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Bharit v. Board Of Revenue, U.P. At Allahabad
Factual and Procedural Background
This reference to a larger Bench arose from a writ petition challenging determinations in a suit for ejectment and possession under Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act. The respondents (plaintiff-respondents) claimed to be occupancy tenants of disputed plots and, on 18 October 1948, executed a deed purporting to sell their rights in those plots in favour of one Jagan (the petitioners' father). The respondents contended that such a sale of occupancy was prohibited and therefore illegal, but that the transferees remained in permissive possession as licensees; when the licence was revoked by institution of the suit, the transferees allegedly became trespassers. Suit for ejectment was instituted in 1956 against the sons of Jagan after his death.
At trial the suit was dismissed. On appeal, the appellate court decreed the suit and the Board of Revenue affirmed that decree. The Board of Revenue relied upon a Single Judge decision in Chidda v. Joint Director of Consolidation (1968 R.D. 205) to hold that though the sale was illegal, the transferees' possession was permissive (as licensees) and was revoked by institution of the suit. The learned Single Judge hearing the writ petition referred two specific legal questions to a larger Bench after finding that a Supreme Court decision raised doubt about Chidda's correctness.
Legal Issues Presented
- Whether on the facts and in the circumstances of this case the possession of Jagan from the date of the transfer of occupancy tenancy in his favour would be permissible on behalf of the transferor or adverse to his interests?
- In case the possession of the original transferee was permissive in its nature will the possession of his heirs subsequent to his death continue to be permissive or will it become adverse to the rights of the original transferor?
Arguments of the Parties
Respondents' (Plaintiff-Respondents') Arguments
- The sale of occupancy rights was prohibited by law and therefore the deed was illegal.
- Notwithstanding illegality, the transferees' possession was permissive and amounted to possession as licensees.
- Because the licence was revoked (by institution of the suit), the transferees (and their successors) were no longer entitled to remain in possession and became trespassers.
Petitioners' Arguments / Position Before the Single Judge
- The petitioners relied upon a certain decision of the Supreme Court which, in the view of the learned Single Judge, cast doubt upon the validity of the view taken in Chidda's case.
- On that basis the learned Single Judge referred the two questions to a larger Bench.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chidda v. Joint Director of Consolidation . 1968 R.D 205. | The Single Judge in Chidda held that where a transferee entered possession under a transfer later found invalid, such possession was ordinarily permissive and on behalf of the transferor (i.e., not adverse). | The Bench held that Chidda's statement on permissive possession does not lay down the law correctly in relation to sale transfers; the court rejected Chidda so far as it decided that possession of the transferee was permissive vis-à-vis the transferor. |
| Collector of Bombay v. Municipal Corporation of the City of Bombay . ???. | The Supreme Court observed that possession under an invalid grant, not referable to any legal title, is prima facie adverse to the legal title of the owner and, where continued openly and as of right for the requisite period, gives rise to title by adverse possession. | The court relied on this authority to conclude that a transferee who asserts ownership under an invalid sale-deed holds possession adverse to the transferor from the moment of entry, rather than permissively on the transferor's behalf. |
| State Of West Bengal v. Dalhousie Institute Society . ???. | The Supreme Court affirmed that a person in possession under an invalid grant could acquire title by adverse possession; it endorsed the principle set out in Collector of Bombay. | The Bench cited this affirmation to reinforce the conclusion that possession under an invalid transfer is adverse and can ripen into title by adverse possession; this supported the court's rejection of the permissive-possession view in Chidda. |
Court's Reasoning and Analysis
The court analyzed the nature of possession arising from a sale (even an invalid sale) and the legal consequences of the transferee's subjective claim to ownership under the sale-deed. The reasoning proceeded as follows:
- The court observed that when a person executes and delivers a deed of sale of his rights and interest, the transferee is put in a position to claim possession in accordance with the terms of the sale — namely, as owner of the rights transferred.
- Even if the sale-deed is legally invalid, the transferee nevertheless claims to remain in possession as owner under the terms of that deed; such possession is not referable to any title retained by the transferor.
- Because the transferee's possession is predicated on a claim of ownership inconsistent with continued ownership by the transferor, it is prima facie adverse to the transferor from the moment the transferee enters possession.
- The court relied on the Supreme Court's decision in Collector of Bombay (and its affirmation in State of West Bengal v. Dalhousie Institute Society) which held that possession under an invalid grant was adverse and could ripen into title by adverse possession, to support this conclusion.
- The court concluded that the principle in Chidda (that transferee possession under an invalid transfer is permissive) was incorrect so far as it reached that conclusion in the context of sale transfers; Chidda was therefore not a correct statement of law on that point.
- The court applied these principles to the facts before it and concluded that Jagan's possession from the date of the transfer of tenancy rights was adverse to the transferor rather than permissive on the transferor's behalf.
- Because the court's answer to the first question disposed of the principal legal point, the second referred question (concerning the nature of possession of heirs after the transferee's death) was held not to arise and was left unanswered.
Holding and Implications
Holding: The Bench answered the first referred question in the negative to the permissive-possession theory: the possession of Jagan from the date of the transfer of occupancy tenancy was adverse to the transferor and was not permissive on behalf of the transferor.
The second referred question was not answered because it did not arise once the court resolved the first question.
Implications:
- The court rejected the legal proposition in Chidda so far as it held that possession by a transferee under an invalid sale was permissive vis-à-vis the transferor; instead the court treated such transferee possession as prima facie adverse.
