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2011 DIGILAW 476 (PNJ)

Haryana State v. Gokal Chand

2011-02-07

L.N.MITTAL

body2011
JUDGMENT Mr. L.N. Mittal, J. (Oral).- CM No.1743-C of 2011 This is application for condonation of delay of 155 days in filing the appeal. It is alleged that the delay occurred on account of rush of work. It is not mentioned as in which office there was rush of work i.e in the office of the appellants or in the office of the Advocate General. However, affidavit of Assistant from the office of Advocate General has been annexed with the application giving indication that the delay occurred in the office of Advocate General on account of rush of work. 2. I have heard learned counsel for the applicant-appellants and perused the case file. 3. On inquiry, learned Additional Advocate General, Haryana appearing for the appellants, states that there are about 150 Law Officers in the office of Advocate General, who are assigned to appear in 51 Benches including High Court and Tribunals. Even then, about 100 Law Officers are surplus and it is not explained as to how there could be rush of work in the office of Advocate General. Except one vague and general sentence that delay in filing the appeal has occurred due to rush of work, there is no explanation whatsoever for the delay of 155 days in filing the appeal. Ordinarily Courts are liberal in condoning the delay and more latitude is shown in favour of State and its instrumentalities on account of bureaucratic approach and procedural delays, but in the instant case, the averment made in the application makes it manifest that there is no ground much less sufficient ground for condoning the delay of more than five months in filing the appeal. It is also worth pointing out that affidavit of an official of the rank of Assistant only has been annexed with the application instead of filing affidavit of some responsible officer. 4. For the reasons aforesaid, I find no ground, much less sufficient ground, for condoning the delay of 155 days in filing the appeal. The application is accordingly dismissed. Main appeal. 5. Since application for condonation of delay in filing the appeal has been dismissed, the appeal is liable to be dismissed as time barred. However, even on merits, the appellants cannot succeed. 6. State of Haryana and its Officers (defendants) have filed the instant second appeal, having remained unsuccessful in both the Courts below. 7. Main appeal. 5. Since application for condonation of delay in filing the appeal has been dismissed, the appeal is liable to be dismissed as time barred. However, even on merits, the appellants cannot succeed. 6. State of Haryana and its Officers (defendants) have filed the instant second appeal, having remained unsuccessful in both the Courts below. 7. Suit was filed by respondents-plaintiffs alleging that they are owners of the land measuring 4 kanals being legal heirs of previous owners Holakar Mal (father of plaintiffs No.1 and 2) and Sita Ram grandfather of plaintiff Nos.3 and 4. However, defendants have encroached upon area measuring about 200 square yards out of the aforesaid land by constructing boundary wall. Accordingly, plaintiffs sought decree for possession of the said encroached area by removal of construction made by the defendants. 8. Defendants inter alia pleaded that they are in possession of the suit property for more than 40 years. They are running office of Block Development and Panchayat Officer and also running a Veterinary hospital in the premises in question. The plaintiffs are not entitled to seek possession of the said land after such a long period. Various other pleas were also raised. 9. Learned Additional Civil Judge (Senior Division), Rewari vide judgment and decree dated 15.05.2009 decreed the plaintiffs’ suit directing the defendants to remove their possession from suit land in 60 days and to handover vacant possession thereof to the plaintiffs. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Rewari vide judgment and decree dated 26.05.2010 with slight modification that defendants are liable to remove possession within 60 days and handover vacant possession of the disputed portion to the plaintiffs and on failure to do so, the disputed portion of the land shall be deemed to have been acquired by the defendants and they shall be liable to pay compensation for the same as per Collector’s rate prevalent on the date of institution of the suit with statutory benefits in accordance with the provisions of the Land Acquisition Act, 1984 within 60 days. Feeling aggrieved, defendants have preferred the instant second appeal. 10. I have heard learned counsel for the appellants and perused the case file. 11. It is proved from documentary evidence that plaintiffs are owners of the suit land. Feeling aggrieved, defendants have preferred the instant second appeal. 10. I have heard learned counsel for the appellants and perused the case file. 11. It is proved from documentary evidence that plaintiffs are owners of the suit land. Even the defendants have not claimed that they are owners of the suit land comprised of khasra No.95/2. The defendants rather claimed ownership over adjoining land of khasra No.95/1. The plaintiffs have examined Hira Lal PW-3 retired Sadar Kanungo. He proved demarcation report made by him after demarcation of the suit land. According to his report, defendants have encroached upon suit portion measuring 200 square yards out of the land of khasra No.95/2 belonging to the plaintiffs. The said demarcation report stands unrebutted. From the said demarcation report, it is proved that the defendants have encroached upon the suit portion of the land belonging to the plaintiffs. Defendants have not led any evidence to rebut the aforesaid demarcation report. 12. Learned counsel for the appellants contended that the demarcation report is not correct and the demarcation was made in the absence of the defendants. The contention cannot be accepted. Learned counsel for the appellants is unable to refer to any evidence to depict that the demarcation was made in the absence of the defendants. Learned counsel for the appellants has not been able to point out from the cross-examination of Hira Lal PW-3 that the demarcation was made in the absence of the defendants. Moreover, the defendants did not make any effort to get the suit land demarcated to rebut the demarcation report of Hira Lal PW-3. On the other hand, there is concurrent finding by both the Courts below that defendants have encroached upon suit portion of the land belonging to the plaintiffs. The said finding is based on proper appreciation of the evidence on record and is not shown to be perverse or illegal so as to warrant interference in second appeal. At the risk of repetition, it has to be highlighted that there is nothing on record to doubt or discard the demarcation report made by Hira Lal PW-3 which proves the encroachment made by the defendants on the plaintiffs’ land. 13. Defendants have not taken the plea of having become owners of the suit portion of the land by adverse possession. 13. Defendants have not taken the plea of having become owners of the suit portion of the land by adverse possession. Consequently, plaintiffs being owners thereof are entitled to possession thereof and suit of the plaintiffs has, therefore, been rightly decreed by the Courts below. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is, therefore, dismissed in limine. 14. However, appellants/defendants are given three months from today to handover vacant possession of the suit portion of the land to the plaintiffs/respondents, failing which the consequences regarding payment of compensation envisaged by the judgment and decree of the lower appellate Court shall follow. -----------0.K.B.0------------