Shyam Gopal Bindal & Ors vs Land Acquisition Officer & Anr

whereby the appeal as well as the application under Order 41 Rule

27 CPC filed by the plaintiff/appellants have been dismissed. The

appellants claimed to be owners in possession of the suit land.

3. They claim ownership rights on the basis of the order passed

by the Additional District Collector, Ajmer, Rajasthan dated 2

11.01.1971 passed in Case No.159 of 1970, wherein predecessors-

in-interest of the appellants, namely, Meghraj was declared to be

owner of the suit land. An application had been filed by Meghraj

and his brother on 15.12.1959 in the Court of Additional District

Collector, Ajmer, Rajasthan seeking a declaration that the suit land

was their personal property. Upon due investigation the declaration

was issued that "the lands of the Khasra Nos.

427,440,441,2202,2241 and 2242 admeasuring 6 bighas 6 biswas

10 biswansi are declared personal properties of the applicants

under Section 6 of the Rajasthan Biswedari & Abolition of

Jamindari Act."

4. Another order was passed in Revenue Suit No.176 of 1989 by

the Sub Divisional Officer, Ajmer, Rajasthan on 20.06.1994

whereby Urban Improvement Trust, Ajmer (hereinafter referred to

as "UIT") was directed "not carry out any construction without

applying & initiating legal proceedings, and the Urban Improvement

Trust, Ajmer has no restriction in carrying out the proceedings of

acquisition in accordance with practice." This direction was issued

on the basis of the averments made in the application that the

appellants are the Khatedar cultivators of the land in dispute. It 3

was apprehended that UIT wants to construct the road through the

aforesaid land without legally acquiring the same. The aforesaid

judgment of the Sub Divisional Officer was not challenged by the

UIT.

5. On 31.10.1994, the appellants submitted an application

seeking demarcation of the land in question which was duly ordered

by the Sub-Divisional Officer. Thereafter the appellants received a

letter dated 23.11.1994 from the UIT disclosing that the land in

question had been acquired vide Award dated 25.01.1994. The

appellants and the other co-owners were asked to receive the

compensation from the office of UIT. On receipt of the aforesaid

letter the appellants sent notice challenging the legality of the

award. The predecessors of the appellants Meghraj then filed a civil

suit in the Court of Additional Civil Judge (A.B.) & Judicial

Magistrate First Class, No.2, Ajmer seeking an injunction and

declaration. In the suit the entire acquisition proceedings had been

challenged on the ground that due notice was not sent to the owner

of the land. It was pleaded that the land acquisition procedure as

prescribed under Section 4, Section 5(a) and Section 11(a) of the 4 Land Acquisition Act had not been followed. After completion of the

pleadings the trial court framed the following issues:

"1. If the disputed property has been declared as personal property of the plaintiff?

2. If this court has jurisdiction to hear this suit.

3. If the defendant has a right to dispossess the plaintiff from the disputed property?

4. Relief."

Issue Nos. 1 and 2 have been decided by the trial court with the

following observations:

"The onus of proving the above issues was on the plaintiff. But the plaintiff has not produced any type of oral and documentary evidence in support of the above issues. Hence, under these circumstances, both the above issues are decided against plaintiff and in favour of defendant."

With these observations the suit of the plaintiff was dismissed by

judgment and order dated 26.10.1998.

6. Aggrieved, the appellants filed Civil Appeal No.134 of 1998 in

the Court of Additional District Judge No.1, Ajmer, Rajashtan.

Along with this appeal an application under Order 41 Rule 27 CPC

was also filed to adduce additional evidence. The appellants wanted

to place on record the orders dated 11.01.1971 and 20.06.1994. 5

According to the appellants the same were not produced by the

original plaintiff who passed away during the pendency of the suit.

The Appellate Court dismissed the appeal as also the application for

leading additional evidence on the ground that it was essential for

the plaintiff to prove the pleadings mentioned in the plaint from his

own evidence. It was noticed that the Trial Court had fixed the case

for evidence on behalf of the plaintiff on 21.03.1998 and three

opportunities were afforded for adducing evidence. Apart from the

aforesaid no other reason is given by the Appellate Court for

rejecting the application for additional evidence.

7. Aggrieved by the orders of the lower courts the appellants

moved the High Court by way of second appeal which has also been

dismissed by the impugned judgment dated 03.01.2008. The High

Court dismissed the appeal with the observation that as the land

had already been acquired and the award passed as early as on

15.1.1994, under the provisions of the Land Acquisition Act, 1894,

no useful purpose would be served by remanding the case to the

trial court for affording an opportunity to the plaintiff-appellants to

lead evidence when the civil court has no jurisdiction to set aside 6

the award. In view of the dismissal of the appeal the application

under Order 41 Rule 27 was also dismissed.

8. We have heard the learned counsel for the parties. It appears

that the documents which were sought to be produced by the

appellants formed the very basis of the claim made by the

appellants in the civil suit. Their consideration by the court was

necessary for a just decision of the case. The original plaintiff

passed away during the pendency of the civil suit. The documents

were thereafter sought to be brought on record at the earliest

opportunity available to the legal representatives of the deceased

plaintiff. Therefore, it could not be said that the appellants had not

given any reason as to why the documents had not been produced

in the trial court. It appears that the dismissal of the suit by the

trial court for non-production of evidence by the plaintiff was

mechanically affirmed by the Appellate Court. It further appears

that none of the issues have been decided by any of the courts

below, on merits. All decisions have proceeded on the basis that

the plaintiff/appellants have failed to produce evidence in support

of their claim. The application was not examined keeping in view

the principles laid down in Order 41 Rule 27 of the Civil Procedure 7

Code. The documents sought to be produced are Judicial Orders

declaring the ownership rights of the appellants, that have a crucial

bearing on the merits of the claim put forward by the appellants. It

was pleaded by the appellants that original plaintiff having died

during the pendency of the civil suit the documents could not be

brought on record as they were not aware of the orders. A prayer

was duly made before the Appellate Court which was repeated

before the High Court for remanding the matter with an opportunity

to adduce the additional evidence. In the facts and circumstances of

this case, we are of the opinion that the Appellate Court as also the

High Court erred in law in not accepting the application for

additional evidence and not remanding the matter back to the trial

court.

9. In view of the above, the appeal is allowed. The judgments of

the High Court in S.B. Civil Second Appeal No.305 of 2006 dated

03.01.2008, Additional District Judge No.1, Ajmer in Civil Appeal

No.134 of 1998 dated 10.02.2006 and Additional Civil Judge(A.B.)

& Judicial Magistrate First Class, No.2, Ajmer in Civil Suit

No.34/95(29/95) dated 26.10.1998 are set aside. The application

for additional evidence is allowed. The matter is remanded back to 8

the trial court for a fresh decision on merits. Plaintiffs as well as the

defendants shall be permitted to place on record any additional

documents.

........................................J (TARUN CHATTERJEE)

.........................................J (SURINDER SINGH NIJJAR)

NEW DELHI, JANUARY 11, 2010.