Pet it ioner v. St at e of Ut t aranchal Ot hers

over t he land belonging t o one Mr. Bhawani Dut t . Bot h t he suit s were filed under Sect ion 229- B of Zam indari Abolit ion and Land Reform s Act . The suit filed by pet it ioner was num bered as Suit No. 22/ 27 of 1992- 93, while t he suit filed by her cousin Narayan Singh was regist ered as Suit No. 22/ 55 of 1986- 87. 1 I n Suit No. 22/ 55, filed by Narayan Singh, pet it ioner was added as defendant no. 7; since Bhawani Dut t , original t enure holder, passed away before filing of suit by Narayan Singh, t herefore, his represent at ives were added as defendant s in t he said suit . Pet it ioner filed count er- claim in t he suit filed by Narayan Singh claim ing bhum idhari right over t he land belonging t o Bhawani Dut t , by cont ending t hat it is she, and not Narayan Singh, who perfect ed t it le by adverse possession. Bot h suit s were dism issed by learned Trial Court ( Assist ant Collect or, 1 st Class) , vide com m on j udgm ent dat ed 28.6.1993.

3. Count er- claim filed by pet it ioner in Narayan Singh’s Suit No. 22/ 55 of 1986- 87 was also dism issed by Trial Court by holding t hat neit her Narayan Singh nor pet it ioner could subst ant iat e t heir claim t hat t hey perfect ed t heir t it le by adverse possession. Learned Trial Court furt her held t hat t he land in quest ion is public ut ilit y land and bhum idhari right cannot be grant ed in respect of such land. Learned Trial Court furt her held t hat no evidence was led t o show t hat t he revenue ent ries m ade in favour of t he original t enure holder were forged and fict it ious. Regarding pet it ioner’s count er- claim , Trial Court held t hat she could not produce any evidence in support of her claim regarding cont inuous possession over t he land in quest ion.

4. Pet it ioner filed one appeal against dism issal of her Suit No. 22/ 27 of 1992- 93, however she did not challenge dism issal of her count er- claim by t he Trial Court . Narayan Singh also filed first appeal 2 challenging dism issal of his Suit No. 22/ 55 of 1986-

87. Bot h t he appeals, one filed by pet it ioner and anot her by Narayan Singh, were dism issed by learned Com m issioner, Kum aon Division com m on j udgm ent dat ed 24.2.1994. Learned First Appellat e Court affirm ed t he finding ret urned by Trial Court on t he plea of adverse possession, t aken by pet it ioner as well as Narayan Singh.

5. Against t he j udgm ent rendered by learned Com m issioner, pet it ioner filed second appeal before Addit ional Chief Revenue Com m issioner, while Narayan Singh did not file any second appeal. Second Appeal No. 94 of 1993- 94, filed by pet it ioner, was dism issed by learned Addit ional Chief Revenue Com m issioner vide j udgm ent dat ed 11.3.2004. Learned Second Appellat e Court refused t o int erfere wit h t he finding ret urned by t he Trial Court , as affirm ed by t he First Appellat e Court . Learned Addit ional Chief Revenue Com m issioner held t hat part of t he land com prised in Khat a No. 20 and 39 is public ut ilit y land, over which bhum idhari right cannot be grant ed t o anyone. The Second Appellat e Court furt her observed t hat as legal represent at ives of Bhawani Dut t do not cont est t he m at t er aft er filing writ t en st at em ent and t hey also did not prefer any appeal, t herefore, it seem s t hat t hey are not in possession and appropriat e st eps be t aken as regards t he subj ect land, as per law.

6. Mr. Jit endra Chaudhary, learned Counsel appearing for respondent no. 3 t o 6, subm it s t hat as pet it ioner did not challenge dism issal of her count er- 3 claim by Trial Court in independent first appeal, t herefore, she cannot challenge t he dism issal of her suit in t his writ pet it ion. He furt her subm it s t hat t he challenge t hrown by pet it ioner t o t he j udgm ent rendered by t he First Appellat e Court and Second Appellat e Court is t hus barred by res j udicat a. He furt her cont ends t hat pet it ioner claim ed t it le over t he in quest ion, by raising plea of adverse possession and her claim was negat ed by Trial Court and aft er accept ing t he finding ret urned by Trial Court on t he quest ion of adverse possession, she cannot now re- agit at e t he sam e issue again in a writ pet it ion. I n support of t his cont ent ion, Mr. Jint endra Chaudhary relied upon t he following j udgm ent s rendered by Hon’ble Suprem e Court : ( i) Prem ier Tyres Lim it ed v. Kerala St at e Road Transport Corporat ion, report ed as 1993 Supp 2 SCC 146; ( ii) Harbans Singh & Ot hers v. Sant Hari Singh & Ot hers, report ed as ( 2009) 2 SCC 526.

