Untwalia, J. - (1.) A piece of land measuring 113 Kanals and 11 Marlas situated in Chawni Badam Singh, Chattabal, Srinagar in the State of Jammu and Kashmir belonged to the forefathers of the defendant-respondent in this appeal by certificate. Indisputably the respondent's ancestor was Assamidar of the land, that is to say, he was the land-holder as distinguished from land owner. The land owner was the Maharaja Bahadur of Jammu and Kashmir in whose Riyasat the land was situate. Proposals were made in the year 1893 to take this land from the ancestor of the respondent as it came under a timber depot established on adjacent Government land. The land was taken possession of and as was the practice prevalent during the Maharaja's time only rent was remitted and no compensation was paid for taking over the land. The respondent's ancestor had merely right in the land. He lost the right of possession too on the Government dispossessing him and taking possession for the purpose of the timber depot. Sixty years later the respondent filed an application before the then Prime Minister of Jammu and Kashmir for payment of compensation of the land. Inquiries were made from the various officers of the various departments and eventually instead of deciding as to whether the State was liable to pay any compensation in respect of the land which had been taken over 60 years ago or not the decision taken was to start a new land acquisition proceeding under the Jammu and Kashmir State Land Acquisition Act, 1934 which is at pari materia with the Central Land Acquisition Act, 1894. Notice under S. 4 of the said Act was issued in or about the year 1955 and the Collector, Srinagar made an Award determining the compensation for the land at Rs.32,645.62 paise. The respondent asked for a reference and on reference being made the learned District Judge determined the compensation at Rs.35,908.10 paise. The State preferred in appeal. The High Court restored the amount fixed by the Collector and knocked down he enhancement made by the District Judge. For the first time in the High Court an application was filed under O.41, R.27 of the Code of Civil Procedure claiming adverse possession of the land and for the taking of additional evidence. The High Court repelled this contention Later a Review Petition was filed in the High Court claiming that the land had already been acquired and the entire land acquisition proceeding was without jurisdiction and a nullity. The High Court was asked to award no compensation. The High Court rejected this Review Petition. Thereafter the present suit was filed saying that the defendant respondent had committed fraud and the land acquisition proceeding had been taken as a result of mistake of fact and law and that the entire proceeding was vitiated. The suit was filed on the original side of the High Court of Jammu and Kashmir. The learned Judge dismissed the suit. The State, the appellant in this appeal, failed in appeal before the Letters Patent Bench of the High Court. The matter has now come before us.
(2.) The findings of the learned single Judge are:- "(1) That the land in dispute were in continuous possession of the forest department since 1894 A. D. (2) That no rent or compensation was paid to the defendant or his ancestor for these lands. (3) That the lands in dispute were recorded as "Khalsa Sarkar" which means that the proprietary interest vested in the Government. (4) That at the time when the land acquisition proceedings were initiated, the officers concerned of the plaintiff were fully aware of the facts mentioned above. But their attention was not specifically drawn to the council resolutions. (5) That the forest records having been burnt in the year 1943 and after a fresh enquiry was initiated at the instance of the Advocate General, the council resolutions were traced in the Government repository at Jammu. (6) That the old settlement file which contained the resolutions perhaps did not form part of the land acquisition file." In regard to finding No. 6 there was some controversy as to whether the land acquisition file contained the old resolutions or not and whether the attention of the authorities was drawn to them. We shall assume in favour of the respondent as found by the learned trial Judge that there was no fraud practised by him nor was there any mistake of fact on the part of the authorities concerned in starting the land acquisition proceeding.
(3.) The Appellate Bench of the High Court consisted of Mian Jalal-ud-din J. and Anant Singh, J. They differed on most of the points although agreed in their conclusion that the appeal should be dismissed. The findings of Mian Jalalud-din J. are:- (1) "That it could not be said that the authorities dealing with the acquisition proceedings were ignorant about the factual aspect of the matter that the land had been resumed in the year 1893 under council resolution and that no compensation was to be paid for this, and that its character was that of "KHALSA" and if remained in possession of the forest department for over 60 years.... (2) "In our opinion the initiation of acquisition proceedings was wholly uncalled for as there was nothing to be acquired. Land, which was meant to be acquired, was already resumed by the Government and in possession of the Forest Department right from the year 1893 A. D. under the orders of the council and was shown as Khalsa." (3) "It appears to be a case of gross negligence on the part of the officers of the Government dealing with the acquisition matter. The plaintiff cannot avoid the degree on the ground that his officers have acted in gross negligence;" and (4) that the order of the High Court in appeal and in review operated as res judicata. The plaintiff-appellant was also estopped from challenging the land acquisition proceeding. Mian Jalal-ud-din J. agreed in this regard with the learned single Judge.;