JUDGMENT

Hon'ble Sharad Kumar Sharma, J (Oral)

This is a plaintiffs' Second Appeal, wherein, the plaintiffs question the concurrent judgments rendered by the Courts below, i.e. the judgment dated 28.10.2015 rendered by the I Additional Civil Judge (S.D.), Haridwar, in Original Suit No. 211 of 2007 ‘Bhura Singh (Deceased) & Others vs. Van Prabhagiya Adhikari & Others'. The said judgment dated 28.10.2015 as rendered by the Civil Court, was put to challenge by the appellants before the Appellate Court in a regular Civil Appeal under Section 96 of the Code of Civil Procedure, which was registered as Civil Appeal No. 72 of 2016 ‘Bhura Singh & Others vs. Van Prabhagiya Adhikari & Others', and the same has been dismissed by the judgment dated 14.11.2018. Consequently, the present Second Appeal.

2. The precise case which was developed by the plaintiffs (appellants herein) before the Trial Court was that the property in dispute, which was described more particularly at the foot of the plaint in the following manner:

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,d fdrk Hkwfe jdcbZ 35 fc?kk 15 fcLok iq[rk fLFkr ekStk nq/kyk n;kyokyk mQZ Vk¡kVokyk] iñ uthckckn ] rglhy o ftyk gfj}kj] ftlds mÙkj esa taxykr Hkwfe] nf{k.k esa xaxk th] iwjc esa Hkwfe izfroknh uañ 1 o 2 rFkk if'pe esa Hkwfe jfedyk] cqVhjke] vkseizdk'k] gjn;ky] czgeiky vkfn gS] ftls uD'kk utjk esa 'kCn ,ñ chñ lhñ Mhñ ls nf'kZr fd;k x;k gSAÞ

3. It is a property which is claimed by plaintiffs/appellants to be in their cultivatory possession since prior to 1960 and thus they claimed that with the passage of time a Bhumidhari right would have developed in their favour and thus they cannot be evicted from the property as described at the foot of the plaint by figure a, b, c & d except with due process of law. They submitted that as a matter of fact this property is not recorded in the records in the name of the State nor it records any private tenure holder to be the Bhumidhar of the land in question. If that be the situation, the State and its agencies have got any authority in the interfere in the cultivatory of the possession of the appellants.

4. This argument of the learned counsel for the appellants is not acceptable by this Court for the reason being that under the theory of eminent domain any land, which is lying within the territorial domain of a State, State herein would mean that the State as specified in the Constitution and, as well as, the country itself that when a land is lying without a title, it would always be vested with the Sate itself, and in that eventuality, no one has got a indefeasible right to encroach upon the public land and claimed a title over it. Admittedly, in the case at hand, the appellants' case is that they would mature their right being in occupation of the same and, hence, in if at all they are to be evicted they could only be evicted with due process of law. They submitted that when on 20.07.2007 there was an interference made by the defendants to the Suit then the necessity arose for them to initiate the Suit for decree of permanent injunction for which they have issued notices under Section 80 of the Code of Civil Procedure as well as Section 106 of Panchayat Raj Act on 17.09.2007. The Suit was contested by the respondent on the ground that for the purposes of getting a decree of permanent injunction the burden of proof of title and a rightful possession has always to be discharged by the plaintiffs, who claim the right of possession over the property in question.

5. Admittedly, according to the evidence on record except the pleadings to the effect that the plaintiffs happen to be in possession over the land in question, there was no other material, which was brought on record by the plaintiffs/appellants to show that their occupation over the land in question was accompanied with a title.

6. After the exchange of pleadings, the learned Trial court framed issues and primarily the concern, which has been expressed by the plaintiffs before the Trial Court was on the issue nos