Allahabad High Court
Uttar Pradesh Avas Evam Vikas Parishad ... vs Sirajuddin And Others on 9 September, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:163158 Court No. - 5 Reserved A.F.R. Case :- SECOND APPEAL No. - 946 of 2010 Appellant :- Uttar Pradesh Avas Evam Vikas Parishad Thru Hou.Comm. And Anr Respondent :- Sirajuddin And Others Counsel for Appellant :- A.P. Srivastava, Chandra Shekhar Singh Counsel for Respondent :- A.K. Sharma,Anil Sharma,D.S. Bohra Hon'ble J.J. Munir,J.
1. This is a defendants' second appeal arising out of a suit for permanent prohibitory injunction.
2. Original Suit No.866 of 2005 was instituted in the Court of the City Munsif, Meerut by the five plaintiff-respondents to this appeal, praying that a decree of permanent injunction be passed against the defendants, to wit, the U.P. Avas Evam Vikas Parishad, Lucknow and the Assistant Housing Commissioner of the Parishad aforesaid to the effect that the defendants be restrained from interfering in the rights and possession of the plaintiffs, demolishing their standing constructions or interfering with the construction work carried on by the plaintiffs on the land in dispute, the full particulars whereof are given at the foot of the plaint. The property, subject matter of the said suit, was shown to be 5000 square yards of land of Khasra No.5751, part of Khewat Nos.1 and 15, situate at Victoria Park, Dhobi Ghat, Meerut City (for short, 'the suit property'), with boundaries detailed. Plaintiff-respondent No.1, Sirajuddin son of Sheikh Fariduddin, claimed himself to be the owner and landlord of the suit property. Plaintiff-respondent Nos.2 to 5, to wit, Maharaj Singh, Ashok Kumar, Shripal Singh and Ashok Kumar Sharma, claimed possession over the suit property as tenants of plaintiff No.1, Sirajuddin. Plaintiff-respondent Nos.2 to 5 pleaded that they were carrying the business of a dairy in the suit property and there was no dispute between Sirajuddin, the owner and landlord on one hand and plaintiff-respondent Nos.2 to 5, tenants on the other. The plaintiff-respondents shall together be referred to as 'the plaintiffs' hereinafter. In the event of reference to some of them, the reference would be by their number in the array or other individual reference.
3. Plaintiff Nos.2 to 5 say that they are in possession since the year 1972 and have earned goodwill for their business. Plaintiff No.1, therefore, agreed to transfer the suit property in favour of plaintiff Nos.2 to 5, executing a registered agreement to sell dated 11.04.1990 in their favour for a total sale consideration of Rs.5,00,000/-. Plaintiff Nos.2 to 5 paid the first plaintiff in earnest a sum of Rs.4,70,000/-. It is averred that plaintiff Nos.2 to 5, being in possession of the suit property prior to execution of the agreement to sell, plaintiff No.1, in part performance of the contract, delivered possession to plaintiff Nos.2 to 5. The defendants have no interest whatsoever in the suit property. On the other hand, plaintiff Nos.2 to 5 are tethering their cows and buffaloes and carrying on business. The defendants have never acquired or purchased the suit property. It was also pleaded by the plaintiffs that the total area of Khasra No.5751 was 29 bigha 13 biswa (pucca), of which in Khewat Nos.1 and 15 Mahal 3+7 - 1/2 and 13+2 - 1/2, 13 bigha 8 biswa was part of the Khewat of the zamindars. Two biswa land of Khasra No.5751 was part of other Khewat, belonging to other zamindars and 16 bigha 5 biswa was mafi davam mahal.
4. A sale deed was executed on 04.07.1949 by Wahiuddin in favour of Smt. Bhuria, conveying 2 bigha land out of Khasra No.5751, located towards the northern side of the said plot. The land, which was purchased by Smt. Bhuria on northern side of the Khasra was located near the road. After Bhuria's demise, her son Allah Mehar inherited the said land. This land came to be known as Dhobi Ghat and is part of the land acquired out of Khasra No.5751, the total acquisition out of the said plot, being an area of 12 bigha 5 biswa.
5. It is also the plaintiffs' case that though acquired, possession of land purchased by Smt. Bhuria, known as Dhobi Ghat, was not taken by the defendants. Instead, they are asserting claim to 2 bigha land towards south of the part of Khasra No.5751, belonging to Smt. Bhuria and after her, her son, Allah Mehar. The suit property is situate to the south of the part of Khasra No.5751, that has not been acquired. The further case of the plaintiffs is that they were not issued any notice by the defendants to take possession. The plaintiffs say that they have not encroached any land of the defendants. The defendants do not own the suit property, but their employees threatened to take forcible possession and forcibly demolished the plaintiffs' construction. It is also pleaded that in the month of February, 1990, the defendants held out threats again, compelling the plaintiffs to serve a notice under Section 88(2) of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for short, 'the Act of 1965') upon the defendants on 23.02.1990. The defendants received the notice, but did not answer.
