HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- FIRST APPEAL No. - 299 of 1997 Appellant :- State Of U.P. Respondent :- Baij Nath Prasad Counsel for Appellant :- S.C., Shishir Tiwari Counsel for Respondent :- C.B.Gupta, A.N. Pandey, Rajendra Prasad Mishra, S.N.Srivastava, Sharad Malviya, Vijay Kumar Rai, Vinod Kuamr Rai Hon'ble Sudhir Agarwal,J.
Hon'ble Shashi Kant,J.
1. Heard Sri Shishir Tiwari, learned Standing Counsel for appellant and Sri Sharad Malviya, Advocate for respondent.
2. This appeal under Section 96 of the Code of Civil Procedure has arisen from the judgment and decree dated 17.10.1995 passed by Sri Lal Chandra Tripathi, Additional Civil Judge (Second), Jaunpur in Original Suit No. 57 of 1992, Baijnath Vs. Executive Engineer), whereby it has decreed the suit and declared plaintiff-respondent entitled for compensation of Rs. 6,77,547.62 on account of acquisition of land, i.e., Araji No. 23, area 31 dismil, situated at Mauja Baluai, Pargana Rari (present Tehsil Badlapur), District Jaunpur, taking away 7 dismil area for the purpose of construction of Maharajganj-Pilkicha-Khuthan-Trikolia road and interest at the rate of 15% thereon.
3. The plaintiff-respondent instituted Original Suit No. 57 of 1992 alleging that he is Bhumidhar in possession of Araji No. 23, area 31 dismil, situated at Mauja Baluai, Pargana Rari (present Tehsil Badlapur), District Jaunpur. The Public Works Department of State of U.P. in 1978 took possession of part of land of plaintiff and raised construction laying down Maharajganj-Pilkicha-Khuthan-Trikolia road thereon. Seven dismil land of plaintiff and other tenure holders was taken by Public Works Department. The work of road was completed within 2 years but no compensation or damages were paid to plaintiff. The acquisition notification for disputed land under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act, 1894") was published on 10.11.1979 and award was made on 15.09.1984. Plaintiff had the confidence that he shall be paid compensation of his land acquired by defendant-appellant alongwith other tenure holders of the village. The other tenure holders were issued notices and they also received compensation but no such notice was ever received by plaintiff and when he made inquiry, he was informed that none of his land has been acquired for the purpose of construction of aforesaid road though the fact is that seven dismil land of plaintiff had been taken for construction of aforesaid road. The plaintiff approached the officer concerned as also the Special Land Acquisition Officer (hereinafter referred to as the "SLAO") but nothing happened. Notice under Section 80 C.P.C. was given by plaintiff on 30.11.1991. The plaintiff is entitled for compensation at the rate of Rs. 45/- per square feet, besides damages of Rs. 5,000/-, solatium at 30% and interest at the rate of 9% and 15% as per Act, 1894.
4. The cause of action according to plaintiff arose in 1970 when construction of road started and then 30.11.1991 when notice under Section 80 C.P.C. was served upon defendant-appellant.
5. The suit was contested by appellant filing written statement wherein construction of road was admitted but factum of acquisition of any part of plaintiff's land was denied. It was also said that in any case suit is now barred by the provisions of Act, 1894, limitation etc.
6. The Trial Court formulated following 14 issues:
^^1- D;k oknh vkjkth ua0 23 jdck 31 fMlfey fLFkr ekStk HkyqvkbZ ijxuk jkjh tkSuiqj dk Hkwfe/kj dkfct jgk gS\ 2- D;k tSlk fd okn i= dh iSk 3&4 ,oa 11 esa lanfHkZr gS oknh dh vkjkth ua0 23 jdck 31 fMlfey esa ls 7 fMlfey jdck izfroknh ,e-ih-ds-Vh- ekxZ ds fuekZ.k gsrq vf/kxzghr dj fy;k gS rFkk ml ij okLrfod :i ls lM+d fuekZ.k izfroknh }kjk 1970 esa dj fn;k x;k gS\ 3- D;k izfroknh }kjk iz'uxr Hkwfe dk dksbZ izfrdj oknh dks iznku ugha fd;k x;k gS\ 4- D;k tSlk fd okn i= dh iSjk 12 yxk;r 15 esa lanfHkZr gS oknh dh vkjkth vf/kxzg.k ds QyLo:i izfroknh }kjk de ls de [email protected]& :0 crkSj izfrdj ns; gS\ 5- D;k izLrqr nkok fucU/ku ds fl)kUr ls ckf/kr gS\ 6- D;k izLrqr okn dk ewY;kadu de fd;k x;k gS vkSj U;k;ky; 'kqYd de vnk dh x;h gS\ 7- D;k nkok oknh /kkjk 34 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\ 8- D;k izLrqr nkok 80 lh-ih-lh ls ckf/kr gS\ 9- D;k nkok oknh pyus ;ksX; ugha gS\ 10- D;k izLrqr U;k;ky; dks izLrqr okn dks fu.khZr djus dk {ks=kf/kdkj ugha gS\ 11- D;k izLrr nkok Hkwfe vtZqu vf/kfu;e 1894 ds izkfo/kkuksa ls ckf/kr gS\ 12- D;k izLrqr nkok /kkjk 49 pdcUnh vf/kfu;e ls ckf/kr gS\ 13- D;k oknh dksbZ vuqrks"k ikus dk vf/kdkjh gS\ 14- D;k izLrqr okn le; lhek ls ckf/kr gS\** "1. Whether the plaintiff has been the tenure holder having possession over the plot no. 23 area 31 dismil, situated at Mauja Bhaluai, Pargana Rari Jaunpur?
