Himachal Pradesh High Court
Decided On: 02.09.2024 vs Manohar Lal & Ors on 2 September, 2024
2024:HHC:7817 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 64 of 2024 Decided on: 02.09.2024 ____________________________________________________ The Principal Secretary Revenue and ors. ........... Appellants .
Versus
Manohar Lal & Ors. ........Respondents
____________________________________________________ Coram:
Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the appellants : Mr. Manish Thakur, Deputy Advocate General.
For the respondents : Mr. Malay Kaushal, Advocate. ____________________________________________________ Bipin Chander Negi, Judge The present appeal is directed against the judgment and decree dated 30.05.2023, passed by learned District Judge, Bilaspur, H.P. vide which the appeal filed by the appellants (defendants before learned Trial Court) was dismissed and the judgment and decree dated 18.12.2020 passed by learned Civil Judge, Bilaspur, District Bilaspur, H.P was upheld (parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a Civil Suit before the learned Trial Court seeking a mandatory injunction directing the defendants to hand over the possession of the land comprised in Khata/Khatoni No.10 min/12, Khasra No.122, measuring 0-2 1 Whether the reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 03/09/2024 20:30:37 :::CIS Bighas and land comprised in Khata/Khatoni No.6 min/7, Khasra No.10, measuring 2-05 Bighas, situated at Village Lag, Pargna Rattanpur, Tehsil Sadar, Distt. Bilaspur, H.P. (hereinafter referred to as the suit land), in its original nature in case the same is not .
acquired by paying adequate compensation. It was asserted that the plaintiffs are owner in possession of the suit land. The defendants utilized the suit land for the construction of the Deoth- Lag Ghat-Jamli Link road in 1980 and assured the plaintiffs that compensation would be paid for the same. The lands of Surjan Ram and Chet Ram were acquired vide Award No. 1 of 1987; however, the land of the plaintiffs was not acquired. Hence, the suit was filed for seeking the relief mentioned above.
3. The suit was opposed by filing a written statement asserting that the road was constructed with the consent of the plaintiffs and no assurance was given to them to pay the compensation. The plaintiffs were not entitled to the payment of compensation; hence, it was prayed that the suit be dismissed.
4. No replication was filed.
5. Learned Trial Court framed the following issues on 30.03.2017:-
1. Whether the plaintiffs are entitled for a decree of declaration, as prayed for? OPP.
2. Whether the plaintiffs are entitled for a decree of mandatory injunction directing the defendants to ::: Downloaded on - 03/09/2024 20:30:37 :::CIS acquire the suit land, in case of non-acquisition of the suit land, as prayed for? OPP
3. Whether the plaintiffs are entitled for a decree of vacant possession of the suit land by restoring the .
same to its original nature? OPP.
4. Relief.
6. The parties were called upon to produce the evidence and plaintiff No.1 examined himself (PW-1). The defendants examined Gurminder Singh (DW-1) and Krishan Kant Chauhan (DW-2). r
7. The learned Trial Court held that the plaintiffs were recorded owner in the copy of the Jamabandi (Ext.PW-1/B). The defendants failed to prove that any compensation was paid to the plaintiffs. The plea of the defendants was that the consent of the plaintiffs was taken for the construction of the road was not proved. The State does not have any authority to encroach upon the land of any person. The continuous possession for more than 35 years will not assist the defendants as they cannot claim adverse possession over the land of the citizen. Hence, the learned Trial Court answered issue no. 1 partly in affirmative, issue no. 2 in affirmative, issue no. 3 in the negative and partly decreed the suit of the plaintiffs.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendants preferred an appeal before the learned First Appellate Court. The learned First ::: Downloaded on - 03/09/2024 20:30:37 :::CIS Appellate Court held that the plea taken by the defendants that they had taken the consent of the plaintiffs was not established. Even if there was consent, the same was for the construction of the road through the land and was not for not paying any .
compensation. The State is bound to pay compensation for the land of the citizens used by it. Mere long possession of the land by the State will not enable it to hold the land without the payment of the compensation. The compensation was paid to some of the persons and was only denied to the plaintiffs; therefore, the appeal filed by the defendants was dismissed.
9. Feeling aggrieved and dissatisfied with the judgments and decrees passed by the learned Courts below, the present appeal has been filed, asserting that the learned Courts below did not properly appreciate the evidence led before them. No objection was raised by the plaintiffs for more than 35 years. The claim of the plaintiff was stale and barred by delay and latches; therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.
10. The following substantial questions of law were proposed with the memorandum of appeal:-
1. Whether the civil court has jurisdiction to try a time barred suit for declaration injunction?
2. Whether the judgments of Courts below are contrary to law and based on misconstruction of the ::: Downloaded on - 03/09/2024 20:30:37 :::CIS pleadings of parties and misreading of oral and documentary evidence?
