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2013 DIGILAW 954 (HP)

Ramesh Singh v. Allian Duhangan Hydro Power Ltd.

2013-11-13

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree, dated 22.8.2012 passed by the learned District Judge, Kullu, in Civil Appeal No. 12 of 2012. 2. 'Key facts' necessary for the adjudication of this Regular Second Appeal are that plaintiff/respondent No.1 (hereinafter referred to as the "plaintiff" for the sake of convenience) filed a suit against contesting defendants (hereinafter referred to as the "contesting defendants" for the sake of convenience) and proforma defendants/respondents No.2 to 9 (hereinafter referred to as the "proforma defendants" for the sake of convenience) for recovery of Rs. 7,34,422/- along with future interest @ 18% per annum from 24.1.2007 till filing of the suit amounting to Rs. 1,21,179/- and total sum of Rs. 8,55,601/- along with future interest @ 12% per annum from the date of filing of the suit till realization. According to the plaintiff, it was implementing 192 MW Allain Duhangan Hydro Electric Power Project at village Prini. The plaintiff was erecting towers at different places in order to evacuate/transmit power from Power House at Prini and inject the same in the Central Grid of Power Grid Corporation of India, Nalagarh. The plaintiff was the licensee and could lay transmission line as a part of the project. The Central Electricity Authority, New Delhi had accorded Techno Economic Clearance to the plaintiff. The Government of Himachal Pradesh had granted the licence in favour of the plaintiff vide quadripartite agreement dated 5.11.2005. The plaintiff was authorised to install towers for transmission line with direct negotiations with different land owners in accordance with law. Two portions of land measuring 0-8-9 bigha out of total land measuring 7-7-0 bighas comprised in Khasra No.473, Khata/Khatauni No.405min/593min and land measuring 0-7-4 bighas out of total land measuring 7-17-0 bighas comprised in Khasra No.477 as incorporated in copy of Jamabandi for the year 2001-02, situated in Phati Kharahal Kothi Kais Tehsil and District Kullu, H.P. were acquired by the plaintiff for construction of transmission tower Nos. 126 and 127 respectively. The plaintiff negotiated with contesting defendants. Contesting Defendant No.1, Ramesh Singh on his behalf and on behalf of contesting defendants No. 2 to 5, Machhinder, Goda Devi, Purva Devi and Jaiwanti Devi as their general power of attorney agreed to provide 0-8-9 bigha and 0-7-4 bigha land for construction of Tower Nos. 126 and 127 respectively. 126 and 127 respectively. The plaintiff negotiated with contesting defendants. Contesting Defendant No.1, Ramesh Singh on his behalf and on behalf of contesting defendants No. 2 to 5, Machhinder, Goda Devi, Purva Devi and Jaiwanti Devi as their general power of attorney agreed to provide 0-8-9 bigha and 0-7-4 bigha land for construction of Tower Nos. 126 and 127 respectively. The contesting defendants No. 1 to 5 represented themselves to be in exclusive possession of the suit land. They also undertook to indemnify the plaintiff against any claim of any nature whatsoever made by any other person with respect to the suit land. Two agreements were executed by contesting defendants No. 1 to 5 qua the suit land on 10.1.2007 along with two affidavits for handing over the possession-cum-receipt on 24.1.2007. The deal was finalised and total compensation for both the sites was settled for Rs. 9,23,753/-. The amount was paid by the plaintiff to contesting defendant No.1 vide cheque No.026931 dated 24.1.2007 as full and final payment towards his share and shares of contesting defendants No. 2 to 5. The possession of the suit land was also handed over to the plaintiff. However, proforma defendants No. 6 and 7 Goverdhan Singh and Mohinder Singh filed Civil Suit No.75 of 2007 claiming themselves to be in possession of the suit land as co-sharers. The plaintiff was restrained from carrying out the work since they also claimed their shares from the plaintiff. According to the plaintiff, the share of the contesting defendants No. 1 to 5 came to be Rs. 1,89,331/- out of total compensation of Rs. 9,23,753/-. Shares of proforma defendants No. 6 and 7 were paid by the plaintiff and shares of Thakur Dass, Prithi Singh, Room Singh, Bhim Singh were paid partly by the plaintiff as agreed by them and shares of Dole Singh and Sindhi Singh were still to be paid by the plaintiff as they were entitled to take the same. Thus, the plaintiff was entitled to recover a sum of Rs. 8,55,601/-along with interest from contesting defendants No. 1 to 5. 3. The suit was contested by contesting defendants No. 1 to 5. Contesting defendants No. 1 to 5 filed joint written statement. Thus, the plaintiff was entitled to recover a sum of Rs. 8,55,601/-along with interest from contesting defendants No. 1 to 5. 