REGULAR SECOND APPEAL No.5076 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.5076 of 2010 DATE OF DECISION: FEBRUARY 10, 2011 State of Punjab & others .... Appellants Versus Chattar Singh .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. N.P.S. Mann, Additional Advocate General, Punjab, for the appellants. * * * * L.N. MITTAL, J. (ORAL) Defendants-State of Punjab and its officers having failed in both the courts below are in second appeal. Suit was filed by plaintiff Joginder Singh (since deceased and represented by his son and legal representative Chatter Singh respondent) alleging that on partition of the land among plaintiff and other cosharers, land measuring 9 Kanals 16 Marlas comprised of Killa Nos.246//3/1 min (5-16) and 9/1 min (4-0) fell to the share of the plaintiff. The suit land measuring 3 Kanals 18 Marlas out of it has not been acquired by the defendants. On demarcation, the plaintiff found that suit land measuring 3 Kanals 18 Marlas comprised of Killa Nos.246//3/1 min (1-9) and 9 min (2-9) was found in possession of the defendants. The defendants are in illegal possession of the said suit land and have forcibly dug drain through it. However inspite of notice dated 15.04.2005, the defendants neither delivered back possession of the suit land to the REGULAR SECOND APPEAL No.5076 OF 2010 -2- plaintiff nor paid any compensation for the same. Accordingly plaintiff filed suit for possession of the suit land measuring 3 Kanals 18 Marlas and in the alternative for recovery of Rs.3,00,000/- as compensation. The defendants inter alia pleaded that compensation has already been paid to the plaintiff and, therefore, the suit is not maintainable. The plaintiff received the compensation of his acquired land in the year 1990 without any protest. The suit is also time barred. It was alleged that the land was acquired for work of Kot Duna Pandher drain after following due courses of law. Notification dated 02.06.1987 under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) and declaration under Section 6 of the Act dated 23.12.1988 were issued and published. Award for the acquired land was announced by Land Acquisition Collector. Plaintiff received the compensation on 09.04.1991 at serial No.78. Thereafter defendants dug the drain in the acquired land. Other plaint averments were broadly controverted. Learned Additional Civil Judge (Senior Division), Mansa vide judgment and decree dated 08.10.2009 decreed the plaintiff's suit for possession of the suit land measuring 3 Kanals 18 Marlas. Suit for alternative relief of compensation of Rs.3,00,000/- was dismissed. First appeal preferred by defendants has been dismissed by learned District Judge, Mansa vide judgment and decree dated 06.09.2010. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. It is not disputed that plaintiff was owner of the suit land. This fact is also evident from the revenue record produced in evidence by the REGULAR SECOND APPEAL No.5076 OF 2010 -3- plaintiff. Before filing the suit, plaintiff had served notice Exhibit P-2 on the defendants. Defendants sent reply Exhibit P-13 to the said notice. In the said reply also, it has been admitted by defendants that plaintiff is owner of the suit land. Significantly, in the said notice, the defendants specifically stated that suit land measuring 3 Kanals 18 Marlas belonging to the plaintiff was not acquired by the defendants nor the same has been illegally occupied by the defendants to dig drain through it. From this reply, it is thus manifest that plaintiff is owner of the suit land and the same has not been acquired by the defendants. In the written statement, the defendants admitted that they are in possession of the suit land. Consequently suit of the plaintiff has been rightly decreed for possession of the suit land because defendants are in illegal and unauthorized possession thereof having not acquired it. Learned counsel for the appellants was at great pains to emphasize that the suit land has been acquired. Reference was made to notification under Section 6 of the Act Exhibit D-2 and award Exhibit D-3 passed by Land Acquisition Collector and payment of compensation made to plaintiff at serial No.78 in the register Exhibit D-4. Reference was also made to statement of plaintiff's son Chattar Singh respondent as PW-1. However, all these efforts of the defendants/appellants are futile because defendants in their reply Exhibit P-13 to the notice categorically conceded that the suit land had not been acquired by the defendants. Even otherwise, from the evidence referred to by counsel for the appellants, it is not proved that the suit land has been acquired. Long after acquisition of land by the defendants vide award Exhibit D-3, the suit land continues to be recorded in the ownership and possession of plaintiff REGULAR SECOND APPEAL No.5076 OF 2010 -4- Joginder Singh. If the suit land had been acquired, it would have been mutated in favour of defendants. On the other hand, it appears that part of the Killa Nos.3 and 9 of rectangle No.246 was acquired. The total area of Killa No.3 was 7 Kanals and total area of Killa No.9 was 5 Kanals 6 Marlas. The suit land is measuring 3 Kanals 18 Marlas only out of these 2 Killa numbers. Award Exhibit D-3 reveals that compensation for Nehari land was awarded @ Rs.18.456/- per acre. The suit land is also Nehari land. Compensation for 3 Kanals 18 Marlas land @ Rs.18,456/- per acre, after adding solatium @ 30% besides additional amount under Section 23 (1-A) of the Act, would come to more than Rs.15,000/-, but according to Exhibit D-4, plaintiff was paid amount of Rs.2,862/- only. It is thus manifest that suit land was not acquired by the defendants and compensation for the same was not paid to the plaintiff. On the other hand, some part of Killa Nos.3 and 9 of rectangle No.246 might have been acquired for which compensation was paid to the plaintiff. The defendants have also not placed on record statement No.19 pertaining to calculation of compensation of acquired land of the plaintiff which would have given complete details of Killa numbers and area thereof acquired by the defendants. Adverse presumption arises against the defendant for withholding the said available evidence, which is in their custody. In any event, from the entire material on record, it becomes manifest that suit land has not been acquired. Defendants have admitted in the written statement that they are in possession of the suit land. The plaintiff being owner of the suit land is, therefore, entitled to possession thereof. Learned counsel for the appellants also tried to assail demarcation report of Kanugo. However, contention in this regard is REGULAR SECOND APPEAL No.5076 OF 2010 -5- untenable and irrelevant because the defendants have admitted that they are in possession of the suit land. The purpose of demarcation report is also to depict that defendants are in possession of the suit land belonging to the plaintiff. Consequently contention assailing report of demarcation cannot be accepted. For the reasons aforesaid, I find no merit in the instant second appeal. The suit of the plaintiff has been rightly decreed by the courts below. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 10th February, 2011 'raj'