Holding

A person who possesses land as a mortgagee cannot acquire title by adverse possession and therefore cannot be recorded as Sirdar under section 210 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.

Summary

The appellant, the original recorded owners of certain lands in Uttar Pradesh, challenged the recording of Jan Mohammad as Sirdar under section 210 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, on the basis of his alleged adverse possession. The Consolidation Officer had initially recorded him as Sirdar, but the appellate authority dismissed the appeal, holding that the alleged mortgage was not proved by a registered document. The revisional authority, relying on early khasra entries, concluded that Jan Mohammad possessed the land as a mortgagee and that such possession could not be adverse. The High Court reversed this revisional order, stating that the mortgage plea was first raised in revision. The Supreme Court held that possession as a mortgagee cannot become adverse without evidence, that oral evidence of an unregistered mortgage deed is admissible for collateral purposes, and that the High Court erred in overturning the revisional decision. Consequently, the appeal was allowed, restoring the revisional order and denying the recording of Jan Mohammad as Sirdar.

Issues considered

Whether a person who entered possession of land as a mortgagee can acquire title by adverse possession and be recorded as Sirdar under section 210 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.
Whether oral evidence of an unregistered mortgage deed can be admitted to ascertain the nature of possession.
Whether the High Court was justified in reversing the revisional authority's decision.

Legislation cited

Uttar Pradesh Consolidation of Holdings Act, 1953s. 11, s. 48, s. 9A
Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950s. 209, s. 210

Subjects

adverse possessionmortgageeSirdarUttar Pradesh land reformsevidenceunregistered deedsection 210consolidation act

Judgment

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VIRENDRA NATH THR. P.A. HOLDER R.R. GUPTA A
v.
MOHD. JAMIL AND ORS.

JULY 14, 2004

[SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.] B

- Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 :

S. 210-Claim for recording as Sirdar alleging adverse possession--
Recorded owners resisting the claim contending possession of claimant as
mortgagee-Held, revisional court correctly held the claimant not entitled C
to be recorded as Sirdar-Though the mortgage deed was unregistered and
being in possess ion of mortgagee could not be produced, evidence could
be admittedfor collateral purpose ofascertaining the nature ofpossession-
Evidence-Oral evidence supported by khasra entries-Evidentiary value
of-U.P. Consolidation of Holdings Act, 1953-S. 9A. D
Predecessor-in-interest of the respondents (claimant) filed an
objection u/s 9A of the U.P. Consolidation of Holdings Act, 1953 for
recording him as Sirdar under s. 210 of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 on the basis of his alleged E
adverse possession on the land in dispute. The claim was accepted. The
original recorded owners filed an appeal contending that in view of
khasra entires for the basic Fasli years 1359 and 1361, the claimant
came in possession of the land as a mortgagee and as such he could
not acquire any title by adverse possession. The appellate authority
·~
dismissed the appeal holding that mortgage was not evidenced by any F
registered tlocument and oral evidence of mortgage could not be relied
on. The revision of the recorded owners was allowed holding that
possession of the claimant could be only permissive as a mortgagee.
The High Court in the writ petition filed by the claimant reversed the
revisional order holding that plea of mortgage was raised for the first G
time in revision. Aggrieved, the original recorded owners filed the
present appeal.

Allowing the appeal, the Court

HELD: 1.1. In the state of the evidence on retord, the revisional H
93
94 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A court was fully justified in coming to the conclusion that the claimant
who came in possession of the land as mortgagee, cannot be recorded
as Sirdar or. Bhumidar under s. 210 of the U.P. Zamindari Abolition
and Land Reforms Act, 1950. (98-B-C)

B 1.2. From the orders passed by the authorities under the U.P.
Consolidation· of Holdings Act 1953, it is apparent that throughout the
stand of the original recorded owner was that the claimant came in
possession of the land as a mortgagee. The argument of permissive
possession was advanced before the revisional authority on the plea of
mortgage. The High Court committed a serious error in upsetting the
C judgment of the revisional court on the ground of alleged want of plea
of permissive possession by the original recorded owner. [98-D-E)

1.3. The High Court had no justification to upset the decision of
the revisional authority. The earliest khasra records clearly show
D nature of possession of the claimant on the lands as mortgagee. Even
though mortgage-deed which was unregistered and being in possession
of mortgagee could not be produced by the mortgagor, evidence could
be admitted for collateral purpose of ascertaining the nature of
possession of the claimant. There is no evidence that the possession of
E the claimant as mortgagee ever became adverse to the knowledge of.
the original owner, that is, the mortgagor. [96-G-H; 97-A-B)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4007 of
1999.

