C.M. No.5289-C of 2010 and -1- RSA No.2698 of 1987 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No.5289-C of 2010 and RSA No.2698 of 1987 Date of Decision: 3.5.2010 Shyam Sunder and another ……Appellants VERSUS The State of Haryana and others ……Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Sanjay Mittal, Advocate for the appellants. Mr. Deepak Girotra, AAG, Haryana. Mr. A. Sreenivas, IAS, Deputy Commissioner, Rewari – present in person. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) C.M. No.5289-C of 2010 This is an application under Section 151 of the Code of Civil Procedure for placing on record Affidavit of A. Sreenivas, IAS, Deputy Commissioner, Rewari alongwith Annexure R-1. The same is taken on record. C.M. No.5289-C of 2010 and -2- RSA No.2698 of 1987 C.M. stands disposed of. RSA No.2698 of 1987 1. In compliance of the order of this Court dated 5.3.2010, Mr. A. Sreenivas, Deputy Commissioner, Rewari is personally present in the Court with a cheque of Rs.1434/- bearing No.115540 dated 1.5.2010. He has filed his affidavit along with the Annexure R-1 thereof, the chart showing the value of the land, Solatium, and interest thereon. 2. Cheque No.115540 dated 1.5.2010 for Rs.1434/- is offered to learned Counsel for the appellants. Learned Counsel for the appellants on the instruction received from the appellant No.1, who is present in person in the Court, refused to accept the cheque. Learned Counsel for the appellants states that appeal be decided on merit. Appellant is not willing to accept the amount offered to him. 3. This is the second appeal filed by the plaintiffs challenging the judgment and decree dated 18.5.1987 passed by the first Appellate Court/District Judge, Narnaul, thereby allowing the first appeal and dismissing the suit of the plaintiffs/appellants seeking mandatory injunction or in alternative a decree for possession over the property in dispute. 4. Brief facts of the present case are that Sh. Daulat Ram, adoptive father of the plaintiffs was owner in possession of the agricultural land situated within the revenue estate of Tehsil Rewari; Plaintiffs being the sole heirs of demised Daulat Ram became the owners in possession of the suit land; The P.W.D.(B&R) of the C.M. No.5289-C of 2010 and -3- RSA No.2698 of 1987 Government of Haryana had constructed a metal road on the property in dispute without following the procedure provided under the Land Acquisition Act; No compensation was ever paid to the plaintiffs despite of the repeated requests; Without payment of compensation, defendants are not entitled to retain possession of the property in dispute. 5. Defendants appeared and controverted the averments made by the plaintiffs. It was contended by the defendants that the road was constructed by the then District Board during 1947; Earlier kacha road was constructed and thereafter it was made pucca/metal road; Plea of limitation is also taken. 6. Learned trial Court decreed the suit of the plaintiffs directing the defendants to make the payment of compensation of the land in question to the plaintiffs according to the procedure laid down in the Land Acquisition Act. 7. Feeling aggrieved from the judgment and decree dated 30.5.1985 passed by the learned trial Court, defendants preferred first appeal No.160 of 1985, which was allowed vide impugned judgment and decree dated 18.5.1987. Learned first Appellate Court allowed the appeal on the ground of limitation by observing that suit for possession is time barred not having been filed within 12 years from the date of dispossession of the plaintiffs. 8. I have heard learned Counsel for the parties and perused the record. 9. This Court on 5.3.2010 passed the order as under:- C.M. No.5289-C of 2010 and -4- RSA No.2698 of 1987 “Having heard learned Counsel for the parties, it appears that plaintiffs/appellant's land was taken by the PWD department to construct the road without acquiring it. Despite of the let- ter written by the Executive Engineer way back in 1981 to release the payment of compensa- tion for the land over which PWD has con- structed road, no payment has been made so far in favour of the plaintiffs. This is the fit case, which can be decided by way of settlement and mediation. In view of this, learned Counsel for the State undertakes to seek positive instruc- tion from the Executive Engineer, PWD, Deputy Commissioner – Rewari and higher authorities. List on 17.3.2010 to enable Mr. Deepak Girotra, AAG, Haryana to seek positive instruc- tion in the matter. In case officers are not willing to release the payment, authority shall file their personal affidavit stating the reasons thereof on or before 15.3.2010 otherwise they shall ap- pear in person on 17.3.2010 i.e. the date fixed. Copy of this order be given to learned Counsel for the State under the signatures of the Court Secretary.” 10. Today, cheque of Rs.1434/- is offered to learned Counsel for the appellants. Learned Counsel for the appellants refused to ac- cept the same on the instruction of the appellant No.1, who is pres- ent in person in the Court. As per the details given by the respon- dents/defendants, in 1957, according to the sale deed dated 27.6.1957, value/cost of the land was Rs.165 only. Having calcu- lated Solatium, interest, total amount payable by the defendants is C.M. No.5289-C of 2010 and -5- RSA No.2698 of 1987 only Rs.1434/-. Learned Counsel for the appellants states that ap- pellants’ predecessor in interest purchased the disputed land vide sale deed dated 27.6.1957 for Rs.165/- only. If defendants pay cost of the land as per today’s market value, appellants shall forgo relief of possession otherwise appellants be granted relief for possession. 11. This is settled principle of law that market value of the land shall be determined at the time of notification under Section 4 of the Land Acquisition Act. If no compliance of provision of the Act is made then market value shall be determined on the date land is taken from the possession of the land owner. 12. On the refusal of the learned Counsel for the appellants and appellant No.1 to receive the cheque towards compensation as directed by this Court as well as directed by learned trial Court, this Court has no option except to proceed with the case on merits. 13. In the plaint, it has not been contended by the plaintiffs, as to when road was constructed by the defendants. However, defi- nite and unambiguous case taken by the defendants is that kacha road was constructed by the then District Board in 1947, which was converted into metal road thereafter. In view of the definite case taken by the defendants and in view of no pleading on behalf of the plaintiffs, as to when road was constructed on the land of the plain- tiffs, it would be presumed that land was taken for the purpose of construction of kacha road way back in 1947. 14. Section 3 of the Limitation Act reads as under:- C.M. No.5289-C of 2010 and -6- RSA No.2698 of 1987 “3. Bar of Limitation:- (1) Subject to the pro- visions contained in sections 4 to 24 (inclu- sive), every suit instituted, appeal preferred, and application made after the prescribed pe- riod shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act -- (a) a suit is instituted— (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off or a counter claim, shall be treated as a sepa- rate suit and shall be deemed to have been instituted-- (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is C.M. No.5289-C of 2010 and -7- RSA No.2698 of 1987 presented to the proper officer of that court.” 15. From the perusal of Section 3 of the Limitation Act, it can safely be held that if suit is barred by time then it shall be dismissed, even in the absence of any defence pertaining to the limitation. 16. In view of the finding recorded by learned first Appellate Court and in view of the fact that land was taken from the possession of predecessor of the plaintiffs way back in 1947, suit for possession has become time barred. As per Articles 64 and 65 of the Limitation Act, suit for possession is to be filed within a period of 12 years from the date of dispossession or from the date plaintiff has become enti- tled to seek possession. Present suit for possession was filed in the year 1982 while possession was taken by the defendants in the year 1947. Since, present suit was filed after expiry of 12 years, hence, suit is barred by limitation. In view of this, view taken by learned first Appellate Court can not be faulted with. 17. In view of the above, no substantial question of law arises for consideration in the present appeal. 18. The present appeal is dismissed with no order as to costs. ( ALOK SINGH ) 03rd May, 2010 JUDGE ashish