The State cannot claim adverse possession against citizens, and delay in seeking relief does not bar a suit involving a continuing cause of action.

JUDGMENT :

Satyen Vaidya, J.

By way of instant Regular Second Appeal, appellants have assailed the judgment and decree dated 29.12.2016 passed by learned Additional District Judge(I) Mandi in Civil Appeal No. 67 of 2015, whereby the judgment and decree dated 29.04.2015 passed by learned Civil Judge (Junior Division), Court No.2, Sundernagar, Distt. Mandi, H.P. in Civil Suit No. 145 of 2009 has been affirmed

2. The parties hereafter shall be referred by the same status as they held before the learned trial Court.

3. Brief facts necessary for adjudication of this appeal are that plaintiffs owned lands in Muhal Fagla/97, Tehsil Sundernagar, District Mandi, Himachal Pradesh. Defendants constructed “Sundernagar-Bhanwar-Fagla” road and during such process utilized the lands of plaintiffs without acquisition and payment of compensation. Plaintiffs filed the suit seeking decree of permanent prohibitory and mandatory injunctions.

4. Defendants contested the suit by raising questions of maintainability, estoppel, non joinder of necessary parties, valuation, limitation etc..

5. It was submitted that the road had been constructed in the year 1999. Plaintiffs were to file suit within three years and due to long delay the suit was alleged to be not maintainable.

6. Learned trial Court held the plaintiffs entitled to the relief and defendants were directed to take steps for acquisition of land of plaintiff utilized for construction of “Sundernagar-Bhanwar-Fagla” road and to disburse the assessed compensation to them expeditiously and not later than six months from the date of passing of decree.

7. The defendants filed an appeal under Section 96 of the Code of Civil Procedure which came to be decided by the learned Additional District Judge (I), Mandi vide impugned judgment and decree. Learned First Appellate Court, dismissed the appeal of the State and affirmed the judgment and decree passed by the learned trial Court.

8. The instant appeal has been admitted by this Court on the following substantial questions of law:-

“1. Whether the civil suit was barred by limitation and both Courts below have acted contrary to the provisions of Section 3 of Limitation Act?

2. Whether the civil suit for injunction without seeking relief of possession can be entertained by the trial Court in view of the facts that the plaintiff is out of possession of suit land?

3. Whether a Civil Court has the jurisdiction to issue the direction for acquisition of land in accordance with provisions of Land Acquisition Act ?”

9. The Court of the first instance as also the First Appellate Court have concurrently held that the land of the plaintiffs was utilized for construction of “Sundernagar-Bhanwar-Fagla” road without payment of compensation to him. No dispute has been raised as to such findings of fact. It has only been contended on behalf of the defendants that the suit filed by the plaintiffs after almost 15 years was hopelessly time barred. In alternative, plaintiffs having remained silent for such a long period were estopped from raising the claim. Principle of acquiescence has also sought been applied against them on the premise that the plaintiffs were aware about the construction of road and the road was constructed with their implied consent and now they cannot, turn around to raise objections against the construction of road.

10. Defendants are constituents of welfare State. It is settled that the welfare State cannot claim adverse possession against its citizens. Thus, the suit on the basis of title cannot be said to be time barred, which right could only be defeated by proof of perfection of title by way of adverse possession by the other.

11. Admittedly, the defendants were not in possession of any documents to show that the plaintiffs had consented for construction of road through their lands. The issue is no more res integra. In Sukh Dutt Ratra vs. State of Himachal Pradesh and others, (2022)7 SCC 508, the Hon’ble Supreme Court in almost identical fact situation, after p