The Superintendent Engineer PWD (Const.) and Others vs Mangtu Ram

Kiran Anand Lall, J.—Under challenge, in this regular second appeal, is the judgment and decree dated 22.10.2002 vide which the first appellate court affirmed the judgment and decree (dated 14.6.2002) of the trial court, in favour of the plaintiff-respondent.

The plaintiff had filed a suit for possession of the land, detailed in para No. 1 of the plaint and had also sought the relief of permanent injunction, restraining the defendants from using the land underneath the road and from interfering into the "uprooting" of the road "running over the land in question". In the alternative, he claimed a decree for mandatory injunction, directing the defendants to assess and pay to him, the damages for the user of land, from the date of construction of road till the decision of suit. The trial court declined the relief of possession but granted a decree to the effect that the plaintiff was entitled to get compensation of the land in question, except the land comprised in killa No. 23/1/2 (claim qua which had been relinquished by the plaintiff vide his statement dated 8.6.2002), and directed the defendants to assess and pay the compensation to the plaintiff, within three months.

The case of plaintiff, as disclosed in the plaint (filed on 11.10.1994), was that he is owner of the land, measuring 13 kanals, detailed in para No. 1 thereof, and he, "has been cultivating the same and has been earning his livelihood since the time of his ancestors." But, on getting his land demarcated, he found that a portion of the Gurgaon - Pataudi road had been laid over his land. He pleaded that the defendants had done so, illegally, unauthorisedly, and without acquiring it under law. In para No. 3 of the plaint, it was pleaded that the land was "snatched" from him, in the year 1951, but he "came to know about this injury caused to him, only on 21.11.1993" when he got his holding (of land) demarcated from the revenue authorities. He, accordingly, sent a notice to the defendants, calling upon them to either restore the possession of land or pay damages from the date of construction of road till the date of payment and also stop the use of land underneath the road. The defendants, however, failed to give the desired relief to him, whereupon he filed a suit against them.

The defendants contested the suit, pleading that PWD, B&R Branch, is maintaining the road, uninterruptedly, since the year 1974 when it came under its charge, by way of transfer, on abolition of Zila Parishad which had constructed it. The plaintiff had never raised any objection, in this regard. It was pleaded that PWD, B&R Branch, had become owner of the land in dispute, by way of adverse possession. Pleas of limitation and estopple were also taken up.

Parties went to trial on the following issues:

Whether the plaintiff is owner of the suit property as alleged? OPP

If issue No. 1 is proved, whether the defendants are in possession of the suit land and the plaintiff is entitled to a decree for possession as prayed for? OPP

Whether the plaintiff is entitled to damages for use and occupation, in the alternative? If so to what amount?OPP

Whether the suit of the plaintiff is not maintainable in the present suit? OPD

Whether the plaintiff has got no locusstandi to file the present suit? OPD

Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD

Whether the defendants have become owner of the suit land by way of adverse possession? OPD

Relief.

The trial court held the plaintiff to be owner of the land, and also answered the plea of adverse possession against the defendants. It further held that the road over the land, was constructed in the year 1951, and since then, traffic had been passing over it. But, as the learned Counsel for the plaintiff did not press the relief of possession and prayed for grant of compensation only, it dismissed the suit for possession but directed the defendants to assess and pay the compensation of land to the plaintiff. The suit was held to be maintainable, and locus-standi of the plaintiff to file it was also upheld. The issue pertaining to estopple was also answered in favour of the plaintiff.

Since the first appellate court also upheld the verdict of the trial court, the defendants came up in second appeal, to this Court.

The suit land (Khasra No. 151/23/1/2 is not to be read as a part of the suit land in view of the above referred to statement made by the plaintiff-respondent on 8.6.2002 before trial court), is recorded in the name of the plaintiff-respondent, as owner, in the jamabandi for the year 1996-97, Ex.PW1/H. Infact, during arguments, ownership of the plaintiff-respondent qua the land was not disputed. His ownership was, infact, not disputed even before the trial court and the first appellate court. So, the question of respondent''s ownership not being in dispute it was expected of the State appellant, to whom two courts had given a concurrent direction for payment of compensation of respondent''s land which it had "encroached upon" for the last so many years, to have graciously complied with the decree, by assessing compensation and making payment thereof to the respondent. But, it did not do so, and instead, like it did before the courts below, it (appellant) pressed its claim of adverse possession, before this Court too. Decidedly, it is not fair on the part of the State, and that too a welfare State, to claim adverse possession over the property of one of its subjects. Learned Counsel for the plaintiff- respondent referred to the Food Corporation of India and Ors. v. Dayal Singh 1991 CCC 629 , in this regard, wherein, in almost similar facts, this Court observed that "it does not behove a State Government to raise a plea of adverse possession and the minimum which was expected from the Government was this much that it should have come with the offer of payment of reasonable compensation".

On the other hand, learned Counsel for the appellants-defendants placed reliance on Karnataka Wakf Board v. Govt. of India and Ors. 1995 AIHC 6666, wherein the Karnataka High Court took a contrary view by upholding the plea of adverse possession put forward by the Government of India. I have carefully considered both the judgments. But, with utmost respect to the Karnataka High Court, I find the view taken by this Court in the Food Corporation of India''s case (supra), to be more logical, and placing reliance thereon, I hold that the State cannot be permitted to claim ownership, by way of adverse possession, over the property of an individual.

Even otherwise, mere taking up of a plea by the appellants defendants, in the written statement, that they had become owner by way of adverse possession, could not be of any benefit to them. To succeed on such a plea, they were to plead and also prove that their possession over the property had been hostile, continuous, and to the knowledge of not only the other party but the whole world. But, as it is, none of these ingredients was pleaded in the written statement, nor any evidence was led with regard thereto. So, on merits also, the courts below had rightly recorded the finding regarding adverse possession against the appellants.

It is undisputed that on a part of the suit land, a metalled road was laid, by the Zila Parishad, in the year 1951, and subsequently this road was handed over to the appellants-defendants for maintenance, in the year 1974. Since then, this road is being used for the convenience of general public. It is also not in dispute that the land underneath the road was never acquired, nor any compensation in respect thereof was paid to its owner viz. the plaintiff-respondent. So, considering the undisputed facts that the land was owned by the plaintiff-respondent but the State had laid a road thereon, for the use of public, without acquiring it or taking consent of the plaintiff respondent, the courts below rightly held that the State is liable to assess and pay compensation thereof, to the plaintiff-respondent.

No question of law, what to talk of a substantial one, arises for determination, in this appeal. The same shall, therefore, stand dismissed, leaving parties to bear their own costs.