Punjab-Haryana High Court
Punjab State & Another vs Gurdev Kaur on 17 April, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
RSA NO.1642 OF 2012 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA NO.1642 OF 2012 (O&M)
DATE OF DECISION: 17th April, 2012
Punjab State & another
... Appellants
Versus
Gurdev Kaur
.... Respondent
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
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PRESENT: Mr. Surinder Kapoor, Additional Advocate General, Punjab
for the appellants.
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L.N. MITTAL, J. (Oral)
CM No.4456-C of 2012 Allowed as prayed for CM No.4457-C of 2012 This is application by appellants under Section 151 of the Code of Civil Procedure (in short, CPC) for placing on record documents Annexures A-1 to A-4. However, it is not alleged in the application that these documents are part of the evidence in the courts below. Consequently these documents cannot be admitted in second appeal under Section 151 CPC. The application is completely misconceived and meritless and is accordingly dismissed. CM No.4458-C of 2012 This is application by appellants for condonation of delay of 923 days in filing the appeal. Grounds for seeking condonation of said delay as contained in paragraphs 2 to 5 of the application are reproduced hereunder:
"2. That the applicant/appellant could RSA NO.1642 OF 2012 (O&M) -2- not file the present appeal within limitation because of the reason that there is a lengthy process for obtaining the requisite sanction to file the appeal before this Hon'ble Court.
3. That the judgment in this case was passed on 4/6/09. Certified copy of the same has been applied on the same date and the same was issued on 15.06.09.
4. That the file of the case for obtaining the legal opinion/requisite sanction has been put up and the same has been declined on 11.8.09, with the remarks that the case is not fit for appeal. However, again keeping in view the seriousness of the matter involved, the case file was again put up for further legal opinion and the same approved on 5.3.12. Hence this appeal is being filed.
5. That the public property in this case is involved and there are solid and legal grounds existing in this case, whereby there are reasonable grounds to presume that the appeal may be accepted on merits."
I have heard counsel for the applicant-appellants and perused the case file.
Learned State counsel for appellant-applicants reiterated the aforesaid averments made in the application. However, even if the said averments are taken at face value, the same are not sufficient to condone the long delay of more than two and half years in filing the second appeal. There is no averment regarding the said delay which occurred since 11.08.2009, when the case was initially opined to be not fit for appeal, till 05.03.2012 when further legal opinion was sought and the case was approved for filing RSA NO.1642 OF 2012 (O&M) -3- appeal. The said period is the period of delay which has not been explained at all. It is not averred as to what steps were taken during that period. It is not even mentioned as to when process for seeking re-opinion regarding fitness of the case to file instant appeal was initiated. The application lacks all these details probably because there was no ground for seeking condonation of this long delay.
It has to be observed that the State authorities are taking the matter very lightly. They perhaps take the courts for granted because Courts show a little liberal attitude in such matters to protect public interest. However, it does not entitle the State authorities to behave in such a callous and negligent manner. If State authorities want to protect the alleged public property as mentioned in paragraph 5 of the application, they should have acted promptly and filed the appeal within limitation period. They would not have waited for more than two and half years.
No ground much less sufficient ground for condoning the long delay for more than two and half years in filing the appeal is made out from the averments in the application. The application is completely frivolous and meritless and deserves to be dismissed with exemplary cost so that the State authorities start functioning with some responsibility. Accordingly the application is dismissed with cost of Rs.10.000/- to be deposited with the Registry of this Court within one month from today failing which the case shall be listed for this purpose.
Copy of this order be sent to Chief Secretary to Punjab as well as Principal Secretary, Irrigation Department, Punjab who may like to institute an enquiry to fix responsibility for the aforesaid long delay in filing the appeal. RSA NO.1642 OF 2012 (O&M) -4- RSA No.1642 of 2012 Since delay in filing the appeal has not been condoned, the appeal is liable to dismissal as time barred. However, even on merits, the appeal cannot be accepted.
Defendants-Punjab State and District Collector having failed in both the Courts below have filed this second appeal.
Respondent-plaintiff Gurdev Kaur filed suit against defendants/appellants alleging that plaintiff is co-owner to the extent of half share in suit land measuring 4 kanals 4 marlas which has been encroached upon by the defendants. On demarcation, the said encroachment was found. Defendants have constructed rajwaha (water channel) through the suit land of the plaintiff. Defendants are in illegal possession of the suit land. Accordingly the plaintiff sought possession of the suit land or in the alternative, mandatory injunction directing the defendants to pay compensation for the suit land.
