Smt. Sushilaben Wd/O Sanabhai ... vs Mah. Jivan Pradhikaran (Mah. ...
2021 Latest Caselaw 225 Bom

FA-1461-09,3-10                                                                      1/19


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

                              FIRST APPEAL NO.1461 OF 2009


1. Sushilaben wd/o Sanabhai Patel
   Aged about 68 years, Occ. Household

2. Sunil s/o Sanabhai Patel
   Aged about 50 years, Occ. Business

3. Rakesh s/o Sanabhai Patel
   Aged about 47 years, Occ. Business

4. Atul s/o Sanabhai Patel
   Aged about 43 years, Occ. Business

  All residents of Patel Gin Babupeth,
  Chandrapur Tah. & Dist. Chandrapur
  (Ms)                                                         ... Appellants

-vs-

Maharashtra Jivan Pradhikaran
(Maharashtra Water Supply and Sewarage
Board) A statutory Board having its Head
Office at 4th Floor, Express Towers, Nariman
Point, Mumbai 400 021 (to be served through
Executive Engineer Maharashtra Jivan Pradhikaran,
Civil Lines, Chandrapur                                        ... Respondents

WITH FIRST APPEAL NO.03 OF 2010

Maharashtra Jeevan Pradhikaran (Maharashtra Water Supply and Sewarage Board) A statutory Board having its Head Office at 4th Floor, Express Towers, Nariman Point, Mumbai 400 021 through its Executive Engineer Maharashtra Jeevan Pradhikaran, Chandrapur ... Appellants

vs.

1. Sushilaben wd/o Sanabhai Patel Aged about 68 years, Occ. Housewife

2. Sunil s/o Sanabhai Patel

FA-1461-09,3-10 2/19

Aged about 50 years, Occ. Business

3. Rakesh s/o Sanabhai Patel Aged about 47 years, Occ. Business

4. Atul s/o Sanabhai Patel Aged about 43 years, Occ. Business

All residents of Babupeth, Chandrapur Tah. & Dist. Chandrapur ... Respondents

Shri M. P. Khajanchi, Advocate for appellants in F.A. No.1461/2009 and for respondents in F.A.No.3/2010.

Shri B. D. Pandit, Advocate for respondent F.A. No.1461/2009 and for appellant in F.A.No.3/2010.

CORAM : A. S. CHANDURKAR AND N. B. SURYAWANSHI JJ.

Date on which the arguments were heard : December 07, 2020 Date on which the judgment was pronounced : January 06, 2021

Judgment : (Per A. S. Chandurkar, J.)

Both these appeals raise a challenge to the judgment of the trial

Court dated 26/08/2009 in Special Civil Suit No.106/1999. For sake of

convenience the parties are being referred to as per their original status in

the trial Court.

First Appeal No.1461/2009 has been filed by the plaintiffs. It is

their case that they are the owners of land bearing Survey No.107/1

admeasuring a bout 1H 36R. The said land is situated within the

municipal limits of Chandrapur city. According to the plaintiffs from

1989-1990 the defendant encroached upon 13659 sq. mt area from their

land for stacking material such as steel pipes etc. This was done without

FA-1461-09,3-10 3/19

obtaining permission of the plaintiffs. From 1991-1992 the plaintiffs were

demanding compensation from the defendant for illegal use of that land

and also to vacate the same. The defendant issued letters to the plaintiffs

stating therein that the decision regarding payment of compensation/rent

could be taken up after the matter was decided by the revenue Authority.

Such proceedings were initiated by the Tahsildar and thereafter the

matter went in appeal before the Sub-Divisional Officer as well as the

Collector. A revision application was also filed before the Additional

Commissioner and State Government. Ultimately the defendant was

directed to pay rent for unauthorised use to the plaintiffs. With a view to

sort out the issue, meetings between the parties were held. In one such

meeting held on 19/03/1997 the defendant agreed to pay compensation

as per the Government Resolution dated 13/08/1985. Accordingly

though the amount of compensation for the period from 1989-90 to 1997-

98 was Rs.2,62,25,280/-, payment of Rs.6,54,000/- was unilaterally

determined and paid to the plaintiffs. The plaintiffs accepted the said

amount of compensation without prejudice to their rights. After issuing a

notice on 17/02/1998 the plaintiffs sought payment of balance

compensation. Since such payment was not made the aforesaid suit came

to be filed on 16/06/1999 seeking a decree for an amount of

Rs.3,45,61,112/- with interest.

