M/s. Ramjas Foundation vs Rama Nand Vats thru. LRs

V.K. Shali, J.—This is a regular second appeal filed by the appellant u/s 100 CPC against the judgment dated 17.9.1996 passed by the learned Additional District Judge allowing appeal being R.C.A. No. 59/1995 titled Rama Nand Vats vs. M/s. Ramjas Foundation and setting aside the decree and judgment of the trial court. I have heard the learned counsel for the appellant and have also gone through the record. Briefly stated the facts of the case are that M/s. Ramjas Foundation, the appellant herein, filed a suit bearing No. 570/1986 for possession of 426 square yards of land around Barrack No. 1/7F, Anand Parbat Estate, New Rohtak Road, New Delhi, falling in Khasara No. 1049/356 measuring 40 bighas and 6 biswas situated in the Revenue Estate of Village Chowkri Mubarakabad, Sidhora Khurd, Delhi, more particularly, shown in the green and red colours in the site plan purported to be attached with the plaint. In addition to this, the appellant had also sought recovery of a sum of Rs. 8,946/- being damages/mesne profits at the rate of Rs. 3/- per square yard, that is, Rs. 1,278/- per month for the period from 1.8.1985 to 28.2.1986.

The defendant/respondent contested the suit and on the pleadings of the parties, following issues were framed:

i) Whether the plaintiff has locus-standi to file the suit? OPD

ii) Whether the plaint does not disclose any cause of action? OPD

iii) Whether the suit is valued properly for the purposes of court fee and jurisdiction? OPD

iv) Whether the defendant encroached upon land measuring 426 square yards and hence is liable to pay damages @ Rs. 3/- per square yards w.e.f. 5th August, 1985 to 25th February, 1986? OPD

v) Whether the plaintiff is entitled to the relief of possession? OPD

vi) To what amount, if any, is the plaintiff entitled?

vii) Relief

After the parties adduced their evidence, the trial court decreed the suit against the respondent/defendant on 15.3.1991.

Feeling aggrieved, the respondent/defendant preferred an appeal being R.C.A. No. 59/1995 (16/1991) which was allowed vide the impugned order dated 17.9.1996. The appellate court re-visited the entire evidence and set aside the findings of fact returned by the trial court so far as the allegation of encroachment on 426 square yards of land adjoining the barrack in question is concerned. For arriving at such a finding, the first appellate court observed that the appellant had not placed on record any site plan to establish as to what was the area which was under the tenancy of the respondent/defendant and what portion he had encroached. In addition to this, the appellate court had also placed reliance on the testimony of DW-2, Om Prakash and DW-3, Attar Singh; the two witnesses produced by the respondent/defendant who had stated that they live in the adjoining area of the suit land and that the land has not been encroached. So far as the front and the rear portion of the land in question was concerned, which was under the tenancy of the respondent/defendant, it was stated by the appellate court that it was having a road/service lane and obviously, there was no occasion for the respondent/defendant to encroach on the public land. On the basis of these facts, cumulatively the first appellate court returned a finding that there was lack of evidence on the part of the appellant to prove that the respondent/defendant had encroached upon any land measuring 426 square yards as alleged and consequently, the payment of damages was also set aside and it necessarily resulted in setting aside of the judgment and the decree passed by the trial court.

Feeling aggrieved, the appellant has filed the present regular second appeal. The main contention raised by the learned counsel for the appellant is that the finding returned by the first appellate court is perverse and is not supported by any evidence and, therefore, this raises a substantial question of law.

I do not agree with the submission of the learned counsel for the appellant that the judgment and the decree passed by the first appellate court suffers from any perversity as is sought to be urged. This is on account of the fact that I have reproduced the analysis of the evidence done by the first appellate court to which I also agree that keeping in view the factum of evidence adduced by the respondent/defendant and the fact that the appellant has not proved any site plan, there is complete lack of evidence to establish that the appellant has encroached on a land measuring 426 square yards, as alleged by the appellant, is a question of fact and the trial court has fallen into grave error in concluding that the appellant has been able to establish that the respondent/defendant has encroached on the land and consequently passed the decree of damages.

The learned counsel has further sought to place reliance on two orders passed by this court in case titled Ramjas Foundation vs. Union of India & Ors.; C.W.P. No. 4343 of 1997 and R.S.A. No. 133 of 2010 titled Shiv Prasad Pandey vs. Meera Devi to canvass the argument that the appellant is entitled to the damages as admittedly the appellant has stated that the land has been acquired by the DDA but till the time the possession is taken by the Union of India, they are entitled to the damages.

The question of applicability of the judgments relied upon by the appellant does not arise on account of the fact that in the first instance the appellant has to prove that there was an encroachment which he has miserably failed to do. Therefore, the question of land having been acquired or possession not having been taken becomes totally irrelevant for the payment of damages. I do not feel that the impugned judgment raises any substantial question of law and accordingly, the appeal is dismissed.