Punjab-Haryana High Court
M.C. Jind vs Mahabir Parsad & Ors on 2 August, 2024
Neutral Citation No:=2024:PHHC:103968
RSA-1575-199
1992 (O&M). -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH.
103
RSA-1575
1575-1992 (O&M).
Reserved on: 10.07.2024.
Date of Decision: 02.08.2024.
MUNICIPAL COMMITTEE,
COMMITTEE JIND.
... Appellant
Versus
MAHABIR PARSHAD AND OTHERS
... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
Present: Mr. Sapan Dhir, Advocate,
M
for the petitioner.
Mr. A.K.Kansal,, Advocate, for the respondents
respondents.
VINOD S. BHARDWAJ, J.
The Municipal Committee, Jind (as it was then) i.e. defendant
No.3 in the civil suit is in present Regular Second Appeal against the
judgment and decree dated 11.01.1990 passed by the Court of Additional
Senior Sub Judge, Jind in Civil Suit No.416 of 24.04.1985 restraining the
appellant-defendant
defendant from dispossessing the respondent
respondent-plaintiff from the
suit property as well as against the judgment and decree dated 28.03.1992
passed by the District Judge, Jind in Civil Appeal No.4/13 of 17.02.1990
whereby the
he appeal preferred by the appellants
appellants-defendants therein was
dismissed.
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2 Briefly summarized, the facts of the present case are that the
respondent-plaintiff
plaintiff filed a suit for permanent injunction in respect of the
plot described in the plaint and situated
situated in Gopal Nagar, Jind claimed to
have been purchased by him from the previous owner Shri Gaushala Jind
vide registered sale deed No.2168
No.216 dated 18.1
18.10.1966 for a sum of
Rs.1102.50 paise. He claimed that a map for construction of the shop over
the suit land was got sanctioned from the Municipal Committee, Jind by the
respondent-plaintiff
plaintiff in the year 1982 whereafter a pucca construction was
raised, after spending
spend a sum of Rs.16,000/-,, and the same was completed in
the year 1983.
3. The respondent-plaintiff
respondent plaintiff claimed to have kept his valuables
worth Rs.4,000/-
Rs.4,000/ at the above said shop. The appellant is stated to have
demolished the said shop on 18.04.1985
18.04.19 and the artic
articles kept by him in the
shop were removed while debris was still lying at the spot. It was alleged
that defendant No.2-Improvement
No.2 Improvement Trust, Jind, had conducted an auction of
the suit property,
property in collusion with defendant no.1 Sada Nand, and that they
were contemplating
templating ouster of the respondent
respondent-plaintiff from the suit
property. Claiming that the Improvement Trust and defendant No.1 Sada
Nand had no right to auction the suit property
property, the suit for injunction was
filed.
3 Defendant no.1-Sada
no.1 Nand filed his written statement raising
objections regarding
regard the maintainability of the suit and also the locus standi
of the respondent-plaintiff.
respondent plaintiff. It was averred that the suit property had been
acquired by the Improvement Trust Jind and that an auction was thereafter
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conducted
onducted in his favour for a consideration of Rs.22,600/
Rs.22,600/-. The
unauthorised
orised construction raised by the respondent
respondent-plaintiff was demolished
by the Improvement Trust for delivering actual physical possession and that
the entire claim of the respondent-plaintiff was false and misplaced.
4 A separate written statement was filed by the Town
Improvement Trust, Jind-respondent/defendant
Jind respondent/defendant No.2 raising objection to the
maintainability of the suit. It was claimed that the respondent
respondent-plaintiff was
not in possession of the suit property and as such, the suit for injunction was
not maintainable. It was averred that the respondent
respondent-plaintiff concealed the
true and correct facts from the Court and did not comply with the statutory
provisions under Section 80 of the Code of Civil Procedure, for institution
of the suit and that the same is also barred under the provisions of the Town
Improvement Trust Act,
Act 1922.. On merits, it was asserted that the
construction claimed to have been raised by the respondent
respondent-plaintiff was
removed and demolished since the same had been raised illegally. It has
been averred that the land in question had been acquired by the def
defendants
vide notification dated 05.04.1976/04.05.1976
05.04.1976/04 1976 for carving out a Colony now
called as 'Scheme
Scheme No.10'
No.10 of the Improvement Trust and an Award was
announced
ounced on 09.08.1976. The disbursement of the award was made in
favour of the President,
President Welfare Collegee Nirman Committee, Jind. It was
pointed out that the acquired land was comprised in Kh
Khewat No.887,
Khatonii No.1082
No.108 and 1097, Khasra No.210/133 (5 kanals) belonging to
Shamlat deh and Khasra No.210/135
35 (56 kanals 12 marlas) belong
belonged to the
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1992 (O&M). -4-
President, Welfare
Welfare College Nirman Committee, Jind, as per the jamabandi
pertaining to the year 1969-70.
196 It is also averred that plots carved out from
the land had been sold to the bidders after due publication and
proclamation. Plot Nos.13 and 14 were allotted to Sada Nand as per due
process of law. A prayer for dismissal of the suit was thus made.
5 On completion of the pleadings, the following issues were
framed:-
"1. Whether the plaintiff is owner in possession of the
suit property? OPP
2. Whether the plaintiff is entitled to the injunction
prayed for? OPP
3. Whether the suit is not maintainable in the present
form? OPD
4. Whether the suit property has not been properly
described, if so, its effect? OPD
5. Whether the plaintiff has no locus standi to file the
present suit? OPD
6. Whether the civil courts at Jind has no jurisdiction
to try the suit? OPD
7. Whether the suit is bad for non
non-joinder of
necessary parties? OPD
8. Whether the suit is bad for want of notice upon
defendant No. 2? OPD
9. Relief."
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6 Later on, an amendment of the written statement was carried
out and an additional Issue No.8-A
No.8 A was also framed and the same reads as
under:-
" A) Whether the suit land was acquired by the Municipal
"(8-A)
Committee as alleged? OPD
OPD"
7 The trial Court considered the evidence led by the respective
parties on the issues and also the claim with respect to possession of the
respondent-plaintiff
plaintiff over the suit land as also to whether the land had been
acquired by the Municipal
Muni Committee, Jind or not and on noticing the claim
of the respondent-plaintiff
respondent about having purchased the property from Sh
Shri
Gaushala, Jind vide registered sale deed dated 18.1
18.10.1966 and absence of
evidence reflecting the ownership rights of predecessor
predecessor-in-interest. Besides,
the sale deed also did not give
ve the description of the property by any
specific khasra numbers in which the property allegedly fell and only gave
certain dimensions. It also discussed
ussed the reliance of the petitioner on the
sanction of building plan and the notice issued by the Improvement Trust
calling upon the respondent-plaintiff to submit objection in respect of the
property comprising in Khasra No.210/133
No.210 min and 210/135 min along with
copy of the resolution No.49 (Ex.P-8)
(Ex.P 8) passed by the Trust whereby 06
marlas was proposed to be allotted to the respondent
respondent-plaintiff as it was not
possible to adjust this plot according
accordin to the plan. On consideration of all the
aspects,, the learned trial Court held that the documents as well as the oral
evidence led by the respondent-plaintiff
respondent were
ere insufficient to establish the
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ownership and entitlement to the possession of the respondent
respondent-plaintiff,
since
ince there was an absence of a valid title in the predecessor-in-interest,
hence, the allocation of a better title in favour of the respondent
respondent-plaintiff
could not be accepted. The claim was accordingly declined and the claim in
respect of the ownership over the land was accordingly dismissed. It was,
however,
ver, observed by the trial Court that the witnesses of the respondent
respondent-
plaintiff substantiated construction of the shop as well as demolition thereof
as also the debris lying at the place. The possession of the respondent
respondent-
plaintiff over the disputed plot stood
stood established and no positive evidence
had been adduced by the appellant-defendant
appellant defendant to disprove the possession of
the respondent-plaintiff.
respondent plaintiff. For the said reason
reason, the Court held that even
though the respondent-plaintiff
respondent wass not the owner of the suit propert
property,
however, he was held to be in possession thereof and held to be entitled to
protect his possession against unauthorised
un ised dispossession. The suit of the
respondent-plaintiff
plaintiff was decreed and the appellant
appellant-defendant was restrained
from dispossessing the respondent-plaintiff
respondent plaintiff from the suit property except in
accordance with law. Operative part of the judgment reads thus:
thus:-
"8. The plaintiff claims to have purchased the suit property
from Shri Gaushala, Jind wide registered sale deed dated
18.10.1966. But no evidence worth the same has been adduced
by the plaintiff to prove the owner ship of his predecessor
predecessor-in-
interest i.e. Shri Gaushala, Jind over the disputed property.
The plaintiff has not proved out of which khasra numbe
number the
suit plot was purchased by him.
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9. The learned counsel for the plaintiff has tried tto make
capital out of Ex. P7 notice and Ex. P8 resolution besides
construction plans Ex. P2 and Ex. P3 and sanction Ex. P4.
