Holding

The Supreme Court held that the High Court erred; the Consolidation Officer’s finding that the appellant was in continuous possession and the respondents failed to prove twelve years of possession is conclusive, so the respondents did not acquire rights by adverse possession under Section 210.

Summary

The appellant, Mazhar Hassan, purchased land from decree holders who had obtained a decree of eviction against the respondents under Section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act. The decree holders' execution application was dismissed as time‑barred, after which the appellant obtained mutation of the land in his name. The respondents later claimed ownership by adverse possession under Section 9A(2) of the Uttar Pradesh Consolidation of Holdings Act, and the Settlement Officer upheld their claim, but the Deputy Director of Consolidation set aside that order. The High Court restored the Settlement Officer's order, holding that the respondents became sirdars because the decree was not executed within the limitation period. The Supreme Court held that the High Court erred by ignoring the Consolidation Officer’s finding that the appellant had been in continuous possession for over twelve years and that the respondents failed to prove such possession, which is essential under Section 210 of the Zamindari Act. Consequently, the Supreme Court set aside the High Court judgment and restored the orders of the Deputy Director of Consolidation and the Consolidation Officer.

Issues considered

Whether the respondents perfected rights by adverse possession and became sirdars under Section 210 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act when the decree of eviction was not executed within the limitation period.
Whether the High Court was correct in deeming the respondents in possession merely because the execution application was time‑barred, without considering actual possession evidence.
Whether the finding of the Consolidation Officer on continuous possession is conclusive and determinative of ownership.

Legislation cited

Constitution of Indias. Article 226
Uttar Pradesh Zamindari Abolition and Land Reforms Acts. 209, s. 210

Subjects

adverse possessionSection 210Uttar Pradesh Zamindari Abolition and Land Reforms ActUttar Pradesh Consolidation of Holdings Actsirdar rightsexecution of decreelimitation periodland mutation

Judgment

[2008] 1 S.C.R. 404

?.....
A MAZHAR HASSAN
v.
GANGU SINGH AND ORS.
(C.A. No. 186 of 2008)
JANUARY 9, 2008
B
[DR. ARIJIT PASAYAT AND AFTAB ALAM, JJ.]
)'

Land Reforms:

Uttar Pradesh Zamindari Abolition and Land Reforms
c Act- ss.209 & 210- Decree of eviction against respondent in
suit under s.209 of the U.PZ.A & L.R. Act - Execution
application rejected as time barred - Decree holders sold
disputed land to appellant who got land mutated in his name
- Objection by respondents u/s. 9A(2) of the UP Consolidation
D of Holdings Act to mutation and claim for ownership by virtue
of adverse possession - Objection rejected by Consolidation
Officer - But upheld in appeal by Settlement Officer - Dy ,.
Director set aside order of Settlement Officer - Respondents
filed writ petition before High Court which restored order of
E Settlement Officer- On appeal, Held: Finding of Consolidation
Officer that respondents were unable to prove their continuous
possession for 12 years and on the contrary appellant was in
possession, was conclusive - High Court erred in overlooking
this finding and in holding that respondents would be deemed
F to be in possession simply because execution application was ~ "
rejected as time barred - High Court erred in not giving proper
consideration to plea of appellants that respondents had
voluntarily handed over possession to decree holders and for
that reason the decree was not put in execution in time - UP
Consolidation of Holdings Act- s. 9A(2) - Constitution of India,
G
1950 -Art. 226 -Adverse possession.
The land in dispute was situated in a village in the
State of Uttar Pradesh. In respect of the said land, 'R'and
her sisters, heirs of the original tenure holder, obtained a
H 404
..
'
MAZHAR HASSAN v. GANGU SINGH AND ORS. 405

