Hon'ble Sanjay Misra - (1.) THIS second appeal under Section 100 of the Code of Civil Procedure was dismissed by the judgment dated 8.2.2006 of this Court mainly for the reason that in second appeal reappraisal of evidence cannot be done and that no substantial question of law arises herein. The plaintiff- appellants preferred Special Leave to Appeal Petition No. 8287 of 2006 which was allowed and Civil Appeal No. 2349 of 2008 was finally decided by the Supreme Court on 31.3.2008 and the matter was remitted back to this Court for re-decision of the appeal and the application filed by the appellant under Order XLI Rule 27 of the Code of Civil Procedure.
(2.) ON 23.7.2008, the following three substantial questions of law were framed in this appeal: "1. Whether the sale-deed dated 7.7.1982 can be declared to be null and void on the ground that the land had been acquired even though the acquisition proceeding in respect of the said land had not been completed prior to the said date as neither an award under Section 11 of the Land Acquisition Act was made nor the possession of the said land was lawfully taken as alleged by the possession memo dated 19.9.1972? 2. Whether the Courts below were in error in refusing the relief of possession to the plaintiff-appellants merely for the reasons that the land had been acquired without adverting to the fact that the acquisition was not completed? Whether the burden to prove that the land had validly been acquired and had vested in the State lies upon the respondents No. 2 and 3?" 3. The plaintiff-appellants had filed Suit No: 373 of 1985 against one Tufail Ahmad and also impleaded Ghaziabad Development Authority as defendant No. 2. It was pleaded that Tufail Ahmad claimed that he was owner of Khasra Plot No. 666 situate in village Jathwara Kala Andar Hadood City Board, Ghaziabad and the plaintiffs agreed to purchase an area of 200 Sq. meter for which a registered agreement of sale dated 10.5.1982 was entered into by the plaintiff No. 1 and Tufail Ahmad who received a sum of Rs. 4,000/-. it was pleaded that a registered sale-deed was executed on 7.7.1982 upon paying the balance sale consideration. The plaintiffs alleged that after execution of the sale-deed they went to take possession when they came to know from the revenue record that the plot Khasra No. 666 is entered in the name of Ghaziabad Improvement Trust, whereupon the plaintiffs gave notice dated 22.11.1982 to Tufail Ahmad and Tufail Ahmad in his reply denied that the plot was acquired. The plaintiffs then submitted a building map for approval before the Ghaziabad Development Authority on 13.7.1983 which was rejected on 26.7.1983 and by letter dated 27.7.1983 they were informed that plot No. 666 has already been acquired and Ghaziabad Development Authority has obtained rights on 19.2.1972. The plaintiffs then demanded their money from Tufail Ahmad and when it was refused they filed the Suit for possession and in the alternative for recovery of money alongwith interest. A written statement was filed by the Ghaziabad Development Authority pleading that they had obtained the land in question through Land acquisition proceedings and Tufail Ahmad has no right, title or interest to execute the sale- deed in favour of the plaintiffs. Tufail Ahmad also filed his written statement contesting the claim of refund made by the plaintiffs. The plaintiffs subsequently amended the plaint on 23.11.1998 impleading the City Board Ghaziabad/Nagar Mahapalika, Ghaziabad and also amended the pleading to state that the defendant No. 3, the City Board Ghaziabad was proceeding with construction on the land and they had to stop construction on an order of the High Court and further that since compensation for the land acquired had not been given the acquisition proceeding have lapsed and the possession of the Municipal Board was illegal hence they be evicted and the plaintiffs be given possession of the plot in question.
(3.) THE trial Court on the pleadings of the parties framed as many as 11 issues. Issue No. 1 was whether the land had been acquired prior to the sale- deed dated 7.7.1982. THE issue No. 2 was whether the plaintiffs were entitled to recovery of money from Tufail Ahmad. THE issue No. 3 was whether the plaintiffs were entitled to any interest on the amount. THE issue No. 4 was whether the plaintiff had been put in possession by Tufail Ahmad. THE issue No. 9 was whether the suit was barred in view of the provisions of the Land Acquisition Act. THE issue No. 10 was whether the agreement of sale dated 10.5.1982 and sale-deed dated 7.7.1982 were void-ab-initio. The trial Court took up issue Nos. 1,10 and 4 together. It considered the documents submitted as revenue entries. It considered the document of possession dated 19.2.1972 filed by the Ghaziabad Development Authority and held that the land had been acquired prior to execution of agreement of sale and sale-deed by Tufail Ahmad in favour of the plaintiff No. 1. It further held that plaintiffs have proved that they were in possession of the land but held that the agreement of sale and sale-deed were void ab-initio.;