IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 148 of 2001 with C.M.P. No. 191 of 2003. Judgment reserved on : 23.11.2009 Date of decision : 4.1.2010. Bhakra Beas Management Board …Appellant. Versus Rohit Kumar Chaudhary & Others. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. N.K.Sood, Advocate. For the Respondents : M/s K.D.Sood and Anand Sharma, Advocates for respondent No.1. None for respondents No. 2 to 7 & 10. Mr. A.K.Bansal, Addl. A.G. with Mr. R.P.Singh, Asstt. A.G. for respondents No. 8, 9 and 11. Kuldip Singh , Judge The plaintiff is in appeal against judgment, decree dated 4.12.2000 passed by the learned District Judge, Chamba in Civil Appeal No. 30 of 1999 affirming judgment, decree dated 29.4.1999 passed by the learned Sub Judge 1st Class, Dalhousie, District Chamba in Civil Suit No. 36 of 1991. 2. The facts, in brief, are that the appellant had filed a suit for declaration that appellant is absolute owner in possession of the land comprised in Khasra Nos. 1298 to 1314 measuring 0-20-61 1 Whether reporters of Local Papers may be allowed to see the Judgment ?. 2 hectares. (old khara Nos. 423/387/166/2/2/1) alongwith built up kothi ‘Akal Cottage’ Seismological Observatory at Dalhousie, in view of award No. 175 dated 16.7.1965. The order dated 21.1.1986 of Naib Tehsildar –cum-Assistant Settlement Collector, 2nd Grade, entering name of respondent No.1 in the ownership column as owner instead of entering the name of appellant in the column of the ownership is wrong, illegal, inoperative and nonest. The appellant is not bound by such entries. The respondent No.1 be restrained from interfering in possession of appellant on the suit land with a further direction to respondent No.1 not to alienate the same in any manner to any person or authority. 3. The further case of the appellant is that Punjab Government issued notification under Section 4 of the Land Acquisition Act, 1894 on 25.1.1965 for acquiring ‘Akal Cottage’ alongwith adjoining land measuring 0-5010 acres situate at Dalhousie town which was at that time part of District Gurdaspur Punjab. The purpose of acquisition was for setting up of Seismological Observatory at Dalhousie. The notified land was acquired vide award No. 175 dated 16.7.1965 for Rs. 19,500/- which were to be paid to Sujan Singh and Kuldip Singh the persons found interested as per the award. 4. The Beas Project Administration of erstwhile Punjab Government had set up Seismological Observatory in ‘Akal Cottage’ along with surrounding area bearing khasra Nos. 423/387/166/2/2/1 in the year 1965. The appellant since then is owner in possession of the building ‘Akal Cottage’ and adjoining land measuring 0-5010 acres. The Central Government vide notification dated 1.3.1984 transferred 3 the completed components of Beas Project including the premises in question from Beas Construction Board (BCB) to appellant in exercise of powers under Sub -Section 5 of Section 80 of the Punjab Re- organization Act, 1966. Thus, the ownership of the premises in dispute now vests with the appellant. 5. The concerned revenue authorities did not record the entries depicting the correct legal and actual position and instead continued to record entry in the revenue record in the name of Rehmatulla Khan son of Abdulla Khan, who had since migrated to Pakistan on account of partition of the country. On 23.9.1971 the Custodian Central Government without ascertaining the right of ownership of the suit property, auctioned the same in favour of Dhian Chand Khanna. This action of the Custodian Central Government of auctioning the suit property in favour of Dhian Chand Khanna was illegal, void, ab initio. The auction had adversely affected the interest of Beas Dam Authorities, who vide award dated 16.7.1965 are lawful owners of the suit property. The Custodian Central Government could not have passed the valid title in favour of Dhian Chand. 6. On 21.10.1972, Dhian Chand sold the property purchased by him to Rohit Kumar Chaudhary and mutation to this effect was attested on 28.6.1973. The appellant is the owner of the property by virtue of notification dated 1.3.1984 issued by the Government of India, Ministry of Energy, Department of Power, New Delhi. The custodian, Dhian Chand and Rohit Kumar Chaudhary had never been in possession of the suit property. 4 7. The Naib Tehsildar Settlement in the first settlement ordered that B.C.B. be entered in the column of possession as person in the possession of the suit property. However, in the order dated 21.1.1986, Naib Tehsildar Settlement erroneously erred that Rohit Kumar Chaudhary be entered in column of ‘ownership’ instead of the Beas Construction Board, now Bhakra Beas Management Board (BBMB) is exclusive owner in possession of the suit property. 