Himachal Pradesh High Court
Basanti Devi vs State Of H.P. And Another on 2 November, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
RSA No.519 of 2004
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Judgment reserved on: 21.08.2015
Date of Decision: 02.11.2015
Basanti Devi ..Appellant
of
Versus
State of H.P. and another ..Respondents
rt
Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Ms. Sunita Sharma, Advocate.
For the Respondents: Mr. Virender Verma, Additional
Advocate General with
Mr. Pushpinder Jaswal,
Deputy Advocate General.
________________________________________________________
Dharam Chand Chaudhary, Judge
Challenge herein is to the judgment and
decree dated 26.8.2004, passed by learned Additional
District Judge, Solan, in Civil Appeal No.29-NL/13 of
2002, whereby the judgment and decree dated
Whether reporters of the local papers may be allowed to see the judgment? Yes
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15.12.2001 passed by learned trial court in Civil suit
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No.161/1 of 1998 has been affirmed and the appeal
dismissed.
2. The present is a case of concurrent findings,
because both courts below have non-suited the
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appellant, hereinafter referred to as the plaintiff, who
by filing the suit, has sought the decree for mandatory
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injunction, directing thereby the defendants to acquire
the land entered in Khewat/Khatauni No.297/374,
bearing Khasra Nos.1022 (8-7), 1079(3-5), 1084(2-6),
total measuring 13 Bighas 18 Biswas, situated in village
Dhang Nihli, Pargana Plassi, Tehsil Nalagarh, District
Solan, H.P, hereinafter referred to as the suit land.
3. The defendants-State through Public Works
Department (B&R), has constructed Nalagarh-Ropar
road over the suit land and the road so constructed is
still in existence thereon. Her predecessors-in-interest
when objected to the construction of the road, were
assured by the defendants that the suit land will be
acquired shortly and the compensation as admissible
paid to them but of no avail. Her predecessors-in-
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interest and even she also personally requested the
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defendants on several occasions to acquire the suit
land and pay adequate compensation but of no avail.
Her husband late Shri Jagat Ram had, therefore, to
serve the defendants with legal notice dated
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12.11.1997 Ext.P1, calling upon them to acquire the
suit land and make payment of compensation within
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two months from the receipt of the notice. The notice
was sent through registered AD post. The postal
receipt is Ext.P2. The same was received in the office
of the defendants as per the acknowledgments due
Exs. P4 and P5. In order to show that she is co-owner
of the suit land to the extent of 131/278 shares, i.e. 6-
11 Bighas, Jamabandi for the year 1996-97 Ext.P6 has
also been produced in evidence.
4. The defendants in the written statement
have raised questions of maintainability of the suit,
limitation, estoppel and also that the same is bad for
mis-joinder and non-joinder of necessary parties. On
merits, the entries qua the suit land in revenue record
have not been disputed. The defendants, however,
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have raised plea of adverse possession in their defence
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and claimed that they have now become owner of the
suit land. The road namely, Nalagarh-Ropar is stated
to be constructed over the suit land during the State
time, i.e. pre independence era, when her husband was
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not the owner thereof. Since then the defendants are
in possession of the suit land and now with the passage
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of time have acquired title therein. It is, therefore,
denied that the assurances were held out to the
predecessors-in-interest of the plaintiff at the time of
construction of the road qua acquisition of the suit land
and payment of the compensation. The defendants
have also admitted the receipt of the legal notice
served upon them by late Shri Jagat Ram under Section
80 CPC. However, there being allegedly no enforceable
cause of action having arisen in favour of the plaintiff,
the suit has been sought to be dismissed.
5. In the replication the plaintiff has denied the
contents of the preliminary objections being wrong and
on merits, reiterated her case as set out in the plaint.
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6. On such pleadings of the parties, learned
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trial Court has framed the following issues:
1. Whether the plaintiff is co-owner in
possession of the suit land? OPP
2. Whether the plaintiff is entitled for
mandatory injunction, as prayed for?