Defendants contested the suit by pleading that the disputed rajwaha is in existence for about 100 years since before consolidation of holdings. It was brick paved in the year 1984. Demarcation report has been obtained by plaintiff in connivance with officials of revenue department. No land of the plaintiff has been used in the rajwaha. Various other pleas were also raised.
Learned Additional Civil Judge (Senior Division), Mansa vide judgment and decree dated 17.02.2009 decreed the plaintiff's suit for mandatory injunction directing the defendants to pay compensation to the plaintiff by acquiring the suit land measuring 4 kanals 4 marlas under the RSA NO.1642 OF 2012 (O&M) -5- provisions of the Land Acquisition Act, failing which the plaintiff shall be entitled to take possession of the suit land in accordance with law. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Mansa vide judgment and decree dated 04.06.2009 except that decree of trial Court for mandatory injunction to pay compensation of the suit land to the plaintiff has been set aside and the suit has been decreed for possession of the suit land. Feeling aggrieved, defendants have filed this second appeal.
I have heard learned counsel for the appellants and perused the case file.
From jamabandi of the suit land, it is proved that plaintiff is co- owner to the extent of half share in suit land and other land total measuring 13 Kanals 5 Marlas. Mutation regarding the same has also been sanctioned in favour of the plaintiff. Aforesaid jamabandi and mutation have been produced in evidence.
The plaintiff also examined Dalip Singh, Kanungo PW-3 who proved demarcation report Exhibit P-3 and Naksha Tawafat Exhibit P-4/A prepared by him on the basis of demarcation conducted by him at the spot. From the demarcation report coupled with Naksha Tawafat, it is proved that defendants have encroached upon 4 kanals 4 marlas land of the plaintiff. There is practically no rebuttal to this credible evidence led by the plaintiff. Defendants have not rebutted the aforesaid demarcation report in any manner. Defendants have also not claimed ownership over the suit land nor claimed adverse possession thereon. Defendants' claim is that no part of plaintiff's land is underneath the disputed rajwaha. However, plaintiff by way of demarcation report and Naksha Tawafat has duly proved that suit land measuring 4 kanals 4 RSA NO.1642 OF 2012 (O&M) -6- marlas has been encroached upon by the defendants underneath the disputed rajwaha.
Counsel for the appellants contended that the disputed rajwaha is running at the spot for more than 100 years and it was also brick paved in the year 1984. However, this contention does not help the appellants/defendants in any manner. As noticed hereinbefore, the defendants have not even claimed their adverse possession over the suit land. On the other hand, plaintiff is owner (cosharer) of the suit land. Consequently on the basis of title, the plaintiff is entitled to possession of the suit land. Defendants are in illegal and unauthorized possession thereof. It may also be added that the defendants have also miserably failed to prove that the disputed rajwaha is running at the spot for 100 years or that the same was brick paved in the year 1984. In this regard, defendants have examined Balvir Singh DW-1. He admitted in his cross-examination that Punjab State or Irrigation Department has no concern with the suit land. He also admitted that the department has no right to dig rajwaha in the suit land belonging to the plaintiff. He also stated that he was not even present when the disputed rajwaha was brick paved. Consequently he had no personal knowledge that it was brick paved in the year 1984. Moreover the defendants must be having relevant record of the expenses incurred on brick paving the rajwaha, but defendants have failed to produce any such record. Consequently, strong adverse presumption arises against the defendants for withholding the available material evidence. Balvir Singh admitted that no demarcation was got done when the rajwaha was brick paved nor they have got any demarcation conducted even till now. He also admitted that suit land has not been acquired by the State nor any compensation for the RSA NO.1642 OF 2012 (O&M) -7- same has been paid to the plaintiff. Thus the testimony of Balvir Singh DW-1 does not substantiate the version of the defendants that the disputed rajwaha is running for 100 years or that it was brick paved in the year 1984.
Defendants have also examined Nirmal Singh, Canal Patwari DW-2. He proved site plan Exhibit DA. However, he stated that he prepared the said site plan on the basis of Aks Latha and not on the basis of demarcation on the spot. He did not even inspect the said spot while preparing the said site plan. Consequently the said site plan does not carry any probative value.
For the reasons aforesaid, it is evident that defendants are in illegal possession of the suit land belonging to the plaintiff. Consequently, plaintiff's suit for possession of the suit land has been rightly decreed. There is no infirmity, much less perversity or illegality in the judgments and decrees of the courts below to this effect. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is completely frivolous and meritless. The defendants want to perpetuate their unauthorized possession on the suit land belonging to the plaintiff. Accordingly the appeal is dismissed in limine.
(L. N. MITTAL) 17.04.2012 JUDGE 'raj'