- Direct procedural consequence: the papers were ordered to be placed before the learned Single Judge for decision on the merits of the underlying suit in light of the Bench's legal conclusions.
Question answered.
Satish Chandra, J.:— A learned Single Judge has referred the following two questions of law to a larger Bench:
“(1) Whether on the facts and in the circumstances of this case the possession of Jagan from the date of the transfer of occupancy tenancy in his favour would be permissible on behalf of the transferor or adverse to his interests?
(2) In case the possession of the original transferee was permissive in its nature will the possession of his heirs subsequent to his death continue to be permissive or will it become adverse to the rights of the original transferor?”
2. The writ petition in which the reference has been made arose out of a suit for ejectment and possession under Sec. 209 of the U.P Zamindari Abolition and land Reforms Act filed by he respondents. The plaintiff respondents claimed to be occupancy tenants of the plots in dispute. On 18th October 1948 they executed a deed of sale of their rights in the plots in dispute in favour of the one Jagan, the father of the petitioners. The plaintiff-respondents' case was that the sale of occupancy being prohibited by law the sale was illegal; but nonetheless the possession of the transferees was permissive and as a licensee. The licence having been revoked, the transferees were no longer entitled to remain in possession. The present suit was instituted against the sons of Jagan after his death, in 1956.
3. The trial court dismissed the suit. On appeal it was, however, decreed. The appellate decree was affirmed by the Board of Revenue. The Board of Revenue has relied upon a Single Judge decision of this Court in Chidda v. Joint Director of Consolidation . 1968 R.D 205. and has held that the sale was illegal because the transfer of occupancy tenancy was prohibited, yet the possession of the transferees amounted to a permissive possession and on behalf of the transferor or tenants. Their possession being as licensees, the said license stood revoked by the institution of the suit and consequently the transferees were trespassers after the revocation of the licence.
4. At the hearing of the writ petition before the learned Single Judge reliance was placed on behalf of the petitioners on a certain decision of the Supreme Court which in the opinion of the learned Single Judge cast doubt on the validity of the view taken in Chidda's case. He consequently referred the two questions mentioned above to a larger Bench. This is how the petition has come up before this Bench.
5. In Chidda's case a tenant co-opted Chidda as a co-tenant. Shortly thereafter he executed a sale-deed in favour of Chidda transferring his remaining interest in the tenancy plots. On these acts the learned Judge held:
“It will be seen that the petitioners entered into possession, if at all, with the permission of the landlord Chandrika Prasad and Kunwar Sen, the tenant-in-chief in the year 1948 under a written agreement. The petitioners' possession over the other half of the tenancy was by reason of the fact that he purported to have purchased the same from Kunwar Sen under a sale-deed. Mr. Kazmi has not been able to cite any authority before me to show as to how in these circumstances the possession of his client could be said to be adverse.”
6. The learned Judge proceeded to hold:
“Ordinarily when a person enters into possession under an instrument of transfer which is subsequently found to be invalid, then the title remains with the transferor, even though the possession might be of the transferee, but such a possession would in law be a permissive possession being on behalf of the transferor. It cannot be said to be adverse to the transferor.”
7. In our opinion this decision does not lay down the law correctly. A similar question arose before the Supreme Court in Collector of Bombay v. Municipal Corporation of the City of Bombay . ???.. The Court observed:
“…….. the position of the respondent Corporation and the predecessor 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 the land in perpetuity free from rent but only for the purposes of market in terms of the Government Resolution of 1885……..”
8. This view of the Supreme Court was affirmed by it in State Of West Bengal v. Dalhousie Institute Society . ???.. Where it was held that the above extract established that a person in possession under an invalid grant acquired title by adverse possession.
9. The reason is not far to seek. If a person executes a deed of sale of his rights and interest he purports to transfer all that he possesses in the property which is the subject-matter of the sale. The transferee claimed prima facie to remain in possession in accordance with the terms of the deed of sale, namely, as the full owner of the rights which were the subject-matter of transfer. In case the sale is found to be invalid for any reason the passing of the title may be frustrated; but nonetheless the transferee claimed to remain in possession in accordance with the terms of the invalid sale-deed, namely as the full owner of the rights in the plots, which were the subject-matter of sale. It is from this point of view that it has been said that the possession of such a transferee is adverse to the transferor from the very first day when the transferee enters possession of the land.
10. The possession of a transferee in the case of sale is not on behalf of the transferor, because the transferor has purported to part with his entire interest in the property. The transaction did not create or retain any privity between the parties. In such a situation, the transferee's possession could not in law, be on behalf of the transferor. The transferee remains in possession in his own claim based on the terms of the sale. If the document of sale is invalid the transferee gets no title under it. His possession will not be referable to any legal title; it would be adverse to the transferor.
11. In the present case the sale-deed was in respect of tenancy right. After the lapse of the two year prescribed period of limitation, the transferee acquired under Sec. 180(2) of the U.P Tenancy Act, hereditary tenancy rights. In our opinion Chidda's case in so far as it decided that Chidda's possession was permissive in relation to the portion which was the subject-matter of the sale does not lay down the law correctly.
12. We would answer the first question by saying that the possession of Jagan from the date of the transfer of occupancy tenancy was adverse to the transferor and was not permissive on behalf of the transferor.
13. In view of our answer to the first question question No. 2 does not arise and need not be answered. The papers may now be laid before the learned Single Judge for the decision of the case on merits.
Question answered.
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