This second appeal against a decree dismissing a property suit was dismissed as it lacked merit. The court held that no substantial question of law arose, finding the lower courts' conclusions on factual disputes regarding a tubewell and statutory limitation correct.
The second appeal was dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Reserved on 25.03.2021 Delivered on 19.07.2021
Case :- SECOND APPEAL DEFECTIVE No. - 15 of 2021
Appellant :- Raghuraj Singh Respondent :- Adhishashi Abhiyanta (Nalkoop) And 2 Others Counsel for Appellant :- Pratap Bhan Urao
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellant.
2. The present appeal is directed against the judgment and decree dated 09.03.2011 passed by Civil Judge (Junior Division), Hameerpur in Original Suit No.130 of 2006 and judgment and order dated 16.10.2020 passed by Additional District Judge/Special Judge (D.A.A), Hameerpur in Civil Appeal No.24 of 2011 dismissing the suit of the plaintiff-appellant.
3 . The case of the plaintiff/appellant in the plaint was that plaintiffs are the owner and in possession of Gata No.474 having area 0.60 decimal and Gata No.475 having area of 0.36 decimal total area 0.96 acre situated in village Bhaulli, Pargana, Tehsil & DistrictHameerpur (hereinafter referred to as 'plots in dispute'). The consolidation proceeding was over in the village in the year 1978. It is further stated in the plaint that in July 1978 the employees of the respondents started digging the land for installation of tubewell. It is further stated that when plaintiffs objected to the installation of tubwell, they were assured by the respondents that they would be awarded suitable compensation for the land. It was further stated that after the consolidation proceeding was over, respondents neither gave any land to plaintiffs nor had awarded compensation, accordingly, plaintiffs gave a notice to the respondents on 07.07.1984. The said notice was replied by the respondent no.1 on 03.09.1984 wherein it was stated that proceeding for acquisition of
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aforesaid land had been initiated and as soon as the acquisition proceeding was completed, they would be awarded compensation. On the said assurance of respondent no.1, plaintiffs thought that they would be given due compensation, but respondents did not pay the compensation till August, 2006, hence cause of action for institution of the suit arose.
4. The aforesaid suit was contested by respondents by filing written statement denying the averments of the plaint. It was further stated in the written statement that the plots in dispute is recorded in the name of plaintiffs. It was further stated in the written statement that two plots i.e. Gata No.327/1, Rakba 10 decimal and Gata No.327/2, Rakba 0.50 decimal was replaced by Gata No.474, Rakba 0.60 decimal. Similarly, Gata No.475, Rakba 0.36 decimal after consolidation is a replacement of Gata no.328/1, Rakba 0.35 decimal and Gata No.328/4 Rakba 0.01 decimal which was given to the plaintiffs. It was further stated in the written statement that since statement made in the plaint regarding the claim of compensation of plaintiffs is about 30 years back and no record of past 30 years is available.
5 . The trial court on the basis of pleadings has framed as many as three issues which are being reproduced hereinbelow:-
“1. क्या वादीगण िववािदत भूमिमि स. 474 रकबा 0.60 िड. व 475 रकबा 0.36 िड मिािलिक कािबज दािखिलि है और उक्त भूमिमि पर प्रतितवादी स.-1 द्वारा िन ि र्ममिरत टूमबबेलि को िगरवा पानिर्मे अथवा भूमिमि का मिुआवजा पानिर्मे के अिधिकारी है?
6 . The trial court after considering the evidence on record found that Khatauni filed by the plaintiff/appellant was subsequent to the publication of notification under Section 52 of Consolidation Act and prior to the consolidation, number of plots in respect of which Khatauni has been filed by the plaintiffs carried some other number
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which could be demonstrated only by 'जोतचिकबंदी आकार पत' (Form-41) which plaintiffs did not file. Further, plaintiff/appellant did not pray for survey of plots in dispute so as to demonstrate that tubewell was constructed over the plots in dispute, accordingly, it did not find any merit in the submission of plaintiff/appellant that tubewell was constructed over the plots in dispute.
