IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 155 of 2001. Date of decision: 1.6.2011 _________________________________________________ Shri Bahadur Singh ….Appellant. Versus State of H.P. through Collector Kinnaur and others. ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes For the appellant : Ms. Salochna Kaundal, vice counsel for the appellant. For respondents : Mr. J.S. Rana, Assistant Advocate, General, for respondent No. 1. Mr. Sandeep Sharma, Assistant Solicitor General of India, for respondents No. 2 and 3. Surinder Singh, J : (Oral) 1. Present Regular Second appeal under Section 100 of the Code of Civil Procedure has been filed by the appellant hereinafter referred to as ‘the plaintiff’ against the judgment and decree passed by the learned District Judge on 23.10.2000 in civil 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - appeal No. 18 of 2000, whereby the judgment and decree dated 12.11.1999 of the Senior Sub Judge in civil Suit No. 35-1 of 1997 were set aside. This second appeal was admitted on the following substantial question of law: (i) Whether in the absence of the prescription of any procedure under Section 16 for the taking/transferring the possession of land under the Land Acquisition Act, 1894, the mere fact of making the award and making the payment of the compensation to the original owner of the land as per the award without taking any kind of positive step by the Collector for taking possession would ipso-facto tantamount to taking/transferring possession of the acquired land on the sole basis of a suo-motu unilateral paper entry in the record by the subordinate revenue authorities of the beneficiary State? 2. Briefly stated the facts giving rise to the present appeal can be stated thus. The plaintiff instituted a suit with respect to suit land for declaration with consequential relief of injunction against the State-respondent, hereinafter referred to as ‘the defendants’ pleading that the suit-land comprised in khasra No. 1813 measuring 0-14-32 hectares situated in up-mohal Sungra, Tehsil Nichar - 3 - District Kinnaur, H.P. was inherited by him from his father, thus he remained its owner throughout. According to him, about 40 years back, a kacha structure was raised by his ancestors on a portion of suit khasra denoted by khasra No. 1813/1. The contention of the plaintiff is that in the year 1975 he renovated the said old structure but at the behest of Patwari, the Assistant Collector 1st grade Nichar started encroachment proceedings against him and ultimately order of ejectment dated 5.8.1996 was passed, by demolishing the structure. It is also the case of the plaintiff that the entries in the name of the defendants were wrong and illegal and even the demarcation was not properly conducted by the Patwari in order to find out the encroachment. He also pleaded that in case it is proved on record that defendants-State had acquired the suit land for the construction of NH-22 but its possession was never taken from the plaintiff or his predecessor in accordance with law. Thus, he acquired the title by adverse possession. 3. The suit was resisted and contested by the defendants by filing written statement. They raised - 4 - the preliminary objections of estoppel, non-joinder of necessary parties and also questioned the maintainability of the suit and took up the objection of jurisdiction and cause of action. 4. On merits, they admitted that Girza Nand father of the plaintiff was owner in possession of the suit land old khasra of which was 787 and 947/791 measuring 4 bighas which was acquired for the construction of the National Highway (NH22) by defendant No. 1 under the provisions of Land Acquisition Act, 1894 and the Collector Land Acquisition vide its award dated 19.9.1958 determined the compensation to the tune of `2400/- which was paid to him. It is specifically averred that the possession of the suit land along with other acquired land was taken by defendant No. 1 and further that at the time of settlement in the year 1983-84, aforesaid old khasra numbers were clubbed together and were assigned khasra No. 1813 measuring 0-44-31 hectares. On its portion the defendants constructed NH22. Since the plaintiff had encroached upon the land in the year 1988 as such report was filed by the Patwari before the Assistant Collector 1st Grade and finding - 5 - substance in his report, he was rightly ordered to be ejected there from, after following proper procedure. The adverse possession has also been denied. The plaintiff is stated to be a rank-trespasser and was rightly ordered to be ejected. It was also the stand of the defendants that the Border Road Organization (B.R.O.) have been in possession of the suit w.e.f. the year 1962 thus, the plaintiff was not entitled to seek any relief as prayed for. 5. On the pleadings of the parties, learned trial Court framed following issues:- 1. Whether the