State of Jammu and Kashmir vs Sanna Ullah Mir

S. Murtaza Fazl Ali, J.—This is a Plaintiff's suit for cancellation of a decree for Rs. 32,645.62 paise passed in favour of the Defendant in

connection with the acquisition of the lands in dispute under the provisions of the Land Acquisition Act.

The land which is the subject mailer of the present action consists of 113 Kanals and 11 Marias situate in Chawni Badam Singh Chalibal

Srinagar A notice u/s 4 of the Land Acquisition Act was issued on 24-9-1955 which was followed by a notice u/s 6 of the Act on 29-9-1955.

These notices arc Ex. PW 21/1 and Ex. PW 21/2 respectively. On 29-0-1955 a notice u/s 9 of the Land Acquisition Act was also served on the

persons interested which is Ex. DW 12/J. After these notices were served, the collector made an award for the amount of Rs. 32,045.02 paise

with interest. This award is Ex. PW 20/1 Thereafter, at the instance of the Defendant, the Collector made a reference lo the District Judge Srinagar

who raised the compensation to Rs. 35,907.02 paise plus 6% interest by his order dated 15-11-1957. The Plaintiff filed an appeal against this

order to the High Court which allowed the appeal and restored the, award of the Collector. Thereafter a review was filed to the High Court for

cancelling the entire land acquisition proceedings which was dismissed with this modifies lion that interest was ordered to run from the date of the

award. These facts arc admitted by both the parties

The facts on which the Plaintiff has brought the present suit may be summarised as follows:

According to the Plaintiff the lands in dispute were actually acquired as far back as 1898 AI), by virtue of some Council Resolutions and since then

the Plaintiff was in possession of these lands through the Forest deptt. No rent of compensation was paid for these lands thus taken possession of

by the Plaintiff. The land in dispute was used by the Forest Department for stocking timber and other purposes The land acquisition proceedings

were started on the basis of an application given by the Defendant to the then Prime Minister drawing his attention to the fact that the land had

been taken possession of long long ago and neither any rent nor compensation had been given lo the Defendant. This application, it appears, was

forwarded by the Deputy Commissioner to the Forest Department for its views in the mutter Various officers of the Forest Department who

handled the mailer were of the view that as the lands were taken possession of by the forest department long before no compensation was

awarded to the Defendant and since the Defendant had acquired proprietary rights in the lands after the Gallancy Commission report of 1932, the

lands should be-legally acquired under the provision of the Land Acquisition Act and reason able compensation be paid to the Defendant.

Proceeding on this assumption the Collector issued the requisite notices under the Land Acquisition Act and having acquired the land gave his

award giving compensation to the Defendant.

The Plaintiff's case is that all the officers of the Government were labouring under the impression that the land had brum acquired previously

without paying any compensation to the, Defendant who was entitled to the same, wheresas further enquiries subsequent to the order of the District

Judge as modified in fact in the appeal' by this Court revealed that in fact the lands were acquired as far back as 17-2-1894 A.D by virtue of

Council Resolution No. 8 which is Ex. PW 5/4 and under which the Defendant was not entitled to any compensation whatsoever. The attention of

the officers of the Plaintiff who agreed to the acquisition of the land under the Land Acquisition Act was not drawn to this resolution which

according to the Plaintiff made no provision for the ""payment of any compensation to the Defendant. This resolution appears to have been traced

from the Government repository at Jammu after an elaborate enquiry was made by the officers of the forest department. It was further pleaded by

the Plaintiff that as all the important records of the Forest Department were burnt in the fire which broke out in the said department in 1942-43,

hence these records had to be traced from the government repository at Jammu.

It was further pleaded by the Plaintiff that ever since the lands were taken possession of by the forest department, it exercised various acts of

possession over the land and had acquired title by adverse possession so as to exisiguish the title, if any, of the Defendant which he had. It was

also averred that as the land in dispute had been recorded as ""Khalsa land"" there was no question of the Defendant having any proprietary interest

in these lands and, therefore, the question of compensation naturally did not arise It was also alleged that the proceedings under the Land

Acquisition Act culminating in the award of the Collector and the orders of the High Court were all based on a mistake of fact and were, therefore,

liable to be annulled. It was further pleaded that the Defendant committed a fraud on the land acquisition courts by deliberately suppressing the

facts that the land had been acquired long before and that under the law which stood at the tune when these lands were taken possession of by the

Government, the 'Defendant was not entitled to any compensation. Thus the decree of the land acquisition courts was sought to be cancelled on

the ground of fraud also.

It appears that the plea of adverse possession was taken by the Plaintiff even before the High Court in appeal against the order of the District

Judge but it did not find favour with this Court which held that the Plaintiff had no title by adverse possession. Pleas of mistake and subsequent

discovery of the resolution, indicated above, were also taken in the review petition filed by the Plaintiff against the order of the High Court in

appeal but the same was negatived by this Court. Hence the present suit for cancellation of the decree.

The suit has been contested by the Defendant on various grounds. The Defendant has denied that any fraud was perpetrated by him either on

the courts or on the officers of the Plaintiff. The Defendant further pleaded that the suit was barred by the principle of estoppel and res judicata.

The Defendant has further contested the validity of the claim of the Plaintiff for setting aside the decree on the ground of-mistake of fact. The

Defendant contends that there was no mistake of fact at all and the materials including the resolution Ex. PW 5/4 were available with the officers of

the forest department at the time when the' land acquisition proceedings were started and despite these materials the forest department did not

choose to contest these proceedings and allowed the award to become final. The Defendant has further contested the suit on the ground that the

award of the Collector as confirmed by this Court was final and conclusive and could not be re-opened by a fresh suit. The Defendant further

pleaded that there was no question of adverse possession because the possession of the forest department was at the most permissive and when

the Defendant acquired proprietary rights therein, he was entitled to compensation. The Defendant further contended that there was no law at the

time when the lands were taken possession of by the Government in 1894 A.D. by which no compensation was payable to the Defendant or his

ancestors. Lastly it was pleaded by the Defendant that the suit was not properly instituted and the plaint was not properly verified.

On the pleadings of the parties the following issues were framed in this case:

Whether the plaint is properly signed, verified and presented?

Whether the Collector is a necessary party to the suit?

Is the suit barred by the provisions of the Land Acquisition Act?

Is the suit barred by res judicata?

Is the Plaintiff estopped from claiming the relief asked for in the plaint?

Is the award in favour of the Defendant vitiated by fraud or mistake?

Whether the Plaintiff became the owner of the property described in the first paragraph of the plaint on account of its acquisition in the year

1894 A.D. and whether the Plaintiff continued to be the owner of the property ever since?

Whether the Plaintiff has acquired title to the property described in the first paragraph of the plaint by adverse possession?

To what relief is the Plaintiff entitled?

Issues Nos. 1 and 2.

These issues have not been pressed by the counsel for the Plaintiff and they are, therefore, answered in favour of the Defendant and against the

Plaintiff.

Issues Nos. 4 to 8.

As these issues are inter-connected they would be taken up together.

The Plaintiff has examined 22 witnesses in support of its case while the Defendant has examined 12 witnesses to prove his case.

The Plaintiff has led evidence generally on the question of adverse possession, the question of mistake and the question of the subsequent

discovery of Council Resolution marked Ex. PW 5/4. 1 would first analyse the evidence of the Plaintiff to show whether it has been able lo prove

its case. (His Lordship then considered the evidence and continued as under).

