With regard to the apportionment of the compensation, 3/4th of the compensation has been awarded to the tenant and l/4th of the compensation has been awarded to the Gram Panchayat. It has been held in 1996(2) RCR 625 : L 1996 ACC 377 , Mangat Ram etc. v. State of Haryana and others, that tenant should get 7.5 per cent of compensation and landlord should get 25 percent of the compensation and this judgment o f the Supreme Court is based on its earlier judgment. Thus, I do not want to differ with the finding of the trial Court when it has awarded compensation to the tu ne of 3/4th share to the tenant and 1/4th share to the owner-Gram Panchayat.
IN THE HIGH COURT OF PUNJAB AND HARYANA
R.F.A. No. 666 of 1997 (O and M)
Citation: (2001)128(2)PLR186
Print Page
IN THE HIGH COURT OF PUNJAB AND HARYANA
Decided On: 01.03.2001
Appellants: Gram Panchayat, Kanehi
Vs.
Respondent: Ram Kumar
Vs.
Respondent: Ram Kumar
Hon'ble Judges/Coram:
R.L. Anand, J.
1. This judgment disposes of RFA No. 666 of 1997 and also the application under Order 41 Rule 27 C.P.C. filed by the appellant.
2. This appeal has been directed against the judgment dated 24.1.1997, passed by the Additional District Judge, Gurgaon, who, apportioned the compensation vis-a-vis the appellants and respondents No. 1 and 2 and it was held that respondents No. I and 2 entitled to get 3/4th share of the compensation while Gram Panchayat-appellant is entitled to get the remaining 1/4th share of the compensation.
3. The facts of the case are as follows :- A reference under Section 30 of the Land Acquisition Act, 1894, was moved by Ram Rikh, Tej Ram, Pirbhu, Bhag-wana, Bhule and Ganga Sahai, against the Gram Panchayat Kanehi and others. Pursuant to Notification No. LAC(G)-90/211 dated 20.4.1990. Published in the Haryana Govt. Gazette (Extra Ordinary) on the same day under Section 4 of the Act, followed by Notification No. LAC-G-91/NTLA/278 dated 18.4.1991, issued under Section 6 of the Act, land measuring 1068.64 acres of village Jharsa Kanehi, Bindapur and Samaspur, was acquired by the Government of Haryana for public purposes. Award No. 8 of the year 1992-93 was given by Shri K.K. Sharma, the then Land Acquisition Collector, Gurgaon, regarding the land measuring 948.95 acres. Ram Rikh and others made a claim before the Land Acquisition Collector alleging that the Gram Panchayat had no right or interest in the acquired land and prayed that the compensation regarding the Shamlat Deh land which was acquired by the State of Haryana, be given to them. The case of Ram Rikh and others was that they were entitled to get compensation regarding the land of Panchayat Deh which was acquired by the Slate of Haryana and that the Gram Panchayat was not entitled to get the compensation regarding the same. It was pleaded by Ram Kumar and Khem Ram that Ram Kumar was the owner in possession as Gair Marusi of Khewat No. 149/188, Rect. No. 31, Killa No. 14/2(3-2) 17(8-0) 24(8-0) and Rect. No, 41, Killa No. 4(8-0), total measuring 27 kanals 2 marlas for more than thirty years. Khem Ram was owner in possession as Gair Marusi of land comprised in Khewat/Khata No. 149/198, Rect. No. 45, KillaNo. 15(8-0) situated in village Kanehi, Tehsil and District Gurgaon for the last thirty years. It was pleaded by Bhagwati and others and that the land comprised in Khewat/Khata No. 149/194 Rect. No. 27, Killa No. 14(8-3), 15(6-13), Rect. No. 38 Killa No. 11(5-0), measuring 19 Kanals 16 marlas was in occupation of Dholidars on account of Punarth and the Gram Panchayat was having no relation with the same. The applicants who were Dholidars were entitled to receive compensation regarding the same. It was pleaded by the Gram Panchayat that the applicants-claimants were not entitled to seek compensation regarding the acquired land.