plaintiff is owner in possession over the suit land and defendants are interfering with the possession of the plaintiff, as alleged? OPP 2. If issue No. 1 is proved in affirmative, whether plaintiff has been in open, peaceful continuous possession and has become owner by way of adverse possession over the suit land, as alleged? OPP 3. If Issue No. 1 is not proved in affirmative, whether suit land was illegally acquired by the defendants - 6 - and possession of the suit land was not taken by the defendants from the plaintiff, as alleged? OPP 4. Whether plaintiff does not have any cause of action to file the present suit, as alleged? OPD 5. Whether the suit is not maintainable in the present form, as alleged? OPD. 6. Whether this court has got no jurisdiction to decide the case? OPD 7. Whether the plaintiff is estopped from filing the present suit on account of his own act and conduct? OPD. 8. Whether State of H.P. is owner of the suit land but Border Organization is in possession of the suit land since 1962, as alleged? OPD. 9. Whether the National Highway Road NO. 22 passes through the suit land since 1962, if so its effect? OPD. 10. Whether suit of the plaintiff is bad for non-joinder of necessary parties? OPD. 11. Relief. 6. After trial, issue No. 2 was held redundant. The learned trial Court answered all other issues in favour of the plaintiff and against the defendants, consequently, decreed the suit of the plaintiff - 7 - holding that the suit land was acquired by the defendants-State for constructing NH-22 in the year 1958 but its possession was not taken up by them as per law, therefore, defendants were restrained to dispossess the plaintiff from the suit land by a decree of permanent perpetual injunction against them. 7. In appeal, filed by the defendants, impugned judgment and decree was reversed by the first appellate Court holding that the learned trial Court clearly fell in error treating the plaintiff and his predecessor-in-interest owner in possession of the suit land despite payment of compensation aforesaid for the acquisition of the suit land. 8. The perusal of the record reveals that Girja Nand aforesaid had been owner in possession of old khasra No. 787 and 947/791 measuring 4 bighas. Defendant No. 1 notified acquisition of khasra No. 787 and khasra No. 947/791 (old) for the construction of NH 22 in the year 1958 regarding which an award was passed determining the compensation of Rs. 2400/- payable to the land owners. This amount was paid to Girja Nand aforesaid for the acquisition of his property. After passing the award, - 8 - the mutation Ext. P1 was also accepted and attested on 11.1.1962 by the Assistant Collector 2nd grade which fact escaped notice of the learned trial Court. The remarks column of the mutation aforesaid clearly indicates that the land under acquisition, including the suit land stood acquired by the State and the award was passed on 19.9.1955 by the Land Acquisition Collector. There is also a note appended to the mutation that the acquiring department had taken possession of the suit land along with other land and while attesting the mutation, the Assistant Collector 2nd grade had also made the mention thereof and the said mutation was attested in the presence of the owners and rightly so observed by the learned first appellate Court that it was not a case of the plaintiff that his father had not put in appearance before the Assistant Collector 1st grade at the time of attestation of the mutation. It is clear from the documentary evidence on record that there are consistent jamabandies prepared subsequent to the mutation aforesaid regarding possession of Border Road Organization and these entries were made pursuant to the mutation - 9 - aforesaid which was accepted and attested after passing of the award by the Land Acquisition Collector and also on making the payment to the predecessor-in-interest of the plaintiff. 9. Further In the year 1983-84 revenue estate Sungra was under settlement operation and in the last settlement, defendant No. 1 was recorded as owner of the land and defendant No. 3 BRO in its possession on the jamabnandi missal haquit which has a statutory presumption and thereafter these entries were repeated in the subsequent jamabandies. Plaintiff has not been recorded in possession on any portion thereof. 10. The learned first appellate Court on facts also rightly observed that the suit khasra No. 1813 had been carved out from so many fields numbers. In case, the plaintiff had been in possession of any portion of suit khasra No. 1813 a separate field number of the area of this khasra number under the possession of the plaintiff was required to be given by the Settlement Authorities which is not so, thus it suggests that the plaintiff’s stand was frivolous with - 10 - respect to the old structure having been there for the last more than 40 years. 