6. The defendants filed a written statement, contesting the plaintiffs' case. They say that plaintiff No.1 is neither owner in possession of the suit property nor plaintiff Nos.2 to 5 tenants in possession. The plaintiffs, thus, have neither title nor possession. The suit property is there on papers, but not on the spot. The description is vague and elusive. The suit property is not identifiable. The boundaries given in the plaint are fictitious. The suit property does not exist in the vicinity of the acquired land of Khasra No.5751. The defendants say that some land of Khasra No.5751 was acquired by the State Government under Section 36 of the U.P. Town Improvement Act, 1919 and by subsequent notifications under Section 32 of the Act of 1965. A notification was in the last issued under Section 17 of the Act of 1965 in October, 1972. Possession and ownership of the land acquired out of Khasra No.5751 was taken by the defendants on 13.11.1972. Since then, they are in possession of the suit property as its absolute owner. The total area acquired out of Khasra No.5751 is 14 bigha 16 bishwa and 6 biswansi. The boundaries of the acquired part of Khasra No.5751 have been pleaded by the defendants to rebut the plaintiffs' case. The defendants say that part of the land, belonging to Allah Mehar, was acquired, but possession of the acquired land in its entirety was not delivered to the defendants at the time of acquisition, including the part belonging to Allah Mehar as it houses abadi. The acquired part of Khasra No.5751 has encroachers, against whom cases are pending in various Courts. In paragraph No.19 of the written statement, it is admitted that a total area of 11 bigha 19 bishwa 12 biswansi alone out of Khasra No.5751 was taken possession of by the defendants. It is pleaded in paragraph No.20 of the written statement, amongst others, that construction work is going on over an area 11-19-12 of land aforesaid for Scheme No.1, Mangal Pandey Nagar, but according to the layout plan, no area out of land comprised in Khewat Nos.1 and 15 is included. It is said, therefore, that the plaintiffs would have no cause of action, because the suit property is part of Khasra No.5751, located in Khewat Nos.1 and 15. There were other pleas raised regarding bar of the suit under the law.
7. The Trial Court, on the pleadings of parties, framed the following issues (translated into English from Hindi):
"1. Whether plaintiff No.1 is the sole owner of the property in dispute, comprising Khewat Nos.1 and 15, Khasra No.5751, the details of which are given at the foot of the plaint?
2. Whether plaintiff Nos.2 to 5 are in possession of the property in dispute with the consent of plaintiff No.1 since the year 1972 and their possession is protected by Section 53A of the Transfer of Property Act?
3. Whether the suit is barred by res judicata, as pleaded in paragraph No.24 of the written statement?
4. Whether the land in dispute is part of the acquired land, as pleaded in the written statement?
5. Whether the suit is barred by Section 88(2) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965?
6. Whether the plaint is fit to be rejected under Order VII Rule 11 CPC, as pleaded in paragraph No.29 of the written statement?
7. Whether the suit is barred by Section 38/41 of the Specific Relief Act?
8. Whether the suit is bad for non-joinder of necessary parties?
9. Whether the defendants are entitled to the award of special cost?
10. Relief?
11. Whether the description of the property in dispute is incomplete, misleading and ambiguous, and the land is not identifiable on the spot? If yes, its effect?"
8. The plaintiffs filed substantial documentary evidence and examined two witnesses, PW-1 Maharaj Singh and PW-2 Daya Shankar Pandey, whereas the defendants also led documentary evidence and examined a solitary witness, DW-1 Umesh Mohan Sharma. The details of the evidence, that was there before the Trial Court, is listed in the learned Trial Judge's judgment.
9. Issues Nos.1 and 2 were answered against the plaintiffs and in favour of the defendants. Issue No.3 was answered for the plaintiffs. Issue No.4 was also answered for the plaintiffs. Issue No.5, likewise, was answered for the plaintiffs. Issue No.11 was decided against the plaintiffs and in favour of the defendants. Issue No.6 for the defendants, holding that since Issues Nos.1 and 2 had been decided against the plaintiffs, the plaint was fit to be rejected. Issue Nos.7 and 8 were not pressed by the defendants. Issue No.9 was answered for the plaintiffs as the defendants did not press much for special costs. Issue No.10 was answered against the plaintiffs, holding that no injunction can be issued against the true owner and that the suit was not filed by the true owner. The Trial Court, accordingly, dismissed the suit with costs vide judgment and decree dated 01.10.2009.
10. The plaintiffs, aggrieved by the Trial Court's decree, appealed to the learned District Judge, Meerut. The plaintiffs' appeal was numbered as Appeal No.130 of 2009 and assigned to the Special Judge (E.C. Act)/ Additional District Judge, Meerut. The learned Additional District Judge, before whom the appeal came up for determination, vide judgment and decree dated 02.06.2010 allowed the same, reversed the Trial Court and decreed the suit perpetually restraining the defendants from interfering with the plaintiffs' possession in the suit property.