10-30. On a general analysis of the evidence adduced by the Plaintiff, the following propositions of fact emerge:

That the lands in dispute were in continuous possession of the forest department since 1894 A.D.

That no rent or compensation was paid to the Defendant or his ancestor for these ands.

That the lands in dispute were recorded as 'Khalsa Sarkar' which means that the proprietary interest vested in the Government.

That at the time when the land acquisition proceedings were initiated, the officers concerned of the Plaintiff were fully aware of the facts

mentioned above. But their attention was not specifically drawn to the Council resolutions.

That the forest records having been burnt in the year 1943 and after a fresh enquiry was initiated at' the Instance of the Advocate General, the

Council resolutions were traced in the Government repository at Jammu.

That the old settlement file which contained the resolutions perhaps did not form part of the bind acquisition file.

So far as the facts mentioned in Paras Nos. I to 5 above are concerned, there is hardly any controversy between the parties, The main bone of

contention between the parties is whether the old settlement file which is also known as Vernacular file, did or did not form part of the land

acquisition file. On this point the Defendant has led positive evidence lo -show that this file formed part of the land acquisition file and was actually

perused by the officers of the forest department, the revenue department and also by the Collector, that shall deal with this aspect a It title later.

It is pertinent lo note that not a single witness of the Plaintiff has deposed that the Defendant in any way practised any fraud on these officers by

deliberately suppressing the facts slated above This brings us to the consideration of the plea of fraud taken by the Plaintiff. In the plaint no

particulars of fraud have been pleaded at all and all that is said against the Defendant appears in Paras Nos. 16 to 18 of the plaint which run as

follows:

There has been active concealment of facts by the Defendant at the same time there has been complete bona fide ignorance of the Plaintiff and its

officers about the incidents of this land and its acquisition in the year 1893-94 A.D.

In the eye of law therefore the award is unmaintainable as it proceeds on fraud, concealment and suppression of facts on the part of the Defendant

and complete ignorance of the actual affairs on the part of the Plaintiff. The Defendant is insisting upon enforcing his claim based on this award

against the plain tiff hence the necessity of this suit.

A perusal of these paragraphs would clearly show that the plaint does not disclose that facts were deliberately concealed by the Defendant,

when and in what manner. The particulars of fraud given by the Plaintiff are so vague that no court could legally take notice of them The evidence

led by the Plaintiff also does not ascribe any fraud to the Defendant. In the course of arguments the Advocate General submitted that the

Defendant knew full well that the land was not in his possession and according to the law prevalent in 1894 he was not legally entitled to

compensation and he suppressed this-fact in his application. This argument seems to me to be wholly untenable, in law. In the first place, no details

of fraud practised by the Defendant have been given in the plaint. Secondly in the application filed by the Defendant all that the Defendant slates is

that his lands had been taken possession of by the Government long time ago and he has not been given any compensation. The fact that no

compensation was given to the Defendant or his ancestor either by way of cash payment or by way of payment of rent is proved even by the

evidence of the witnesses produced by the Plaintiff. As to whether or not there was any law in 1894 under which the Defendant was not entitled to

compensation even High revenue officers of the Plaintiff themselves have expressed their ignorance about the the same and in these circumstances

how can it be assumed that the Defendant who was a stray litigant would be aware of such a law. Moreover, the Advocate General has not been

able to draw my attention to any such law. Act, or Allan which provided that if the laud was acquired during those limes, the person who was in

possession of the land, would not be entitled lo any compensation. Thus the very foundation on which the Plaintiff has built his case of fraud

disappears. Reliance was placed by the Advocate General on the council resolution Ex Pw 5/4 which according to his contention clearly stated

that no compensation for the land was payable to the Defendant. Assuming that to be so, for the time being, when even the officers of the Plaintiff

after vigorous search during the course of the land acquisition proceedings, were unable to lay their hands on these resolutions, how could the

Defendant be blamed for not referring to this resolution in his application, to the Prime Minister. I am clearly of the opinion that the Plaintiff has

miserably failed to prove the pica of fraud taken by it in its plaint.

I would now deal with the other part of Issue No. b which relates to the question of mistake. On this point the Plaintiff's case Is that the officers

of the Plaintiff while starting fresh acquisition proceedings in the year 1954 committed a bona fide mistake inasmuch as they were completely

ignorant of the slate Of the Law prevalent in the year 1893-94 A.D. pertaining to the acquisition of the lands by the State, which did not authorise

payment of compensation

It was further alleged that in those days as the ownership of the entire agricultural lands vested in His Highness the Maharaja Bhadur, the

officers under bona fide mistake of actual stale of affairs started fresh acquisition proceedings. Finally it was alleged that the officers were

completely ignorant of the fact that the land in question had been acquired as far back as 1894 and hence the question of second acquisition did

not arise. It would be seen that the first part of the pleading completely misconceived as no law has been shown to inc or produced before me so

as to enable me to hold that in 1894 there was such a law which did not allow any compensation to a person whose lands were acquired. As

regards the fact that the ownership of the the entire lands vested in His Highness the Maharaja, it cannot be said that the officers of the Plaintiff at

the time of initiating the proceedings were completely ignorant of this fact. I have while dealing with the evidence of P.W. 19 Gulam Nabi pointed

out that the then collector had before him the report of the Tehsildar which clearly showed that the lands in question were Khalsa lands. P.W. 21

Dina Nath Vas, has categorically staled that in 1894 the person in possession of the lands had no proprietary rights but only Assami Dari rights.

These facts were, therefore, fully known to the officers of the Plaintiff al the time when the land acquisition proceedings were taken. The point

which appears to have impressed the officers of the Plaintiff was that even if the Defendant did not have proprietary rights but Assami Dari rights,

he had lobe compensated for the loss of his rights and as no compensation was paid lo him. hence the land had to be acquired afresh. As regards

the knowledge of the Council resolutions, the parties are al serious variance. According to the evidence adduced by the Plaintiff. The settlement

record file which contained these resolutions was never placed either before the Collector, the officers of the forest department or the revenue

department, al live lime when the land acquisition proceedings were being taken. On the other hand, the Defendant's case is that the settlement file,

was all along present in the office of the Collector and was in fact forwarded to the CCF. It will, therefore, be necessary to consider the evidence

fed by the Defendant on this point.

After discussing the evidence produced by the Defendant the judgment proceeds as under:

In these circumstances the only reasonable inference that one can draw is that the settlement record file has been deliberately suppressed by the

Plaintiff for his production would completely knock the bottom out of the case of the Plaintiff that its officers were labouring under a mistake of

fact. On consideration of the evidence given by the parties I have no hesitation in holding that the settlement record file which contained the copy of

the council resolution was undoubtedly present before the various officers of the Plaintiff at the time when the land acquisition proceedings were

drawn. If these officers chose to ignore or over-look the effect of these resolutions, the Plaintiff cannot be heard to say that the decree should be

cancelled because its officers were negligent or incompetent. That can never be a ground for selling aside a decree, otherwise there will be no end

to litigation. Assuming however, that the attention of the officers was not drawn to the council resolutions contained in the settlement file the

position would be that the officers would be ignorant of some previous orders passed by the Government. This however by itself would not

amount lo a mistake of fact. The conception of mistake of fact is that two sides must be labouring under a belief of existence of facts which in fact

do not exist. In other words, the mistake of fact in order to invoke the principles of equity must be bilateral and not unilateral. In the Instant case,

the mistake if any, is purely unilateral and that would not attract the doctrine of mistake of fact. Moreover the plea taken by the Plaintiff in its plaint

is not really a plea of mistake of fact but that of a mistake of law on the part of its officers who were ignorant of certain laws on the point. I cannot

construe such a pleading to be a pleading of mistake of fact. Indeed if the Plaintiff had discovered these facts subsequently, it would have been a

ground for review which was availed by the Plaintiff without any success.

