Mr. Anil Kshetarpal, J. – CM No.7175-C of 1999 in RSA No.4132 of 1999

For the reasons stated in the application, which is duly supported by an affidavit, delay of 132 days in filing the appeal is condoned.

Accordingly, application is allowed.

CM No.7596-C of 1999 in RSA No.4372 of 1999

For the reasons stated in the application, which is duly supported by an affidavit, delay in refiling the appeal is condoned.

Accordingly, application is allowed.

Main cases

By this judgment, RSA Nos.2451, 4132 and 4372 of 1999 shall stand disposed of as all the appeals are arising from a suit filed by Sarup Singh (plaintiff).

2. Learned trial Court decided the suit in favour of the plaintiff. However, with respect to the rate of interest, plaintiff filed the appeal whereas defendant-Hisar Improvement Trust challenged the decree passed by the trial Court. Thus, First Appellate Court decided two appeals by a common judgment by modifying the rate of interest. Now these three appeals have been preferred. RSA No.2451 of 1999 has been filed by Hisar Improvement Trust whereas RSA Nos.4132 and 4372 of 1999 have been filed by Sarup Singh (plaintiff).

3. Learned counsel for the appellant has proposed following substantial questions of law, which are extracted as under:-

“1. Whether the plaintiff/respondent can claim allotment of the land which has been encroached by him on the price on which he was allotted a plot adjacent to the area which has been allotted?

2. Whether the Civil Court had any jurisdiction to issue directions to the appellant-Trust to allot the encroached area to the plaintiff/respondent, much less at a rate on which he was allotted a plot in the said vicinity?”

4. Plaintiff was alleged to be in possession of certain area and the Improvement Trust acquired the land. However, plaintiff Sarup Singh is alleged to have made a request to the Deputy Commissioner and it is alleged that it was agreed that Sarup Singh would be allotted a plot from where he can continue his business. According to the plaintiff, a plot measuring approximately 850 square yards was allotted vide allotment letter dated 04.11.1975 at the rate of Rs.55/- per square yard. In the allotment letter, Clause No.3 is the relevant Clause, which is extracted as under:-

“The size and area of the plot is approximate and it can vary. In case of any variation in the area of plot the account will be calculated @ mentioned above and the same will be adjusted or paid accordingly.”

5. It is not in dispute that after the allotment, the Improvement Trust came to a conclusion that area of the plot is 905 square yards. Accordingly, a conveyance deed/sale deed was executed in favour of Sarup Singh with respect to an area measuring 905 square yards vide sale deed dated 30.12.1985. The price for remaining additional area was charged by the Trust and thus, Sarup Singh became owner of plot measuring 905 square yards which bears plot No.603 in Auto Market, Hisar.

However, Sarup Singh filed the present suit for declaration claiming that notice dated 19.08.1986 is illegal, null and void. Defendant contested the suit and pleaded that no doubt, in the allotment letter, it was provided that in case of variation in the size of the plot, plaintiff would be allotted the difference in the size of the plot at the time of actual measurement, however, the Trust pleaded that on measurement, the plot turned out to be 905 square yards and accordingly, the sale deed was executed. It was pleaded that adjoining area towards road which was lying vacant has been encroached upon under the garb of the sale deed and, hence, the notice has been issued.

6. On appreciation of the evidence, both the Courts have decreed the suit and have gone to the extent of directing the defendant-Trust to sell excess area of plot No.603 at the rate of Rs.55/- per square yard, at which the plot was allotted in the year 1975 alongwith interest at the rate of 12% per annum on the price in excess of the area already sold to be calcu