AJAY KUMAR MITTAL,J - (1.) THIS is second appeal at the instance of the plaintiffs Nanu Khan and others, whose suit for possession had been decreed by the trial court but on appeal by the defendant the trial court decree, was set aside by the first e appellate court and consequently the plaintiffs' suit stood dismissed.
(2.) A suit for possession was filed on the averments that the plaintiffs were owners of land measuring 5 Kanals and 12 Marlas comprised in Khasra No. 20/1 of Rectangle No. 26 situated in the revenue estate of village Ranhera Khera, Tehsil Ballabgarh, District Faridabad. Nearly in the year 1960, the State acquired certain land for setting up a factory for the respondent. The possession or the land acquired by the State including that of the one of the present appellant-plaintiffs was delivered to the defendant on 31.3.1961 and an entry (Exhibit D-2) evidencing that fact came to be made in the record of the Patwari. A conveyance deed dated 22.11.1971 was also executed by the State in favour of the defendant. The defendant raised buildings on the land including the land of the appellants. It was about 18 years after the delivery of possession of the land, i.e. in the year 1979 when the plaintiffs made an application for payment of the enhanced amount of compensation in terms of this Court's judgment dated 5.1.1978, it was revealed that land measuring 5 Kanals 12 Marlas comprised in Khasra No. 20/1 of Rectangle No. 26 had not been acquired nor did this land figure in the notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 issued for the aforesaid purpose. It was found that some other land, measuring 4 Kanals 2 Marlas comprised in Khasra No. 26 of Rectangle No. 36 had been acquired. The possession, however was delivered by the State to the defendant of land of Khasra No. 20/1 of Rectangle No. 26 and the possession of land of Khasra No. 26/1 of Rectangle No. 36 was not taken. It is only on this mistake found to have crept in that the whole dispute arose. This important aspect of the dispute finds elaborate mention in the order of the Additional District Judge, Gurgaon, dated 7.6.1979 (Exhibit P-1) who dealt with the application of the plaintiffs for payment of enhanced compensation. The pleas of the plaintiffs were contested by the defendant. While raising various preliminary objections to be referred to wherever the context would henceforth require, it was stated in the written statement that the defendant had acquired ownership and possession of the land by means of the conveyance deed dated 22.11 .1971 which had been acquired by the State on or before 25.10.1960. A specific plea was thus taken that the defendant became owner of the land in dispute by adverse possession as well. It was further stated that since the defendant had developed the land and raised buildings thereon for the factory, the same is indivisible also. The above pleas of the parties were put to trial on the following issues : 1. Whether the defendant has wrongfully and illegally occupied the land in dispute, as alleged ? OPP 2. Whether the plaintiff came to know regarding the illegal and wrongful occupation of the land in dispute after the order dated 26.5.81 as alleged ? OPP 3. Whether the plaintiff is entitled to decree for possession of the land in dispute, as alleged ? OPP 4. Whether the land in question was also acquired by the State of Haryana for the defendant on or about 25.10.60, as alleged ? OPO 5. Whether the land vested in the state of Haryana and was transferred in favour of defendant vide conveyance deed dated 22.1.71, as alleged ? OPO 6. Whether the plaintiffs have no locus standi to, file the present. Suit ? OPO 7. Whether the defendant has become owner of the suit land by adverse possession ? OPD 8. Whether the suit is barred by limitation ? OPO 9. Whether the plaint does not disclose any cause of action against the defendant ? OPD 10. Whether the suit land has lost its original character and entity and is no longer agriculture land as pleaded ? OPO. 11. Relief.
(3.) THE trial court, on appreciation of evidence recorded a finding that the defendant was in wrongful and illegal possession of the property in dispute. Plea of the plaintiffs about knowledge of the suit land being not included in the land acquired for the purpose mentioned above, covered under issue No. 2, was accepted, and it was held that they could come to know about the wrongful and illegal possession of the defendant only on the date of the order of the Additional District Judge, Gurgaon passed on the application of the plaintiffs for payment of the enhanced amount of compensation in terms of this Court's judgment. The trial court returned a firm finding that the land in dispute was never acquired by the State. Issue No. 4 framed in this behalf was answered accordingly in favour of the plaintiffs. As regard issue No. 5, it was found that since the State of Haryana was having no interest in the land, the conveyance deed in favour of the defendant did not give to it any right, title or interest in the said property. Under issue No. 7 about which only the primary dispute is said to be surviving, the trial court held that the plea raised by the defendant in that context was not tenable as in order to prove adverse possession, the party claiming it has to establish that the possession was continuous, hostile and notorious to the knowledge of the owner. If it is to be put exactly in the words of the trial court, a verbatim quotation of the finding in that behalf under issue No. 7 is needed here, which reads thus : "In the present case, as discussed above it can in no way be inferred that the defendant is in adverse possession of the premises in dispute to the knowledge of the owner and his possession is in no way hostile to that of the plaintiffs. Mere divesting of possession under the bona fide belief of acquisition of the property in dispute cannot be said that the possession is adverse to that of the owner. As a result, this issue is decided in favour of the plaintiff but against the defendant." ;