Himachal Pradesh High CourtState Of H.P And Others vs Munshi Ram Deceased Through Legal ... on 15 July, 2021Bench: Sandeep SharmaIN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA\n\n                                                      RSA No. 4110 of 2013\n                                                Decided on : July 15, 2021-----------------------------------------------------------------------------\n    State of H.P and others                                  .........Appellants\n\n\n\n\n                                                                                .Versus\n\n\n\n\n\n    Munshi Ram deceased through legal representatives, Vidya\n    Sagar and others                                          ....Respondents-----------------------------------------------------------------------------Coram\n    Hon'ble Mr. Justice Sandeep Sharma, Judge\n    Whether approved for reporting?1 Yes.-----------------------------------------------------------------------------\n    For the appellants           Mr Sudhir Bhatnagar and Mr. Arvind\n\n\n\n\n\n                                 Sharma, Additional Advocates General\n                                 with Mr. Kunal Thakur and Ms.\n                                 Svaneel Jaswal, Deputy Advocates\n                                 General.For the respondents:         Mr. Bhender Kumar Chaudhary,\n\n                                 Advocate-----------------------------------------------------------------------------\n    Sandeep Sharma, Judge\n\n                        Instant Regular Second Appeal filed under S.100\n\n\n\n    CPC, lays challenge to judgment and decree dated 31.10.2012\n\n\n\n\n    passed by learned District Judge, Mandi in Civil Appeal No.\n\n    8/2012, titledState of Himachal Pradesh and others vs.\n\n\n\n\n\n    Munshi Ram, affirming judgment and decree dated 22.11.2011\n\n\n\n\n\n    passed by learned Civil Judge (Senior Division), Court No.1,\n\n    Mandi, whereby appeal filed by the appellants-defendants\n\n    (hereinafter,           'defendant')         against       the     respondent-plaintiff\n\n    (hereinafter, 'plaintiff') came to be dismissed and the suit for1Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 19/07/2021 20:10:15 :::HCHP2injunction having been filed by the plaintiff came to be\n\n    decreed.2.    Facts in brief, as are necessary for the adjudication of\n\n    the appeal at hand are that the plaintiff filed a civil suit\n\n\n\n\n                                                               .against the defendants     averring therein that the plaintiff is\n\n    owner-in-possession of land denoted by Khewat Khatauni No.\n\n\n\n\n\n    190, min /217 min Khasra No. 8/9/2/1 measuring 0-4-15\n\n    Bigha situate in Mohal Kot /275 Illaqua Rajgarh Balh, Tehsil\n\n    Sadar, District Mandi,(hereinafter, 'suit land'). Plaintiff averred\n\n\n\n\n\n    in the plaint that the defendants constructed road namely\n\n    Nalsar-Chunahan through the suit land and for this purpose\n\n    they had taken possession of the suit land long ago. Plaintiff\n\n    averred in the plaint that the acquisition proceedings qua the\n\n    suit land were initiated but the same were allowed to lapse\n\n\n    intentionally with the motive to grab the suit land without\n\n    paying compensation to the plaintiff. Plaintiff though served\n\n\n\n\n    the defendants under Section 80 CPC but no steps, if any, ever\n\n\n\n\n\n    came to be taken by the defendants either to initiate\n\n    acquisition proceedings or pay the compensation to the\n\n\n\n\n\n    plaintiff. Since the defendants, despite repeated assurances,\n\n    failed to pay compensation the plaintiff, he filed suit in\n\n    question seeking     therein   relief   of    mandatory injunction\n\n    directing the defendants to initiate acquisition proceedings and\n\n    complete the same within stipulated time.::: Downloaded on - 19/07/2021 20:10:15 :::HCHP33.      