7 . The trial court further noticed that suit had been instituted about 30 years after the date of installation of tubewell, and even if it is accepted that some reply had been given by respondent no.1 acknowledging the claim of plaintiffs, even then there is delay of 22 years in filing the suit, accordingly, it found that there is inordinate delay in filing the suit, and at the most, suit could be instituted within 12 years as per Limitation Act, 1956, therefore, suit is barred by limitation. Thus, the trial court by recording the aforesaid finding, dismissed the suit.
8 . The plaintiffs/appellants, thereafter, preferred appeal against the judgement and decree dated 09.03.2011 which was also dismissed by the lower appellate court by judgement and order dated 16.10.2020.
9. On issue no.1 as to whether tubewell had been constructed over disputed plots, the lower appellate court while concurring with the findings of the trial court further held that PW-1 in his statement had stated that paper no.8-Ga-1 which is Khasra of the plots in dispute had been filed by him and the perusal of column no.10 of Khasra of disputed plots reveals that wheat crop is shown on the plots in dispute and after considering the said evidence, lower appellate court found that if tubewell had been constructed on the disputed plots, the Khasra of the disputed plots could not have shown the wheat crop was standing on the said plots. Accordingly, it disbelieved the case of plaintiffs/appellants that tubewell had been constructed on the plots in dispute.
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10. On the question of limitation, the lower appellate court also concurred with the finding of trial court and further held that plaintiff/appellant had filed photocopy of letter dated 03.09.1984 written by respondent no.1 which was not proved and hence, it held that said letter cannot be read in evidence. Further, the lower appellate court found that there has been inordinate delay of 26 years in institution of the suit by the plaintiff-appellant whereas as per Limitation Act, the suit could be instituted within 12 years from the date of cause action. Accordingly, it held that the suit is barred by limitation. Accordingly, the appellate court dismissed the appeal.
11. Learned counsel for the appellant while challenging the judgement of the court below has submitted that the finding of the trial court as well as lower appellate court that plaintiff/appellant had failed to prove that tubewell had been constructed on plots in dispute is perverse and is not based on the correct facts on record. He further submits that finding of both the courts below that suit is barred by limitation is also incorrect and not sustainable in law.
12 . I have heard learned counsel for the appellant and perused the record.
13 . Both the courts below after appreciating the evidence on record particularly the evidence filed by the plaintiff/appellant namely, Khasra which clearly indicated that wheat crop is standing on the plots in dispute and the testimony of plaintiff's witnesses found that plaintiff/appellant had failed to discharge their burden to prove their case. Accordingly, both the courts below did not find any merit in the submission of plaintiff/appellant that tubewell had been constructed on plots in dispute.
14 . The finding returned by the court below on the said issue is a finding of fact and does not warrant any interference by this Court.
15 . So far as the second submission regarding dismissal of suit on the ground of limitation is concerned, the reading of plaint reveals
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that the alleged tubewell was constructed in July, 1978 and more than 26 years had passed, but the plaintiff/appellant did not raise any claim about compensation. Under the Limitation Act, the maximum period for institution of suit is 12 years, therefore, this Court finds that both the courts below have not committed any error in holding that suit is barred by limitation. Thus, the finding on the said issue is also based upon proper appreciation of evidence and material on record.
16 . Thus, for the reasons given above, as no substantial question of law arises in the present appeal for adjudication by this Court, the appeal lacks merit and is accordingly, dismissed . There shall be no order as to costs.
Order Date :- 19.7.2021. Sattyarth
2 issues framed by the court
Whether the appellant successfully discharged the burden to prove that a tubewell was constructed over the disputed plots.
Whether the suit is barred by limitation due to inordinate delay in its institution.
Raghuraj Singh
Adhishashi Abhiyanta (Nalkoop)
Saral Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