Notice Ex. P7 was issued on 10.9.1985 by the Jind
Improvement Trust (hereinafter referred to as the Trust for
brevity) on 10.9.1975 requiring
requiring the plaintiff to submit
objections in respect of the disputed property in his custody
comprised in Khasra No. 210/133min and 210/135 min. Ex. P8
is a copy of resolution No. 49 passed by the Trust whereby six
marlas plot was resolved to be allotted to the plaintiff on
standard rate as it was not possible to adjust his plot according
to the law of plan. Ex. P2 and Ex. P3 are construction plan and
Ex. P4 is sanction accorded by the Municipal Committee, Jind
to the plaintiff for raising construction. T
These documents and
oral evidence of the plaintiff are far short to establish the
ownership of his predecessor-in-
predecessor -interest over the suit property.
No only the pleadings but proof also is altogether missing
regarding the khasra number out of which the plot iin question
was purchased by the plaintiff. Since the ownership of his
predecessor interest has not been established by the
predecessor-in-interest
plaintiff, I have no hesitation in holding that the plaintiff is not
owner of the suit property.
property
10. Preponderance
Preponder nce of the testimo
testimony of DW1 Balwan Singh J.E.
and PW2 Ram Niwas, Patwari coupled with Ex. P10 & Ex. P
P11
copies of notification and Ex. P12 award is that the land
comprised in khasra No. 210/133min and 210/135 min was
acquired by the Trust in 1975. It may be mentioned here that
the plaintiff has not disputed the acquisition by the Trust of the
land comprised in Khasra numbers above mentioned. As a
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matter of fact, the plaintiff has denied acquisition only for want
of knowledge. The plaintiff has admitted his plot to be situat
situated
in Scheme No. 10. A fact established from the testimony of the
witness in this case is that the colony known as Scheme No. 10
was brought into existence by the Trust after acquisition of the
land comprised in khasra No. 210/33min and khasra No.
210/135min. Then the plots were carved out of the acquired
210/135min.
land and were allotted to various persons.
11. The learned counsel for the plaintiff has contended, placing
reliance upon Jodh Singh and others Vs. The Jullundur
Improvement Trust. Julluridur and others. AIR 1986 P&H 158,
that sections 36, 38 and 40 of the Town Improvement Trust Act,
1922 are mandatory and that acquisition of property and
sanction of scheme should be set aside as objections of the
plaintiff have not been considered by the Trust. The plain
plaintiff
has failed to establish his ownership over the suit property and
therefore law laid down in Jodh Singh's case (supra) does not
advance the case of the plaintiff any further.
12. To establish his possession over the disputed property the
plaintiff has testified that debris of his shop demolished by the
defendants No. 2 & 3 is lying there. PW.8 Ram Niwas has also
deposed about the possession of the plaintiff and has stated
that his building is now in demolished state. The plaintiff and
his witness were cross-examined
examined on behalf of the contesting
defendants disputing the possession of the plaintiff over the suit
plot. The suggestions were answered in the negative by the
plaintiff and his witness. No positive evidence has been
adduced by the contesting defe
defendants to disprove the
possession of the plaintiff over the suit plot. DWI Balwa
Balwan
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Singh, JE has not deposed anything about possession over the
suit property. DW2 Ram Niwas Patwari had testified in his
examination chief that the Trust was in possession oof the
examination-in-chief
suit property. However, during cross
cross- examination he was
brought round to admit that his information was not based on
his personal knowledge and was based on the information
received by him from his colleagues in his offence. He has also
stated that he had not visited the site in question after 1985. In
these circumstances, I hold that the plaintiff continues to be in
possession of the suit property described in the plaint.
Although the plaintiff has not given property description of the
suit property yet there is no dispute about the identity of the
same and therefore want of proper description of the suit
property would not in either way effect the case of the parties.
13. In view of my foregoing discussion on the above issues, I
hold that the plaintiff
plaintiff is not owner of the suit property although
he is in possession of the same. I further hold that the suit
property which is situated in scheme No. 10 has been acquired
by the Trust. In these circumstances, issue No. 1 is answered
partly in favour of the
the plaintiff and partly against him. Issue
No. 8-A
8 is answered in favour of the defendants and against the
plaintiff.
Issue No. 2.
14. Since the plaintiff is in possession of the suit property, he is
entitled to protect his possession against unauthorised
interference/dispossession. Under our jurisprudence even an
unauthorised occupant cannot be dispossessed except in the
manner authorised by the law. This is the essence of the rule of
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law. Law to this effect has been propounded by the Hon'ble
law.
Supreme Court
Cour in Mohan Lal Vs. State of Punjab, 1971 P.L.J.
338 (S.C.).. Therefore, I hold that the plaintiff is entitled to the
injunctive relief. Issue No. 2 is accordingly answered in favour
of the plaintiff and against the defendants.
Issue No.3:
14. This is a suit for permanent injunction pure and simple. No
specific form has been prescribed for filing such a suit. The
plaint has been drafted in accordance with the provisions of
Order 7 C.P.C. Therefore, this suit is held to be maintainable
in the present form. Issue No. 3 is accordingly answered
against the defendants and in favour of the plaintiff.
Issue No. 4:
16. In view of my findings on the issue No. 1 and 2 above, I
hold that although the suit property has not been described
properly still it is clearly identifiable.
Issue No.4 is accordingly answered as indicated above.
Issue No. 5:
17. In view of my discussion and finding on issue No. 1 above, I
need not dilate upon the legal and factual position again and I
hold that the plaintiff has got locus st
standi for injunctive relief
only. Issue No. 5 is accordingly answered in favour of the
plaintiff to this extent only.
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Issue No. 6, 7 and 8.
18. These issues have not been pressed before me during
arguments nor is there any evidence on record on these issu
issues.
As such these issues are answered against the defendants and
in favour of the plaintiff.
19. No other point has been urged before me on either side.
Relief.
In view of my findings on the fore
fore-going issues, this suit
succeeds and is hereby decreed and the defendants are hereby
restrained permanently from dispossessing the plaintiff from
the suit property except in the manner strictly authorised by the
law. In the peculiar circumstances of this case, the parties are
left to pay and bear their own cos
costs. Decree sheet be drawn
accordingly. File after compliance be consigned to the record
record-
room.
room."
8 Aggrieved of the said judgment and decree, the appellant
Municipal Committee, Jind, as well as Town Improvement Trust preferred
Civil Appeal before the District
District Judge, Jind. During the pendency of the
appeal, the respondent-plaintiff
respondent plaintiff moved an application under Order 6 Rule
17 CPC for amendment of the plaint. The same was opposed by the
appellant Municipal Committee, Jind, however, the application was allowed
by the District Judge, vide order dated 14.01.1991
14. 1.1991 since the validity of the
acquisition proceedings was refuted by the appellant
appellant-defendant. The matter
was remanded vide order dated 04.04.1991 for recording a finding on the
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additional issues settled in the light of the amendment of the pleadings. The
parties were afforded an opportunity to lead evidence by the trial Court. It
was held by the trial Court under issue No.8
No.8-A that the Welfare College
Nirman Committee, Jind and not the respondent
ndent-plaintiff, was the owner of
the suit property before and at the time of acquisition
acquisition. On issue No.8-B, it
was recorded that the respondent-plaintiff
respondent plaintiff failed to prove that the
acquisition proceedings suffered from any defect and a finding was
recorded on
n issue No.8-C
No.8 C that the suit of the respondent
respondent-plaintiff for
seeking declaration challenging acquisition proceedings would be barred by
limitation
imitation while the claim of injunction was held to be within limitation.
Finding on issue No.8-D
No.8 D was returned that the respondent-plaintiff was not
estopped from maintaining the personal cause of action.
9 On receipt of the remand report, the respondent
respondent-plaintiff filed
the objections under Order 41 Rule 26 CPC and challenged the findings
recorded by the trial Court in the remand report.
10 Since the Improvement Trust was dissolved and merged in the
appellant Municipal Committee,
Committee, Jind, hence, a challenge to the finding on
the issue of possession of the respondent-
respondent-plaintiff was also made. The
appellate Court however held that there is no dispute regarding the identity
of the property and that the suit property forming part of khasra No.210/133
min and Khasra No.210/135 min was claimed to have been acquired by the
Trust. Further, the trust also issued notice under Sec
Section 38 of the
Improvement Trust Act, 1922 dated 10.09.1975 (Ex.P
(Ex.P-7) to the respondent-
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plaintiff. The surveyors of the Trust also exhibited that the disputed
property fell in the said Khasra number in dispute whereof compensation
had been paid to the owner.
owner. Hence, it was ruled that the property in question
was purchased by the respondent-plaintiff.
respondent plaintiff. The appellate Court also
justified its judgment by observing that entire property undisputedly
belonged to the proprietary
propriet body of the village and that Gaushala was one
of the members of the proprietary
propriet ry body and it exercised absolute right over
the land. An area measuring 56 kanals 12 marlas of the shamlat deh was in
occupation of the Welfare College Nirman Committee, Jind and that the
area in actual physical possession
possession of Gaushala was measuring 17 kanals 2
marlas. Hence, the specific area was in possession of the respective parties
and was being enjoyed by them. It was also observed that the provisions of
Section 36 regarding publication of notice and Section 38 pproviding for
issuance of notice to the land owners and occupiers as well as the procedure
provided under Section 40 had not been strictly followed. It was observed
that even though it was claimed that the notification of acquisition of the
land had been published
published in the Newspaper but such Newspaper has not been
placed on record. The acquisition thus was held to be bad for want of strict
compliance of the procedure for the acquisition. The appellate Court,
however, held that quashing of the entire scheme would result in
inconvenience and give rise to various complications and hence the scheme
was being quashed
qu only qua the respondent-plaintiff
plaintiff. As a sequel to the said
judgment and decree, the respondent-plaintiff
respondent plaintiff was held to be owner in
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possession of the site in dispute and an injunction in favour of the
respondent-plaintiff
plaintiff restraining the appellant from interfering over the
property and possessory rights of the respondent
respondent-plaintiff was passed. The
operative part of the order passed by the Appellate Court reads thus:
thus:-
"It was ultimately held by the learned trial court under Addl.
