Delhi High Court
Bhagmal (Deceased) Thru. Lrs vs Uoi & Ors. on 13 May, 2016
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.202/2008
Decided on : 13th May, 2016
BHAGMAL (DECEASED) THRU. LRS ...... Appellant
Through: Mr. Anil Sapra, Senior Advocate with Dr.
Harsh Pathak, Dr. Shailendra Sharma,
Mr. Mohit Choubey & Mr. Siddhartha
Shukla, Advocates.
Versus
UOI & ORS. ...... Respondents
Through: Mr. Arun Kumar, Govt. pleader for
R-1/UOI in RSA 202/2008.
Mr. Ajay Verma, Senior standing counsel
for the DDA with Ms. Kirti Parmar,
Mr. Vaibhav Mishra, Ms. Malvika
Trivedi & Mr. Jitendra Tripathi,
Advocates for NDMC/R-4.
WITH
+ R.S.A. No. 203/2008
BHAGMAL (DECEASED) THRU. LRS ...... Appellant
Through: Mr. Anil Sapra, Senior Advocate with Dr.
Harsh Pathak, Dr. Shailendra Sharma,
Mr. Mohit Choubey & Mr. Siddhartha
Shukla, Advocates.
Versus
UOI & ORS. ...... Respondents
Through: Mr. Arun Kumar, Govt. pleader for
R-1/UOI in RSA 202/2008.
R.S.A. No.202, 203, 205/2008 Page 1 of 22
Mr. Ajay Verma, Senior standing counsel
for the DDA with Ms. Kirti Parmar,
Mr. Vaibhav Mishra, Ms. Malvika
Trivedi & Mr. Jitendra Tripathi,
Advocates for NDMC/R-4.
AND
+ R.S.A. No. 205/2008
BHAGMAL (DECEASED) THRU. LRS ...... Appellant
Through: Mr. Anil Sapra, Senior Advocate with Dr.
Harsh Pathak, Dr. Shailendra Sharma,
Mr. Mohit Choubey & Mr. Siddhartha
Shukla, Advocates.
Versus
UOI & ORS. ...... Respondents
Through: Mr. Arun Kumar, Govt. pleader for
R-1/UOI in RSA 202/2008.
Mr. Ajay Verma, Senior standing counsel
for the DDA with Ms. Kirti Parmar,
Mr. Vaibhav Mishra, Ms. Malvika
Trivedi & Mr. Jitendra Tripathi,
Advocates for NDMC/R-4.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. These are regular second appeals filed by the LRs Pratap Singh,
Prakash Singh and Pradeep Kumar of the appellant Bhagmal (since
deceased) under Section 100 CPC against the order dated 30.5.2008
passed by the learned ADJ wherein the judgment dated 1.12.2005 in Suit
No.256/04/68 granting permanent injunction in favour of the appellant
was set aside.
2. It would be pertinent here to mention that one more second appeal
filed by the deceased appellant Bhagmal through another legal heir
bearing No.219/2008 involving the same issue was dismissed by this
court vide order dated 8.5.2013 while holding that the issues sought to be
raised by the appellant before this court by way of the said appeal are
essentially questions of facts which have already been adjudicated by the
learned ADJ in the impugned order. Thereafter, an SLP was filed against
the said order which is pending before the Hon'ble Apex Court. In the
meantime, proceedings of these appeal were adjourned from time to time
to await the decision in the said SLP. However, the said SLP was
admitted and it was observed that the said SLP would be considered after
the decision in the aforesaid three appeals is pronounced. It was also
observed that the High Court should decide these appeals as expeditiously
as possible. Therefore, the matter was heard. These are remaining three
appeals filed by the other three legal heirs of Bhagmal.
3. The brief facts are that the deceased Bhagmal filed a suit for
mandatory and permanent injunction claiming ownersip of the
agricultural land with a share in the Shamlat of Village Arakpur Bagh
Mochi, Delhi. It was averred in the plaint that region Arakpur Bagh
Mochi is a combined name of two villages, namely, Arakpur and Bagh
Mochi which were shown at a distance of one mile from each other in the
revenue records and as such they were two different villages. It was
further stated that the abadi land in Arakpur village was shown in Khasra
Nos.85, 84, 90 and 92.