11. Aggrieved, this appeal has been preferred by the defendants under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code').
12. The appeal was admitted on the following substantial question of law:
Whether the finding of the courts below that the land in dispute has not been acquired by the U.P. Avas Evam Vikas Parishad in exercise of power under Section 28 read with section 32 of the U.P. Avas Evam Vikas Adhiniyam is perverse?
The aforesaid question was not numbered.
13. Later on, on 07.08.2019, two other substantial questions of law were formulated and numbered. These read:
(1) Whether, in absence of any categorical finding with regard to ownership of the plaintiffs over the suit property and with regard to identity of the land in dispute, the lower appellate court was justified in decreeing the suit?
(2) Whether, the lower appellate court was justified in placing the onus on the defendants-appellant of proving their right over the property in dispute?
14. After the hearing had proceeded substantially on 28.02.2024, 29.02.2024, 01.03.2024, 04.03.2024, 05.03.2024, 07.03.2024 and 11.03.2024, on 12th of March, 2024, this Court thought it imperative to frame a further substantial question of law, to which the parties agreed. Accordingly, following substantial question of law, marked as '(iii)' was formulated. It reads:
Whether the issue being if part of Khasra No. 5751 i.e. the suit property is located in Khewat Nos. 1 and 15 or Khewat No. 445, it was imperative for the Court to issue a Survey Commission or adopt the Total Station Method in order to locate the suit property?
15. This appeal was heard on 28.02.2024, and, thereafter, across a number of dates until 14.03.2024, when judgment was reserved.
16. The learned Counsel for the parties mostly addressed the Court on Substantial Question of Law Nos.1, 2 and (iii). Upon considering the submissions of parties on Substantial Question of Law No. (iii), the way these were addressed, this Court thought that the question was formulated on slightly different terms than those involved, which required clarification and perhaps re-formulation, on which the parties had to be heard again. Accordingly, the appeal was posted for further hearing on 06.09.2024. On the said day, learned Counsel for the parties were apprised about the terms of Substantial Question of Law No. (iii) formulated on 12.03.2024 and seeking clarification about their submissions advanced earlier. The learned Counsel appearing for both parties agreed that given their submissions on the substantial question under reference, it was required to be re-formulated. Accordingly, Substantial Question of Law No.(iii), framed on 12.03.2024, was reformulated on 06.09.2024 in the following terms:
(iii) Whether the issue being if the suit property is located in Khasra Nos. 5751/1, 5751/2, 5751/3, 5751/4, 5751/6, 5751/7, 5751/8, 5751/9, 5751/10, 5751/11 and 5751/12 or a part of these plots (unacquired) or Khasra No.5751/5 (acquired), all part of Khewat Nos. 1 and 15, it was imperative for the Court to issue a Survey Commission or adopt the Total Station Method?
17. Heard Mr. Ramesh Upadhyaya, learned Senior Advocate assisted by Mr. Rajan Upadhyay, learned Counsel for the defendants in support of this appeal, Mr. R.C. Singh, learned Senior Advocate assisted by Mr. Dheeraj Singh Bohra, learned Counsel appearing for the plaintiffs.
18. It was urged on behalf of the defendants on the substantial question of law formulated on 10.07.2019 that the finding by the Lower Appellate Court in reversal of the Trial Court to the effect that the suit property had not been acquired by the defendants is perverse. On the other hand, it is urged for the plaintiffs that the finding about non-acquisition of the suit property recorded by the Lower Appellate Court is based on a thorough appreciation of the documentary and oral evidence on record. It is a very plausible finding and one of fact, which ought not be disturbed. This question would be dealt with later in this judgment.
19. Substantial Question of Law No.1 may first be answered. This question has two parts to it. The first is if in the absence of any categorical finding with regard to the plaintiffs' ownership of the suit property, the suit could be decreed and the other is if it could be decreed, without a categorical finding with regard to identity of the land in dispute. A perusal of the findings recorded by the Lower Appellate Court shows that it is not all the plaintiffs, who claim ownership of the suit property. Ownership is claimed by plaintiff No.1, Sirajuddin alone, whereas plaintiff Nos.2 to 5 claimed to be his tenants and doing business in the suit property i.e. part of Khasra No.5751 on the southern side of this large minjumla number, part of Khewat Nos.1 and 15. Khasra No.5751M has been noticed to be a very large plot, spread across different Khewat, including Khewat Nos.1 and 15. On the question of ownership, the Lower Appellate Court has recorded a finding in favour of plaintiff No.1 by relying upon the award, where it is mentioned that Sheikh Shafiuddin has claimed to be the tenure-holder of land of Khewat No.15, Mahal 13+2 - 1/2 to the extent of 5-4-0 and Khewat No.1, Mahal 3+7 - 1/2, admeasuring 3-14-0, which is in his possession.