I would now determine the council resolutions in order to see whether there could be any mistake on account of the ignorance of these

resolutions.

Ex. PW 5/1 shows that the then Conservator of Forests Mr. Macnodal had applied for the acquisition of the land in dispute and sent the

matter for approval to the Council. The Council however directed that only the house existing on Mandi Mahal Chowk may be acquired. Thus the

recommendation of Mr. Macnodal regarding the acquisition of the lands in dispute was not accepted by the council. This resolution was followed

by another resolution Ex. PW 5/2 which is dated 4-9-1893 A.D. This resolution shows that the Chief Conservator of Forests renewed his attempt

lo acquire the lands on the ground that they , were lying barren and on this the Council directed that only the barren lands should be taken and

oilier lands should be restored to the tenants. These two resolutions are pot however very pertinent to the facts of the present case.

The next resolution is Ex. PW6/8 which shows that the Conservator of Forests recommended that the lands In dispute should be acquired as

the tenants were ready to hand over the lands lo the department if revenue is-remitted and they are given rent of Rs. 250/- per month. On I his

recommendation the Council passed the following order:

blds l ekeysdk rlfc;k drbZ fd;k tk; dy [krksds rkcr dfe'ujds ikl Hkstdj fy[kk tk; ds oks QkSju eqykfgtk ekSdsij fjiksVZ djs& 1- D;k bl lqjt esa

dksbZ dr; urhtk mlds fy;s M;wVh njdkj gS D;k [;ky f[kykc ls uqdlku u gks rks fey ldrk gS] 2- vxj dksZ tehu ugha fey ldrs rks etcwj u vjklh

eqntsZa fjiksVZ dfe'uj ;kus iMsxh oks ekStw fjtkt eqYddk flQZ ekfy;k ekj djrk Fkk vkSj vklehdks dksbZ ek;tk uxn ugha fey ldsxk vkSj u dkSfly

;s eatwj dj ldrh gS ds tehu dk fdjk;k njekgk nh tk; vkSj dksbZ vxj ekuk ugha gS ds vklkeh dks ljdkjh vkokn lgh l u rk""kknyk esa nh tkosA

Para 2 of the order of the council clearly slates Unit the recommendation of payment of rent is not acceptable to the council and there is no reason

why I he tenants should not be given lands in exchange of the land taken by the department: The words

bydk dksbZ vxj ekuk ugha

have been interpreted by the Advocate General to mean that there is no bar for giving suitable lands to the tenants but in my opinion having regard

lo the context of the language of Para 2 it really means that there is no reason why the tenants should not be given other lands in exchange for the

lands taken by the department. In other words there was a clear direction by the Council that the tenants must be compensated by giving suitable

lands for the lands taken by the department. It is not merely a gratuitous remark or a pious wish expressed by the council but a mandatory

direction to the Conservator of Forests for compensating the tenants if he finally decides lo lake their lands. In fact on a perusal of this resolution

along with the preceding resolution it would appear that the council was very reluctant to allow the acquisition of these lands and had agreed lo this

measure only if no other course was open.

This resolution was followed by Ex. PW 5/4 dated 17-2-1894 which is the sheet anchor of the argument of the Advocate General. The

Advocate General submits that according to this resolution the recommendation of the Conservator of Forests was that the land in dispute should

be acquired only after remitting the land revenue and paying compensation for the standing crops to the tenant and nothing else. The

recommendations mentioned in paragraphs Alaf and Rai do not refer lb any compensation for the Incants al all and since these recommendations

were accepted by the council, the Advocate General contends that the Council ordered that the land should be taken possession of without any

payment of compensation lo the tenant. I am, however, unable to agree with this interpretation of the Council resolution. Ex. PW 5/4 mentioned

above has to be read along with Ex. PW 5/8 because para 8 of this resolution makes a clear reference to the previous resolution by the words:

fely rkyqd fjtksY;qlu dk nl eksj[kk vkB~Bkchl vDVwcj 1893 njckjk eaMh pkSd o eqdke iqjkuh Nkcuh nk[kyk Jhuxj isV~Vk gqvh dfe'uj

cankscLr lc ftys jk; gjhj djrs gSaA

Thus the recommendation made must be understood in the light of what the council had observed in its resolution dated 28-10-1893 and the

approval of the Council was also given in relation to the observations made by them before. I fail lo understand what other interpretation can be

put. on this resolution. It is not reasonable to infer that the Council which was insisting right from 6-7-1893 that the lands of the tenants should not

be acquired should .suddenly accept the recommendation of the Conservator of Forests to the effect that the lands should be acquired without

paying any compensation lo the tenants particularly when a fins months before, the Council had given a clear direction that after acquisition of the

land, suitable land should be given to the tenants in exchange of the lands taken possession of by the department. At any rate by virtue of this

resolution the department was only allowed to lake possession of the land.

There is nothing to show on the face of the resolution that the land was actually acquired under any law. The idea of compensation is inherent in

acquisition of a land. In fact there is a world of difference between ""taking of possession"" and ""acquisition"" of land. In the former while possession

remains with the possessor, the ownership continues lo vest in the original owner whereas in the latter the title of the owner is completely

extinguished and the possessor steps into the slices of the original owner who is compensated for the lands taken possession of. I am fortified in

this view by the observations of Mukherjea J. as he then was in Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, , where his

Lordship observed as follows:

It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of

that title might be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in

the former. In taking possession on the other hand, the title of the properly admittedly remains in the original holder, though lie is excluded from

possession or enjoyment of the properly.

These observations were made while interpreting the provisions of Article 31(2) of the Constitution of India. It is true that in the case reported in

Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, this decision was modified on the scope of Article

31 of the Constitution of India but the observations of Mukherjea J. regarding the basic notions of words 'Taken possession of"" and ""acquisition

were not disapproved. Similarly Das J. as he then was in The State of West Bengal Vs. Subodh Gopal Bose and Others, , observed as follows:

The cardinal rule of interpretation is to ascertain the meaning and effect of an enactment constitutional or otherwise, from the words used therein. If

the words used have acquired a technical or special meaning that meaning, must be given to them. To say that the expression ""taken possession of

or acquired'' must be read as 'taken' and given the same wide meaning as the American Courts have given to the word ""taken'' is to ignore the

entire historical' background of the law relating to compulsory acquisition of private property by the State.

In this case Das J. endorsed the observations Of Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, referred to above.