OPP
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3. Whether this suit is not maintainable?
OPD
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4. Whether this
limitation?
suit is barred by
OPD
5. Whether the suit is bad for non-joinder
of necessary parties? OPD
6. Whether the plaintiff is estopped to file
the present suit on account of acts and
conduct? OPD
7. Whether the defendants have become
owners by way of adverse possession?
OPD
8. Relief.
7. The parties when put to trial have produced
evidence oral as well as documentary. Learned trial
Court after holding full trial while answering issue No.1
in favour of the plaintiff has held herself to be co-owner
of the suit land, however, while answering issue No.2
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against her, the relief mandatory in nature sought in
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the plaint has been declined on the ground that it is for
the appropriate Government to take a decision under
Section 4 of the Land Acquisition Act as to whether the
suit land is to be acquired or not and the decree for
of
mandatory injunction cannot be passed by the Civil
Court having not been vested with any such power.
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The question of limitation under issue No.4 has also
been answered in affirmative, i.e in favour of the
defendants and against the plaintiff. The suit was,
therefore, found to be not maintainable and the
plaintiff estopped to file the same on account of her
own acts, deeds and conduct. The suit, therefore, was
dismissed.
8. Learned lower appellate Court has affirmed
the judgment and decree passed by the trial Court and
dismissed the appeal.
9. The legality and validity of the judgment and
decree passed by both Courts below has been
questioned on the grounds, inter alia, that the evidence
available on record has not been appreciated in its
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right perspective. It has been pointed out that both
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courts below have failed to understand that by
constructing the road over the suit land, the
defendants have deprived the plaintiff of her property
unlawfully and in violation of Article 300A of the
of
Constitution of India. Since the plea of adverse
possession raised by the defendants has been rejected
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by both Courts below, therefore, the fact remains that
it is she who is owner of the suit land and as such user
of the same by the defendant for how-so-long period
without acquiring the same will not make them the
owner thereof and she during the subsistence of her
title in the suit land can approach the Court for
issuance of a direction to the defendants to acquire the
suit land and make the payment of adequate
compensation to her. She has never questioned the
authority of the defendants to use the land for the
construction of road, however, her only grievance is
that she has been deprived therefrom without payment
of adequate compensation. The principles of
acquiescence or estoppel have therefore been
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erroneously applied in the case in hand. The findings
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that it is for the appropriate Govt. to decide as to
whether the land is to be acquired or not and that the
Civil Court has no jurisdiction to issue a direction in this
regard mandatory in nature, are also contrary to the
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given facts and circumstances of this case as the
plaintiff is stated to be already ousted from the suit
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land by the defendants by entering upon the same and
raising construction of road thereon.
10. The appeal has been admitted on the
following substantial questions of law:
1. Whether the plaintiff's right to file a
suit for mandatory injunction against
the defendants for acquiring her land
and to pay her compensation which is
being used by the defendants for the
road flows from Article 300-A of the
Constitution and can be invoked by her
at any time till she is the owner of the
suit land.
2. Whether two Courts below have
misconstrued, misinterpreted and
misapplied the principles of law
regarding acquiescence, estoppel and
mandatory injunction in the facts and
circumstances of the case and they
have taken perverse view that the suit
is not maintainable."
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11. On analyzing the rival submissions and also
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the evidence available on record, it is crystal clear that
the plaintiff is joint owner of the suit land to the extent
of 131/278 shares, i.e. 6-11 Bighas. There is no need
to discuss the evidence to this effect as there is no
of
denial even on behalf of the defendants qua this part of
the plaintiff's case.
rt Otherwise also, the findings on
issue No.1 have been returned by both Courts below in
affirmative and the defendants have not opted to
challenge the same any further by filing an appeal.
The inescapable conclusion, therefore, would be that
the plaintiff is joint owner of the suit land.
