# Laharia v. State of Madhya Pradesh and

- **Citation:** (2003) 2 ILRA 438
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-16
- **Case number:** Civil Misc. Writ Petition No. 4222 of 1975
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/laharia-v-state-of-madhya-pradesh-and-40114
- **Pages:** 11

## Headnote

Sri Shankata Rai
Sri K.M. Sahai
Sri C.K. Rai
Sri R.M. Sahai
Sri A.K. Banerji
Counsel for the Opposite Parties
Sri R.K. Misra
Sri N.K. Srivastava
Sri Neraj Agarwal
Sri S.N. Agarwal
S.C.

U.P. Zamindari Abolition Act and Land
Reform Act- Sec. 209- Limitation for
brining the suit 3 years- Petitioner being
minor- can not file the suit after elapsed
of 8 years from the date of attaining the
majority.

Held- Para 15

In the present case, admittedly no suit
was filed by respondent no. 4 under
section 209 of U.P. Zamindari Abolition &
Land
Reforms
Act.
After
issue
of
notification dated 29.4.1969, more than
8 years clasped from attaining majority
by respondent no. 4. Period of limitation
as prescribed under Section 209 of U.P.
Zamindari Abolition and Land Reforms
Act
was
six
years,
but
since
the
respondents was under disability he was
entitled to the benefit of section 6 of
limitation Act which enable him to file
the suit within three years from attaining
majority.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
438
unnecessary interference by a superior
court and the entire evidence from the
prosecution side should be placed on
record. Any attempt by an accused for
quashing of a charge before the entire
prosecution evidence has come on record,
should not be entertained sans exceptional
cases."

11. Similar view was taken by the
Apex Court in the cases of Ram Kumar
Laharia Vs. State of Madhya Pradesh and
another [2001 (42) ACC 469) and Smt.
Omwati and another Vs. State (Delhi
Administration) and others [2001 (42)
ACC 840].

12. Thus the allegation set forth in
the F.I.R. and coupled with the evidence
collected during investigation is sufficient
to frame the charge and order of the trial
court does not call for any interference.

Consequently, both the revisions no.
472 of 2003 and 487 of 2003 are devoid
of merit and are hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.5.2003

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 4222 of 1975

Ram Narain

...Petitioner
Versus
Dy. Director of Consolidation, Kanpur
and others

 ...Opposite Parties

Counsel for the Petitioner:
Sri Shankata Rai
Sri K.M. Sahai
Sri C.K. Rai
Sri R.M. Sahai
Sri A.K. Banerji
Counsel for the Opposite Parties
Sri R.K. Misra
Sri N.K. Srivastava
Sri Neraj Agarwal
Sri S.N. Agarwal
S.C.

U.P. Zamindari Abolition Act and Land
Reform Act- Sec. 209- Limitation for
brining the suit 3 years- Petitioner being
minor- can not file the suit after elapsed
of 8 years from the date of attaining the
majority.

Held- Para 15

In the present case, admittedly no suit
was filed by respondent no. 4 under
section 209 of U.P. Zamindari Abolition &
Land
Reforms
Act.
After
issue
of
notification dated 29.4.1969, more than
8 years clasped from attaining majority
by respondent no. 4. Period of limitation
as prescribed under Section 209 of U.P.
Zamindari Abolition and Land Reforms
Act
was
six
years,
but
since
the
respondents was under disability he was
entitled to the benefit of section 6 of
limitation Act which enable him to file
the suit within three years from attaining
majority.

(Delivered by Hon'ble Ashok Bhusan, J.)

Heard Sri Shankata Rai, learned
counsel for the petitioner and Sri
Nagendra Kr. Srivastava, learned counsel
appearing for respondent no. 4.

By this writ petition, the petitioner
has prayed for quashing of the order dated
25.2.1975 passed by Deputy Director of
Consolidation
and
the
order
dated
15.1.1971 passed by Settlement Officer of
Consolidation.

