1 fa533-91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE rpa FIRST APPEAL NO. 533 OF 1991 Smt. Draupadi Bhaskar Parab ] Since deceased through her LR's ] 1(a) Mr.Vishweshwar Bhaskar Parab] .. Appellants & Ors. ] V/s. The State of Maharashtra & Anr. ] .. Respondents .... Mr. D. S. Sawant for the appellants. Mr. A. R. Patil, A.G.P. for respondent-state. Mr. S. G. Surana for respondent Nos. 2(c) to 2(b). .... CORAM : A. S. OKA, J. DATE : JANUARY 28, 2011. JUDGMENT :- Heard the learned counsel appearing for the appellants, the learned AGP for the State and the learned counsel appearing for the legal representatives of the second respondent. By the impugned Judgment and decree, a suit filed by the Appellants against the original second respondent as well as a Reference under Section 30 of the Land Acquisition Act, 1894 (hereinaftera 2 fa533-91 referred to as the “said Act”) have been disposed of. The land bearing Survey No. 240 Hissa No. 4+5+6 together with House No.862 standing thereon together with other lands situated at village Chanaje were notified for acquisition under the Land Acquisition Act, 1894. An Award under was made by the Special Land Acquisition Officer in September, 1986. There was a dispute regarding apportionment of the compensation between the appellants and the second respondent. The dispute was as regards the house on the acquired land. The dispute was regarding ownership of the structure /chawl which was referred under Section 30 of the said Act to the Civil Court. 2. Appellants filed Regular Civil Suit No. 40 of 1990 in respect of the said house/chawl. It was contended in the suit that the house was originally a cattle shed which was converted by the first appellant into a permanent structure. It was stated that the second respondent (defendant in the suit) was serving at Uran Police station as a Sub Inspector. He was transferred from Uran to Nashik and on his request, the first appellant allowed the second respondent to keep his articles in the suit house. In the suit, a prayer was made for declaration of ownership and for declaration 3 fa533-91 that the second respondent has no concern with the suit property. Injunction was prayed as regards receiving the compensation from the Special Land Acquisition Officer. The learned District Judge transferred the suit from the Court of Civil Judge (Junior Division) to the Court where Reference under Section 30 of the said Act was pending and that is why both the matters were heard together. The trial Court recorded a finding that the appellants have failed to prove that they were the owners of the suit house and that they had allowed to the second respondent to use the suit house for temporary use. By the impugned Judgment and order, it was held that the plaintiffs were not entitled to any relief and the second respondent was entitled to claim and receive compensation in respect of the suit house. 3. The learned counsel appearing for the appellants has taken the Court through the notes of evidence. He submitted that as far as land below the suit house is concerned, it is not disputed that the first appellant was the owner. He submitted that on the basis of surmises and conjunctions, the trial Court has come to the conclusion that the second respondent has constructed the suit house and has become the owner thereof. He submitted that the 4 fa533-91 said finding is perverse. 4. The learned counsel appearing for the legal representatives of the second respondent submitted that there was no evidence adduced by the plaintiffs to show that either the plaintiffs or their predecessor constructed the suit house and as the plaintiff- appellant failed to prove their plea of ownership, on the basis of the evidence adduced by the second respondent, a correct inference has been drawn by the Court below that the second respondent has constructed the suit house and therefore he is entitled to compensation in respect of the suit house. I have also heard the learned AGP appearing for the State Government. 5. I have given careful consideration to the submission. There does not seem to be any dispute about the fact that the suit land was vesting in the appellants. Only dispute is about the suit house. When admittedly the land below the suit house vested in the appellants, it was for the second respondent to prove that he had constructed the suit house, and, therefore, he was the owner of the suit house. It must be stated here that the second respondent did not step into the witness box on the ground of his old age and 5 fa533-91 ill health. His son Sunil was examined. He stated that since the year 1968, his family was staying in the suit house. He stated that the second respondent constructed the suit house. Age of the said Sunil as disclosed in the year 1991 at the time of recording of his evidence was 35 years. Even going by his case, the suit house was constructed prior to the year 1968. Thus, at the time of construction, his age must be 11 or 12 years. Hence, he may not have personal knowledge as to who constructed the house. A detailed cross examination of the said witness was made. He could not state before the Court whether any construction permission was obtained by his father. He was not able to tell the name of the mason and/or the carpenter engaged for the purpose of construction. He was unable to tell whether his father had applied for water connection from Gram Panchayat and whether he had applied for electricity connection. Thus, the second respondent produced no documentary evidence to show that construction of the house was carried out by him. In fact, the witness examined by the second respondent had hardly any personal knowledge as to who constructed the house. 6. Perusal of the findings recorded by the trial Court shows 6 fa533-91 that it was held that the second respondent was having a possessory title over the suit house. In view of long standing possession it was held that the second respondent had constructed the suit house and had become the owner thereof. The said finding has no basis and is completely contrary to the evidence on record and especially the cross-examination of the said Sunil. Mere long standing possession of the suit house will not confer title on the second respondent. In the circumstances, there was no warrant for the finding that the second respondent was entitled to ownership of the said house and, therefore, was entitled to compensation in respect of the suit house. At this stage, it must be stated that the learned counsel appearing for the appellants on instructions of the appellant No.1(a) Shri Vishweshwar Bhaskar Parab [and also the legal representative of the appellant No.1(b)] who is personally present in the Court states that the appellants without prejudice to their rights and contentions are willing to pay a sum of Rs.45,000/- out of the compensation payable in respect of the suit house to the legal representatives of the second respondent. He states that the said statement is being made that as the second respondent was allegedly in possession. The statement is accepted. 7 fa533-91 6. Hence, I pass the following order : :: O R D E R :: i. The impugned Judgment and Order is quashed and set aside. The suit filed by the appellants is partly decreed. ii. Out of compensation awarded in respect of the suit house, the legal representatives of the second respondent will be entitled to a sum of Rs. 45,000/-. Rest of the amount including interest accrued thereon shall be payable to the appellants. iii. The land acquisition Reference No. 368 of 1987 also stands disposed of accordingly. iv. Appeal is partly allowed in the above terms with no order as to costs. JUDGE