4. The record of the trial court shows that on 27.1.1994, some persons filed a compromise before the Court stating that they shall not claim right, title or interest in the compensation of the acquired land and that the entire compensation be given to Gram Panchayat Kanehi which is entitled to receive the same. The controversy however, remained between Khem Ram and Ram Kumar and Smt. Bhagwati and others and on their asking the matter was referred by the Collector under Section 18 of the Land Acquisition Act for determination.
5. Pleadings of the parties gave rise to the following issues:-
1. What was the market price of the acquired land at the time of acquisition ? OP parties.2. Whether Gram Panchayat alone is owner of the acquired land and is entitled to claim whole of compensation ? OPGP3. Whether Smt. Bhagwati etc are Dholidars of the acquired land and are entitled to claim compensation ? OP Dholidars.4. Whether Khem Ram and Ram Kumar are the tenants on the acquired land and are entitled to claim compensation ? OP Khem Ram etc.5. Relief.
6. Parties were given opportunities to lead evidence and on the conclusion of the proceedings, the Court held under Issue No. 1 that the since he was deciding reference under Section 30 of the Act, therefore, there was no necessity on his part to give a finding with regard to the market price of the acquired area. With regard to issue No. 2 and 4, it was observed by the Court that the Gram Panchayat is the owner of the property but Khem Ram and Ram Kumar were Gair Marusis, therefore, the Gram Panchayat is entitled to compensation to the extent of 1/4th share while Khem Ram and Ram Kumar are entitled to the compensation to the extent of 3/4th share and this finding was given by the Court on the basis of the judgment of the Hon'ble Supreme Court. Under issue No. 3, it was observed by the court that since Smt. Bhagwati and others are Dholidars on the acquired area, therefore, it is a gift in their favour which is permissible according to law and custom. In these circumstances, they have become the full fledged owners and are entitled to the entire compensation. It may be mentioned here that Gram Panchayat-appellant is not disputing the finding of the Court on issue No. 3 but it is disputing the finding of the lower Court on issues No. 2 and 4 vis-a-vis the rights of Khem Ram and Ram Kumar and I shall confine my discussion on issues No. 2 and 4. During the pendency of this appeal, the appellant-Gram Panchayat, Kenehi, also filed an application under Order 41 Rule 27 C.P.C. for permission to produce additional evidence in order to show that it is the owner of the property and that Ram Kumar and Khem Ram were never the tenants. According to the Gram Panchayat, Ram Kumar took the land on rent for a period of 2 years only i.e. for the year 1975 to 1977 and thereafter the land was leased out to different persons including Shri Madan Lal son of Maru Ram and Ram Kumar jointly. Thereafter, in the year 1979, the land was taken on lease by Prem Raj and Mawasi for a period of two years and in the year 1981 this land was given to the Forest Department but in the revenue record the entries continued in the name of Ram Kumar with the connivance of the then Sarpanch Hiray who was the real brother of Ram Kumar. The Gram Panchayat wanted to produce lease deeds of 1973, 1975 and 1977 and the proceedings book in order to show that the lease in favour of Ram Kumar was only for a period of two years which ended in the year 1977 and thereafter, the lease was jointly in the name of two persons namely Shri Madan Lal and Shri Ram Kumar and that lease was to expire somewhere in the year 1981.
7. I have heard Shri H.S. Gill, Sr. Advocate, appearing on behalf of the appellant and Shri Kanwaljit Singh, Advocate, appearing on behalf of the respondents and with their assistance have gone through the record of the case.
8. First of all, I will dispose of the application under Order 41 Rule 27 C.P.C. In my opinion, this application deserves to be dismissed. Additional evidence cannot be claimed as a matter of right either in the trial Court or in the appellate Court. It has to be shown by the litigants that the proposed additional evidence was not in their power or possession or was not in their knowledge. Until and unless the essential ingredients of Order 18 Rule 17-A or Order 41 Rule 27 C.P.C. are complied with, the additional evidence cannot be allowed as a matter of course. Order 18 Rule 17-A C.P.C. lays down that where a party satisfies the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as many appear to it to be just.