"It
Issue No.8-A,
No.8 , that the Welfare College Nirman Committee and
not the plaintiff was owner of the suit land before and after the
time of acquisition
acqui ition under Issue No.8
No.8-B, that the plaintiff had
failed to prove that the acquisition proceedings suffered from
any infirmity under Issue No.8-C,
No.8 C, that the suit of plaintiff was
barred by law of limitation in so far as the relief of declaration
challenging the acquisition proceedings was concerned,
whereas the claim for the grant of relief of injunction was not
bar
barred and under Issue No.8--D that the plaintiff was not
estopped from maintaining such an action.
11. After the receipt of remand report, the plain
plaintiff has filed a
memorandum of objections, in terms of provisions contained in
Order 41 Rule
ule 26 C.P.C., and challenged the findings recorded
by the learned trial court in the remand report
report.
12. This court is also seized
eized of the other appeal No. 4/13 of
17.2.1990 directed by the Improvement Trust, now represented
17.2.1990
after its dissolution, by Municipal Committee, to challenge the
findings of the learned trial court, including on the point of
possession, returned in favour of plaintiff.
13. This judgment shall, therefore, also dispose
disposed of that Cross-
Appeal on the file of court.
court
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14 The entire evidence, material, circumstances on record and
14.
argument addressed by the learned counsel for the parties
arguments
have been fully appraised.
appraised
15. Obviously, the learned trial court aberrated approach
while dwelling on the moot
oot questions of identity and ownership
of the land in suit.
suit The learned trial court appears to have
been, while dis-allowing
dis ing the claim of plaintiff
plaintiff, swayed by the
consideration that
t he had failed
iled to show that his vendor had a
title to the property in suit and that th
that formed part of land of
kha
khasra No.210/135 min measuring 17 kanals 2 marlas, the
subject matter of acquisition. That view taken by the learned
trial court cannot justifiably
justifiably be endorsed
endorsed.
16. There has, indeed, been no di
dispute regarding the identity of
the land.
land It has throughout beenn the ple
plea of defendants that the
disputed site formed part of land of khasra No.210/135 min
acquired by the Trust. As noticed above, the Trust had itself
s rved notice dated 10.9.1975 (Ex
served (Ex.P7) on the plaintiff under
Section 38 of the Act on the ground that the property in his
occupation was within the defined boundaries of the land
required for execution of the Scheme. That controversy stood
c
clinched from the deposition of Ram Niwas Patwari, DW.2 of
Improvement Trust,
Trust, who asserted in an unequivocal manner
that the disputed
di site was that marked as Point A in plan
Ex.D pertaining to Scheme No. 10 in respect of the aacquired
Ex.D2
land and that that formed
ed part of kha
khasra No.210/135 in respect
of which
w compensation was paid to it
its owner, Welfare College
N
Nirman Committee. He also went
ent on to state that both plots No.
13 and 14 carved out on the disputed site and auctioned in
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favour of Sada Nand very much formed part of land measuring
5 kanals acquired out of the total holding of 556 kanals 12
5½
marlas comprised
com of khasraa No.210/135 and that on the
remaining land of that khasra
khas a number, a residential colony
known as
a "Gopal Nagar" had been set up before the
ac
acquisition and the road depicted in plan Ex.D
Ex.D1 as of 'colony'
w that of "Gopal Nagarr Colony." There was, thus, no scope
was
for any ambiguity regarding identity of the land. These
admissions made by key witness of the defendants fully
substantiated the contention of the plaint
plaintiff that the disputed
property purchased by him
hi and his brother vide de
deed Ex.P1
from M/s Gaushala the promoter of Gopal Nagar residential
colony, formed
for part off khasra No.210/135 min
min.
17. Adverting
rting to the other controversy regarding oownership
of the land of khasra
ra no.210/135, it was noteworthy that
according to the plaintiff, that was the property of M/s
Gaushala, whereas the defendants had claimed that that
belonged to Welfare College Nirman Committee
belonged Committee. There is
certainly noo dispute with the proposition put forth by the
learned counsel for defendants, on the authority of
observatio made in Smt. Lalita
observations lita Jam
James and others Vs. Ajit
Kumar and others,
other AIR 1991 Madhya Pradesh 15, that the
purchaser was,
wa to succeed on the strength of title, required to
prove that his vendor had a valid title
title. From the material
available and obtaining on record, it could legitimately be
available
deduced that the property in suit was owned bby M/s Gaushala,
Jind at the time, the same was transferred in favour of plainti
plaintiff.
1 . It is a common ground between the parties that the land of
18.
khasra no.210/135 belonged to the entire propr
proprietary body.
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According to the plaintiff, M
M/s Gaushala, as one of the
members of the proprietary body, exercised absolute rights
over the land of khasra No.210/135, whereas the defendants
have contended that that had been gifted by some of the co
co-
shar in favour of Welfare College Nirman Committee. There
sharers
is overwhelming
overwhelming documentary evidence on record to support
the plea
ple of plaintiff that M/s Gaushala wa
was a proprietor in the
'S
'Shamlat deh'.. That inference was crystal clear from record of
jamabandi pertaining to the revenue estate of Jind, for the year
74/75 (Ex.P10). As noticed above, the
l
o.210/135 was also of 'Shamlet deh
deh'. M/s
Gaushala as major member of the proprietary body, has thus, a
right over each and every parcel
cel of land of the 'shamlat deh'.
In record of jamabandi
ja for the year 1969
1969-70 (EX.DB), the land
o.210/135 measuring 56 kanals 12 marlas of
'shamlat deh' was no doubt, described as in the occupation of
Welfare College Nirman
irman Society but the relevant record to be
taken into consideration for resolving the tangle is that of year
1974-75, at or about
bout the time of acqui
acquisition. Admittedly, this
No.210/135 came to be bifurcated into two parts. As recorded
in jamabandi for the year 1974
1974-75 (Ex.P15), land of khasra
no.210/135 min measuring
m uring 17 kanal
kanals 2 marlas, which was the
subject matter of acquisition, was under the occupation of
Gaushalal, Jind. To the same effect were the entries in the
record of jamabandi for the year 1979
1979-8 (Ex.P16) and 1984-85
(Ex.P11). That
That change of entries in favour of Gaushala stood
explained from the report roznamcha dated 6.11.1970
( P9/A). As recorded therein, Shri Baldev Saran, Secret
(Ex.P9/A). Secretary
of the Welfare College Nirman
Ni man Committ
Committee, had conceded the
proposition that that area measuring 17 kanals 2 marlas of
o.210/135 min was actually possessed by 'Gaushala
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Jind , a member of the proprietary body. That very inference
Jind',
followed from record of khasra
kha ra-girdwari from kharif 1970 to
Rabi 1975 (Ex.P12
( x.P12 and P14). Even in the jamabandi for the
year 1974-75
1974 (Ex.DD),
DD), relied upon by the defendants, the
rights over the land of 35 kanals 2 marl
marlas of khasra
no.210/135 min were being enjoyed by Welfare College
Nirman Committee whereas the other area measuring 17
Nirman
kanal 2 marlas of khasra no.210/135 min, the subject-matter
kanals
of acquisition, was in the occupation of Gaushala Jind
Jind.
Naturally, the name of a member of the propri
proprietary body
exercising absolute proprietary rights could not come in the
ownership column.
column That entry in ownership colum
column No.5 has to
remain in the name of 'Shamlat
lat deh'. The existence of name of
Gaushala in Column No.6 of the record of Jama
Jamabandi clearly
reflected that it had every right to make alienation of land of
Shamlat in its occupation as a member of the proprietary body.
19. Having arrived at the conclusion that the occupation of
the plaintiff over the site in dispute
di pute w
was as of right, it inevitably
followed that he could challenge the acquisition proceeding
proceedings.
