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Judgment
Pankaj Mithal, J.—Heard Sri Rahul Srivastava, learned Counsel for the plaintiff-appellant and Shri Govind Saran, who has accepted notice on behalf of respondent Nos. 1, 2 and 3 and learned Standing Counsel for respondent No. 4.
Plaintiff-Appellant filed a suit for mandatory injunction claiming that the respondents be directed not to realise any licence fee from him without adjusting the licence fee already paid by him up till the year 1993. The aforesaid suit was filed on the allegation that the plaintiff-appellant was given licence by the Railways to use a certain piece of land on payment of licence fee of Rs. 300/- per year in the year 1980. The Railways took back the possession of the said land in the year 1993, therefore, the demand of licence fee as per notice dated 17.5.2000 demanding licence fee at the enhanced rate upto 17.5.2000 is illegal.
The suit of the plaintiff-appellant was dismissed vide Judgment and order dated 15.9.2008 and the same has also been upheld in appeal.
Aggrieved by the aforesaid judgments, orders and the decree of the Courts below, the plaintiff appellant has preferred the Second Appeal.
One of the submission of the learned Counsel for the plaintiff-appellant is that the Courts below failed to frame an issue as to whether the possession of the land was taken over by the Railways in the year 1993 and has thus have committed an error in upholding the demand of licence fee upto 2001.
The trial court on the pleadings of the parties had framed as many as five issues and issue Nos. 1, 3 and 4 pertains to the validity of the notice dated 17.5.2000, right of the Railways to increase licence fee and as to whether the plaintiff appellant has paid licence fee according to the terms and conditions of the licence. In deciding the aforesaid issues, the trial court on the basis of the evidence adduced by the parties has specifically dealt with the question of possession of the plaintiff-appellant over the disputed land after 1993. The trial court returned a finding on the basis of the evidence adduced that the plaintiff appellant is unable to prove that the possession of the land was handed over by him to the Railways or that the Railways took possession of the same and utilised the land as alleged by the plaintiff appellant.
Further finding has been returned that the plaintiff appellant has failed to pay the licence fee according to the terms and conditions of the licence.
The lower Appellate Court has also affirmed the aforesaid findings and has recorded that the plaintiff-appellant has not vacated the land in dispute and in fact has not adduced any evidence to prove that the possession of the land was delivered to the Railways.
The aforesaid finding with regard to possession of the plaintiff-appellant is a finding of fact which cannot be interfered in this Second Appeal.
Once the plaintiff-appellant is held to be in possession of the land even after 1993, he is certainly liable to pay the licence fee for the period he remained in possession. Accordingly, Courts below committed no illegality in upholding the demand of licence fee as per notice dated 17.5.2000.
The second submission of the learned Counsel for the plaintiff-appellant is that the Courts below have wrongly shifted the burden to prove the issue No. 1 upon the plaintiff-appellant. Law is settled that when the parties have adduced evidence on a particular point, and the matter has been decided on consideration of the entire evidence, the burden of proof poles into insignificance.
In view of the above, I am of the opinion that no substantial question of law is involved in this appeal.
No other point except the above two have been raised and argued before me. Appeal has no merit and is dismissed.