R. S. A. No. 3431 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3431 of 2006 Date of Decision : July 15, 2010 Jagtar Singh and others .... Appellants Vs. The Land Acquisition Officer, Patiala and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Naresh Kumar Manchanda, Advocate for the appellants. Mr. Vivek Chauhan, AAG, Punjab for the respondents. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiffs having remained unsuccessful in both the courts below. Appellants filed suit against respondents (Land Acquisition Officer and State of Punjab) alleging that the suit land measuring 09 kanals 12 marlas belonging to plaintiffs was acquired by respondents and Barkat Wah Drain from R. D. No.71065 to 72350 was excavated by respondents about ten years before filing of the suit i.e. in the year 1987-88 through suit land. However, no notice of acquisition was ever served on the plaintiffs R. S. A. No. 3431 of 2006 2 nor any compensation was paid to them for the same. Market value of the suit land was more than Rs.3,00,000/- per acre. Respondents are using the suit land without paying any compensation or consideration. Accordingly, the plaintiffs sought mandatory injunction directing the defendants to deliver possession of the suit land (illegally occupied by the defendants) or in the alternative, defendants be directed to make payment of the price of the acquired suit land with compound interest @ 24% per annum. The defendants, in their written statement, inter alia pleaded that the drain in question was dug about 28 years ago and not 10 years ago. The plaintiffs voluntarily offered the land for excavation of drain to remove water logging as per their desire. Consequently, there was no question of paying any compensation. It was also pleaded that the suit is time barred and plaintiffs are estopped from filing the suit. They never claimed compensation at the time of excavation of the drain. Learned Civil Judge (Senior Division), Ferozepur, vide judgment and decree dated 04.11.2004, dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs stands dismissed by learned Additional District Judge, Ferozepur, vide judgment and decree dated 02.05.2006. Feeling aggrieved, the plaintiffs have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Both the courts below have held the suit to be time barred. R. S. A. No. 3431 of 2006 3 Learned counsel for the appellants, however, contended that suit for possession is within limitation as limitation period for the same is 12 years and the suit was filed 10 years after the excavation of the drain by the defendant-respondents. The contention cannot be accepted. Plaintiffs have not filed suit for possession of the suit land. On the other hand, plaintiffs have filed suit for mandatory injunction, for which limitation period was three years. According to the defendants' version, the drain was excavated 28 years before the filing of the suit, but even if for the sake of argument, it is assumed that the drain was excavated 10 years before the filing of the suit, as alleged by the plaintiffs, even then suit for mandatory injunction was hopelessly barred by limitation. For the same reason, suit for directing the defendants to pay price for the acquired land is hopelessly barred by limitation because limitation period even for filing recovery suit is three years, whereas according to the plaintiffs' own version, the suit was filed almost 10 years after the excavation of drain. In addition to the aforesaid, suit for mandatory injunction either to deliver possession of the suit land or in the alternative, to pay compensation amount, is not maintainable in the present form. The plaintiffs could either sue for possession of the suit land or for recovery of compensation amount. However, the plaintiffs have not filed the suit for relief of possession of the suit land nor for recovery of compensation R. S. A. No. 3431 of 2006 4 amount. This has been done to avoid payment of court fee. The suit in the present form for mandatory injunction is not maintainable at all. Learned counsel for the appellants emphatically referred to file Ex.D-1 produced by the defendants and contended that notification dated 31.05.1995 was issued under Section 4 of the Land Acquisition Act, 1894 (in short – the Act) and therefore, the suit is within limitation. The contention is again bereft of any substance. Firstly, no such notification under Section 4 of the Act was ever issued by the competent authority or ever published in the Government Gazette, as is mandatory requirement of Section 4 of the Act. The notification referred to by counsel for the appellants is in fact not a notification, but is only a draft of notification proposed by the field authorities, which was never approved by any competent authority and was never issued. This file also reveals that the Scheme/drain had already been completed. In fact, it is the case of the plaintiffs themselves that the drain had been excavated in the year 1987-88 i.e. ten years before the filing of the suit. Consequently, cause of action arose when the drain was excavated and not when this notification dated 31.05.1995 was proposed by field authorities. Thirdly, even from the date of so-called notification dated 31.05.1995, the suit is barred by limitation as it was instituted on 19.09.1998 i.e. more than three years thereafter. Thus, the so called notification is of no help to the appellants. Even in equity, the appellants cannot be granted any relief R. S. A. No. 3431 of 2006 5 because during pendency of this appeal, respondents have placed on record notification dated 19.02.1960 (Annexure R-1) issued under Section 4 of the Act and notification dated 01.04.1960 (Annexure R-2) issued under Section 6 of the Act for acquiring land for excavation of the aforesaid drain. It is correct that these notifications, being beyond pleadings and having not been produced in evidence in the trial court, cannot be looked into legally. However, if any relief is to be granted in equity, then these notifications can be looked into. Examining the matter from another aspect, it is the own case of the plaintiffs that the suit land stood acquired for excavating the drain in question. In view of said pleadings of plaintiffs-appellants also, the aforesaid notifications, of which judicial notice can be taken having been published in Government Gazette, can be looked into and the said notifications would show that the land for excavation of the drain was acquired in the year 1960 and therefore, the plaintiffs' suit would further become hopelessly barred by limitation. Learned counsel for the appellants contended that these notifications do not pertain to land of the appellants. This contention cannot be accepted because stretch of the drain from R. D. No. 56500 to R. D. No. 116000 is covered by the aforesaid notifications and therefore, stretch of the drain from R. D. No. 71065 to 72350 passing through the suit land, as pleaded by the plaintiffs themselves, is fully covered by the aforesaid notifications. At the risk of repetition, I may add that I have considered these notifications only with a view to see if any R. S. A. No. 3431 of 2006 6 relief can be granted to appellants in equity and not for deciding the lis on merits and legalities. On merits and in law, the appellants cannot be granted any relief for the reasons discussed herein before. For the reasons recorded herein above, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. July 15, 2010 ( L. N. MITTAL ) monika JUDGE