RAM SWAROOP SINGH Vs. STATE OF U P

JUDGEMENT

(1.) SANJAY Misra, J. The instant second appeal has been filed by plaintiff appellants against the judgments and decree dated 19-9- 1998 passed in Civil Appeal No. 71 of 1991 by the Court of Special Judge/additional District Judge Bijnor whereby the appeal filed by the defendant/respondent has been allowed and the judgment and decree of the trial Court has been set aside. Relief sought in this second appeal is that the judgment and decree of the lower appellate Court may be set aside and the judgment and decree of the trial Court be restored. This appeal was admitted on 27-3-1999 on the substantial question of law as to "whether the lower appellate Court has reserved the finding of the trial Court on no basis. "

(2.) THE facts giving rise to this appeal are that the plaintiffs/appellants filed a suit No. 235 of 1984 seeking injunction and ejectment of the defendant (State of U. P.) from the land in dispute. THE plaintiffs case was that plot No. 63 area three Bigha seven Biswa situate at village Meerapur Raza Pargana, Tehsil and District Bijnor belonged to one Sri Nurul Hasan and it was situated within the area of Nagar Palika Bijnor. By a registered sale deed dated 26-8-1961 the said Nurul Hasan sold an area of 907 Sq. yard from the said plot to Sri Prakash Chandra Munish. THE purchaser made certain constructions on the said plot purchased by him. By notification dated 17-12-1962 under the Land Acquisition Act, State of U. P. acquired an area of three Bigha, two Biswa of plot No. 63 for the purpose of construction of police station. THE area purchased by Prakash Chandra Munish was not included in the acquisition and no compensation whatsoever was paid to Prakash Chandra Munish. It is alleged that Prakash Chandra Munish continued to be in possession of the area purchased by him and in the meantime defendants took possession on 9-2-1963 and constructed buildings of police station on an area of 3 Bigha 2 Biswa in plot No. 63 which was acquired by them. THE said acquisition is said to have taken place on 17-12- 1962 which was after the sale deed dated 26-8-1961 executed by Nurul Hasan in favour of Prakash Chandra Munish. By another sale deed dated 23-10-1974 Prakash Chandra Munish transferred the land in favour of the plaintiffs. THE plaintiffs alleged that they came into possession of the land and its construction from the said date. It is the case of the plaintiffs that due to some error/mistake the land in dispute was recorded in the name of the Kotwali in 1379f. It is alleged that from 1333f, the entire area of 3 Bigha 7 Biswa of plot No. 63 was recorded in the name of Nurul Hasan son of Bahadur Ali but after 3 Bigha 2 Biswa of land was acquired under the Land Acquisition Act by the State the name of Nurul Hasan was deleted the police station Kotwali was entered in the revenue record over the area of 3 bigha, 2 Biswa. However, in 1379f, the revenue record erroneously showed the name of police station Kotwali over the area of 3 Bigha 7 Biswa.

(3.) THE trial Court framed the following issues "as to whether the plaintiffs are the owner of the land in dispute" as to whether the land in dispute was a part of plot No. 63; as to whether defendant's possession is unauthorized, as to whether the defendants have been in possession of the disputed land since 1963. THE issue of valuation and limitation was also framed. THE plaintiffs got a commission issued for the purpose of locating the land. In the commissioner's report it was stated that the Commissioner tried to find out the fixed point for survey but no such fixed point could be found on account of construction of houses and dense locality hence the Commissioner prepared a sketch map an submitted his report before the Court. THE trial Court considered the evidence led by the plaintiffs which consisted of two sale deeds of 1961, two sale deeds of 1974 and payment receipts which were proved by the plaintiffs. THE order in Case No. 25 under the Land Acquisition Act was filed as paper No. Ga-32 was considered. THE trial Court also took into consideration the Commissioner's report and oral evidence led by the plaintiffs. THE defendant State of U. P. did not file any evidence before the trial Court nor led any oral evidence.