S.N. Modi, J. - (1.) THESE are two connected appeal arising out of acquisition proceedings relating to acquisition of Khasra Nos. 8736 & 8738, Khata No. 718, treasuring 3 bighas 1 biswa situaten to Ajmer. Thok Maliyan. The land was acquired for the construction of railway line between Madar and Tabiji -Rail -way Stations on Western Railway. Vide notification No. 7563 issued under Section 4 of the Rajasthan Land Acquisition Act, 1962. The possession of the land was taken over by the Railway authorities on 24 -9 -63 by award dated 30th November, 1967, the Land Acquisition Officer, Ajmer, fixed Rs. 19485 80 as compensation for the lace at the rate of Rs. 3/ - per sq. yard and ordered that Mithanlal, Sukhdeo Prasad and Jawar Singh sons of Radha Kishan were the persons entitled to the compensation. The Land Acquisition Officer also awarded interest on the aforesaid sum at the rate of 4% per annum from 24 -9 -63 to 30th December, 1967. Dissatisfied with the said award, Mithanlal Sukhdeo Prasad & Jawahar Singh as well as Shanker Singh, Monan, Mst. Amri and Heera moved applications under Section 18 of the Rajasthan Land Acquisition Act for making a reference to the Court. These applications were accepted and two references were made to the District Judge, Ajmer. The learned Civil Judge, Ajmer to whom these references were transferred, by his judgment under there appeals, up -held the award as to the quantum of compensation but modified it so far as apportionment of the compensation was concerned. He held that Shanker Singh and others were entitled to Rs. 6388 80 as compensation for 1 bigha of land and Mithanlal and others were entitled to the the rest of the amount, namely 13,097 00 for the retraining 2 bighas and 1 biswa of land. It is against this judgment that both the claimants have preferred these two separate appeals. As they arise out of the same acquisition proceedings they are being disposed of together by this judgment.
(2.) IN these appeals, the appellants in each appeal claim the entire amount of the compensation awarded by the land Acquisition Officer. It is common ground between the parties that the land in dispute originally belonged to Thok Mailiyan i.e. community of Malis. It is further not in dispute that at a partition amongst the Malis effected on 11 -2 -41, the land in question fell to the share of Radha Kishan the father of Mithalal, Sukhdeo Prasad & Jawahar Singh, The land was thereafter shown as belonging to Radha Kishan in the revenue record and on his death it was mutated in favour of his sons. These facts are no longer in dispute & they are clearly borne out from Ex. C1 to Ex. C -6. It is thus abundantly clear that so far as the title to the land in question is concerned it is established that Mithanlal and his brothers were the owners of the land. The other claimants namely, Shanker Singh and others claim title by adverse possession Their case is that they had perfected their title by adverse possession long before they were dispossessed from the land in question in the acquisition proceedings. The learned Civil Judge has found that Shankersingh and others were in adverse possession of 1 bigha of land which is in the form of 'bara' and their adverse possession matured into title before they were dispossessed...On 24 -9 -63. The learned Civil Judge has also found that Shankersingh & others had been in possession of this 'bara' continuously from 15.5.51 to 24 -9 -63. It is not disputed by Mithanlal and others that there existed a 'bara' out up by Shankarsingh and others. It is also not disputed that Shankersingh and other Were in continuous possession of this 'bara' from 15 -5 -51 to 24.9.63. What is disputed is, firstly its area and secondly, that Shankersingh and others adverse possession did not mature into title before they were dispossessed on 24.9.63. I first take up one question as to what was the area of the 'bara'. According to Mithanlal' & others, the area of the 'bara' was about 300 sq. yards whereas, according to Shankersingh and others, its area was 1 bigha. In this connection, on behalf Sanker singh and others, reliance is placed on the oral testimony of Shankersingh AW. 1, Bhanwarsingh AW. 2, Malkhansingh AW. 6 and Harji AW. 7 The oral testimony of the aforesaid witnesses is not supported by any documentary evidence whatsoever. I Have carefully gone through the statement of these witnesses and I have no hesitation to say that the oral testimony of these witnesses his not impressed me at all. None of these witnesses has mentioned dimensions or other particulars of the 'bara,' to show that their estimate of 1 bhgha is based on actual measurement. Shanker Singh AW. 1 says that a 'bara' existed on the disputed land, the area of which was about 1 bigha, Similarly Bhanwarsingh AW. 2, says that there was a 'bara' on 1 bigha of land Malkha Singh AW. 6 says that there were two 'baras' Harji AW. 7 says that the railway employees took possession of 1 bigha of land from Shankersingh. None of them gives dimensions of the 'bara'. The statements of other witnesses examined on behalf of Shankersingh are also to the same effect and they do not mention the dimensions of the 'Bara'. No reliance can be placed on such vague and indefinite evidence.
