IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 93 OF 2007 Kunwar M.A. Khan ………Plaintiff/Appellant. Versus Kumaon Mandal Vikas Nigam Ltd. and another. …….Defendants/Respondents. Mr. Ms. Indu Sharma, Advocate for plaintiff/appellant. Mr. Sandeep Kothari, Advocate holding brief of Mr. Shobhit Saharia, Advocate for respondent no. 1. 16th September, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Ms. Indu Sharma, Advocate for plaintiff/appellant and Mr. Sandeep Kothari, Advocate holding brief of Mr. Shobhit Saharia, Advocate for respondent no. 1. This appeal has been filed against the judgment dated 21.11.2007 passed by the Civil Judge, Senior Division, Nainital in Suit No. 84 of 2000 Kunwar M.A. Khan Vs. Kumaon Mandal Vikas Nigam and another. The plaintiff /appellant had filed a suit for permanent injunction of the property, which is at Sukhatal Mallital, District Nainital. The claim of the plaintiff/appellant as per the plaint rests on fact that the plaintiff had a land at Sukhatal area Nainital more popularly known as ‘Quarries land’, the total area of which was 8.90 hectares. It is an admitted case that a part of the said property measuring 3 acres was acquired by the State of U.P. under the Land Acquisition Act for construction of Road and another three acres for construction of Hotel for Kumaon Mandal Vikas Nigam. 2 Presently a Car Parking is being constructed on the said land. The present dispute is regarding the parking area, which is admittedly being constructed by the defendant i.e. Kumaon Mandal Vikas Nigam. According to the plaintiff, the construction of the parking area at Sukhatal, Nainital is actually on a part of the ‘Quarries land’, which belong to the plaintiff and this land has never been acquired under the Land Acquisition Act and by constructing the said parking, the defendants are in fact encroaching upon the land, which belongs to the plaintiff/appellant. The defendant no. 1/respondent no. 1, who contested the suit has denied that the land in dispute is a land which is known as Quarries land. It is further contended that the said land has been given to the defendant no. 1/respondent no. 1, which is a government company, by erstwhile State of U.P. which under a master plan is earmarked for construction of a Car Parking. Presently a Car Parking is being constructed on the said land. The said land belongs to the defendant and is not the property of the plaintiff nor does he have any right on the said property. The burden of proof was therefore upon the plaintiff to prove that the construction of Car Parking by the defendant is going on in the land of the plaintiff. However, as it is apparent from the records of the court below the plaintiff did not produce any evidence regarding his claim on the land in dispute, the plaintiff could not produce before the court below the details as to the area acquired under the Land Acquisition Act nor could it prove that the present area on which the construction is being made is outside the land acquired under the Land Acquisition Act or that such land belongs to him. The defendant no. 2/respondent no. 2 i.e. Uttar Pradesh Jal Nigam did not 3 contest the suit. The trial Court has framed the following issues: “1. Whether the plaintiff has got any right on the property, whose description has been given in the plaint and marked by letters ‘Ya’, ‘Ra’, ‘La’, Va’, ‘Ya’ and letters ‘Ka’, ‘Kha’, ‘Ga’, ‘Gha’, ‘K’ in the enclosed map? 2. Whether the car parking was constructed after valid acquisition of the disputed land by the State Government ? 3. Whether the State Government and the Waqf Board, who are necessary parties, have not been made a party in the sit and therefore, the suit is liable to be dismissed on account of non- joinder of necessary parties? 4. To what relief, the plaintiff is entitled?” The core issues are in fact issues no. 1 and 2. I have perused the entire documents as well as the decision of the trial Court. It is clearly evident from the decision of the trial Court that the plaintiff/appellant had not given any evidence before the Court below in support of his allegation regarding his having any right on the disputed property, he could not even given actual area of the land. This fact was admitted that the total area of the quarries land was 8.90 acres. However, it has also been admitted by the plaintiff/appellant that out of the said land, three acres of the land was acquired for U.P. Tourism Department and subsequently, the land was also acquired for construction of Nainital – Kaladunghi Motor Road. The plaintiff/appellant could not show as to how much of the land was acquired for construction of 4 Nainital – Kaladunghi Montor Road. In his statement, however, the plaintiff/appellant has stated that three acres of land was acquired for construction of Nainital – Kaladunghi Motor Road but subsequently in his cross- examination, he has stated that out of the said land one acre of land was a land of quarries. Nothing definite could, however, be stated as to what was the total area of the land which was taken away from the quarries land for the construction of Nainital Kaladunghi Motor Road. In short, the trial court has come to a finding that the plaintiff/appellant has not been able to make out a case that the land on which the present construction is being made belongs to the plaintiff/appellant or he has any right on the said property. In other words the plaintiff has not been able to discharge his burden or prove his case. Heavy duty is cast upon the plaintiff/appellant to discharge his burden of proof. The burden of proof was entirely upon the plaintiff to prove that the land in question is his property and under his ownership and that he has a “right” on the property as claimed by him. This burden the plaintiff has not been able to discharge as no relevant evidence has been produced before the court on order to proof his claim on the disputed property. The learned trial court, therefore, has rightly come to the finding that the plaintiff/appellant has failed to discharge his burden and has not been able to prove his ownership or right on the property and, therefore, the core issues have been rightly decided against the plaintiff/appellant. Since the plaintiff/appellant has not been able to establish any right on the disputed property, the Court below has rightly given a finding that in such a circumstances, it cannot force the State to acquire the property. Issues no. 1 and 2 have gone against the 5 plaintiff/appellant. This Court finds no anomaly in the aforesaid findings given by the Court below. This Court finds no ground for interference in the present First Appeal. The order dated 21.11.2007 passed by the Civil Judge, Senior Division, Nainital is hereby affirmed. The First Appeal is hereby dismissed. (Sudhanshu Dhulia, J.) 16.9.2009 Rathour