11. Confronted with the above situation, Ms. Salochana Kaundal, learned counsel for the appellant vehemently argued that though there is evidence that suit khasra was acquired by the defendant-State for the purpose of constructing the NH-22 and the compensation was paid to Shri Girja Nand, even then, in absence of proof of taking possession by the State, the existence of structure and its possession by the plaintiff cannot be ruled out, therefore, proceedings under Section 163 of the Land Revenue Act, for his ejectment were uncalled for and alternatively the possession of the plaintiff has now become adverse. Therefore, the impugned judgment and decree of reversal passed by the learned first appellate Court are wrong and illegal. 12. On the other hand, Shri J. S. Rana, learned Assistant Advocate General has supported the impugned judgment and decree. 13. I have given due consideration to the rival contentions of the parties and have carefully examined the record. - 11 - 14. Undisputedly, the land in question was acquired by the defendant-State for the purpose of the construction of National Highway 22 (NH-22) along with other land. Its compensation was awarded and paid to the claimants. Section 16 of the Land Acquisition Act authorizes the Collector to take possession of such land in ordinary cases and in cases of urgency; Section 17 of the Act applies. Taking of possession in terms of Section 16 of the Act envisages taking of actual possession of land and a ‘symbolical’ or ‘paper possession’ in the sense understood by judicial decisions under the Code of Civil Procedure would not suffice for the purpose of Section 16 of the Land Acquisition Act. It is a settled law by series of judgments of the Supreme Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchanama by the LAO in the presence of witnesses singed by him and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. - 12 - 15. In Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212, the apex Court observed:- “It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchanama in the presence of the Panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.” 16. Although no particular mode of possession has been mentioned in Section 16 of the Act aforesaid nor there is any State amendment like the State of Karnataka whereby the fact of taking possession may be notified by the Deputy Commissioner in the official gazette and such notification shall be evidence of such fact which overcome this type of difficulty. The defendant-State would be well advised to bring the State amendment as in Karnataka but however, it is for them to decide. But in the present case there is otherwise overwhelming evidence with respect to taking of the possession of - 13 - the acquired land, including the suit land by the defendants as there is reference to this effect in the mutation itself which was attested in the presence of the land owners that the possession of the suit stood transferred in the name of acquiring department which fact was never disputed by the father of the defendant during his life time. 17. As far as the existence of structure on the suit land is concerned, had there been any such structure in existence, it must have been found mentioned in the acquisition proceedings. If Girza Nand was not paid its compensation, he would not have kept silent. Since neither the father of the plaintiff had raised this objection during the acquisition proceeding nor at the time of attestation of the mutation, it is also not the case of the plaintiff that his father was not present at the time of acquisition proceedings, whereas the presence of land owners stands mentioned in the mutation aforesaid and there is also a clear-cut mention that the possession stood transferred in the name of the acquiring department and subsequent to this mutation, jamabandies also find mention of the - 14 - possession in favour of the defendants and subsequently it was also entered in the name of defendant No. 1 during the settlement operation in the year 1983-84. 18. The plaintiff failed to put forth what positive steps were required by the Collector for taking the possession. In my opinion, the very fact of recording about the transferring the possession in the name of the acquiring department, in the presence of the parties which remained unchallenged throughout during the life time of the father of the plaintiff is sufficient evidence of transfer and taking over of the possession by the acquiring Department. 19. Thus, the plaintiff is a rank-trespasser therefore, rightly ordered by the Assistant Collector 1st Grade to be ejected from the suit khasra owned by the defendants. The plaintiff also miserably failed to prove nec vi nec clam possession over the suit land. The substantial question of law is accordingly answered. 20. No other point urged before me. 21. The appeal is without any merit, hence dismissed. June 1 , 2011 (Surinder Singh), (cm) Judge.