3. The suit was contested by contesting defendants No. 1 to 5. Contesting defendants No. 1 to 5 filed joint written statement. According to them, land measuring 7-12-0 bighas bearing Khasra Nos.477 and 473 was in their exclusive possession as absolute owners on the basis of family arrangement which took place about 60 years back. They were in settled possession of the suit land and proforma defendants had no concern with the same. They had given the suit land to the plaintiff for installation of tower Nos. 126 and 127 and they had rightly received the compensation qua the acquired land. The possession of the acquired land was handed over to the plaintiff by contesting defendants No. 1 to 5. The towers were constructed on the spot by the plaintiff much prior to filing of civil suit No.75 of 2007. Proforma defendants never raised any objection at the time of construction of the towers. They had taken benefit of wrong revenue entries. The plaintiff had made due inquiry on the spot while acquiring the land. 4. Proforma defendants No. 6, 7 and 12 filed separate written statement, which was adopted by proforma defendants No.8 to 11 and 13. According to them, the suit land was not partitioned. They were in possession of their respective shares in the land and had not given any land falling to their shares to contesting defendants No. 1 to 5. The plaintiff never approached the proforma defendants and their names were correctly recorded in the revenue record. They admitted that defendants No. 6 and 7 were paid a sum of Rs. 2,47,973/- each. 5. The replications were filed by the plaintiff. Learned trial court framed the issues on 16.7.2008 and decreed the suit vide judgment and decree dated 20.12.2011 with costs and a decree of Rs. 7,34,422/- along with interest @ 6% per annum from the date of payment of the compensation amount i.e. 24.1.2007 till realisation of the entire decretal amount was passed in favour of the plaintiff and against contesting defendants No. 1 to 5. 6. Contesting defendants No. 1 to 5 feeling aggrieved by judgment and decree dated 20.12.2011 filed an appeal before learned first appellate court, who vide judgment and decree dated 22.8.2012 dismissed the appeal. 6. Contesting defendants No. 1 to 5 feeling aggrieved by judgment and decree dated 20.12.2011 filed an appeal before learned first appellate court, who vide judgment and decree dated 22.8.2012 dismissed the appeal. Hence, this Regular Second Appeal. 7. Mr. Tarlok Chauhan, Advocate, on the basis of substantial questions of law has vehemently argued that the learned courts below have not correctly appreciated the oral as well as documentary evidence. According to him, Civil Suit No.75 of 2007 was collusive. He also contended that his clients were in exclusive possession of the suit land on the basis of family partition, which took place about 60 years back. 7. Ms. Jyotsna Rewal Dua and Mr. Nikhil Khanna, Advocates, have supported the impugned judgments and decrees passed by both the courts below. 8. I have heard learned counsel for the parties and have gone through the impugned judgments and pleadings carefully. 9. PW2 Jitender Mehta led his evidence by way of filing an affidavit, Ext.PW2/A. He produced on record copy of resolution Ext.P2, copy of agreement Ext.P3, copy of memo of understanding Ext.P4, original agreement dated 10.1.2007 Ext.P5, copy of receipt qua handing over possession Ext.P6, copy of agreement dated 10.1.2007 Ext.P7, receipt qua handing over possession Ext.P8, attested copy of general power of attorney Ext.P9, copy of general power of attorney dated 14.11.2006 Ext.P10, copy of order dated 5.11.2007 Ext.P11, copy of statements of Goverdhan Singh and Mahender Singh Ext.P12, general power of attorney dated 13.12.2007 Ext.P13, copy of notice dated 10.9.2007 Ext.P14, copy of reply Ext.P15, postal receipts Ext.P16 to Ext. P20, original notice Ext.P21, postal receipts Ext.P22 and Ext. P23. According to the averments contained in the affidavit, the plaintiff had acquired the land measuring 0-8-9 bigha out of total land measuring 7-7-0 bigha comprised in Khasra No.473, Khata/Khatauni No.405 min/593min and land measuring 0-7-4 bigha out of total land measuring 7-17-0 bighas comprised in Khasra No.477 for construction of transmission tower Nos. 126 and 127. Contesting defendants No. 1 to 5 represented themselves to be the exclusive owners in possession of the suit land and received compensation to the tune of Rs. 9,23,753/-. The possession was delivered to the plaintiff. Proforma defendants No. 6 and 7 filed Civil Suit No.75 of 2007 before Civil Judge (Sr. Divn.), Kullu claiming themselves to be the owners in possession of the suit land as co-sharers. 9,23,753/-. The possession was delivered to the plaintiff. Proforma defendants No. 6 and 7 filed Civil Suit No.75 of 2007 before Civil Judge (Sr. Divn.), Kullu claiming themselves to be the owners in possession of the suit land as co-sharers. Contesting Defendants No. 1 to 5 had wrongly and illegally received the entire compensation by concealing true facts. Contesting defendant No.1 on his behalf and on behalf of contesting defendants No. 2 to 5 had received excess amount to the tune of Rs. 7,34,422/- as they were entitled to receive only a sum of Rs. 1,21,179/-. 10. DW1, Pradeep Sharma, produced record of Civil Suit No.75 of 2007, titled as Goverdhan Singh v. A.B. Giri. He proved on record copy of written statement Ext.DW1/A, certified copy of plaint Ext.DW1/B, copy of order Ext.DW1/C and certified copy of reply Ext.DW1/D. 11. Ramesh Singh appeared as DW2. He led his evidence by way of filing an affidavit, Ext.DW2/A. According to him, proforma defendants had no right, title or interest in the property. He had rightly handed over the possession of the suit land and received the compensation. Proforma defendants never raised any objection at the time of erecting the towers. In cross-examination, he admitted that agreements Ext.P5 and Ext.P7 and receipts Ext.P6 and Ext.P8 were executed vide which he delivered possession of both plots for the construction of transmission towers. He admitted that he was power of attorney holder on behalf of contesting defendants No. 2 to 5. He also admitted that as co-sharers proforma defendants had filed civil suit against the plaintiff and obtained the injunction order. 