FA-1461-09,3-10 4/19

2. In the written statement filed by the defendant the claim as

made was denied. The plaint averments were also denied. It was then

pleaded that there was no agreement between the parties for payment of

rent towards utilisation of the land by the defendant. The land in question

was agricultural land and it was not under cultivation by the plaintiffs for

a long period. The amount of Rs.6,54,000/- paid to the plaintiffs was

proper and therefore no further compensation was liable to be paid to the

plaintiffs.

3. On behalf of the plaintiffs Shri Rakesh Patel-plaintiff No.3 was

examined below Exhibit-46. He deposed in terms of the plaint averments.

He placed on record various documents relating to the proceedings before

the revenue authorities as well as exchange of legal notices. In his cross-

examination he stated that though the land was sought to be used for non-

agricultural use he did not remember as to whether any application for

conversion of the land for non-agricultural purpose was filed. He

admitted that no case had been filed by the plaintiffs for unauthorised

occupation by the defendant over the suit land. The first notice issued

was on 03/02/1992.

4. On behalf of the defendant its Executive Engineer filed affidavit

in lieu of evidence at Exhibit-98. He too deposed on the lines of the

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pleadings in the written statement. In his cross-examination he stated

that he had no personal knowledge of the fact mentioned in the affidavit

as he was posted at other places during that period.

5. The learned Judge of the trial Court after considering the

pleadings of the parties as well as the evidence on record held that the

plaintiffs had proved the encroachment committed by the defendant upon

land to the extent of 13659 sq. mt. This encroachment was for the period

from 15/10/1990 to 17/03/1993. It was further held that the plaintiffs

were entitled to compensation as per the Government Resolutions dated

13/08/1985 and 30/06/1992. On that basis compensation was

determined at Rs.25,73,000/-. It was further held that the suit was not

barred by limitation. Accordingly by the judgment dated 26/08/2009 the

suit was partly decreed in the manner stated herein above and the

decreetal amount was directed to be paid with interest at 6% per annum

from 06/08/1997 onwards.

6. The plaintiffs not being satisfied with the decree passed by the

trial Court have preferred First Appeal No.1461/2009. Shri M. P.

