Jageshwar Das Jammumal Lodepota ... vs The State Of Mah & Another
2017 Latest Caselaw 7420 Bom

              sa308.04.odt                                                                                      1/8

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.


                                              SECOND APPEAL NO.308 OF 2004


               APPELLANTS:                            Jageshwar   Das   S/o   Jammumal
                                                      Lodepota,   aged   about   31   years,   by
               (Ori.Plffs.           
                                                      Occupation: Business, resident of Mohan
               on R.A.)
                                                      Nagar, Nagpur.
                                                                          
                                                  -VERSUS-

               RESPONDENTS: 1.                                         The   State   of   Maharashtra   through   the
               (Ori. Defts. on                                         Collector, Nagpur.
               R.A.)
                                                       2.              The   Sub-Divisional   Officer,   Soil
                                                                       Conservation, Nagpur.
                                                     
                                                                  

              Shri Sirsikar, Advocate with Shri D. G. Paunikar, Advocate for the
              appellant.
              Shri H. D. Dubey, Asstt. Government Pleader for respondent nos.1
              & 2.



                                                                CORAM: A.S. CHANDURKAR, J.

DATED: SEPTEMBER 21, 2017.

ORAL JUDGMENT :

1. The appellant is the original plaintiff who has filed this

appeal being aggrieved by the dismissal of the suit for possession

and damages by the trial Court and affirmed by the appellate

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Court.

2. It is the case of the plaintiff that by virtue of the sale

deed dated 29-7-1992, he had purchased Survey No.3,

admeasuring 7 Hectares 80R. On the basis of permission obtained

in the year 1984, the standing trees were cut down with a view to

start cultivation in the suit property. In the month of May, 1987

the defendants encroached upon the plaintiff's field and

constructed a tank on the half portion of his land. The plaintiff,

therefore, issued a notice on 14-5-1987 and filed suit for

possession along with damages of Rs.5000/-.

3. In the written statement filed by the defendants at

Exhibit-16, it was pleaded that on the basis of sanction granted on

31-3-1986, the work of Nalla Bunding commenced from 2-4-1986

and was completed on 29-1-1988. This construction was for the

benefit of cultivators and the plaintiff though his agent had

consented to such work being carried out in his field. It was

denied that any damage was caused to the plaintiff's field. It was

pleaded that the actual area in which there was water stagnation

was to the extent of 0.43 Hectares.

4. The plaintiff examined himself and three other

witnesses. He placed on record various documents including a

map. The defendants did not lead any evidence. The trial Court

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by its judgment dated 28-7-1995 held that the encroachment was

not proved by the plaintiff or that he had been so dispossessed.

The suit was therefore dismissed. The appellate Court confirmed

this judgment on 3-2-2004. Being aggrieved this second appeal

has been filed.

5. While admitting the appeal, the following substantial

question of law was framed:

"Whether the Courts were justified in dismissing the

suit of the plaintiff when the plaintiff had produced voluminous

evidence on record to show that the State had taken possession of

the land belonging to the plaintiff and defendant - State had not

produced any evidence whatsoever to refute the claim of the

plaintiff?"

6. Shri Sirsikar, learned Counsel for the appellant

submitted that both the Courts ignored the documentary evidence

placed on record by the plaintiff. He submitted that from the

pleadings of the parties it was clear that Nalla Bunding Project was

implemented in the plaintiff's field as a result of which there was

water stagnation leading to loss being caused to the plaintiff. He

submitted that in the written statement it was clearly admitted

that the area submerged under water was to the extent of 0.43

Hectares. He referred to the deposition of PW-4 below Exhibit-42

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to indicate that as per the map at Exhibit-43 prepared by the

Engineer almost half of the plaintiff's land was affected by the

aforesaid construction. Without compensating the plaintiff, his

land was utilized for making construction and therefore the

plaintiff was entitled for the decree as prayed for. In support of his

submissions, the learned Counsel placed reliance on the following

judgments:

(1) State of Mah. vs. Bhimashankar 2009(5) Mh.L.J. 76.

(2) Raghbir Singh vs. State of Haryana 2012(3) Mh.L.J.

(3) Daulat Singh Surana & Ors. v. First Land Acquisition Collector & Ors. AIR 2007 SC 471.

(4) State of Maharashtra Vs. Punja Trambak Lahamage 2008(3) ALL MR 379.

7. Shri H. D. Dubey, learned Assistant Government

Pleader for the respondents supported the impugned judgments.