8. The appellant was not aware of the revenue entries prior to order dated 21.1.1986. On coming to know about the conflicting revenue entries, the record was subsequently obtained on 2.8.1988 and therefore, the suit was filed. It has also been alleged that appellant is a statutory body under Section 79(1) read with Section 80 (6) of the Punjab Re-organization Act, 1966 and is competent to file the suit. It has also been alleged that earlier on 4.1.1989 a suit was filed which was withdrawn on 30.8.1990 with the prayer to file a fresh suit on the same cause of action. 9. The suit was contested by respondent No.1 by filing a written statement in which he has taken several preliminary objections. It has been submitted that respondent No.1 and his predecessors-in- title Dhian Chand Khanna , Union of India were in possession of the suit property. The property being evacuee property could not be acquired after it vested in the custodian or in the compensation pool under the provisions of the Administration of Evacuee Property Act, 1950 as also under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954. The custodian under Section 15, 20 of 1954 Act, was competent to allot / transfer or 5 otherwise deal with the property. The property could not be acquired under the Land Acquisition Act, 1894. Thus, any award made under the Land Acquisition Act, was void, ab initio. The appellant had acquired no right, title or interest in the land in dispute. The property could be acquired for the purpose of payment of compensation to displaced persons. The property once merged in the compensation pool, no court or any other authority had power with respect to such property. In these circumstances, the objection of maintainability of the suit was taken. 10. It has also been alleged that in the year 1972 the property was sold by competent authorities to Dhian Chand Khanna and after him respondent No.1 came in possession of the part of the property shown in the tatima. The respondent No.1 has also taken the plea of adverse possession being in possession of the suit property for more than 20 years, even if, it is found that sale made by custodian department was null and void. 11. The appellant had filed suit earlier also which was withdrawn unconditionally and no permission was obtained from the Court for filing the fresh suit and, therefore, the suit is not maintainable. The objection of lack of notice under Section 80 C.P.C. has been taken. It has been pleaded that respondent No.1 is in possession of part of the property previously khasra No. 423/387/166/2/2/1, now khasra Nos. 1298 to 1312. The Ahata Kothi i.e. area in dispute including kothi was sold to Dhian Chand Khanna by rehabilitation authorities, who sold the same to respondent No.1. Dhian Chand got the sale certificate and 6 possession and revenue record was prepared and corrected accordingly. The court has no jurisdiction to try the suit. 12. On merits, it was denied that the suit property was acquired under the Land Acquisition Act. It was rather pleaded that the authorities were not entitled to issue notification to acquire the land under the Land Acquisition Act in view of Sections 15 and 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The respondent No.1 is owner in possession of part of Khasra No. 423/387/166/2/2/1 as delineated in tatima, corresponding khasra No.1298 to 1314 of the recent settlement. The entries in revenue record were correct about the property purchased by Dhian Chand Khanna and then by respondent No.1. The change of entry in cultivation column and order dated 21.1.1986 to that extent is void, wrong, unauthorized and without notice / knowledge of respondent No.1, who continues to be in possession of the area measuring 0- 5010 acres, khasra No. 423/387/166/2/2/1. The respondent No.1 prayed for dismissal of the suit. In the additional pleas, it was pleaded that respondent No.1 had purchased the entire property, the appellant is in illegal possession of the part of the property since 1985. The appellant is bound to restore the possession to respondent No.1. The respondent No.1 prayed decree in counter claim of possession of property delineated in the tatima comprised in khasra No. 423/387/166/2/2/1, corresponding to new khasra Nos. 1299 to 1311, 1313 and 1314. 