20. It is also noticed by the Lower Appellate Court from the award that Shafiuddin's father was Sheikh Rafiuddin, who died in the year 1968. The award also mentions the fact that 2-0-0 of land had been sold to Allah Mehar. In fact, it had been sold to Allah Mehar's mother, Smt. Bhuria by an ancestor of Shafiuddin, one Wahiuddin. The further finding recorded based on the award by the learned Additional District Judge is that the land of Khasra No.5751, in the southern part of it, does not belong to Allah Mehar, as would be evident from a perusal of the sale deed executed in favour of Smt. Bhuria (Allah Mehar's mother). The remainder of land in Khasra Nos.5751/1, 5751/2, 5751/3, 5751/4, 5751/6, 5751/7, 5751/8, 5751/9, 5751/10, 5751/11, 5751/12 has not been acquired.
21. It has also been held by the learned District Judge, on the basis of the findings in the Special Land Acquisition Officer's award, that land of Khewat No.445, part of Khata Nos.398 and 411, but comprising Khasra No.5751, admeasuring 12-16-6 is nazul and land of Khasra No.5751/5, 2-0-0 has been acquired for the Scheme. The further finding is that apart from 2-0-0 of land, comprised in this Khasra, part of Khewat Nos.1 and 15, no other part has been acquired. The learned Lower Appellate Court has, therefore, recorded a finding that leaving aside nazul land in Khasra No.5751 and the area of 2-0-0, the rest of the land would be owned according to the record of ownership in the Khewat.
22. This Court must remark that in determining the question of ownership on the state of pleadings of parties, the question is always to be determined inter partes, relative to their pleaded case and the evidence produced. The case of plaintiff No.1 is one based on inheritance, pitted against that of the defendants, who claim on the basis of acquisition. No doubt, the Lower Appellate Court has not investigated the entire derivation of title by plaintiff No.1 from the last recorded and admitted owner or zamindar Sheikh Wahiuddin down to plaintiff No.1, precisely determining his share according to the pedigree, but that would not be the requirement of the law in a suit for injunction of the present kind. The findings in the award, on which the Lower Appellate Court has relied, clearly point to the fact that the Special Land Acquisition Officer has held that in Khasra No.5751, part of Khewat Nos.1 and 15, all that has been acquired is an area of 2-0-0, the land transferred by Sheikh Wahiuddin to Mst. Bhuria, and, subsequently, inherited by Allah Mehar, her son. The Lower Appellate Court has, therefore, held that the other land in Khasra No.5751 would belong to the owners as recorded in the Khewat. Amongst them, it is not disputed that plaintiff No.1 is there. In this suit for injunction against a defendant, who does not himself claim title to a particular plot of land beyond a certain area of it, which the plaintiff does not claim, the Lower Appellate Court has recorded a finding as to ownership of plaintiff No.1, sufficient to support the decree for injunction. It has also been opined by the Lower Appellate Court, on the basis of consideration of relevant evidence, that plaintiff Nos.2 to 5 are in possession of the suit property with permission of plaintiff No.1, and further, that their possession is protected by Section 53-A of the Transfer of Property Act.
23. As to the other part of the question regarding decreeing the suit without the Court recording a categorical finding as to identity of the suit property, this Court notices that the Lower Appellate Court has determined the identity of the suit property by looking into the award, where the case of parties is categorical that except for an area admeasuring 2-0-0 of land, comprising Khasra No.5751/5, transferred to Mst. Bhuria through a sale deed by Wahiuddin (later on inherited by Allah Mehar), no other part of Khasra No.5751, lying in Khewat Nos.1 and 15, was acquired by the defendants. Now, to determine the identity of the suit property, the Lower Appellate Court has looked into two maps, produced in evidence by the defendants, one bearing paper No.20-Ga and the other bearing paper No.21-Ga. The Court has found material discrepancies between these two maps and analyzed it well. The Lower Appellate Court has remarked that the two maps are contrary to the acquisition proceedings. A lay out plan, bearing paper No.93-Ga has also been considered by the Lower Appellate Court, which shows the total area of acquired land in Khasra No.5751M to be 3.9550 hectares that works out to 16-0-0. Out of this, an area of 1740 square meters, which is shown as abadi, reducing the acquired area to 15-0-0, has been noticed. The lay out plan of the acquired land has been meticulously analyzed with reference to the other maps produced by the defendants to reach a conclusion that the land of the Dhobi Ghat, which is admittedly acquired, is not shown in the lay out plan and the area thereof, admeasuring 2-0-0, is admitted to be made good from land in Khasra No.5751 to the south, which is unacquired land. It is also observed that admittedly, according to the defendants, they are in possession of an area 12-0-0 of land, apparently out of Khasra No.5751, but in the lay out plan, they have surprisingly shown an area of 15-0-0 in the said Khasra number. There is then a stinging comment by the Lower Appellate Court that the defendants with a dishonest intention have drawn up the lay out in order to claim unacquired land from the southern part of the Khasra, which they have lost to the extent of 2-0-0, despite acquisition, comprising the Dhobi Ghat, of which they could not take possession.
