RSA No. 3751 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3751 of 2008 Date of decision: November 20,2008 Bal Kishan and others ..Appellants. Versus Sushila Rani ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. R.D.Bawa,Advocate for the Appellants. .. Rakesh Kumar Garg,J. This is defendants' second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for recovery of Rs.1,04,890/- along with interest at the rate of 15 % per annum from the date of purchase of property by the plaintiff vide sale deed dated 4.10.1985 till filing of the present suit and also that defendants are liable to pay interest at the rate of 12 % per annum from the date of institution of the suit till the realization of the decretal amount has been decreed. Briefly stated the claim of the plaintiff-respondent in the suit is that defendants sold land measuring 2 Kanals-9 Marlas, out of 29 Acres, 3 Kanals 9 Marlas, to her for a valuable consideration of Rs. 31000/- vide registered sale deed dated 4.10.1985 and mutation No. 2307 was also sanctioned in her favour on 25.3.1987. Before the purchase of the said land, defendants did not disclose to her that the entire land measuring 29 acres, 3 kanals 16 marlas including the land of the plaintiff-respondent had been acquired by the State Government for establishment of a grain market. It was further pleaded that an award for compensation at the rate of Rs.10000/- per acre besides solatium and interest was given by the Collector on 26.3.1982 . The compensation amount was further enhanced to Rs. 77427/- per acre by the Additional District Judge, Ferozepur RSA No. 3751 of 2008 2 vide order dated 10.4.1989. Some other amount was also awarded for the super structure along with solatium and interest. The said amount of compensation was further enhanced by this Court at the rate of Rs.55/- per square yard vide order dated 17.11.1992. It was further alleged by the plaintiff that the defendants have already received the amount of Rs.4,85,07,480/- as compensation up to 19.7.1996, so the compensation of the land measuring 1467.5 per square yard purchased by her at the rate of Rs.55/- per square yard along with solatium at the rate of 30 % and interest at the rate of 15 % for the period with effect from 1976-77 to 19.7.1996 is payable to her and she is entitled to receive a sum of Rs.4,16,426.89 as compensation regarding land of her share from the defendants besides interest of Rs. 49,971.12. Despite repeated requests made by her, the defendants did not pay her the amount of compensation. Hence this suit. Upon notice, the defendants resisted the suit. In the written statement filed by them, various preliminary objections were raised. On merit, it was admitted by the defendants that they had sold land measuring 2 kanals 9 marlas as alleged by the plaintiff. It was also admitted that the Punjab Government vide its notification dated 15.3.1976 acquired the entire land of the defendant and had given an award on 26.3.1982 at the rate of Rs.10000/- per acre. It was further stated that this acquisition was quashed by this Court and only after that the defendants sold the land to the plaintiff. The plaintiff is still getting the rent from one Anita Bansal, Proprietor of the Gas Agency. The appeal filed by the Punjab Government against the judgment of this Court was accepted by the Hon'ble Supreme Court of India on 14.7.1987 and as such, the land was acquired and compensation was subsequently assessed by the Additional District Judge, Ferozepur which was further enhanced by the High Court. The plaintiff was asked to return the sale deed and accept the amount of Rs.31000/- in the year 1987 but she refused to accept the said amount. The plaintiff had moved an application in the Court of Additional District Judge, Ferozepur for impleadment in the acquisition proceedings but that application was dismissed. RSA No. 3751 of 2008 3 Appeal filed by her against the said order was also dismissed by this Court. It was however, admitted that the compensation was assessed at the rate of Rs. 55/- per square yard vide order dated 17.11.1992 passed by this Court. However, the plaintiff is not entitled to recover any amount as the claim of the plaintiff is time barred. All other averments made by the plaintiff were denied and dismissal of the suit with costs was prayed for. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether at the time of defendants selling the land measuring 2 kanals 9 marlas to the plaintiff had got disclosed that the entire land measuring 29 acres 3 kanals 16 marlas including the land sold to the plaintiff had been acquired by the State Government for the establishment of the grain market? If so, to what effect ?OPP 2. Whether the plaintiff is entitled to claim any amount of compensation from defendants on account of the defendants having received the compensation in respect of the land sold by them in favour of the plaintiff ? If so, to what amount ?OPP 3. Whether the suit of the plaintiff is within limitation ?OPP 4. Whether the plaintiff is estopped from filing the suit by her act and conduct ? OPD 5. Relief. “ Both the parties were afforded ample opportunity by the trial Court to adduce and conclude their evidence. After hearing the learned counsel for the parties and appraisal of the evidence, oral as well as documentary brought on record by the parties, issue Nos.1 and 3 were decided in favour of the plaintiff, issue No.2 was partly decided in favour of the plaintiff, whereas issue No.4, the onus of which was on the defendants, was decided against him. Consequently, the suit of the plaintiff was decreed, as fully reflected in para No.1 of this judgment. RSA No. 3751 of 2008 4 Feeling aggrieved, the defendants as well as plaintiff preferred appeals. While dismissing the appeal filed by the defendant, the lower Appellate Court observed as under:- “ It is an undisputed fact that vide sale deed dated 4.10.1985, Bal Kishan etc. had sold the plot measuring 2 kanals 9 marlas to Sushila Rani for valuable consideration of Rs. 31000/- and also delivered its possession to her. Though it is the case of Bal Kishan etc. that notification regarding the acquisition of the land was issued on 17.3.1976 and that they were facing the acquisition proceedings prior to the sale of the aforesaid plot to Sushila Rani, but there is nothing on the record to suggest that Sushila Rani was having any knowledge about the acquisition proceedings at the time of purchase of the aforesaid plot by her. Bal Kishan etc. have failed to produce anything on the record to show that there was any information regarding the acquisition proceedings to Sushila Rani at the time of execution of sale deed dated 4.10.1985. The perusal of the sale deed itself shows that there is not stipulation regarding the acquisition of the land by the State Government. Though, it is the case of Bal Kishan etc. that no acquisition proceedings were pending at the time of execution of the sale deed, but the fact cannot be denied that the State Government could file the appeal against the order of Hon'ble High Court in the Hon'ble Supreme Court of India. No doubt, Sushila Rani is still enjoying to possession of the plot in dispute, but is also the fact that she is to face the eviction preceding the plot in dispute. Moreover, when the fact of acquisition of the land came to the notice of Sushila Rani, she had filed an application before the Hon'ble High Court for impleading her as a party, but that application was rejected. So, the aforesaid facts go to show that Bal Kishan etc. have not been able to prove RSA No. 3751 of 2008 5 that they had even informed Sushila Rani regarding the acquisition proceedings.” Appeal filed by the plaintiff-respondent against the judgment and decree of the trial Court was also held to be without any force. Still not satisfied, the defendants have filed the instant appeal challenging the judgment and decrees of the courts below and raised the following substantial questions of law:- i) Whether when the plaintiff-respondent had admittedly applied for impleadment in reference court of the basis on her interest in compensation and said application was dismissed as back as in the year 1987 and her appeal was also dismissed by this Hon'ble High Court, the plaintiff- respondent can still file a suit for recovery in civil court claiming share in compensation ? ii)Whether in view of specific provision under Section 30 of Land Acquisition Act for apportionment of compensation, under which the party concerned has to file an application to the Collector claiming a share in the compensation and the plaintiff-respondent having not moved such an application, her suit for recovery on the basis of a share in compensation awarded to the defendant-appellant is not maintainable in civil court ? Iii)Whether in view of the fact that the reference court had awarded only Rs. 77,427/- per acre with 30 % solatium the plaintiff-appellant is not entitled to any other amount than a share in above said Rs. 77,427/- for the land of 48.48 marlas i.e., less than 2 kanals 9 marlas, if at all she is found to be entitled to any amount ? iv)Whether in view of the admitted fact that the defendant- appellant offered the plaintiff-respondent to receive back Rs. RSA No. 3751 of 2008 6 31,000/- the amount of sale consideration and to return the sale deed, after the judgment of Hon'ble Supreme Court up holding finding the acquisition of the land and the plaintiff- respondent having declined to receive back the amount of sale consideration, she is not