Unknown vs Executive
2021 Latest Caselaw 61 UK

SA No.3 of 2021
Hon'ble Sharad Kumar Sharma, J.

Mr. Abhijay Negi, Advocate for the appellant.

Mr. R.C. Arya, Standing Counsel and Mr. Gajendra Tripathi, Brief Holder for the State of Uttarakhand.

This is a plaintiff's second appeal, which is arising out of the concurrent judgment dated 10.11.2020, which has been rendered by the court of Additional District Judge, Rudrapur in Civil Appeal No.08 of 2020, Dhani Ram vs. Executive Engineer Public Works Department and others, which as a consequence thereto has affirmed the judgment which was rendered by the court of Civil Judge (Sr. Div.), Rudrapur, District Udham Singh Nagar in Original Suit No.09 of 2019, Dhani Ram vs. Executive Engineer Public Works Department and others.

The admitted case, which has emerged from the fact, which has been brought on record, before the courts below was that, the appellant admits the fact that he was running a wooden khokha having an area of 10 feet x 5 feet from where he was conducting a small business of selling "puja samagri". He admits the fact that he had been in possession of the property in question, according to his version; though he has no proof on record to establish the alleged possession, since 1986.

The ground agitated by the plaintiff/appellant, in the second appeal, are that apart from the appellant, who is in occupation of a public land, over which he has constructed his khokha, there are many other similarly placed vendors, who too have constructed their respective khokha but no action has been taken against them by the respondents. He further submitted that a sympathetic view may be taken by this Court for the reason being that the said khokha is the sole source of livelihood for himself and for his family.

After having heard the submission made by the learned counsel for the parties, I am of the view that merely because of the fact that the respondents have not taken any action for eviction from the land as against the other similarly placed unauthorized occupants, that may not grant a parity to the petitioner to defend his possession over the said land which admittedly, according to his case pleaded, belongs to the State and the appellant is not holding a title over it. Nor even the title was attempted to be proved by him in the proceedings before the court below. Furthermore, that possession over a public land by way of an adverse possession, has been deprecated by the judicial precedence laid down by the Hon'ble Apex Court in the judgment reported in (2013) 2 UD 381 Gurudwara Sahib vs. Gram Panchayat Village Sirthala & Another and (2012) 115 RD 349, State of Haryana vs. Mukesh Kumar and others, wherein, it has been observed that under the theory of eminent domain, the State is the owner and the occupant of each and every piece of land, which is vested in it and the State under normal circumstances is not expected to be always in a position to athwart, any and every act of encroachment, which is made by any public person without any authority because it is normally not expected that they would be available and present at the place of encroachment all times to come and that is why it has been appropriately termed as that an attempt to encroach upon a public land without any authority of law is nothing but, 'theft on a land'.

Once the Hon'ble Apex Court has held that an encroachment on a public land is a theft, of a public land; he appellant in that eventuality cannot be granted any protection under law to continue his possession over a land, which admittedly was proved that it belongs to the State Government.

Apart from it since the findings have been concluded on an appreciation of evidence and facts, which has been brought on record; it is a concurrent conclusion and finding of facts, hence, the second appeal is dismissed, as it entails no substantial question of law; which calls for consideration to be answered by the Second Appellate Court in exercise of its jurisdiction under Section 100 of C.P.C.

After having dismissed the second appeal for the aforesaid reasons, the counsel for the appellant contends that he may be granted a reasonable time to vacate the public premises, which has been occupied by him. He prays that he may be granted two months time to vacate the same. The said prayer is not being seriously opposed by the respondent State counsel, hence would stand granted. The appellant may remove his structure and hand over the vacant and peaceful possession, to the defendant/respondent within the aforesaid period; lest failing which thereafter it will be open for the decree holder to get the decree executed in accordance with law.

(Sharad Kumar Sharma, J.) 07.01.2021 Arti