3. Whether by large silence over a right, the party is deemed to have acquiescenced to the action of the .
opposite party.
11. Heard counsel for the parties, perused the impugned judgments.
12. Mr. Manish Thakur, learned Deputy Advocate General for the appellants/defendants/State submitted that the defendants have been in possession for more than 35 years, which shows the consent of the plaintiffs. The suit is barred by delay and laches. The learned Courts below did not appreciate this aspect; hence, they prayed that the present appeal be admitted on the proposed substantial questions of law.
13. Mr. Malay Kaushal, learned Advocate, for the respondents/plaintiffs, supported the judgments and decrees passed by the learned Courts below. He submitted that the learned Courts below had rightly held that the plea of the consent was not proved as per the law. This is the pure findings of fact, which cannot be interfered with in the second appeal. The State cannot take the land of a citizen without payment of compensation. The learned Courts below had rightly directed the State to restore the possession or to pay compensation to the plaintiffs. Hence, he prayed that the present appeal be dismissed.
14. I have given considerable thought to the rival ::: Downloaded on - 03/09/2024 20:30:37 :::CIS submissions at the bar and have gone through the records carefully.
15. Sh. Gurminder Singh (DW-1), admitted that no written consent was procured from the plaintiffs before the .
construction of the road. He volunteered to say that oral consent was obtained. However, he stated that he was not posted in the department at the time of the construction of the road. Sh. Krishan Kant Chauhan (DW-2), made a similar statement.
16. Thus, both the witnesses of the defendants admitted that consent was not given in their presence; therefore, their testimonies did not establish the oral consent of the plaintiffs.
17. Consent is a question of fact, both the Courts have concurrently held that in the case at hand, there never existed a consent on the part of the respondents for utilisation of their land for the construction of the road in question.
18. The admitted facts in the case at hand is that the suit land had been utilized for construction of a road way back in the year 1980. The sole contention urged on behalf of the appellants is that the suit so filed by the respondents/plaintiffs before the Trial Court was time barred. In this respect, reference can be made to case reported as (2011) 10 SCC 404 titled State of Haryana vs. Mukesh Kumar and Vidya Devi vs. State of Himachal Pradesh reported as 2020 (2) SCC 56, wherein, it has been categorically held that the State cannot take the plea of adverse possession to grab the properties of its citizens. ::: Downloaded on - 03/09/2024 20:30:37 :::CIS
19. Other than the aforesaid, it would be appropriate to refer to case reported as Tilak Raj vs. Bhagat Ram and Anr. 1997 (1) Sim. LC 281, wherein, it has been laid down that in the suit based on title where no plea of adverse possession has been .
raised, the same can not be barred by limitation on the ground that it was filed after more than 12 years from the date of dispossession.
20. Similarly, it has been held in Indira vs. Arumugam and Anr. (1998) 1 SCC 614 that in a suit based on title when the title has been established, the plaintiffs cannot be dispossessed on the ground of utilization unless the plea of adverse possession is established.
21. In the case at hand, since the State cannot take the plea of adverse possession therefore, the plea of limitation cannot be taken by the State. Hence, the suit cannot be held to be barred by limitation.
22. Right to Property emanates out of Article 300A of Constitution of India. Not only is it a Constitutional right, but it is also a human right. The right to receive compensation thought not specifically provided under Article 300A of the Constitution of India is inherent in the same.
23. Learned counsel appearing on behalf of the respondents has drawn the attention of this Court to judgment passed in RSA No.186 of 2023 decided on 06.10.2023 case ::: Downloaded on - 03/09/2024 20:30:37 :::CIS titled The Principal Secretary (Revenue) to the Govt. of H.P. & Ors. vs. Ramka.
24. In the judgment so referred, land therein of the respondent had been acquired without paying compensation for .
construction of Deoth-Lag Ghat-Jamli Link road in 1980 (same road). The pleadings in the said case, evidence led and the issues framed are exactly the same. Therefore, for reasons alike as have been detailed in RSA No.186 of 2023 decided on 06.10.2023 titled as The Principal Secretary (Revenue) to the Govt. of H.P. & Ors. vs. Ramka, the present appeal deserves to be dismissed.
25. In view of the aforesaid, the present appeal raises no question of law much less than substantial question of law. Hence, the same is dismissed, so also, pending miscellaneous application, if any.
(Bipin Chander Negi) Judge September 02, 2024 (Ankit) ::: Downloaded on - 03/09/2024 20:30:37 :::CIS