- (1.) SANJAY Misra, J. The instant second appeal has been filed by plaintiff appellants against the judgments and decree dated 19-9- 1998 passed in Civil Appeal No. 71 of 1991 by the Court of Special Judge/additional District Judge Bijnor whereby the appeal filed by the defendant/respondent has been allowed and the judgment and decree of the trial Court has been set aside. Relief sought in this second appeal is that the judgment and decree of the lower appellate Court may be set aside and the judgment and decree of the trial Court be restored. This appeal was admitted on 27-3-1999 on the substantial question of law as to "whether the lower appellate Court has reserved the finding of the trial Court on no basis. "
(2.) THE facts giving rise to this appeal are that the plaintiffs/appellants filed a suit No. 235 of 1984 seeking injunction and ejectment of the defendant (State of U. P.) from the land in dispute. THE plaintiffs case was that plot No. 63 area three Bigha seven Biswa situate at village Meerapur Raza Pargana, Tehsil and District Bijnor belonged to one Sri Nurul Hasan and it was situated within the area of Nagar Palika Bijnor. By a registered sale deed dated 26-8-1961 the said Nurul Hasan sold an area of 907 Sq. yard from the said plot to Sri Prakash Chandra Munish. THE purchaser made certain constructions on the said plot purchased by him. By notification dated 17-12-1962 under the Land Acquisition Act, State of U. P. acquired an area of three Bigha, two Biswa of plot No. 63 for the purpose of construction of police station. THE area purchased by Prakash Chandra Munish was not included in the acquisition and no compensation whatsoever was paid to Prakash Chandra Munish. It is alleged that Prakash Chandra Munish continued to be in possession of the area purchased by him and in the meantime defendants took possession on 9-2-1963 and constructed buildings of police station on an area of 3 Bigha 2 Biswa in plot No. 63 which was acquired by them. THE said acquisition is said to have taken place on 17-12- 1962 which was after the sale deed dated 26-8-1961 executed by Nurul Hasan in favour of Prakash Chandra Munish. By another sale deed dated 23-10-1974 Prakash Chandra Munish transferred the land in favour of the plaintiffs. THE plaintiffs alleged that they came into possession of the land and its construction from the said date. It is the case of the plaintiffs that due to some error/mistake the land in dispute was recorded in the name of the Kotwali in 1379f. It is alleged that from 1333f, the entire area of 3 Bigha 7 Biswa of plot No. 63 was recorded in the name of Nurul Hasan son of Bahadur Ali but after 3 Bigha 2 Biswa of land was acquired under the Land Acquisition Act by the State the name of Nurul Hasan was deleted the police station Kotwali was entered in the revenue record over the area of 3 bigha, 2 Biswa. However, in 1379f, the revenue record erroneously showed the name of police station Kotwali over the area of 3 Bigha 7 Biswa. The plaintiffs alleged that upon discovering the said mistake in the khatauni of 1379f, the plaintiff filed a case No. 16 of 1983 under Section 33/39 of the Land Revenue Act before the competent authority and after obtaining report paper No. Ga-91 of Tehsidar the authority by order dated 4-3-1983 corrected the said mistake and the police station Kotwali was entered in the Khatauni over an area of 3 Bigha 2 Biswa in plot No. 63. The rest of the area of plot was recorded as abadi. Subsequently in 1391f, same entries are continuing wherein plot No. 63/1 area 5 Biswa was shown as abadi and plot No. 63/2 area 3 Bigha 2 Biswa was shown in the name of police station Kotwali. It is alleged by the plaintiffs that they started certain construction over the plot from the year 1982. In June 1984, the police personnel forcibly occupied the Kothari belonging to the plaintiff situate over a portion of land purchased by the plaintiffs from Prakash Chandra Munish. The possession was resisted. However, when the police personnel did not vacate the premises, plaintiffs were compelled to file the present suit. In support of their case, plaintiffs filed relevant revenue records and sale deeds apart from giving oral evidence. On behalf of the defendants, the case of the plaintiff was denied and it was stated that defendant State has been in possession over plot No. 63 since its acquisition and the land in dispute is in the nature of a road. A plea of adverse possession was also set up by the State.
(3.) THE trial Court framed the following issues "as to whether the plaintiffs are the owner of the land in dispute" as to whether the land in dispute was a part of plot No. 63; as to whether defendant's possession is unauthorized, as to whether the defendants have been in possession of the disputed land since 1963. THE issue of valuation and limitation was also framed. THE plaintiffs got a commission issued for the purpose of locating the land. In the commissioner's report it was stated that the Commissioner tried to find out the fixed point for survey but no such fixed point could be found on account of construction of houses and dense locality hence the Commissioner prepared a sketch map an submitted his report before the Court. THE trial Court considered the evidence led by the plaintiffs which consisted of two sale deeds of 1961, two sale deeds of 1974 and payment receipts which were proved by the plaintiffs. THE order in Case No. 25 under the Land Acquisition Act was filed as paper No. Ga-32 was considered. THE trial Court also took into consideration the Commissioner's report and oral evidence led by the plaintiffs. THE defendant State of U. P. did not file any evidence before the trial Court nor led any oral evidence. Upon considering the aforesaid evidence, the trial Court was of the view that the land in dispute had not been located exactly by the Survey Commissioner, however, it proceeded to hold that on the basis of documentary and oral evidence it was proved that the plaintiffs had purchased the portion of plot No. 63 which had been sold by Nurul Hasan to Prakash Chandra Munish in the year 1961 having an area of 907 Sq. yard. On the basis of the order in land acquisition Case No. 25 being paper No. Ga-32, the trial Court found that State of U. P. had taken possession on 9-2-1963 of an area of 3 Bigha 2 Biswa in plot No. 63. The area of 5 Biswa was left out of acquisition. On the basis of record of rights, the trial Court came to the conclusion that in 1379f, the police station had been wrongly recorded and shown as being owner of three Biswa seven Biswa over plot No. 63 and relied upon the order dated 4-3-1983 of competent authority passed in Case No. 16 of 1983 under Section 33/39 of Land Revenue Act wherein the said erroneous entry had been corrected and defendants was recorded over 3 Bigha, 2 Biswa of plot No. 63 as they had been recorded in the earlier Khataunis. The trial Court also found that the subsequent entries in the Khatauni clearly indicated that the defendants were recorded over 3 Bigha 2 Biswa and balance area of 5 Biswa in plot No. 63 was recorded as abadi. On the aforesaid evidence and findings, the trial Court held that the plaintiffs are owner of the land in dispute that the land in dispute is a part of plot No. 63 and that the defendant State has not been in possession of the land in dispute since 1963. Consequently, it was held that the defendants had unauthorizedly occupied the premises of the plaintiffs in 1984 and they were liable to be ejected therefrom. On the issue of limitation, the trial Court held that since the defendants had entered into unauthorized possession in the year 1984, therefore, the suit filed by the plaintiffs in 1984 itself was not barred by limitation. The trial Court, therefore, decreed the suit of the plaintiffs and ordered the ejectment of the defendants from the land shown as A. B. C. I. in the map of Amin being paper No. Ga- 28/5.;