Khajanchi, learned counsel for the plaintiffs referred to various

documents on record to submit that the defendant had encroached upon

13659 sq. mt land from 1989-90 to 06/08/1997. Referring to various

FA-1461-09,3-10 6/19

orders passed by the revenue authorities in which it was stated that the

encroachment of the defendant was continuing even on the date when the

orders were passed it was urged that the trial Court was not justified in

restricting the grant of compensation for the period from 15/10/1990 to

17/03/1993. Referring to the documents at Exhibits-80 and 139 it was

submitted that the same indicated that possession of the land was handed

over by the defendant to the plaintiffs on 06/08/1997. When it was an

admitted fact that the defendant had used the land of the plaintiffs for

staking its material without obtaining permission from the plaintiffs, the

plaintiffs were entitled to receive compensation for the entire period from

15/10/1990 to 06/08/1997. Infact the record of the minutes of meeting

held between the representatives of the plaintiffs and the defendant at

Exhibit-86 also indicated this fact. The cause of action for seeking

damages arose on 06/08/1997 when the defendant despite admitting

such encroachment paid an amount of Rs.6,54,000/- only as

compensation. He then referred to the provisions of Article 113 of the

Limitation Act, 1963 (for short, the Act of 1963) to urge that the suit had

been filed within limitation and period of three years from the date when

the cause of action arose. This issue was rightly answered by the trial

Court despite the objection raised by the defendant. It was also urged that

the witness examined by the defendant was not aware of the facts of the

case since he had admitted that he was posted at some other place

FA-1461-09,3-10 7/19

between the period of 1990-97. Placing reliance on the decisions in

Madras Port Trust vs. Hymanshu International by its Proprietor vs. Venkatadri

(Dead) by LRs. (1979) 4 SCC 176, Ballarpur Industries Ltd. vs. Union of India

1985 Mh.L.J. 182, Board of Trustees of the Port of Bombay vs. Messrs Rainbow

Products and anr. 2007(2) Mh.L.J. 728, Tahera Khatoon and ors. vs. Revenue

Divisional Officer/Land Acquisition Officer and ors. (2014) 13 SCC 613 and

Balwan Singh and ors. vs. Land Acquisition Collector and anr. (2016) 13 SCC

412, it was submitted that the decree passed by the trial Court was liable

to be modified and the amount of compensation as claimed by the plaintiff

for the period till 06/08/1997 was liable to be granted.

7. The defendant being aggrieved by the decree as passed by the

trial Court has filed First Appeal No.03/2010. Shri B. D. Pandit, learned

counsel for the defendant submitted that the decree as passed was

contrary to the evidence on record and after receiving an amount of

Rs.6,54,000/- as compensation for wrongful use of the plaintiffs' property

no further amount of compensation was liable to be paid to the plaintiffs.

The evidence on record clearly indicated that the defendant was in

possession only till 17/03/1993 and hence for the subsequent period no

compensation was liable to be paid. Infact the suit itself was barred by

limitation and the provisions of Article 113 of the Act of 1963 had been

wrongfully applied. He referred to the provisions of Article 52 and 55 of

the Act of 1963 in that regard. It was then submitted that the plaintiffs

FA-1461-09,3-10 8/19

merely relied upon the documents prepared by the revenue department

and did not lead any further evidence. These documents were not

binding on the civil Court and therefore it was necessary for the plaintiffs

to have proved their case independently. The pleadings in the plaint as

well as the evidence on record was insufficient to grant any further

compensation than what was agreed to be paid as per Exhibit-86. Infact

the plaintiffs failed to cross-examine the defendant's witness on the

contents of the document at Exhibit-86. The provisions of Section 114(e)

of the Evidence Act, 1872 would not apply to the contents of the

documents in question and the same were liable to be independently

proved. The plaintiffs had to succeed on the strength of their own case

and they could not rely upon the weakness in the stand taken by the

defendant. The basis on which the trial Court proceeded to enhance the

amount of compensation from Rs.6,54,000/- to Rs.25,73,000/- was

without any legal support and therefore the appeal as filed was liable to

be allowed and the impugned judgment ought to be set aside.

8. In the light of the respective contentions the following points

arise for determination :

(i) Whether the plaintiffs prove that the encroachment by the defendant was for the period from 1989-90 to 06/08/1997 ?

(ii) Whether the plaintiffs are entitled for the compensation as prayed for by them in the suit ?

 FA-1461-09,3-10                                                                       9/19


 (iii)       Whether the suit for recovery of amount of compensation is
             barred by limitation ?

9. We have heard the learned counsel for the parties at length

and with their assistance we have perused the evidence on record. All

points as framed are being decided together. According to the plaintiffs

the illegal occupation of Survey No.107/1 by the defendant was to the

extent of 13659 sq. mt. In the written statement at Exhibit-12 while

admitting the ownership of the plaintiffs in respect of area admeasuring

1H 36R from Survey No.107/1 it was denied that the encroachment was

to the extent of 13659 sq. mt. However in the specific pleadings the

defendant has not referred to the actual area if any in their possession.

This is in view of the fact that in paragraph 11 of the written statement it

has been specifically pleaded as under :

" It cannot be said that the calculation of Rs.81750/- per annum for the alleged utilization of land admeasuring 13659 sq. mt is not proper. Actually much less land than 13659 sq. mt. was utilised by the defendant. It is true that the defendant has used the plaintiffs' land, it was used for the public purpose at large and not to the extent as alleged."

