HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case First Appeal No. 1079 of 2001 Narayan Singh (Adult) Vs. State of Uttaranchal and others. Approved for reporting. Date of Decision: 12.3.2008 Initial of Judge: ………….. ………………… ……………. HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 1079 OF 2001 Narayan Singh (Adult), S/o late Diwan Singh, R/o Village – Dunga Chak Falai, Patwari Circle – Pathalidhar, Tehsil – Ukhimath, District – Rudraprayag (Earlier Chamoli) …………Appellant/Plaintiff. Versus 1. State of Uttaranchal, Through District Collector, Chamoli. …………Main contesting respondent/Defendant. 2/1. Shri Sanju, S/o late Mahendra Singh, 2/2 Shri Kuldeep, S/o late Mahendra Singh, 2/3. Shri Pankaj, S/o late Mahendra Singh, Legal heirs of respondent no. 2. 3. Madan Singh, adult, S/o Sate Singh, 4. Prem Singh, Adult, S/o Sate Singh, 5. Raghubir Singh, Adult, S/o Diwan Singh, 6. Smt. Chandrama (deleted vide order dated 18.9.2007) All R/o Village Dungra, Falai Patwari Circle-Pathalidhar, Tehsil Ukhimath, District – Rudrapraya. (the then Chamoli) 7. Kamal Singh, Adult, S/o Rai Singh, 8. Madan Singh, Adult, S/o Rai Singh, 9. Shyam Singh, Adult, S/o Tota Singh, All R/o Village – Silla, Patwari Circle-Pathalidhar, Tehsil – Ukhimath, District – Rudraprayag. (the then Chamoli) 10. Pushkar Singh, Adult, S/o Mohan Singh, 11. Manvar Singh, Adult, S/o Mohan Singh, 12. Ganga Singh, Adult, S/o Mohan Singh, All R/o Village – Koti, Patwari Circle – Pathalidhar, Tehsil – Ukhimath, District – Rudraprayag (the then Chamoli) ……………Profoma Respondent/ Defendants. Dated: 12.3.2008 Hon’ble Rajesh Tandon, J. Heard Sri Pankaj Purohit, counsel for the appellant and Standing Counsel for the State of Uttarakhand. This is an appeal filed by the plaintiff/appellant. 2. By the present First Appeal filed under Section 96 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 18.8.2001 passed by the District Judge, Chamoli in Original Suit No. 42 of 1994 Narayan Singh Vs. State and others. 3. Briefly stated, a suit has been filed by the plaintiff / appellant being Original Suit No. 42 of 1994 Narayan Singh Vs. State and others praying to the following effect:- vr% fuosnu gS fd oknh ds ge esa lO;; izfroknh ua0 1 ds fo:) LFkkbZ fu’ks/kkKkRed O;kns”k dh ;g fMdzh ikfjr dj nh tk; fd izfroknh ua0 1 ,oa mlds v/khuLFk vf/kdkjh ,o a deZpkjh ,oa ,tsaV vFkok etnwj oknh ds xzke & dybZ rfM+;ky xkao ds [krkSuh [kkrk ua0 64 esa ntZ [ksr ua0 2358, 2359, 2360 vkSj 2277 ds fdlh Hkkx ij rksM+ QksM+] lM+d fuekZ.k dk dk;Z u djsa vkSj oknh dks dksbZ {kfr u igqWpk;saA vU; vuqrks”k ekuuh; U;k;ky; ftl :Ik esa vkSj tSlk Hkh U;k; fgr esa iznku djuk pkgs iznku djus dh Hkh d`ik djsaA 4. According to the plaintiff, one Rai Singh S/o Tota Singh (since deceased) was recorded as a Bhumidhar in Khata No. 64 and the defendants are his legal heirs along with Khata No. 64 in which Khet Nos. 2277, 2358, 2359 and 2360 are recorded along with other plots, which has been received by the plaintiff in a Family Partition and he alone continues to be in possession of the same. There is a Gaushala of the plaintiff in Khet Nos. 2358 and 2359. there is plaintiff house of the plaintiff in Khet No. 2360. According to the plaintiff, for the construction of Motor Marg, the land of the appellant is being acquired without due process of law. Some part of Khet No. 2358 and 2359 having an area of eight Nali and three mutthi has already been acquired and the State of U.P. is trying to encroach upon Khet No. 2277 which has an area of 5 Nali and 15 Mutthi. It has been stated that the walls have been demolished, the cost of which is a sum of Rs. 15,000/-. 