UNION OF INDIA Vs. SHIVNATH SINGH

JUDGEMENT

(1.) THIS is an appeal under section 100 of the Code of Civil Procedure, directed against the judgment and decree dated 26.4.1985 of the II Additional District Judge, Gwalior in C.A. No.12 -A/79, whereby the judgment and decree of the trial Court dated 19.4.1979 in C.S. No.382 -A/79 have been confirmed.

(2.) THE undisputed facts of the case are, that Devisingh was posted as a Lt.Col. in the erstwhile Gwa1ior State Army. Prior to that, Devisingh was posted as a Major in the said Army, stationed at Morar. He died on 28.3.1966. Prior to his retiremient, Lt.Col. Devisingh made an application on 16.11.1940 to the Adjutant and Quarter Master General of the Army to allow him some piece of land near the Military area, so that he could construct a house thereon for the residence of himself and his family. It is stated that on 2.6.1941, the said authority inspected the plot in question and on 12.11.1941 intimated Devisingh that the said plot was close to the Union Military Lines in Morar and informed Devisingh to choose another plot. It was alleged that the said authority, by an order dated 30.12.1941, conveyed the acceptance of Devisingh as an allottee of dilapidated Khandhar of the Military Engineering Stores. As such, Devisingh remained in continuous possession of the said plot, but due to certain unavoidable reasons, could not make the construction thereon. It was alleged that the said plot'/allotted to Devisingh, measured 50 yards x 54 yards on one side, ang/27 yards x 40 yards on the Eastern side.

(3.) WHILE the proceedings were on in the trial Court, the statement of plaintiff's witnesses Laxmanrao Sambhajirao Awad, aged 74 years, who was at the relevant time posted as Adjutant and Quarter Master General in the Gwalior Army, was recorded on 3.3.1975 on commission through Commissioner Shri J.P. Tiwari. The statements of plaintiff's witnesses Nathuram (PW1) was recorded on 17.10.1974, and those of Kartar Singh (PW2) on 20.12.1974, Shivnath Singh (PW3) and Badri Prasad (PW4) on 20.3.1978. Thereafter, it appears that later in the day at 3:15 p.m., Shri Gaur, Government Pleader, appearing on behalf of the defendant, absented himself and the Court allowed secondary evidence to be led under sections 65 and 66 of the Evidence Act, on an application made by the plaintiff's counsel. Therefore, the last witness for the plaintiff, by name Badri Prasad (PW4) went un -cross examined. It appears that on 31.3.1978, an application was filed on behalf of the defendant Union of India, purporting to be under Order 9 rule 7, CPC, which was dismissed by the trial Court on 29.8.1978. No appeal or revision was filed against this order by the defendant Union of India.