I disputably, the plaintiff was never paid any co
Indisputably, compensation for
his holding. His assertion that after the service of the notice
(Ex ) under section 38 of the Act and passing of resolution
(Ex.P7)
(ExP8) in his favour, the authorities did not, at all, ttake into
consideration his claim and
a d never served any further nnotice in
the matter, has gone absolutely unchallenged
unchallenged. As has been
authoritatively ruled in Prof. Jodh Singh and others Ver
Verus
Jullundur Improvement Trust and others
others, 1984 Punjab Law
Journ 413, a Full
Journal ull Bench authority of our own High Court,
the compliance of provisions contained in Sections 36,38 and
40 (1) of the Act, in the matter of framing of the Scheme,
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publication of notices
otices in the official gazette and in a
newspaper(s) specifying the period for the reception of
objections, are mandatory and any infra
infraction thereof would
vitiate the entire proceedings. The recorded fact
facts clearly
substantiated the contention of the plaintiff that the provisions
of section 36 regarding publication of noti
notices and Section 38
providing for issuance of notice to the land owne
owner and occupier
of the land proposed to be acquired; Section 40(1) pr
providing
for the hearing of the objector in person or through
representative and Section 40 (3) providing for the pu
publication
of factum of submission
submission of the application to the State
Government for the sanction of the Sche
Government Scheme, were not strictly
followed. It was imperative for the defendants to affirmatively
establish on record that after the submission of the application
to the State Government within the meaning of Section 40 (3)
of the Act, the Trust had caused notices of the fact to be
published for two consecutive weeks in the official Ga
Gazette and
in a newspaper.
newspaper
20. It has, no doubt, been asserted by Ram Niwas Patwari
(DW.2) that relevant notification was published in the
new
newspaper but no such newspaper
spaper cuttings have been placed
and proved on record.
record It is true that the validity of acquisition
proceedings has been challenged by the plaintiff but he could
not possibly lay
la hands
ands upon any such record of the Trust
Trust. As
ruled in Eruga Lakshmamma Vs. Venn
Venna puse Chinna Malla
Reddy(dead) by LRs, 1985 HAP 308 (Supreme Court) and
Go
Gopal Krishnaji Ketkar Vs. Mohamed
ohamed Ha
Haji Latif and others,
A.I.R. 1968 Supreme Court 1413
1413, the conduct of defendants in
withholding that
th t best available evidence must be faul
faulted and
adverse presumption has to be drawn against them and not the
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plaintiff. In the given fact situation, the question of oonus of
proof loses
los all significance as the plaintiff could lead only
negative type of evidence and it was for the defendants to
examine positive evidence available with it, if any, to rebut his
examine
contention
contention.
21. When
hen confronted with that inherent infirmity in that
development Scheme, an attempt was made by learned counsel
for the defendants to justify the same on the ground that
is uance of notification under Section 42 of the Act, was a
issuance
conclusive proof of the fact that the development Scheme had
been validly framed and sanctioned by the Government and
publication of notices under Section 36 of the Act was not a
sine qua non for acquisition.
acq Reliance in support of that
contention was placed by the learned counsel for the
defendants on the rule laid down in Smt. Harjinder Kaur and
another Vs. The State of Punjab and another
another, 1983 Revenue
Law Reporter
Repo 131.
22. The ratio discerned in that judicial pronouncement
cannot however espouse the cause of defendants
defendants. After
considering that view in Harjinder
inder K
Kaur's case (supra), it was
clearly ruled in Prof. Jodha Singh's case (supra) by the Full
Bench that
th where there was Court colourable exercise of
powers, then the action of framing Scheme and sanction
thereof, and consequential action of notifying sanction, stood
vitiated notwithstanding provisions of Section 42 (2) of the Act.
Surely, notification under Section 42 (2) of the Act could not be
panacea for all the ills
ill in the schem
scheme and that was never
intended to provide a cover to non
non-compliance of the
mandatory provisions of Sections 36,38 and 40 of the Act.
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23. During the course of arguments, learned counsel for the
plai
plaintiff had also referred
ed to and relied upon the observations
made in Surinder Singh Vs Sangrur Improvement Trust 1990
(1) Land Laws
L Reporter 197,, Virinder Mohan Vs. Bhatinda
Im
Improvement Trust 1990 (1) Land Laws Reporter 201 and
Punjab State and others Vs. Sansar Pre
Preet Mandal 1990 (2)
Land Laws Reporter 473, that where mandatory provisions had
been violated in the matter of publication of notification and
calling of objections, under sections 36, 338 and 40 of the Act,
then that stood vitiated, and once the acquisition proceedings
were held void, then the same could be challenged at any time
without there being any bar of limitation in S.Hira Singh Vs.
The State of Punjab & others,
others 1985 Punjab Law Journal 371
371,
that where a site had been purchased by an objector by a
regi
registered deed, then non-issuance
issuance of notice on the ground that
the purchaser had not informed the Trust, could not be justified
bec se the purchase made by way of registered deed has to be
because
treated to be a public notice and its ignorance could not be
pleaded and where there was a failure on the part of the Trust
to comply with the mandatory requirements of Section 38, then
that must be quashed even though there was a notification
granting sanction to the Scheme under Section 42 (2) of the
Act and in Javeed Iqbal
Act; bal and others Vs. The State of Har
Haryana
and others,
others 1989 Punjab
njab Law Journal 252 (D.B.)
(D.B.), that
publication of substance of notice of acquisition in the
conce
concerned locality was mandatory and non
non-compliance thereof
v
vitiated the acquisition proceedings made under the provisions
of land Acquisition
Acqui Act. The rule enunciated in all these
judicial pronouncements,, thus, clearly supported the
contenti
contention of the plaintiff that on account of violation of
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mandatory provisions of the Statute, impugned scheme could
not adversely
a affect his rights.
24. It is true that the quashing of the entire scheme would
re
result in obvious public inconvenience and difficulty and
variou complications would
various ould arise from such an invalidation
but there is certainly no difficulty in qu
quashing the scheme qua
the plaintiff-objector
plainti objector only. Such a course was also followed in
the judicial precedent reported as Jodh Singh and others Vs.
The Jullundur Improvement Trust AIR 1986 Punjab &
Haryana 158,
158 where after quashing the notification in so far as
th t concerned property of the land owner, improvement Trust
that
was directed to consider objections filed by him after affording
him an opportunity of hearing, and in Mansukhlal Jadavjidarji
and others Vs. Ahmedabad Municipal Corporation and others
(1992) 1 Supreme
Sup Court Cases 394, where the entire scheme
was not interfered with, even though, the non
non-compliance of
the mandatory provisions
p visions had vitiated the same and a limited
r
relief was
as granted to the plaintiff.
25. For defeating the claim of plaintiff, it was strenuously
urged by the learned counsel for the defendants that the suit
filed by him was hopelessly
hopeles ly barred by limitation and as held in
S
Saudagar Singh Vs.. Harnam Kaur (Deceased) now represented
by L.Rs and others, 1987 Punjab Law Journal 248
248, the starting
point of limitation in such like declaratory ssuits was from the
date when the cause of action first accrued to the plaintiff at
least on the day when they had filed written statement in the
month of August,
A gust, 1985, asserting therein the promulgation of
the Scheme and that the relief of declaration claimed by him
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after amendment of the plaint in the month of January, 1991,
was barred by it.
i
26. That contention raised by learned counsel for the
defendants, when analysed in the context of given fact,
defendants,
situation, has necessarily to be repelled. There can certainly be
no dispute
di with the proposition that an amendment in such a
case where there was no addition of party would relate back to
the date of suit.
suit That very view was held in Gurdial Dass Vs.
Gram Panchayat of village Sam Rai and another, 1989 Punjab
Law Journal 238.
238 Even otherwise the passing of an order at the
back of the party, has to be treated as void ab initio and as
observed in Sarwan Kumar of Faridabad Vs. Shyam Man
Mangla,
1989 Haryana Rent
Rent Reporter 641
641, no objection regarding
limitation could be raised.
27. For negativing
negativ ng the contention of plaintiff
plaintiff, the learned
counsel for the Municipal
nicipal Body also advocated that the law
recognized, as
a held in Tehal Singh Vs. Mehar Singh and
others AIR 1964 Punjab 451; only the recorded owners and
others,
also that service of notice to one of co
co-sharers, as ruled in
Baldev Singh and others Vs. State of Punjab and another 1990
(1) Revenue Law Reporter 211,
211, could be construed as sufficient
service to all co-sharers
co harers and that the proper course for the
plaintiff objector
plaintiff-objector was to approach the Collector for
apportionment of compensation, as was held in Chiranjilal Vs.
Ram Dutt and others,
others 1982 Punjab Law Journal 80
28. All these contentions raised by learned counsel for the
Municipal Body are quite indefensible. This case presented
Municipal
peculiar features of its own.
own The
he site in dispute has been shown
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to be owned by the plaintiff and his brother. If notice had been
served only on one of these two brothers, then the Trust could
claim that that was sufficient service to the other Court co
co-
owner also. It is not at all conceivable as to how service of
notice on the Welfare
elfare College Nirman Committee and the
payment of compensation to it could be regarded as service of
noti
notice on the plaintiff.
laintiff. The question of apportionment of
compensation could arise if the acquiring department had
accepted the proposition
propos tion that there was a dispute regarding
entitlement of compensation between the rival claimants
claimants. The
Trust had compeltely ignored
ignored the rights of the plaintiff, even
after service of notice (Ex.P7) on him as 'person interested
interested'
and in occupation of the acquired site. The presumption must
be drawn in favour of plaintiff that being in actual possession,
he was the owner.
owner That very view
iew was held in Sampat Ram and
others. Vs.
V Ganga Duttt and others A.I.R. 1924 Lahore 276. On
proof of his title, the plaintiff has every right to challenge the
scheme as being irrevocably
i revocably bad
bad.
29 An attempt was also made by learned counsel for the
29.
defendants to assail the finding of the learned trial court on the
point of possession, returned in favour of plaintiff
plaintiff, the point
debated by the learned counsel for the Municipal body, on the
authority of observations made in Sheotaj and others Vs.
