thus initially being permissive, the burden was heavy
on the appellant to establish that it became adverse. A possession of a
co-owner or of a licensee or of an agent or a permissive possession to
become adverse must be established by cogent and convincing
evidence to show hostile animus and possession adverse to the
knowledge of real owner. Mere possession for howsoever length of
time does not result in converting the permissive possession into
adverse possession. Apart from it, the appellate court has gone into
detail and after considering the evidence on record found it as a fact
that the possession of the appellant was not adverse. ”
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(emphasis supplied)
38. Hon’ble Supreme Court in the case of Narasamma
and others Vs. A. Krishnappa (dead) through LRs,
reported as (2020) 15 SCC 218, held that adverse
possession has to be in public and to the knowledge of
the true owner, as plea of adverse possession seeks to
defeat the rights of the true owner. It was further held
that adverse possession has to be specifically pleaded
and proved as to when possession became adverse in
order for the real owner to lose title after 12 years. Para
37 and 38 of the said judgment are extracted below:
“37. The possession has to be in public and to the knowledge of the
true owner as adverse, and this is necessary as a plea of adverse
possession seeks to defeat the rights of the true owner. Thus, the
law would not be readily accepting of such a case unless a clear and
cogent basis has been made out [ M. Siddiq (Ram Janmabhumi
Temple-5 J.) v. Suresh Das , (2020) 1 SCC 1] .
38. We may also note another judicial pronouncement in Ram
Nagina Rai v. Deo Kumar Rai [ Ram Nagina Rai v. Deo Kumar Rai ,
(2019) 13 SCC 324 : (2018) 5 SCC (Civ) 722] dealing with a
similar factual matrix i.e. where there is permissive possession
given by the owner and the defendant claims that the same had
become adverse. It was held that it has to be specifically pleaded
and proved as to when possession becomes adverse in order for the
real owner to lose title 12 years hence from that time.”
(Emphasis supplied)
39. In the present case, the documents dated
13.07.1989 and 23.05.1990 were neither referred to in
the plaint nor any issue was framed regarding those
documents, therefore, learned Assistant Collector
committed grave error of law in decreeing the suit by
relying on said documents.
40. Non filing of ejectment suit under Section 209 of
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Z.A. Act within limitation period by itself will not create
any right in favour of plaintiffs, if their possession is
permissive in nature. Thus there was heavy burden upon
plaintiffs to prove that their possession became adverse
from a particular date. Plaintiffs have to stand on their
feet by making necessary pleadings. The plaint however
falls short of what is required to be pleaded for claiming
adverse possession.
41. In the case of Kishundeo Rout and others Vs.
Govind Rao and others, reported as 2025 SCC OnLine
SC 1665, Hon’ble Supreme Court reiterated that
foundation for plea of adverse possession must be laid in
the pleadings and an issue must also be framed and
tried. Para 19 and 20 of the said judgment are extracted
below:
“19. It is a settled position of law that the foundation for the plea of adverse
possession must be laid in the pleadings and then an issue must be framed
and tried. A plea not properly raised in the pleadings or in issues at the stage
of trial would not be permitted to be raised for the first time at the stage of
First Appeal under Section 96 of the Code of Civil Procedure ( CPC ).
20. The plea of adverse possession is not always a legal plea. Indeed, it is
always based on facts which must be asserted and proved. A person who
claims adverse possession must show on what date he came into possession,
what was the nature of his possession, whether the factum of his possession
was known to the legal claimants and how long his possession continued.
He must also show whether his possession was open and undisturbed. These
are all questions of fact and unless they are asserted and proved, a plea of
adverse possession cannot be inferred from them. Therefore, in normal
cases an appellate Court will not allow the plea of adverse possession to be
raised before it. There is no doubt some cases in which the plea will be
allowed because in some form the allegation upon which it can be raised
was made at the time and the facts necessary to prove the plea were brought
before the court and proved.”
