Punjab-Haryana High Court
Ved Pal And Others vs Haryana Urban Development Authority ... on 9 February, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.3668 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3668 of 2011 (O&M)
Date of Decision: February 09, 2012
Ved Pal and others .......Appellants
Versus
Haryana Urban Development Authority and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.Amit Prashar, Advocate for the appellants.
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TEJINDER SINGH DHINDSA, J.
CM No.10363-C of 2011 This is an application seeking condonation of delay of 25 days in re- filing the present second appeal. The application is duly supported by an affidavit of Krishan Kant, Clerk to the learned counsel for the appellants.
2. In view of the averments made in paragraphs 2, 3 and 4 of the application, sufficient cause has been shown for condonation of delay of 25 days in re-filing the appeal. Delay condoned.
3. CM disposed of.
RSA No.3668 of 2011
4. The plaintiff-appellants are in second appeal before this Court.
5. Briefly stated, the plaintiffs filed a suit seeking a decree of declaration to the effect that the show cause notices under Section 18(1) of the Haryana Urban Development Authority Act, 1977 (hereinafter to be RSA No.3668 of 2011 (O&M) 2 referred as 'the Act') issued by defendant No.1 in respect of their houses were null and void and not binding upon them. Further prayer in the suit was for the defendants to be permanently restrained from interfering in the peaceful possession of the plaintiffs over the suit property as well as from demolishing the same and dispossessing them from the suit property, situated at Gali No.4, Shiv Colony, Tigaon Road, Ballabgargh, District Faridabad. It was pleaded that the plaintiffs were the owners in possession of their respective residential houses for the last 30-40 years and the area of each house was 200 sq.yards approximately. The plaintiffs were stated to be having ration cards, electricity connection, voter cards etc. in their names. On such basis, it was pleaded that they were in adverse possession of their respective houses. Defendants No.2 and 3 had even sanctioned the water-connections to the plaintiffs. Defendant No.1-HUDA was stated to be acting in collusion with defendants No.2 and 3 to have issued the show cause notices under Section 18(1) of the Act whereby they have been called upon to produce the proof of ownership/title of the land in question. It was against such actual backdrop that the suit had been instituted.
6. Defendant No.1-HUDA filed a written statement stating therein that the land in question along with land of village Sihi was acquired by the State of Haryana for purposes of development of Sector 3, Faridabad, vide award No.9 dated 30.11.1981. The award was duly announced by the Land Acquisition Collector and as such, the ownership of the land in question was transferred in the name of HUDA and the requisite entry was recorded in the rapat roznamcha of the Halqa Patwari, vide rapat No.137-186-187 dated 8.1.1982 and since that date, HUDA is the owner of such acquired land. It was also averred that the documents relied upon by the plaintiffs are RSA No.3668 of 2011 (O&M) 3 not proof of ownership and as such, proceedings in accordance with law against unauthorized occupation under Section 18 of the Act having been initiated. It was also averred that the acquisition process had been initiated in the year 1979 and notices have been issued to the original owners under Sections 4,6 and 9 of the Act. The plaintiffs were not the owners of the suit property at the time of acquisition of the land in question and as such, the suit warranted dismissal.
7. Defendants No.2 and 3 filed a separate written statement wherein also the fact and claim of the plaintiffs to be owners in possession of their residential houses of 200 sq.yards each was denied. A stand was taken that the plaintiffs are encroachers over HUDA land and mere possession of ration cards/electricity connection/voter cards would not vest in them a right to claim ownership of the suit property.
8. On the pleadings of the parties, the following issues were framed by the trial Court:
"1. Whether the notices issued by the defendants under HUDA Act are illegal, null and void?OPP
2. Whether the plaintiffs are entitled for decree of permanent injunction, as prayed for?OPP
3. Whether this court has no jurisdiction to entertain and try the present suit?OPD
4. Whether the suit is not maintainable in the present form?OPD
5. Whether this suit is bad for non-joinder and mis-joinder of necessary parties?OPD
6. Relief.
9. Upon having heard respective counsel for the parties, the suit filed by the plaintiffs was dismissed. The plaintiff-appellants preferred a RSA No.3668 of 2011 (O&M) 4 civil appeal and vide impugned judgment dated 28.2.2011, the Additional District Judge, Faridabad had affirmed the findings of the trial Court and dismissed the appeal.
10. I have heard Mr.Amit Prashar, Advocate for the appellants at length.
11. I find that the present second appeal is wholly devoid of merit for the reasons recorded here-in-below.
12. The possession of the plaintiff-appellants is not a matter of dispute. It is on account of unauthorized occupation of HUDA land that the notices under Section 18(1) of the Act for their eviction on suit property had been issued. The plea of adverse possession set up by the plaintiffs is also wholly mis-conceived. A suit filed for declaration of ownership on the basis of adverse possession would not be maintainable as it is a plea available only as a plea of defence to the defendant. Continued and long possession of a property does not necessarily translate into adverse possession. Possession of property without intent to hold adverse to the title of the true owner would, in itself, negate the plea of adverse possession. There has to be categoric and clear pleadings to establish the ingredients regarding adverse possession. The cogent evidence would have to be led by the person who claims adverse possession so as to demonstrate the date of his coming into possession, nature of possession, the factum of possession being known to the other party and further the possession basing open and undisturbed. Both the Courts below have held that there had been no pleadings at the hands of the plaintiffs to such effect and neither has any evidence been led to show the nature of possession and to assert their right in the suit property in absolute terms hostile to HUDA RSA No.3668 of 2011 (O&M) 5 who, admittedly, is the true owner. It has been noticed that no sale-deed or any other document regarding ownership of the suit land was placed on record. The only assertion that came forth from the plaintiffs was that they have been put in possession by the Sarpanch of the village, namely, Balbir Singh being poor persons. As such, on the basis of due appreciation of evidence and on cogent and valid reasoning, the Courts below have held the plaintiff-appellants to be not entitled to the relief of declaration. The plea of adverse possession was also negatived as the Courts below had noticed that the plaintiff-appellants had failed to prove open and hostile possession of the suit property as opposed to the true owner i.e. HUDA. I find no infirmity in such findings.
13. It may be true that even a trespasser who has been in long possession of certain land of property may be entitled to the protection by way of injunction subject to the possession being taken only by due process of law, but in the facts of the present case, defendant-respondents had issued notices for unauthorized occupation and eviction as prescribed under law. The plaintiff-appellants would clearly not be entitled to a relief of injunction against the true owner i.e. HUDA who had sought to recover possession of the suit property in terms of having initiated and taken recourse by issuing notices under Section 18(1) of the Act. Suffice it to notice, that the relief as claimed by the plaintiff-appellants, if granted, would clearly result in the negation of the acquisition proceedings itself which had culminated in the passing of the award by the Land Acquisition Collector in relation to the suit property in the year 1981 itself.
14. Learned counsel appearing for the appellants has not been able to show any perversity in the findings recorded by the Courts below. RSA No.3668 of 2011 (O&M) 6
15. No question of law, much less a substantial question of law, arises for determination in the present second appeal.
16. The present appeal must fail and is, accordingly, dismissed.
17. Appeal dismissed.
( TEJINDER SINGH DHINDSA )
FEBRUARY 09, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No