# State of U.P v. Gurudee Singh & Ors

- **Citation:** (2022) 4 ILRA 888
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-13
- **Case number:** Writ-C No. 3000075 of 2002
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-gurudee-singh-ors-48364
- **Pages:** 7

## Headnote

Civil Law - U.P. Zamindari Abolition and
Land Reforms Act 1950 - Sections 209
&. 210 - Adverse Possession - Mere
Possession Vs Adverse Possession -
mere long possession over a property
without title can not be deemed to be
unauthorized or without consent of the
original tenure holder unless and until
such possession being claimed to be
unauthorized or adverse is within the
knowledge of the original tenure holder
- mere possession irrespective of its
length does not necessarily cannote
adverse possession against the true
owner
-
For
possession
over
the
property to be adverse, requires such
possession to be hostile in implied
denial of title of the true owner and
within his knowledge - The possession
must be open and hostile enough to be
capable of being known by the parties
interested in the property (Para 14, 15,
16, 24)
Land declared surplus - objections filed u/s
11(2) of 1960 Act - In the objections filed by
opposite party it was stated that he is in
cultivatory adverse possession of the disputed
property and has perfected his rights under
Section 210 of U.P. Z.A. & L.R. Act in absence of
any suit for ejectment - By means of impugned
order appeal against order rejecting objections
under section 11(2) of the Act 1960 allowed &
the entire land held to be surplus was released
in favour of opposite party - Held - objection
does not indicate the date on which he entered
into possession over the property in question -
no averment as to when the original tenure
holder came into knowledge regarding adverse
title and possession being set up by the
opposite party to its detriment - appeal allowed
primarily taking into account entries in the
khasra records from the year 1362 to 1372 fasli
indicating name of opposite party No.1 as being
in possession over the property in question -
khasra entries does not indicate as to whether
such possession was permissive or unauthorized
without consent of original tenure holder -
without satisfying twin conditions required
under Section 209 of the Zamindari Abolition
Act, possession or retention thereof cannot
automatically be deemed to be unauthorized or
without consent of the original tenure holder -
opposite party No.1 claiming to be in adverse
possession over the property in question, failed
to substantiate the story of adverse possession -
Appellate authority has failed to consider the
fact that opposite party No.1 has not been able
to make out a case of adverse possession -
Impugned order passed by appellate authority
quashed (Para 24, 25)

Allowed. (E-5)

List of Cases cited:

## Text

888 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Let this order be communicated to
the Commissioner, Prayagraj Division,
Prayagraj and the District Magistrate,
Kaushambi by the Registrar (Compliance).
----------

(2022)04ILR A888
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW13.04.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-C No. 3000075 of 2002

State of U.P. ...Petitioner
Versus
Gurudee Singh & Ors. ...Respondents

Counsel for the Petitioner:
Standing Counsel, R. Srivastava

Counsel for the Respondents:
C.S.C., H.S. Jain, R. Chandra, V.K. Pandey, Vijay
Kumar Pandey, Yogita Chandra

Civil Law - U.P. Zamindari Abolition and
Land Reforms Act 1950 - Sections 209
&. 210 - Adverse Possession - Mere
Possession Vs Adverse Possession -
mere long possession over a property
without title can not be deemed to be
unauthorized or without consent of the
original tenure holder unless and until
such possession being claimed to be
unauthorized or adverse is within the
knowledge of the original tenure holder
- mere possession irrespective of its
length does not necessarily cannote
adverse possession against the true
owner
-
For
possession
over
the
property to be adverse, requires such
possession to be hostile in implied
denial of title of the true owner and
within his knowledge - The possession
must be open and hostile enough to be
capable of being known by the parties
interested in the property (Para 14, 15,
16, 24)
Land declared surplus - objections filed u/s
11(2) of 1960 Act - In the objections filed by
opposite party it was stated that he is in
cultivatory adverse possession of the disputed
property and has perfected his rights under
Section 210 of U.P. Z.A. & L.R. Act in absence of
any suit for ejectment - By means of impugned
order appeal against order rejecting objections
under section 11(2) of the Act 1960 allowed &
the entire land held to be surplus was released
in favour of opposite party - Held - objection
does not indicate the date on which he entered
into possession over the property in question -
no averment as to when the original tenure
holder came into knowledge regarding adverse
title and possession being set up by the
opposite party to its detriment - appeal allowed
primarily taking into account entries in the
khasra records from the year 1362 to 1372 fasli
indicating name of opposite party No.1 as being
in possession over the property in question -
khasra entries does not indicate as to whether
such possession was permissive or unauthorized
without consent of original tenure holder -
without satisfying twin conditions required
under Section 209 of the Zamindari Abolition
Act, possession or retention thereof cannot
automatically be deemed to be unauthorized or
without consent of the original tenure holder -
opposite party No.1 claiming to be in adverse
possession over the property in question, failed
to substantiate the story of adverse possession -
Appellate authority has failed to consider the
fact that opposite party No.1 has not been able
to make out a case of adverse possession -
Impugned order passed by appellate authority
quashed (Para 24, 25)