Pahlad Nand (dec.) Reptd. by LR
Rs and others 1988 (1) Current
Law Journal (Civil, Crl. & Rev
Rev.) 498 was that after the
demolition of structure, that site becam
became a vacant one and its
possession has to follow title.
titl Reliance was also placed by the
learned counsel for the Municipal Body on the observations
made in Lekh Ram Vs Jhandu 1989 Punja
Punjab Law Journal 480
that in a suit for declaration and injunction on the strength of
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ownership and possession, no injunction co
could be granted in
favour of the plaintiff where he had failed to prove ownership
of the property. These contentions raised by the learned
counsel for the Municipal Body
ody are completely devoid of merit
and have merely to be noticed to be rejected
rejected. Now that the title
of the plaintiff has been upheld, there could be no legal bar to
the granting of relief inn his favour. It was not a case of vacant
site where the possession has to follow title. The plaintiff had
concededly been
be n exercising possessory rights in that site and
had raised construction thereon after incurring huge
expenditure.
30. As a sequel to the foregoing dis
discussion, the plaintiff is
held to be owner in possession of the site in dispute and its
acquisition for Scheme No.10, being violative of the mandatory
provisions of law, is inoperative on the propriet
proprietary and
possessory rights being enjoyed by him therein. Accordingly,
the findings returned by the learned trial court against the
plaintiff on these controversial
controversial issues are reversed and the
impugned acquisition, qua the interests of plaintiff, is set aside.
It also followed as necessary corollary thereto that the appeal
preferred by Municipal body mu
must fail.
31. In the result, this appeal directed by plaintiff is accepted
and while answering seminal points in issue in his favour his
suit for the grant of declaratory as well as injunctive relief is
decreed and the defendants are restrained from inter
inter-meddling
with the proprietary and possessory rights being enjoy
enjoyed by
him over the property in dispute pursuant to the impugned
Scheme having been
be n held to be bad qua his interes
interests therein, as
prayed for.
for There shall, of course, be no bar on the
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Improvement Trust to take appropriate steps for the acquisition
of the land in suit of the plaintiff after complying with the
statutory formalities including the payment of compensation or
making other suitable adjustment. The parties are, however,
left to bear their own costs of the proceedings throughout."
11 Consequently, the present appeal has been filed.
12 Learned counsel appearing for the appellant has argued that as
per the jamabandi pertaining to the year 1969
1969-70 (EX.D-13), the land
measuring 56 kanals 12 marlas situated in Khasra No.2
No.210/135 min was
shamlat deh and belonged to the Welfare College Nirman Committee, Jind
Jind.
The said land continued to be reflected as shamlat deh and in possession of
the Committee and Gaushala even as per the jamabandi pertainin
pertaining to the
year 1969-70
0. The sale deed EX.P-1 dated
ted 18.10.1966 was executed with
respect to the suit property,
property which was undisputedly owned by the shamlat
deh and was allegedly executed by Shri Gaushala in favour of the
respondent-plaintiff
plaintiff, without mentioning khasra numbers. The Town
Improvement Scheme was proposed in the year 1975 and two notifications
qua acquisition of 3415 sq. yards comprising in Khasra no.210/133 min and
Khasra No.210/135 min were
w issued on 05.04.1976 and 04.05.1976
(EX.D10 and EX.D11).
EX.D The
he Award dated 09.08.1976 (EX.D12) was
eventually
ually passed on culmination of the acquisition proceedings. Possession
of the acquired land was taken by issuing public notice dated 06.10.1976
(EX.D-A,
A, EX.D-B
EX.D and EX.D-C)
C) and compensation for the land acquired
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was also paid to the 'Welfare College Nirman Committee.' The institution
of the civil suit by the respondent-plaintiff
plaintiff w
was on 24.04.1985 for
permanent injunction,
injunction on the basis of the sale deed dated 18.10.1966
18.10.1966, in
which the written statement was filed by the Improvement Trust on
09.08.1985. The application to implead appellant Municipal Committee,
Jind was moved on 14.10.1985. The first amended plaint was filed by the
respondent-plaintiff
plaintiff on 16.11.1985 by merely adding the appellant
Municipal Committee, Jind as defendant no.3. The additional issue no.8
no.8-A
was framed by the trial Court on 17.07.1989. Civil Appeal No.1/13 dated
24.01.1990 was filed before the learned Appellate Court by the respondent
respondent-
plaintiff while civil appeal No.4 of 2013 dated 17.02.1990 was filed by
Municipal Committee, Jind jointly with Town Improvement Trust against
the judgment and decree dated 11.01.1990 passed by the Court of
Additional Senior Sub Judge, Jind.
Jind. He contends that as per the ja
jamabandi
for the year 1969-70,
1969 70, the ownership of the land vested with the Shamlat deh
while the Welfare
W College Nirman Committee
ommittee was in possession thereof.
The sale deed in favour of the respondent
respondent-plaintiff was purportedly
executed by Gaushala Jind which was
was never the owner and hence, had no
right to alienate the shamlat land in favour of the respondent-plaintiff. The
sale deed relied upon by the respondent-plaintiff
plaintiff does not contain the
description of the land by making a reference to the revenue numbers wh
which
are the only mode for identification of the revenue land. It was also argued
that even as per the case of the respondent-plaintiff
plaintiff, the alleged construction
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raised by him had already been demolished at the time of institution of the
suit and possession of the land had been taken over by the appellant
marking culmination of the acquisition proceedings. Hence, as on date, at
the time when the suit had been instituted, the respondent-plaintiff was
neither the owner nor in possession of the land. The prayer for permanent
injunction was thus not maintainable.. He also emphasi
emphasizes that all the
mandatory provisions contained under Section 36 and 38 of the
Improvement Trust Act, 1922 have been complie
complied with. Notifications in the
newspaper were duly published and were legal and valid. The service of
notice on the Welfare College Nirman Committee
ommittee as well as the respondent-
plaintiff is undisputed and that publication of notification in the gazette was
in the year 1975-76
1975 76 and the suit was filed in the year 1985. Amen
Amendment
application
on was moved on 18.09.1990
18.0 .1990 which was allowed in 1991. Hence,
the declaration suit was barred under the law of limitation. He submits that
the notice in question had been published in the gazette of Haryana
Government on 22.6.1976
2 .6.1976 in and was also published in the daily Hind
Samachar on 13.6.1976 and Tribune on 16.
16.06.1976 and Punjab Kesri on
22.6.1976. A specific uncontroverted deposition by the witness Ram Niwas
Patwari in this regard
rega has been ignored.. It is thus argued that in view of the
documents as well as the evidence, gaushala had no right to transfer as it
was undisputedly not the owner of the property. It is submitted that the
judgments and decrees passed by the Courts declar
declaring the respondent-
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plaintiff as owner and passing the decree for injunction against the appellant
Municipal Committee, Jind is liable to be set aside.
13 Responding to the above, counsel for the respondent No.1-
plaintiff has contended that total area of 56 kanals 12 marlas was acquired
without mentioning the actual khasra numbers. Further, a resolution was
passed by the Improvement Trust then on 19.11.1975
.1975 by specifically
mentioning that the plot of the respondent-plainti
plaintiff would not be adjusted in
the Scheme and 06 marlas plot was allotted to him. The same amounts to
acknowledgment of the ownership rights of the respondent-plaintiff by the
appellant-defendant
defendant but no plot was allotted in lieu of the said acquisition.
He further
rther contends that no demarcation was conducted as per the
admission made by the Patwari while appearing as DW.2 and that no notice
was issued to other co-sharers
co sharers nor any compensation was given including to
the respondent-plaintiff.
respondent . Hence, the necessary iinference which can be drawn
is that only the area under the ownership of Nirman Committee was taken
into possession and no other area was acquired. He further submits th
that the
building plan was sanctioned by Municipal Committee, Jind in 1982 and
construction
on had
ha been raised in furtherance thereto which stands established
from the deposition of the neighbor as well as PW.6 Clerk from Municipal
Committee, Jind who proved the sanction letter. He further submits that
there was no challenge by the appellant to the man
manner of the claim as well
as to the order remanding the case to the trial C
Court for determination of the
additional issues. It is vehemently argued that ttwo separate appeals i.e.
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Appeal No.1/
1/13 was filed by the respondent--plaintiff while Appeal No.4/13
was filed by the appellant itself.
self. Challenge had been raised only to the one
decree passed in civil appeal No.1/13
No /13 and no appeal has been filed in
Appeal No.4/
4/13. Hence, the appeall would be barred by the principle of
res judicata due to the said decree not being challenged
challenged. He has placed
reliance on the judgment in the matter of Sri Gangai Vinayagar Temple
and another Vs. Meenakshi Ammal and others, reported as 2015 (3) SCC
624.. The relevant extract of the judgment reads thus:
thus:-
"21.
21. On the other hand, the verdict of Full Bench of the
Allahabad High Court in Zaharia vs. Debia ILR (1911) 33
All 51 and decisions of the Calcutta High Court in Isup Ali
vs. Gour Chandra Deb 37 Cal LJ 184: AIR 1923 Cal 496
and of the Patna High Court in Mrs. Getrude Oastes vs.
