JUDGMENT :

NIDHI GUPTA, J.

CM-9524-C-2011

1. Prayer in this application filed under Section 5 of the Limitation Act is for condonation of delay of 348 days in filing the accompanying appeal.

2. Heard.

3. For the reasons mentioned in the application which is duly supported by an affidavit of the applicant/appellant No.1, the same is allowed and delay of 348 days in filing the appeal is condoned.

RSA-3416-2011 (O&M)

1. Present Second Appeal has been filed by the defendants against the judgment of reversal dated 24.05.2010 passed by the learned Additional District Judge, Ferozepur; whereby suit filed by the plaintiff/LRs of the deceased plaintiff Jagir Singh, for mandatory injunction, has been decreed by learned First Appellate Court.

2. Brief facts of the case are that the plaintiff had filed the instant civil suit seeking decree of mandatory injunction against the appellants/defendants to pay compensation amount to the plaintiff; or in the alternative, relief directing the defendants to handover the vacant possession of the suit land measuring 5K 16M as described in the plaint to the plaintiff. The case as pleaded by the plaintiff was that plaintiff had been in possession of the suit land for the last almost 35 years. Prior to acquisition, ownership of the land was with the Provincial Government. On the basis of the possession, suit land had been transferred in the name of the plaintiff in the year 1981 as per Jamabandi for the year 1995-1996. Thus, plaintiff was owner of the suit land. On 10.07.2001, it had come to the notice of the plaintiff that land measuring 4K 16M had been acquired for the construction of Mamdot Distributory. As per provisions of Land Acquisition Act, the plaintiff being interested person, was entitled to compensation of the suit land. It was averred that as suit land had been acquired by the defendants for the construction of the said Mamdot Distributory in the year 1976; and since then, the possession of the land is with the defendants, plaintiff was entitled to compensation. Plaintiff had made several requests to defendants to make payment of the compensation for the said period. Plaintiff had even served legal notice dated 30.08.2001 but to no effect. Hence, present suit was filed on 03.05.2002.

3. Upon appraisal of the pleadings and the evidence led by the parties, the Additional Civil Judge, Senior Division, Ferozepur had dismissed the suit of the plaintiff with costs vide judgment and decree dated 13.11.2007. However, the Civil Appeal filed by the plaintiff was accepted by the learned Additional District Judge, Ferozepur vide judgment and decree dated 24.05.2010. Hence, present second appeal by the defendants.

4. It is inter alia submitted by learned counsel for the appellants that jurisdiction of Civil Court is barred by statute. Section 30-G of the Northern India Canal & Drainage Act, 1873 expressly bars the jurisdiction of civil courts to entertain or decide any question relating to construction of a minor/distributory. The suit itself was not maintainable before the civil court, and both courts below erred in not addressing this fundamental objection. It is contended that the entire suit should have been dismissed in limine on this jurisdictional ground alone.

5. It is further submitted by learned counsel for the appellants/defendants that the learned Appellate Court has erred in interpreting the written statement filed by the present appellant during the proceeding of the civil suit before the trial court. The appellant is neither the owner of the suit property nor they have acquired the same. There is nothing wrong in the written statement as the Provincial Govt. is the owner of the suit land and the appellant never acquired the suit land. Further, the Appellate Court has held that DW1 has gone beyond pleading during cross-examination by stating the appellant is in possession of the suit land. The above facts have been unnecessarily highlighted in such a way as to give adverse inference whereas the plai