Thus it would appear that what was done under the Council resolution dated 17-2-1894 was that the forest department was allowed to take

possession of the land and the question of compensation of the land itself was left open by the Council. In these circumstances, therefore, it cannot

be said that the officers of the Plaintiff were labouring under any mistake of law On the other hand, the communication Ex. PW 1/1 and the notes

of the officers of the forest department who were asked to enquire into this matter show that they were of the view that as Ex. PW 5/3 Contained

direction for giving compensation to the Defendant which had not been given to him, he should be given the compensation by acquiring the lands

under the provisions of the Land Acquisition Act There is another aspect which has to be borne in mind. It is no doubt true that the forest

department was in possesion of the land for a long time but it is equally true that no rent or compensation was paid to the Defendant When the

forest department merely look possession of the laud and did not obey the directions of the Council by paving the compensation to the Defendant,

the possession of the forest department was only permissive and in 1932 when full proprietary rights were conferred on the tenants of Kashmir

Province, the rigid of the Defendant ripened into full ownership as on that dale he would be deemed to be in actual possession of the land through

the forest department Thus when the lands came lo be acquired, the department was only in permissive possession of the land and if the title of the

Defendant as the owner was to be extinguished, it could only be done by acquiring the land according to the provisions of the Land Acquisition

Act. This is exactly what the officers of the Plaintiff had done in the present case

The officers of the Plaintiff had made no Secret of the fact that the forest department ,was factually in possession of the land in question over since

1955 Samval. Rather this fact is mentioned in the award of Jim collector itself which proceeded on the assumption that the forest department was

in possession of the land without acquiring the land in a legal manner and extinguishing the title of the Defendant or his ancestor In order therefore

to make the possession of the forest department absolute and with title the only course was to acquire the land under the provisions of the Land

Acquisition Act. In my opinion, therefore, there was no question of any mistake by the officers of the Plaintiff in inflating the land acquisition

proceedings.

The next important question to be determined is that even if the officers of the Plaintiff were labouring under a mistake of fact, whether this

would be a ground for setting aside the decree. The Advocate General appearing for the Plaintiff has submitted that a decree could be set aside if

the parties were under a mistake of fact, whether this legal proposition was seriously contested by Mr. Nehru appearing for the Defendant. There

is no doubt that a contract can certainly be avoided on the ground of mistake of fact but the same principle, in my opinion, does not apply to a

decree Moreover, as pointed out by mc, the mistake in the present case was only a unilateral mistake on the part of the Plaintiff and its officers and

had no co-relation with the Defendant. In support of this proposition, the learned Counsel for the Defendant cited Kazim Ali Khan and Another

Vs. Om Prakash and Another which is a direct authority on the point that no suit would lie to set aside a decree on the ground of mistake of fact.

Construing the provisions of Section 20 of the Contract Act a division bench of the Allahabad High Court made the following observations:

This is far from saying that any fraud was practised by the Defendants and their parokars. The misrepresentation if any, was made on account of

ignorance and, as such, the decree is not liable lo attack on the ground of fraud. It was also argued that if there was a mistake there was a mutual

mistake in as much as both the Plaintiff and Defendants in the former litigation thought that the new numbers which were given by the decree

holders did as a matter of fact correspond with the old numbers entered in the preliminary decree and therefore on the analogy of S 20 Contract

Act, the Plaintiffs arc entitled to relief. Section 20 Contract Act applies only to contracts which might be rectified if the mistake is a bilateral

mistake of both parties but that analogy cannot be applied to the case of a decree. It is not possible lo avoid a decree by means of a fresh suit on-

the ground that the decree has been obtained on account of the mistake of parties.

In my opinion the facts of the present case appear to be on all fours with the principles laid down by their Lordships in the above noted case Here

also the mistake or mis-representation if any committed by the Defendant was made on account of ignorance of certain orders passed by the

council which represented the Government at the time when the lands were taken possession of by the forest department Their Lordships have

clearly pointed out that the analogy of mistake of fact cannot be applied to the case of a decree. Indeed if this is applied then there will be no end

to litigation and the doctrine of finality of judgment would become nugatory. My view further finds support from AIR 1937 1 (Privy Council) ,

where their Lordships observed as follows:

The provisions of Section 11 CPC are mandatory and the ordinary litigant who claims under one of the parties to the former suit can only avoid its

provisions by taking advantage of Section 44 Evidence Act which defines with precision the grounds of such avoidance as fraud or collusion If is

not for the court to treat negligence or gross negligence as fraud or collusion unless fraud or collusion is the proper inference from the facts.

Their Lordships have pointed out that a decree can only be set aside on the grounds mentioned in Section 44 of the Evidence Act and it is not

open to the court to treat negligence or gross negligence as fraud in order to set aside n decree.

In Kothandarama Gramani Vs. Sellammal and Others, , their Lordships of the Madras High Court after referring to the Privy Council decision

observed as follows:

The Privy Council decision expressly slates that even negligence or gross negligence cannot he a ground for selling aside the previous decision

binding between the parties to the suit ...Negligence may be negligence by reason of an error of judgment on the facts at the disposal of the litigants

He might in all honesty have decided not to present a particular aspect of a case Inning regard to the evidence available to him. The mere fuel that

the case of blending was not put forward by the Respondents 2 to 4 in the previous litigation cannot really amount to any negligence or mala fides.

The same view was taken in Laxmi Narain v. Mohid Shafi AIR 1949 E.P 141, where their Lordships observed as follows:

It will be seen that the Section makes no mention of negligence. Consequently no decree can be avoided on the ground of negligence even if

negligence be of a very serious character ... I cannot understand how a conclusion of fraud or collusion can he inferred from gross negligence.

Negligence is a negative act and consists of the omission to do something which a reasonable man guided by those considerations which ordinarily

regulate the conduct of human affairs would do. fraud and collusion, on the other hand, are positive acts committed with the object of deceiving or

injuring some one.

In Mahomed Golab v. Mahomed Sulliman 21 Cal 612 (618), it was pointed out by their Lordships that a decree could not be set aside on the

ground that it was obtained by perjured evidence, or that the case of the Plaintiff was false. In this connection, their Lordships have observed as

follows:

Where is litigation to end if a judgment obtained in an action fought out adversely between two litigants suj juris and at arm's length could be set

aside by a fresh action on the ground that perjury had been committed in the first action or that false answers had been given lo interrogatories or a

misleading production of documents, or of a machine of of a process had been given. There are hundreds of actions bried every year in which the

evidence is irreconcilably conflicting, and must be on one side or oilier wilfully and corruptly perjured.

But I am not aware that it has ever been suggested in any decided case and in my opinion it is not the law, that because a person against whom a

decree has been passed alleges that it is wrong and that it was obtained by perjury committed by or at the instance of, the other party, which is of

course fraud of the worst kind, that he can obtain a rehearing of the questions in dispute in a fresh action by merely changing the form in which he

places it before the court, and alleging in his plaint that the first decree was obtained by the perjury of the person in whose favour it was given. To

so hold would be to allow defeated litigants to avoid the operation, not only of the law which regulates appeals but that of that which relate to res

judicata as well.

The same view has been taken in Janki Kuar v. Laclimi Narain AIR 1915 All 400 and B. Raja Rajeswara Sethupathi Avergal alias B. Muthu

Ramalinga Sethupathi Avergal, Rajah of Ramnad Vs. The Right Honourable The Secretary of State for India in Council, .

In a later case being Krishna Subala Bose and Others Vs. Dhanapati Dutta and Others, . it was field that a judgment could not be set aside on

the ground that it was vitiated by mutual mistake as to material facts In this connection their Lordships of the Calcutta High Court observed as

follows:

Besides though u/s 44 Evidence Act the referring claimant is entitled to show that Ex. K. was obtained by fraud, it is not open to him lo plead that

the compromise on which Ex. K. is based was vitiated by a mutual mistake as to a material fact, namely the genuineness of the potta.