Mrs Millicent D'Silva ILR 12 Pat 139: AIR 1933 Pat 78
are of the contrary persuasion. These decisions largely
proceeded on the predication that the phraseology "suit" is
not limited to the Court of First Instance or Trial Court but
encompasses within its domain proceedings before the
Appellate Courts; that non-applicability
applicability of res judicata may
lead to inconsistent decrees and conflicting decrees, not only
due to multiplicity of decrees but also due to multiplicity of
the parties, and thereby creating confusion as to which
decree has to be given effect to in execution; that a decree is
valid unless it is a nullity and the same cannot be overruled
or interfered
erfered with in appellate proceedings initiated against
another decree; that the issue of res judicata has to be
decided with reference to the decrees, which are appealable
under Section 96 of the CPC and not with reference to the
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judgment (which has been defined differently), but with
respect to decrees in the CPC; that non
non-confirmation of a
decree in appellate proceedings has no consequence as far
as it reaching finality upon elapsing of the limitation period
is concerned in view of the Explanation II of Section 11, that
provides that the competence of a Court shall be determined
irrespective of any provisions as to right of appeal from the
decision of such Court; and that Section 11 of the CPC is not
exhaustive of the doctrine of res judicata, which springs up
from the general principles of law and public policy.
22. Procedural norms, technicalities and proce
procedural law
evolve after years of empirical experience, and to ignore
them or give them short shrift inevitably defeats justice.
Where a common judgment has been delivered in cases in
which consolidation orders have specifically been passed,
we think it irresistible that the filing of a single appeal leads
to the entire dispute becoming sub judice once again.
Consolidation orders are passed by virtue of the bestowal of
inherent powers on the Courts by Section 151 of the CPC, as
clarified by this Court in Chitivalasa Jute Mills vs. Jaypee
Rewa Cement (2004) 3 SCC 85
85. In the instance of suits in
which common Issues have been framed and a common Trial
has been
een conducted, the losing party must file appeals in
respect of all adverse decrees founded even on partially
adverse or contrary speaking judgments. While so opining
we do not intend to whittle down the principle that appeals
are not expected to be filed against every inconvenient or
disagreeable or unpropitious or unfavourable finding or
observation contained in a judgment, but that this can be
done by way of cross-objections
objections if the occasion arises. The
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decree not assailed thereupon metamorphoses into the
character of a "former suit". If this is not to be so viewed, it
would be possible to set at naught a decree passed in Suit A
by only challenging the decree in Suit B. Law considers it an
anathema to allow a party to achieve a result indirectly
when it has deliberately or negligently failed to directly
initiate proceedings towards this purpose. Laws of
procedure have picturesquely been referred to as
handmaidens to justice, but this does not mean that they can
be wantonly ignored because, if so done, a mis
miscarriage of
justice inevitably and inexorably ensues. Statutory law and
procedural law are two sides of the judicial drachma, each
being the obverse of the other. In the case in hand, had the
Tenant diligently filed an appeal against the decree at least
in respect of O.S. 5/78, the legal conundrum that has
manifested itself and exhausted so much judicial time, would
not have arisen at all.
23. Adverting in the impugned Judgment to the decision of
this Court in Sajjadanashin Sayed vs. Musa Dadabhai
Ummer AIR 2000 SC 1238,, the Division Bench delineated
the distinction between an aspect of the litigation that is
collaterally and incidentally, as against one that is directly
and substantially focal to the question the determination of
which is the immediate foundation
ndation of the decision. Reference
was also drawn to enunciation of what constitutes res
judicata in Hoag vs. New Jersey (1958) 356 U.S. 464,
namely that this important legal principle is attracted "if the
records of the formal trial show that the judgment could not
have been rendered without deciding the particular matter,
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it will be considered as having settled that matter as to all
future actions between the parties".
14 A reliance is also placed on the judgment in the matter of
Premier Tyres Limited Vs. Kerala State Transport Corporation, reported
as AIR1993 SC 1202.
1202. The relevant part is extracted as under:
under:-
"4. The question is what happens where no appeal is filed,
as in this case from the decree in connected suit. Effect of
non filing of appeal against a judgment or decree is that it
becomes final. This finality can be taken away only in
accordance with law. Same consequences follow when a
judgment or decree in a connected suit is not appealed from.
5. Mention may be made of a Constitution bench decision in
Badri Narayan Singh v. Kamdeo Prasad Singh . In an
election petition filed by the respondent a declaration was
sought to declare the election of appellant as invalid and to
declare the respondent as the elected candidate. The
tribunal granted first relief only. Both appellant and
respondent filed appeals in the High Court. The appellant's
appeal was dismissed but that of respondent was allowed.
The appellant challenged the order passed in favour of
respondent in his appeal. It was dismissed and preliminary
objection of the respondent was upheld. The Court observed,
'We are therefore of opinion that so long as the order in the
appellant's appeal No.7 confirming the order setting aside
his election on the ground that he was a holder of an office
off profit under the Bihar Government and therefore could
not have been a properly nominated candidate stands, he
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cannot question the finding about his holding an office of
profit, in the present appeal, which is founded on the
contention that that finding is incorrect.
6. Thus the finality of finding recorded in the connected suit,
due to non filing appeal, precluded the Court from
proceeding with appeal in other suit. In any view of the
matter the order of the High Court is not liable to
interference."
15 He also argues that there was no notice to all the co-sharers
with respect to the process of acquisition of land and that undisputedly no
notice was ever issued to Gaushala or the respondent
respondent-plaintiff who had
purchased the land. He submits that despite taking of possession after the
passing
sing of the award, site plan of the plaintiff was sanctioned which shows
that actual physical possession over the land had not been taken by the
respondent-plaintiff
plaintiff and that it did not fall
ll within the acquired area.
16 Replying to the arguments about the declaration being time
barred, he submits that since there is no challenge to the order dated
14.1.1991 whereby the plaint was amended, hence, the challenge cannot be
said to be time barred. Further, notification for ac
acquisition being illegal, the
same can be validly assailed. He submits that the mandatory procedure of
publication in the local newspaper had not been followed and that the
acquisition proceedings lapsed on account thereof. The reliance is placed on
the Fulll Bench judgment of this Court in the matter of Jodh Singh Vs.
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Jullundur Improvement Trust, Jullundur, reported as AIR 1984 (P&H)
398.
17 No other argument has been raised.
18 I have heard learned counsel appearing for the respective
parties and have also gone through the documents available on record with
their able assistance.
19 Certain undisputed facts which are of significance are as
under:-
(i) that the sale deed of the land measuring 52 sq. yards was
executed on 18.10.1966
.1966 in favour of the respondent
respondent-
plaintiff by gaushala. A roznamcha entry is stated to
have been reflected on 06.11.1970 in favour of
Gaushala and the girdawari pertaining to the 1970
1970-71,
1972-74 claimed to show
ow gaushala to be in possession of
the land;
(ii) That the land in question was shamlat deh and in
possession of the College Nirman committee.
(iii) That the building plan is stated to have been sanctioned
on 14.07.1982 by the appellant and the construction is
stated to have been raised as per the sanctioned plan but
the same was already demolished before the institution
of the suit.
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20. That even though
though much emphasis has been laid by the
petitioner on the ground of approval of the building plan and sanction for
raising construction, however, I am of the opinion that the judgments and
decrees passed by the Additional Senior Sub Judge, Jind, as well aas the
District Judge, Jind in the civil suit No.416
N 416 of 24.04.1985 and Civil Appeal
No.4/13 of 17.02.1990 respectively are based on non
non-appreciation of the
facts in correct perspective and have failed to apply the provisions of law
appropriately.
21. I find that the judgments and decrees of both the Courts suffer
from the following noticeable flaws:-
(i) The sale deed in question was executed by Gaushala on
18.10.1966 in favour of the respondent
respondent-plaintiff, however,
there is no document which establishes vesting of title with the
vendor Gaushala. Consequently, the sale deed is not based
upon due and proper documentation
documentation. It was incumbent upon
the buyer to verify as to whether a valid right and title vests in
the vendor or not. It was held by a Division bench of this Court
in the matter of Sarabjit Singh and others Vs. Director,
Department of Rural Development and Panchayat, Punjab
and another reported as 2023 (4) RCR (Civil) 405 that where
there is nothing on the record to show that vendor
vendors are
proprietor of revenue
rev nue estate concerned and have lawful share in
shamlat deh, they cannot transfer any title. Due diligence
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having not been exercised by the buyer before entering into
sale deed, he cannot later on take to vindicate the transfer as an
ostensible owner. The operative part of the judgment reads
ostensible
thus:
thus:-
"6.
6. We have carefully evaluate
evaluated the revenue record and
have no hesitation to conclude that upto the year 1944-
45, in the column of ownership, Shamlat etc (Mazkur) is
recorded and thereafter, Panchayat Deh is recorded as
owner and Panchayat had given this land to one Pritam
Das Chela Sant Ram only for the purpose of his
livelihood, whereas, the ownership of the Gram
Panchayat remained intact. The predecessor
predecessor-in- interest
of the petitioners
tioners are recorded as Gair Marusi (non
occupant tenant). There is nothing on record to suggest
that the vendor of the petitioners are proprietor of the
revenue estate concerned and have a lawful share in the
Shamlat Deh. Apart from that, they are in possession of
disputed land according to their share prior to 1.1.1950.