Brief facts which emerge from the
pleading of parties are;
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2 All] Ram Narain V. Dy. Director of Consolidation, Kanpur and others
439
(1) Dispute in writ petition relates of
plots of Khata No. 46 namely plot no.
210,
223,
331,
353
and
378/2.
Notification under section 4 of the U.P.
Consolidation of Holdings Act 1953
herein after referred to as Consolidation
Act was published in the U.P. Gazette
dated 10.5.1969. In the basic year records
the name of petitioner Ram Narain was
recorded over land of Khata in dispute.
An
objection
under
section
9
of
Consolidation
Act
was
filed
by
respondent no. 4 who stated in the
objection that name of petitioner is
wrongly recorded over land in dispute. It
was stated that the land was earlier
recorded in the name of Smt. Ganga Devi,
step mother of Babu Ram, respondent no.
4 and she having no authority to transfer
the land executed sale deed in favour of
the petitioner. It was claimed that land
originally belongs to Raja Ram father of
respondent no. 4 and respondent no. 4
being heir of Raja Ram is entitled for the
land in dispute. It was further claimed that
Smt. Ganga Devi, step mother of
petitioner was only looking after the land
during period of minority of respondent
no. 4. The objection filed by respondent
no. 4 was contested by the petitioner. It
was claimed that Smt. Ganga Devi had
acquired the land in dispute from whom
petitioner purchase the land by registered
sale deed dated 28.6.1967. Both the
parties led oral as well as documentary
evidence
before
the
Consolidation
Officer. The Consolidation Officer vide
his order dated 13.5.1970 rejected the
objection of respondent no. 4. The
Consolidation Officer directed that entry
in the name of the petitioner shall
continue.
The
Consolidation
Officer
recorded the finding that land in dispute
was self-acquisition of Smt. Ganga Devi.
The Consolidation Officer held that
respondent no. 4 having not filed suit for
possession for 8 years after attaining
majority, he is debarred from recovery of
possession of the land in dispute. The
Consolidation Officer also noted in his
judgement that name of Smt. Ganga Devi
was recorded under the orders dated
14.12.1954 case no. 235/3094 passed by
Tahsildar.

2. An appeal was filed before the
Settlement Officer of Consolidation by
respondent no. 4 who vide order dated
15.1.1971 allowed the appeal setting aside
the order of Consolidation Officer. The
settlement
Officer
of
Consolidation
directed recording of name of respondent
no. 4 in place of the petitioner. A revision
was filed by the petitioner which was
dismissed by the order of Deputy Director
of Consolidation vide his order dated
17.4.1971. The petitioner filed a writ
petition no. 3076 of 1971 challenging the
order
of
Deputy
Director
of
Consolidation.
This
Court
vide
its
judgement dated 19.4.1973 allowed the
writ petition filed by petitioner by setting
aside the order of Deputy Director of
Consolidation dated 17.4.1971. The case
was remitted to the revisional court for
deciding the revision afresh according to
law. Copy of judgment of the High court
has been annexed as annexure-4 to the
writ petition.

3. After the remand by the High
Court,
the
Deputy
Director
of
Consolidation
vide
his
order
dated
25.2.1975 dismissed the revision of
petitioner.
The
Deputy
Director
of
Consolidation in his order observed that it
is acceptable to both the counsels that
land in dispute was acquisition of Raja
Ram.
The
Deputy
Director
of
Consolidation further held that adverse
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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possession of the petitioner can at best be
treated with effect from 1967 when sale
deed was executed in his favour by Smt.
Ganga Devi and since consolidation
operation started in the Village in 1969,
the revision of the petitioner is liable to be
dismissed. The Deputy Director of
Consolidation
further
observed
that
respondent no. 4 Babu Ram cannot be
held responsible for litigation started by
Smt. Kailasa the mother of respondent no.
4 against Smt. Ganga Devi. It has further
been observed that there is no evidence
that there has been any litigation between
respondent no. 4 and Ganga Devi after
1959 when Babu Ram attained majority.
This writ petition has been filed by the
petitioner challenging the order of Deputy
Director of Consolidation dated 25.2.1975
as well as the order of Settlement Officer
of Consolidation.