13. The respondents No. 3 to 6 have also filed common written statement by taking preliminary objections of jurisdiction, 7 maintainability, locustandi, valuation, estoppel and suit was not acquired as per revenue record. The award of compensation was not received by the department. On merits, the claim of the appellant was denied and prayer was made for dismissal of the suit. In the replication to the written statement of respondent No.1, the appellant reiterated the stand taken in the plaint. The counter claim of the respondent No.1 was denied , plea of limitation against counter claim was taken. The respondent No.1 filed rejoinder to the replication and reiterated his stand taken in the written statement and the additional pleas and prayed for dismissal of the suit and decree in favour of respondent No.1 as per counter claim. The trial Court had framed the following issues:- 1. Whether the plaintiff Board is owner in possession of the suit land / suit property and entry to the contrary depicting defendant No.1 as owner in revenue record is wrong and incorrect as alleged? ..OPP. 2. Whether the disputed property was validly acquired under the Land Acquisition Act as alleged? ..OPP. 3. Whether the Custodian Central Government on 23.9.71 auctioned the suit property illegally to Shri Dhian Chand Khanna as alleged? ..OPP. 4. Whether on 21.10.1972 Shri Dhian Chand on the basis of defective title sole the property to defendant Rohit Kumar and mutation thereof was lateron attested against law as alleged? ..OPP. 5. Whether the plaintiff is entitled to the injunction as prayed ? ..OPP. 6. Whether the suit is not maintainable? OPD-1 & 3 to 6. 7. Whether the suit has not been filed within limitation period? ..OPD-1. 8. Whether the present suit is barred under the provision U/O 23 Rule 1 CPC? ..OPD-1. 9. Whether the suit is not maintainable for want of compliance U/S 80 CPC? ..OPD-1. 8 10. Whether the defendant No.1 is in possession of a part of the suit property comprising in Khasra No.1998 & 1314 as alleged? ..OPD-1. 11. Whether the plaintiff has no locus standi to file the suit? ..OPD-1,3,5 & 6. 12. Whether this Court has no jurisdiction to try the suit? ..OPD-1, 3, 5 & 6. 13. Whether the suit is not properly valued? ..OPD-1, 3, 5 & 6. 14. Whether the plaintiff is estopped by his act and conduct? ..OPD 3, 5 & 6. 15. Whether the suit land has not been acquired as alleged? ..OPD-3, 5 & 6. 16. Whether no award of compensation has been received by the defendants as alleged? ...OPD-3, 5 & 6. 17. Whether the suit land being evacuee property could not have been acquired as alleged? ..OPD-1. 18. Whether the change of entries in cultivation column and order dated 21.1.1986 are void and incorrect as alleged? ..OPD-1. 19. Whether the revenue entries in favour of the answering defendants are wrong and incorrect as alleged? ..OPD-1. 20. Whether the defendant No.1 is entitled to decree by way of eviction and counter claim against the plaintiff with respect to the property shown in the tatima enclosed and marked in blue colour? ..OPD-1. 21. Whether the possession of the plaintiff board being continuance possession has matured the perfect title as alleged? ..OPP. 22. Whether the defendant No.1 is also in adverse possession of the part of the property in dispute as alleged? ..OPD-1. 23. Relief. The issues No.1 to 16, 18, 21 and 22 were answered in negative whereas issues No.17, 19 and 20 were answered in affirmative. The suit was dismissed and counter claim of respondent No.1 for eviction of appellant from the disputed property was decreed on 29.04.1999. The learned District Judge, on 04.12.2000, affirmed the judgment, decree dated 29.04.1999 of the trial Court. The plaintiff has, thus, come in 9 second appeal against judgment, decree dated 04.12.2000, which has been admitted on the following substantial questions of law: 1. Whether a claim raised in written statement without complying with the provisions of Order 8 Rules 6 (A) 1 and 4 read with rules 1, 3, 6 and other enabling rules of order VII of C.P.C. can not be entertained and adjudicated as a counter-claim and made basis of a decree in favour of defendant? 2. Whether the impugned decree of both the courts below on a counter-claim in favour of defendant are illegal, besides in- executable being in violation of Order 20 rule 6 CPC and the decree is vague, incomplete qua description, identification, boundaries and survey revenue numbers of the subject matter of decree? 3. Whether on harmonious and proper construction of the provisions of Land Acquisition Act, 1894 and that of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, especially Section 12 and 15 thereof, the acquisition of an evacuee property under Land Acquisition Act, 1894, is prohibited in law? 4. Whether in law a presumption can be drawn that a property is an evacuee property as the same had been entered in concerned revenue record in ownership and possession of a Muslim without there being a further proof and material on record of the same having been declared as such as per requirements of Section 7 and other enabling provisions of Administration of Evacuee Property Act, 1950? 5. Whether title of the property in favour of the beneficiary under acquisition under Land Acquisition Act, 1894, can be validly defeated on the strength of subsequent transfer and sale under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954? 