In absence of any of the record for the above, the vendor
of the petitioners had no right, whatsoever to transfer
the petition land(s) in their favour. There is nothing on
record to suggestt that the name of the vendor of the
petitioners is recorded in the column of ownership in any
of the revenue document. Rather entry of the
predecessor-in-interest
interest of the petitioners is recorded as
Gair Marusi (non occupant tenant). A non
non-occupant
tenant cannot acquire the status and rights of Marusi
and claim ownership. This Court, in CWP No.20563 of
2008, titled "Jaleb Khan and others V/s Commissioner,
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Gurgaon Division, Gurugaon and others" decided on
20.7.2009, has held as under:
under:-
"After giving my thou
thoughtful consideration to the
contentions of the learned counsel for the petitioners
and perusing the record, I find no merit in the same.
The Gram Panchayat, Agon (respondent No.3) filed a
petition under Section 7 of the Act seeking eviction of
the petitioners.
ers. As per Jamabandis for the years 1962
1962-
63, 1967-68 and 1997-98
98 (Annexures P
P-7, P- 8 and P9)
respectively the ownership of the land in question is
recorded in the name of Gram Panchayat. In the
column of cultivation, Kallu son of Kale Khan son of
Chhota Khan is recorded as 'Gair Marusi' in the three
afore-referred
referred Jamabandis. Therefore, the predecessor
predecessor-
in-interest
interest of the petitioners having been recorded as
'Gair Marusi' he cannot possibly acquire the status and
rights of 'Marusi' (occupancy tenant) as contended by
the learned counsel for the petitioners. The fact that the
petitioners acquired rights of ownership being an
occupancy tenant is clearly misconceived."
7. The next argument which was raised by counsel for the
petitioners is that the sale deeds
deeds which have been declared as
null and void are protected under Section 41 of the Transfer of
Property Act, 1882. However, we find that the argument raised
by the counsel for the petitioners is highly misplaced. It was
not the case of the petitioners that they have purchased the
land after taking reasonable care and acted in a good faith,
whereas from the record it is clear that during the cross
cross-
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examination of RW1-Sarabjit
Sarabjit Singh, before the Collector, a
specific question was put to him as to whether he ha
had made any
inquiry from the Revenue Department prior to the purchase of
the disputed land, to which, his answer was negative. So, once
it is admitted by the petitioners that no due diligence was
exercised by the petitioners before entering into the sale de
deeds,
therefore, they cannot later on take to vindicate the transfer,
thus, as ostensible owners. As mentioned above, the revenue
record starting from the year 1950, Panchayat Deh is recorded
as owner, therefore, it seems that the present sale deeds were
result of collusiveness and were not entered in good faith.
result faith."
(ii) Secondly, much reliance has been placed on the
roznamcha entry dated 06.11.1970 alleg
allegedly in favour of Shri
Gaushala and the girdawaris
girdawari for the year 1970 to 74 showing
possession of the Shri Gaushala, Jind
Jind. I am afraid that such a
reliance is misconceived since the sale deed in favour of the
respondent plaintiff was much prior to the said document
respondent-plaintiff documents
having come into existence.. It was incumbent upon the
respondent plaintiff to establish
respondent-plaintiff establish, from the documents prior to
execution of the sale deed in his favour
favour, that title and
possession of the land vested in the vendor.
(iii) The pleadings of respondent
respondent-plaintiff at best would
establish a mere possession of Shri Gaushala. Hence, it could at
best have transferred possession and could not have transferred
the ownership over the land. The Courts failed to take note of
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the same and the position in law that a person cannot transfer
any better right or title than is conferred upon him.
(
(iv) That the respondent--plaintiff also specifically
acknowledged that notice had been served upon him on
10.09.1975 by the Improvement Trust (as it then was) (EX
(EX.P-
7) about the land being acquired for execution of Scheme
7),
No.10. Even though, it is acclaimed
claimed by the respondent
respondent-plaintiff
that only a part of the land was acquired, however, once the
notice had been specifically served upon him on 10.
10.09.1975,
the respondent-plaintiff
respondent plaintiff had derived an actual knowledge of the
acquisition. It is not the case of the respondent
respondent-plaintiff that he
had filed any objections against the proposed acquisition or
service of notice
no on him. Rather
Rather, the reliance has been on the
resolution dated 19.11.1975,
19.11.1975 wherein the Improvement Trust
held that 52½ sq. yards of plot claimed to be under the
ownership of
o the respondent-plaintiff
plaintiff cannot be adjusted in the
Scheme and that a plot measuring 06 marlas may be allotted to
him. Receipt of the said communication is also not disputed
and instead it is being relied upon to establish the claim
claim. The
he
acknowledgment of the receipt of the said communication
leaves no iota of doubt that the land claimed by the respondent
respondent-
plaintiff to be in his occupation and possession was actually
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part of the area notified to be acquired by the appellant
appellant-
defendant.
(v) That it is also not in dispute that actual physical
possession of the land was taken on 006.10.1976 (EX.DB) and
that the admissible compensation for the acquired land had
been released in favour of the Welfare College Nirman
Committee, Jind-the
Jind the owner in possession. The respondent-
plaintiff, if he was not satisfied with disbursement of
compensation or claimed a higher compensation
compensation, had every
right to move the Land Acquisition
cquisition Court for seeking
apportionment of compensation on the strength of his alleged
occupation and possession
possession but the same was not done. Merely
because a decision with respect to apportionment has not been
taken by the Land Acquisition Officer would not render the
acquisition bad and liable to be set aside especially when there
was an efficacious remedy with
th the respondent
respondent-plaintiff to seek
such an apportionment by way of a reference
reference. Undeniably, the
total admissible compensation,
compensation, as per the Award, already
stands disbursed in favour of the Welfare College Nirman
Committee, Jind and that no further enhanceme
enhancement had been
sought by the Welfare College Nirman Committee, Jind
Jind.
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(vi) That the respondent-plaintiff
plaintiff is relying on the sanction of
the site plan in the year 1982 for suppor
supporting the argument that
l
land measuring 52½ sq. yards under his possession would be
deem to be released
deemed leased from the process of acquisition. I am
afraid that such an inference would not flow. The burden of
establishing that land had been lawfully purchased by him and
was in his actual possession
poss and was released from the process
of acquisition,
acquisit lay upon the respondent
respondent-plaintiff and that he
cannot claim a declaration of ownership in his favour merely
on account
acc of defects/lapses by the appellant
appellant-defendant. The
entire evidence is required to be read as a whole and a mere
sanction of the building plan cannot be the basis to completely
disregard
disregarding the documents establishing due identification of
the land to be acquired and also payment of compensation to
the owner and delivery of possession thereof. It is also
noteworthy that the sale deed in question does not make a
noteworthy
reference to the specific revenue record and as such, it would
not have been possible for the dealing clerk to identify the land
and to know whether the same had been acquired or not.
Agricultural land is identified
i by reven
revenue numbers and at the
time of execution of the sale deed, the said land was not the
part of the development
develo ment scheme and was notified later.
Notwithstanding the same, the specific descript
description numbers, as
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p
per the revenue record, have not been m
mentioned. The
possibility of an error by the Clerk thus cannot be ruled out.
Any such error, however, cannot
ca not be taken as giving birth to a
right in favour of the respondent
respondent-plaintiff to claim that the
entire process of acquisition of land oought to be ignored and
that the lawful ownership and possession should be presumed
to have been vested in the respondent
respondent-plaintiff. The only
remedy available to the respondent
respondent-plaintiff on such account
would have been to seek apportionment of compensation for
the loss caused and the right flows no further.
(vii) That the suit for permanent injunction was filed by the
respondent plaintiff in the year 1985 i.e. after the shop
respondent-plaintiff
constructed by the respondent
respondent-plaintiff had already been
demolished. The plea of the land having been acquired was
taken even in the written stat
st tement that was filed by the
Improv ent Trust giving details of the notification. Even
Improvement
though the respondent-plaintiff
though, plaintiff acknowledged the receipt of
notice sent by the Improvement Trust about aacquisition of land
and for submission of the objections
objections, if any, yet the specific
plea of acquisition was duly raised in the written statement that
was filed in August 1985. The knowledge of acquisition by the
respondent plaintiff thus stands established as per the notice
respondent-plaintiff
(
(EX.P-7) and as such, the cause of action for challenging the
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acquisition proceedings, if any, arose in the year 19
1975. The
respondent plaintiff waited for a period of more than 09 years
respondent-plaintiff
before filing the suit. Surprisingly, even in the above suit, it
was filed only for permanent injunction and was initially not
filed for seeking a declaration that the acquisition proceedings
were bad and liable to be set aside. No such attempt was made
by the respondent-plaintiff
respondent plaintiff to seek amendment in tthe plaint
even on the filing of the written statement (assuming for the
sake of arguments that the knowledge may be deem
deemed from the
date of filing of the written statement). It was only after the
claim of the appellant as owner on the strength of the sale deed
dated 18.10.1966 was accepted by the Addl. Senior Sub Judge,
Jind, that an application for amendment was filed in the year
1990. The District
Dist ict Judge fell in an error in not taking note of
the laws of limitation and reversing the finding returned by the
trial Court about the suit being barred by limitation on the
question of declaration by only relying upon the non
non-
production of the publication in the newspaper about
acquisition before the Court.
Court The District Judge iignored the
fact that the limitation has to be computed from the cause of
action and not from the alleged failure of the defendant in
bringing the relevant material on record
record. Once the documents
relied upon by the respondent
respondent-plaintiff establish notice of
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acquisition to his knowledge, the alleged irregularities
acquisition irregularities, if any,
in the acquisition proceedings would not give rise to a fresh
cause of action for computing limitation.