24. In the face of these findings, apart from the question whether the suit property is accurately identified or something more was required to be done to identify it with greater precision, it cannot be said that the Lower Appellate Court has decreed the suit without recording a finding regarding the identity of the suit property.
25. Substantial Question of Law No.1 is, therefore, answered in the terms that it cannot be said that there is absence of findings with regarding to ownership of the plaintiffs over the suit property or as to identity of the same, though the identity is required to be established with greater precision.
26. We may now turn to answer the substantial question of law last formulated, that is to say, Question No. (iii) as re-formulated. In support of the appeal, it is urged on behalf of the defendants that looking to the findings recorded by the Lower Appellate Court, all that can be said is that Khasra No.5751 is a very large plot, spread across different Khewat. The land of Khasra No.5751, that is part of Khewat Nos.1 and 15, has not been acquired except some area, but parts of the said Khasra number, that lie in other Khewat numbers, have been substantially acquired. The defendants would submit that the suit property's location has not been identified with reference to the Khasra number, where it is situate. This militates against the principle that if there is a doubt with reference to the plot number, where the suit property is situate, it is imperative for the Court to issue a survey commission and determine the precise location.
27. The plaintiffs rely on the very elaborate findings of the Lower Appellate Court to hold that the suit property is not at all a part of the acquired land, particularly those findings that tend to show the first plaintiff's land, part of Khasra No.5751, lying in Khewat Nos.1 and 15 was never acquired. This Court finds that the Lower Appellate Court has remarked that after the issue of notification under Section 6 of the Land Acquisition Act, which here would mean the notification issued under Section 32 of the Act of 1965 read with Section 6 of the Land Acquisition Act and before possession is taken, the Collector under Section 8 of the last mentioned Act has to demarcate the land acquired and get the same measured. If a map of the acquired land has not already been drawn up, the Collector has to get that map done. The Lower Appellate Court has said and very pertinently that despite the map or plan, as it is called under Section 8 of the Land Acquisition Act, being demanded by the Court, it was not produced. Obviously, the Court must have asked the defendants to produce the map, because they are the acquiring body, who are in touch with the Collector and the Land Acquisition Officer. The absence of the map or a plan of the land acquired, at the stage of Section 8 proceedings, has left matters about the precise identity of the acquired land and a fortiori the location of the suit property, within or without the said land in the realm of doubt.
28. The Lower Appellate Court has recorded facts, relying extensively on the award made by the Land Acquisition Officer, to the effect that the proposal to acquire the land for the defendants involved a total of 71-14-6, of which 55-16-0 was ZA land and the balance 14-16-6 was non-ZA area. The award has been extensively scrutinized by the Lower Appellate Court to remark that so far as Khasra No.5751 is concerned, there was a demand for compensation, as regards 2-0-0 area of land acquired, put forward by Allah Mehar. It is noticed that out of the acquired land in Khasra No.5751, 0-11-6 has been noticed to be banjar belonging to Class 14(3). An area of 12-5-0 in Khasra No.5751, was claimed by Bhabhuti and Bulakidas on the basis of their possession, with the entries of a well and a pucca construction. The award found it to be nazul, entrusted to the Management of the City Board, Meerut. Bhabhuti and Bulakidas were recorded in Class 10 as non-occupancy tenants. The land was utter nazul. There is then a finding with reference to the various subdivisions of Khasra No.5751, commencing 5751/1, 5751/2, 5751/3, 5751/4, 5751/6, 5751/7, 5751/8, 5751/9, 5751/10, 5751/11, 5751/12, belonging to different landholders and the fact that these landholders came up with objections claiming compensation, but the Land Acquisition Officer held that all these plots of land were not acquired.
29. There is a specific finding by the Lower Appellate Court, on the basis of the findings of the Land Acquisition Officer, that the Avas Vikas Parishad had acquired land of Khasra No.5751, that was part of Khewat No.445, Khata Nos.398 and 411, admeasuring 12-16-6 and Khasra No.5751/5, admeasuring 2-0-0. It is also remarked that the land, admeasuring 2-0-0 belongs to Allah Mehar. The further finding is that a perusal of the award shows that the fact is admitted that in Khewat Nos.1 and 15, the only land acquired is an area of 2-0-0 and no other land from this Khewat has been acquired.
