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
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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.
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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
Whether the reporters of the local papers may be allowed to see the judgment?
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
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
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
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
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.
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
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)