4. It was also averred that the agricultural land of village Arakpur
Bagh Mochi was acquired by Government vide award No.28 of
9.12.1912 and 4.2.1913 wherein the abadi area falling in Khasra Nos.85,
84, 90 and 92 of which deceased Bhagmal claimed to be exclusive owner,
was excluded from acquisition.
5. The appellant Bhagmal (since deceased) alleged in the plaint that
the respondents interfered in his possession and built some structures on
the land belonging to him and therefore, prayed for a decree of permanent
injunction restraining the respondents from interfering with the
possession of the appellant/plaintiff over 82 bighas and 5 biswas of land
in Khasra No.85, 84, 90 and 92 and further for decree of mandatory
injunction for removal of encroachments on 12 Bighas of land in portions
of Khasra No.84 and 90.
6. The respondents filed their written statement and denied all the
averments made in the plaint while stating that Arakpur Bagh Mochi is
one revenue estate and that appellant Bhagmal is trying to usurp the land
and trespass on to it. It was further stated that only abadi land which was
acquired vide award No.28 was in Khasra No.224 which belongs to the
Government.
7. The suit filed by the deceased Bhagmal was also stated to be barred
by time as land in village Arakpur Bagh Mochi stood acquired and
owners were paid compensation and no objection was raised by any
person including deceased appellant Bhagmal at any point of time. It was
also averred that the suit land is not correctly identified by the appellant
in the plaint. The respondent/DDA also filed its written statement
reiterating that the deceased Bhagmal is trying to encroach upon the
Government land in the garb of the present suit.
8. After pleadings of the parties, the learned Judge framed the
following issues :-
"1. Whether the plaintiff is the owner and in possession of
the disputed property? If not to what effect? OPD
2. If issue No.1 is proved has the land been validly
acquired by the defendants? OPD
3. Whether any valid notice under Section 80 CPC and
Section 53-B of the DD Act, has been served upon the
defendant. If so, to what effect? OPD
4. Whether the defendants No.2 & 3 can be sued as
such? OPP
5. If issue No.4 is proved is the suit maintainable in the
present form? OPD
6. If the suit is not property valued for the purposes of
court fee and jurisdiction? OPD
7. Relief."
9. After framing of issues, evidence was led by both the deceased
plaintiff Bhagmal as well as the respondents. On the basis of the
evidence and the pleadings of the parties, the learned Civil Judge drew an
adverse inference against the respondents on the basis of testimony of
DW A-1 and held that as the said witness avoided the questions regarding
exclusion or inclusion of abadi area of village Arakpur Bagh Mochi, the
land which was left out from acquisition comprised of land falling in
Khasra No.84, 85, 90 and 92 of which the appellant claimed the
ownership and also partly decreed the suit restraining the respondents
from interfering in his possession over 22 bighas of the suit land and the
respondent/NDMC was directed to remove its temporary godown situated
in 15/16 bighas of the suit land within one month. However, relief with
respect to the remaining suit land was denied.
10. On appeals being preferred by the respondent/UOI and L&DO,
NDMC and DDA bearing R.C.A. Nos.17/2007, 18/2007 and 19/2007
respectively against the impugned judgment of the Civil Judge before the
learned ADJ, the judgment and the decree passed by the learned Civil
Judge was set aside by the impugned order dated 30.5.2008 running into
458 pages which is challenged in the present regular second appeals.
11. The learned ADJ in para 58 of the impugned judgment had
summed up the findings as under after detailed examination of the
evidence :-
"58. To sum up :-
(1) Plaintiff has failed to prove that he is owner of the
disputed property.
(2) Arakpur Bagh Mochi is name of the one village
having one abadi.
(3) Arakpur Bagh Mochi is not combined name of two
villages Arakpur and Bagh Mochi.
(4) Award No.28 Ex. PW 5/1 mentions one village one
abadi.
(5) Village Arakpur Bagh Mochi except 8.69 acres
under abadi was acquired vide Award No.28 Ex.
