C.K. Thakker, J.
1. Leave granted.
2. These appeals are filed by Yamuna Nagar Improvement Trust challenging the legality of judgment and decree passed by Civil Judge (Senior Division), Jagadhri, dated January, 28, 1999, confirmed by the Additional District Judge, Jagadhri on November 24, 2000 and also confirmed by the High Court of Punjab and Haryana on August 14, 2003.
3. The appreciate the controversy in the appeals, relevant facts of both the cases may be stated in brief.
4. In the first matter, a suit was filed by Kharaiti Lal, S/o Deewan, Chand, for permanent injunction restraining Yamuna Nagar Improvement Trust (Trust for short) from interfering with actual and physical possession over the residential house owned by the plaintiff by demolishing the construction made by him. The case of the plaintiff was that he along with his brother Mulakh Raj purchased the property bearing Khasra No. 173 min, mauza Gobindpuri now Sham Nagar, Near Bus Stand, Model Town, Yamuna Nagar, from one Mangal, S/o Nihala vide registered sale deed dated March 9, 1962 for valuable consideration. It was his case that in pursuance of the sale deed, physical and actual possession of the land was handed over to the plaintiff and his brother by Mulakh Raj. Thereafter, the plaintiff constructed a residential house wherein he was residing alongwith his family members. According to the plaintiff, he was paying house tax to the Municipal Committee, Yamuna Nagar. Water and electric connection was also given to him in the residential house. It was alleged by the plaintiff that officials of the defendant-trust came to be house of the plaintiff and threatened to demolish the house though the trust had no right, title or interest in the property. The plaintiff made enquiries from the office of the defendant and came to know that the said property had never been acquired by the defendant-trust. Since there was threat to demolish the property which belonged to the plaintiff, he was constrained to approach the court for permanent injunction.
5. The trust filed a written statement inter alia contending that the disputed land was acquired by the State Government by issuing notifications under the Land Acquisition Act, 1894. An award was declared for the said land on May 6, 1970. The mutation of transfer of land was also sanctioned on February 9, 1972. The plaintiff was a party to the award proceedings. He received the amount of compensation also. The defendant took over possession of the land. It was also stated in the award by the Land Acquisition Collector that the plaintiff had agreed to remove his malba from the site at his own cost. The plaintiff thus was not in possession of the land and was a trespasser. It was also asserted that some of the land owners filed a writ petition in the High Court being Civil Writ Petition No. 4279 of 1981which was dismissed.
6. It was further stated by the defendant that the plaintiff never challenged the award passed by the Land Acquisition Collector. On the contrary, he was a party to the award, he accepted the award, received the amount of compensation and agreed to remove malba at his own cost. Since the plaintiff had no right whatsoever, the suit filed by him was liable to be dismissed.
7. The trial court decreed the suit holding that the suit land which was a 'part of Khasra No. 1733, mauza Gobindpuri' was not acquired by award dated May 6, 1970 under the notification dated June 3, 1966. It was observed that Mangal from whom the plaintiff purchased the land was not applicant before the High Court in the writ petition. On the basis of the sale deed dated March 9, 1962, the plaintiff became the owner of the property and was in possession thereof. There was no material to show that the said land was acquired by the State Government and hence the plaintiff was entitled to permanent injunction.
8. Being aggrieved by the decree of the trial court, the appellant preferred an appeal. It was contended by the appellant that land was acquired and plaintiff was party to the proceedings. It was also pleaded that no house tax receipt or electricity bills were produced by the plaintiff. According to the defendant, it was in possession of the property from the date of the award. Moreover, the amount deposited towards compensation had already been accepted by the plaintiff and as such he had not come with clean hands. It was urged by the defendant that the claim of the plaintiff in the suit related to old Khasra No. 173. The house of the plaintiff which existed in old Khasra No. 173 stood acquired by the State Government for Improvement Trust. Old Khasra No. 173 became new Khasra No. 237/1. The said important and relevant fact had been overlooked by the trial court which had resulted into miscarriage of justice. The trial court held that the suit land was part of Khasra No. 1733 without there being any pleading or documentary evidence on record. It was, therefore, submitted that the decree passed by the trial court was liable to be set aside.