It would thus appear from a consideration of the cases cited above, that a mistake of fact or negligence of a party or perjured evidence is not a

ground to set aside a decree. The Advocate General has not been able to cite a single decision taking a contrary view. Moreover, as I have

already pointed out above, the pleading of the Plaintiff in the present case, docs not amount lo pleading of a mistake of fact What the Plaintiff has

said in its plaint is that the land acquisition proceedings were taken due lo a bona fide mistake, arising out of ignorance of law which prevailed

during the relevant time for acquisition of binds under which no compensation was payable. I have already shown that on a point of fact, the plea

taken by the Plaintiff is incorrect because the existence of a law indicated in the plaint has neither been proved nor shown to me. Assuming,

however, that there was such a law then the position comes lo this that the officers of the Plaintiff were in ignorance of such a law. It is well settled

that, ignorance of law is no excuse and a party cannot be allowed to get any relief on the ground that it had done a particular act in ignorance of the

stale of the law. This doctrine has received statutory recognition in Section 21 of the Contract Act which runs as follows:

A contract Is not voidable because it was caused by a mistake as to any law in force but a mistake as to law not in force has the same effect as a

mistake of fact.

The Section, therefore, lays down that a contract cannot be avoided even if it was caused by a mistake of law. Although under the English Law,

the courts of equity have in exceptional cases granted relief to a party on the ground of mistake of law, the Indian law has completely debarred any

party from gelling this relief on the ground of mistake of law. A Division Bench of the High Court of Patna, in Shiva Prasad Singh Vs. Maharaja

Sris Chandra Nandi, , after considering the entire case law on the point, hold that a party could not gel relief on account of a mistake of law. In this

connection, their Lordships observed as follows:

There can be no English Law money paid fact is recoverable but money paid recoverable in a large number of English authorities The Indian

Contract Act through it deals with the effect of mistake of fact and law upon a contract has no express provision relating lo the effect of payments

made under such mistakes, and it appears to me that the law relating to the matter is the same in tins country as it is in England.

Similarly in Allahbux Pindok v. Nusserwanji and Co. ALU 1936 Sind 99, their Lordships of the Sind High Court have observed as follows:

... But all that they say in that behalf is that the Plaintiffs were ignorant of the provisions of the law that a partnership of more than 20 persons which

was not registered was illegal and that it was in consequence of this ignorance that they not only filed their first suit but entered into the

compromise. The obvious answer to that argument is that ignorance of law is no excuse in a court of law, much less in a court of equity, when in

consequence of such ignorance the Plaintiffs have caused irreparable loss to the other side A compromise made by a party cannot be set aside on

the ground that he made it in ignorance of law in force in British India. See Section 21 Contract Act and Bam Nirunjun Singh v. Prayag Singh ILR

8 Cal 138 at p. 141.

The same view has been taken in ILR Cal 138. The Federal Court also appears lo have commented on Ibis aspect of the mailer in Ratneshwari

Nandan v. Bhugwani Saran AIR 1950 EC 112 where Mahajan J. as he then was, observed as follows:

It was argued that a partition made on an erroneous assumption as lo what the law was not binding on the person who was acting under that

assumption and could be re opened by him or his heirs. I am unable to 'subscribe lo this proposition. II seems lo mo that there is neither any

provision of statutory law nor any principle of equily which furnishes a cause of action lo a person who enters into an arrangement of to partition of

family property with the other conarcener or an erroneous impression of law for getting rid of that arrangement. It was conceded that if such a

partition was effected by a decree of court, it would conclusively establish the title between fire parties to it. It was however, contended that the

rule applicable to decrees cannot be exlended to cases of contracts or partitions made outside court. It Is true that a decree stands on a different

fooling than an arrangement or contract privately entered into between the parties but it is well settled that such an arrangement or contract can

only be re-opened on the ground of fraud, undue influence, coercion or mutual mistake of fact. A mistaken view of law is no ground for granting

relief to any of the parties as its ignorance furnishes no legal excuse to any person.

It would thus appear from the observations of Mahajan J. that a decree stands on a different footing than a contract and, therefore, the view of the

Allahabad High Court that a decree cannot be set aside on the ground of mistake receives considerable support from this decision also. The

Supreme Court also in Kalyanpur Lime Workers Ltd. Vs. State of Bihar and Another, has observed as follows:

The mistake, if any, was with regard to the effect of the law of registration upon the validity of the assignment deed. At the most such mistake

would be a mistake of law and u/s 21 of the Indian Contract Act the contract would not be void on that ground.

Having regard to these decisions, therefore, in my opinion the Plaintiff cannot get any relief merely on the ground that its officers had taken the land

acquisition proceedings in ignorance of law which existed al the relevant lime, i.e. 1894. In fact, if a litigant is allowed lo re-open a previous

litigation on the ground Unit he was ignorant of some law it will lead to endless litigation.

Story, in his Equity Jurisprudence 8th Edition, Vol 1. page 104 has pointed out:

If upon the mere ground of ignorance of lire law men were admitted to over-haul or extinguish their most solemn contracts, and especially those

which have been executed by a complete performance, there would be much embarrassing litigation in all judicial tribunals, and no small danger of

injustice from the nature-and difficulty of the proper proofs. The presumption is that every person is acquainted with his own rights, provided he

has had a reasonable opportunity lo know them. And nothing can be move liable to abuse than to permit a person to reclaim his properly upon the

mere pretence that at the time of parting with it. he was ignorant of law acting on his title.

This is, in my opinion, the correct state men I of the Law.

Furthermore, on considering the evidence it seems to me that it is not really a question of ignorance of law as one of lack of due diligence or

gross negligence on thee party Of the officers of the Plaintiff. It would appear from the documentary and oral evidence add Uced by the Plaintiff

that a vigorous search was made by various departments before the hind acquisition proceedings were finalised and fire resolution Ex. PW 5/4 was

not traced. Subsequently, however, after the decision of this Court in appeal against the order of the district Judge Srinagar the resolution Ex. PW

6/4 came to light as having been found in the Jammu repository. I fall understand why searches were not made in the Government repository al

Jammu where all the old records of, the Government Orders and files are kepi. If a search would have been made in the Government repository al

Jammu while the matter was being investigated into by the CCF and other officers, there, can be no doubt that the resolution Ex PW 5/4 would

have been traced and its effect considered by the. authorities concerned. Thus the failure lo make a search in one of the most important

departments of the Plaintiff where the document was bound lo be found exhibits some amount of negligence on the part of the officers of the

Plaintiff or al any rate want of due diligence If, therefore, the Plaintiff was not able lo find the resolution Ex. PW 5/4 which is the sheet anchor of its

case, due to lack of diligence on its part, such a negligence cannot lie put forward as a ground lo revoke the original decree in the land acquisition

proceedings.

Finally, in my view the plea taken by the Plaintiff regarding mistake of fact or of law, whatever it may be is barred by the principles of res

judicata. It would appear from the record that after the judgment of this Court in land acquisition proceedings, the Plaintiff filed a petition for review

in Ibis court. It would appear from the file of the review petition which is marked Ex. 8 that an identical plea of mistake of law and the facts

constituting the same, which has been taken in the present suit was also taken iii Paras, 2, 3, 8, 9, 10 and 11 to 14 of the review petition. The

review petition was heard after the plain-till' had adduced the necessary evidence by way of affidavits etc., and by its judgment dated 14th July

1950 marked Ex. I, the plea taken by the Plaintiff was rejected with the following observations:

We are therefore, of the opinion that the applicants have miserably failed lo prove lhal. the malcrials relied upon by I hem were not within their

knowledge or they exercised any due diligence in discovering the same. On this ground alone the application merits dismissal.

Thus in the present case the idea taken by the Plaintiff is clearly barred by the principles of res judicata.