decree of eviction against the Respondents in a suit filed A
under Section 209 of the U.P.Z.A. & L.R. Act. The decree
was affirmed by the High Court in second appeal. The
decree holders 'R' and her sisters filed an execution
application which was, however, dismissed as time
barred. Thereafter, 'R' and her sisters sold the disputed s
land to the appellant, who, on the basis of the sale deed,
got his name mutated in the revenue records.
Meanwhile, consolidation operations commenced in
the village and the Respondents made an objection under
Section 9-A(2) of the U.P.Consolidation of Holdings Act to C
expunge the name of appellant and to enter their names
in his place, claiming ownership of the disputed land by
virtue of adverse possession. The objection was rejected
by the Consolidation Officer, but upheld in appeal by the
Settlement Officer who held that the Respondents had o
perfected Sirdari rights over the land in dispute by adverse
possession. Deputy Director of Consolidation set aside
~ the order of Settlement Officer. Respondents filed writ
petition before the High Court which restored the order
of Settlement Officer. Hence the present appeal. E
Allowing the appeal, the Court
HELD:1.1. In terms of Section 210 of the U.P.Z.A. &
L.R. Act, two conditions are required to be fulfilled if the
decree holder of a decree obtained in a suit under Section
209 of the U.P.Z.A. & L.R. Act has to lose his rights; first, F
I.- he should fail to execute the decree within the prescribed
period of limitation and secondly, the person (claiming
adverse rights) should take or retain possession of the
disputed land. Having noticed the requirement of law, the
High Court held in favour of the Respondents primarily G
relying upon the fact that the execution application filed
~ by the decree holders 'R' and her sisters was dismissed
as being barred by limitation. Though, it was contended
before the High Court that after the decree was affirmed
by the High Court, the judgment-debtors (Respondents) H
406 SUPREME COURT REPORTS [2008] 1 S.C.R

A had voluntarily handed over possession of the disputed ,.,. •
plots to the decree holders and the object of execution
stood fulfilled and it was for that reason that the decree
was not put in execution in time and was allowed to
become time barred, the High Court brushed aside the
B contention without any proper consideration. The High
Court was in serious error in not giving a proper
consideration to the plea raised by the appellant. [Paras
5, 6] [409-E, F; 410-A, B, C; 411-A, B]
,
1.2. The order of the Consolidation Officer is totally
c based on the issue of possession of the disputed plots
by the contending parties. The issue was not only raised
before the consolidation authorities but it formed the core
of the dispute. Both sides produced documentary
evidences in respect of their claim of possession over the
D disputed plots and the Consolidation Officer, on a careful
examination of the materials produced before him, came
to find and hold that the Respondents were unable to
prove their continuous possession over the disputed land ).-
for 12 years and on the contrary it was the appellant who
E was in possession of the disputed plots. The finding of
possession recorded by the Consolidation Officer was
conclusive to the dispute and the High Court was in error
in overlooking this finding and holding that the
Respondents would be deemed to be in possession
simply because the execution application filed by 'R' and
F
other decree holders was rejected as being time barred.
...
The order of the High Court is accordingly set aside and
the orders passed by the Deputy Director of Consolidation
and Consolidation Officer is restored. [Paras 6, 7] [411-B,
C, D; 412-C, D]
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 186
~
of 2008.
From the final Judgment and Order dated 20.7.2005 of
the High Court of Judicature at Allahabad in C.M.W.P. No. 3620/
H 1979.
MAZHAR HASSAN v. GANGU SINGH AND ORS. 407
[AFTAB ALAM, J.]
:J.: H.C. Kharbanda, A.K. Sharma and M.P. Shorawala for the A
Appellant.
Dhiraj K. Agrawal, Asha Taneja and Mridula Ray Bharadwaj
for the Respondents.
The Judgment of the Court was delivered by B

-{ AFTAB ALAM, J. 1. Leave granted.
• 2. This appeal is directed against the judgment and order
dated July 20, 2005 passed by the Allahabad High Court in Civil
Misc.Writ Petition No.3620of1979 (connected with Writ Petition c
No.4216 of 1979). By the impugned order the High Court set
aside the orders passed by the Deputy Director of Consolidation
and the Consolidation Officer and restored the order of the
Settlement Officer, Consolidation. The order of the Settlement
Officer, Consolidation, dated September 12, 1978, had, in turn,
D
set aside the order of the Consolidation Officer and had directed
for entering the names of the respondents in the revenue records
~
in respect of the disputed pieces of land. The dispute relates to
plot Nos.960/1, 971/1, 973/1, 982/2, 988/1, 989, 1008/2, 1010/
1, 1010/2, 1011 and 1013 situate in village Dhampur District
Bijnor in the State of Uttar Pradesh. E