F From the Judgment and Order dated 7.8.97 of the Allahabad High
Court in C.M.W.P. No. 3082 of 1975.

T.N. Singh, V.K. Singh and S.N. Singh for the Appellant.

J.P. Goyal, Rameshwar Prasad Goyal for K.K. Gupta, for the
G Respondents.

The Judgment of the Court was delivered by

DHARMADHIKARI, J. : This appeal has been preferred against the
H judgment dated 07 .8.1997 of the High Court of Allahabad whereby
VIRENDRA NA TH v. MOHD. JAMIL [DHARMADHIKARI, J.] 95

revisional order dated I 0.2.1975 passed by the Deputy Director of A
Consolidation, Allahabad, has been set aside and the order dated 26.3.1974
passed by the Assistant Settlement Officer of Consolidation has been
restored.

Relevant facts leading to filing of this appeal are as under :-
B
In relation to the lands in question, an objection was filed by Jan
Mohammad (represented now by the respondents) in the court of Consoli-
dation Officer under provision of section 9A of Uttar Pradesh Consoli-
dation of Holdings Act, 1953 [for short the Consolidation Act, 1953] for
declaring and recording him on the land as Sirdar in accordance with C
section 210 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act,
1950 [for short the Abolition Act]. The claim of Jan Mohammad was on
the basis of his alleged adverse possession on the land for long period of
40 years. The Consolidation Officer accepted case of Jan Mohammad and
recorded him as Sirdar on the land.
D
The recorded owners of the lands preferred an appeal under section
11 of the Consolidation Act to Assistant Settlement Officer of Consolida-
tion. In the appeal, it was pointed out that in the basic years offasali 1359
and 1361 in the revenue papers i.e. Khasras name of Jan Mohammad was
recorded in respect of the lands as a mortgagee [Murtheen]. The case of E
the petitioners before Appellate Authority was that Jan Mohammad came
in possession of the property as a mortgagee and could not acquire any
title by adverse possession. The appellate authority took the view that the
mortgage of the land was for a loan of more than Rs.JOO and the mortgage-
deed required compulsory registration. The appellate court came to the F
conclusion that as the alleged mortgage is not evidenced by any registered
document, the oral evidence of mortgage cannot be relied. The Appellate
Authority, therefore, dismissed the appeal and maintained the order of the
Consolidation Officer directing recording of name of Jan Mohammad as
having acquired ownership to the land by adverse possession.
G
The petitioners then preferred a revision under section 48 of the
Consolidation Act to the court of Deputy Director of Consolidation,
Allahabad. The revisional authority took the view that though the
unregistered written mortgage-deed being in possession of the mortgagee,
could not be produced, oral evidence was admissible to asce11ain the nature H
96 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R. •
A .of possession of Jan Mohammad on the land. The revisional authority
relied on the earliest entries in the Khasaras of basic years to come to the
conclusion that Jan Mohammad came into possession of the land as
mortgagee. His possession could not be held to be adverse. His possession
would be deemed to be only permissive as a mortgagee. The revisional
B authority, therefore, relying on the entry in khasaras of fasli 1359 where
Jan Mohammad is recorded as a mortgagee, allowed the revision and
dismissed his claim for being recorded as Sirdar of the land.

The legal representatives of Jan Mohammad preferred writ petition
to the High Court of Allahabad.
c
The High Court in the writ petition reversed the judgment of the
revisional authority on the ground that the plea of relationship of mortgage
and mortgagee and the possession of Jan Mohammad to be permissive was
raised for the first time in revision. The High Court held that the revisional
D authority was in error in upsetting orders of the lower authorities.