The latest decision of the Supreme Court reported in Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), , clearly points out

that once a plea is raised in any proceeding and is decided against a party in such proceedings it becomes res judicata in a subsequent suit

Irrespective of the nature and character of the previous proceedings. In tills connection their Lordships of the Supreme Court have observed as

follows:

It is further submitted for the Appellant that a writ of Mandamus according to its nature is lo be issued mainly lo compel lire performance by a

public servant of his duly of a public nature, while in a suit the Plaintiff prays for the enforcement of his personal rights. The declaration of a

personal right is not an essential characteristic in the issue of a writ of mandamus. The difference in the nature of the two proceedings is immaterial

if the mailer decided inter parties in one proceeding Is the same which is lo be determined in the subsequent proceedings and the parties to the suit

were also parties to the writ petition.

X X X X

We would limit the consideration of the contentions raised before us to two main points: Whether Section 11 CPC is exhaustive with respect to the

application of the principle of res judicala in a suit and whether in a subsequent suit general principles of res judicata can bar the consideration of

mailers directly in issue and identical with those which had been earlier and after full contest decided on merits by a competent court in any other

proceeding including proceedings on a writ petition.

The general principle of res judicata has been applied lo suits oven though the decision on the same mailer in controversy had been pre viously

given by a competent court in proceedings which were not soils under the Code of Civil Procedure.

As a result of the above discussion, we are of opinion that the provisions of Section 11 CPC are not exhaustive with respect to an earlier decision

operating as res judicata between the same parties on the same mailer in controversy in a subsequent regular suit and that on the general principle

of res judicata, any previous decision on a mailer in controversy decided after full contest or after affording fair opportunity to the parties lo prove

their case by a court competent lo decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the

mailer formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject mailer The

nature of the former proceeding is immaterial.

It would appear from an analysis of the afore mentioned decision of the Supreme Court that in fact before their Lordships certain issues were

raised by the applicant in a writ of Mandamus before the High Court and the pica taken by the applicant was negatived by the High Court.

Thereafter, the applicant filed a suit to enforce his rights. The Supreme Court held that even though the plea was taken in a writ proceeding,

nevertheless since the matter was decided giving him after hearing the applicant, and full opportunity to adduce his evidence on the basis of

annexures and affidavits, it could not ho re-opened in the subsequent suit and was barred by the principles of res judicata. Similarly in the present

case also the plea if mistake as also the facts Constituting it were clearly averred in the petition of review The Plaintiff had given evidence in the

nature of affidavits etc., before the court and after bearing the Plaintiff the matter was finally decided by this Court against , the Plaintiff.

The Advocate General has submitted that before the High Court the Plaintiff was not given a chance of adducing its oral and documentary

evidence, and therefore, the principle of res judicata should not be invoked. I am however unable to agree with this line of reasoning. Even in the

case before the supreme Court in the earlier proceedings which writ proceedings the applicant was, not given a chance of adducing his oral

evidence and the decision proceeded on the basis of affidavits etc. and despite this fact, their Lordship of the Supreme Court held that the decision

in the writ proceeding operated as res judicata in the subsequent suit. As I have also pointed out, in the present case, the Plaintiff was given full

opportunity to prove the fuels mentioned by it in their petition by affidavits and the court gave decision against the Plaintiff. The distinction thus

drawn by the Advocate General appears to me to be a distinction without any difference. In view of the decision of the Supreme Court therefore,

the plea of mistake of law or fact taken by the Plaintiff is clearly barred by res judicata and must be rejected on this score alone For these reasons,

therefore, issue No 6 is decided against the Plaintiff and in favour of the Defendant.

It was lastly argued by the Advocate General that u/s 72 of the Contract Act, the Defendant can be directed to refund the amount paid by the

Collector under the Land Acquisition proceedings on account of a mistake. In the first place, Section 72 of the Contract Act does not have any

application to this case, because the suit is not one for recovery of the amount paid lo the Defendant The amount is still lying with the Plaintiff and

has not been paid to the Defendant. Secondly as I have already held that no mistake of fact has been proved in tins case, the question of the

application of Section 72 does not arise. Thirdly, since in the instant case the money was paid under a legal process that is to say under the

provisions of the Land Acquisition Act, the Plaintiff cannot bring a suit to recover the same as has been held in The Secretary of State for India in

Council Vs. Tatyasaheb Yeshwantrao Holkar, , where a division bench of the Bombay High Court has observed as follows:

The claim of the crown is that they paid this money under a mistake. But as I view the facts they paid the money not under .any contractual or

supposed contractual liability but because they were bound to pay It Under the order of this Court in the, land acquisition proceedings. It is laid

down in the leading case of Marriot v. Hampton (1797) 2 Shim. LC 386 that where money has been paid by the Plaintiff to the Defendant under

the compulsion of legal process which is afterwards discovered not to have been due, the Plaintiff cannot recover it back in an action for money

had and received The case of Kishcn Sahai v. Bakhtwar Singh ILR All 237 is an authority in which that principle was applied in India. The learned

Advocate General says that the principle does not apply here because the order of Ibis court under the Land Acquisition Act, as it stood in the

year 1912 was not a decree. But even assuming that to be so, the fact does not in my opinion exclude the principle-of (1797) 2 Shim LC 386

since as was pointed by Lord Halsbury in Moore v. Vestry of Fulham (1895) 1 Q.B. 399, the principle of law is not that money paid under the

pressure of legal process cannot be recovered! In that case a summons had been issued by the Vestry of Fulham for recovery of money and the

money was paid on the service of the summons and before any further proceedings were taken. Now here undoubtedly under the land acquisition

proceeding there was an order of this Court under which the Government were bound to pay this money as a condition of their gelling possession

of the land. Whether if the amount had not been paid it would have been necessary as the learned Advocate General suggests, to bring a suit

founded on the judgment of the court. I do not pause to inquire. I will assume that that would have been necessary. But even so, if a suit had been

brought, it must necessarily have succeeded and it would not have, been open to the Government in that suit to challenge the proceedings and the

judgment of this Court in the land acquisition case. I think therefore that the money was paid under the pressure of legal process and that Ibis

action for money had and received does not really lie.

Note: (1) (1797) 2 Shim LC 386 (2) ILR All 237 and (3) (1895) 1 Q.B. 399.

Another objection raised by the Defendant to the Government's claim is based on estoppel and I think that claim is also well founded. Having

regard to the terms of the Government notification which described the land in such a manner as lo negative the suggestion that it was Government

land, and having regard to the whole course-of the land acquisition proceedings which were utterly inconsistent with the land being Government

land, I have represented that in 1900 the land did not belong to Government. The learned Advocate General did not really dispute Ibis, but says

that assuming that to be so, there is no evidence that the Defendant altered his position as a result of that representation. But to my mind the

Defendant clearly did alter his position. If the Government had said in 1006 that the land was their land it appears to me obvious that there would

never have been any proceeding under the Land Acquisition Act, and the Defendant therefore, would never have made the claim he did make and

would not have given up possession under the Act. He could have said:

I am in possession of the kind and if Government claim it they must bring a suit against me.

The whole course of conduct by the Defendant was altered by the fact, that the Government represented that the land was not their land and I see

no reason why they should be allowed now to contradict that representation on which the Defendant has acted to his detriment.

Moreover the fads in the Bombay case cited above, appear lo be on all fours with the fads of the present case A plea of mistake almost similar

lo the present case was negatived by their Lordships.