4. It is also necessary to note certain
more relevant facts which are on the
record for appreciating the controversy
between the parties. On the land in
dispute, the name of Ram Swaroop was
recorded as tenant who died before
abolition of Zamindari. It has come in the
evidence that Raja Ram, husband of Smt.
Kailasa and Smt. Ganga Devi was in
possession from 1357 to 1361, Fasli. Raja
Ram also died and after the death of Raja
Ram.
Smt.Ganga
Devi
filed
an
application for recording her name before
the revenue officer on which an order was
passed on 14.12.1954 for recording the
name of Smt. Ganga Devi as Sirdar. The
name of Ganga Devi is recorded from
1362 fasli onwards. A dispute under
section 145 Cr.P.C. started regarding
possession of land in dispute between
Smt. Ganga Devi and Smt. Kailasa under
section 145 Cr.P.C. By the order of the
Sub
Divisional
Magistrate
dated
25.7.1955 Smt. Ganga Devi was declared
in possession. A suit no. 858/1955 was
filed by Babu Ram (as minor in
guardianship of Smt. Kailasa against Smt.
Ganga Devi with regard to other lands).
Babu Ram attained majority on 20.5.1959
having been born on 21.5.1941. A sale
deed was executed by Smt. Ganga Devi in
favour of petitioner in the year 1957. An
application for mutation was given by the
petitioner on the basis of sale deed. The
said mutation application was allowed by
the order dated 14.2.1969 passed by Sub
Divisional Officer. Notification dated
29.4.1969
was
issued
under
the
Consolidation Act with regard to Village
in question in which objection was filed
by respondent no. 4 under section 9 on
5.2.1970.

5. The counsel for the petitioner Sri
Sankhata Rai in support of the writ
petition raised following submissions:

(i) The
Deputy
Director
of
Consolidation committed error in not
deciding the question as to whether the
land in dispute was self acquisition of
Smt. Ganga Devi whereas this Court vide
its judgment dated 19.4.1973 after setting
aside the order of Deputy Director of
Consolidation dated 17.4.1971 remanded
the matter for deciding the case afresh.
Observation
of
Deputy Director of
Consolidation that counsel for both the
parties have has conceded before him that
land in dispute is self acquired property of
Raja Ram is a incorrect statement.

(ii) The respondent no. 4 having not filed
suit for possession after attaining the
majority within time prescribed in law,
his claim during consolidation is bared by
time.

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2 All] Ram Narain V. Dy. Director of Consolidation, Kanpur and others
441
(iii) Smt.Ganga Devi had perfected the
right by continuing in possession for more
than statutory period, the claim of
respondent no. 4 as well as adverse
possession of Smt. Ganga Devi, step
mother of respondent no. 4 has to be
tagged.

Reliance has been placed by the
counsel for the petitioner also on several
decisions which will be referred to while
considering the said submissions.

6. Sri N.K. Srivastava, learned
counsel appearing for the respondent
refuted the submission of the counsel for
the
petitioner
and
submitted
that
petitioner's counsel having conceded
before Deputy Director of Consolidation
that land in dispute was self acquired
property of Raja Ram, it is not open for
the petitioner to contend to the contrary
before this Court. He further submitted
that no right by adverse possession can be
perfected against a minor. The counsel for
the
respondent
in
support
of
his
submissions placed reliance on judgment
of the Apex Court in AIR 1963 Supreme
Court 70 Padma Vithoba Chakkayya
versus Mohd. Multani and another and
AIR 1948 Nagpur 253 Mt. Maltibai and
another versus Wamanrao Sheoram and
others.

7. I have considered the submissions
and
perused
the
record.
The
first
submission of counsel for the petitioner is
that Deputy Director of Consolidation has
not adverted to the question as to whether
the property was acquired by Smt. Ganga
Devi or Raja Ram.

8. The counsel for the petitioner has
also relied on an affidavit of counsel who
appeared before Deputy Director of
consolidation to the effect that no such
concession was made before Deputy
Director of Consolidation that land in
dispute is self acquired property of Raja
Ram.
The
Deputy
Director
of
Consolidation in his judgment dated
25.2.1975 has clearly noted that now it is
acceptable to counsel for both the parties
that disputed land was self acquisition of
Raja Ram. The counsel for the petitioner
has challenged the said statement in the
judgment and has placed reliance on
affidavit of counsel Ram Balak Misra,
counsel for the petitioner who appeared
before Deputy Director of Consolidation.
Judgement of the Apex Court reported in
1971 RD 162 Bachan Singh and others
versus Gauri Shanker Agarwal & others
has been relied by the counsel for the
petitioner for the said submissions. Before
the case in Apex Court, the question was
as to whether particular point was argued
before the Board of Revenue by counsel
for the appellant or not.