PW 5/1.
(6) Award No.28 mentions acquisition Notification
under Section 6 and 7 of the Land Acquisition Act,
1894, i.e., Notification No.775 dated 21.12.1911
(Ex. DRR-16).
(7) Award No.28 also mentions 795 acres of land which
was notified and out of this area 8.69 acres was
under the abadi of the village. It further mentions
that 787.03 acres was acquired.
(8) 8.69 acres of abadi of village Arakpur Bagh Mochi
was to be dealt with by a separate Award.
(9) Admittedly, Khasra No.350 was having abadi land
and it was acquired by separate Award.
(10) Khasra No.350 had 8.69 acres area.
(11) Khasra No.350 having 8.69 acres of area was the
only left out area of 795 acres mentioned in Award
No.28 Ex. PW 5/1 and it was acquired subsequently.
(12) Khasra No.350 was the only left out area from
Award No.28. It was the only abadi land and was
acquired subsequently by Award No.29.
(13) There was revenue settlement of the year 1908-09.
(14) No area of land of village Arakpur Bagh Mochi was
left from settlement of the year 1908-09.
(15) There was departmental settlement of the year 1925-
26.
(16) Khasra numbers changed following departmental
settlement of the year 1925-26.
(17) Government can acquire any land if it feels
necessary.
(18) Word "now" has been used in Panchnama Ex. PW
3/1. It is not memorandum of already happened
events.
(19) In Panchnama the names of fifteen Panches have
been mentioned but names of sellers/co-sharers
have not been mentioned.
(20) In Panchnama separate share of sellers has not
been specified.
(21) Panchnama also does not clarify regarding which
particular part of Khasra No.90, 91 & 92 were
subject matter of Panchnama. No site plan has been
attached with Panchnama.
(22) Panchnama nowhere clarifies as to whom a sum of
Rs.775/- compensation was paid through Chaudhary
Nathan Singh one of the Panches.
(23) Panchnama nowhere clarified separate specified
amount paid to individual sellers.
(24) Not even a single disputant had been mentioned who
had called the Panchayat.
(25) Government was not party to the Panchayat despite
settlement.
(26) In cumulative effect Ex. PW 3/1 Panchnama does
not inspire confidence. Rather it is surrounded with
suspicion. Lease Deeds Ex. D-1 and Ex. D-2 of the
year 1945 and 1954 were executed in favour of Sh.
Bhagmal for grass cutting and grazing etc. These
also mention changed Khasra numbers which are
part of suit land.
(27) Khasra No.84, 85, 90 & 92 are of the year 1908-09
and not of 1925-26.
(28) After departmental settlement of 1925-26 Khasra
No.350 was admittedly changed to Khasra No.224.
(29) After departmental settlement of 1925-26 Khasra
No.84, 85, 90 & 92 were also changed to Khasra
No.212, 213, 214, 216, 237 and 238.
(30) Masawi of mauza Arakpur Bagh Mochi for the year
1908-09 Ex. DW-A1 and Masawi for the year 1925-
26 Ex. DW-A9 show abadi in Khasra No.350 of the
year 1908-09 which was changed to Khasra No.224
of 1925-26.
(31) Khasra No.85 shown in Masawi of the year 1925-26
Ex. DW-A9 mentions purani abadi. This purani
abadi is not the abadi referred in Award No.28.
(32) Abadi area of Award No.28, i.e., 8.69 acres is
equivalent to area of Khasra No.350 (old) and
Khasra No.224 (new) i.e. 41 bighas and 14 biswas.
(33) Abadi land of Khasra No.350 (old) of 1908-09 and
Khasra No.224 (new) of 1925-26 having area of 41
bighas and 14 biswas i.e. 8.69 acres was the abadi
area referred in Award No.28 which was dealt with
separately. This area was also notified by
Notification No.775 dated 21.12.1911 Ex. DRR-16.
(34) After departmental settlement of 1925-26 as per Ex.
DRR-7 separate estate under Section 3 of Punjab
Land Revenue Act, 1887 was formed after merging
of certain area/part thereof of seven different
village, namely, Arakpur Bagh Mochi, Hasan Pur,
Ali Pur Pilanji, Kusha Pur, Mohammad Pur,
Malcha and Muzahir Pur.