2. Whether, as mentioned in Para 3-4 and 11 of the plaint, 7 dismil land out of the plaintiff's 31-dismil plot no. 23 was acquired by the defendant M.P.K.T. for the construction of a road and a road was constructed by the defendant in 1970?
3. Whether no compensation of the land in question has been given to the plaintiff by the defendant?
4. Whether, as mentioned in para 12 to 15, in lieu of acquisition of the plaintiff's land, compensation to the tune of atleast Rs. 7,85,522/- is liable to be paid to him by the defendant?
5. Whether the instant suit is barred by the Principle of Estoppel?
6. Whether the instant suit is under-valued and the court fee is underpaid?
7. Whether the suit of the plaintiff is barred by the Section 34 of the Specific Relief Act?
8. Whether the suit is barred by the Section 80 of the CPC?
9. Whether the suit of the plaintiff is maintainable?
10. Whether this court has no jurisdiction to decide the instant case?
11. Whether the instant suit is barred by the provisions of the Land Acquisition Act, 1894?
12. Whether the instant suit is barred by Section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953?
13. Whether the plaintiff is entitled for any relief?
14. Whether the instant suit is time barred?
(English translation by the Court)
7. Issue no. 6 was tried as preliminary issue and vide order dated 03.05.1995, answered in favour of plaintiff.
8. Issues no. 1 and 2 were taken together. The Trial Court found that on seven dismil land of disputed plot there existed aforesaid road, constructed by defendant-appellant and no evidence was adduced to show that said land was acquired vide notification dated 10.11.1979 published under Section 4(1) of Act, 1894. Both the issues were answered holding that after taking possession of seven dismil land of disputed plot, the road has been constructed and it is so recorded in revenue records also, hence both issues are answered in favour of plaintiff. Issue no. 3 was also answered in affirmance holding that no compensation was paid to plaintiff at all. Issue no. 8 was answered in negative and against defendant. Issues no. 9 and 10 were also answered against defendant holding that once land of plaintiff has been taken and used for the purpose of construction of road, denial of compensation and damages to plaintiff would not be just, legal and valid. Issues no. 5, 11 and 12 were taken together and answered in negative. Issues no. 7 and 14 then were taken together and answered in negative. The suit of plaintiff-respondent, therefore, was decreed vide judgment and decree dated 10.10.1995.
9. It is evident from the judgment that the Court has granted compensation to the plaintiff-respondent in terms of Act, 1894, as is evident from the findings given in respect of issue no. 4.
10. For the purpose of deciding this appeal, there are three points for determination:
(I) Whether the suit claiming compensation alleging that certain land has been acquired under Act, 1894 is maintainable under Section 9 C.P.C.?
(II) Whether a suit for mere declaration that the plaintiff is entitled for certain amount of compensation, damages, solatium and interest without seeking relief of recovery of such amount from defendant after paying court fees, is maintainable?
(III) Whether the suit in question was barred by limitation?
11. So far as question no. 1 is concerned, learned counsel for the parties fairly stated that this issue has been answered by Apex Court in Laxmi Chand and others Vs. Gram Panchayat, Kararia and others, AIR 1996 SC 523, wherein Court in para 3 of the judgment has said:
"3. It would thus be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the case arising under the Act, by necessary implication, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the constitutional courts, viz., the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court." (emphasis added)
12. Therefore, the suit seeking declaration for compensation in terms of Act, 1894 was barred and not maintainable. The issue is answered in favour of appellant.