6. Whether the counter-claim of the defendant No.1 is within time? 14. I have heard the learned counsel for the parties and have also gone through the record. Mr. N. K. Sood, learned counsel counsel for the appellant has submitted that respondent No.1 had not filed the counter-claim in accordance with law. The two Courts below have erred in not appreciating fundamental defect in the counter-claim, the 10 counter-claim has been wrongly allowed. In any case the counter-claim has been allowed even beyond the claim of respondent No.1. The property in dispute was acquired vide award No. 175 dated 16.7.1965 under the Land Acquisition Act. Once the property in dispute was acquired, therefore, the same property could not have come under the Administration of Evacuee Property Act, 1950 and the Displaced Persons (Compensation and Rehabilitation) Act, 1954. He has also submitted that assuming but not admitting if the property was covered by the provisions of Administration of Evacuee Property Act, 1950 and the Displaced Persons (Compensation and Rehabilitation) Act, 1954, in that case also, there was no bar for acquiring the said property under the Land Acquisition Act. The custodian allegedly sold the property to Dhian Chand Khanna and Dhian Chand Khanna to respondent No.1. There was no title with custodian to sell the property to Dhian Chand Khanna, therefore, neither Dhian Chand Khanna nor respondent No.1 acquired any title when Dhian Chand Khanna allegedly purchased the suit property in an auction. The learned counsel for respondent No.1 and learned Additional Advocate General for respondents No. 8, 9 and 11 have supported the impugned judgment, decree. 15. The substantial questions of law No.1, 2 and 6 are inter- connected and, therefore, these substantial questions of law are taken up collectively for consideration. The learned counsel for the appellant has submitted that counter-claim of respondent No.1 is not in accordance with Order 8 Rule 6 (A) 1 and 4 read with rules 1, 3, 6 and other enabling rules of Order VII C.P.C. He has submitted that there 11 was no counter-claim of respondent No.1 as required in law. The two courts below have violated Rule 6 of Order 20 C.P.C. while deciding counter claim. The decree is vague, incomplete qua description, identification, boundaries and survey numbers etc. The question of limitation for decreeing the counter-claim has also been raised by the learned counsel for the appellant. Mr. Sood has relied on The Himachal Pradesh State Forest Corporation Ltd. and another Vs. Gurcharan Dass Sekhri 1999 (1) S.L.C. 98 in order to buttress his arguments that the counter-claim has not been properly laid. 16. In Himachal Fruit Grower Co-operative Society Vs. Uper India Food Preservers and Processors (P) Ltd. Parwanu and another 1997 (2) Sim. L.C. 110, a division bench of this Court has held that counter-claim is not a plaint as such. In the replication filed by the appellant no objection has been taken that counter-claim filed by respondent No.1 is not in accordance with law or it lacks material particulars which are required to be pleaded in the counter-claim. In the grounds of appeal in the lower appellate Court, no specific ground was taken regarding any defect in not pleading counter-claim by respondent No.1. The objection raised by the learned counsel for the appellant regarding defect in putting counter-claim in consonance with the format of plaint is too late and it does not emerge from the stand taken by the appellant in the trial Court and in the lower appellate Court. The appellant in opposition to the title of respondent No.1 on property covered by counter claim has failed to prove its title. The learned lower Appellate Court has recorded a specific finding that disputed property was purchased by Diwan Chand Khanna in 12 accordance with Displaced Persons (Compensation and Rehabilitation) Act, 1954 and appellant is not owner of the suit property. Diwan Chand Khanna had purchased the suit property vide sale certificate Ex.D-1, acceptance of sale is Ex.D-2 and memo of sale is Ex.D-3. In jamabandi Ex.DW-6/B/B for the year 1950-51, Masud Ahmed has been shown owner of land comprised in khasra No. 423/387/186/2/2/1 and owner through custodian has been shown in possession. There is presumption to official acts under Section 114 of the India Evidence Act. There is nothing wrong in inferring that after following due process of law the suit property had vested in the custodian and, thereafter entry of owner through custodian was recorded in jamabandi Ex.DW-6/B/B. The custodian sold the property to Dhian Chand Khanna. The respondent No.1 has purchased the said property from Dhian Chand Khanna. 