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Judgment
Rajendra Menon, J.—Challenge in this first appeal u/s 96 of the CPC is made to a judgment and decree dated 22.10.2003 passed by the First Additional District Judge, Sidhi for Civil Suit No. 15A/2003. Inter-alia contending that the land of the appellant has been taken over by the State Government for construction of a canal and compensation/award for acquisition of the land has not been granted, the suit in question was filed before the trial court on 9.4.2002 i.e. after a period of more than 18 years of the so called acquisition and as the suit has been dismissed on various counts, this appeal has been filed.
Plaintiff claimed to be recorded owners of various lands indicated in Para-2 of the memorandum of appeal measuring 6.81 acres situated in village-Majhigawan Tehsil-Rampur, Naikin District-Sidhi. According to the appellants, in the year 1983 i.e. sometimes in July, 1983, they received a notice u/s 9 of the Land Acquisition Act, 1894 from the Land Acquisition Officer and their father was directed to appear before the Land Acquisition Officer on 7.7.1983. When he appeared, the appellants'' father was told that when acquisition proceedings take place and the canal is being constructed, adequate compensation shall be granted and thereafter, it is alleged that on 15.1.1984, Respondent Nos. 1 and 2 entered into the land of the appellants and started digging for construction of a canal, which continued for a view days and, thereafter, nothing was done, neither any compensation was given nor any award passed, but the canal was constructed one kilometer away from the appellants'' land.
The appellants continued to make efforts for grant of compensation due to construction of a canal in their land, and the project continued from the year 1984 till the year 1994 but ultimately a canal was constructed 1 k.m. away from the disputed land.
However, as digging of the canal was done and it caused damages, appellants claim compensation but when nothing was given, a notice u/s 80 of CPC. was given to Respondent Nos. 1 & 2. The Suit was filed claiming the decree and directing for Respondent No. 2 to pass an award for assessment of compensation and, thereafter, seeking restoration of the possession of land, the suit was filed.
Respondents refuted the aforesaid and denied conduct of any land acquisition proceedings for construction of a canal. It was stated by them that even though a notice u/s 9 of the Land Acquisition Act was given but in the year 1984 itself, the project for construction of a canal was initiated and a canal was constructed in a different place more than 1 k.m. away from the appellants'' property and in the appellants'' land, no acquisition proceedings took place.
It is their case that certain projects were initiated and as no land acquisition proceedings were held, respondents came out with a case that no award was passed. Respondents have also raised an objection with regard to the delay in initiating the proceedings and said that except for digging on the land, no possession was taken over from the appellants, the possession is still with the appellants. On behalf of the parties, witnesses were examined. Appellants had examined Surendra Prasad Tiwari as PW-1, Ram Garib Tiwari as PW-2, Murlidhar as PW-3 and Girja Prasad Tiwari as PW-4. On behalf of the respondents, one Sanjay Shrivastava was examined as DW-1. Based on the various facts, issues were framed and finally it was found by the trial court that no acquisition proceedings took place, even though in the year 1984 certain digging took place in the land of the appellants but, thereafter, it was given up, no proceedings under the Land Acquisition Act was conducted. It was also found that appellants were in possession of the land and the State Government having not taken over the possession, there is no question of restoration of possession.
As far as payment of compensation under the Land Acquisition Act is concerned, learned court below has held that as no acquisition proceedings took place and no proceedings under the Land Acquisition Act were held, there is no question of passing an award. As far as payment of compensation for illegally taken over of the land in the year 1984 is concerned, the learned trial court found that the appellants except for saying that some digging was conducted in the land, have failed to prove that how they were prevented agricultural activities and finding no damages caused to the appellants, the claim has been rejected particularly after a finding was recorded that the claim is made after more than 20 years and is barred by time.
Learned counsel for the appellants took us through the documents and by placing reliance in one of the judgments of Karnataka High Court and another of the Himachal Pradesh High Court namely the The State Vs. Jattappa, and Nokhia and Others Vs. State of Himachal Pradesh and Others, argued that when possession of the land was taken and when digging of a canal took place in the land in the year 1984, appellants are entitled for compensation for the land and in rejecting the claim, it is stated that the trial court has committed an error. Emphasizing that the land of the appellants has been acquired and perverse finding has been recorded, learned counsel prays for interference into the matter.
Shri Sanjay Dwivedi, learned counsel for the State refuted the aforesaid and emphasized that from the evidence of appellants'' own witnesses namely Murlidhar PW-3 and Girja Prasad Tiwari PW-4, it is established that their lands were also not acquired and for the said purpose, they were never granted compensation. It was found that the compensation under the Land Acquisition Act never assessed but the property was purchased by the State Government by registered sale-deed from the land owners. Accordingly, Shri Dwivedi, learned counsel argued that there is no acquisition proceedings under the Land Acquisition Act and this finding, which is arrived at by the trial court based on the evidence of the appellants itself proves that no proceedings under the Land Acquisition Act took place and, therefore, in dismissing the suit seeking a direction for passing of an award under the Land Acquisition Act, no error is committed and, therefore, no interference by this Court in these proceedings is called for. Shri Dwivedi, learned counsel argued that a reasonable finding has been recorded based on the evidence that came on record and the same does not call for any interference by this Court.