(Emphasis supplied)
42. In the case of State of Kerala and another Vs.
Joseph and others, reported as (2023) 17 SCC 400,
Hon’ble Supreme Court held that possession of an agent
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or a permissive possession to become adverse must be
established by cogent and convincing evidence to show
hostile animus and possession adverse to the knowledge
of real owner; mere possession for howsoever length of
time does not result in converting permissive possession
into adverse possession. Para 32 and 33 of the said
judgment are reproduced below:
The person claiming adverse possession must show clear
“32.
and cogent evidence to substantiate such claim. This Court
in Kishan Singh v. Arvind Kumar [ Kishan Singh v. Arvind
Kumar , (1994) 6 SCC 591] (two-Judge Bench) held that : (SCC
p. 594, para 5)
“ 5 . … A possession of a co-owner or of a licensee or of an
agent or a permissive possession to become adverse must be
established by cogent and convincing evidence to show hostile
animus and possession adverse to the knowledge of real owner.
Mere possession for howsoever length of time does not result in
converting the permissive possession into adverse possession.”
(emphasis supplied)
Reference may also be made to M. Siddiq [ M. Siddiq (Ram
Janmabhumi Temple-5 J.) v. Suresh Das , (2020) 1 SCC 1] .
33. Mere possession over a property for a long period of time
does not grant the right of adverse possession on its own.
In Gaya Parshad Dikshit v. Nirmal Chander [ Gaya Parshad
Dikshit v. Nirmal Chander , (1984) 2 SCC 286] (two-Judge
Bench), this Court observed : (SCC p. 287, para 1)
“ 1 . … It is not merely unauthorised possession on
termination of his licence that enables the licensee to claim title
by adverse possession but there must be some overt act on the
part of the licensee to show that he is claiming adverse title. It is
possible that the licensor may not file an action for the purpose of
recovering possession of the premises from the licensee after
terminating his licence but that by itself cannot enable the
licensee to claim title by adverse possession. There must be some
overt act on the part of the licensee indicating assertion of
hostile title. Mere continuance of unauthorised possession even
for a period of more than 12 years is not enough .”
(emphasis supplied)
Reference may also be made to Arvind Kumar [ Kishan
Singh v. Arvind Kumar , (1994) 6 SCC 591]
; Mallikarjunaiah v. Nanjaiah [ Mallikarjunaiah v. Nanjaiah ,
(2019) 15 SCC 756 : (2020) 2 SCC (Civ) 424] (two-Judge
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Bench); Uttam Chand [ Uttam Chand v. Nathu Ram , (2020) 11
SCC 263 : (2021) 1 SCC (Civ) 520] .
43. Provisions of Code of Civil Procedure, 1908 are
applicable to proceedings under Uttarakhand Zamindari
Abolition and Land Reforms Act, 1950 as per Section
341 of that Act. While deciding declaratory suit filed
under Section 229-B of Z.A. Act, learned Assistant
Collector cannot travel beyond pleadings and the issues
framed.
44. Hon’ble Supreme Court in the case of Ponnayal
alias Lakshmi v. Karuppannan , reported as 2019 (11)
SCC 800 held as under:-
“11. ……………. As the said two documents were neither part
of the pleadings in the Suit nor was an issue framed
regarding the said documents, we are afraid that we cannot
adjudicate on the issues pertaining to the said documents.
Civil Suits are decided on the basis of pleadings and the
issues framed and the parties to the Suit cannot be
permitted to travel beyond the pleadings.”
(Emphasis Supplied)
45. Similar view was expressed by Hon’ble Supreme
Court in the case of Maria Margarida Sequeira
Fernandes v. Erasmo Jack de Sequeira,
reported as 2012 (5) SCC 370. Relevant extract
of the said judgment is reproduced below:
“74. If the pleadings do not give sufficient details,
they will not raise an issue, and the court can reject the
claim or pass a decree on admission. On vague pleadings,
no issue arises. Only when he so establishes, does the
question of framing an issue arise. Framing of issues is an
extremely important stage in a civil trial. Judges are
expected to carefully examine the pleadings and documents
before framing of issues in a given case.