12. So far as Article 300A of the Constitution of
India is concerned, the plaintiff is absolutely justified in
claiming that no person owner of property can be
deprived therefrom save and except due authority of
law. However, in the considered opinion of this Court,
if such person is not vigilant qua his right and interest
in the property and if he has been deprived therefrom
and did not come forward for years together for the
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redressal of his grievance in accordance with law, he is
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not entitled to the protection as contemplated under
Article 300-A of the Constitution of India.
13. The plaintiff has miserably failed to point out
in the plaint as to when the road was constructed over
of
the suit land. While in the witness box as PW-1 on
24.10.2000, she tells us that the road was constructed
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about 40-45 years ago. Meaning thereby that the
same was constructed somewhere in 1955 or 1960.
Therefore, the version of the defendants that the road
was constructed during pre-independence era seems to
be nearer to the factual position. It is her husband Shri
Jagat Ram alone the owner of the suit land at that time,
there is again no iota of evidence to substantiate the
same, because she has only produced in evidence copy
of Jamabandi for the year 1996-97 Ext.P6 in which no
doubt her husband has been shown to be joint owner of
the suit land to the extent of 131 shares, however,
since when he was being recorded so, no evidence is
forthcoming. True it is that in the Jamabandis Exts. D1
to D5 for the years 1971-72, 1976-77, 1981-82, 1986-
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87 and 1991-92 respectively he has been shown to be
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joint owner of the suit land, however, the fact remains
that he was joint owner of the suit land at the time of
construction of the road also, no evidence is forth
coming. Therefore, the position as emerges from the
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re-appraisal of the oral as well as documentary
evidence, the plaintiff no doubt has been recorded as
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joint owner of the suit land, however, in the given facts
and circumstances at this stage she is entitled to seek
the relief mandatory in nature or not, is a big question
mark, as not only she, but her predecessors-in-interest
also remained slept over the matter till 12.11.1997, the
date when the legal notice Ext.P1 was sent to the
defendants. The same is followed by institution of the
suit in the trial Court on 27.5.1998, i.e. again after
about 6 months from the date of issuance of legal
notice. In terms of Article 113 of the Limitation Act, the
relief of mandatory injunction can be claimed within 3
years from the date of cause of action is arisen. In this
case when as per her own testimony, the road was
constructed in 1955 or 1960, the suit at the most
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should have been instituted within three years
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thereafter. There is, however, inordinate delay in filing
the present suit, as it has been instituted on 27.5.1998,
i.e. after a period over 35-40 years. Therefore, when
the plaintiff and for that matter her predecessors-in-
of
interest remained slept over the matter for such a long
time, she is not entitled to claim the protection of
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Article 300A of the Constitution of India nor the suit can
be said to be well within the period of limitation.
14. This Court, however, is not in agreement
with the findings recorded by both Courts below that
Civil court cannot pass a decree for mandatory
injunction directing thereby the appropriate
Government to acquire the land used for the
construction of road as the law on the point is no more
res integra. In a case Shankar Dass Vs. State of H.P.
and connected matter, 2013(2) Him.LR (FB)698,
involving similar question of law and facts, leaned
Single Judge has referred the following question for
consideration and adjudication by the larger Bench:
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"In cases where the State has not taken
steps under the Land acquisition Act for the
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purpose of construction of roads, on the
ground that the required land has been
willingly surrendered either orally or
otherwise or with implied or express
consent by the owners at the relevant time,
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can they seek a direction in a writ petition
filed after a long time for a direction to the
State
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proceedings in respect of their such land
which has been utilized for the purposes of
construction of the road?"
15. The question was answered by the larger
Bench by majority in the following manner:
"10. In view of above, the reference is
answered as follows:
"Where a person has willingly
surrendered his land to the State with
consent, then he cannot seek a direction
under Article 226 of the Constitution against
the State to initiate land acquisition
proceedings in respect of land
surrendered by him to the State. In case
dispute arises about the validity of consent
in a petition under Article 226 of the
Constitution, then such dispute is to be
determined in that proceeding in
accordance with law. The writ petition for a
direction to the State to acquire the land
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taken over by the State can be filed by the
aggrieved person within the time prescribed
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for civil suit for the relief prayed from the
date of cause of action."
