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2013 DIGILAW 1000 (HP)

Madan v. State Of Himachal Pradesh

2013-12-04

SANJAY KAROL

body2013
JUDGMENT : Sanjay Karol, J. These regular second appeals stand filed under Section 100 of Code of Civil Procedure. Concurrent findings of fact stand challenged by the plaintiffs. 2. Both these appeals arise out of common judgment and decree dated 29.08.2013 passed by learned Additional District Judge-I, Solan, District Solan, H.P., in different Civil Appeals No.16-S/13 of 2013, titled as Madan & another v. State of Himachal Pradesh & others and Civil Appeal No.18-S/13 of 2013, titled as Lachhu v. State of H.P. & others, affirming the judgments and decrees dated 28.03.2013 passed by learned Civil Judge (Senior Division) Court No.1, Kasauli, District Solan, H.P. in different Civil Suit Nos.151/1 of 2006, titled as Madan and others v. State of H.P. & others and Civil Suit No.152/1 of 2006, titled as Lachhu & another v. State of H.P. & others, filed by plaintiffs, amongst others the present appellants. 3. Facts are not in dispute. The plaintiffs, appellants herein, owned and possessed land which was acquired by the State in the year 1982. Acquisition proceedings, which commenced on 10.01.1980 were completed with the passing of award dated 22.10.1982. Plaintiffs filed various petitions under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). Amount of compensation awarded was enhanced in such proceedings which continued till July, 1998. The award passed by the District Judge was subject matter of proceedings before this Court, which judgment, undisputedly has attained finality. Thereafter Collector passed different orders dated 29.09.2005 and 22.08.2006, taking over possession of the land. It is these orders which are subject matter of challenge in the present suits, wherein plaintiffs categorically pleaded that possession of the land in question, was in fact taken over by the State in the year 1984 itself. However, as a matter of policy decision, since plaintiffs hailed from poor section of the society, possession was reverted back to them, with the assurance that it would never be taken back. Thus, plaintiffs prayed for a relief of declaration and injunction, claiming themselves to be owners of the suit land, having perfected their title by way of adverse possession. Plaintiffs wanted the defendants be restrained from taking over possession of this land. 4. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiffs have become owners of the suit property by way of adverse possession as alleged? OPP. Plaintiffs wanted the defendants be restrained from taking over possession of this land. 4. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiffs have become owners of the suit property by way of adverse possession as alleged? OPP. 2. Whether the proceedings under Section 16 of the Land Acquisition Act carried out by the Land Acquisition Collector, Solan and an order dated 22.8.2006 passed in those proceedings is wrong, illegal and void abinitio, as alleged? OPP. 3. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 4. Whether the suit is not maintainable, in the present form? OPD. 5. Whether the plaintiffs are estopped from filing the suit on account of their acts, deeds and acquiescence's? OPD. 6. Whether the plaintiffs have suppressed the material facts from this Court, as alleged? OPD. 7. Whether this Court has no jurisdiction to try the present suit? OPD. 8. Whether the suit is bad for non joinder and mis joinder of parties? OPD. 9. Whether the suit is bad for want of notice under Section 80 CPC? OPD. 10. Whether the plaintiffs have no cause of action to file the present suit? OPD. 11. Whether the suit is not been properly valued for the purpose of court fee and jurisdiction? OPD. 12. Relief. 5. Trial Court dismissed the suits, repelling the plaintiffs' plea of adverse possession as also the fact, that in the year 1984, defendants handed the possession of the land back to the plaintiffs, with the assurance that it would never be taken back from them. 6. Findings of fact, judgments and decrees of trial Court stand affirmed by the lower appellate Court. Hence the present appeals. 7. According to Mr.G.D.Verma, learned Senior counsel, findings returned by the Courts below raise substantial question of law requiring consideration by this Court. However, I am of the considered view, that appeals only merit rejection as no substantial question of law, much less substantial question of law arises for consideration. 8. Proceedings initiated in the year 2006 must come to an end at some stage, more so, when plaintiffs have taken benefit and drawn advantage of the acquisition proceedings. 9. Noticeably plaintiffs filed applications seeking enhancement of the awarded amount. At no point of time did they ever challenge the acquisition proceedings. 8. Proceedings initiated in the year 2006 must come to an end at some stage, more so, when plaintiffs have taken benefit and drawn advantage of the acquisition proceedings. 9. Noticeably plaintiffs filed applications seeking enhancement of the awarded amount. At no point of time did they ever challenge the acquisition proceedings. On their asking monetary consideration was enhanced and received by them. Their plea that possession was taken over in the year 1984, has been disbelieved by the Courts below. I see no reason to differ with such findings. There is nothing on record to prove and establish any assurances/promises made out to the plaintiffs to the effect that they would never be dispossessed from the land in question or that they would become owners thereof. This is evident from the fact that plaintiffs' applications for enhancement of compensation were contested by the State, which proceedings culminated by passing of judgment by the Court in the year 1998. In this backdrop, plaintiffs' plea of adverse possession also needs to be repelled. The Courts below, by applying the ratio of law laid down by the Apex Court in State