7. Per cont ra, Mr. B.D. Pande, learned Counsel appearing t he pet it ioner, subm it s t hat since count er- claim filed by t he pet it ioner was not expressly rej ect ed by t he Trial Court , t herefore, principle of res j udicat a will not apply. He furt her subm it s t hat nam e of predecessor of pet it ioner was recorded in revenue records during fasli year 1360, t herefore pet it ioner’s nam e could have been rem oved only aft er following t he procedure laid down in Para A- 80 of Land Records Manual. 4

8. I n reply t o t he said subm ission, Mr. Jit endra Chaudhary subm it s t hat nam e of predecessor- in- int erest of pet it ioner was recorded as occupancy t enant and not as bhum idhar and, as per t he t hen prevailing law, if an occupancy t enant died issueless, t hen t he land revert ed back t o t he original t enure holder. He subm it s t hat since t here was no brot her of t he pet it ioner, t herefore, upon deat h of her m ot her, nam e of original t enure holder was recorded as bhum idhar. Mr. Chaudhary furt her subm it s t hat Para A- 80 of Land Records Manual is applicable only t o t he land covered by Zam indari Abolit ion and Land Reform s Act and not t o t he land covered by U.P. Tenancy Act . Mr. Jit endra Chaudhary refers t o t he Heading of Chapt er A- V, where it is m ent ioned t hat t he said Chapt er would apply t o areas t o which Zam indari Abolit ion and Land Reform s Act , 1950 applies. Mr. Jit endra Chaudhary furt her subm it s t hat predecessor- in- int erest of t he pet it ioner died in t he year 1962, while U.P. Zam indari Abolit ion and Land Reform s Act was enforced in Tarai Bhabhar area of erst while Dist rict Nainit al only w.e.f. 1.7.1969. Thus he subm it s t hat on t he dat e of enforcem ent of t he Act , nam e of predecessor- in- int erest of t he pet it ioner was not recorded as t enure holder.

9. This Court do not find any reason t o int erfere wit h t he concurrent findings of fact recorded by all t he t hree revenue court s below. Perusal of t he j udgm ent rendered by Trial Court , as affirm ed by t he First Appellat e Court and Second Appellat e Court , reveals t hat claim st aked by t he pet it ioner was based on adverse possession, however she m iserably failed 5 t o prove t he said plea. There was heavy burden of proof upon t he pet it ioner, but she was unable t o discharge t hat burden, which result ed in dism issal of her suit .