10. In the light of this stand taken in the written statement it was

necessary for the defendant to have indicated the actual area in its

occupation. The plaintiffs relied upon various orders passed in revenue

FA-1461-09,3-10 10/19

proceedings to substantiate their claim for grant of compensation. These

proceedings were initiated by the Tahsildar by issuing a show cause notice

to the plaintiffs. In reply to the said show cause notice the plaintiffs

stated that the defendant had encroached upon their land and it

unauthorisedly used the same for commercial purpose. The Sub-

Divisional Officer then passed an order on 20/04/1992 which is at Exhibit-

72. In that order it was stated that the Sub-Divisional Officer had

personally carried out spot inspection of the land in question and a sketch

drawn was placed on record. The same is at Exhibit-71 indicating use of

13659 sq. mt for non-agricultural use. On that basis he proceeded to levy

non-agricultural assessment on the plaintiffs. Directions were also issued

to the defendant to pay an amount of Rs.3825/- towards non-agricultural

assessment. This order was challenged before the Resident Deputy

Collector who on 29/06/1992 passed an order which is at Exhibit-73. In

that order the unauthorised occupation and use of 13659 sq. mt by the

defendant was confirmed. However, the non-agricultural cess and fine to

be paid was enhanced to Rs.11475/-. A further appeal was filed by the

defendant before the Additional Commissioner who decided the same on

17/03/1993 which is at Exhibit-74. It was observed that even till the date

of passing of that order the non-agricultural use by the defendant

continued and on that basis non-agricultural assessment was levied.

Liberty was given to the land owner to seek remedy before the competent

FA-1461-09,3-10 11/19

authority for eviction of the defendant and also for claiming rent and

other damages. The defendant then approached the State Government by

filing a revision application which was decided by the Honourable

Revenue Minister on 02/07/1994 which is at Exhibit-75. The order

passed by the Additional Commissioner was confirmed by the Revisional

Authority.

From these orders it becomes clear that at least till 17/03/1993

the defendant was in occupation of 13659 sq. mt land that was owned by

the plaintiffs. Other than these orders there is no independent evidence

led by either of the parties to indicate either the actual area of

unauthorised use by the defendant or the date on which the defendant

handed over possession back to the plaintiffs. The learned Judge of the

trial Court has on that basis recorded a finding that the defendant was in

occupation of 13659 sq. mt land that was belonging to the plaintiffs. The

finding with regard to the area in illegal occupation of the defendant as

recorded by the trial Court would therefore have to be confirmed

especially when the defendant did not substantiate its defence of having

occupied lessor area of the plaintiffs' land. Though it was urged on behalf

of the defendant that the findings recorded by the revenue authorities

were not binding on the civil Court which proposition is correct, in

absence of any contrary evidence being brought on record by the

defendant there is no basis to hold that the defendant was in occupation

FA-1461-09,3-10 12/19

of any area lessor than 13659 sq. mt.

11. In so far as the period of such illegal occupation by the

defendant for staking its material is concerned, it is the case of the

plaintiffs that such illegal occupation commenced from 1989-90. The

plaintiffs have not come up with any specific date on which such

encroachment was first committed by the defendant. Even the defendant

in its written statement denied having entered the plaintiffs' land in 1989-

90. However no specific date on which its illegal occupation commenced

was stated. The Additional Commissioner in his order at Exhibit-74 has

observed that there was no material on record to hold that the

unauthorised use started from 1989. It referred to the fact that in the

reply filed by the defendant before the Tahsildar it had been stated that on

15/10/1990 256 pipes were received by the defendant. Similarly in

Exhibit-86 which is an office note dated 06/05/1997 a period of

occupancy claimed by the plaintiffs as well as by the defendant has been

referred to. The commencement of such occupation is stated to be from

15/10/1990 by both the parties. It is on that basis that the trial Court has

proceeded to take the date of commencement of such illegal occupation as

15/10/1990.

