RFA No. 3405 of 1993 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RFA No. 3405 of 1993 Date of decision: 13.11.2009 S. Pritam Singh ....Appellant Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present:- Mr. Ashok Gupta, Advocate, for the appellant. Mr. Ashwani Markendey, AAG, Haryana. ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of RFA No. 3405 of 1993 titled S. Pritam Singh Vs. The State of Haryana and RFA No. 3168 of 1993 titled State of Haryana Vs. S. Pritam Singh, as they arise out of the same award. For brevity sake, facts are being taken from RFA No. 3405 of 1993 titled S. Pritam Singh Vs. The State of Haryana. This appeal by the tenant is directed against the award dated 31.5.1993 passed by the learned Additional District Judge, Ambala, on a reference made under Sections 18 and 30 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). The State of Haryana on 4.3.1983 issued notification under RFA No. 3405 of 1993 -2- Section 4 of the Act, showing its intention to acquire the land measuring 135.07 acre in village Patti Mehar, hadbast No. 58, Tehsil and District Ambala, for public purpose, namely, for development and utilisation of land as residential and commercial area in Sector 8 at Ambala. The State, in fact, acquired 133.68 acres of land. The learned Land Acquisition Collector passed an award vide which the compensation payable for the acquired land was fixed at Rs.40,000/- (Rupees forty thousand only) per acre for chahi land, Rs.32,000/- (Rupees thirty two thousand only) per acre for barani land and Rs.16,000/- (Rupees sixteen thousand only) per acre for gair mumkin land, through award No. 13 dated 23.2.1988. The appellant herein by claiming himself to be the tenant in the property sought reference under Sections 18 and 30 of the Act qua the land measuring 1 kanal and 8 marlas comprised in khasra No. 17//9/1 situated within the revenue limits of village Patti Mehar owned by Amar Singh son of Jai Singh. It was the case of the appellant that he was cultivating the land, therefore, was entitled to seek reference under Sections 18 and 30 of the Act. He claimed that the price of the land was more than Rs.350/- (Rupees three hundred and fifty only) per square yard, as it was situated near anaj mandi, railway station, park, bus stand, housing board colony and vinay nagar colony, Ambala City. On an application moved by the appellant, reference was made to the learned Additional District Judge for determining the market value as well as for apportionment of the share of the appellant-tenant. RFA No. 3405 of 1993 -3- Reference was opposed by the State, wherein stand was taken that the compensation awarded by the learned Land Acquisition Collector was fair and adequate and did not call for any enhancement. Other allegations made by the appellant were also controverted. However, in the replication, the appellant took a stand that he had been in possession of the suit land for more than 23 years, without payment of any rent or batai, therefore, for all intents and purposes he had become owner of the land by way of adverse possession. In the alternative, he claimed that, in case, his claim of adverse possession was not proved, then he was entitled to 1/3rd share of the compensation being the tenant. On appreciation of evidence, the learned Reference Court enhanced the compensation to Rs.100/- (Rupees one hundred only) per square yard. This assessment was made on the basis of a copy of judgment Ex. P1, which was qua the land acquired under the same notification. The appellant had also placed reliance on judgment Ex. P2, wherein the compensation awarded was Rs.120/- (Rupees one hundred and twenty only) per square yard, but that was rejected, as it was with regard to the adjoining land, and in view of the fact that the evidence by way of judgment Ex. P1 was available to assess the market value, being best piece of evidence. State of Haryana has challenged the fixation of market value at Rs.100/- (Rupees one hundred only) per square yard by way of RFA No. 3168 of 1993 on the ground that there was no evidence whatsoever RFA No. 3405 of 1993 -4- led by the landowner in support of the claim, as no sale deeds were brought on record. This plea of the State deserves to be noticed to be rejected as it is well settled law that in absence of the sale deed, the awards and judgments represent the good evidence for determination of the compensation payable for the acquired land. No fault can be found with the fixation of the market value of the acquired land at Rs.100/- (Rupees one hundred only) per square yard. Mr. Ashok Gupta, learned counsel, appearing on behalf of the appellant, has also not been able to challenge the finding of the learned Reference Court with regard to fixation of the market value. Learned counsel for the appellant, however, has challenged the impugned part of the award vide which appellant's claim was restricted to 1/3rd of the compensation by treating him to be tenant on the plea that the appellant had led evidence before the learned Reference Court to prove the fact that he had become owner of the property by way of adverse possession and was, therefore, entitled to whole of compensation. It was the contention of the learned counsel that claim of appellant was wrongly rejected by placing reliance on the revenue record wherein appellant was shown to be the tenant under Amar Singh. The learned counsel for the appellant has referred to the statement of PW1 Prem Singh as well as the statement of the appellant before the learned Reference Court, wherein it was categorically stated that the appellant was in possession of the property for more than last 23 RFA No. 3405 of 1993 -5- years, and he has been cultivating the land without payment of any rent or batai to the owner of the land. The reason being that Amar Singh was not heard of for number of years, and nobody else had claimed rent or batai. This evidence, even if taken on its face value, would show that the appellant had failed to prove that he had become owner by way of adverse possession, as the evidence led cannot be said to be sufficient to hold that the possession of the appellant was hostile to the true owner. The Hon'ble Supreme Court in Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Others, 2008(4) RCR (Civil) 401 approved the decision of the Hon'ble Privy Council in Secretary of State for India Vs. Debendra Lal Khan, AIR 1934 PC 23 laying down as under: - “The ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.” And also the decision of the Hon'ble Supreme Court in S.M. Karim Vs. Bibi Sakina, AIR 1964 SC 1254, laying down as under: - “Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that RFA No. 3405 of 1993 -6- the plaintiff had acquired “an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.” A party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous – The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner – It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. The evidence led by the appellant, therefore, was not sufficient to hold that the appellant had become owner of the property by way of adverse possession. The plea raised by the learned counsel for the appellant deserves to be rejected even on another ground, that under Section 30 of the Act, the learned Reference Court is to answer the reference made by the learned Collector and cannot entertain other pleas. In the present case in application made by the appellant, he had sought apportionment on the basis of tenancy over the disputed land and not being owner. It was for the first time before the learned Reference Court that he had put up the plea of adverse possession. The Reference Court, under Section 30 of the Act, is require to only answer the reference made by the learned Collector and cannot adjudicate upon the matter not referred to it. For the reasons stated above, no fault, therefore, can even be RFA No. 3405 of 1993 -7- found with the order of apportionment, passed by the learned Reference Court. Therefore, finding no merit in these appeals, these are ordered to be dismissed but with no order as to costs. (Vinod K. Sharma) Judge November 13, 2009 R.S.