KRISHNA DEI Vs. GOVERNOR-GENERAL IN COUNCIL

JUDGEMENT

(1.) The plaintiffs, the Governor-General in Council and the Rohilkhand and Kumaon Railway through its Agent at Gorakhpur, sued Mt. Kishen Dei, defendant 1, the appellant, and Nawab Ali, defendant 2, and Jumman, defendant 3, for recovery of possession over two small plots of land marked A and B in the map attached to the plaint. It was alleged in the plaint that the plaintiff 1, Governor-General in Council, was the owner of the metre gauge railway known as the Lucknow Bareilly State Railway; that under an agreement dated 8th September 1890, plaintiff l leased the working of the aforesaid State Railway to plaintiff 2. It was said that the railway line of the aforesaid railway crossed Canning Street near Mohalla Rakabganj in the city of Lucknow and there was a level crossing at that place. In order to avoid accidents at the railway crossing, plain-tiff 1 acquired certain lands in 1895 and built an over-bridge for road traffic, as shown in the map, and handed over the bridge to plaintiff 2. It was said that the two portions of land marked A and B on two sides of the bridge had been wrongly encroached upon and occupied by defendants 2 and 3 who had built their shops since about 8 years before the filing of the suit without any permission of the plaintiffs. It was also said that it was discovered that defendants 2 and 8 when asked to vacate stated that they had got the land from defendant l and that all the defendants were refusing to vacate the land. There was a common defence of all the three defendants that the land did not belong to the plaintiffs at all, that on the contrary it belonged to defendant l who had acquired it by a sale deed in 1934. It was claimed that defendant 1 and her predecessors-in-interest had been in possession over the disputed land since the Nawabi times and that the suit was time barred.

(2.) The learned trial Court came to the conclusion that the land in suit had been acquired in 1895 by the Governor-General in Council and that after the construction of the over-bridge it had been handed over to plaintiff 2. It was found that the defendants had been in possession since about 8 years before the date of suit and that no title by adverse possession had been acquired by defendant 1 as the limitation in the case was 60 years. It was found that the plan, Ex. 2, produced from the office of the railway authorities concerned related to the land acquired. Relying on the report of the Commissioner appointed by the trial Court it held that the disputed plots were acquired by the Governor. General in Council in 1895. The plaintiffs' suit was accordingly decreed with costs. Apparently during the course of trial of the suit, Rohilkhand and Kumaon Railway became Oudh and Tirhut Railway and began to be managed by the Government of India, and accordingly the Governor-General in Council through the Agent and General Manager, Oudh & Tirhut Railway, Gorakhpur, was impleaded as plaintiff 2 instead of the Agent, Rohilkhand and Kumaon Railway.

(3.) Mt. Kishen Dei, defendant 1, alone went up in appeal and impleaded the two plaintiffs and the other two defendants Nawab Ali and Jumman as respondents. Several grounds of appeal were taken, but the only ground that seems to have been urged before the lower appellate Court was that Ex. 2, the plan filed by the plaintiffs, was not proved to be the plan prepared at the time of the acquisition proceedings and that there was no proof that the disputed land was part of the land acquired by the plaintiffs by the land acquisition proceedings in 1895. The learned lower appellate Court held that Ex. 2 was the plan prepared at the time of the acquisition proceedings. It, however, did not accept the report of the Commissioner appointed by the trial Court for the reason that the Commissioner had not been examined in Court and had not explained how he arrived at the conclusion that the land in suit was part of the land acquired in 1895 under the plan EX. 2. It accordingly appointed another Commissioner, Mr. Fateh Bahadur. This gentleman went to the spot, took the measurements and submitted a report to the effect that the plan Ex. 2 does not tally with the situation on the spot, that the over-bridge in question is situated actually at some distance away from the spot where it ought to be according to the plan Ex. 2, and that in these circumstances it was not proved that the plots A and B in dispute, which were on two sides of the bridge, were part of the land acquired in 1895. The learned Court below considered the evidence of the Commissioner carefully and found that it could not accept the report of the Commissioner as his finding was based upon measurements which he had taken from a point which was admittedly wrong and that in fact certain fixed points existed at the time of the construction with reference to which the Commissioner's report proved that the bridge was situated at the place where it should have been accordingly to EX. 2. In the circumstances the Court below felt satisfied that the disputed land was part of the land acquired in 1895. As no other points were urged before the Court the appeal was dismissed,