This brings us now to the question of adverse possession taken by the Plaintiff as also the idea that the Plaintiff was the owner of the property

in .suit right from the date of acquisition in 1804 A.D. As regards the second part of the plea, I have already held that by virtue of Ex. PW 5/4 the

Plaintiff merely took possession of the lands but the ownership of at least Asami Dari rights remained with the Defendant and these rights ripened

into proprietary rights after the grant of Wis Highness in 1982 on the report of Glency Commission. It is not necessary for me to repeat all that 1

have said on this point.

Coining now lo the question of adverse possession. the case of the Plaintiff has been assailed by the Defendant on three grounds. In the first

place, it is staled that, the plea is barred by res judicata secondly, that it is barred by rule, of estoppel and thirdly, that it is barred by the provisions

of the Land Acquisition Act. Even on facts, the Defendant has averred that the possession of the Plaintiff never amounted to adverse possession as

the clement of animus possidendi was wholly lacking in the case I would first lake up the legal objections raised against the validity of this plea.

Learned Counsel for the Defendant submitted that since the Plaintiff the Collector issued notifications under the Land Acquisition Act and acquired

the land, it clearly gave out that the Defendant was the owner of the land and this position was further confirmed by the award of the Collector Ex.

PW 20/1. Furthermore, even when the lands were, acquired in 1894 A.D. by virtue of the Council resolution Ex. PW 5/4 as indicated above, the

Council gave out a positive direction that the Defendant should be compensated by being allotted a suitable land in exchange of the land taken.

This may have been the reason why the Defendant kept silent and wailed for, the direction of the Council to be fulfilled by the successor

Government. Thus the position of the Defendant was altered to his prejudice as possession of his land was taken on a positive promise of giving

him suitable lands. It was in this spirit of honouring the undertaking given by the Council in 1894 A.D. that the Collector acquired the lands treating

the Defendant to be the owner there of despite the fact that the Plaintiff was in possession ever since 1894 A.D. Having regard to these

circumstances, therefore, the Plaintiff would be estopped from now putting forward its ownership in order to deprive the Defendant of the

compensation paid to him. In an almost identical case which I have already cited namely AIR 1982 Bom 386, their Lordships of the Bombay High

Court held that the Slate would lie estopped from putting forward the claim of ownership, as per the observations of their Lordships already

quoted above at this judgment. For these reasons, therefore, I would hold that the plea of adverse possession taken by the Plaintiff is clearly

barred by estoppel.

The next point urged by the counsel for the Defendant is that the plea of adverse possession is also barred by the principles of res judicata. In

my opinion, the contention is well founded and must prevail. It would appear from the award as also from the Idler of the Collector lo the CCE

EX. PW 1/1 and the notes of the various officers of the Plaintiff that the fact that the forest department was in possession for more than half a

century was fully known to the plain till' and his officers mid despite that no claim for adverse possession was preferred before the District Judge

when the mailer was referred to him by the Collector. In appeal, however, the Plaintiff raised the plea of adverse possession and filed evidence in

support of its claim. The plea was, however, rejected by the High Court ' its judgment Ex. 2 date 15th October 1958, where the High Court

observed as follows:

The mere fact that the forest department was in possession for more than the statutory period would not make that possession as adverse against

the Respondent In order that the possession should be adverse it was necessary for the Appellants to show that it was in possession of the

properly through the Forest Department as an owner for more than the statutory period to the knowledge of the Respondent. There is neither any

proof nor even a suggestion to the effect that the Appellant had asserted their hostile title to the properly to the knowledge of the real owner and

were in adverse possession for the statutory period. On the oilier hand a notification was issued by the Collector himself who was representing the

Government u/s 9 calling upon the owner or owners to put in their claim for compensation for the land which was acquired for public purpose.

It is now well settled that any decision on a question of title given by a court in land acquisition proceedings would operate as res judicata in a

subsequent suit. The mere fact that the court was giving its judgment in land acquisition proceedings, would not prevent the operation of the

principles of res judicata. In Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, their Lordships of the Supreme Court relying on the

leading case of the Privy Council reported in AIR 1939 133 (Privy Council) , observed as follows:

The first contention raised by him was that the judgment of the Privy Council could not operate as res judicata against the present contention of the

Sens and the mortgagees, about the title to the four anna share of Raj Ballav's estate, because the subject matter of those ""proceedings was the

compensation money, a sum of Rs. 900/- and not the property that is the subject mailer of the present suit. He argued that when the. plea of res

judicata is founded on general principles of law, that plea Can Only prevail provided the subject matter in the two cases is identical. It was

conceded that such contention could not be sustained under the provisions of Section 11 of the Code.

In our opinion, Ibis argument is untenable and was negatived by their Lordships of the Privy Council in AIR 1939 133 (Privy Council) cited above,

in clear and emphatic terms. In that case in a regular suit which concerned the rest of the property the plea of res judicata was upheld by reason of

the decision in the land acquisition case which concerned another part of the, properly which had been acquired and for which compensation-was

payable The quotation already cited earlier from this decision brings out that point clearly. The gist of res judicata is the identity of title in the two

litigations and not the identity of the actual properly involved in the two cases

The condition regarding the competency of the former Court lo try the subsequent suit is one of the limitation engrafted on the general rule of res

judicata by Section 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general1 principles of law, all that

is necessary lo establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem

necessary in such cases to further prove that it has jurisdiction lo hear the later suit A pica of res judicata on general principles can be successfully

taken in respect of judgment of Courts of exclusive jurisdiction like revenue Courts, laud acquisition, Courts, administration Courts etc. II is

obvious that these Courts are not entitled lo try a regular suit and they only exercise special jurisdiction conferred on them by the statute.

This decision has been fully endorsed in Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), which has been discussed above,

Having regard lo those decisions therefore. I am constrained to bold that the plea of adverse possession having been raised before the High

Court in Land Acquisition proceedings, having risen between the same parties, and regarding the same subject matter, operates as res judicata in

the present suit

Lastly, it has been argued that the plea of adverse possession is barred by the 'provisions of the Land Acquisition Act u/s 12 of the Jammu and

Kashmir Land Acquisition Act, an award filed by the Collector is final and conclusive subject to the provisions of the Act. An interpretation of

Section 12 of the Act would thus indicate that the award of the Collector subject lo the decision of the District Judge of the High Court, when

reference1 in made by the Collector, is final and conclusive between the Collector and the persons interested. In the instant case, the Collector had

made an award and a reference was made by him at the instance of the Defendant to the District Judge Thus any decision given by the District

Judge as modified in appeal by the High Court would be final and conclusive and cannot be re-open-od in a separate suit. Of course, if the Plaintiff

would have succeeded in making out a case that the land acquisition proceedings were procured by fraud, it would have been a different mailer,

but the proceedings cannot be cancelled or re-opened merely because the Plaintiff who could have taken the plea of adverse possession before the

District Judge, did not lake the same or because the plea taken by it specifically before the High Court was decided against it. The very object of

the Land Acquisition Act is to extinguish the title of the original owner and this having been done, the Collector cannot be beard to say that he

proceeded under the provisions of the Act due to the negligence or mistake on his part. In these circumstances, therefore, 1 am clearly of the

opinion, that the suit as framed is barred by Section 12 of the Jammu and Kashmir Land Acquisition Act.