9. The lower Appellate Court stated that the crucial question which arose before it was as to whether the land bearing Khasra No. 173 min was acquired by the State Government for the trust or not. The Court stated that from the award, it was clear that Khasra No. 173/2 had been acquired and was covered by notification dated May 6, 1970, but Khasra No. 173 min was not acquired by the State Government. The Court also stated that the defendant failed to prove that compensation amount was paid to the plaintiff or to the previous owner. The Court, therefore, observed;
"Thus, it can be safely said that there is no cogent, relevant or proper evidence on the file, which may prove beyond shadow of doubt, that Khasra number 173 min has been acquired by the government. Furthermore it was bounded duty of the defendant/ appellant, to bring the notification or copy of the award on the file in their evidence in order to establish the said that but the defendant has failed to prove the said fact on the record. No doubt, copy of the award is available on the file, and I take judicial notice of the same and perusal of the same clearly shows that Khasra number 173 min has not been included in the acquired land, whereas, one Khasra number 173/2 min has been mentioned as acquired in the award, and the same has not been connected with the suit land at all. Hence, the link evidence in this case is missing."
10. The appeal was accordingly dismissed.
11. The matter was carried by the appellant in Second Appeal before the High Court. The learned single Judge dismissed the appeal observing that both the courts below had found that the suit land bearing Khasra No. 173/1733 was not the subject matter of the award dated May 6, 1970. Concurrent finding of fact by the courts below did not call for interference.
12. The appellant has challenged those orders by approaching this Court.
13. In the second matter, one Darshan Lal Sachar, S/o Lal Chand Sachar, filed a suit for permanent injunction restraining the defendants from interfering with his rights over the property by demolishing the boundary wall and other construction over the plot bearing Khasra No. 1733, Mauza Gobindpuri now Sham Nagar, Near Bus, Stand, Yamuna Nagar. It was his case that the property in question was originally owned by Smt. Ram Kali, Wd/o Shri Kundan Lal Bhatia and Smt. Bhagwati, Wd/o. Shri Ram Saran Bhatia, residents of Ludhiana. They sold it to one Surender Kumar, S/o Rura Ram Dhir vide registered sale deed dated May 13, 1981. Said Surender Kumar sold the property to the plaintiff by registered sale deed dated September 21, 1990 by handling over actual and physical possession to the plaintiff. Thus, the plaintiff became the owner of the property in question. Like the other case, the plaintiff of this suit also alleged that since the officials of the defendant-appellant approached the plaintiff and threatened to demolish the construction, he was compelled to come to the court by filing a suit and praying for permanent injunction. According to the plaintiff, he was the owner of the property and the defendant had no right, title or interest therein.
14. In the written statement, the defendant contended that the land was acquired by the State Government, notifications under the Land Acquisition Act, 1894 were issued and award was also declared. Mutation of transfer was sanctioned as early as in 1972 and neither Surender Kumar nor the plaintiff had any right, title or interest after the issuance of notification and award passed by the Land Acquisition Collector. Surender Kumar was not entitled to sell the land after 1972 and hence, even if there was any transaction, it was of no effect, was not binding upon the defendant. Moreover, there was no Khasra No. 1733 mentioned in the sale deed. It was also stated that some of the land-owners filed a writ petition which was dismissed. The defendant, therefore, prayed for dismissal of the suit.
15. The trial court considered the contentions of the parties. The court noted that there was no mention of Khasra No. 1733 in the sale deed, however, Khasra No. 173 had been mentioned as Khasra No. 173 min in which there was old construction of the plaintiff.
16. The court, therefore, observed;
"After going through the relevant documents this court is of the view that the suit land which is part of khasra no. 1733 Mauza Gobindpuri now Shyam Nagar Colony, Yamuna Nagar was not acquired vide the award dated 6.5.1970 on the basis of notification dated 3.6.1966 vide which 115 acres of land in Gobindpuri Mauza revenue estate had been acquired by the government. Further Ram Kali and Bhagwati or Surender Kumar from whom the present plaintiff had purchased the land were not applicants in the writ petition filed before the Hon'ble High Court. It is worthwhile to mention here that the defendant could not prove the original award as well the order of the Hon'ble High Court passed in the writ petition as mentioned in the pleadings. On the basis of sale deeds dated 13.5.1981 and 21.9.1970, it is proved that the plaintiff is in possession over the property in question and there is no material on the file to show that the land in possession of the plaintiff was part of the land acquired by the Government vide award dated 6.5.1970."