of Rajasthan v. Harphool Singh (Dead) Through His LRs, (2000) 5 SCC 652 ; A.A. Gopalakrishnan v. Cochin Devaswom Board and others, (2007) 7 SCC 482 ; Annakili v. A. Vedanayagam and others, (2007) 14 SCC 308 and P.T. Munichikkanna Reddy and others v. Revamma and others, (2007) 6 SCC 59 , rightly rejected such plea of adverse possession. The apex Court in P.T. Munichikkanna Reddy (supra) has held that:- "The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a sustentative right but a result of the waiving (will full) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the owner of the property on paper. Adverse possession statues, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of adverse possessor. The issue is that intention of the adverse user gets communicated to the owner of the property on paper. Intention implies knowledge on the part of adverse possessor. The issue is that intention of the adverse user gets communicated to the owner of the property on paper. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the owner of the property on paper." 10. I see no reason to differ with the findings returned by the Courts below, that plaintiffs failed to establish their possession, over the suit land, hostile to that of true owner. 11. Mr.G.D.Verma, learned Senior counsel further contends that the award being a decree becomes un-executable after a period of 12 years, the period prescribed under the Limitation Act, 1963. 12. Contention needs to be repelled for various reasons; one it is mutually destructive. Plaintiffs cannot be allowed to blow hot and cold. Before the Trial Court they pleaded that possession under the Acquisition Act was taken over by the State in the year 1984 itself. If that be so, then the question of limitation does not apply. It being a different matter that plaintiffs in that eventuality would be ranked as mere trespassers and no more. Further Section 16 of the Act empowers the Collector to take possession of the land, which, there upon, would vest absolutely in the Government, free from all encumbrances. The manner in which possession can be taken, now stands succinctly settled and explained by the Apex Court in its various judicial pronouncements. With the taking over of possession, property acquired, becomes the property of the State without any condition or limitation either as to title or possession [See: The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344 and Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604 ]. 13. Right to withdraw from acquisition under Section 48 (1) of the Act, is lost by the Government only from the date when Collector takes possession under Section 16 of the Act [See: Balwant Narayan Bhagde v. M.D. Bhagwat and others, AIR 1975 SC 1767 ]. Though Prior thereto, Government is at liberty to withdraw from the acquisition proceedings [See: The Special Land Acquisition Officer, Bombay and others v. M/s. Godrej and Boyee, AIR 1987 SC 2421 ]. 14. Though Prior thereto, Government is at liberty to withdraw from the acquisition proceedings [See: The Special Land Acquisition Officer, Bombay and others v. M/s. Godrej and Boyee, AIR 1987 SC 2421 ]. 14. Section 16 of the Act does not prescribe any period of limitation for taking over possession of the land. Also the Act being a special enactment, question of applicability of the Limitation Act does not apply. Similar issue came up for consideration before the Division Bench of the High Court of Gujarat in Dayaprakash Trikambhai v. Special Land Acquisition Officer, Baroda, AIR 1969 Gujarat 34, and the Court repelled such claim set up by the land owners on the plea of limitation. 15. The question of applicability of the Limitation Act does not apply in the instant case. The Act is a special statute. It does not lay down any fetters with the authority to take possession within any prescribed period and the process of acquisition is not complete till such time all steps envisaged under the Act are not complied with. 16. A Coordinate Bench of this Court in Civil Revision 332 of 1999 vide judgment dated 14.12.2000, titled as Dwarki Devi and others v. H.P. Housing Board, has held that once it is established that land in question stands acquired, it becomes the premises as defined under Section 2(d) and (e) of the H.P. Public Premises and Land (Eviction and Rent Recovery Act, 1971), which specifically bars jurisdiction of Civil Court (under Section 15 of the Act) to entertain any proceedings. 17. In Northern India Caterers (Private) Ltd. and another v. State of Punjab and another, AIR 1967 SC 1581 , the Apex Court held that a person entitled to obtain a writ provided he could make out a procedural right, or, in other words, a right to remain in possession until evicted by procedure contemplated by law even if his substantive right had been lost. 18. In the instant case, procedure established by law was followed by the State and consequently its actions, subject matter of challenge in the suit, cannot be said to be illegal, arbitrary, capricious, unreasonable, or causing any injustice to the parties. 19. In my considered view, suit of the plaintiff itself was misconceived. The Act being a special statute itself provided remedy to the aggrieved parties. 20. 19. In my considered view, suit of the plaintiff itself was misconceived. The Act being a special statute itself provided remedy to the aggrieved parties. 20. Consequently, I do not find any reason or ground sufficient enough to interfere with the concurrent findings of fact recorded by the Courts below. It cannot be said that the Courts below erred in correctly and completely appreciating the testimonies of witnesses or that findings returned are illegal, erroneous or perverse in any manner which has resulted into miscarriage of justice. 21. No question of law, much less substantial question of law arises for consideration in the present appeals. The present appeals are accordingly dismissed. Pending applications, if any, also stand disposed of accordingly.