10. Hon’ble Suprem e Court , t he case of Vasant ha v. Raj alaxm i alias Raj am , report ed as ( 2024) 5 SCC 282, has considered t he law on adverse possession. Relevant ext ract of t he said j udgm ent is reproduced below: “ 4 0 . I n Saroop ( 2005) 8 SCC 330] t he st art ing point of on Karnat aka Wakf Board v. Union Singh v. Bant o [ Saroop Singh v. Bant o, ( t wo- Judge Bench) , t his Court observed t hat Art icle 65 st at es lim it at ion does not t hat com m ence from t he dat e when t he right of ownership arises t o t he plaint iff but com m ences from t he dat e t he defendant 's possession becom es adverse. Furt her relying I ndia [ Karnat aka Wakf Board v. Union of I ndia, ( 2004) 10 SCC 779] ( t wo- Judge Bench) , it observed t hat t he physical fact of exclusive possession and t he anim us possidendi t o hold as owner in exclusion t o t he act ual owner are t he m ost im port ant fact ors t hat are t o be account ed in cases relat ed t o adverse possession. Plea of adverse possession is not a pure law. quest ion of Therefore, a person who claim s adverse possession should show: law but a blend of fact and ( a) on what dat e he cam e int o possession; ( b) what was t he nat ure of his possession; ( c) whet her t he fact um of possession was known t o t he ot her part y; ( d) how long his possession has cont inued; and ( e) his possession was open and undist urbed. A person pleading adverse possession has no equit ies in his favour. Since he is t rying t o defeat t he right s of t he t rue owner, it is for him t o clearly plead and est ablish all fact s necessary t o prove his adverse possession. 4 1 . This Jat v. Bhikhabhai Waghaj i Court in Hem aj i Waghaj i Harij an [ Hem aj i Jat v. Bhikhabhai Khengarbhai Harij an, Khengarbhai 6 in m ost respect of observat ions m ade ( 2009) 16 SCC 517] ( t wo- Judge Bench) , reit erat ing in P.T. Munichikkanna t he Reddy v. Revam m a [ P.T. Munichikkanna Reddy v. Revam m a, ( 2007) 6 SCC 59] ( t wo- Judge t he concept of adverse Bench) possession observed t hat efficacy of adverse j urisdict ions depends on possession st rong lim it at ion st at ut es by operat ion of which, right t o access t he court expires t hrough efflux of t im e. As against t he right s of t he paper- owner, in t he cont ext of adverse possession, t here evolves a set of com pet ing right s in favour of t he adverse possessor who has, for a long period of t im e, cared for t he land, developed it , as against t he owner of t he propert y who has ignored t he propert y. Modern st at ut es of lim it at ion operat e, as a rule, not only t o cut off one's right t o bring an act ion for t he recovery of propert y t hat has been in t he adverse possession of anot her for a specified t im e but also t o vest t he possessor wit h t it le. The int ent ion of such st at ut es is not t o punish one who neglect s t o assert right s but t o prot ect t hose who have m aint ained t he possession of propert y for t he t im e specified by t he st at ut e under a claim of right or colour of t it le. 4 2 . I n Bharat Barrel & Drum Mfg. Co. Lt d. v. ESI Corpn. [ Bharat Barrel & Drum Mfg. Co. Lt d. v. ESI Corpn., ( 1971) 2 SCC 860] , ( t wo- Judge Bench) while discussing t he obj ect of t he Lim it at ion Act , t his Court opined t hat : ( SCC pp. 865- 66, para 7) t he t im e t im e, t here law of “ 7. … The lim it at ion appert ains t o rem edies because t he rule is t hat claim s in respect of right s cannot be ent ert ained if not com m enced wit hin t he t im e prescribed by t he st at ut e in respect of t hat right . Apart from t he legislat ive act ion is no period of prescribing lim it at ion recognised under t he general law and t herefore any necessarily t o be arbit rary. A st at ut e prescribing lim it at ion however does not confer a right of act ion nor speaking generally does not confer on a person a right t o relief which has been barred by efflux of t im e prescribed by enact ing periods of lim it at ion is t o ensure t hat act ions are com m enced wit hin a part icular period, t he availabilit y of evidence first ly docum ent ary as well as oral t he t he claim against him ; t o cont est defendant law. The necessit y t he st at ut e t o enable t o assure fixed by t he 7 t hose who dorm ient ibus, secondly t o give effect t o t he principle t hat law does not assist a person who is inact ive and sleeps over his right s by allowing t hem when challenged or disput ed t o rem ain dorm ant wit hout assert ing t hem in a court of law. The principle which form s t he basis of t his rule is expressed in t he m axim um j ura vigilant ibus, subveniunt ( t he laws give help t o t hose who are wat chful sleep) . t o Therefore t he obj ect of t he st at ut es of lim it at ions is t o com pel a person t o exercise his right of act ion wit hin a reasonable t im e as also t o discourage and suppress st ale, fake or fraudulent claim s while t his is so t here are t wo aspect s of t he st at ut es of lim it at ion t he one concerns t he ext inguishm ent of t he right if a claim or act ion is not com m enced wit h a part icular t im e and t he ot her m erely bare t he claim wit hout affect ing t he right which eit her rem ains m erely as a m oral obligat ion or can be availed of t o furnish t he considerat ion for a fresh st at ut e, obligat ion. Where enforceable prescribing t he lim it at ion ext inguishes t he right , it affect s subst ant ive right s while t hat which purely pert ains t o t he com m encem ent of act ion wit hout t ouching t he right is said t o be procedural.” a ( em phasis supplied)

