R.S.A. No.1587 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1587 of 2003 Date of Decision:04.11.2008 Union of India .....Appellant Vs. Gurmukh Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Ms. Renu Bala, Advocate for the appellant. Mr. R.S.Rai, Advocate for the respondent. **** JUDGMENT HARBANS LAL, J. (Oral) This appeal is directed against the judgment/ decree dated 30.10.2002 passed by the Court of learned Additional District Judge, Ferozepur whereby he reversed the judgment/ decree dated 30.5.2002 rendered by the Court of learned Civil Judge (Junior Division), Ferozepur vide which he dismissed the suit of the plaintiff. The factual matrix is that the suit land is the ownership of the plaintiff. The Union of India and Department of Border Security Force (for short, `the BSF') have acquired the same for construction of Shamsh Ke Border post. The possession was taken by BSF authorities, who had erected fencing with barbed wire. The land was in their possession. The plaintiff made several requests to the defendant since 1987 for payment of compensation of the land acquired or in the alternative, to restore possession thereof to him. He also served a notice under Section 80 of the Code of Civil Procedure upon the defendant, but in vain. On these allegations, the plaintiff has filed the suit for possession of the land measuring 3 kanal 8 R.S.A. No.1587 of 2003 -2- marlas comprised in Rectangle No.57, Killa No.23/3 (3-8 ), Khewat No.10, Khatauni No.29, Hadbast No.307 situated at Village Dona Bahadur Ke Sub- Tehsil Guruhersahai, District Ferozepur or in the alternative the compensation be given to him. Having entered appearance, the defendant filed written statement, inter-alia pleading that the Central Government is the owner in possession of the suit land since 1957. The plaintiff has no right, title or concern therewith. Traversing other facts in the plaint, it has been prayed that the suit may be dismissed. The following issues were framed:- 1. Whether the plaintiff is entitled to relief of possession of suit land measuring 3 kanals 8 marlas detailed in the head note of the plaint? OPP 2. Whether the defendant has acquired the land for construction of a border post and therefore, the plaintiff is entitled to be compensated in terms of price of land alongwith interest as assessed and calculated as per rules and procedure laid down under Land Acquisition Act? OPP 3. Whether the land in question belongs to the Central Govt. and the defendant is in possession since 1957? OPD 4. Whether the present suit is not maintainable in the present form? OPD 5. Whether the suit is false and frivolous? OPD 6. Relief. After hearing the learned counsel for the parties and examining R.S.A. No.1587 of 2003 -3- the evidence on record, the learned trial Court dismissed the suit. Feeling aggrieved therewith, the plaintiff Gurmukh Singh went in appeal, which as noted supra was accepted and the judgment/ decree of the learned trial Court was set aside holding that the plaintiff- appellant is the owner of the land and entitled to receive and recover its possession against the respondents, who is occupying the same illegally as a trespasser. Feeling dissatisfied therewith, the Union of India has preferred this appeal. The following substantial question of law arises for determination by this Court:- “Whether the learned Lower Appellate Court has misconstrued the fact that the appellants are the trespassers in the suit land, whereas they are in possession of the same since 1957 through the Punjab Armed Police and since 1965 under their own control.” I have heard the learned counsel for the parties, besides perusing the record as well as the findings returned by both the Courts below with due care and circumspection. Ms. Renu Bala, Advocate appearing on behalf of the appellant urged with great eloquence that the learned Additional District Judge, Ferozepur has completely overlooked the fact that the plaintiff- respondent Gurmukh Singh has himself stated in his testimony that the Border Security Force is in possession of the disputed land since 1987 whereas on the other hand, he has relied upon the khasra girdawari of 1997-98 showing him as owner in possession of the suit land. She further puts that the story put forth by the plaintiff regarding acquisition of the land is neither corroborated by the Rules nor the procedure laid down in the Land Acquisition Act and, R.S.A. No.1587 of 2003 -4- furthermore he has not adduced any evidence justifying that he is entitled to recover the land in dispute. On the other hand, Mr. R.S. Rai, Advocate representing the plaintiff- respondent argued that no holes can be picked in the findings returned by the First Appellate Court. I have well considered the rival contentions. The plaintiff has come up with the plea in the plaint that the suit land was acquired about 12 years ago and the possession of the same has also been taken from him, but without payment of any compensation. If this plea is taken to be true, how the Union of India- defendant can be deemed to be a trespasser in the land in dispute. The learned First Appellate Court has held the defendant to be a trespasser though it is not the plea of the plaintiff nor it could be in view of the above assertions in the plaint. Obviously, the learned Appellate Court has travelled beyond pleadings. The plaintiff has placed on record Ex.P.2, the copy of the jamabandi for the year 1997-98 as well as Ex.P.3, the copy of khasra girdawari for the period from Sawni 1993 to Harri 1998. In these documents, he is shown as owner in possession of the land in dispute. But as per mutation No.395 Ex.D.1, Central Government was the owner of the land in dispute which was being cultivated by the plaintiff. As per Ex.D.2, BSF is in continuous possession of the land in dispute. Ex.D.6, mutation is also in favour of the Central Government. The plaintiff Gurmukh Singh as PW1 has deposed that about 11/12 years ago, the possession of his land was taken by BSF and had erected barbed wire around it and he had approached the BSF authorities with a request to surrender the possession of this land in his favour or give compensation to him. In his cross-examination, he has testified that now the suit land is in possession of BSF and prior thereto, it was in the possession of PAP; that there is no construction over this land. R.S.A. No.1587 of 2003 -5- Under the stress of cross-examination, he has admitted that prior to BSF, their used to be PAP Post over this land. In his further cross-examination, he has admitted that this land was the ownership of the Central Government and the same was purchased by him on installments. Thus, he has ostensibly spilled the beans. He has not produced the sale certificate issued, if any, in his favour with regards to the purchase of this land by him from the Central Government. The learned First Appellate Court merely relying upon the solitary statement of the plaintiff reversed the findings returned by the learned trial Court. Own admissions of the plaintiff falsify the entries in the above-referred documents. As follows from the above discussion, the appellant in no manner can be held to be trespasser in the suit land. Accordingly, the substantial question of law is answered against the plaintiff- respondent. In the ultimate analysis, the judgment/ decree of the learned First Appellate Court is set aside and that of the learned Trial Court is restored. November 04, 2008 ( HARBANS LAL ) renu JUDGE