Aforesaid claim of the plaintiff came to be refuted by\n\n    defendants by filing written statement, wherein they, while\n\n    specifically raising objections of maintainability, cause of\n\n    action, estoppel, non-joinder & mis-joinder of necessary\n\n\n\n\n                                                               .parties and limitation, fairly admitted the factum with regard\n\n    to construction of road through the suit land in the year 1970,\n\n\n\n\n\n    but claimed that such road was constructed through the land\n\n    of plaintiff with his consent and permission. Defendants\n\n    averred in the written statement that the road was metalled in\n\n\n\n\n\n    the years 1973-74 and since then HRTC buses are plying on\n\n    the same but, at no point of time, plaintiff ever raised\n\n    objection, if any, qua the use of the road passing through his\n\n    land.    Besides     above,      defendants    claimed        that     after\n\n    construction of road, value of land of plaintiff has increased\n\n\n    and since at no point of time, plaintiff objected to the\n\n    construction of road through his land, he is not entitled for the\n\n\n\n\n    decree as prayed for by him in the instant suit. Defendants\n\n\n\n\n\n    also stated before the learned trial Court that the plaintiff\n\n    never demanded any compensation for the land covered under\n\n\n\n\n\n    road and as such, prayer made after an inordinate delay for\n\n    initiation    of   acquisition    proceedings      and      payment        of\n\n    compensation otherwise deserves rejection on the ground of\n\n    limitation.::: Downloaded on - 19/07/2021 20:10:15 :::HCHP44.   On the basis of pleadings adduced on record by\n\n    respective parties, following issues came to be framed by\n\n    learned trial Court on 21.4.20211:1.    Whether the plaintiff is entitled for decree of\n\n\n\n\n                                                               .mandatory injunction, as prayed for?            OPD2.    Whether the suit is not maintainable, as\n                     alleged?                                        OPD3.    Whether the plaintiff has on enforceable\n                     cause of action, as alleged?                    OPD4.    Whether the plaintiff is estopped by his own\n\n\n\n\n\n                     act and conduct, as alleged?                    OPD5.    Whether the suit is bad for non joinder and\n                   r mis joinder of necessary parties, as alleged?OPD6.    Whether the suit is barred by limitation, as\n                     alleged?                                        OPD7.    Relief.5.   Plaintiff with a view to prove his case, besides examining\n\n    himself, also examined one Rirku Ram as PW-2, who tendered\n\n\n\n\n    his evidence by way of affidavit, Ext. PW-2/A. Plaintiff also\n\n\n\n\n\n    produced documentary evidence i.e. copy of Jamabandi for the\n\n    years 2003-04 Ext. PB, notice under S.80CPC Ext. PC, postal\n\n\n\n\n\n    receipts Exts. PD to PG, Notifications Ext. PH and PJ, AD\n\n    receipts Exts. PK to PN. Defendants also examined one\n\n    ShriD.R.        Shashani,   Executive   Engineer,        Public      Works\n\n    Department Division No. II, Mandi, as DW-1.::: Downloaded on - 19/07/2021 20:10:15 :::HCHP56.     Learned trial Court, on the basis of the pleadings\n\n    adduced on record and evidence, be it documentary or oral,\n\n    decreed the suit of the plaintiff and held him entitled for the\n\n    relief of mandatory injunction and accordingly, vide judgment\n\n\n\n\n                                                             .and decree dated 21.11.2011, directed the defendants                     to\n\n    initiate acquisition proceedings in accordance with law within\n\n\n\n\n\n    the specified period.7.     Being aggrieved and dissatisfied with the judgment and\n\n    decree passed by learned trial Court, the defendants, preferred\n\n\n\n\n\n    an appeal under Section 96 CPC in the court of learned\n\n    District Judge Mandi, District Mandi, which also came to be\n\n    dismissed vide judgment and decree dated 31.10.2012. In the\n\n    aforesaid background, defendants have approached this court\n\n    in the instant proceedings, praying therein for dismissal of the\n\n\n    suit for mandatory injunction, having been filed by the\n\n    plaintiff, after setting aside impugned judgments and decrees\n\n\n\n\n    passed by learned Courts below.8.     Aforesaid appeal having been filed by the defendants\n\n    came    to   be   admitted   on   22.7.2013,      on    the    following\n\n\n\n\n\n    substantial question of law:"Whether the findings of the Courts below are result of\n           complete mis-reading, mis-interpretation of the evidence\n           and material placed on record and against the settled\n           position of law?"::: Downloaded on - 19/07/2021 20:10:15 :::HCHP69.     