Assuming, however, that the plea of adverse possession is not barred by any provisions of the principles indicated above, let us see whether on

merits able to prove that it adverse possession. As admitted by the Defendant that the Plaintiff did take possession of the lands in suit as far back

as 1891 A.I.), and bad been in possession ever since then. In support of its case, the Plaintiff had examined P.Ws. 1, 2, 4, 8, 9, 10, 11, 14, 15,

16 and 17. Reliance was placed by the Advocate General on the evidence of D.Ws. 4, 8 and 9. All the witnesses examined by the Plaintiff have

no doubt, stated that the Plaintiff had been seen in possession of the lands for more than 30 to 40 years by them. Some of the witnesses have also

'asserted that the possession of the Plaintiff was that of an owner. In their cross examination, the witnesses have explained that they have inferred

this fact from the circumstance that the forest department did not pay any rent to the Defendant. The Plaintiff has also relied on-a number of

revenue entries namely Ex. PW 4/1 and Ex. PW 4/1 to 3, P.W. 14 has also been examined to prove the jamabandi of the years 1976, 1954 and

1958 Samval showing the possession of the forest department. This witness, however, has not produced the Jamabandi of a date prior to 1954.

Mere revenue entries however are not sufficient to show that possession of the Plaintiff was adverse. On the other hand, the Defendant has

produced a number of documents to show that his ancestors were recorded as Asami Dar in possession of the lands in dispute before the lands

were taken possession of by the forest department. I have already unhealed that P.W. 21 D.N. Vas has clearly admitted that though at the relevant

time the Defendant did not possess any proprietary rights yet he had Asami Dari rights to remain in possession of the lands. All that the evidence of

the Plaintiff shows is that the Plaintiff through the forest department was in possession of the lands in dispute since 1894. There is no reliable

evidence to show there was any assertion of hostile title by the Plaintiff at any time. On the other hand, the documentary-evidence produced by the

Plaintiff itself shows that far from asserting any hostile title, the Defendant's ownership was always recognized by the forest department. In this

connection the contents of the letter of the Deputy Commissioner Ex. PW 1/1 clearly show that the Defendant's claim of being the owner of the

lands has been accepted in an unmistakable terms and the possession of the forest department has been described as ""illegal possession"" The last

portion of the third part of this letter reads thus:

But so far the land of the applicant is concerned it is the illegal possession of the said department and as a mailer of fact this still belongs lo the

concerned owners.

Thus we find that even in 1955 the Collector stales that the Defendant is still the owner of the lands, This statement, therefore, demolishes the

case of the Plaintiff that the Defendant had not acquired little by adverse possession

Similarly in the reply dated 2-0-1955 Ex.P Wl/2 which was sent to CCF, the CF has observed as follows:

From perusal of Shajra Kasra enclosed it is also established that the land in dispute belongs to the father of the applicant.

Again in another Idler Fx. PW 1/7 while commenting on the claim of the Defendant, the following observations appear:

So far as the point of settlement records is concerned it is obvious from the Shajra of Khasra in one case that it is existing in the name of the

applicant's father.

Finally the award of the Collector Ex.PW 20/1 also acknowledges the litle of the Defendant even on 3-11-1955 the dale when the award was

made. In the award the Defendant has been described as the owner of the lands.

It would (bus appear from the conduct of the officers of the Plaintiff that they never treated their possession to be adverse al any time. On the

older hand they have always been recognizing the litle of the Defendant. Moreover, as I have already indicated, above, the mere fact that

possession was taken over from the Defendant does not indicate, that the ownership or Asami Dari rights which the Defendant possessed were

extinguished. All that can be said is that the possession of the forest department for all these years was purely permissive. Since the officers of the

Plaintiff realized that before acquiring complete title to the properties, it had to be acquired under the Land Acquisition Act, therefore, the

Collector's suggestion for acquiring these lands war, approved by the CCF. Whether the recognition of that title of the Defendant was made due to

ignorance of law or negligence on the part of the Plaintiff is a different mailer and does not affect the basic question of adverse possession. The fact

remains that the Plaintiff admitted the title of the Defendant even in 1955 for whatever reason it may he No evidence has been adduced by the

Plaintiff lo show that there was an assertion of hostile title at any time before 1955. It was, however, submitted by the Advocate General that no

rent was paid to tins Defendant. This circumstance by itself will not be sufficient to prove that the Plaintiff was asserting a hostile title.

It is well settled that possession must to be traced lo a legal title unless there is anything to show that the title is lost. In Monohar Das Mohanta

Vs. Charu Chandra Pal and Others, . their Lordships-of the Supreme Court made the following observations:

The circumstances and conditions under which a presumption of lost grunt could be made are well settled. When a person was found in possession

and enjoyment of laud for a considerable period of time under the assertion of title without challenge, courts in England were inclined lo ascribe a

legal origin to such possession, and when on the fads a litle by prescription could not Ins sustained, it was held that a presumption could be made

that the possession was referable lo a grant by the owner entitled lo the land, but that such grant had been lost. It was a presumption made for

securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumption juris et de jure,

and the courts were not bound to raise it, if the fads in evidence went against it.

Reliance was however placed by the Advocate General on the evidence of D.W. 4 Ghulani Hassan who slated in cross examination lhat the

possession of the forest department was that of an owner and also that of a tenant since 1976 Bikarmi. This evidence by itself docs not prove the

Plaintiff's case because this is an impression of the witness from the mere fact that the forest department was in possession of the lands for a long

time The witness is only a Patwari and has proved certain entries Ex.DW 4/R to 115, and Ex. DW 4/A to Al which show possession of the

Defendant's ancestors as owners of the land in question. This evidence of the witness, therefore, does not improve the case of the Plaintiff in view

of the admission of the Plaintiff's officers' as late as 1955.

The Defendant has examined some witnesses to prove that similar lands in the vicinity were taken possession of by the Plaintiff long long time

ago and in spite of that compensation was given years after lo the owners of the land. This evidence has been adduced by the Defendant to show

that there could be no mistake on the part of the Government in giving compensation lo the Defendant though the land was acquired a long time

ago. This part of the evidence, however, is not very relevant because the decision has to be given on the fads and circumstances of each particular

case We do not know under what circumstances the land was acquired by the Government in the case of some witnesses examined by the

Defendant. Since onus lay heavily on the Plaintiff to prove that it had acquired title by adverse possession and since the evidence of the plain-tiff

does not prove this, it is not necessary for 'me' to consider the evidence of the Defendant. For these reasons, therefore, I am clearly of the opinion

that the Plaintiff has failed to prove that it had acquired litle by adverse possession. By giving this finding, I should not be taken to concede that the

plea of adverse possession is not barred by res judicata, estoppel and also by the provisions of the Land Acquisition Act. I have given Ibis finding

on the question of possession since evidence had been led before me on this point. For these-reasons, therefore, Issues Nos. 3, 4, 5, 7 and 8 are

decided against the Plaintiff and in favour of the Defendant.

Issue No 9.

In view of the findings given above it would follow that the Plaintiff is not entitled to any relief. In my opinion the present suit is wholly

misconceived and hopelessly barred by res judicata and estoppel. The Plaintiff having availed of a full-fledged opportunity lo prove its plea of

adverse possession and mistake before this court in the land acquisition proceedings and having miserably failed to prove the same was ill-advised

to file the present suit.

The Defendant has been deprived of the compensation money for all these years because the money is still in the custody of the Plaintiff For

these reasons, I do not see any reason why the Defendant should not be awarded costs of the suit.

The result is that the suit of the Plaintiff is dismissed with costs.

The order of the court slaying payment of compensation money to the Defendant is vacated and the Defendant is entitled to withdraw the

compensation money forthwith.