30. Now, before this Court also, it is not seriously in issue at the instance of the defendants that any other part of Khasra No.5751, Khewat Nos.1 and 15 was acquired for the defendants. In their submission, the defendants had said that they had not acquired any land in Khewat Nos.1 and 15, part of Khasra No.5751. They had acquired other parts of the last mentioned plot located in different Khewat and Mahal. The Lower Appellate Court has considered a map produced by the defendants relating to their acquired land, bearing paper No.20-Ga and remarked that the total area of Khasra No.5751 shown in this map is 6.4584 hectares, where the acquired land in possession of the defendants, indicated in green colour, is 14-16-6. Beyond it, an area of 3.0278 hectare is shown and the area of the Dhobi Ghat indicated is 0.5152 hectare, in yellow colour. Maharana Pratap Enclave's area shown is 0.9770 hectare, Jasrampur Village an area of 0.1729 hectare and the Sports Colony is shown with an area of 1.7660 hectares. In the map aforesaid, relating to Scheme-01 of the defendants, the boundaries show Maharana Pratap Enclave and Jasrampur Village not acquired, but the rest is shown acquired. The total area of acquired land in this map, according to the Lower Appellate Court, turns out to be 20-22 bigha pucca.
31. Another map was produced by the defendants, bearing paper No.21-Ga, where the total area of Khasra No.5751 is shown to be 6.6500 hectares, denoted by bold dotted line in black. In the said map, it is noticed that the south-western part of Khasra No.5751 is shown comprising 1466 square meters of encroached land, which includes Village Jasrampur, Dhobi Ghat, Sports Colony, Maharana Pratap Enclave to the extent of 1683 square meters, 4350 square meters, 1757 square meters and 1228 square square meters, respectively. This map, presented by the defendants, has been remarked by the Lower Appellate Court to be discrepant from the earlier map, bearing paper No.20-Ga. It is also said about the latter map, bearing paper No.21-Ga, that the acquired land shown, does not include the area of Dhobi Ghat nor of the Sports Colony, which show that both the maps are contrary to the acquisition proceedings, including the lay out plan, bearing paper No.93-Ga. In the lay out plan, the total area shown is 16-0-0, out of which 1740 square meters is recorded to be abadi, leaving a net area of 3.7180 hectares, which works out to 15-0-0. In the said plan, the Sports Colony is shown to the north of the acquired land, stretching up to the road and to the east, abutting public drain. This plan does not show the land of the Dhobi Ghat, which was acquired land. It is also said by the Lower Appellate Court that in order to make up for the shortage of area between the acquired land and that available on the spot, which is short by 2-0-0 of land of the Dhobi Ghat, included in the acquisition, but left out in the acquisition map/ plan, the defendants have moved southwards, that is in Khasra No.5751, including in the plan the unacquired land with a dishonest motive. The lay out plan, which has included the unacquired land in the Khasra to the south to make up for the lost area of Dhobi Ghat's acquired land, has been drawn up with a dishonest motive because the defendants have admitted that they have taken possession of 12-0-0 land, whereas the plan shows the area of the acquired land possessed as 15-0-0.
32. There is also a remark that the Trial Court has wrongly regarded Allah Mehar's land as one belonging to plaintiff No.1, Sirajuddin, also concluding in error that the plaintiffs have no possession over the same. This Court must observe that on these facts, the Lower Appellate Court has concluded that the only part of Khasra No.5751, that is included in Khewat Nos.1 and 15 which has been acquired, is Khasra No.5751/5, admeasuring 2-0-0, belonging to Allah Mehar, sparing all land in the said Khasra, belonging to plaintiff No.1 from acquisition. This is a finding that proceeds on relevant evidence, but ignores principle. The principle here, that seems to be violated by the Lower Appellate Court, is that while upon a consideration of the different maps produced by the defendants and other evidence relating to the acquired land and the unacquired part of Khasra No.5751, a very careful mensuration of the acquired land and the unacquired part of the Khasra has been done, the location of the suit property, vis-à-vis the precise plot number(s), has not been ensured. This becomes very relevant because what was a very large Khasra No.5751, located in different Khewat, has overtime been subdivided and assigned different plot numbers, marked as subdivisions of Khasra No.5751.
33. The Lower Appellate Court is right in depending much upon the award passed by the Land Acquisition Officer, because possibly the defendants cannot deny what has been held there. Khasra Nos. 5751/1, 5751/2, 5751/3, 5751/4, 5751/6, 5751/7, 5751/8, 5751/9, 5751/10, 5751/11, 5751/12, regarding which Sheikh Shafiuddin, an ancestor of plaintiff No.1, laid claim for compensation before the Land Acquisition Officer, led to a refusal on ground that those subdivisions of Khasra No.5751 were not acquired. There is a remark in the award that a part of Khasra No.5751 was sold by Shafiuddin's ancestor Wahiuddin to Mst. Bhuria, from whom Allah Mehar inherited it, but he sold much of this land and now claims compensation. About this land of Allah Mehar, which has been acquired, the Land Acquisition Officer says, stretches up to the pucca road and drain No.5743 and to the Dhobi Ghat constructed by him. He is entitled to compensation of that land. It is also held by the Land Acquisition Officer that the southern part of Khasra no.5751 cannot be Allah Mehar's land.