Allowed. (E-5)

List of Cases cited:

1. Satish Chand Mathur & ors. Vs St. of U.P. &
ors. 1996 JLR 151

2. Abdul Wahid Khan & ors. Vs Deputy Director
of Consolidation, Jaunpur & ors. 1968 ALJ 117

3. T. Anjanappa & ors. Vs. Somalingappa & anr.
reported in (2006) 7 SCC 570

(Delivered by Hon'ble Manish Mathur, J.)
4 All. State of U.P. Vs. Gurudee Singh & Ors.
889

1. Heard Mr. Pankaj Srivastava
learned Chief Standing Counsel appearing
on behalf of petitioner and Mr. V.K.
Pandey learned counsel appearing on
behalf of respondent.

2. Petition under Article 226 of the
Constitution of India has been filed against
order dated 25th July, 1998 passed in
appeal under section 13 of the U.P.
Imposition of Ceiling on Land Holdings
Act, 1960 and the consequential orders
dated 13th August, 1998 and 25th July,
2001. By means of impugned order dated
25th July, 1998, appeal against order dated
5th July, 1997 rejecting objections under
section 11(2) of the Act 1960 has been
allowed.

3. Dispute pertains to a tract of land
situate in village Puranpurwa, Patihan,
Aithpur, Phulwaria, Gajraura which was
earlier recorded in the name of original
tenure holder Messers Collective Forms
and Forest (Private) Limited to whom
notices under Section 10(2) of the Act were
served and by means of order dated 31st
December, 1964, an area of 80 acres was
declared surplus. Subsequently objections
under Section 11(2) of the Act were filed
by the opposite party No.1 on 17th May,
1983. The same were rejected by the
prescribed authority vide order dated 15th
November, 1990. Appeal there against was
allowed vide order dated 29th January,
1992 remanding the case to the prescribed
authority for decision afresh.

4. In pursuance to the said order,
matter was reconsidered and by means of
order dated 29th June, 1995 objections of
opposite party No.1 were again rejected.
The dispute again went up in appeal and
vide order dated 19th August, 1996 it was
again remanded for reconsideration by the
prescribed authority, allowing the appeal.
In pursuance to aforesaid directions,
objections of opposite party No.1 were
again rejected vide order dated 5th July,
1997, appeal there against being allowed
vide impugned order dated 25th July, 1998
whereby the entire land held to be surplus
in 1964 was released in favour of opposite
party No.1.

5. Initially vide order dated 10th
October 2002, the order under challenge
was stayed by means of interim directions.

6. Learned State Counsel appearing
on behalf of petitioner has submitted that
the order dated 5th July 1997 passed by the
prescribed authority rejecting objections of
opposite party No.1 was reasoned and
cogent order based primarily on the fact
that the opposite party No.1 claiming to be
in adverse possession over the property in
question, failed to substantiate the story of
adverse possession.

7. It is submitted that the appellate
authority by means of impugned order has
completely misdirected itself by looking
into the aspect of the opposite party No.1
being in possession over property in
question without adverting to the fact that
opposite
party
No.1
has
failed
to
substantiate the story of being in adverse
possession.

8. Mr. V.K. Pandey learned counsel
appearing on behalf of opposite party No.1
refuting submissions advanced by learned
counsel for petitioner has submitted that the
prescribed authority had clearly erred in
ignoring
the
documentary
evidence
furnished by the opposite party No.1
pertaining to his possession over property
in question. It is submitted that the opposite
party No.1 very well proved his possession
890 INDIAN LAW REPORTS ALLAHABAD SERIES
over the property in question and claim of
adverse possession which was proved by
the revenue records adduced in evidence
clearly indicating name of petitioner over
the properties. He has placed reliance on
judgments of this Court rendered in the
case of Satish Chand Mathur and others
versus State of U.P. and others reported in
1996 JLR 151 and the Full bench decision
in Abdul Wahid Khan and others versus
Deputy Director of Consolidation, Jaunpur
and others reported in 1968 ALJ 117 to
substantiate that opposite party No.1 had
consolidated his right over the property in
question in terms of Section 209 and 210 of
the U.P. Zamindari Abolition and Land
Reforms Act 1950.

9.