Again in absence of any other specific evidence by the plaintiffs

to indicate that the illegal occupation commenced from 1989-90 it would

FA-1461-09,3-10 13/19

not be possible to hold that the plaintiffs had succeeded in proving that

such illegal occupation by the defendant commenced from 1989-90. Thus

the finding recorded by the trial Court as to the date of commencement of

such encroachment to be 15/10/1990 is based on the material available

on record and hence is acceptable.

12. According to the plaintiffs such illegal occupation continued till

06/08/1997 and hence damages are claimed on that basis. The trial

Court has granted compensation till 17/03/1993. Again in this regard

except averments in the plaint and denial by the defendant there is no

specific evidence to indicate that the defendant was in possession of

13659 sq. mt of area till 06/08/1997. The plaintiffs have sought to rely

upon documents at Exhibits-80,86 and 139 to contend that such illegal

occupation continued till 06/08/1997. Exhibit-80 is a letter issued by the

Executive Engineer of the defendant on 08/08/1997 to the plaintiffs. In

that letter it has been stated that a cheque for an amount of Rs.6,54,000/-

on account of rent for the area from Survey No.107/1 which was in

possession of the defendant was being sent. A stamped receipt for

payment of rent and possession was demanded. Exhibit-86 which is the

office note dated 06/05/1997 refers to the period of occupancy by the

plaintiffs to be from 15/10/1990 to 22/06/1992. On that basis a

statement was prepared indicating the amount of occupation charges due

FA-1461-09,3-10 14/19

and payable as per the respective parties. Exhibit-139 is the receipt dated

06/08/1997 issued by the plaintiffs without prejudice acknowledging

amount of Rs.6,54,000/- towards rent and possession of land from Survey

No.107/1. Again there is no independent evidence led by either of the

parties to indicate that on a specific date actual possession was delivered

by the defendant and received by the plaintiffs. While minutes of the

joint meeting at Exhibit-86 indicate the period of occupation as per the

plaintiffs to be from 15/10/1990 to 17/03/1993 there is no cross-

examination of the defendant's witness on the correctness of this period.

Though it is true that the defendant's witness was not aware about the

factual aspects of the dispute, it was always open for the plaintiffs to have

taken appropriate steps to prove their contention that the defendant was

in occupation of the land till 06/08/1997. The burden to prove this date

of illegal occupation by the defendant was definitely on the plaintiffs since

they were seeking compensation for illegal occupation till this date. In

absence of any specific evidence in this regard the trial Court has referred

to the office note at Exhibit-86 as well as the order of the Additional

Commissioner at Exhibit-73 to hold that the defendant was in possession

till 17/03/1993. Thus in absence of any further evidence besides

Exhibit-86 and Exhibit-73 it would not be possible to record a finding that

the defendants continued in possession till 06/08/1997. The trial Court

has rightly observed that merely because the receipts at Exhibits-80 and

FA-1461-09,3-10 15/19

139 were issued on 06/08/1997 that could not be taken as the date till

which the defendant was in possession. These receipts were the outcome

of the joint meeting that was held between the parties on 06/05/1997

Exhibit-86. A possible view of the matter on a rational basis and by

applying the principle of preponderance of probability has been taken by

the trial Court and we do not find any other material on record to

displace that finding.

In this context reference may be made to the decision in

Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi and ors. AIR

1960 SC 100 where it was held by the Honourable Supreme Court while

explaining the meaning of the expression " burden of proof " to mean that

something which a party is required to prove an allegation before

judgment can be given in its favour. It also means that on a contested

issue one of the two contending parties has to introduce evidence and the

burden to prove is of importance only where by reason of not discharging

the burden which was put upon it, a party must eventually fail. However,

where both parties have joined issue and have led evidence the conflicting

evidence can be weighed to determine which way the issue can be

decided.