(35) Name of Arakpur Bagh Mochi was given as it had
larger area.
(36) The Khasra No.85 of 1925-26 claimed by plaintiff is
not the same khasra of 1908-09 of village Arakpur
Bagh Mochi because following departmental
settlement of 1925-26 khasra numbers were
changed.
(37) In village Arakpur Bagh Mochi there was only one
abadi. That abadi was in khasra No.350 of 1908-09
and was acquired by subsequent award having area
of 8.69 acres (41 bighas 14 biswas).
(38) Copy of Intqual Register i.e. Mutation No.38 & 39
for Award No.28 & 29 shows that Mutation No.39 is
for 41 bighas and 14 biswas (8.69 acres) i.e. for
Khasra No.350 (old) of land.
(39) Mutations are based on revenue record.
(40) Document Ex. PW 2/1 also exhibited as Ex. P 13 is
certified copy of Aks Masawi mauza Arakpur Bagh
Mochi. It is actually of the year 1925-26, even
though the certified copy mentions "for the year
1908-09". It has been compared with original
Masawis.
(41) Document Ex. PW 2/1 also exhibited as Ex. P 13 is
same as Ex. PW 7/1 and is showing Khasra No.85 of
1925-26.
(42) Even from revenue record for 1871, 1880, 1903
jamabandi, none of them ever show that there is
abadi in Khasra No.84, 85, 90 & 92.
(43) Khasra No.85 of the year 1925-26 is „purani abadi‟
of village Pilanji which was merged following
departmental settlement of 1925-26.
(44) No site plan has not been filed alongwith the plaint.
The prayer clause mention different area and khasra
numbers.
(45) The prayer clause of the plaint do not mention even
the name of village or the locality.
(46) In the original plaint plaintiff has prayed for
permanent injunction without mentioning area and
khasra number and the name of village/location.
However, in the amended plaint plaintiff has prayed
for permanent injunction qua possession of plaintiff
over 82 bighas and 5 biswas of land in khasra
No.85, 84, 90 & 92. Name of village/locality has
not been mentioned.
(47) In original plaint plaintiff has prayed for mandatory
injunction for removal of encroachment on 94
bighas and 5 biswas of land which was not
acquired. Name of locality or village and details of
khasra numbers etc. have not been mentioned. In
the amended plaint plaintiff has prayed for
mandatory injunction qua removal of encroachment
on 12 bighas of land in portion of khasra No.84 &
90. Name of locality or village has not been
mentioned. It is also not mentioned in which
particular portion of khasra No.84 & 90 there exists
encroachment if any. No site plan in this regard has
been filed.
(48) The plaint which was amended in the year 1980
nowhere clarifies regarding reduction in area of
encroachment. Initially in original plaint it was 94
bighas and 5 biswas of land, however, in the
amended plaint it is 12 bighas in portions of khasra
No.84 & 90.
(49) In original plaint the relief of mandatory injunction
is for 94 bighas and 5 biswas of land and for
permanent injunction no specific area has been
mentioned. However, in amended plaint the area of
94 bighas and 5 biswas has been bifurcated, 82
bighas and 5 biswas has been mentioned for
permanent injunction and 12 bighas for mandatory
injunction.
(50) The relief of mandatory injunction for removal of
encroachment on 12 bighas of land in portions of
khasra No.84 & 90 has not been pressed for and
plaintiff reserved his right for filing suit for
possession for the same. However, mandatory
injunction was granted directing NDMC to remove
their temporary godown situated at 15/16 bighas of
suit land. Khasra No. of land on which temporary
godowns were located has not been mentioned while
directing NDMC to remove their temporary
godowns.
(51) There is no averment in the plaint with respect to
temporary godown of NDMC and there was no
prayer for its removal.
(52) The para 10 and 18 of affidavit Ex. PW-A of Pw-A1
Sh. Tarakeshwar Sharma were struck off vide order
dated 4.12.2004 passed by Civil Judge being beyond
pleadings.