Upon
consideration
of
submissions advanced by learned counsel
for parties and upon perusal of material on
record, it is apparent that the prescribed
authority rejected objections of opposite
party No.2 primarily on the ground that he
had been unable to prove his adverse
possession over the property in question. It
has been recorded that although plea of
possession of opposite party no.1 had been
taken in terms of Section 145 Cr.P.C. but
no documentary evidence was produced
to prove the same. It has been recorded
that although revenue record such as
khasra for the years 1362 fasli to 1372
fasli have been submitted but it also
apparent
that
subsequently
during
consolidation
operations,
petitioner's
name
as
being
in
possession
over
properties in question has been removed.
The order also indicates that the Assistant
Registar Kanoongo produced the original
khasra records pertaining to years 1378 to
1380 fasli to indicate that the name of
opposite party No.1 no longer continued
as being in possession over property in
question.

10. From perusal of impugned order
dated 25th July, 1998 passed in appeal, it is
also apparent that appeal has been allowed
primarily taking into account entries in the
khasra records from the year 1362 to 1372
fasli indicating name of opposite party
No.1 as being in possession over the
property
in
question.
The
appellate
authority in terms of said revenue entries
has held the opposite party No.1 to be a
tenure holder in terms of Section 11(2) of
the Act.

11. From the record it transpires that
the objections filed by opposite party No.1
were clearly with regard to plots numbers
2M having an area of 9.35 acres and 2M
having an area of 5.62 acres situated in
vilalge
Puranpurwa,
Pargana
Paliya,
District Kheri. The opposite party No.1 has
clearly stated that he is in cultivatory
adverse possession of the disputed property
as held under proceedings under section
145 Cr.pP.C. and has perfected his rights
under Section 210 of Zamindari Abolition
and Land Reforms Act in absence of any
suit for ejectment.

12. It is therefore apparent that the
primary claim of opposite party No.1 over
the properties in dispute was on the basis of
adverse possession against the original
tenure holder in terms of Section 209 and
210 of U.P. Zamindari Abolition & Land
Reforms Act, 1950, which are as follows:-

"209. Ejectment of persons occupying
land without title. - [(1)] A person taking
or retaining possession of land otherwise
than in accordance with the provisions of
the law for the time being in force; and-

(a) where the land forms part of the
holding of a bhumidhar, [* * *] or asami
without the consent of such bhumidhar, [*
* *] or asami;
4 All. State of U.P. Vs. Gurudee Singh & Ors.
891

(b) where the land does not form part
of the holding of a bhumidhar, [* * *] or
asami without consent of the [Gaon
Sabha],

shall be liable to ejectment on the suit
in cases referred to in Clause (a) above of
the bhumidhar, [* * *] or asami concerned
and in cases referred to in Clause (b)
above of the [Gaon Sabha] [* * *] and
shall also be liable to pay damages.

[(2) To every suit relating to a land
referred to in Clause (a) of sub-section (1)
the State Government shall be impleaded
as a necessary party.]

[210. Consequence of failure to the
suit under Section 209. - If a suit for
eviction from any land under Section 209 is
not instituted by a bhumidhar or asami, or
a decree for eviction obtained in any such
suit is not executed within the period of
limitation provided for institution of such
suit or the execution of such decree, as the
case may be, the person taking or retaining
possession shall-

(a) where the land forms part of the
holding of a bhumidhar with transferable
rights, become a bhumidhar with a
transferable rights of such land and the
right, title and interest of an asami, if any,
in such land shall be extinguished;

(b) where the land forms part of the
holding
of
a
bhumidhar
with
nontransferable rights, become a bhumidhar
with non-transferable rights and the right,
title and interest of an asami, if any, in such
land shall be extinguished;

(c) where the land forms part of the
holding of an asami on behalf of the Gaon
Sabha, become an asami of the holding
from year to year.]

[Provided
that
the
consequences
mentioned in Clauses (a) to (c) shall not
ensue in respect of any land held by a
bhumidhar or asami belonging to a
Scheduled Tribe.]"

13. The objection filed by opposite
party No.1 on 17th May 1983 does not
indicate the date on which he has claimed
to have entered into possession over the
property in question. There is absolutely no
averment as to when the original tenure
holder came into knowledge regarding
adverse title and possession being set up by
the opposite party No.1 to its detriment.

14. Law pertaining to claim of
adverse possession is now settled to the
effect that mere possession irrespective of
its length does not necessarily cannote
adverse possession against the true owner.
For possession over the property to be
adverse, requires such possession to be
hostile in implied denial of title of the true
owner and within his knowledge.