9. The proposed additional evidence was in the possession of the Gram Panchayat which could be produced at the time of the leading evidence. The non-production of the proposed additional evidence at the stage of the evidence is fatal to the appellant. Similarly, Order 41 Rule 27 C.P.C. lays down that the parties to an appeal shall not entitled to produce additional evidence, whether oral or documentary, in the appellate Court until and unless it satisfies the Court that the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of the due diligence, be produced by him at the time when the decree appealed against was passed or the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.
10. At this juncture, the proposed additional evidence cannot be allowed to be placed on record as it would amount to filling of the lacunas. Even otherwise also, I will try to show that by the proposed additional evidence, the Gram Panchayat-appellant Kanehi is not going to improve its case. Therefore, I dismiss the application under Order 41 Rule 27 C.P.C.
11. I have just stated above that by this judgment, I shall confine my discussion on issues No. 2 and 4 and the dispute between the Gram Panchayat on one side and S/Shri Ram Kumar and Khern Ram on the other side, is whether S/Shri Ram Kumar and Khem Ram were the tenants on the land in question at the relevant lime when the land was acquired by the Government for public purposes.
12. RW-3 Khem Ram has stated that the land measuring 8 Kanals comprised in Rect. No. 45, Killa No. 15, was in their possession as tenant Gair Marusi since the time immemorial. This land was dedicated to Piau for drinking water. They used to maintain and manage the Piau since long and that the Panchayat of the village had no connection with the same and they alone were entitled to receive compensation regarding the same and at the time of the acquisition he was in possession of the same. The acquisition took place in the year 1990. Ram Kumar respondent also stated that he was in possession of the land measuring 27 Kanals 2 Marias comprised in Rect. No. 31, Killa No. 14/2 (3-2) 17(8 Kanals 0 Maria) 24 (8 Kanals 0 Maria) and 4(8-0) of Rect. No. 41 as Gair Marusi (tenants) since the time immemorial and that the Panchayat Den has no right regarding the ownership and possession and he alone is entitled to receive the compensation.
13. Shri Baljit Singh stated that the Panchayat of village Kanehi is the owner of the land. The Gram Panchayat was leasing out its land to various persons from year to year Ram Kumar and Khem Ram were in possession of the land as lessees. They were not in possession of the land at the time of the acquisition and even prior to that. During the cross-examination, it has been stated by this witness that according to revenue record Khem Ram and Ram Kumar were in possession of the land even at the time of the acquisition. They were never got ejected from the land in question either forcibly or through the Court. It has also come in the statement of Shri Baljit Singh that some part of the land was in possession of Dholidars. Thus, even from the statement of Baljit Singh who wanted to support the Gram Panchayat, it stands established that as per the revenue record S/Shri Ram Kumar and Khem Ram were in possession of the land and they were never got ejected by the Gram Panchayat at any point of time. In this view of the matter, the statement of Shri Baljit Singh, made in the examination-in-chief that at the time of the acquisition S/Shri Ram Kumar and Khem Ram were not in possession, stands falsified from his own statement.
14. Now, we have to see from the documentary evidence, whether Shri Ram Kumar and the Khem Ram were in possession of the land on the date of the acquisition and if so, in what capacity ?
15. Ram Kumar has placed on record Khasra Gir-dawaries from Kharif 1975 to Rabi 1980 Ex.RD. From this document the possession of Shri Ram Kumar is established as Gair Marusi on payment of Rs. 2500/- per year. His possession is further established by way of Khasra Girdawari from Kharif 1980 to Rabi 1985 vide Ex.RE and from 1985 to 1990 vide Ex.FR. If the Gram Panchayat had been leasing out the land to different persons why those lessees had not been produced in the witness box. There is no entry in the Khasra Girdwari to show the possession of different persons other than the possession of Ram Kumar and Khem Ram. Also there is no evidence on the record that after 1979 Gram Panchayat had taken any proceedings under the Punjab Village Common Lands Act as applicable to the State of Haryana for the ejectment of these people. It is the categorical statement of Shri Ram Kumar RW4 that he was Gair Marusi since the time immeroial and this part of the statement of Shri Ram Kumar has not been challenged by the Gram Panchayat in the cross-examination as argued by the learned counsel for the respondent.