5. Opposite Party has contested the averments contained in the plaint stating therein that in Khet No. 2277 having an area of 1 Nali 8 Mutthi land was acquired of which the compensation has not been paid to the plaintiff and ret of the land of Khet No. 2358, 2359 and 2360 are not affected by construction of the Motor Marg. Paragraphs 8, 12 and 25 of the written statement are quoted below: “8- fd oknh nkok izLrj ua0 8 xyr gS rFkk Lohdkj ugha gS izfroknh foHkkx }kjk oknh dh ek= [ksr ua0 2277 dks ,d ukyh 8 eqV~Bh Hkwfe dks Hkwfe vR;kIr vf/kdkjh ikSM+h ds }kjk vkokIr dh xbZ FkhA ftldk izfrdj oknh dks muds ek/;e ls vnk dj fn;k gSA 9- fd oknh nkok izLrj ua0 9 xyr gS rFkk Lohdkj ugha gSA 12- fd oknh nkok izLrj ua0 12 xyr gS rFkk Lhodkj ugha gSA [ksr ua0 2359] 2358] 2360 dks dksb Hkh {kfr eksVj ekxZ fuekZ.k dk;Z ls ugha igqWpk;s xbZ FkhA 25- fd lEcfU/kr eksVj ekxZ dk fuekZ.k o”kZ 1984&85 esa fd;k x;k Fkk bl ekxZ esa u rks oknh ds dfFkr [ksr ua0 2358] 2359] 2360 dk mi;ksx fd;k x;k gS vkSj u gh mudks dksbZ {kfr ekxZ fuekZ.k ls igqWph gS [ksr la0 2277 ds vkaf'kd Hkkx 1 ukyh 8 eqV~Bh Hkkx dk mi;ksx lM+d fuekZ.k esa gqvk gSA ftldk izfrdj fo’ks”k Hkwfe v/;kfiKr vf/kdkjh ikSM+h }kjk o’kZ 1990&91 esa blds Hkw&Lokeh dks fd;k tk pqdk gSA 6- On the pleadings of the parties, the trial Court has framed following issues: 1- D;k oknh [kar uEcj 2358] 2359] 2360 ,oa 2277 dh Hkwfe dk rUgk Lokeh gS \ 2- D;k izfroknh la[;k 1 lM+d dk fuekZ.k dk;Z oknh ds [ksr uEcj 2358] 2359] 2360 esa vukf/kd`r :Ik ls djk jgk gS \ 3- D;k izfroknh la[;k 1 us [ksr la[;k 2277 esa 1 ukyh 8 eqV~Bh Hkwfe dks v/;kfIr dj ml ij lM+d fuekZ.k djk;k gS \ 4- D;k oknh fdlh vuqrks"k dk vf/kdkjh gS ;fn gkW rks fdl vuqrks’k dk\ 7. On behalf of the plaintiff, he himself has been examined as P.W.1., who has stated that in Khet No. 2277, there is a total land of 5 Nali 15 Mutthi out of which for an area of 1 ½ Nali, the compensation has already been paid to the plaintiff and in rest of the Khet Nos. 2358, 2359 and 2360, there is a house in an area of 8 Mutthi. Further it has been stated that defendants have acquired the entire land without payment of compensation. 8. Reliance has been placed on Paper No. 36 Ga to the following effect: lsok esa] Jheku~ mi ftyk vf/kdkjh egksn;] m[kheBA Nky ekSdk & xzke QyVZ ¼Mqaxj½A egksn;] vkt fnukad 7&3&95 dks vkids }kjk tks esjs [ksrksa rFkk isM+ksa tks lM+d dMksyh Qyh ls {kfrxzLr gq;s gS muds eqvkotk fn;s tkus vk’oklu ij esa mDRk eksVj ekxZ ij dksbZ vojks/k iSnk ugh d:axk] tks vojks/k esjs }kjk fd;k x;k Fkk mls esa mi ft0 vf/kdkjh o rglhynkj lkgc rFkk l0 vfHkppkZ :nziz;kx ds lEeq[k gVk jgk gS@ gVk fn;k gSA vc esjk ,srjkt ugh jgk isaM+ks dh la[;k fuEu gS ftudk eqvkotk fn;k tkuk r; gqvk gS [ksr u isM+ks ds uke isMksa dh la0 eqvkotk 2358 Hkhey 1 