12. It has come on record that the proforma defendants No. 6 and 7 had filed Civil Suit No.75 of 2007 in the Court of Learned Civil Judge (Senior Division), Kullu against the plaintiff and the plaintiff was restrained by the civil court. As per order dated 5.11.2007, Ext.PW1/C, the civil suit was dismissed as withdrawn since proforma defendants No. 6 and 7 had received the amount qua their shares in respect of tower Nos. 126 and 127. According to clause 5 of the agreement, Ex.P5, contesting defendant No.1 Ramesh Singh had undertaken that the compensation, which was being received by the landlord in pursuance to the agreement, shall be in full and final settlement of the claim. 126 and 127. According to clause 5 of the agreement, Ex.P5, contesting defendant No.1 Ramesh Singh had undertaken that the compensation, which was being received by the landlord in pursuance to the agreement, shall be in full and final settlement of the claim. Any future claim whatsoever, will be made by the landowner or any share holders for their share in the proceeds on account of total compensation for providing the land on lease, license and ownership basis for the purposes of construction as well as erection of tower, transmission line and that the amount received by the landlord whether himself or any of the persons on whose behalf the power of attorney has been given, will be deemed to be in full and final settlement for share holders. According to clause 6, contesting defendant No.1 had undertaken to indemnify the plaintiff against any claims of any nature whatsoever made by any other person with respect to any rights or interest including co-ownership rights to the said land in the event of any such claim being made by any person whatsoever and it was expressly agreed that the landlord shall alone be liable and responsible for such claims, if any. Contesting defendant No.1 had received full and final payment from the plaintiff. It was also admitted by the contesting defendants No. 1 to 5 that a civil suit was filed by one Goverdhan Singh against the plaintiff, which was dismissed as withdrawn. Contesting defendants No. 1 to 5 had received total compensation of Rs. 9, 23,753/-. The proforma defendants were also recorded as co-owners of the suit land. Contesting defendants No.1 to 5 have not led any tangible evidence to establish that they had become absolute owners in possession of the suit land on the basis of family partition, which took place about 60 years back. They had misrepresented the plaintiff at the time of execution of agreements Ext.P5 and Ext.P7 that they were in exclusive possession of the suit land. In fact, they were not in exclusive possession of the suit land. The plaintiff came to know about this position only when Civil Suit No.75 of 2007 was filed by proforma defendants No. 6 and 7 against the plaintiff. In fact, they were not in exclusive possession of the suit land. The plaintiff came to know about this position only when Civil Suit No.75 of 2007 was filed by proforma defendants No. 6 and 7 against the plaintiff. Contesting defendants No. 1 to 5, as noticed herein above, had undertaken to indemnify the plaintiff against any claim of any nature whatsoever made by any other person with respect to the suit land as per agreements Ext.P5 and P7. The learned courts below have correctly relied upon Section 72 of the Indian Contract Act since contesting defendants No. 1 to 5 were legally liable to return the money received by them from the plaintiff by concealing material facts. The Courts below have correctly appreciated the oral as well as documentary evidence. It is reiterated that contesting defendants No.1 to 5 have miserably failed to prove any family partition. Names of proforma defendants as co-owners in possession of the suit were correctly recorded in the revenue record. Since contesting defendants No. 1 to 5 were not in exclusive possession of the suit land, they could not receive the compensation amount on behalf of other co-sharers. 13. Their Lordships of Hon'ble Supreme Court in Mahabir Kishore and others v. State of Madhya Pradesh, AIR 1990 SC 313 have laid down that following ingredients are required for proving unjust enrichment under Section 72 of the Contract Act:- "11. The principle of unjust enrichment requires: first, that the defendant has been 'enriched' by the receipt of a "benefit", secondly, that this enrichment is "at the expense of the plaintiff"; and thirdly; that the retention of the enrichment be unjust. This justifies restitution. Enrichment may take the form of direct advantage to the recipients' wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved." 14. Their Lordships of Hon'ble Supreme Court in Budh Ram v. Bansi Ram and ors, (2010) 11 SCC 476 have held as under:- "18. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. Therefore, in theory, every co-owner has an interest in every infinitesimal portion of the subject-matter, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly with others. A co-owner of a property owns every part of the compromise along with others and he cannot be held to be a fractional owner of property unless partition takes place." 15. In view of the discussions and analysis made herein above, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.