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2019 DIGILAW 1858 (HP)

Union Of India & Another v. Chane Ram

2019-12-05

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this appeal, the appellants have challenged the judgment and decree dated 01.06.2012, passed by the Court of learned Civil Judge (Senior Division), Manali, District Kullu, H.P., in Civil Suit No.18 of 2009, titled as Chane Ram and others Versus The Secretary Defence, Union of India and others, vide which learned Trial Court decreed the suit filed by the present respondents, to the effect that the plaintiffs were owners of the suit land and were entitled for possession by way of demolition of structure constructed upon the same by the present appellants, as well as judgment and decree passed by the Court of learned District Judge, Kullu, H.P., in Civil Appeal No.20 of 2012, titled as The Secretary Defence Union of India and another Versus Chane Ram and others, decided on 15.01.2013, whereby learned Appellate Court while dismissing the first appeal filed by the present appellants, upheld the judgment and decree passed by the learned Trial Court. 2. Brief facts necessary for the adjudication of the present appeal are that respondents/ plaintiffs (hereinafter to be referred as ''Plaintiffs'') filed a suit to the effect that they are owners of the land measuring 00-09-87 hectares being 987/1974 share of land measuring 0-19-74 hectares comprised in khasra Nos.484, 483, 607, 608/1 and 610, kita 6, contained in khata khatauni Nos.139/189 and 190, entered in missal hakiat for the year 2002-03, situated at up-muhal Aleo Phati Vashisht Kothi Jagathsukh, Tehsil Manali, District Kullu, H.P. Defendants were strangers to the suit land, but had occupied the same illegally and forcibly without adopting the procedure for acquisition of the same in the year 1987. Defendants were asked many a times by the plaintiffs to pay compensation or to give back possession of the land, however, defendants neither returned possession of the land to plaintiffs nor they paid any compensation. As per plaintiffs they visited the office of defendants on numerous occasions wherein on certain occasions they were given the assurance that their land will be given in accordance with law, but defendants had failed to do the same. A notice under Section 80 of the Code of Civil Procedure was also issued on 20.12.2008 to the defendants, but no reply to the same was filed by them. A notice under Section 80 of the Code of Civil Procedure was also issued on 20.12.2008 to the defendants, but no reply to the same was filed by them. Accordingly, the suit was filed, praying for the following reliefs:- " It is, therefore, prayed that decree for the declaration the land measuring 00-09-87 hectares being 987/1974 share of land measuring 0-19-74 hectares comprised in khasra Nos.484, 483, 607, 608/1 and 610, kita 6, contained in khata khatauni Nos.139/189 and 190, entered in missal hakiat for the year 2002-03, situated at Up-Muhal Aleo Phati Vashisht Kothi Jagathsukh, Tehsil Manali, District Kullu, H.P. be passed in favour of the plaintiffs against the defendants and the possession of the suit land be ordered and delivered in favour of the plaintiffs until the suit land is not acquired by defendants. A " Decree for possession of the suit land, or to pay the compensation of the suit land on the basis of current market value alongwith interest since 1987 and other benefits accrued thereon" 3. The suit was resisted by the defendants, who took the stand that the land in issue stood acquired somewhere in the year 1965, however, the record of acquisition was not traceable. Defendants denied having encroached upon the land in issue and took the specific stand that the same was acquired in accordance with law. It was further the case of the defendants that they had requested Deputy Commissioner, Kullu, H.P. to provide the notification vide which the land was acquired and had also sought information as to whether the same stood transferred in the name of defendants or not, however, they were informed by Sub-Divisional Magistrate,Manali, vide letter dated 08.04.2009 that the notification of acquisition was not available with the said Authority. It was further mentioned in the written statement that while acquiring the land all codal formalities stood fulfilled and compensation was duly paid to the land owners. 4. On the basis of the pleadings of the parties, learned Trial Court framed the following issues:- " 1. Whether the plaintiffs are entitled for a decree of declaration as prayed? OPP. 2. Whether the plaintiffs are entitled for a decree of possession as claimed? OPP. 3. Whether the suit of the plaintiffs is barred by law of limitation? OPD. 4. Whether the suit of the plaintiffs has not been properly valued for the purpose of court fee and jurisdiction? OPP. 2. Whether the plaintiffs are entitled for a decree of possession as claimed? OPP. 3. Whether the suit of the plaintiffs is barred by law of limitation? OPD. 4. Whether the suit of the plaintiffs has not been properly valued for the purpose of court fee and jurisdiction? OPD. 5. Whether the plaintiffs have no cause of action to file the present suit? OPD. 6. Whether the suit of the plaintiff is not maintainable? OPD. 7. Whether the plaintiffs are estopped by way of their act and conduct from filing the present suit? OPD. 8. Relief". 5. On the basis of evidence led by the parties in support of their respective contentions, learned Trial Court returned the following findings on the issues so framed:- "Issue No.1: Yes. Issue No.2 : Yes. Issue No.3 : No. Issue No.4 : No. Issue No.5 : No. Issue No.6 : No. Issue No.7 : No. Relief : The suit of the plaintiffs decreed as per operative part of my judgment". 