34. There is also a remark in the award that the defendants have taken possession of Khewat No.445, Khata Nos.398 and 411, comprised of part of Khasra No.5751, admeasuring 12-16-6 of nazul land and Khasra No.5751/5, admeasuring 2-0-0, of which possession has been taken. Now, to infer from this remark of the Land Acquisition Officer, as done by the learned Judge in the Lower Appellate Court that Khasra No.5751/5, admeasuring 2-0-0, is Allah Mehar's land, of which possession has been taken and, therefore, the defendants attempt to move southwards to the other subdivisions of Khasra No.5751 upon 5751/1, 5751/2, 5751/3, 5751/4, 5751/6, 5751/7, 5751/8, 5751/9, 5751/10, 5751/11, 5751/12, not 5751/5 to make up for the lost area of Allah Mehar's acquired Khasra No.5751/5, is rather conjectural and as already said, ignores principle. The principle is if there is doubt about the location of the suit property in a particular plot number, it is the duty of the Court to issue a survey commission, who would ascertain the precise location of the suit property in one plot number or the other. Here, going by the award, there is no dispute now, since Khasra No.5751 has been subdivided, that the only part of Khasra No.5751 included in Khewat Nos.1 and 15, that has been acquired, is 5751/5. It has been held by the Lower Appellate Court that this plot belongs to Allah Mehar and is encroached. The Land Acquisition Officer has not said that Khasra No.5751/5 belongs to Allah Mehar, but does say that Allah Mehar's land has been illegally sold and, therefore, encroached. Therefore, what is to be determined is whether the suit property, in respect of which the plaintiffs claim relief, is part of Khasra No.5751/5 or a part of it, or is it included in Khasra Nos. 5751/1, 5751/2, 5751/3, 5751/4, 5751/6, 5751/7, 5751/8, 5751/9, 5751/10, 5751/11, 5751/12, all of which have admittedly not been acquired, except Khasra No.5751/5.
35. It is particularly to be remarked that now these various subdivided plots of Khasra No.5751, including the acquired part, comprising Khasra No.5751/5, are contiguous plots and location of the suit property with reference to the precise plot number would be of the first importance. There is no dispute about the fact that other parts of Khasra No.5751, that lie in different Khewat, is not in issue, because plaintiff No.1 is the owner of Khasra No.5751 that falls in Khewat Nos.1 and 15. The controversy, therefore, almost narrows down to determining if the suit property is located in Khasra No.5751/5 or away from it in the other plot numbers of 5751 that are unacquired. This would most certainly require determination of the precise location, vis-à-vis the plot number of the suit property through a survey commission following the three fixed points method. It would also be possible, in the alternative, to employ the total station method, if fixed points are no longer available in the vicinity.
36. The principle that in case of a dispute about the location of the property in one survey plot number or the other, it is necessary to issue a survey commission, which would identify the suit property, is laid down by the Supreme Court in Shreepat v. Rajendra Prasad and others, 2000 (40) ALR 534: JT 2000 (7) SC 379. It has been held in Shreepat (supra):
"1. Respondent No. 1 - Rajendra Prasad had instituted a suit for declaration and possession over land bearing Khasra No. 257/3 against the Appellant on the ground that he had purchased this land-from its previous owner - Premnarayan - by a registered sale-deed. It was further pleaded that the Appellant had forcibly taken possession and was trying to construct his house. The suit was resisted by the Appellant on the grounds, inter alia, that the land in dispute was not part of Kteasra Plot No. 257/3, but was part of Khasra Plot No. 257/1 which was the Government land and over which the Appellant was in possession since long, it having been leased out to him. It was also pleaded that he had constructed the house over that land.
2. On a consideration of the evidence on record, the trial court decreed the suit. The decree was affirmed by the lower appellate court and upheld by the High Court in Second Appeal.
3. The principal contention raised by learned Counsel for the Appellant is that though there was a serious dispute with regard to the identity of the land in dispute, whether the land in dispute formed part of Khasra No. 257/3 or Khasra No. 257/1 (sic) courts below did not get the identity established and decreed the suit of the Respondent only on the basis of oral evidence which was not sufficient for he purpose of establishing the identity of the land in dispute at the spot.
4. In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No 257/1. This having not been done has resulted ' in serious miscarriage of justice. We consequently allow the appeal, set side' the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law."