(53) Deposition in affidavit Ex. P-8/R of PW-8 Sh.
Pratap Singh with regard to allegations against
NDMC cannot be read in evidence being beyond
pleadings.
(54) The site plan Ex. D5/X2 has not been proved as per
law and cannot be looked into.
(55) Plaintiff is claiming injunction on the basis of
ownership. Without proving ownership no relief can
be granted in his favour.
(56) Person can protect possession against everyone but
not against true owner.
(57) Plaintiff cannot shift his stand regarding possession
that since he is in possession, he is entitled for relief,
in view of the fact that in the suit plaintiff‟s claim is
not on the basis of possessory title but on the basis
of ownership.
(58) During the course of arguments plaintiff claim of
being Bhumidar in a suit for injunction is not
tenable. He cannot be declared owner on the basis
of bhumidari rights.
(59) Provisions of Transfer of Property Act were
applicable in the year 1944 in Delhi when
Panchnama Ex. PW 5/1 was executed. Panchnama
cannot be looked into even for consideration of long
possession.
(60) Entries in records of rights and annual records,
revenue record, mutation No.38, 39 etc. are final
and binding in view of provisions of Punjab Land
Revenue Act, 1887.
(61) Ex. PW-8/1 the alleged Survey Report of the year
1955 and Ex. PW 8/2 notice dated 6.5.1965 are not
proof of ownership.
(62) Award No.28, Notification of 1914, Revenue Record
of 1925-26 clearly established that village in its
entirety was acquired and government is the owner.
Plaintiff is unauthorized occupant and not entitled
for injunction against true owner.
(63) Plaintiff has not disclosed material facts in the
plaint including execution of lease Ex. D-1 of the
year 1945 and Ex. D-2 of the year 1954.
(64) Plaintiff has not disclosed properly cause of action
and when it arose. He has only mentioned in para 8
of the plaint "That the cause of action lastly arose
on 8.4.1968 when the defendants received notices."
This Notice is notice under Section 80 of the CPC
dated 30.3.1968.
(65) The property has not been properly described in
order to identify the same. Even name of the
village/locality has not been mentioned. It is not
clear whether area of 82 bighas and 5 biswas of
land claimed in permanent injunction is total area of
khasra No.85, 84, 90 & 92 or part thereof. If it is
part of these khasras then which particular part.
(66) Plaintiff has failed to prove his legal rights.
(67) Regarding relief of mandatory injunction, removal
of encroachment on 12 bighas of land in portions of
khasra No.84 & 90 has been claimed. Portions of
these khasras is not clear from the plaint. No site
plan has been filed even alongwith the amended
plaint.
(68) The site plan Ex. PW-4/1 was filed on 13.12.1974
which was prepared in August, 1972 as per the site
existed at that time but not as per the site in
existence in the year 1968 when the suit was
instituted.
(69) During the pendency of these appeals impugned
order was partially executed for removal of
temporary godown of NDMC.
(70) Status quo order has been passed by the Hon‟ble
High Court in C.M. (Main) No.733/2007 on
21.5.2007 and 29.5.2007. Status quo as on
30.1.2008 was confirmed till disposal of the appeal.
Vide order dated 30.1.2008 petition was disposed off
by Hon‟ble Mr. Justice Pradeep Nandrajog, Judge,
Delhi High Court."
12. A perusal of the aforesaid para clearly shows that the learned ADJ
had dealt with all the contentions of the parties before setting aside the
decree dated 1.12.2005 and laid down salient factors of the case.
Therefore, the points which have been urged with regard to the absence
of the award or one common award being passed in respect of the two
villages are all essentially questions of fact and not substantial questions
of law. A regular second appeal can only be entertained if a substantial
question of law is involved in the matter.
13. My learned predecessor Hon'ble Ms. Justice Rekha Sharma had
framed the following three questions on 1.9.2008 as substantial questions
of law arising from the appeal :-
"(i) Whether the land in question is said to have been
validly acquired by the Government under the
provisions of the Land Acquisition Act in the
absence of the defendants/respondents having failed
to prove taking up the possession of the same under
Section 16 of the Act without placing on record a
copy of the award and possession proceedings?