entitled to claim any share in compensation ? v)Whether in view of admitted fact that the plaintiff- respondent is still in possession of the land purchased by her and is enjoying rent @ Rs. 2000/- P.M. since the year 1986 onwards and has as such earned more than Rs. 5 lacs as of now, she is not entitled to any interest on the amount of compensation, in case any amount of compensation is to be awarded to her ? vi) Whether the acquisition having become final in the year 1987 the suit for recovery by way of share in compensation is barred by limitation as the same is filed in the year 1997 especially when her application for impleadment before reference court claiming interest in the compensation was dismissed in the year 1987 itself ? In support of his case, learned counsel for the appellants has vehemently argued that the acquisition proceedings were very much in the knowledge of the plaintiff even prior to the execution of the sale deed dated 4.10.1985 and therefore, cause of action has accrued to the plaintiff when she became owner of the said property. Elaborating further, learned counsel for the appellants has argued that the plaintiff had moved an application for impleadment in the acquisition proceedings in the year 1992 and plaintiff could have filed the suit for compensation when the award was passed in favour of the State Government. Learned counsel has argued that suit of plaintiff is barred by limitation. The contention raised by the counsel for the appellant is without RSA No. 3751 of 2008 7 any force. I am of the view that the present suit is the suit for recovery of compensation received by defendants regarding the land of the plaintiff and the plaintiff could receive the compensation from defendants only when the defendants had received the said compensation from the Government. It is a matter of record that the last payment of compensation regarding the whole land measuring 29 acres 3 kanals 16 marlas including the land purchased by the plaintiff-respondent was received by the defendants on 19.7.1996 and the present suit has been filed on 25.7.1997. Thus the suit of the plaintiff is very much within the limitation. Learned counsel for the appellant has further argued that after the Supreme Court judgment, the land having been acquired, the appellant requested the plaintiff-respondent to take the sale consideration of Rs.31000/- back from the appellant and to return the sale deed to them as was done in the case of other vendees who purchased the land during the said period but she did not accept the offer and instead filed an application for impleadment in reference proceedings pending before the Land Acquisition Tribunal which was dismissed and the appeal filed by her against the said decision was also dismissed. It was next argued by the counsel for the appellant that the respondent could have filed an application under Section 30 of the Land Acquisition Act for apportionment of the amount of compensation between the right holders of the land so acquired. However, the plaintiff-respondent has not approached the Collector claiming her share in the compensation on the basis of sale deed and therefore, the present suit for recovery on the basis of a share claimed in the compensation cannot be held to be maintainable. The contention of the appellant is without any force. Admittedly, the appellants sold land measuring 2 kanals 9 marlas to the plaintiff-respondent vide sale deed dated 4.10.1985 and the said land stood acquired by the State of Punjab including the entire land of the appellants. Admittedly, the appellants have got compensation from the State of Punjab for acquisition of the entire land including the land of the plaintiff-respondent. It is not understandable under what RSA No. 3751 of 2008 8 circumstances, the appellants could have claimed compensation for the acquired land which did not belong to him. The appellants had no right to claim and receive compensation of land measuring 2 kanals 9 marlas sold by them to the plaintiff-respondent vide registered sale deed dated 4.10.1985. The appellant had claimed and received the compensation of the land belonging to the plaintiff- respondent, therefore, the plaintiff-respondent had the legal right to recover the same from the appellants. The dismissal of her application for impleadment in the acquisition proceedings will not affect her right to recover the compensation pertaining to the land which she owned and the compensation for which was received by the appellant. At the most, the amount so received by the appellant can be said to be received by them on behalf of the plaintiff-respondent and the same cannot be retained by them. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. November 20, 2008 (RAKESH KUMAR GARG) nk JUDGE