I have heard learned counsel for the parties and perused\n\n    the material available on record.10.    Having heard learned counsel appearing for the parties\n\n    and perused the material available no record vis-à-vis the\n\n\n\n\n                                                               .reasoning assigned by first appellate Court, while passing\n\n    impugned judgment and decree, upholding the judgment and\n\n\n\n\n\n    decree passed by learned trial Court, this court finds no force\n\n    in the submissions made by Mr. Arvind Sharma, learned\n\n    Additional Advocate General that the judgment and decree\n\n\n\n\n\n    passed by learned first appellate Court are not based upon\n\n    proper    appreciation of evidence       adduced         on   record     by\n\n    respective parties rather, this court finds that both courts\n\n    below have carefully examined the evidence and have arrived\n\n    at a right conclusion that once the land of the plaintiff stand\n\n\n    utilized by the defendants for the construction of road in\n\n    question, plaintiff is entitled to adequate compensation after\n\n\n\n\n    initiation of acquisition     proceedings underLand Acquisition\n\n\n\n\n\n    Act.11.    Pleadings        adduced on record by respective parties,\n\n\n\n\n\n    clearly reveal that there is no dispute inter se parties qua the\n\n    fact that the suit land stands utilized for the construction of\n\n    road     known     as     Nalsra-Chunahan     by     the      defendants.Defendants have categorically admitted              in     their written\n\n    statement, the factum with respect to utilization of the land by::: Downloaded on - 19/07/2021 20:10:15 :::HCHP7them for the construction of road in question. Though the\n\n    defendants have attempted to carve out a case that since use\n\n    of the aforesaid land for construction of road was with the\n\n    consent and permission of the plaintiff, he is not entitled to\n\n\n\n\n                                                           .any compensation, but evidence be it ocular or documentary\n\n    adduced on record by respective parties, nowhere suggests\n\n\n\n\n\n    that the factum, if any, with respect to consent and permsision\n\n    given by plaint qua construction of road through his land\n\n    could be proved by the defendants by leading cogent and\n\n\n\n\n\n    convincing evidence.12.    Revenue record adduced by the plaintiff shows him to be\n\n    the owner of the suit land. Plaintiff, while appearing before\n\n    learned trial court as PW-1 categorically deposed on oath that\n\n    construction of road Nalsar Chunahan road was carried out by\n\n\n    defendants long ago, with the assurance that the acquisition\n\n    proceedings shall be initiated soon. He further deposed that\n\n\n\n\n    acquisition proceedings, though were initiated but could not\n\n\n\n\n\n    materialize. Said statement of PW-1 Munshi Ram was further\n\n    corroborated by PW-2 Rirku son of Chuhru, who also stated\n\n\n\n\n\n    that   Nalsra   Chunahan    road   was     constructed         by    the\n\n    defendants through the land of the plaintiff and he was\n\n    assured that acquisition proceedings shall commence soon. No\n\n    doubt, plaintiff, while admitting in his cross-examination, that\n\n    the road in question is about 25-30 years old and connects 4-5::: Downloaded on - 19/07/2021 20:10:15 :::HCHP8villages fairly stated that no objection was raised by him at the\n\n    time of construction of the road, but he further explained that\n\n    he was assured that the land shall be acquired by Government\n\n    and amount of compensation shall be paid to him. Plaintiff,\n\n\n\n\n                                                            .while fairly admitting that he never prayed for compensation\n\n    from the Government, clarified that he had applied to the\n\n\n\n\n\n    department concerned for payment of compensation,13.   