(ii) Whether the appellants, who are admittedly in the
settled possession of the suit land have a right to
protect their possession against the respondents?
(iii) Whether the panchnama dated 4.8.1944 exhibit PW
3/1 requires compulsory registration under the
provisions of the Indian Registration Act s well as
the Transfer of Property Act?"
14. A substantial question of law has been interpreted by the Supreme
Court in Sir Chunilal V. Mehta and Sons Limited vs. The Century
Spinning and Manufacturing Company Limited; AIR 1962 SC 1314 to
mean as under :-
"The proper test for determining whether a question of
law raised in the case is substantial would, in our
opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of
the parties and if so, whether it is either an open question
in the sense that it is not finally settled by this court or by
the Privy Council or by the Federal Court or is not free
from difficulty or calls for discussion of alternative views.
If the question is settled by the highest court or the
general principles to be applied in determining the
question are well settled and there is a mere question of
applying those principles or that the plea raised is
palpably absurd, the question would not be a substantial
question of law."
15. Elaborating issue/question No.1 further regarding acquisition of the
land in question, Mr. Sapra has contended that Arakpur Bagh Mochi are
two different villages and this is suggested by the revenue record also.
Moreover Arakpur is now forming part of Sarojini Nagar colony while as
Bagh Mochi is known as Nanakpura. It has been stated that the aforesaid
land though allegedly acquired by award 28 of 9.12.1912 and 4.2.1913,
this fact in itself makes it clear that there were two villages which were
sought to be acquired.
16. This contention of the learned senior counsel for the appellant was
contested by Mr. Verma, the learned senior standing counsel for the
DDA. It was contended by Mr. Verma that the judgment which has been
passed by the learned ADJ runs into 450 pages and each of the
submission which has been urged before this court was also urged before
the first appellate court. It has been stated that the first appellate court,
after discussing all the submissions made before it by either of the parties,
had summed up the conclusions arrived at. It has been stated that
Arakpur Bagh Mochi is one village according to the stand of the
respondent and that being the position, the contention of Mr. Sapra is
stated to be untenable in law. It has also been stated that there is no
question of validity of the acquisition proceedings being challenged now
or denying the fact that the possession of the suit land was not taken by
the appropriate authority in pursuance to the acquisition proceedings.
17. First of all the question whether the land has been validly acquired
or not is of general public importance. The reason for this is that not only
the land was acquired more than a century back but also the fact that most
of the oustees did not challenge the acquisition at the time when it ought
to have been challenged. The compensation amount has already been
accepted by the oustees. Admittedly Bhagmal (since deceased) is a
subsequent purchaser. He could not challenge the acquisition
proceedings as they have already attained finality only because he has
stepped into somebody else's shoes. Similar is the answer to the question
of taking the possession of the land by the UOI. Once the land has vested
in the Government, the possession must have been taken long back. If
somebody has trespassed the land and is holding on to the same that does
not mean that it has a right to retain the land. As a matter of fact, the
Government of India after the acquisition of land in the latter part, that is,
after independence has build quarters for the Government employees.
Therefore, in my view, the first question is a question of fact which
stands concluded long back and it, in my view, does not raise any
substantial question of law.
18. I have carefully considered the submissions of the respective sides
and have gone through the record. There is no dispute about the fact that
the acquisition proceedings have been initiated in the year 1912, that is,
more than a century ago. It is not in dispute also that the suit was filed by
the appellants only in the year 1968. Assuming for a moment, the
validity of acquisition proceedings are to be determined in a second
appeal even then the suit becomes barred by time because what is being
sought to be challenged is the acquisition which had taken place almost a
century ago. Not only the land has been acquired by the Government of
India but also the fact that it has built residential quarters at both the
places which are known as colonies of Sarojini Nagar and Nanakpura for
the benefit of the Government servants. All these facts make him believe
that the appellants by hook or crook want a parcel of land to be retained
which will benefit them because the land, even if it is 100 square yards, is
worth crores of rupees being in the heart of South Delhi.