75. In pleadings, whenever a person claims right to
continue in possession of another property, it becomes
necessary for him to plead with specificity about who was
the owner, on what date did he enter into possession, in
what capacity and in what manner did he conduct his
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relationship with the owner over the years till the date of
suit. He must also give details on what basis he is claiming
a right to continue in possession. Until the pleadings raise a
sufficient case, they will not constitute sufficient claim of
defence.”
(Emphasis Supplied)
46. Plaintiffs in the suit (respondent Nos. 1 and 2
herein) asserted in para 1 of the plaint that their
predecessor-in-interest purchased the land in question
from predecessors-in-interest of defendant No. 3;
however, in para 4 of the plaint, they took inconsistent
plea of adverse possession.
47. In the case of Karnataka Board of Wakf v. Govt.
of India, reported as 2004 (10) SCC 779, Hon’ble
Supreme Court held that the plea of title and
adverse possession cannot co-exist, a s the latter
does not begin to operate until the former is
renounced. Para 12 of the said judgment is
reproduced below:
“ 12. A plaintiff filing a title suit should be very clear about the
origin of title over the property. He must specifically plead it. (See S.M.
Karim v. Bibi Sakina [AIR 1964 SC 1254] .) In P. Periasami v. P.
Periathambi [(1995) 6 SCC 523] this Court ruled that:
“Whenever the plea of adverse possession is projected, inherent in the plea
is that someone else was the owner of the property.”
The pleas on title and adverse possession are mutually inconsistent and the
latter does not begin to operate until the former is renounced. Dealing
with Mohan Lal v. Mirza Abdul Gaffar [(1996) 1 SCC 639] that is similar to
the case in hand, this Court held:
“ 4 . As regards the first plea, it is inconsistent with the second plea. Having
come into possession under the agreement, he must disclaim his right
thereunder and plead and prove assertion of his independent hostile adverse
possession to the knowledge of the transferor or his successor in title or
interest and that the latter had acquiesced to his illegal possession during the
entire period of 12 years i.e. up to completing the period his title by
prescription nec vi, nec clam, nec precario . Since the appellant's claim is
founded on Section 53-A, it goes without saying that he admits by
implication that he came into possession of land lawfully under the
agreement and continued to remain in possession till date of the suit.
Thereby the plea of adverse possession is not available to the appellant.”
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(Emphasis Supplied)
48. Similar view was expressed in the case of Kesar
Bai v. GendaLal and another, reported as 2022
(10) SCC 217. Relevant extract of para no. 7 of the
said judgment is extracted below:-
“7. … The High Court has specifically observed and held that the
plea of ownership based on sale deed and plea of adverse possession, both,
are contrary to each other and the plaintiffs cannot be permitted to take both
the pleas at the same time. Therefore, even as per the High Court, the claim
of the plaintiffs on the basis of the adverse possession was not tenable.”
49. Section 54 of Transfer of Property Act, 1882 which
defines ‘Sale’ expressly provides that a contract for sale
of immovable property does not, by itself, create any
interest in or charge on such property. In other words, it
does not convey title. The finding returned by learned
Trial Court that possession of the plaintiffs based on
Contract for Sale dated 13.07.1989 and 23.05.190 is
adverse from day one, thus is unsustainable in the eyes
of law.
50. Possession based on Contract for Sale is
permissive. Hon’ble Supreme Court in the case of State
Bank of Travancore v. Aravindan Kunju Panicker,
reported as (1972) 4 SCC 274 held that permissive
possession cannot be converted into adverse possession
unless it is proved that person in possession asserted as
adverse title to the property to the knowledge of true
owner. Relevant extract of para 9 is extracted below:
“9. .............A permissive possession cannot be converted into an
adverse possession unless it is proved that the person in possession asserted
an adverse title to the property to the knowledge of true owners for a period
of twelve years or more. There is no evidence to show that either Krishnan
Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property
to the knowledge of the true owners at any time before the present suit.”