37. In the fast changing landscape of the present day, fixed points sometimes disappear and are no longer available. If that be the position to determine the Khasra number, where the suit property is located and demarcate it with reference to its plot number, an alternate method of more recent origin is the total station method. That this method can be utilized to demarcate lands/ property with regard to their location in one survey number or the other, was held by the Delhi High Court in Delhi Development Authority v. Mohd. Sher Nabi Chaman and others, 2015 SCC OnLine Del 7832, where it is observed:
"13. At this stage, I may also deal with and dispose of an argument urged on behalf of the respondent no. 1/plaintiff/ applicant/ review petitioner that the right to file objections if taken away would seriously affect the rights of the respondent no. 1/plaintiff/ applicant/ review petitioner, however, this argument conveniently ignores the fact that both the parties agreed to be bound by the fresh demarcation report to be carried out in terms of the Total Station Method. Since both the parties agreed, more so because there was a very narrow scope of the respondent no. 1/plaintiff/applicant/review petitioner existing whether in khasra nos. 22/3, 22/4, 22/8, 22/9 and 25/20/2 of village Mandoli as claimed by him or in khasra nos. 976 min., 977 min., 978 min. and 979 min. of village Mandoli which was the land of the petitioner/DDA, therefore, there is no prejudice to the respondent no. 1/ plaintiff/ applicant/ review petitioner and hence these arguments urged on behalf of the respondent no. 1/ plaintiff/applicant/review petitioner are rejected.
14. The next argument which was urged on behalf of the respondent no. 1/ plaintiff/ applicant/ review petitioner was that the revenue law does not entitle the demarcation by the Total Station Method, however, in my opinion, this is an argument of desperation because there is no bar under the revenue law not to carry out demarcation by the Total Station Method. Merely because a particular method is provided in the revenue laws which was passed many decades back, does not mean that the modern methods with respect to demarcation cannot be adopted by the revenue authorities, more so when such a method is now the only available proper method, because the traditional methods were with respect to areas and lands which were unconstructed and wherein demarcation could be done by traditional methods, but when the entire city is built up, demarcation will have to be done by the laser method i.e the Total Station Method inasmuch as which is done with respect to the fixed and specific points in terms of the revenue law. This argument urged on behalf of the respondent no. 1/ plaintiff/ applicant/ review petitioner is also therefore rejected."
38. In the entire gamut of the otherwise very detailed findings recorded by the Lower appellate Court to answer for the plaintiffs, the ignorance of this principle in a dispute about location of the suit property being in one plot number or numbers, or the other, would vitiate the conclusions. In this case, the principle applies with greater force, because the controversy has, as already remarked, narrowed down to the issue if the suit property is located in Khasra No.5751/5, which is the only acquired plot number of the subdivided plots of Khasra No.5751, located in Khewat Nos.1 and 15, that has admittedly been acquired. Other parts of Khasra No.5751, or its other subdivided plots, fall in other Khewat; not Khewat No.1 or 15. The suit property, which the plaintiffs claim, comprising Khasra No.5751 and now its subdivided number, is located in Khewat Nos.1 and 15, not the other Khewat. These issues have already been dwelt upon by the Lower Appellate Court in punctilious detail, which need not detain us. Nevertheless, the findings of the Lower Appellate Court cannot be upheld unless a survey of the contiguous Khasra Nos. 5751/1, 5751/2, 5751/3, 5751/4, 5751/6, 5751/7, 5751/8, 5751/9, 5751/10, 5751/11, 5751/12 on one hand, and Khasra No.5751/5 on the other, is duly carried out according to the fixed point method. If that survey is not possible, the location of the suit property in the precise Khasra numbers has to be determined through the total station method.
39. In this view of the aforesaid conclusions, Substantial Question of Law No. (iii) is answered in the affirmative.
40. In view of the answer to Substantial Question of Law No. (iii), the unnumbered one framed at the time of admission of the appeal as well as Substantial Question of Law No.2, need not be answered as the judgment of the Lower Appellate Court would have to be set aside with a remit of the matter to that Court with a direction to hear and decide the appeal afresh, after causing a fixed points survey of the suit property with regard to its location in one set of plot numbers or the other, or failing a fixed point survey taking resort to the total station method.
41. The result would be that the decree passed by the Lower Appellate Court would have to be set aside with a remit of the matter to that Court with the direction that the location of the suit property in one Khasra number or the other, and, particularly, if it is located in Khasra No.5751/5 or in the contiguous Khasra Nos. 5751/1, 5751/2, 5751/3, 5751/4, 5751/6, 5751/7, 5751/8, 5751/9, 5751/10, 5751/11, 5751/12, shall be determined through the agency of a Survey Commission, who would undertake it following the three fixed points method. If the Survey Commission fails for the non-availability of three fixed points, a fresh commission shall be issued to a trained agency to determine the location of the suit property as aforesaid following the total station method. Upon submission of a report by the Survey Commissioner, following the fixed point method, or the total station method, as the case may be, the parties would have a right to object and lead necessary evidence. The Lower Appellate Court will then re-hear and decide the appeal afresh, all to be done within a period of six months from the date of receipt of a copy of this judgment and order.
42. In the result, this appeal succeeds and is allowed in part. The impugned decree passed by the Lower Appellate Court is set aside with an order of remand in above terms.
43. The costs of this appeal shall abide by the event in the appeal before the Lower Appellate Court.
44. Let the lower court's records be sent down at once.
Order Date :- 09.9.2024 Anoop (J.J. Munir, J.)