9. In view of the aforesaid context,
following was observed by the Apex
Court:

"An attempt was made to argue
before this Court that the counsel for the
appellants had in fact argued before the
Board of Revenue that the evidence in
support of the finding of the Additional
commissioner as regards possession is
inadmissible but the Board had ignored
that argument. We are unable to accept
this contention. "

In the above case the counsel who
argued the case before the Board of
Revenue has not filed any affidavit either
before the High Court or before the Apex
court stating that the Board had ignored
his argument as regards the admissibility
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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of
certain
evidence.
The
aforesaid
observation were made by the apex court
in that context which do not help the
petitioner in the present case.

10. It is relevant to note that the
impugned order of Deputy Director of
Consolidation was passed on 25.2.1975
and
the
writ
petition
was
filed
immediately on 30.4.1975. In the writ
petition, there is no averment to the effect
that counsel for the petitioner did not
concede before Deputy Director of
Consolidation that land in dispute is self
acquisition of Raja Ram, rather in
paragraph 11 of the writ petition, it was
stated
that
even
accepting
without
conceding that the land in dispute belongs
to Sri Raja Ram, the possession of Smt.
Ganga Devi in denial of the opposite
parties was adverse and she having
remained in possession for more than the
statutory period and the opposite party
having not filed any suit for ejectment
after attaining majority he lost right and
title in the land in dispute. The averment
to the effect that counsel for the petitioner
never admitted before Deputy Director of
Consolidation that land in dispute is self
acquired property of Raja Ram for the
first time was taken in the affidavit dated
12.1.1988 i.e. after more than 12 years
from filing of the writ petition. Taking
consideration of over all facts, petitioner
cannot be permitted to challenge the
statement of above fact as recorded in the
judgment
of
Deputy
Director
of
Consolidation dated 25.2.1975. Further
more in the affidavit of counsel for the
petitioner dated 7.9.1987, although it has
been specifically stated that no concession
was made before the Deputy Director of
Consolidation as recorded by Deputy
Director of Consolidation, but it has not
been averred that submission was pressed
before Deputy Director of Consolidation
that land is self acquired property of Smt.
Ganga Devi.

11. In view of the aforesaid, Deputy
Director of Consolidation did not commit
any error in not considering the question
as to whether land in dispute is self
acquired property of Smt. Ganga Devi.

12. Second and Third submissions
of the counsel for the petitioner being
inter
related
are
being
considered
together.
The
Deputy
Director
of
Consolidation in his judgement dated
25.2.1975 has found that petitioner
attained majority in the year 1959. The
date of birth of the petitioner as noted by
Deputy Director of Consolidation is
21.5.1941. The petitioner according to the
certificate filed before the consolidation
authorities
attained
majority
on
20.5.1959. It is not disputed that Raja
Ram married Smt. Ganga Devi after his
marriage with Kailasa. Babu Ram is the
son of first wife Smt. Kailasa. Raja Ram
died before 2.4.1954 since on that date
Smt. Ganga Devi filed an application
before Revenue Officer to record her
name. The name of Smt. Ganga Devi was
entered on 19.12.1954. The Revenue
Officer vide his order dated 19.12.1954
directed for recording the name of Smt.
Ganga Devi as Sirdar in case no.
235/3094 and the name of Smt. Ganga
Devi was recorded in revenue record of
1362 fasli. Immediately thereafter dispute
arose
regarding
possession
between
mother of respondent no. 4 and Smt.
Ganga Devi in proceedings under section
145 Cr.P.C. Both, mother of respondent
no. 4 and Kailasa Devi were claiming
possession. Sub Divisional Magistrate
vide his order dated 25.7.1955 declared
possession of Smt. Ganga Devi. The
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2 All] Ram Narain V. Dy. Director of Consolidation, Kanpur and others
443
mother of respondent no. 4 being natural
guardian of respondent no. 4 and also
having claimed possession of land in
dispute, it cannot be accepted that
possession of Smt. Ganga Devi over land
in dispute was on behalf of respondent no.
4. It is also on the record that suit no. 858
of 1955 was filed by Babu Ram (as minor
in guardianship of Smt. Kailasa) against
Smt. Ganga Devi with regard to other
lands which was decided on 6.11.1967 by
the Civil Court. It is relevant to note that
in the suit filed in civil court, the land in
dispute was not included, although the
said suit was filed by mother of
respondent no. 4 Smt. Kailasa Devi on his
behalf.
Majority
was
attained
by
respondent no. 4 on 20.5.1959 and when
respondent no. 4 attained majority he was
not in possession of land in dispute.