Learned counsel representing the original recorded owner of the lands •
in this appeal submits that claim of Jan Mohammad was based on alleged
adverse possession on the land. It was an error on the part of the High Court
to hold that relationship of mortgage and mortgagee never came up for
E consideration before the Consolidation Officer and Assistant Settlement
Office of Consolidation. The o;der of the appellate authority has been
placed on record of this appeal which clearly shows that the alleged
relationship of mortgage and mortgagee between the parties was under
discussion. Despite the entry in the remarks column of the Khasara of the
f fasli years 1359 and 1361 showing Jan Mohammad as mortgagee on the
land, his possession was held to be adverse and his claim for recording him
as Sirdar on the land was allowed.

Learned counsel appearing for the respondents has filed written
submissions. In opposing the appeal, it is contended that the revisional
G Authority exceeded its powers of revision under section 48 of the
Consolidation Act.

After hearing the learned counsel for the parties and perusing the
record we find that the High Court had no justification to upset the decision
H of the revisional Authority. The earliest khasara records clearly show
VIRENDRA NATH v. MOHD. JAM°IL [DHARMADHIKARI, J.] 97

• nature of possession of Jan Mohammad on the lands as mortgagee. Even A
though, mortgage-deed which was unregistered and being in possession of
mortgagee, could not be produced by the mortgagor, evidence could be
admitted for collateral purpose of ascertaining the nature of possession of
Jan Mohammad. There is no evidence that the possession of Jan Mohammad
as mortgagee ever became adverse to the knowledge of the original owner B
that is the mortgagor. The claim for recording Jan Mohammad as Sirdar
on the land was filed under section 2 I 0 of the Abolition Act which reads
as under :-

"210. Consequences of failure to file suit under section 209.- If
a suit for eviction from any land under section 209 is not instituted C
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-
D
(a) where the land forms part of the holding ofa bhumidhar with
transferable rights, become a bhumidhar with 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 E
non-transferable 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 F
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 G
asami belonging to a Scheduled Tribe.

Section 209 of the Abolition Act confers right on a recorded owner
of the land to eject persons occupying land· without title. In case of a
~..,. mortgage, the mortgagor has no right in law to eject a mortgagee until the
mortgage is redeemed. Even though, the mortgage was not by any H
98 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A registered instrument, it is not disputed that the possession of the land was • •
taken by Jan Mohammad as a mortgagee. If his entry on the land was as
mortgagee, nature of his possession would continue to be as mortgagee
unless there is evidence to show that, at any point of time, he asserted his
adverse title, by repudiating his possession as mortgagee and continued in
B adverse possession for the prescribed period of more than 12 years to the
knowledge of the mortgagor. From none of the orders either of the original
or appellate authority, any evidence seems to have been led to establish
date or period from which the possession of Jan Mohammad became
adverse to the knowledge of the recorded owner. In the state of above
C evidence on record, the revisional court was fully justified in coming to
the conclusion that Jan Mohammad, who came in possession of the land
as mortgagee, cannot be recorded as Sirdar or Bhumidar under section 210
of the Abolition Act.

The High Court in reversing the order of the revisional Authority
D erroneously attached undue impo1tance to the fact that there was no
specific plea or evidence led on behalf of the recorded owner that the
possession of Jan Mohammad on the land was permissive. From the orders '
passed by the authorities under the Consolidation Act, it is apparent that
throughout the stand of the original recorded owner, was that Jan Mohammad
E came in possession of the land as a mortgagee. The argument of permissive
possession was advanced before the revisional Authority on the plea of
mortgage. The High Court committed a serious error in upsetting the
judgment of the revisional court on the ground of alleged want of plea of
permissive possession by the original recorded owner.

F Consequently, we allow this appeal, set aside the impugned judgment
dated 07 .8.1997 of the High Court of Allahabad and restore the revisional
order dated 10.2.1975 of Deputy Director, Consolidation.

In the circumstances, we, however, make no order as to costs.
G R.P. Appeal allowed.

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