17. When the Trust filed a appeal, the lower Appellate Court confirmed the decree passed by the trial court. The Court noted that it was argued by the defendant that the trial court had wrongly held that there was no mention of Khasra No. 1733 in the lay out plan while the true fact was that in the lay out plan it was Khasra No. 173 alongwith other Khasra numbers which stood acquired by the State Government for Improvement Trust and house property of the plaintiff was on Khasra no. 173 and not on Khasra No. 1733. The Court observed that it was not proved that the land of plaintiff was acquired by the State Government. According to the Appellate Court, the land purchased by the plaintiff mentioned as Khasra No. 1733 but in fact it was Khasra No.173 which was not included in the award for acquisition and the trial court rightly held that the defendant-trust had no right over the said land.
The Court finally concluded;
"The above discussed evidence of the parties makes the matter manifestly clear, that in fact, the appellant/defendant contends that the suit land has been acquired by the government vide award dated 6.5.1970, the copy of the award is available on the file which is mark A. Though the said document has not been proved in accordance with law, but in the interest of justice, I perused the said document and has given weightage and found that the khasra No. 173/2 min has been acquired and the new number of the khasra number is mentioned as 238/1, 239/2, it is further evident from the award that khasra no. 173 has not been acquired. Further, there is a positive evidence on the file that new khasra number of 173 is 237 and there is nothing on the file, which may suggest that the khasra no. 237 has been acquired by the State govt. Further, I would like to mention over here, that no doubt, in the sale deed, khasra number is mentioned as 1733, but the plaintiff himself while appearing in the witness box as PW1, has admitted that Khasra no. 1733 is in fact khasra No. 173, but there is no cogent or relevant evidence on the filed which proves or reflect that khasra number 173, has been acquired by the government. Further, award clearly revels that khasra no. 173/2 min has been acquired and the defendant failed to connect the said khasra number with the khasra number of the plaintiff sale-deed i.e. 173 or 1733. If this is so, the it can be safely said that the defendant has failed to rebut the evidence of the plaintiff that khasra number 173 has not been acquired by the government. Further, there is nothing on the file which may suggest that after acquisition of the land compensation amount ever paid to the plaintiff or its previous owner from whom the plaintiff had purchased the said plot. Thus, the defendant has failed to connect the land of the plaintiff comprised of khasra number 173 to the land mentioned in the award as 173/2 min. If that is so, the learned trial court was correctly formed an opinion, that the plaintiff-respondent is owner in possession of the land in dispute, and the same has been acquired by the Government/Improvement Trust, by dint of award dated 6.5.70. AS the link evidence in this case is missing, so I am of the view, that the finding of learned Trial Court in this connection is legal, valid, based on facts and law which requires no interference from the appellate court, and is sustainable in the eyes of law."
18. Accordingly the appeal was dismissed and the decree passed by the trial court was confirmed.
19. The second appeal filed by the defendant-appellant in the High Court also came to be dismissed on the ground of concurrent findings of fact recorded by the courts below and there was no substantial question of law involved. The appellant-trust is, hence, here in this Court.
20. We have heard learned counsel for the parties.
21. The learned counsel for the appellant contended that all the courts were wrong in decreeing the suit filed by the plaintiffs. So far as the first matter is concerned, the counsel submitted that the respondent-plaintiff was a party to the award proceedings, notice was issued to him, award was declared, compensation was determined, amount was paid which was received by the plaintiff and the defendant was put in possession. It was thereafter not open to the plaintiff to file a suit for permanent injunction without challenging the award. It was also contended that the courts were not right in observing that there was no Khasra No. 173 in the locality and the land was part and parcel of Khasra No. 1733 which was not acquired under the award. It was, therefore, submitted that the appeal deserves to be allowed.
22. In the second case, it was contended that all the courts were wrong in decreeing the suit of the plaintiff in spite of the fact that there was no Khasra No. 1733 mentioned in the sale deed. It was further argued that the courts were not justified in observing that in the witness box, PW1 had admitted that Khasra No. 1733 was in fact Khasra No. 173 and, hence, the plaintiff was entitled to decree. It was, therefore, submitted that the suit filed by the plaintiff was liable to be dismissed.
23. The learned counsel for the respondent, on the other hand, supported the decree passed by the trial court and confirmed by the lower Appellate Court as well as by the High Court. It was submitted that on the basis of the facts on record, the trial court decreed the suit for permanent injunction which was confirmed by the lower Appellate Court. No substantial question of law had been involved and accordingly the High Court summarily dismissed the appeals. It was, therefore, submitted that in exercise of discretionary jurisdiction under Article 136 of the Constitution, this Court may not interfere with the orders passed by the courts below.