According to him, possession of the suit property was not taken

from the plaintiff and the project was implemented for the benefit

of the cultivators. He submitted that the plaintiff's agent had

consented for such construction work and therefore it was not

open for the plaintiff to now turn around and seek possession of

the suit property. According to him, the consent of more than

sixty seven percent cultivators had been obtained under the

Scheme in question and therefore, both the Courts rightly

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dismissed the suit as filed.

8. I have heard the learned Counsel for the parties at

length and I have perused the records of the case. The ownership

of the suit property is not in dispute. It is also not in dispute that

in a portion of the plaintiff's land, the Nalla Bunding Project was

carried out. In para 10 of the written statement it is pleaded by the

defendants that due to said construction work, after actual

measurement it was found that there was water stagnation to the

extent of 0.43 Hectares of land in the plaintiff's field.

9. The plaintiff examined himself below Exhibit-29.

According to him, no notice was given by the defendants before

the construction work was started. Notice at Exhibit-30 was issued

by the plaintiff to the Land Acquisition Officer as well as the

Collector who did not respond to the same. In his cross-

examination, he referred to the 7/12 extracts of the year 1986-87

and stated that objection was raised when the construction work

was started. PW-2 at Exhibit-36 deposed that due to aforesaid

work, half portion of the plaintiff's field was submerged in water.

The suggestion to this effect was given to him in his cross-

examination. The plaintiff examined his father at Exhibit-37 and

he stated that no cultivation work was possible due to the

construction carried out in the field. PW-4 at Exhibit-42 is the

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Engineer who placed on record his map at Exhibit-43 indicating

submergence of the plaintiff's land.

The defendants despite grant of opportunity did not

lead any evidence before the trial Court.

10. On consideration of this evidence, the trial Court held

that though the work of Nalla Bunding was carried out, possession

of the suit field was not taken and hence, there was no question of

acquiring the same. After holding that there was no encroachment,

the suit was dismissed which finding was confirmed by the

appellate Court. As noted above, even according to the defendants,

there was water stagnation in the plaintiff's field to the extent of

0.43 Hectares land. The suggestions given by the defendants in

the cross-examination of the plaintiff and his witnesses are also on

the point of the plaintiff's land being submerged due to this work.

Though it was the case of the defendants that the consent of the

plaintiff's agent had been obtained, no evidence to that effect was

led by the defendants. Merely on the basis of the pleading in the

written statement, it cannot be assumed that the plaintiff had

consented for such work being carried out in his field. Thus,

considering the entire evidence on record, it will have to be held

that the work of Nalla Bunding was carried out in the plaintiff's

field without his consent and as a result of this work, there was

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water stagnation to the extent of 0.43R in the plaintiff's field.

11. In so far as the claim for damages of Rs.5000/- for a

period of two years is concerned, the evidence on record is not

sufficient to grant the same. The plaintiff himself has not deposed

about the actual loss caused to him by virtue of the work being

carried out in his field. This claim for damages has not been

proved by the plaintiff. Be that as it may, the fact remains that

even according to the defendants there was water stagnation in

the plaintiff's field to the extent of 0.43R land.

12. Though the plaintiff has prayed for possession of the

suit property as described in para 1 of the plaint, it cannot be

ignored that the work of Nalla Bunding for the benefit of various

cultivators was carried in the plaintiff's field. Though it is the case

that such consent was obtained there is no evidence to indicate

that the plaintiff's consent was obtained. The fact remains that the

portion of the plaintiff's agricultural land has been affected by this

work. Considering the admission of the defendants in their

written statement, it is held that by virtue of this construction, the

plaintiff's land to the extent of 0.43 hectares has been affected.

Though the plaintiff cannot be granted the relief of possession, the

relief would have to be moulded by granting liberty to the plaintiff

to seek compensation in appropriate proceedings by following the

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course as laid by the Hon'ble Supreme Court in Daulat Singh

Surana and others (supra).

13. Accordingly, the substantial question of law is

answered by holding that the Courts were not justified in

dismissing the suit of the plaintiff in the light of the evidence

placed on record. Though the plaintiff is not entitled for the relief

of possession, by moulding the relief he is granted liberty to

initiate appropriate proceedings for being compensated with

regard to 0.43 Hectares land of his suit field. The judgment of the

trial Court in Regular Civil Suit No.554/1988 stands accordingly

modified. The second appeal is allowed in aforesaid terms. No

costs.

JUDGE

/MULEY/