DW-1 D.R. Shashni, Executive Engineer, admitted in his\n\n    cross-examination that no written consent was ever obtained\n\n\n\n\n\n    or given by the plaintiff for the construction of the road. He\n\n    was unable to place on record any oral or written consent\n\n    given by the plaintiff. There is no evidence be it ocular or\n\n    documentary, led on record by the defendants, suggestive of\n\n    the fact that the suit land was given voluntarily by the plaintiff\n\n\n    to the defendants and he had given consent to the Defendants\n\n    for the construction of road through his land without payment\n\n\n\n\n    of any compensation.14.   Though, in the case at hand, defendants have set up a\n\n    case that since buses are plying on the road in question since\n\n\n\n\n\n    the year 1975, and road stood constructed in the year 1970,\n\n    suit having been filed by t[he plaintiff in the year 2008 for\n\n    mandatory injunction, directing the defendants to initiate\n\n    acquisition proceedings, is not maintainable being time barred\n\n    but such plea of the defendants cannot be accepted for the::: Downloaded on - 19/07/2021 20:10:15 :::HCHP9reason that land of the plaintiff stands utilized for the\n\n    construction of road without there being any payment of\n\n    compensation. When it stands established that the land of the\n\n    plaintiff was utilized unauthorizedly by the defendants,\n\n\n\n\n                                                            .without paying compensation under theLand Acquisition Act,\n\n    for the construction of road, and there is no evidence worth\n\n\n\n\n\n    credence available on record suggestive of the fact that the\n\n    owner/plaintiff   had   given   consent     voluntarily,       plea     of\n\n    limitation as raised by the defendants cannot come in the way\n\n\n\n\n\n    of the plaintiff for claiming compensation through acquisition\n\n    proceedings.15.   As has been taken note herein above, defendants failed\n\n    to give details of consent if any, ever given by plaintiff and as\n\n    such, courts below rightly concluded that the plaintiff could\n\n\n    not be deprived of his right to property enshrined underArticle\n\n    300Aof the constitution of India. If land of the plaintiff is used\n\n\n\n\n    by defendants/State, it is bound to compensate him by\n\n\n\n\n\n    initiating acquisition proceedings. (See HLJ 2009 (1) 101 HP\n\n    HC)16.   Reliance is also placed upon judgment reported in Geeta\n\n    Vidhyapeeth Palampur and others vs. State of H.P. and\n\n    others 1992(1) Shimla Law Cases 374, wherein it has been\n\n    held as under:10.   Having found in the instant case that the property has\n          not vested in the State and the same is being used and::: Downloaded on - 19/07/2021 20:10:15 :::HCHP10utilized by it and petitioner No.1 has not been paid any\n     compensation for deprivation of the possession, the question\n     which remains to be decided is the relief which can be\n     granted in the facts and circumstances of the case.\n     Whether the petitioners can be allowed the relief of restoration\n\n\n\n\n                                                           .of possession in these proceedings or not. The respondents\n\n\n\n\n\n     have contended that the petitioners have atleast acquiesced in\n     their possession and as such, are not entitled to the relief. We\n     find that the conduct of the petitioner sin having passed\n\n\n\n\n\n     resolution Annexure P-8 amounts to acquiescence in the\n     respondents continuing in occupation, but of course, subject\n     to settlement of terms. They further allowed a Committee to\n\n\n\n\n\n     be set up to go into the entire aspect and make its\n     recommendations. They further allowed the respondents to\n     continue developing the property. In view of this we have no\n     doubts in our mind that such a conduct disentitles the\n\n     petitioners from claiming back possession. It also cannot be\n\n     agitated by the petitioners that respondents ought not have\n     utilized the property for any other purpose, other than that\n     for which they acquiesced in the respondents in making use\n\n\n     of it. No fetters can be placed as to the manner of use of the\n     property. In the facts and circumstances, the petitioners can\n     only claim to be compensated suitably. Since the material\n\n\n\n\n     facts in the instant case have not been disputed, the\n     petitioners   can   be   allowed   appropriate      relief   in   these\n\n\n\n\n\n     proceedings for issuance of a Writ of mandamus against