(3.) ON the other hand, Sukhdeo Prasad NA. 3 W.2 has deposed that Shankersingh had put up a 'bara' in the year 1953 on 300 sq. yards NA. 3 W. 3 Surajmal says that Shankersingh had put up a bara' some 13 to 14 years ago on 300 to 400 sq. yards. Mithanlal NA. 3 W. 7 has deposed that he filed a suit in respect of the 'bara' measuring 300 sq. yards He has further deposed that Shankersingh encroached upon 300 sq. yards of land in the year 1951 -52. The oral testimony of NA. 3 W. 2 and NA. 3 W. 7 stands corroborated by the copy of the plaint Ex. A4 filed in Civil Suit instituted by them on 18 -5 -56, Ex. A4 is no doubt an uncertified copy of the plaint put it has been proved by Shankersingh and share is no dispute that it is not the correct copy of the original plaint. A perusal of Ex. A1, Ex. A2 and Ex. A3 shows that Mithan Lal had lodged a complaint under Section 145, Criminal P.C. against Harji the father of Shankersingh, Mohan, Heera etc. in the Court of Honorary Magistrate First Class, Ajmer in respect, of a plot. The dimensions of this plot are of course not mentioned in the aforesaid documents but, it appears from the subsequent suit, filed by Mithanlal & others that the area of the plot which was the subject matter of the proceedings under Section 145, Criminal P.C. was 300 sq. yards. Ex. A3 is the order of the Honorary Magistrate First Class, Ajmer in the proceedings under Section 145, Criminal PC. which shows that these proceedings terminated in favour of Shankersingh's party. Mithanlal and others then instituted a Civil suit and the copy of the plaint in this suit is Ex. A4. In para No. 6 of the plaint, it was alleged that on or about 6th August 1953, the defendants i.e. Shankersingh and others had wrongfully and illegally occupied the portion of the plot measuring about 300 sq. yards out of the total lend mentioned in para No. 5. It was also alleged that Shankersingh and others had put up a 'bara' (thorn hedge) thereon. Para 7 contains the boundaries of the bara'. There is nothing on the record to suggest that the area of the 'bara' mentioned in the plaint Ex. A4 was in any way disputed by Sanker Singh and other in their written statement. It may be pointed out that the written statement has not been filed in this case. But, had such a dispute been raised by Shankersingh and others they would not have omitted to file the written statement on the record of this case Again, if the area of the bara or the plot in dispute in the proceedings under Section 145, Criminal PC. had been more than 300 sq. yards. I see no reason why Mlthanlal and others should not have filed the suit for possession for the entire land in possession of Shanker Singh and others. I am clearly of the view chat the area of the 'bars' was not more than 300 sq. yards and the evidence of NA. 3 W. 2 and NA. 3 W. 7 in this respect is reliable and trust worthy . The learned Civil Judge, in my opinion, was not right in holding that the 'bara,' was 1 bigha. I hold that the area of the 'bara' in possession of Shankersingh's party did not exceed more than 300 sq. yards.;