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2021 DIGILAW 274 (HP)

Badru alias Badri Dass v. State of H. P.

2021-04-29

SURESHWAR THAKUR

body2021
JUDGMENT : SURESHWAR THAKUR, J. 1. The plaintiff/appellant herein (for short “the plaintiff”) instituted Civil Suit bearing No. 221/1 of 2013, before the learned Senior Civil Judge, Solan, claiming therein rendition of a decree of pecuniary damages quantified in a sum of Rs. 12,50,000/-. Through a verdict recorded on 10.11.2017, the afore suit became dismissed by the learned trial Court. The aggrieved plaintiff instituted there-against Civil Appeal No. 56-S/13 of 2018 before the learned District Judge, Solan, and, upon the afore Civil Appeal, the learned first appellate Court affirmed the judgment and decree pronounced by the learned trial Court. The concurrent dismissals by both the Courts below of the plaintiff’s suit/appeal, has brought grievance to him, and, has also led him to institute there-against the instant appeal before this Court. 2. When the instant appeal came up for admission before this Court on 2.3.2021, this Court admitted the appeal, on the hereinafter extracted substantial questions of law:- “1. Admittedly the land in question is in the ownership of appellant-plaintiff till date, whether the findings of Ld. Courts below holding that the suit is not maintainable on account of delay and latches and whether in given circumstances Ld. Court could have been granted decree for possession on the basis of title. 2. Whether the findings as returned by Ld. Courts below are the result of misinterpretation of fats and law, misreading of documentary evidence and relevant provisions.” 3. The construction of pump house on the suit khasra numbers by the defendants, is, not contested by the latter. The afore construction occurred in the year 1980-1981. In contemporaneity to the raising of construction of pump house, the plaintiff, though, did not mete any scribed consent to the defendants. However, he also did not deter or forbade the defendants, through his seeking an interim injunction, from the Civil Court concerned, from theirs constructing a pump house on the suit khasra numbers. Even though, the afore may not constitute any waiver or abandonment, on the part of the plaintiff, to, receive compensation in accordance with law, from the statutory authority concerned, as, contemplated in the Land Acquisition Act. Even though, the afore may not constitute any waiver or abandonment, on the part of the plaintiff, to, receive compensation in accordance with law, from the statutory authority concerned, as, contemplated in the Land Acquisition Act. However, the afore specific contemplation encapsulated in a special legislation appertaining to acquisition of land, utilized for construction of pump house, by the defendants hence in the year 1980-1981, became enjoined to be strived to be meted compliance by the plaintiff, through his encapsulating in the plaint, relief for mandatory injunction seeking there-through the making of an injunction, upon, the defendants to ensure the issuance of a notification, under the relevant statute, and, thereafter for compensation becoming assessed vis-a-vis the plaintiff’s land utilized for the afore purpose. Apparently, the afore relief of mandatory injunction is not claimed in the Civil Suit. The effect of the afore omission, is that the suit for recovery of pecuniary damages, quantified in a sum of Rs. 12,50,000/- was amenable for being dismissed as the afore legal recoursing rather constituted the apt statutory remedies available to the plaintiff. Resultantly, omission on the part of the plaintiff to recourse the afore specific statutory remedies, does for reiteration, bring the causality of dismissal of his suit, as, aptly done by both the Courts below. 4. Be that as it may, even the plaintiff’s suit for possession with respect to the suit khasra numbers, was highly belated, as, it fell outside the period of 12 years prescribed for the afore purpose. More so, when the construction of pump house, upon, the suit khasra numbers, occurred in the year 1980- 1981, whereas the plaintiff’s suit becoming instituted, more than 12 years thereafter, in as much as, in the year 2013, obviously would render the plaintiff’s suit, even if therein relief of possession was claimed, to be completely, and, fatally hit by the bar of limitation. 5. 5. Moreover, though waivers or abandonment may not constitute any estoppel against the plaintiff’s suit for rendition of a decree for mandatory injunction, hence, seeking there-through, the making of an injunction upon the defendants concerned to launch proceedings for acquisition of the plaintiff’s land, for thereafter compensation in accordance with law, becoming assessed, vis-a-vis, the land acquired: (i) nonetheless, the afore belated institution of the plaintiff’s suit seeking there-through the making of a decree of monetary damages against the defendants, does attract the bar not only of limitation but also the bar of estoppel arising from waivers or abandonment. 6. At this stage, it is important to allude to CMP No. 2283 of 2021 cast under the provisions of Order 6 Rule 17 read-with Section 151 of Code of Civil Procedure where-through leave of the Court is asked for, for making in the Civil Suit the hereinafter extracted amendments:- “Suit for recovery of damages of Rs. 12,50,000/- (Rupees twelve lacs and fifty thousands only) along with interest at the rate of 18% per annum till its realization and decree of mandatory injunction and in the alternative decree for possession on the basis of title. It is therefore, prayed that a decree for the recovery of Rs. 12,50,000/- (Rupees twelve lacs and fifty thousands only) alongwith interest at the rate of 18% per annum may kindly be passed in favour of the plaintiff and against defendants, the defendants may kindly be directed by passing a decree of mandatory injunction to acquire the suit land comprised in khata/khatauni No. 42/75 khasra No. 935 measuring 0-02-63 hectares, situated at mauza Malawan, Tehsil Arki, District Solan, in accordance with law and to pay compensation and in the alternative a decree for possession of land comprised in khata/khatauni No 42/75 khasra No. 935 measuring 0-02/63 hectares situated at Mauza Malawan, Tehsil Arki, District Solan in the interest of justice.” 7. The afore amendment is highly belated, as, It is made post pronouncement of concurrent judgments and decrees by both the Courts below. More so, therein the relief of possession is claimed, relief whereof, is for the aforestated reasons completely hit by the bar of limitation. Consequently, inclusion of the afore relief in the plaint, is legally fallacious and is declined. In addition, the relief of mandatory injunction is also claimed to be included in the relief clause of plaint. More so, therein the relief of possession is claimed, relief whereof, is for the aforestated reasons completely hit by the bar of limitation. Consequently, inclusion of the afore relief in the plaint, is legally fallacious and is declined. In addition, the relief of mandatory injunction is also claimed to be included in the relief clause of plaint. However, the afore claim is highly belated and appears to be an afterthought, besides, changes the nature, frame and complexion hence of the suit, and, is rather amenable for its being declined. 8. Moreover, juxta posing the initially claimed relief in the suit in as much as, for assessment of monetary damages, vis-a-vis the plaintiff’s land utilized for construction of pump house by the defendants, and, with thereon the estopping bars, as, arising from waivers and abandonment, becoming hence sparked, (I) with, and, when the afore belated amendment changes, the, complexion and structure of the suit, besides the frame of the suit, thereupon, obviously renders hence the afore striving for additions in the plaint, the relief of mandatory injunction to be also highly belated besides there-against the ill-consequences of waivers or abandonment become attracted. 9. In view of the above, the instant appeal and CMP No. 2283 of 2021, are dismissed. The impugned verdict is maintained and affirmed. Substantial questions of law are answered accordingly. All pending applications stand disposed of accordingly.