- 3. The material facts read and may be stated thus. One
Hetram was the original tenure holder of the disputed plots. His
heirs Smt.Ram Murti Devi and her four sisters were able to obtain
a decree of eviction against the respondents in a suit (being F
J._
Suit No.161) filed by them under Section 209 of the U.P.Z.A. &
LR.Act. The decree insofar as the disputed plots are concerned,
was affirmed up to the High Court in Second Appeal and a cross
appeal filed by the parties. The decree holders filed an execution
application on May 21, 1965, which was registered as execution
G
case No.21/69. The application was, however, dismissed by
order, dated July 26, 1969 because the decree was put to
execution beyond the period of limitation. After the rejection of
their execution application, Smt.Ram Murti Devi and others
executed a sale deed, dated April 13, 1970 of a number of plots
H
408 SUPREME COURT REPORTS [2008] 1 S.C.R.
·\,.
A including the disputed plots in favour of one Ali Hasan (the
deceased father of the present appellant). On the basis of the
sale deed, Ali Hasan was able to get his name mutated in the
revenue records by an order passed ex-parte. Later on, there
were disputes between Ali Hasan and the respondents in regard
B to possession over the disputed plots and the dispute gave rise
to proceedings under Sections 145 and 146, Cr.P..C. Those r
proceedings were concluded by order: dated September 11,
1972 by which the disputed plots were released in favour of the
respondents.
c 4. In the meantime, consolidation operations commenced
in the village and the respondents made an objection under
Section 9-A(2) of the U.P.Consolidation of Holdings Act to
expu.nge the name of Ali Hasan and to enter their names in his
place, claiming ownership of the disputed land by virtue of
D adverse possession. The Consolidation Officer dismissed the
objection filed by the petitioner by order dated July 5, 1978
~
holding that they had not acquired Sirdari rights over the
disputed plots by adverse possession. Against the order of the
Consolidation Officer, the respondents filed an appeal which
E was allowed by the Settlement Officer Consolidation by order,
dated July 12, 1978. The Settlement Officer held and found that
the petitioners had perfected Sirdari rights· over the land in
dispute by adverse possession as the execution case filed by
-•
Smt.Ram Murti Devi and the other decree holders was
".
F dismissed as being barred by limitation. Aggrieved by the order )\

of the Settlement Officer, both Smt.Ram Murti Devi and her
sisters and Ali Hasan filed separate revisions before the Deputy
Director of Conso~idation who by a common order, dated
January 18, 1979, allowed the revisions and set aside the order
of the Settlement Officer. The respondents then moved the High
G
Court in two writ petitions arising from the two revisions. The
writ petitions, as noted above, were allowed by a learned Single
Judge; the orders passed by the Deputy Director of
Consolidation and the Consolidation Officer were set aside and
the order of the Settlement Officer was restored.
H
MAZHAR HASSAN v. GANGU SINGH AND ORS. 409
[AFTAB ALAM, J.]

5. We have heard counsel for the parties and perused the A
materials on record, including the High Court order coming under
appeal and the three orders passed by the consolidation
authorities besides the earlier orders passed in the suit under
Section 209 of the U.P.Z.A. & L.R. Act and the execution
proceeding arising from it. We find that the High Court noticed B
the provision of Section 210 of the U. P.Z.A. &L. R. Act that reads
as follows
"Consequences of failure to file suit under Section 209. If
a suit for eviction from any land under Section 209 is not
instituted by a bhumidar or asami, or a decree for eviction C
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 -
D
(a) where the land forms part of the holding of a bhumidar
with transferable right, become a bhumidar with
transferable rights of such land and the right title and
interest of an asami, if any, in such land shall be
extinguished."
E
The High Court correctly noticed that two conditions are
required to be fulfilled if the decree holder of a decree obtained
in a suit under Section 209 of the U.P.Z.A. & L.R. Act has to
loose his rights; first, he should fail to execute the decree within
the prescribed period of limitation and secondly, the person F
(claiming adverse rights) should take or retain possession of
the disputed land. Having thus noticed the requirement of law,
the High Court framed the following question that arose for its
consideration :
"Short question which arises for adjudication in the two G
writ petition is whether the petitioners perfected rights by
adverse possession and have become sirdar by virtue of
Section 210 of U.P.Z.A. & L.R.Act on the ground that
decree for eviction passed in earlier suit was not executed
and was dismissed as barred by limitation. Section 210 H
410 SUPREME COURT REPORTS [2008] 1 S.C.R.

,:.....,.
A of the U.P.Z.A. & LR.Act reads as under."
It then went on to answer the question in favour of the
respondents (petitioners before the High Court) primarily relying
upon the fact that the execution application filed by the decree
holders (Smt.Ram Murti Devi and her sisters) was dismissed
B as being barred by limitation.