15. Hon'ble Supreme Court in the
case of T. Anjanappa and others v.
Somalingappa and another reported in
(2006) 7 SCC 570 has already indicated
conditions under which a plea of adverse
possession can succeed. The same are as
follows :-

"It is well recognized proposition in
law that mere possession however long
does not necessarily means that it is
adverse to the true owner. Adverse
possession
really
means
the
hostile
possession which is expressly or impliedly
in denial of title of the true owner and in
order to constitute adverse possession the
possession proved must be adequate in
continuity, in publicity and in extent so as
to show that it is adverse to the true owner.
The classical requirements of acquisition of
title by adverse possession are that such
possession in denial of the true owner's title
must be peaceful, open and continuous. The
possession must be open and hostile
enough to be capable of being known by
892 INDIAN LAW REPORTS ALLAHABAD SERIES
the parties interested in the property,
though it is not necessary that there should
be evidence of the adverse possessor
actually informing the real owner of the
former's hostile action."

16. Upon applicability of the
aforesaid judgment in the present case, it is
apparent that there is no pleading or
evidence produced by the opposite party
No.1 on which the plea of adverse
possession could succeed. The appellate
authority while placing reliance only on
alleged possession of opposite party No.1
over the properties in question has clearly
overlooked the factor that possession over
the properties in question was being
claimed by the opposite party No.1 only in
terms of
adverse possession without
fulfiling the requirements to claim such
adverse possession.

17. The appellate authority has clearly
failed
to
distinguish
between
mere
possession over property in question and
adverse possession as was being claimed
by the opposite party No.1. There is
absolutely no discussion in the impugned
order with regard to claim of adverse
possession of the opposite party No.1 who
has not even indicated the date on which he
claims to have come into possession over
property in question or even the date on
which the original tenure holder came into
knowledge of petitioner's hostile possession
and title.

18. The claim of opposite party No.1
pertaining to Sections 209 and 210 of the
Act of 1950 are also required to be seen in
the context of claim of adverse possession
by the opposite party No.1 which he has
failed to prove. The Full Bench decision in
the case of A.W. Khan (supra) while
indicating the provisions of Sections 209
and 210 of the Act 1950, in the considered
opinion of this Court would have no
applicability since the opposite party No.1
has clearly failed to indicate knowledge of
the original tenure holder pertaining to
petitioner's hostile possession over the
properties in question.

19. Similarly in the case of Satish
Chand Mathur (supra), it has been held as
follows:-

" The expression 'held' takes in both
title and possession. As observed by
Hon'ble Supreme Court it means to possess
by legal title. What is, therefore, necessary
is that the person apart from having title to
the land should also have its possession
either actual or notional. If a person is not
having both title and actual or notional
possession of the land, he cannot be said to
be holder of the holdings and, therefore,
cannot be treated as a tenure-holder. Mere
possession, without a title, cannot make a
person holder of the holding, unless he has
perfected his right by prescription in
consequence of adverse possession or his
case
falls
within
one
of
the
two
explanations appended to the section 5(1)
of the Act. Similarly mere title without
possession, actual or notional, may not
make a man tenure-holder, unless he also
has a right to regain possession. ........"

20. Clearly the aforesaid judgment
would not be of any help to the opposite
party No.1 since it has been clearly held
that if a person is not having both title and
actual on notional possession of land, he
can not be said to be holder of the holdings
and therefore can not be treated as a tenure
holder. It has been held that mere
possession without title can not make a
person holder of the holding unless he has
perfected his right by prescription in
4 All. State of U.P. Vs. Gurudee Singh & Ors.
893
consequence of adverse possession. As
such it is apparent that the entire gist of
claim of opposite party No.1 over the
properties in question being based on
adverse possession could not have been
allowed by the appellate authority without
the opposite party No.1 substantiating his
claim for adverse possession as indicated
herein above.

21. Learned counsel for opposite
party No.1 along with written submissions
has annexed a plethora of judgments with
regard to rights being perfected under
Sections 209 and 210 of the Zamindari
Abolition Act. The aforesaid judgments are
as follows:-

(1) Hanuman Rai versus Dy. Director
of Consolidation ,1973 R.D. 207

(2) Abdul Wahid Khan and others
versus Deputy Director of Consolidation,
Jaunpur and others, 1968 A.L.J. 118

(3) Ram Charan versus State of U.P.
etc, 1978 AWC 677

(4) Ziley Singh versus The State of
U.P and others 1978 ALL. L. J. 772

(5) Baldeo Singh versus The State of
U.P. and others 1980 LLJ 31

22. In these judgments cited by the
opposite party No.1, the single thread
which follows pertains to perfection of
rights of an unauthorized occupant over the
property belonging to a bhumidhar. A
reading of the aforesaid clearly indicates
that for perfection of such right under
Section 209 read with Section 210 of the
Zamindari Abolition Act requires that the
person taking or retaining possession of
land belonging or forming part of the
holding of a bhumidhar, sirdar or assami
should be otherwise than in accordance
with provisions of law i.e. unauthorizedly
and further that it should be without
consent of such bhumidhar, sirdar or
assami.