13. In so far as the aspect of bar of limitation is concerned it is

found that the trial Court has rightly applied the provisions of Article 113

FA-1461-09,3-10 16/19

of the Act of 1963 to hold that the suit was filed within limitation. Initially

there were revenue proceedings with regard to determination of

assessment to be paid for the illegal occupation by the defendant which

culminated with the order dated 02/07/1994 passed by the State

Government at Exhibit-74. Thereafter meeting between the parties took

place and ultimately on 06/05/1997 minutes of that meeting at Exhibit-86

were prepared. According to the defendant it was liable to pay

Rs.6,54,000/- towards occupation charges from 15/10/1990 to

22/06/1992. This amount was paid and since the plaintiffs accepted the

same without prejudice to their legal rights, the suit as filed within a

period of three years from 06/08/1997 has been rightly held to be within

limitation. The ratio of the decisions in Ballarpur Industries Ltd. as well as

Board of Trusties of the Port of Bombay (supra) supports the contentions of

the plaintiffs and hence that finding is also liable to be affirmed.

According to the learned counsel for the defendant the limitation would

be governed either by Article 52 or Article 55 of the Act of 1963. Article

52 pertains to suit for recovery of arrears of rent. In the present case

there is no relationship of landlord and tenant/lessor and lessee between

the parties. There was no agreement to pay rent between the parties.

Article 55 relates to a suit for recovery of compensation for breach of any

express or implied contract. The same analogy would apply inasmuch as

occupation of the defendant was termed to be illegal by the plaintiffs.

FA-1461-09,3-10 17/19

There was no agreement or contract either express or implied between the

parties on the basis of which the defendant occupied the plaintiffs' land.

The provisions of Articles 52 and 55 of the Act of 1963 would not apply

for the aforesaid reasons.

14. Coming to the aspect of calculation of compensation it is seen

from the record that the plaintiffs had approached the Divisional

Commissioner seeking occupation charges at the rate of 25% of the

market value of the land. By communication dated 22/01/1993 at

Exhibit-85 the Commissioner informed the plaintiffs that the aspect of

compensation/rent would have to be decided mutually between the

parties and no direction in that regard could be issued. Thereafter there

was exchange of communication between the parties and on 06/05/1997

a joint meeting was held as per office notice at Exhibit-86. The statement

annexed to these minutes indicates calculation of occupation charges by

both the parties on the basis of Government Resolution dated

13/08/1985. This Government Resolution is at Exhibit-82 and it relates to

determination of true market value of a property for levying stamp duty.

While the plaintiffs calculated occupation charges on the basis of this

Government Resolution for the period till 18/03/1997 the defendant

calculated the same up to 22/06/1992. It is on this basis that amount of

Rs.6,54,000/- was paid by the defendant to the plaintiffs who accepted the

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same without prejudice.

15. The learned Judge of the trial Court has determined the

occupation charges payable by way of compensation in accordance with

Exhibit-82. We find that the compensation has been rightly determined by

applying said Government Resolution. Moreover, the Government

Resolution at Exhibit-83 relates to advance possession being taken while

acquiring land. That Government Resolution would not be applicable to

the facts of the present case. Thus considering the contents of Exhibit-82

and the fact that determination of compensation by both parties was

calculated by both parties by relying upon the same as reflected in the

minutes dated 06/05/1997 at Exhibit-86 we do not find that any other

view of the matter is possible. The amount of compensation has been

determined by taking the market value of 13659 sq. mt land and after

providing for necessary increase from 8% to 15% after which an amount

of Rs.32,27,000/- has been determined. For aforesaid reasons the

calculations as made are proper and call for no interference.

16. Thus considering the pleadings of the parties and the evidence

led by them we find that the trial Court was justified in partly decreeing

the suit and directing payment of compensation for unauthorised

occupation of 13659 sq. mt land owned by the plaintiffs for a period from

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15/10/1990 to 17/03/1993. A possible view of the matter has been

taken on the basis of material on record. The points as framed

accordingly stand answered.

17. As a result of the aforesaid discussion we find that the

impugned judgment of the trial Court deserves to be confirmed without

any modification. Accordingly First Appeal No.1461/2009 and First

Appeal No.3/2010 stand dismissed leaving the parties to bear their own

costs.

                     JUDGE                           JUDGE




Asmita