16. In these circumstances, there is no other alternative for me but to hold that Shri Ram Kumar was in possession of the land at the time of the acquisition in the capacity of Gair Marusi and that there is no satisfactory evidence that they had parted the possession somewhere in the year 1979 or earlier to 1990. Even the statement of Shri Baljit Singh RW5, does not inspire any confidence. He has not been able to tell the names of the persons to whom the land was given on lease by the Gram Panchayat from the year to year. Rather he admitted that Ram Kumar was also in possession of the land. He has not given any particulars of the lessees nor the lessees have come in the witness box nor any Khasra Girdawaris are coming. In these circumstances I concur with the findings of the trial Court by holding that Shri Ram Kumar was having the land under his possession as a tenant Gair Marusi and the Gram Panchayat was the owner of that area.
17. With regard to the apportionment of the compensation, 3/4th of the compensation has been awarded to the tenant and l/4th of the compensation has been awarded to the Gram Panchayat. It has been held in 1996(2) RCR 625 : L 1996 ACC 377 , Mangat Ram etc. v. State of Haryana and others, that tenant should get 7.5 per cent of compensation and landlord should get 25 percent of the compensation and this judgment o f the Supreme Court is based on its earlier judgment. Thus, I do not want to differ with the finding of the trial Court when it has awarded compensation to the tu ne of 3/4th share to the tenant and 1/4th share to the owner-Gram Panchayat.
18. Reverting to the case of Khem Ram, this land has also been proved in his possession by showing that he had been paying the Chakota at the rate of Rs. 630/- per year. His possession is also entered in the Khasra Girdawari from Kharif 1975 to Rabi 1980 vide Ex.RK. Further his possession is established from Kharif 1980 to Rabi 1985 vide Ex.RJ, from Kharif 1985 to Rabi 1990 vide Ex.RK and also from Rabi 1990 to Kharif 1994. There is no documentary evidence on the record that Gram Panchayat ever made a request to the revenue authorities for the correction of the Khasra Girdawaris. It is the case of the Gram Panchayat that the entries have been manipulated by Ram Kumar and Khem Ram in connivance with the Gram Panchayat but there is no evidence on the record to show that the Gram Panchayat has passed any resolution to that effect or it has made a report against the Sarpanch that he had connived with his brother Ram Kumar.
19. On the contrary, there is categorical statement of Shri Khem Ram who appeared as RW-3 that he is the tenant. Earlier this land was decided to Piau and they used to maintain that Piau. There is no cross-examination upon the statement of Shri Khem Ram to that effect. Therefore, I have to accept the statement of Shri Khem Ram to be correct when he has not been cross-examined on this aspect. The statement of Shri Baljit Singh also supports the statement of Shri Khem Ram because this witness also admits the possession of Shri Khem Ram. When, it is established that the possession of Shri Khem Ram remained on Killa No. 15 of Rect. No. 45 in the capacity of a tenant at the time of the acquisition, then he is entitled to the compensation in the same ratio as has been awarded to Shri Ram Ku-mar and the judgment of Mangat Ram's case (supra), which has been relied upon by the trial Court as well as by me, entitles the tenant to claim compensation to the extent of 3/4th share.
20. Thus, the finding of the learned trial Court on issues No. 2 and 4 are affirmed.
21. I have already held above that Gram Panchayat Kanehi is the owner of the land in question, therefore, it has rightly been awarded compensation to the extent of l/4th share.
22. The net result is that the appeal as well as the application under Order 41 Rule 27 C.P.C. are totally devoid of any merit and the same are hereby dismissed with no order as to costs. The order dated 24.1.1997 passed by the trial Court vis-a-vis Ram Kumar and Khem Ram is hereby affirmed. No order as to costs.
23. Appeal dismissed.
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