13. The U.P. Zamindari Abolition &
Land Reforms Act does not make any
provision for acquisition of rights by a
tenure holder by adverse possession. All it
provides for is suits for dispossession of
persons taking wrongful possession and it
is only after the period of limitation for
such suits expires and suit become time
bared with consequential extinguishing
the
right
of
tenure
holder
are
extinguished. Division Bench of this
Court 1966 RD 42 Puttu Singh and other
versus Kirat Singh and others laid down
that after expiration of period of limitation
provided for suit for dispossession of
person taking wrongful possession right
of tenure holder extinguishes. Following
was held in paragraph- 4-

"4. To clarify the position, we may
indicate the distinction that arises in
cases where the only question is whether
a suit of a particular nature, for which the
period of limitation is prescribed, has
become time bared or not and a suit
where right to property may be acquired
by adverse possession over the prescribed
period of time. The UP Zamindari
Abolition & Land Reforms Act does not
make any provision for acquisition. All it
provides for is for suits for dispossession
of persons taking wrongful possession
and it is only after the period of limitation
for such suits expires and a suit becomes
time barred that the right to bring suit
would become extinguished with the
consequential result that the right of the
tenure-holder
will
also
become
extinguished under Section 28 of the
Limitation Act, 1908.

14. At the relevant time limitation
for filing the suit for ejectment of person
taking or retaining possession of the land
unlawfully was six years. With effect
from 14.10.1971, the said period has been
amended into 12 years. Now the question
is that since respondent no. 4 was minor,
what will be the period of limitation for a
minor to bring a suit for ejectment under
section 209 of U.P. Zamindari Abolition
& Land Reforms Act. This question has
been considered by Division Bench of our
court in 1987 Allahabad Law Journal 588
Parwan versus The UP Board of
Revenue, Allahabad and others. While
considering the provision of Section 229B, read with Section 209 of the U.P.
Zamindari Abolition & Land Reforms Act
1951, in the aforesaid case, the petitioner
Parwan was a minor who attained
majority in 1.3.1962. Suit was filed by
him on 20.11.1966 complaining that his
guardian committed fraud. The suit was
filed under Section 209 read with section
229 B of U.P. Zamindari Abolition &
Land Reforms Act. One of the issues
raised in the case was bar of limitation.
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The Division Bench laid down in
paragraph 11 & 12-

"11. Section 8, therefore, cannot be read
in isolation. If s. 6 is applicable to a suit ,
then S. 8 is automatically dragged in. The
two sections are not mutually exclusive.
The suit under S. 209 of the act cannot be
instituted beyond three years after the
plaintiff attained majority. The view to the
contrary taken by this Court in Onkar
Nath Dubey case (AIR 1977 NOC 4) and
in Ram Krishore case (1983 Rev Dec 62)
(Supra) cannot be said to have laid down
the correct law. They are, therefore,
overruled.

12. The suit filed by the petitioner was
barred by time since it was beyond three
years after he attained majority. "

15. In the present case, admittedly
no suit was filed by respondent no. 4
under section 209 of U.P. Zamindari
Abolition & Land Reforms Act. After
issue of notification dated 29.4.1969,
more than 8 years clasped from attaining
majority by respondent no. 4. Period of
limitation as prescribed under Section 209
of U.P. Zamindari Abolition and Land
Reforms Act was six years, but since the
respondents was under disability he was
entitled to the benefit of section 6 of
limitation Act which enable him to file
the suit within three years from attaining
majority.