Having heard learned counsel for the parties and on going through the rival contentions and the material available on record, we are of the considered view that the following questions require consideration in this appeal:
Whether the lands of the appellants were acquired under the Land Acquisition Act and, therefore, they were entitled for an award/compensation under the said Act.
Whether the appellants are entitled for any compensation/damages due to entry into their lands by the respondents on 15.1.1984 and due to digging of a canal for sometime.
Whether the claim for restoration of possession was tenable.
Whether the suit was barred by time and, therefore, in rejecting the suit on the ground of delay, the court below has committed any error.
As far as the question of acquiring of lands under the Land Acquisition Act and awarding compensation under the Land Acquisition Act is concerned, it is clear that appellants have only stated that their father received a notice in the year 1983 from the Land Acquisition Officer said to be u/s 9 of the Act and, thereafter, neither any notification for acquisition or any other documents or material are adduced to show that at any point of time, acquisition of the land by following any procedure under the Land Acquisition Act was undertaken. On the contrary, two witness of the appellants namely Girja Prasad Tiwari PW-4 and Murlidhar PW-3 admit that in their land, canal has been constructed and they say that the canal was constructed through their land in connection with the Bandh Sagar Project. However, these witnesses particularly Girja Prasad Tiwari i.e. PW-4 says that he did not receive any compensation under the Land Acquisition Act but he sold the land by registered sale-deed. In Para-5, in his cross examination he admits that the sold his land by registered sale-deed. Based on the material that came on record, the learned court has held that there is no material available on record to show that any acquisition proceedings for the land under the Land Acquisition Act was undertaken and based on the evidence of DW-3 and as the evidence recorded is that even though in their land, the canal has been constructed but as the canal has been constructed by outright purchase of the land, there is no evidence that the proceedings were held under the Land Acquisition Act, therefore, no award can be passed under the Land Acquisition Act. This finding is reasonable finding, based on the evidence and material that came on record and, therefore, there is no reason to interfere into the matter.
As far as the question of entry of the respondents in the appellants'' land in the year 1984 and digging of a canal is concerned, even though the appellants witnesses giving oral statement to that effect but learned court below has denied payment of damages and compensation on this count for two reasons: The first is that the entry by the respondents is shown to be on 15.1.1984 and it is only after 20 years that the appellants are claiming damages for the same. It is found that this is beyond the period of limitation and, therefore, the claim is rejected.
As far as the delay in raising the claim is concerned, appellants contend that the Bandh Sagar Project started in the year 1984 and continued upto the year 1994, the only contention was that the respondents entered in the year 1984 and, thereafter, they were promising by oral statement, this contention is disbelieved and it is held that the period of 18-20 years, delay in raising the claim has not been properly explained. This order by the trial court in dismissing the suit on the ground of delay is proper and does not call for any interference. That apart, if the appellants are suffered adversely due to digging of a canal in the year 1984 then, the appellants should establish by cogent evidence as to what damages were caused to them and how loss was caused to them and as to how due to dig of a canal, their right of the land was adversely affected. Infact, no evidence in support thereof is adduced and in the absence of any evidence to show that the appellants suffered or damages were cause to the them on this count, dismissal of the suit cannot be termed as illegal.
As far as the prayer for restoration of possession is concerned, the State Government clearly stated that they are not in possession and they had never dispossessed the appellants. Once the State Government goes to say that the appellants are in possession, there is no reason for passing any decree for restoration of possession. That apart, appellants are in possession of the land right from the year 1984, they were never dispossessed from the land. Accordingly, in the facts and circumstances of the case, we see no reason to interfere into the matter.
As far as judgments relied upon by learned counsel for the appellants are concerned, they pertain to non-payment of compensation after acquisition of land. In the present case, there is no question for granting any compensation because acquisition of the land itself is not proved. At best in the facts and circumstances of the case, the only claim that could be made by the appellants can be for damages if it is established that sometimes in the year 1984, respondents entered into their land and tried to dig a canal but subsequently, it was given up. However, appellants having failed to raise a claim for damages within a reasonable time, this claim is also barred by limitation. Therefore, the trial court in dismissing the suit has not committed any error. In doing so, we are of the considered view that no error has been committed, which warrants interference now in these proceedings.
Accordingly, finding a reasonable judgment or decree is passed, the appeal is dismissed. No order on cost.