the\n     respondents    No. 1 to 3. Since we have held petitioners\n\n\n\n\n\n     entitled to the amount of compensation and since the\n     petitioner having approached this Court in its extra ordinary\n     jurisdiction, it is but proper to consider as to for what\n     equitable compensation the petitioners are entitled for use\n     and occupation for property till payment of compensation, the\n     petitioners have claimed use and occupation charges of the\n     property from 29th April, 1978 onwards alongwith interest\n     thereupon. As the petitioners will be entitled to the amount of::: Downloaded on - 19/07/2021 20:10:15 :::HCHP11compensation in accordance with the provisions ofLand\n          Acquisition Actalongwith compulsory acquisition charges and\n          interest in accordance with       law from 29th April, 1978,\n          therefore, we do not feel that an order deserves to be passed\n          for payment of use and occupation charge to the petitioners\n\n\n\n\n                                                               .separately from 29th April, 1978 onwards. The reason which\n\n\n\n\n\n          has prevailed with us in holding this view is that while taking\n          over the management of the College, respondent No.1 also\n          took over its liabilities including absorbing the staff of the\n\n\n\n\n\n          College. Otherwise to adjust equities by allowing use and\n          occupation charges to petitioners, respondents would have\n          been relieved of obligation in taking over liabilities and\n\n\n\n\n\n          absorbing staff."17.   True it is that as perSection 311of the Limitation Act, it\n\n    is duty of court to see whether case is within limitation or not,\n\n    but since in the case at hand, relief of possession has not been\n\n    claimed by the plaintiff, rather mandatory injunction has been\n\n\n    prayed for by the plaintiff in continuing cause of action, plea of\n\n    limitation as raised by defendants is of no consequence. Since\n\n\n\n\n    plaintiff on account of use of land by defendants, without\n\n\n\n\n\n    payment of compensation, is incurring continuous loss, as\n\n    such, rightly approached learned trial Court by way of suit for\n\n\n\n\n\n    mandatory     injunction    directing      defendants         to    initiate\n\n    acquisition proceedings.18.   Had the defendants successfully proved on record that\n\n    the road was constructed with the consent and permission of\n\n    the plaintiff, they were well within their right to raise plea of\n\n    limitation and acquiescence but since in the case at hand::: Downloaded on - 19/07/2021 20:10:15 :::HCHP12there is no evidence worth credence, suggestive of the fact that\n\n    in the year 1970, land of the plaintiff was used by the\n\n    defendants after obtaining his consent, rather, documentary\n\n    evidence available on record reveals that after use of land of\n\n\n\n\n                                                           .the   plaintiff,   though   defendants     initiated      acquisition\n\n    proceedings and issued Notification underSection 4of Land\n\n\n\n\n\n    Acquisition Act, Notifications under Ss. 6 and 4 Ext. PJ and\n\n    PH, but for extraneous reasons, such proceedings were not\n\n    allowed to continue rather, were dropped in between. Issuance\n\n\n\n\n\n    of Notifications under Ss.6 and 4 ofLand Acquisition Actitself\n\n    suggests that the plaintiff at no point of time had given\n\n    permission/consent to the defendants to use his land for the\n\n    construction of road without acquisition proceedings, rather,\n\n    issuance of Notifications under Ss.4 and 6 of theLand\n\n\n    Acquisition Act, Exts. PG and PH, substantiate the stand\n\n    taken by the plaintiff in his plaint as well as deposition made\n\n\n\n\n    before learned trial court that he did not object to construction\n\n\n\n\n\n    of road in his land in the year 1970 as he was assured by the\n\n    defendants that he would be paid adequate compensation\n\n\n\n\n\n    through acquisition proceedings.19.   Having carefully sifted entire evidence on record, this\n\n    court finds no illegality and infirmity in the judgments and\n\n    decrees passed by learned courts below, which otherwise\n\n    appears to be based on proper appreciation of record.::: Downloaded on - 19/07/2021 20:10:15 :::HCHP1320.   