100 100 vlhu 4 100 400 lqu 1 150 150 [kM+hd 3 100 300 2358 vkMw 3 25 75 v[kjksV 1 450 450 ekYVk 4 225 900 2360 ve:n 2 250 500 ekYVk 2 225 450 vkMw 2 25 50 v[kjksV 1 450 450 Hkhey 3 100 300 2361 vke 2 400 700 ------- 3 400 1200 2363 vke 3 400 1200 7325@& 9. While deciding the issue no. 1, the trial Court has recorded a finding that the plaintiff is not the sole owner of the land. Plaintiff has relied upon the family settlement. So far as Khet No. 2358, 2359 and 2360 are concerned, he has claimed 1/8th share. It is well settled that every co-owner is the owner of the property in accordance with the judgment of the Apex Court in Sri Ram Pasricha v. Jaganath 1976 SC 2335 to the following effect: “29. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with other and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13 (1) (f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13 (1) 9f) as the purpose of Section 13 (1) (f) as long as he is a co-owner of the property being at the same time the acknowledge landlord of the defendants.” 14. Therefore, the findings on issue no. 1 that the plaintiff is not the sole owner has no relevance in the present case inasmuch as, he continues to be a co-owner by virtue of the family partition in his favour. 11. While deciding the issue no. 2 as to whether the Road is being constructed on Plots No. 2358, 2359 and 2360, a finding has been recorded on the basis of Paper No. 36 Ga that no compensation has been claimed by the plaintiff and further the findings has been recorded that due to heavy rains, some of the trees of Plots No. 2358, 2359 and 2360 have fallen down. The relief has been denied to the plaintiff on the ground that he has not clamed the same. 12. While deciding the issue as to whether the Plot No. 2277 1 Nali 8 Mutthi has been acquired for road construction, the trial Court has relied upon the Paper No. 46 Ga and 46 Ga /3, which shows that the construction of the road has been done on plot No. 2277. This issue has been decided in affirmative. 13. Present suit has been filed simply for permanent injunction restraining the defendants from interfering with the land and from making any Motor Road over the land in question. 14. Since the Motor Marg has already been constructed and the land has already been encroached, however, the same shall be subject matter of the scrutiny before the appropriate proceedings for the claim of compensation, which the plaintiff is entitled to initiate. However, since the relief in the plaint cannot be granted to the plaintiff, it will be open for the plaintiff to take appropriate proceedings, which shall be decided in accordance with law. Paper No. 36 Ga the compromise, which has been arrived at between the parties in respect of Plots No. 2358, 2359 and 2360 shows that some of the land has been encroached upon. However, the present judgment will not come in the way of the plaintiff in the event the plaintiff takes the appropriate steps for claiming the compensation. 15. Subject to aforesaid observation, First Appeal is dismissed so far as injunction part is concerned as the relief has already become infructuous. No order as to costs. (Rajesh Tandon, J.) 12.3.2008 Rathour