24. Having heard learned counsel for both the parties, in our opinion, both the appeals deserve to be allowed. So far as the first matter is concerned, it is clear that the land was acquired as early as in 1966. The notification was issued on 3rd June, 1966 and an award was passed on 6th May, 1970. Mutation had been effected in February, 1972. A copy of the award is also part of the present proceedings and it refers to Khasra No. 173/2 min. The case of the appellant is that initially there was Khasra No. 173 which was later on divided in two Khasra Nos. being 173/1 and 173/2. Though the plaintiff claimed the disputed land on the basis of the sale deed contending that he had purchased a portion of land out of old Khasra No. 173 min, he was unable to specify as to whether he was having his plot in Khasra No. 173/1 or 173/2. The factual position, according to the appellant-Trust was that Khasra No. 173/1 was given new Khasra no. 230 and Khasra No. 173/2 min was divided into various parts and given new Khasra Nos. 232, 233, 234, 235, 236, 236/1, 237, 238 and 239. As per new numbers, the land of the plaintiff Khairati Lal was covered by new Khasra No. 235 which had been validly acquired and was covered by the award. The award specifically refers to Khasra No. 173/2 min new Survey No. 235. It also gives names of persons who had made un-authorised construction and the name of the plaintiff Khariati Lal is mentioned. It also mentions names of Mangat Ram brother of the plaintiff and Mulkh Raj from whom the plaintiff had purchased the land.
25. The award then stated as under:-
"None of them have filed any claim either for the construction of land there under. They are not entitled to get any compensation of the construction they raised after the formulation of scheme. The cost of land under these houses has already been assessed to the owners as per revenue record. They are, however, allowed to removed the malba at their own costs.
During my recent inspection, I have found that certain other persons have also raised un-authorised construction for which they are not entitled for any compensation. They too are allowed to remove the malba at their own cost."
26. From the aforesaid discussion, in our opinion, the courts below were not right in decreeing the suit filed by the plaintiff. The courts were also wrong in observing that it was not proved by the defendant that the land was acquired by the State Government. In our opinion, when the plaintiff had approached the court for permanent injunction claiming to be owner of the property, it was his duty to prove that he was the owner of the property, the said property remained in his possession and that the defendant had no right, title or interest therein. Since the plaintiff failed to prove his case the suit was liable to be dismissed. We are also satisfied that from the award, it is clear that the plaintiff had knowledge of all the proceedings. He was party to the award, was found to be in unauthorized possession and had agreed to remove the malba at his own costs.
27. In the second matter, it was an admitted fact that the original owners were Smt. Ram Kali, widow of Kundan Lal Bhatia and Smt. Bhagwanti, widow of Ram Saran Bhatia. They sold the property to Surender Kumar in 1981, who in turn sold the property to the plaintiff in 1990. As per the case of the defendant, the notification was issued by the State Government in 1966 and the award was declared in May, 1970 and the land was mutated in 1972. Two widows, therefore, could not have sold the property to Surender Kumar in 1981 nor the property could have been sold by Surender Kumar to the plaintiff in 1990. The plaintiff, hence, did not get any right in 1990.
28. In our opinion, the courts were also wrong in observing that though Khasra No. mentioned was 1733 but looking to the evidence of the plaintiff, it was 173 and not 1733. According to the defendant there was no land bearing Khasra No. 1733. It was Khasra No. 173 which was divided later on in Khasra No. 173/1 and 173/2. Khasra No. 173/1 was given new Khasra No. 230 and Khasra No. 173/2 min had been divided into various parts and the land claimed by plaintiff Darshan Lal was covered by Khasra No. 237/1. A copy of the award which is part of the present proceeding expressly refers to 173/2 min - new Survey No. 237/1 - is part of old Khasra No. 173/2 min. Thus the said land too vested in the State Government free from all encumbrances and plaintiff had no right, title or interest in it. All the courts below, therefore, were wrong in decreeing the suit of the plaintiff. Since the plaintiff had no right in 1990 when according to him he purchased the property, his suit was liable to be dismissed.
29. For the aforesaid reasons, both the appeals deserve to be allowed and are accordingly allowed. The orders passed by the Trial Court, Appellate Court as well as High Court are set aside and the suit filed by the plaintiffs are dismissed, however, with no order as to costs.