13. Coming to the second question, it cannot be doubted that a mere declaration will not entitle recovery of money by plaintiff from defendant particularly when declaration relates to recovery of certain money from defendant. In the present case plaintiff did not seek any relief for recovery of money from defendant. In absence of any such relief suit for mere declaration that plaintiff was entitled to recover certain amount from defendant, is not maintainable. This question, therefore, is also answered in favour of appellant.
14. Now comes the third question regarding limitation. It is the own case of plaintiff that he was dispossessed of disputed land in 1970. The construction started in 1970 and took only two years. Therefore, in 1972, according to his own admission, he was completely ousted and dispossessed from disputed part of land. He did not take any steps for recovery of possession. The suit filed in 1992, i.e., after 20 years was apparently and miserably barred by limitation for the purpose of recovery of possession or for eviction/ejectment of defendant-appellant from disputed land.
15. Moreover, once land was taken by defendant-appellant in 1970 and 1972, damages, if any, suffered by plaintiff, the cause of action, therefor would have arisen at that time only. In any case, he also admits that the acquisition proceedings were initiated in 1979 and award was published in 1984, still no compensation was paid to him. It is also not shown that disputed land was acquired in these proceedings. The period of limitation for recovery of money, even if giving maximum leverage to plaintiff and if commenced from the date of award, it would be only three years, hence, suit in 1992 was apparently barred by limitation.
16. Statutes pertaining to limitation runs from the time of breach, for that constitutes the cause of action as held by Privy Council in The East India Company Vs. Oditchurn Paul 1849 (Cases in the Privy Council on Appeal from the East Indies) 43.
17. The doctrine of limitation is founded on considerations of public policy and expediency. It does not give a right where there exist none, but to impose a bar after a certain period to the remedy for enforcing an existing right. The object is to compel litigants to be diligent for seeking remedies in Courts of law if there is any infringement of their right and to prevent and prohibit stale claims. It fixes a life span for remedy for redressal of the legal injury, if suffered, but not to continue such remedy for an immemorial length of time. Rules of limitation do not destroy right of parties and do not create substantive rights if none exist already. However, there is one exception i.e. Section 28 of Act, which provides that at the determination of period prescribed for instituting suit for possession of any property, his right to such property shall stand extinguished and the person in possession, after expiry of the such period, will stand conferred title. The law of limitation is enshrined in the maxim "interest reipublicae ut sit finis litium" (it is for the general welfare that a period be part to litigation).
18. If a suit is barred by limitation it is an obligation upon the Court to dismiss such a suit irrespective of the fact whether an objection is taken by other side or not. Section 3 of Act imposes an obligation upon a Court to dismiss a suit which has been filed beyond the period prescribed in statute. The Court cannot admit a case in absence of plea of limitation raised by defendants though the suit was filed beyond the period prescribed in statute.
19. In Manindra Land And Building Corporation Ltd. Vs. Bhutnath Banerjee and others AIR 1964 SC 1336, it was held that the Court has no choice in the matter and the Court is bound to dismiss the suit which is barred by limitation. The burden of proof in the matter of limitation lies upon the plaintiff. It is only when the prima facie plaintiff shows that his case is within limitation, the onus may shift upon the defendants to prove otherwise.
20. In District Basic Education Officer and another Vs. Dhananjai Kumar Shukla and another (2008) 3 SCC 481, it was held that even if no counter affidavit is filed, on the legal issues, the Court has to apply its mind and consider the matter. If a fact is not disputed or expressly admitted, the same in terms of Section 56 of the Evidence Act need not be proved but that does not mean that what constitutes ultimately an issue formulating a legal question would also not be considered by the Court and it shall proceed as if there was an admission on that aspect also. It held that the principle underlying order VIII Rule 5 C.P.C. does not mean that despite non filing of written statement, Court may not call upon the plaintiff to prove his case.
21. Here nothing has been brought before this Court to show that suit in question was within the period of limitation either for the purpose of declaration or for the purpose of restoration of possession or for the purpose of recovery of money etc. From all angels we are clearly of the view that mere fact that plaintiff chose to serve notice under Section 80 C.P.C. in November, 1991 that will not give a cause of action or renewal of cause of action which already has stood barred by limitation under the provisions of Act, 1963. Hence, we answer question no. 3 also against plaintiff-respondent and in favour of appellant.
22. In view of above, the judgment and decree dated 17.10.1995 cannot be sustained. The appeal is allowed. Impugned judgment and decree dated 17.10.1995 is hereby set aside and Original Suit No. 57 of 1992, filed by plaintiff-respondent, is hereby dismissed.
23. There shall be no order as to costs.
Order Date :- 19.05.2015 AK