17. The case of the appellant is that the property was acquired vide award No.175 dated 16.7.1965 and on the basis of this award the disputed property has come to appellant as owner. Once the property was acquired on 16.7.1965, it could not have been sold by custodian lateron. There is nothing on record to show that the property was acquired vide award No. 175 dated 16.7.1965. The learned counsel for appellant has relied Ex.PW-5/A and Ex.PW-5/B in support of his contention that property in dispute was acquired under the Land Acquisition Act. In Ex.PW-5/A and Ex.PW-5/B khasra numbers of the acquired property have not been shown. Therefore, Ex.PW-5/A and Ex.PW-5/B are of no help to the appellants. In jamabandi Ex.DW-6/A/A for the year 1946-47 and jamabandi Ex.DW-6/B/B for the 13 year 1950-51 Masud Ahmed has been shown owner of the suit land, how Sujan Singh and Kuldip Singh came in possession and interested persons qua the suit property as per alleged award No.175 dated 16.7.1965 that has not been explained by appellant. The learned District Judge has recorded a finding on the basis of the evidence that appellant has failed to prove the acquisition of the suit property. The evidence is highly unreliable and cannot be given any weight. The appellant on 13.3.1999 had filed an application under Section 65 of the Indian Evidence Act for adducing secondary evidence for proving award No.176 dated 16.7.1975. This application was contested and dismissed by the learned trial Court on 23.3.1999. The learned trial Court dismissed the suit and allowed the counter claim on 29.4.1999. The appellant filed appeal against the decision dated 29.4.1999 in the lower Appellate Court. But in the appeal, the appellant has not challenged the order dated 23.3.1999 dismissing the application under Section 65 of the Indian Evidence Act. In other words, the order dated 23.3.1999 of the trial Court on the application under Section 65 of the Indian Evidence Act was accepted by the appellant. In absence of proof of acquisition of the disputed property vide award No.175 dated 16.7.1965, the title of the appellant on the basis of award dated 16.7.1965 falls like a house of cards. The appellant has failed to prove its title on the disputed property. 18. The decree passed in the counter-claim is in consonance with Rule 6 of Order 20. The relief granted by the learned trial Court to respondent No.1 in the counter-claim is to be read in accordance with the prayer made in the counter-claim. The learned District Judge has 14 affirmed the judgment, decree dated 29.4.1999 of the trial Court and it cannot be said that the two courts below have passed vague decree. The issue No.21 is of continuous possession and not of adverse possession. The possession howsoever old will not become adverse unless adverse possession is pleaded and proved. The appellant has not pleaded and proved adverse possession on the suit land. In fact appellant has not taken plea of adverse possession against respondent No.1 in response to counter-claim. The appellant has no title on the suit land. Therefore, the counter-claim of respondent No.1 is within limitation. The substantial questions of law No. 1, 2 and 6 are decided against the appellant. 19. The substantial questions of law No. 3, 4 and 5 are inter- connected, therefore, these substantial questions of law are taken up collectively for consideration. The substantial question of law No.3 is of academic interest only in view of the fact that the appellant has failed to prove that suit property was acquired under the Land Acquisition Act, 1894. Once it is found that the suit property was not acquired under the Land Acquisition Act, therefore, no finding is required that acquisition of suit property under the Land Acquisition Act, 1894 is prohibited by Sections 12 and 15 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The substantial question of law No.3 is decided accordingly. 20. The appellant has failed to prove its title on the basis of acquisition of suit property vide award dated 16.7.1965, therefore, there is no necessity to go into the question that title of appellant cannot be defeated even if the property was transferred under the Displaced 15 Persons (Compensation and Rehabilitation) Act, 1954, hence substantial question of law No.5 is decided accordingly. 21. Ex.DW6/A/A is the jamabandi for the year 1946-47 in which khasra No. 423/387/166/2/2/1 is shown to be owned and possessed by Masud Ahmed. In Ex.DW6/B/B jamabandi for the year 1950-51, Masud Ahmed is shown owner of khasra No. 423/387/166/2/2/1 and owner through custodian in possession. It has been submitted by learned counsel for appellant that there is no material on record to show that the suit property was declared evacuee property under Section 7 of the Administration of Evacuee Property Act, 1950 and, therefore, suit property cannot be considered as evacuee property. In the plaint, there