HUDA v. Charan Singh & Ors.

After hearing learned counsel for the applicant-appellant, delay of 126 days in refiling this appeal is condoned. CM stands disposed of. CM No.5746-C of 2010 and RSA No.1847 of 2010 (O&M) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby its suit for permanent injunction restraining the defendants from raising construction or causing interference in the suit land as detailed in the plaint, was dismissed. As per the averments made in the suit, the suit property fell to the share of State of Haryana after creation of the Haryana State and was being used by the residents of village Abheypur. The suit property measuring 11.2 acres was acquired by the HUDA for a public purpose RSA No.1847 of 2010 (O&M) 2 namely for the development and utilization of the same as residential, commercial and industrial area in Urban Estates to be set up in the area of village Abheypur. On these averments, the plaintiff-appellant claims itself to be owner and in possession of the suit property. It was pleaded that due to urbanization of the area, the prices of the property in the area have increased tremendously and the defendant-respondents have illegally encroached upon the property and were trying to illegally raise construction without any legal right, title or interest. They were requested not to do so but they did not pay heed to the request of the appellant therefore, necessity arose to file the present suit. In response to the notice of the suit, defendants No.1 to 3 filed written statement and raised various preliminary objections. It was specifically denied that the suit property had fallen to the share of the plaintiff on the creation of the State of Haryana. It was counter asserted that the suit property was being used by the residents of the village which was part of village Baltana (Punjab) and the same never belonged to the residents of Abehypur (Haryana). Other averments were also denied and dismissal of the suit was prayed. Defendant No.4 filed separate but identical written statement and opposed the suit. The suit was filed initially against eight defendants and only defendants No.1 to 4 were served and contested the suit. The suit qua defendants No.5 and 6 was dismissed under Order 9 Rule 2 CPC vide order dated 1.5.2002. Defendants No.7 and 8 were reported to be dead. It may also be noticed that no evidence was produced by the plaintiff- appellant in support of its case despite several opportunities and ultimately the evidence was closed by order of the Court under Order 17 Rule 3 CPC. The aforesaid order closing the evidence of the appellant was never RSA No.1847 of 2010 (O&M) 3 challenged. After hearing learned counsel for the parties and evaluation of the material on record, the trial Court answered all the issues against the plaintiff-appellant and dismissed the suit. Dissatisfied from the impugned judgment and decree of the trial Court, the appellant preferred an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 27.8.2009. While dismissing the appeal, the Lower Appellate Court observed as under:- “The suit was instituted in the year 1999. Issues were framed on 25.2.2003. Thereafter, three effective opportunities for evidence were allowed to the plaintiff before 26.5.2006. For 26.5.2006 last opportunity was granted to the plaintiff to conclude its entire evidence. The plaintiff did neither produce any evidence nor took any steps for producing its evidence. Rather the plaintiff made an application and requested adjournment which was allowed subject to deposit of costs of Rs.200/- with the District Legal Service Authority and the case was adjourned to 17.11.2006. But even on 17.11.2006, no evidence was produced by the plaintiff but in the interest of justice, the learned trial Court granted another adjournment and adjourned the case to 14.12.2006 and specifically ordered that in case of plaintiff's failure to produce its evidence, no further opportunity will be given for this purpose. The plaintiff did not produce any evidence even on 14.12.2006 and therefore, the learned RSA No.1847 of 2010 (O&M) 4 trial Court closed its evidence under Order 17 Rule 3 CPC and after hearing the learned counsel for the parties, dismissed the plaintiff's suit. A perusal of the interlocutory orders passed by the learned trial Court shows that sufficient opportunities were allowed to the plaintiff but despite that it did neither produce any evidence nor take any steps for summoning the witnesses. Possibility of a lack-a-daisical conduct of officials of the plaintiff due to their league with the defendants cannot be ruled out. As stated above, suit against defendants No.5 and 6 was dismissed by the learned trial Court under Order 9 Rule 2 CPC while this appeal has been dismissed for want of prosecution against defendants No.2 and 4 by this Court. Two defendants were reported on 26.10.1999 to be died when suit was pending before the learned trial Court. Those dead defendants have been arrayed as party to this appeal also for reasons best known to the plaintiffs.” Still not satisfied, the appellant has filed the instant appeal before this Court submitting that the following substantial questions of law arise in this appeal: “(i) Whether the appellants are owner of the suit land by virtue of award No.9 of 13.6.1974? (ii) Whether respondents/defendants are unauthorized occupiers over the suit land after the passing of the award under the Land Acquisition Act?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. RSA No.1847 of 2010 (O&M) 5 It may be noticed at this stage that there is no challenge to the orders of the trial Court whereby the evidence of the appellant was closed by order of the Court under Order 17 Rule 3 CPC but an application under Order 41 Rule 27 CPC has been filed before this Court to produce on record notification dated 22.6.1973 (Annexure A-1), issued under Section 4 of the Land Acquisition Act, notification dated 17.5.1974 (Annexure A-2), issued under Section 6 of the Land Acquisition Act and award dated

13.6.1974 (Annexure A-3) to prove their case. In the aforesaid application, it has been stated that the aforesaid documents could not be placed on record of the case due to the negligence of the then Naib Tehsildar in the office of Estate Office, HUDA, Panchkula, who has since retired and non production of the aforesaid evidence was neither intentional nor wilful. The reasons mentioned in the application for permitting the appellant to adduce additional evidence are hardly any ground to allow the appellant at this stage to lead additional evidence. The case of the appellant for allowing it to lead additional evidence does not fall within the parameters of Order 41 Rule 27 CPC. Even this is not the case of the applicant-appellant that the aforesaid documents are necessary for the just decision of the case. Not only this, the controversy in the suit is entirely different as the appellant has taken a stand that the property in dispute fell to the share of State of Haryana on the Division of erstwhile State of Punjab. The documents sought to be produced, which are just notifications for acquiring the aforesaid land, cannot establish in any way the factum of falling this land to the share of State of Haryana and are not relevant at all for the decision in the appeal. For the aforesaid reasons, the application for additional evidence is rejected. Since the appellant has failed to produce any evidence in RSA No.1847 of 2010 (O&M) 6 support of its case, no fault can be found with the impugned judgment and decrees of the Courts below. No substantial question of law arises in this appeal. Dismissed. July 28, 2010 (RAKESH KUMAR GARG) JUDGE RSA No.1847 of 2010 (O&M) 7