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51. Mere possession for a long time does not result in
converting permissive possession into adverse
possession. In the case of Bhura Mogiya and others Vs.
Satish Pagariya and others, reported as (2001) 9 SCC
385, Hon’ble Supreme Court held that permissive
possession cannot be converted into adverse possession
unless it is proved that person in possession asserted
and acquired adverse title to the property, to the
knowledge of the true owner for a period of 12 years
and above. Para 5 of the said judgment is extracted
below:
“5. Learned counsel then urged that in any case the defendants having
remained in possession for a considerable period of time, more than 12
years, thereby acquired title by adverse possession. Admittedly, the
defendants came into possession on the basis of agreement, which was a
permissible possession. Once the defendants’ possession was by virtue of an
agreement it is not open to them to take a plea that they acquired title by
adverse possession. Permissible possession cannot be converted into
adverse possession unless it is proved that the person in possession asserted
and acquired adverse title to the property to the knowledge of the true owner
for a period of 12 years and above. We do not find any merit in the
contention of the learned counsel for the appellant.”
(Emphasis supplied)
52. Similar view was expressed by Hon’ble Supreme
Court in the case of Achal Reddy Vs. Ramakrishna
Reddiar, reported as (1990) 4 SCC 706. Relevant extract
of para 9 of the said judgment is extracted below:
“9. ………… The purchaser who got into possession under an
executory contract of sale in a permissible character cannot be
heard to contend that his possession was adverse. In the conception
of adverse possession there is 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 a
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. Adverse possession implies that it
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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.”
53. The finding returned by learned Assistant Collector
is unsustainable. It is settled law that possession based
on Contract for Sale is permissive and in the absence of
any pleading regarding the date from which possession
of the plaintiffs became adverse, the suit could not have
been decreed. Moreover, in the absence of any issue
regarding contract for sale, the suit could not have
decided by holding that possession based on contract for
sale is adverse.
54. Learned Commissioner, Kumaon decided the First
Appeal filed by petitioners without adverting to the
findings returned by Assistant Collector. No points for
determination were formulated while deciding the first
appeal, even though provisions of Code of Civil
Procedure are made applicable by Section 341 of Z.A.
Act.
55. Learned Commissioner has cursorily dismissed the
appeal by holding that plaintiffs are in continuous
possession over the land in question ever since
execution of Contract for Sale on 13.07.1989, without
examining whether long possession in itself is sufficient
for decreeing the declaratory suit in which title is
claimed based on adverse possession.
56. Learned Board of Revenue dismissed the Second
Appeal filed by petitioners without considering the
relevant aspects. Although 09 questions of law were
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formulated and reproduced in the judgment, however,
there is no discussion on those questions. Learned Board
of Revenue also dismissed the appeal by holding that
plaintiffs are continuing in possession over the land in
question for sufficiently long period of time.
57. In para 3 and 5 of the plaint, plaintiffs asserted that
the land in question is recorded as category ‘2’ in
revenue records. This is an admission on the part of
plaintiffs that the land was not transferable. Defendant
No. 3 admitted that he was not having transferable
rights, even though he was recorded as bhumidhar.
Section 152(2) of Z.A. Act deals with bhumidhar with
non transferable rights. Section 166 of Z.A. Act provides
consequence of transfer made in contravention of
provisions of the Act. Learned Assistant Collector,
learned Commissioner and learned Board of Revenue,
however, have overlooked this vital aspect of the matter,
therefore the matter deserves to be remanded to
Assistant Collector-I Class.
