THE STATE OF HIMACHAL PRADESH & ORS. versus CHANDERVIR SINGH NEGI on 24 February 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 09.08.2019 passed by the High Court of HimachalPradesh at Shimla passed in Regular Second Appeal No. 270 of 2007 bywhich the High Court has allowed the said appeal and has quashed andset aside the judgment and decree passed by the learned Trial Courtdismissing the suit and consequently decreeing the suit directing theappellant herein to initiate the acquisition proceedings qua the land of theplaintiff as mentioned in the plaint as well as the order dismissing thereview application preferred by the appellant herein, the State of HimachalPradesh and others have preferred the present appeals.

2. That the respondent herein - original plaintiff instituted the suitbefore the learned Trial Court for declaration, mandatory inunction andseeking direction to the appellants herein - original defendants to initiateand complete the acquisition proceedings in respect of the land of theplaintiff and damage to his fruit bearing trees. According to the plaintiffthe appellants herein - original defendant nos. 1, 2 & 3 without complyingwith the provisions of the Land Acquisition Act, constructed a road knownas “Tikkari-Larot- Bodra Kwar road” on the land of the plaintiff, but nocompensation was paid to the plaintiff. The fruit bearing plants werealso damaged.

2.1 The appellants herein – original defendants contested the suitcontending inter alia that the suit is barred by law of limitation; that theplaintiff was working as Mate in the Department and in fact the roadwas constructed on his request and as per the consent; the plaintiffwaived off his claim of compensation as the road was constructed withhis consent in the year 1987. The learned Trial Court framed the followingissues:

“Issue no.l :- Whether the plaintiff is entitled for the relief ofdeclaration, as prayed for? OPP

Issue no.2:- Whether the plaintiff is entitled compensation asalleged? OPP

Issues

Issue no. 3:- Whether the suit is not maintainable? OPD Issueno. 4:- Whether the suit is time barred? OPD

A

BC

DE

F

G

H

Issue no. 5:- Whether the plaintiff is estopped by his acts andconduct? OPD

A

Issue No.6:-Whether the suit has not been valued properly forthe purpose of court fee and jurisdiction? OPD

Issue No. 7:-Whether the plaintiff has no cause of action?BOPD

Issue No.8:-Whether the suit is bad for non-joinder of necessaryparties? OPD

Issue No.9:- Relief”.C

2.2 On appreciation of entire evidence on record and consideringthe fact that the road was constructed in the year 1987 and till 2002 nogrievance was made by the plaintiff and as the cause of action arisen inthe year 1987, the learned trial Court held the issue No.4 in favour of thedefendants and held that the suit was barred by limitation taking intoconsideration Articles 58 and 72 of the Limitation Act. The learned TrialDCourt also held the issue Nos.3, 5 & 7 against the plaintiff. Consequently,the learned Trial Court dismissed the suit. The judgment and decreepassed by the learned Trial Court dismissing the suit came to be confirmedby the First Appellate Court. By the impugned judgment and order theHigh Court has allowed the Second Appeal preferred by the originalEplaintiff. The High Court framed the following substantial question oflaw:

“Whether the findings or judgment and decree passed by the Courtbelow are a result of complete misreading, misinterpretation ofthe evidence and material on record and against the settled positionFor law?”

Holding aforesaid question of law in favour of the plaintiff theHigh Court without even considering the issue with respect to the limitationhas allowed the Second Appeal and has quashed and set aside theconcurrent findings recorded by both the Courts below and consequentlyGhas decreed the suit.

2.3 Learned counsel appearing on behalf of the State hasvehemently submitted that in the facts and circumstances of the casethe High Court has committed a very serious error in allowing the SecondAppeal and quashing and setting aside the concurrent findings recorded H

by both the Courts below which as such were on appreciation of evidenceon record.

2.4 It is submitted that the Hon’ble High Court has not properlyappreciated the fact that as such the road in question was constructed inthe year 1987 and that too with the help and consent of the plaintiff andthat at no point of time till 2002, he made any grievance even with respectto non- payment of the compensation. It is submitted that in the depositionthe plaintiff witnesses including the plaintiff have specifically admittedthat the road in question has been constructed in the year 1987. It issubmitted that for the first time in the year 2002 the plaintiff in arepresentation to the Chief Minister made a grievance with respect tonon-payment of the compensation. It is submitted that therefore whenon appreciation of evidence on record both the courts below held thatthe suit was barred by limitation, the High Court has committed an errorin interfering with the said findings in exercise of powers under Section100 of the Code of Civil Procedure.

2.5 Making above submissions, it is prayed to allow the presentappeals and quashed and set aside the impugned judgment and orderpassed by the High Court and restore the judgment and decree passedby the learned Trial Court dismissing the suit.

3. We have gone through the impugned judgment and order passedby the High Court as well as the findings recorded by the learned TrialCourt confirmed by the First Appellate Court. We have also consideredthe deposition of the plaintiff witnesses which were elaboratelyconsidered by the learned Trial Court. From the deposition of the plaintiffwitnesses it can be seen that the plaintiff and other witnesses specificallyadmitted that the land in question on the land of the plaintiff wasconstructed in the year 1987. The plaintiff witnesses have also admittedthat the retaining wall was constructed on the land of the plaintiff in theyear 1987. Even according to the plaintiff and his witnesses the fruittrees were damaged/destroyed in the year 1987. Even the cause ofaction pleaded in the suit was construction of road in the year 1987.Considering the aforesaid facts and circumstances when the learnedTrial Court held that the suit was barred by limitation considering Articles58 and 72 of the Limitation Act and when the same was confirmed bythe First Appellate Court, the High Court ought not to have interferedwith the said findings of facts in exercise of powers under Section 100of the CPC.

AB

C

D

E

F

G

H

A3.1 At this stage, it is required to be noted that it was the specificcase on behalf of the defendants that the road was constructed with thehelp and consent of the plaintiff which is established and proved by theconduct on the part of the plaintiff mainly not raising any dispute till2002.

B3.2 From the impugned judgment and order passed by the HighCourt and the substantial question of law framed it is to be noted that theHigh Court has not framed any substantial question of law on the limitationand/or the suit being barred by limitation. The High Court has gone ongeneral and broad principles. However, the High Court has not at allconsidered the real facts which are narrated hereinabove. Even theCsubstantial question of law framed by the High Court also cannot be saidto be a substantial question of law at all. Be that it may the fact remainsthat the road in question was constructed in the year 1987; the trees, ifany, were damaged/removed in the year 1987; the retaining/protectionwall was constructed on the land of the plaintiff in the year 1987 and theDsuit was filed in the year 2003 and therefore the suit was barred bylimitation considering Articles 58 and 72 of the Limitation Act, theimpugned judgment and order passed by the High Court is unsustainableand the same deserves to be quashed and set aside.

4. In view of the above and for the reasons stated above, theEpresent appeals succeed. The impugned judgment and order passed bythe High Court is hereby quashed and set aside. The judgment and decreepassed by the learned Trial Court confirmed by the First Appellate Courtdismissing the suit is hereby restored.

Present appeals are accordingly allowed. No costs.

F

Nidhi Jain

Appeals allowed.

(Assisted by : Abhishek Agnihotri and Tamana, LCRAs)

G

H