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2019 DIGILAW 581 (JHR)

Sairun Nisha v. State Of Jharkhand

2019-02-27

DEEPAK ROSHAN, SHREE CHANDRASHEKHAR

body2019
JUDGMENT Chandrashekhar, J. - The appellants are aggrieved of the order dated 09.12.2016 passed in W.P.(C) No. 6978 of 2011 by which their prayer seeking a direction in the nature of injunction to the respondents and, in the alternative, for payment of compensation has been declined. 2. The appellant-writ petitioners claiming themselves descendants of one Burwa Seikh have staked independent claim of title over the lands comprised under plot no. 520 under khata no. 138, plot no. 527 under khata no. 129 and plot no. 522 under khata no. 26 at mouza-Ramgarh. They have objected to the alleged unauthorized construction of Pet Clinic within the campus of Veterinary Hospital, without a valid acquisition and payment of compensation to them. 3. Before the writ Court, the writ petitioners relied on the judgment dated 18.12.1931 in Title Suit No. 207 of 1929 by which the acquisitions under section 50 of the CNT Act, 1908 vide Case No. 01 of 1926-27 in respect of the lands comprised under plot nos. 522, 527 and 520 were declared null and void, to claim their right, title and interest over the said piece of land. The total extent of land involved in the suit was 71 decimals. They have also relied on the information furnished to them in response to the query made through R.T.I. vide letter dated 10.05.2012 to establish that the respondents were raising illegal construction over their lands. The following informations were furnished to them; "i. Building of pet Clinic is being constructed within the boundary of Veterinary Hospital, Ramgarh. ii. Veterinary Hospital, Ramgarh was in existence for the last 50 years over a Government piece of land which has earmarked area and circled by barbed wire. iii. In the campus of Veterinary Hospital, residence of employees of Animal Husbandry Department and other old structures are in existence since long and in possession of Animal Husbandry Department. iv. Documents relating to Veterinary Hospital however were not available in the said office." 4. However, the respondent-State has brought on record a copy of the notification dated 29.10.1940 under which 61 (56+5) decimals land in plot nos. 520, 526 and 527 were acquired in L.A. Case No. 06 of 1940-41. 5. It was in the above facts, that the writ Court by an order dated 15.07.2016 appointed a Pleader Commissioner which has submitted a report on 12.08.2016. 6. 520, 526 and 527 were acquired in L.A. Case No. 06 of 1940-41. 5. It was in the above facts, that the writ Court by an order dated 15.07.2016 appointed a Pleader Commissioner which has submitted a report on 12.08.2016. 6. Objection to the report of Pleader Commissioner was filed by the writ petitioners in the proceeding of W.P.(C) No. 6978 of 2011. 7. The learned writ Court on the basis of the materials brought on record has come to a conclusion that the claim raised by the writ petitioners can be adjudicated by a civil court where the parties may adduce evidence, oral as well as documentary. The learned writ Court has prima-facie found that the Veterinary Hospital is existing since 1940 and the ancestors of the writ petitioners never raised any dispute on possession of the lands in question. The learned writ Court has observed as under : "What transpires from the discussions made herein above is that a Veterinary Hospital bounded by a particular campus existed there before 1940 indisputably. Petitioners or their ancestors at no point of time after 1931 seem to have made any objection to the existence of the boundary of Veterinary Hospital and the structure which came up thereupon from time to time. Through the pleadings and the documents relied upon by them in the instant writ petition they have also not been able to categorically show the exact schedule of the property, if any, claimed made by them by virtue of the decision dated 18th December, 1931. In such Circumstances, the claim of title, ownership and possession over the area falling within the Veterinary Hospital campus, where the proposed construction of Pet Clinic was undertaken, is not fully established on the part of the petitioners. On the other hand, a prima facie opinion can definitely be drawn on the basis of materials on record as to the existence of the Veterinary Hospital and its campus from more than 50 years within which the construction of Pet Clinic has been started. Straightway therefore petitioners cannot seek to injunct the activity undertaken by the respondents to construct a Pet Clinic within the campus of the Veterinary Hospital, in a writ proceeding like this. Straightway therefore petitioners cannot seek to injunct the activity undertaken by the respondents to construct a Pet Clinic within the campus of the Veterinary Hospital, in a writ proceeding like this. Unless and until the petitioners are able to establish clear title, ownership and possession over the piece of land claimed by them, no writ or direction in the nature prayed for can be passed to restrain the respondents from carrying the proposed construction. However, it is open for the petitioners to establish their right, title and ownership over any such piece of land claimed by them in an appropriate proceeding before the competent court of law where such question of facts can be adjudicated upon adducing of oral and documentary evidences after giving opportunity to the affected parties. But on the plea raised by the petitioners in the instant proceeding, the respondents cannot be injuncted from undertaking the construction proposed. The relief, prayed for, is accordingly declined. However, it is made clear that the discussions and the observations made herein above would not act to the prejudice of the parties in any such proceeding before the competent court of law on the claim of title, ownership or possession of the property in question." 8. By now it is well-settled that a writ petition involving disputed questions of fact is not maintainable. There may be a case in which the Court may come to a conclusion that the dispute sought to be raised by the respondents is only for the sake of opposition and to raise a plea on ouster of the writ Court''s jurisdiction [refer, " ABL International Ltd. and Anr. Vs. Export Credit Guarantee Corporation of India Ltd. and Ors." reported in (2004) 3 SCC 553 ], however, in view of the facts brought before the writ Court which have been summarized in the aforesaid paragraphs by the learned writ Court, it cannot be concluded that the objection raised by the respondent-State to the claim of the appellants over the lands in question is only for the sake of opposition. It is also well-settled that a writ petition seeking a declaration of title over immovable property is not maintainable [refer, " Dwarka Prasad Agarwal Vs. B. D. Agarwal" reported in (2003) 6 SCC 230 (para-28)]. 9. Mr. It is also well-settled that a writ petition seeking a declaration of title over immovable property is not maintainable [refer, " Dwarka Prasad Agarwal Vs. B. D. Agarwal" reported in (2003) 6 SCC 230 (para-28)]. 9. Mr. A. K. Sahani, the learned counsel for the appellants submits that the respondents who are raising unauthorised construction atleast over the remaining portion of land, which has not been acquired by the State, must pay compensation to the appellants. 10. The appellants are not in possession over the lands in question which according to them are not under acquisition by the State. Their claim of title over that piece of land has been seriously disputed by the respondents. They do not deny that the Veterinary Hospital is in existence since 1940 and the alleged construction of the Pet clinic is made within the boundary of the Veterinary Hospital. If something has been written in the Advocate Commissioner''s report which is favourable to the appellants, that would not be a ground to grant their prayer; the court seeks a report in the midst of a proceeding to lend assurance to the tentative opinion which it may have formed and such reports do not become a piece of evidence for the parties. In the above facts, it cannot be held that the appellants are entitled for compensation. They have failed to make out a prima-facie case; in this case it must be a strong prima-facie case, for grant of injunction. The writ petition filed by the appellants is couched in such language which gives an impression of violation of their legal rights, but primarily it involves a dispute of title and possession over the property in question. 11. Having carefully scrutinized the materials brought on record, we are of the opinion that this Letters Patent Appeal lacks merit. 12. Accordingly, L.P.A. No. 36 of 2017 is dismissed.