58. In the case of Estralla Rubber V. Dass Estate (P)
Limited, reported as (2001) 8 SCC 97, Hon’ble Supreme
Court held that exercise of power under Article 227 of
the Constitution of India involves a duty on the High
Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the
duty expected or required of them in a legal manner. It
was further held that exercise of this power and
interfering with orders of the courts or tribunals is
restricted to cases of serious dereliction of duty and
flagrant violation of fundamental principles of law or
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justice, where if the High Court does not interfere, a
grave injustice remains uncorrected.” Para 6 of the said
judgment is reproduced below:
“6. The scope and ambit of exercise of power
and jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of power
under this article involves a duty on the High Court to
keep inferior courts and tribunals within the bounds of
their authority and to see that they do the duty expected
or required of them in a legal manner. The High Court is
not vested with any unlimited prerogative to correct all
kinds of hardship or wrong decisions made within the
limits of the jurisdiction of the subordinate courts or
tribunals. Exercise of this power and interfering with the
orders of the courts or tribunals is restricted to cases of
serious dereliction of duty and flagrant violation of
fundamental principles of law or justice, where if the
High Court does not interfere, a grave injustice remains
uncorrected. It is also well settled that the High Court
while acting under this article cannot exercise its power
as an appellate court or substitute its own judgment in
place of that of the subordinate court to correct an error,
which is not apparent on the face of the record. The High
Court can set aside or ignore the findings of facts of an
inferior court or tribunal, if there is no evidence at all to
justify or the finding is so perverse, that no reasonable
person can possibly come to such a conclusion, which
the court or tribunal has come to.
59. Similarly, in the case of M/s Garment Craft Vs.
Prakash Chand Goel, reported as (2022) 4 SCC 181,
Hon’ble Supreme Court held that jurisdiction exercised
under Article 227 of the Constitution is in the nature of
correctional jurisdiction to set right grave dereliction of
duty or flagrant abuse, violation of fundamental
principles of law or justice. It was further held that the
power under Article 227 is exercised sparingly in
appropriate cases, like when there is no evidence at all
to justify, or the finding is so perverse that no
reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It was
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further held that it is axiomatic that such discretionary
relief must be exercised to ensure there is no
miscarriage of justice. Para 15 of the said judgment is
reproduced below:
“15. Having heard the counsel for the parties, we
are clearly of the view that the impugned order [Prakash
Chand Goel v. Garment Craft, 2019 SCC OnLine Del
11943] is contrary to law and cannot be sustained for
several reasons, but primarily for deviation from the
limited jurisdiction exercised by the High Court under
Article 227 of the Constitution of India. The High Court
exercising supervisory jurisdiction does not act as a
court of first appeal to reappreciate, reweigh the
evidence or facts upon which the determination under
challenge is based. Supervisory jurisdiction is not to
correct every error of fact or even a legal flaw when the
final finding is justified or can be supported. The High
Court is not to substitute its own decision on facts and
conclusion, for that of the inferior court or tribunal.
[Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar,
(2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The
jurisdiction exercised is in the nature of correctional
jurisdiction to set right grave dereliction of duty or
flagrant abuse, violation of fundamental principles of law
or justice. The power under Article 227 is exercised
sparingly in appropriate cases, like when there is no
evidence at all to justify, or the finding is so perverse
that no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is
axiomatic that such discretionary relief must be
exercised to ensure there is no miscarriage of justice.
60. As discussed above, judgment rendered by learned
Assistant Collector is contrary to fundamental principles
of law and the finding are so perverse that no
reasonable person can possibly come to such a
conclusion based on the case set up by the parties.
Therefore this Court thinks that hands-off approach, if
adopted by this Court, will result in grave injustice
remaining uncorrected.
61. In such view of the matter, impugned judgment and
orders, passed by learned Assistant Collector, First Class,
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Haldwani, as affirmed by learned Commissioner, Kumaon
and learned Board of Revenue, are liable to be set aside
and are hereby set aside.
62. Writ petition is allowed.
63. The matter is remanded to learned Assistant
Collector, First Class, Haldwani, who shall decide the suit
afresh, as per law.
______________________________
MANOJ KUMAR TIWARI, J.
Dt: 15.09.2026
Mahinder
MAHINDER SINGH
Digitally signed by MAHINDER SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f031a92d1a18b08923c, postalCode=263001,
st=UTTARAKHAND, serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC4626D305B1BC9EA4BABA43D2B8F,
cn=MAHINDER SINGH
Date: 2026.09.15 20:14:27 +05'30'
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