Gopal Bindal & Ors. Vs. Land Acquisition Officer & ANR.  INSC 33
(11 January 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.192 OF 2010
(Arising out of Special Leave Petition (C) No. 10805 OF 2008) SHYAM GOPAL
BINDAL & ORS. ....APPELLANT(S) VERSUS ORDER SURINDER SINGH NIJJAR, J.
This appeal has been filed against the judgment of learned Single
Judge of the Rajasthan High Court, Jaipur Bench, dated 03.01.2008 rendered in
S.B. Civil Second Appeal No.305 of 2006 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
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
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.
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:
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?
Nos. 1 and 2 have been decided by the trial court with the following
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
under these circumstances, both the above issues are decided against plaintiff
and in favour of defendant."
these observations the suit of the plaintiff was dismissed by judgment and
order dated 26.10.1998.
Aggrieved, the appellants filed Civil Appeal No.134 of 1998 in the
Court of Additional District Judge No.1, Ajmer, Rajashtan.
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.
According to the appellants the same were not produced by the original
plaintiff who passed away during the pendency of the suit.
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.
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
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.
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
........................................J (TARUN CHATTERJEE)
.........................................J (SURINDER SINGH NIJJAR)
JANUARY 11, 2010.