6. Though, it was contended before the High Court that 'r
after the decree was affirmed by the High Court the judgment-
debtors (the present respondents) had voluntarily handed over
c possession of the disputed plots to the decree holders and the
object of execution stood fulfilled and it was for that reason that
the decree was not put in execution in time and was allowed to
become time barred, the High Court brushed aside the
,,_
contention without any proper consideration. In this regard, the
High Court observed as follows :
D
"Even this fact is not there in the pleadings of the parties
.,_
before the Consolidation Authorities. It appears that this
plea has been raised for the first time in the writ petition .
and there is no material on record to substantiate the
E same. In absence of any material to show that such a plea
was ever raised before the courts below, the respondent
cannot be permitted to raise a new plea, touching factual
aspect of the matter, for the first time in the writ petition."
It further observed as under: \.-
F ...
"In the absence of any material to establish that Smt.Ram
Murti Devi and others who are the vendor of Ali Hasan
came into the possession over the plots in dispute after
the decree of eviction. Provision of Section 210 of U.P.Z.A.
& L.R. Act are applicable with full force as the decree of
G
eviction could not be executed and was dismissed as
time barred. Thus the right of Smt.Ram Murti Devi and
others in the plot in dispute stood extinguished. Once they
were left with no right in the plots in dispute, no right would
accrue in favour of Ali Hasan on the strength of any sale
H
MAZHAR HASSAN v. GANGU SINGH AND ORS. 411
[AFTAB ALAM, J.]

deed executed by them. On the contrary the petitioners A
.,._jt
perfected their rights in accordance with Section 210 of
the U.P.Z.A. & LR.Act."
We are afraid the High Court was in serious error in making
the above quoted observations and not giving a proper
consideration to the plea raised by the appellant. We find that 8
the order of the Consolidation Officer is totally based on the
issue of possession of the disputed plots by the contending
~
' parties. The issue was not only raised before the consolidation
~
authorities but it formed the core of the dispute. Both sides
produced documentary evidences in respect of their claim of c
possession over the disputed plots and the Consolidation
Officer, on a careful examination of the materials produced
before him, came to find and hold that the respondents were
unable to prove their continuous possession over the disputed
land for 12 years and on the contrary it was the appellant who D
was in possession of the disputed plots. The relevant extract
from the order of the Consolidation Officer is as follows :
"From the side of plaintiff, land revenue receipt has been
filed, which is neither goes to prove the plaintiff as sirdars
nor bhumidar. Against this, from the side of defendant, E
copy of extract of we years KHASRA from: 1368F to
1380F, khasra extract of 1378F, 1380F, 1370F, 1371 F,
1372F, 1373F, 1374F, 1375F, 1376F, 1377F have been
filed, which goes to show that the continuous 12 years,
possession of plaintiff, Gangoo Singh & others over the F
.J
J. disputed land is not proved. To the contrary defendants
are recorded bhumidar or the disputed plots of Khata
no. 9, name of defendant Ali Hasan has been recorded
on the basis of sale deed dated 13.4. 70 executea by
defendants Ram Moorti & others against which, there is G
no evidence of plaintiff Gangoo Singh and others, which
could confer bhumidar right over the disputed land in favour
of Gangoo Singh and others. In support of his case,
Gangoo Singh has recorded his own statement but no
other independent witness was produced to prove their H
412 SUPREME COURT REPORTS [2008] 1 S.C.R.

A possession. Hence in this way the plaintiff has been fully
failed to prove their 12 years continued unauthorized
possession. Therefore, plaintiff has not been able to prove
as bhumidars of the disputed land. The defendant Ram
Moorti and others have been proved as bhumidars of the
B disputed Khata No.65 and the defendant Ali Hasan as
bhumidars of the disputed Khata No.9 issue nos. 1 & 2
are decided accordingly."
The finding of possession recorded by the Consolidation
Officer was conclusive to the dispute and the High Court was in
C error in overlooking this finding and holding that the respondents
would be deemed to be in possession simply because the
execution application filed by Smt.Ram Murti Devi and other
decree holders was rejected as being time barred.
D 7. In light of the discussions made above, we find that the
order of the High Court is quite unsustainable. We accordingly
set aside the order of the High Court and restore the orders
passed by the Deputy Director of Consolidation and
Consolidation Officer. The appeal is allowed but with no order
as to costs.
E
B.B.B. Appeal allowed.