16. Admittedly, petitioner did not
file any suit after attaining majority within
three years, the suit was barred by time
and the petitioner's objection under
consolidation proceedings were also bared
by
time.
The
Deputy
Director
of
Consolidation in the impugned judgement
has held that at best adverse possession
can be treated from 1967 when he took
the sale deed. Prior to execution of sale
deed Smt. Ganga Devi was in possession.
There has been litigation between Smt.
Ganga Devi with Smt. Kailasa, the mother
of respondent no. 4 in proceedings under
section 145 Cr.P.C. which was held
between Smt. Ganga Devi with Smt.
Kailasa, the mother of respondent no 5
and Smt. Ganga Devi, possession of Smt.
Ganga Devi was found on 25.7.1955.
Smt. Kailasa has also filed civil suit on
behalf of Babu Ram as his mother and
guardian with regard to properties other
than disputed land being suit no. 858 of
1955.

17. In view of the aforesaid, it
cannot said that possession of Smt. Ganga
Devi on land in dispute was on behalf of
respondent no.4, Respondent no. 4 being
out of possession was entitled to file a suit
under section 209 for taking possession
within three years from attaining majority.
Now coming to the decision cited by
counsel for the respondent. The first
decision relied by the respondent is AIR
1963 SC 70 Padma Vitoba Chakkayya
versus Mohd. Multani and another.

18. In the case before Apex court
also, the Apex court affirmed the finding
of the High court that suit was instituted
more than three years after the plaintiff
has attained majority. Paragraph 2 & 3 of
the judgement notes the facts and the said
contention.

"(2) The learned District Munsiff,
Nirmal, who tried the suit held that as the
endorsement of cancellation of the sale
deed
in
favour
of
Rajanna
was
unregistered, no title passed to the second
defendant by reason of that endorsement
& that accordingly the sale by him in
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2 All] Ram Narain V. Dy. Director of Consolidation, Kanpur and others
445
favour of the first defendant conferred no
title on him in favour of the first defendant
conferred no title on him in favour of the
first defendant conferred to title on him
and further that the suit had been
instituted within three years of the
plaintiff's attaining majority and that it
was in time and so he decreed the suit.
Against this Judgement and decree there
was an appeal by the respondents to the
Additional District court of Adilabad,
which held that the plaintiff had not
established that he had attained majority
within three years of the suit and on that
finding the appeal was allowed. The
appellant took the matter in second
appeal was allowed. The appellant took
the matter in second appeal was allowed.
The appellant took the matter in second
appeal to the High Court of Hydrabad
which agreeing with the District Judge,
held that the suit was instituted more than
three years after the plaintiff had attained
majority
and
dismissed
the
appeal
plaintiff
had
attained
majority
and
dismissed the appeal. It is against this
judgement that the present appeal by
special leave has been filed.

(3) The first contention that is urged
on behalf of the appellant is that the
finding that the plaintiff had attained
majority more than three years prior to the
suit was erroneous. But there are
concurrent findings on what is a question
of fact, and we see no sufficient reason to
differ from them."
The aforesaid judgement did not help
the petitioner in any manner.

19. Next case relied by counsel for
the respondent is AIR 1948 Nagpur 253
Mt. Maltibai and another vs. Wamanrao
Sheoram and others. The counsel for the
respondent submitted that Nagpur High
Court in the aforesaid judgement held that
there cannot be adverse possession
against a minor. The Nagpur High Court
in the aforesaid judgement itself has laid
down that there cannot be any general
proposition that there cannot be adverse
possession in property which belongs to
minor and the question in each cases is to
be decided with reference to the anterior
relationship between the person taking
possession and the minor. Following was
held in paragraph 6-