6. Learned Trial Court while decreeing the suit of the plaintiffs, held that there was no evidence on record on the basis of which it could be said that the plaintiffs had consented for handing over possession of the suit land to defendants No.1 and 3. Learned Trial Court further held that Major Anthony, who had entered the witness box as DW-2, had admitted in his cross-examination that plaintiffs were the owners of the suit land. Learned Trial Court also held that copy of missal haqiyat on record Ext.PW1/B demonstrated that plaintiffs were the coowners of the suit land. It held that it stood admitted by defendants that they were in possession of the suit land in the written statement itself and it had come in evidence that there was no record available with the revenue officials of the State to the effect that the suit land stood acquired for defendants No.1 and 3 or any compensation was paid by defendants to the plaintiffs. Learned Trial Court held that as the plaintiffs had approached the Court on the basis of title and it stood proved that the plaintiffs were owners of the suit land, therefore, plaintiffs were entitled for a decree of declaration that they were owners of the suit property. Learned Trial Court held that as the plaintiffs had approached the Court on the basis of title and it stood proved that the plaintiffs were owners of the suit land, therefore, plaintiffs were entitled for a decree of declaration that they were owners of the suit property. It further held that as the plaintiffs were owners of the suit land, therefore, they were entitled for possession of the same and the suit was not barred by limitation. It held that defendants No.1 and 3 had occupied the suit land belonging to the plaintiffs without acquiring the same. It held that as the suit land was proved to be private property of the plaintiffs, the same could have been acquired by the State in exercise of its powers of "eminent domain" for public purpose. Learned Trial Court also held that as per defendants No.1 and 3, the suit land was in their possession since the year 1965. At the relevant time, right to property was a fundamental right which was later on altered to be the constitutional right. Either way it did not authorize defendants No.1 and 3 to occupy the land of the plaintiffs without acquiring the same or without giving them compensation. Learned Trial Court held that the State was not above the law and as the cause qua seeking relief of possession was still continuing, therefore also the suit was within limitation. Learned Trial Court also held that as plaintiffs were recorded owners of the suit land and there was no evidence on record that the suit land was ever acquired by defendants No.1 and 3, therefore, it could not be said that the suit was not maintainable. On these reasonings, learned Trial Court decreed the suit as already mentioned above. 7. In appeal, these findings stood affirmed by the learned Appellate Court. Learned Appellate Court concurred with the findings returned by the learned Trial Court that there was no evidence on record that the suit land was ever acquired by or for defendants No.1 and 3 and at any stage any compensation in lieu of acquisition of the land was paid by defendants No.1 and 3 to the plaintiffs. Learned Appellate Court concurred with the findings returned by the learned Trial Court that there was no evidence on record that the suit land was ever acquired by or for defendants No.1 and 3 and at any stage any compensation in lieu of acquisition of the land was paid by defendants No.1 and 3 to the plaintiffs. Learned Appellate Court also held that the plea of adverse possession argued before it by defendants could not be accepted because as right to property was a constitutional right, therefore, the appellants (The Secretary Defence Union of India, New Delhi, Commanding Officer 17 RCC GREF) could not be allowed to plead the defence of adverse possession especially in view of the law laid down by Hon''ble Supreme Court of India in State of Haryana Versus Mukesh Kumar and others, (2011) 10 SCC 404 , wherein, Hon''ble Supreme Court had held that if the protectors of law become the grabbers of the property then people will be left with no protection and there would be a total anarchy in the entire country. 8. Learned Appellate Court also held that defendants had failed to prove their pleaded case whereas plaintiffs had substantiated their ownership on the basis of the revenue record as well as admissions of the defendants. On these basis, learned Appellate Court dismissed the appeal. 9. Feeling aggrieved, the appellants/ defendants filed this appeal, which was admitted on 22.05.2014 on the following substantial question of law:- " 1. Whether on account of mis-appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?" 10. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Courts below as well as record of the case. 11. There are concurrent findings returned by both the learned Courts below in favour of plaintiffs and against the present appellants/ defendants to the effect that there was no evidence on record to demonstrate that the land stood acquired for defendants No.1 and 3 i.e. the present appellants and any compensation in lieu of the said acquisition of land was ever paid by the present appellants to the plaintiffs. 12. 12. Learned Senior Panel Counsel appearing for the appellants could not draw the attention of this Court to any Exhibit on record from which it could be inferred that the suit land was indeed acquired in accordance with law as compensation in lieu thereof was paid to the owners of the land. 13. The documents which were exhibited by the present appellants before the learned Trial Court do not demonstrate and prove that the suit land was acquired for defendants No.1 and 3 i.e. the present appellants as was the stand taken by them in the written statement. The factum of the land being owned by the plaintiffs is not in dispute because this has been admitted by the appellants themselves in the written statement filed by them. Appellants'' contention that their possession over the suit land was legal as the suit land stood acquired for them and compensation stood paid to the land owners is not sustainable as there is no evidence led by the appellants before the learned Trial Court to substantiate this contention of acquisition of land and payment of compensation. Therefore, it cannot be said that the judgments and decrees passed by the learned Trial Court were a result of any misreading or misappreciation of oral and documentary evidence on record. 14. During the course of arguments, learned Senior Panel Counsel could not draw the attention of this Court to any material on record which stood misread or mis-appreciated by the learned Courts below. In fact, in the absence of the appellants placing relevant evidence on record to prove that the land stood acquired and compensation stood paid to the plaintiffs, the decree which stood passed by the learned Trial Court cannot be faulted with and similarly the judgment which has been passed by the learned Appellate Court can also not be said to be a result of mis-reading or mis-appreciation of evidence on record. Substantial question of law is answered accordingly. 15. In view of the findings returned hereinabove, as this Court does not finds any merit in the present appeal, the same is accordingly dismissed, so also, pending miscellaneous application(s), if any. Interim order, if any, stands vacated.