(viii) It is also a well settled position in law as laid down in the
matter of Harbhajan Singh and another Vs. The
Improvement Trust, Phagwara and another, reported as
19 (3) SLJ Page 2941, that mere non
1993 non-issuance of notice
under Section 38 of the Punjab Town Improvement Act, 1922
would not vitiate the acquisition as no prejudice iis established
to have been suffered since actual knowledge of proceedings is
evident and owner had chosenn to accept the compensation
without demur. A challenge to the process of acquisition by the
land owners is thus dispelled.. It is not in dispute that the
Scheme in question was duly notified in the Government
Gazettee. Section 42 (2) of the Town Improvement Trust, Act,
1922, (as it was in force then) provided that publication of the
notification about the Scheme in the Gazette shall be
conclusive evidence with respect to the scheme having been
duly framed
f amed and sanctioned. It was not the case of the
respondent
respondent-plaintiff that no evidence has been led that
notification was published beyond the prescribed time.
(ix) The respondent-plaintiff
plaintiff has placed much reliance on the
resolution dated 19.11.1975 (EX.P
(EX.P-8) about the allotment of 06
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marlas plot in favour
f r of the respondent
respondent-plaintiff in lieu of the
acquisition of his 52½ sq. yards of land. The said resolution
essential and inherently establishe
essentially establishes that the respondent-
plaintiff was fully satisfied with the passing of the said
resolution and was never aggrieved of the acquisition. It seems
that since the said resolution was not accept
accepted by the
competent authority and allotment
allotment was not made, that the
aspect of raising of construction after a gap of more than 06
years of the receipt of notice was admitted. Even otherwise, the
said resolution itself suggests that there was some sort of
collusion between the officials of Munic
Municipal Committee, Jind
and the respondent-plaintiff.
respondent plaintiff. It would be incomprehensible that
the Improvement Trust would offer a plot measuring 06 marlas
i.e. 150 sq. yards as against an acquired land of 52
52½ sq. yards.
The circumstances of the case rather indicate that the
respondent plaintiff was not only conscious of the acquisition
respondent-plaintiff
but was also manipulating the acquisition to his advantage and
having failed to secure a shop,
shop which was nearly three times in
area against
against the acquired land, he coll
colluded to make an attempt
to repossess the land,
land the possession whereof had already been
taken by the Improvement Trust on 06.10.1976 vide Ex.DB.
Any subsequent attempt to enter into possession of the public
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land in a clandestine manner cannot be protected as a case to
create the right in favourr of a rank encro
encroacher of public land.
(x) Even otherwise, as on the date when the respondent
respondent-
plaintiff instituted the suit, the shop in question had already
been demolished by the appellant
appellant-defendant. The suit for
injunction against being forcibly dispossessed may have been
rightly and properly instituted if there is an apprehension of
being forcibly dispossessed.
dispossessed. The act of demolishing of the
structure by the appellant-defendant
appellant defendant over the land acquired by
it was an act of reassertion of its lawful possession over the
land. As on the date when the injunction suit was filed, there
was no element of a forcible dispossession since the property
did not exist any further. At best
best, a suit for possession and
mandatory injunction ought to have been filed along with
consequential relief.. Occupation and possession of the pro
property
was thus fundamental before decreeing the suit of injunction
against being forcibly dispossessed.
(xi) Even otherwise, even the entire case has to be examined
strictly in accordance with law
law, the appellant had taken
possession of the land in the manner provided under the Punjab
Town Improvement Act, 1922,
1922 from the owners itself with no
objection. It was thus essential for the respondent
respondent-plaintiff to
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establish that despite the improvement Trust/Municipal
Committee, Jind, having taken possession in a lawful manner,
he was validly inducted on the land. Till such time that such
lawful vesting or delivery of possession by the competent
authority is established, the respondent
respondent-plaintiff as an
encroacher cannot protect a right against the appellant
appellant-
defend
defendant-the true owner.
(xii) In so far as the objection of the respondent
respondent-plaintiff that
there is noo challenge to the decree in Civil Appeal No.4/13 is
concerned, I find that the said argument does not further the
case of the respondent-plaintiff.. The reliance on the judgment
in the matter of Sri Gangai Vinayagar Temple and another
(supra) is misplaced since the same was a case where different
suits had been clubbed together leading to filing of separate
decrees and thus requiring that the appeals had to be preferred
against the different suits where there were separate issues
amongst the parties. Similar are the facts in the matter of
Premier Tyres Limited (supra)
(supra). The said judgment does not
apply to the facts of the present case since it is not a case of
separate or interconnected suits. There is one single suit that
had been filed and that both the parties had approached the
Appellate Court against the findings recorded on certain issues.
The claim of the respondent-plaintiff
plaintiff was only with respect to
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setting aside the finding on issue No.1 and 88-C and was not
against the decree which was for injunction
injunction. The appeal filed
by the appellant-defendant,
appellant on the other hand, was also against
the decree. Still further, when the addition
additional issues were framed
p
pursuant to amendment of the plaint, the finding on the said
issues was returned in favour of the appellant
appellant-defendant
Municipal Committee, Jind and not in favour of the
respondent
respondent-plaintiff.
. There was thus no occasion for the
responde
respondent-plaintiff to impugn the findings that had been
re
returned in his favour. The decree has now been drawn in
proceedings arising out of the same civil suit and a common
judgment. All those findings as well as the decree are a subject
matter of challenge in the present appeal. Hence, the
respondent
respondent-plaintiff cannot be permitted to contend that he
would still have an enforceable decree in his favour even
though the same may not have been challenged by him before
this Court by regular second appeal.
(xiii) That the Courts have also failed to appreciate that the
land was undisputedly recorded as sham
shamilat deh in possession
of the Welfare College Nirman Committee. The burden lay on
the respondent-plaintiff
respondent to prove that the land was included in
any of the exclusion
exclusion clauses. The mere plea of having
purchased the land cannot be accepted to pass a valid title to
49 of 52
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the respondent-plaintiff
plaintiff holding him entitled to retain the land
in view of judgment of the Division Bench of this Court in the
matter of Ravinder Kumar and others Vs. State of Punjab
reported as 2012 (45) RCR (Civil) 27
(xiv) In the matter of acquisition of land, a Division Bench of
this Court in the case of Kashyap Goel and others Vs. State of
Punjab and others, reported as 2008 (58) RCR (Civil) 916
916,
has held that the limitation for challenging an acquisition
proceedings is three (03) years to be computed
computed, at best, from
the date when the award was passed. Even if a person is held to
be in continuing possession of the land, the same would not
give him any cause of action to challenge the acquisition
because the possession is deemed to have been taken by the
State under the Statute. The operative part of the judgment
reads as under:-
under:
"2. After hearing learned counsel we are of the
considered view that the cause of action which has
arisen to the petitioners in the year 1991/1992 or at
best on 24.2.1994 when the award was announced. The
petitioners could have challenged the aforementioned
action
ction of the respondent State within a period of three
years, which is the limit provided for filing suit, as has
been opined by a Constitution Bench of Hon'ble the
Supreme Court in the case of State of M.P. v. Bhailal
Bhai, AIR 1964 Supreme Court 1006. Th
The mere fact
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that the petitioners are continuing in possession would
also not give them cause of action because the
possession is deemed to have been taken by the
respondent State under Sections 16 and 17 of the Act
after the entries were made in the record
record, as has been
held by Hon'ble the Supreme Court in Balmokand
Khatri Educational and Industrial Trust v. State of
Punjab, (1996) 4 SCC 212.
212."
(xv) That the possession in law is deemed to be in the owner
and that in the absence of any iota of evidence to sh
show that the
vendors/predecessors were ostensible owners or they with the
consent, implied or express, of the owner made the alienation.
There is also no evidence with respect to the bona fide
intention by the respondent-plaintiff
respondent plaintiff prior to entering into an
agreement of sale or about the partition of the land having
taken place reflecting separate possession. Under the given
circumstances, this Court decline
declined to accept the plea of bona
fide purchaser in possession of the property in the matter of
Sheotaj and others Vs. Pahlad (deceased) represented by his
legal representatives and others, reported as 1988 (1) PLR
565.
(xvi) The law is well settled that what cannot be done directly
cannot also be done indirectly. A direct challenge to the
Scheme by the Town Improvement Trust or even the process of
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acquisition was clearly barred by limitation. Knowledge of
acquisition by the plaintiff,
pl way back in 1975 is duly
established.
(xvii) The College Welfare Nirman Samiti never disputed or
denied the receipt of the compensation for the land acquired
and it is not the case that the appellant is/was already in
possession of the actual area
area acquired.
22 The finding thus recorded on Issue Nos.1, 2 and 88-A are
accordingly set aside and reversed. The rest of the issues need not be gone
into at this stage as there was no pressing argument advanced.
23 In view of above, the present regular second appeal is allowed.
The judgments and decrees passed by both the Courts are set aside. The suit
of the respondent-plaintiff
respondent is accordingly dismissed.
24 Pending, misc. application(s), if any shall also stand(s)
disposed of accordingly.
August 02,, 2024.
202 (VINOD
VINOD S. BHARDWA
BHARDWAJ)
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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