23. For a person to succeed on the
basis of aforesaid Sections 209 and 210 of
the Act, therefore requires satisfaction of
firstly, that the possession should be
otherwise
than
in
accordance
with
provisions of law i.e. unauthorizedly and
secondly, without the consent of the
bhumidhar, sirdar or assami to whom it
belongs.

24. In the present case, it is apparent
from the objections filed by the petitioner
that there is no averment as to when the
petitioner entered into possession of
disputed
property
otherwise
than
in
accordance with law and that such retention
of possession was without consent of the
original tenure holder. As has been
indicated
herein
above,
mere
long
possession over a property without title can
not be deemed to be unauthorized or
without consent of the original tenure
holder unless and until such possession
being claimed to be unauthorized or
adverse is within the knowledge of the
original tenure holder.

25. The petitioner has not indicated
anywhere
in
the
objection
or
even
thereafter the date when the original tenure
holder gained knowledge regarding alleged
unauthorized possession of petitioner over
the property in question. The khasra entries
also relied upon by petitioner does not
indicate as to whether such possession was
permissive or unauthorized without consent
of original tenure holder. As such without
the petitioner satisfying twin conditions
required
under
Section
209
of
the
Zamindari Abolition Act, his possession or
retention thereof can not automatically be
deemed to be unauthorized or without
894 INDIAN LAW REPORTS ALLAHABAD SERIES
consent of the original tenure holder. As
such the judgments cited by learned
counsel for opposite party No.1 are of no
avail to him.

26. Since the impugned order passed
by the appellate authority has failed to
consider the fact that opposite party No.1
has not been able to make out a case of
adverse possession, the order dated 25th
July, 1998 clearly being unsustainable is
quashed by issuance of writ in the nature of
Certiorari. Consequential orders dated 13th
August, 1998 and 25th July, 2001 are also
quashed in consequence thereof.

27. A writ in the nature of Mandamus
is issued commanding the opposite parties
to correct records pertaining to entries over
the properties in question.

28. In the result petition succeeds and
is allowed. Parties to bear their own costs.
----------
(2022)04ILR A894
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.12.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Misc. Single No. 32679 of 2019

Shankar Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Rajat Rajan Singh, Advocate

Counsel for the Respondents:
Mr. Manjive Shukla, Addl. C.S.C.

A. Civil Law - Cancellation of fair price
shop
license
-
U.P.
Scheduled
Commodities Distribution Order, 2004 -
Clause 21 and 22 - GO dated 29.07.2004 -
Essential Commodities Act, 1955 - Section
3 - Uttar Pradesh Scheduled Commodities
Distribution Order 1990 - Sub-clause (1)
of clause 4, Clause 22 - Uttar Pradesh food
grains
and
other
Essential
Articles
Distribution Order, 1977 - National Food
Security Act, 2013 framed the Uttar
Pradesh State Food Security Rules, 2015 -
Section 40 - Uttar Pradesh Essential
Commodities (Regulation of Sale and
Distribution Control) Order 2016: Subclause (4) of Clause-8.

Words
and
Phrases
-
"full
fledged
enquiry" - While dealing with an enquiry
regarding cancellation of fair price shop license
a full fledged enquiry is contemplated which
includes serving of the charge-sheet and
notifying the licensee of the place and date of
hearing during course of enquiry. Supply of
enquiry report has also been held to be sine qua
non. (Para 9)

It is held that the words "full fledged
enquiry" as used by the Full Bench of this
Court in the decision of Puran Singh
(infra) has to be read in context with
paras 4 and 5 of the GO of July 2004 and
scheme therein which merely requires
adherence to the principles of natural
justice and does not provide for a detailed
enquiry involving various stages and steps
as are required to be met in disciplinary
enquiry against a government servant.
(Para 47)

After the promulgation of the Control Order
2016, the matter is governed by the said control
order which also notices the agreement which is
signed between the parties i.e. the licensee and
the State Government which partakes the
nature of a statutory contract and is nothing but
a contract of agency where the licensee
conduct activities on behalf of the State,
distributing food grains and in return is
entitled to a commission and it is clearly a
contract of agency, as known in law. (Para
45)

The requirement of entering into an
agreement between licensee and the