Substantial question of law is answered accordingly.21.   Now, it would be appropriate to deal with the specific\n\n    objection raised by the learned counsel representing the\n\n    defendants with regard to maintainability and jurisdiction of\n\n\n\n\n                                                               .this Court, while examining concurrent findings returned by\n\n    both the Courts below. Learned counsel for the defendants,\n\n\n\n\n\n    invited the attention of this Court to the judgment passed by\n\n    Hon'ble Apex Court inLaxmidevamma and Others vs.\n\n    Ranganath and Others, (2015)4 SCC 264, wherein the\n\n\n\n\n\n    Hon'ble Supreme Court has held:"16.   Based on oral and documentary evidence, both the courts\n\n          below have recorded concurrent findings of fact that the\n\n          plaintiffs have established their right in A schedule property. In\n          the light of the concurrent findings of fact, no substantial\n          questions of law arose in the High Court and there was no\n          substantial ground for reappreciation of evidence. While so, the\n\n\n          High Court proceeded to observe that the first plaintiff has\n          earmarked the A schedule property for road and that she could\n          not have full-fledged right and on that premise proceeded to hold\n\n\n\n\n          that declaration to the plaintiffs' right cannot be granted.         In\n          exercise of jurisdiction under Section 100 CPC, concurrent\n\n\n\n\n\n          findings of fact cannot be upset by the High Court unless the\n          findings so recorded are shown to be perverse. In our considered\n\n\n\n\n\n          view, the High Court did not keep in view that the concurrent\n          findings recorded by the courts below, are based on oral and\n          documentary evidence and the judgment of the High Court\n          cannot be sustained."      (p.269)22.   Perusal of the judgment, referred hereinabove, suggests\n\n    that in exercise of jurisdiction under Section 100 CPC,\n\n    concurrent findings of fact cannot be upset by the High Court::: Downloaded on - 19/07/2021 20:10:15 :::HCHP14unless the findings so recorded are shown to be perverse.There can be no quarrel (dispute) with regard to aforesaid\n\n    observation made by the Court and true it is that in normal\n\n    circumstances High Court, while exercising powers under\n\n\n\n\n                                                             .Section 100 CPC, is restrained from re-appreciating the\n\n    evidence available on record.23.   The Hon'ble Apex Court in Parminder Singh versus\n\n    Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on\n\n    25.7.2017, has held as under:"14) In our considered opinion, the findings recorded by the\n          three courts on facts, which are based on appreciation of\n          evidence undertaken by the three Courts, are essentially in\n\n          the nature of concurrent findings of fact and, therefore, such\n\n          findings are binding on this Court. Indeed, such findings were\n          equally binding on the High Court while hearing the second\n          appeal."24.   It is quite apparent from aforesaid exposition of law that\n\n\n\n\n    concurrent findings of facts and law recorded by both the\n\n    learned Courts below can not be interfered with unless same\n\n\n\n\n\n    are found to be perverse to the extent that no judicial person\n\n\n\n\n\n    could ever record such findings. In the case at hand, as has\n\n    been discussed in detail, there is no perversity as such in the\n\n    impugned judgments and decrees passed by learned Courts\n\n    below, rather same are based upon correct appreciation of\n\n    evidence as such, deserve to be upheld.::: Downloaded on - 19/07/2021 20:10:15 :::HCHP1525.   Consequently, in view of detailed discussion made herein\n\n    above, I find no merit in the appeal at hand, which is\n\n    accordingly dismissed.     Judgments and decrees passed by\n\n    both the learned Courts below are upheld..Pending applications, if any, are disposed of. Interim\n\n    directions, if any, are vacated.Copy dasti.(Sandeep Sharma)\n\n\n\n\n\n                                                      Judge\n          July 15, 2021\n            (Vikrant)::: Downloaded on - 19/07/2021 20:10:15 :::HCHP