"6. The plaintiff's contention that the suit
is not bared by limitation rests almost
entirely on the contention that there can
be no adverse possession against a minor.
That question was considered at length in
45 Mad. 361, and the conclusion of the
learned Judges was that it cannot be
stated as a general proposition that there
can be no adverse possession of property
which belongs to a lunatic or minor
during the continuance of the lunacy or
minority of the owner, and that the
question has in each case to be decided
with reference to the anterior relationship
between the person taking possession and
the minor or lunatic and to whether any
circumstances exist which would entitle
the Court to hold that the person was
entered into possession did so under
circumstances which would in law make
him only an agent or bailiff of the minor
or lunatic. That decision has been
followed or cited with approval in AIR
1982 Bom. 23, 57 Bom. 488. Mr.
Mangalmurti for the plaintiff- appellant
referred us to certain remarks in AIR
1940 Cal. 589 and 57 Bom. 488 where it
was said that adverse possession would
not run against the plaintiffs during their
minority , but those statements must be
read in relation to the facts of those cases,
and we do not think that there was any
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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intention to lay down any general
proposition. In LLR (1940) Kar. 534
Labo. J. , after an analysis of the case law
deducted the proposition that minority is
no bar to the acquisition of title by
adverse possession if the person claiming
such adverse possession does not bear to
the person against whom he claims it any
anterior relationship such as that of
agent, bailee, trustee, etc. Subsequently,
however, he went on to say that he could
not see how title by adverse possession
could originate during the minority of the
owner as no knowledge of the assertion
of a hostile title could be attributed to
him. It is not necessary that ouster should
be brought to the notice of the competitor
and it is sufficient if the possession is over
and without concealment so that the
competitor, if he exercised due diligence,
ought to be aware of the ouster, and in 48
Bom. 411. Lord Philimore remarked that
to assume that you cannot impute
knowledge to a minor is a view which is
certainly not in accordance with the facts
of
human
nature.
We,
therefore,
respectively agree with the view taken in
45 Mad. 861 that there may be adverse
possession against a minor."

20. The aforesaid judgment do not
support the submission of learned counsel
for the respondent that there can be no
adverse possession against the minor. In
the present case, it is unnecessary to
consider the aforesaid submission any
further in view of the fact that even after
attaining the majority, the suit was not
filed within six years period which is
period for bringing suit for possession
under section 209 of U.P. Zamindari
Abolition & Reforms Act. There having
been civil and criminal litigation between
the mother of respondent no. 4 and Smt.
Ganga Devi, it cannot be accepted that
possession of disputed land of Smt.
Ganga Devi was on behalf of respondent
no. 4. Moreover after attaining the
majority, there was no excuse for
respondent no. 3 to treat the possession of
Ganga Devi on his behalf.

21. In any view of the matter, the
objection filed by respondent no. 3 before
consolidation authority was barred by
time. The Consolidation Officer in his
judgement dated 13.5.1970 has recorded a
clear finding that respondent no. 4 waited
for more than 8 years after attaining
majority in filing objection in the
mutation case. The Consolidation Officer
also held that respondent no. 4 was
entitled to file suit within 3 years after
attaining majority and he is debarred from
moving for recovery of possession of land
in dispute. The Deputy Director of
Consolidation has neither set a side the
aforesaid finding of the Consolidation
Officer nor has adverted to the said
question.
The
Deputy
Director
of
Consolidation
only
observed
that
unauthorized possession of petitioner at
best again begun in 1967. Possession of
petitioner
from
1967
was
not
determinative factor. Smt. Ganga Devi
who transferred the land in dispute to the
petitioner having right to the land in
dispute can very well transfer the
property. The suit for taking possession
against Ganga Devi was also barred. It is
relevant to note that this Court while
remanding the matter to the Deputy
Director
of
Consolidation
vide
its
judgment dated 19.4.1973 has made
following observation,

"The Consolidation Officer has
recorded a clear finding that the disputed
plots were the self acquisition of Smt.
Ganga Devi and that the claim of
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2 All] Ram Narain V. Dy. Director of Consolidation, Kanpur and others
447
respondent
no.
4
was
barred
by
limitation.
The
Assistant
Settlement
Officer Consolidation reversed the order
of the Consolidation Officer on the sole
ground that Smt. Ganga Devi had not
appeared as a witness before the
Consolidation Officer. This was obviously
under some apprehension. Smt. Ganga
devi
had
appeared
before
the
Consolidation Officer and a certified copy
of her deposition as has been filed as
Annexure 3. The petition. The Assistant
settlement Officer Consolidation did not
record any finding on the question of
adverse possession or limitation. The
Deputy
Director
of
Consolidation
however, non suited the petitioner only on
the ground that in the earlier mutation
case, she had admitted that the disputed
plots were the tenancy of Raja Ram and in
face of her admission she could not now
claim that the disputed plots were her self
acquisition. So the question of adverse
possession,
he
only
made
a
bald
observation that it would be preposterous
to believe that the possession of Smt.
Ganga Devi was adverse to that of Babu
Ram who was entitled to be recorded on
the death of his father Raja Ram. He did
not take into consideration the material
circumstances which had weighed with
the consolidation Officer, namely the
various litigation between the mother of
respondent no. 4 and Smt. Ganga Devi.
The Consolidation Officer has recorded a
finding that the question of adverse
possession after taking into consideration
the long standing litigation between Smt.
Ganga Devi on the one hand, in these
circumstances, the consolidation officer
recorded a finding that the possession of
Smt. Ganga Devi could not be on behalf
of the minor Raja Ram , respondent no. 4.
The Deputy Director of Consolidation has
completely
lost
sight
of
these
circumstances and he has not given a
proper deal of this aspect of the matter."