11. This Court while exercising supervisory j urisdict ion under Art icle 227 of t he Const it ut ion does not act as t he Court of First Appeal t o re- appreciat e, reweigh evidence or fact s upon which det erm inat ion under challenge is based. Hon’ble Suprem e Court , in t he case of Garm ent Craft v. Prakash Chand Goel, report ed as ( 2022) 4 SCC 181, has held as under: t he counsel “ 1 5 . Having heard t he part ies, we are clearly of t he view t hat t he im pugned order [ Prakash Chand Goel v. Garm ent Craft , 2019 SCC OnLine Del 11943] is cont rary t o law and cannot be sust ained for several reasons, but prim arily for deviat ion from t he lim it ed j urisdict ion exercised by t he High Court under Art icle 227 of t he Const it ut ion I ndia. The High Court exercising supervisory j urisdict ion does not act as a court of first appeal t o reappreciat e, reweigh t he evidence or fact s upon 8 which t he det erm inat ion under challenge is based. Supervisory j urisdict ion is not t o correct every error of fact or even a legal flaw when t he final finding is j ust ified or can be support ed. The High Court is not t o subst it ut e it s own decision on fact s and conclusion, for t hat of t he inferior court or t ribunal. [ Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, ( 2010) 1 SCC 217 : ( 2010) 1 SCC ( Civ) 69] The j urisdict ion exercised is in t he nat ure of correct ional j urisdict ion t o set right grave derelict ion of dut y or flagrant abuse, violat ion of fundam ent al principles of law or exercised sparingly in appropriat e cases, like when t here is no evidence at all t o j ust ify, or t he finding is so perverse t hat no reasonable person can possibly com e t o such a conclusion t hat t he court or t ribunal has com e t o. I t is axiom at ic t hat such discret ionary relief m ust be exercised is no m iscarriage of j ust ice. j ust ice. The power under Art icle 227 t o ensure t here 1 6 . Explaining 227, Art icle j urisdict ion in Est ralla Rubber v. Dass Est at e ( P) Lt d., ( 2001) 8 SCC 97, has observed : ( SCC pp. 101- 102, para 6) t he scope of Court t his I ndia t he Const it ut ion of “ 6. The scope and am bit of exercise of power and j urisdict ion by a High Court under Art icle 227 is exam ined and explained in a num ber of decisions of t his Court . The exercise of power under t his art icle involves a dut y on t he High Court t o keep inferior court s and t ribunals wit hin t he bounds of t heir aut horit y and t o see t hat t hey do t he dut y expect ed or required of t hem in a legal m anner. The High Court is not vest ed wit h any unlim it ed prerogat ive t o correct all kinds of hardship or wrong decisions m ade wit hin t he lim it s of t he j urisdict ion of t he subordinat e court s or t ribunals. Exercise of t his power and int erfering wit h t he court s or t he orders of t ribunals is rest rict ed t o cases of serious derelict ion fundam ent al flagrant violat ion of of dut y and principles of law or j ust ice, where if t he High Court does not rem ains uncorrect ed. I t is also well set t led t hat t he High Court while act ing under t his Art icle cannot exercise it s power as an appellat e court or subst it ut e it s own j udgm ent in place of t hat of t he subordinat e court t o correct an error, which is not apparent on t he face of t he record. The High Court can set aside or ignore t he findings of fact s of an int erfere, a grave inj ust ice 9 inferior court or t ribunal, if t here is no evidence at all t o j ust ify or t he finding is so perverse, t hat no reasonable person can possibly com e t o such a conclusion, which t he court or t ribunal has com e t o.” ”

12. Learned Trial Court has dealt all t he issues in great det ails and has ret urned finding against pet it ioner as well as Naryan Singh. Reading of t he Trial Court ’s j udgm ent reveals t hat plaint iffs in bot h t he suit s had m iserably failed t o subst ant iat e t heir plea of adverse possession. Learned Trial Court furt her held t hat part of t he land, over which bhum idhari right was claim ed by pet it ioner and Narayan Singh, is public ut ilit y land. Sect ion 132 of Zam indari Abolit ion and Land Reform s Act , 1950 prohibit s grant of bhum idhari right over public ut ilit y land.

13. Since t he m at t er is concluded by concurrent findings of fact ret urned by all t he t hree court s below and learned Counsel for t he pet it ioner could not point out any j urisdict ional or ot her m anifest error, which m ay warrant int erference supervisory j urisdict ion of t his Court , t herefore, t his Court declines t o int erfere wit h t he view t aken by learned Trial Court , as affirm ed by Appellat e Court s. Writ pet it ion t hus fails and is dism issed. ( M a n o j K u m a r Ti w a r i , J.) 2 2 .9 .2 0 2 5 Pr PRABODH KUMAR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3a082a00a95aff911a9559743af8f21c50602ff6eae4e 61af3aeab198d462503, postalCode=263001, st=UTTARAKHAND, serialNumber=0DC111E8D8CA66E16B940EFDF806ACCC1AB 588052DF6FCA58C67F3C91957BE53, cn=PRABODH KUMAR 10