19. So far as the injunction which is sought to be claimed by the
petitioners and the allegation made by them that they are in settled
possession and therefore, they cannot be ejected, the Supreme Court in
number of cases has held that even if a trespasser who is in occupation of
a land, he is to be protected against all the persons except the actual
owner. Since the actual owner is the Union of India, therefore, the
appellants cannot set the settled possession as a defence to perpetuate
their illegal possession against the true owner, that is, UOI. Necessary
evidence by production of award has been discharged by the respondents
before the trial court. Therefore, it is the trial court and the first appellant
court which has recorded the finding of fact that the land has been validly
acquired. Therefore, this contention on the part of the appellant that the
land in question was not acquired validly inasmuch as the award was not
proved, does not essentially form a question of law, it is only a question
of fact.
20. The appellant himself has admitted that they became owner after
having purchased the same after independence. As against this, the
acquisition proceedings were started in the year 1912. If that be so, then
the question of limitation would also come into play as the suit for
possession, injunction etc. has to be filed within a period of three years
from the date of acquisition of cause of action while as in the instant case,
it has been filed after more than 50-60 years. Thus, the suit itself was
hopelessly barred by time. So far as the taking of possession of the suit
premises is concerned, it is stated that the possession of the premises was
already taken by the respondent and in any case this is a question of fact
and not a question of law. It is also stated that according to the record of
the land in question, it has been found that though the possession of the
land in question has already been taken; however, some unauthorized
structures/houses have been built by the appellant and thereby claiming
the possession of all.
21. The second issue/question which has been raised by my learned
predecessor is whether the appellants who are claiming to be in settled
possession of the suit land have a right to protect their possession. So far
as the settled possession of the appellants is concerned, no doubt they
have been denied the injunction by the trial court and the appellate court.
The very fact that the appellants are claiming themselves to be in
possession of a suit land and have stated that they have a right to protect
their land against the respondents, I feel that this is an unreasonable
restriction which has been put on the activities of the appellants. It is
stated that whether the possession of a parcel of land is taken pursuant to
the acquisition proceedings or not, is only a question of fact and not a
question of law much less substantial question of law. In the light of this
discussion, issue No.2 is also decided against the appellants.
22. The last question which has been framed by my learned
predecessor is whether panchnama dated 4.8.1944 exhibit PW 3/1
requires compulsory registration under the provisions of the Indian
Registration Act as well as the Transfer of Property Act. It is stated that
so far as the appellants are concerned, they have placed reliance on
panchnama exhibit PW 3/1. This panchnama has been rejected by the
learned first appellant court by observing that in cumulative effect exhibit
PW 3/1 does not inspire confidence rather it is surrounded with suspicion.
The lease deed exhibit D-1 and D-2 of the year 1945 and 1954 were
executed in favour of Bhagmal for grass cutting and grazing. This
information also mentions the changed khasra numbers. In the light of
the aforesaid observation passed by the learned first appellate court, it has
been observed that this panchnama is not signed by the purchasers nor is
it got registered despite the fact that Section 17 (1) (b) of the Registration
Act clearly requires that a document which creates right, title or interest
in an immovable property, the value of which is more than Rs.100/-
deserves to be compulsorily registered while as in the instant case, the
document has not been registered. In any case, the question as to whether
the document is registered or not that is a consequence of non-registration
of a document that it becomes inadmissible in evidence. Therefore, so far
as issue No.3 is concerned, that also takes care of the third question of
law purported to be arising in the instant case.
23. In view of the aforesaid facts of the case, as a matter of fact three
questions which have been framed by the learned court are essentially
questions of fact and are not questions of law. A perusal of the
conclusion arrived at by the learned trial judge will clearly show as
recorded in para 58 that all these points which have been raised by the
appellant are questions of fact and not questions of law.
24. For the aforesaid reasons, I find that the judgments which have
been relied upon by the appellant are not of much help and therefore, I do
not feel the necessity of referring to these judgments because no question
of law is involved in the matter. Since no question of law arises in the
appeals, therefore, all the three appeals are dismissed.
V.K. SHALI, J.
MAY 13, 2016
'AA'