22. This Court observed that
considering the question of nature of
possession, the Deputy Director of
Consolidation has not considered various
circumstances which weighed with the
consolidation officer namely the various
litigation between mother, respondent no.
4 and Smt. Ganga Devi. The various
litigation between Ganga Devi and
mother of respondent no. 4 makes it clear
that possession of disputed land by Ganga
Devi cannot be treated on behalf of
respondent no. 4 and the possession being
not on behalf of respondent no. 4,
respondent no. 4 was entitled to claim
possession during the period of limitation
prescribed under section 209 of U.P.
Zamindari abolition & reforms Act read
with Section 6 of Limitation Act. The
Settlement Officer of Consolidation also
not adverted to the question as to whether
claim of respondent no. 4 is barred by
limitation. Adverse inference was drawn
against the petitioner by Settlement
Officer of Consolidation on the ground
that Ganga Devi did not appear in witness
box where as this Court in its earlier
judgment has clearly found that Ganga
Devi had appeared in the witnesses box
on behalf of the petitioner. The statement
of Ganga Devi dated 11.4.1970 has also
been brought on the record as Annexure -
8 to the supplementary affidavit dated
10.9.1997. The order of Settlement
Officer of Consolidation also cannot be
sustained.

23. In view of the foregoing
discussion, the order of Deputy Director
of Consolidation dated 25.2.1975 as well
as the order of Settlement Officer of
Consolidation dated 15.1.1971 are set
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
448
aside and the order of Consolidation
Officer dated 13.5.1970 is upheld.

The
writ
petition
is
allowed
accordingly. Parties will bear their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.6.2003

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 26121 of 2003

Brij Raj Pandey and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri A.N. Singh
Sri S.K. Chaubey

Counsel for the Respondents:
S.C.

U.P. Basic Education teachers' service
rules, 1981- Rule 29-Entitlement of
benefit under- age of superannuationPetitioners
attaining
age
of
superannuation on 30.6.2003 i.e. on last
day of academic session-Held, cannot be
permitted to be extended for next
academic session.

Held- Para 3

Admittedly the academic session begins
on 1st July and ends on 30th June. The
said rule provides that in case if a
teacher
attains
the
age
of
superannuation
during
the
commencement of the academic session,
he shall be permitted to continue till the
end of the academic session, he shall be
permitted to continue till the end of the
academic session i.e. till June 30. In the
present case all the petitioners are to
attain the age of superannuation on
30.6.2003. In such circumstances the
benefit of rule 29 of the Rules of 1981
cannot be extended to the petitioners as
they are to retire on the last day of the
academic session. The petitioners cannot
be permitted to be on extended service
from the beginning of the next academic
session.

(Delivered by Hon'ble Vineet Saran, J.)

1. This writ petition has been filed
with a prayer for a direction to the
respondents that the petitioner may be
treated in service on extension till the end
of the next academic session i.e. upto
30.6.2004.

2. The petitioners are assistant
teachers in the Primary schools. Their
date of birth is 1.7.1943. They are
claiming benefit of Rule 29 of the U.P.
Basic Education teachers service Rules,
1981 which is quoted below:

"Every teacher shall retire from
service in the afternoon of the last day of
the month in which he attains the age of
60 years;

Provided that a teacher who retires
during an academic sessions (July 1 to
June 30) shall continue to work till the
end of the academic session i.e. June 30
and such period of service will be deemed
as extended period of employment."

3. Admittedly the academic session
begins on 1st July and ends on 30th June.
The said rule provides that in case if a
teacher attains the age of superannuation
during
the
commencement
of
the
academic session, he shall be permitted
to continue till the end of the academic
session i.e. till June 30. In the present case
all the petitioners are to attain the age of
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