Possession Of Purchaser Under Executory Contract Of Sale Is Permissive In Character; Can’t Claim Adverse Possession: Allahabad HC
The Allahabad High Court clarified that a purchaser who got into possession under an executory contract of sale would be on only permissive possession and he cannot contend that his possession was adverse. His possession will remain as a permissive one in contradiction to a possession in the case of sale.
The Single-Judge Bench of Justice Saurabh Shyam Shamshery said, ““If case of petitioner is considered in view of averments, it would be a case of an “executory contract” since possession was handed over only on basis of “agreement to sale”, awaiting complete execution of remaining conditions of said sale and only after its execution, it would become a ‘sale’ when title of property got vested with purchaser.”
Advocate Arvind Srivastava represented the Petitioner while C.S.C. Arun Kumar Srivastava represented the Respondent.
The incident is of the year 1973 when an agreement to sale was executed by father of original Respondent in favour of petitioner with regard to a plot located at Village Pakbara of District Moradabad, for Rs. 9,000 out of which Rs. 7,000 was paid and possession of property was given to petitioner and rest of Rs. 2000 was required to be paid at the time of execution of sale deed. Petitioner remained silent for many decades and kept waiting for execution of sale-deed and finally filed a suit for specific performance in the year 2011. In the same year, the original Respondent filed a suit for permanent injunction against the petitioner.
The petitioner had also filed a suit under Section 229- B of U.P. Zamindari Abolition and Land Reforms Act, 1950 for declaration of his rights over the plot in dispute since his possession on plot in dispute was more than 12 years and the original contesting respondent failed to execute agreement for sale. This suit was, however, dismissed. Appeals before the Commissioner and Board of Revenue were dismissed. Aggrieved thereby, the Petitioner approached the High Court.
Reference was made to Section 209(a) of Act, 1950 which pre-supposes that possession was without consent of Bhumidhar, Sirdar or Asami or the Gram Sabha and if possession of person was a permissive one, a suit cannot be maintained under Section 209 of Act, 1950, therefore, its consequence as contemplated in Section 210 of Act, 1950 would not follow.
The Bench stated that as per the averments, it would be a case of an “executory contract” since possession was handed over only on basis of “agreement to sale”, awaiting complete execution of remaining conditions of said sale. Reliance was also placed upon the judgment of the Apex Court in Achal Reddy Vs. Ramakrishana Reddiar and others, (1990) 4 SCC 706 wherein it has been held that in case of an executory contract, the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself.
“The above consideration is squarely applicable in present case on facts also that a purchaser who got into possession under an executory contract of sale would be on only permissive in character, he cannot contend that his possession was adverse and it will remain as a permissive possession in contradiction to a possession in the case of sale”, the Bench held.
Thus, finding no ground to interfere in the concurrent findings of three Revenue Courts, the Bench dismissed the writ petition.
Cause Title: Shahid Hussain Respondent v. Board of Revenue U.P. and others [Neutral Citation 2024:AHC:182373]
Appearance:
Petitioner: Advocates Arvind Srivastava, Deepak Kumar Pandey, Krishna Kumar Singh, Rituvendra Singh Nagvanshi
Respondents: C.S.C. Arun Kumar Srivastava, Advocates Dharm Vir Jaiswal, Harsh Vikram, Manoj Kumar Sharma, Shri Ram Pandey