11. The petitions be placed before
appropriate Bench for disposal in
accordance with law.
2.3.2013. (Kuldip Singh), Judge
of
Per Justice Kurian Joseph, C.J.(oral)
As per the view of the majority, the Reference is answered as follows:
rt "In cases where the State has not taken steps under the Land Acquisition Act for the purpose of construction of roads on the ground that the required land had been willingly surrendered either orally or otherwise or with implied or express consent by the owners at the relevant time, they can invoke the jurisdiction refuting such express or implied consent or the stand of the State on voluntary surrender, only within the time within which such a relief can be claimed in a Civil Suit. Once such a question is thus raised in a Writ petition the same can be considered in the Writ petition itself."
16. On the question of delay and latches, it has further been held in this judgment as follows:
"11. In my view, the law of limitation or the principle of delay and latches does not take the rights of the parties but only takes away their remedy. A person is supposed to be ::: Downloaded on - 15/04/2017 19:17:02 :::HCHP ...15...
vigilant of his rights and, therefore, must approach the Court within a reasonable .
time. Article 226 of the Constitution is not intended to supersede completely the other modes of obtaining relief by an action in a Civil Court or to deny defences legitimately open in such actions."
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17. A Division Bench of this Court in CWP rt No.4444 of 2010, Surat Ram Vs. State of H.P and others, decided on 11.9.2013, while placing reliance on the law laid down by a larger Bench of this Court in Shankar Dass's case supra, has disposed of the same with liberty to the petitioner to institute Civil Suit in accordance with law and the ratio of law in Shankar Dass's case supra. Therefore, in view of the ratio of the judgments supra, if there is inordinate delay occurred in filing the writ petition for seeking a direction qua acquisition of the land utilized for public purpose, including construction of road, the remedy is to file a civil suit as the disputed questions cannot be decided in writ jurisdiction. Therefore, the nature of the relief sought by the plaintiff in the plaint can be claimed in ::: Downloaded on - 15/04/2017 19:17:02 :::HCHP ...16...
the Civil Court and the findings to the contrary are not .
legally sustainable. However, the fact remains that since the plaintiff has failed to prove that her predecessors-in-interest were joint owners of the suit land at the time when the same was used for the of construction of the road and she also failed to explain the inordinate delay as occurred in filing the suit, rt therefore, at this belated stage is not entitled to seek the relief as claimed in the plaint.
18. Both the substantial questions of law stand answered accordingly.
19. In view of what has been said hereinabove, the findings recorded by learned trial Court on issue No.2 and affirmed by learned lower appellate Court are not legally sustainable and it is held that the suit for the decree of mandatory injunction directing the appropriate Government to acquire the land used for a public purpose without acquiring the same is maintainable, however, subject to all just legal exceptions. Since the plaintiff has failed to prove that on the day when the road was constructed over the ::: Downloaded on - 15/04/2017 19:17:02 :::HCHP ...17...
suit land, she or her predecessors-in-interest were .
owners in possession thereof and also inordinate delay has occurred in filing the suit, therefore, the net result would be that the suit has rightly been dismissed by both courts below.
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20. For all the reasons hereinabove, though the findings on issue No.2 are hereby set aside and rt quashed, however, the net result would be that the plaintiff is not entitled to the relief claimed and as such this appeal fails and the same is hereby dismissed and the impugned judgment and decree is modified to the limited extent as indicated hereinabove. There is, however, no order so as to costs.
November 2, 2015 (Dharam Chand Chaudhary), J. (ss) ::: Downloaded on - 15/04/2017 19:17:02 :::HCHP