Rajasthan High Court - Jodhpur
Bheru Das vs M/S Birla Corporation Ltd. And Anr on 11 July, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 118/2018
Bheru Das s/o Shri Gopal Das Bairagi, aged about 65 years, r/o
Nagri, Tehsil and District Chittorgarh.
----Appellant
Versus
1. Birla Corporation Ltd., Unit Birla Cement Works/Chanderia
Cement Works, through its General Manager, Birla Corporation
ltd, Chanderia, Chittorgarh.
2. The Mining Engineer, Mining Department, Chittorgarh.
----Respondents
For Appellant(s) : Mr. G.R.Punia Sr. Advocate with
Mr. Rajendra Prasad.
For Respondent(s) :
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 11/07/2018 This second appeal under Section 100 CPC is directed against the judgment dated 7/9/2016 passed by the Addl. District Judge NO.3, Chittorgarh, whereby, the appeal filed by the appellant Bheru Das against the judgment and decree dated 27/11/2013 passed by Civil Judge (Sr. Division), Chittorgarh has been rejected.
The plaintiff filed a suit for permanent and mandatory injunction against the respondents inter alia with the averments that the proceedings were initiated under Section 89 of the Rajasthan Land Revenue Act, 1956 ('the Act, 1956') for acquisition pertaining to land comprised in Araji No. 411 ad measuring 1.45 hectares as the land was required for mining. The Addl. Collector (2 of 6) [CSA-118/2018] (Land Acquisition) Chittorgarh in case no. 180/95 decided on 27/1/1999 granted permission and based on the settlement between the parties dated 15/12/1998, the order was passed. Based on the order dated 27/1/1999, the land came in possession of the plaintiff and the compensation determined by the Collector was paid to the respondents, the land in question was recorded in the name of plaintiff Company as mining area and safety zone. As the land was acquired for mining/non-agricultural purpose, the suit was filed before the civil court.
It was alleged that the defendants were attempting to unauthorizedly possess the land in question and, therefore, an appeal against the order dated 27/1/1999 has been filed by the defendants after 10 years before the Revenue Appellate Authority, which appeal has been rejected. The plaintiff wants to raise certain construction on the part of the land, wherein, the foundations were dug and stones etc. were collected when the defendant tried to interfere, for which FIR has been lodged. Based on the said submissions, a permanent injunction was sought against the defendants from interfering with the possession and construction work going on and in case any illegal construction is raised to demolish the same.
The appellant-defendant filed reply along with the counter claim inter alia claiming that the land in question does not fall in the mining area and that appeal is pending before the Board of Revenue; the agreement was entered into fraudulently and the land has never been in possession of the plaintiff, land has not been used for mining purpose/safety zone; the suit was not maintainable before the civil court. Cross FIR has also been lodged by the defendant and that the plaintiff wanted to forcibly take (3 of 6) [CSA-118/2018] possession of the land. The land is recorded in the name of mining department. In the counter claim, it was also claimed that defendants are in possession and, therefore, the plaintiff must not interfere in their possession.
Reply to the counter claim was filed inter alia indicating that proceeding under Section 89 of the Act was rightly initiated, based on the settlement, compensation was determined, which has been paid and accepted by the defendants and, therefore, there was no substance in the plea raised.
The trial court framed seven issues. On behalf of the plaintiff, two witnesses were examined and 08 documents were exhibited, on behalf of defendants three witnesses were examined and 01 document was exhibited. After hearing the parties, the trial court came to the conclusion that when it was proved on record that after acquisition the defendants have accepted the compensation regarding which material was available on record, the plea regarding possession is baseless and as the land is recorded in the name of plaintiff, the issues pertaining to possession and right to use was held in favour of the plaintiff. It was also held that the suit was triable by civil court, the land was being used by the plaintiff, as no criminal proceedings were initiated, there was no question of any fraud in the acquisition proceedings. Based on the above findings, it was concluded that defendants have no right in the land in question and they are attempting to take possession and consequently the suit was decreed and injunction as prayed for was granted.
Feeling aggrieved, the appellant filed appeal, which appeal was decided by judgment and decree dated 7/9/2016 passed by the Addl. District Judge No.3, Chittorgarh against which the (4 of 6) [CSA-118/2018] appellant filed S.B.Civil Second Appeal No. 208/2016. The said appeal came to be decided by judgment dated 30/8/2017, wherein, the appellate judgment dated 7/9/2016 was set aside and matter was remanded to the appellate court to decide the application under Order XLI Rule 27 CPC and the first appeal again.
Whereafter, the impugned judgment dated 3/1/2018 has been passed by the first appellate court. The first appellate court after hearing the parties, reiterated the findings recorded by the trial court and dismissed the appeal.
It is submitted by learned counsel for the appellant that both the courts below were not justified in decreeing the suit/dismissing the appeal inasmuch as the acquisition itself was not justified. Further submissions were made that the findings regarding possession of the plaintiff over the land in question is incorrect and, therefore, both the courts below were not justified in decreeing the suit/dismissing the appeal, therefore, the appeal deserves to be admitted on the proposed substantial questions of law indicated in the memo of appeal.
I have considered the submissions made by learned counsel for the appellant and have perused the material available on record.
A specific query was put to learned counsel for the appellant as to whether the land in question has been acquired based on the agreement between the parties under Section 89 of the Act, 1956 and whether the appellant has received the compensation as determined or not and once the compensation has been received by the appellant, what possible right he has in the land in question/to remain in possession of the land in question which (5 of 6) [CSA-118/2018] according to him is in his possession, though finding has been recorded against the appellant.
Learned counsel for the appellant submitted that rights in land were acquired for particular purpose for the plaintiff, however, same has not been put to use for which the same was acquired and the appellant continues to be in possession of the land in question and, therefore, he has right to continue to remain in possession. However, it was not denied that pursuant to the proceedings under Section 89 of the Act, the appellant has received compensation. Further submissions were made that challenge laid by the appellant to the acquisition proceedings is pending consideration before the Board of Revenue and, therefore, he could resist the suit.
As already noticed, both the courts have concurrently found that proceedings under Section 89 of the Act were initiated wherein award was passed pursuant to the settlement between the parties and compensation was received by the appellant and that the plaintiff company was in possession of the land in question. Once the two courts below have concurrently recorded finding of fact pertaining to possession of the land in question, against which finding learned counsel for the appellant has failed to indicate any perversity, the same does not call for any interference in the second appeal.
So far as the challenge laid by the appellant to the order of acquisition is concerned, which is stated to be pending before the Board of Revenue, in the said challenge the law would take its own course. However, so far as the present proceedings initiated by the respondent plaintiff are concerned, the same cannot be affected till such time the order of acquisition is varied by the competent (6 of 6) [CSA-118/2018] forum, who is expected to decide the matter in accordance with law.
In view of the above discussion, there is no substance in the second appeal, the same is, therefore, dismissed.
(ARUN BHANSALI),J baweja/75 Powered by TCPDF (www.tcpdf.org)