1. This second appeal by the Union of India appellant No. 1 and the Chief Commissioner of Delhi, appellant No. 2, is directed against the judgment dated November, 19, 1968, of the Additional district Judge. Delhi, by which he dismissed their appeal against the judgment and decree of the Sub Judge, 1st Class, Delhi, decreeing the respondent's suit against them.
2. The respondent-society is a Co-operative Housing Society with one of its objects being to acquire land for housing schemes. It purchased the land in suit and spent some money in developing the same. On March 8, 1957 the Chief commissioner, Delhi. Appellant No. 2, issued three notifications under Section 4, 6 and 17, respectively, of the Land Acquisition Act, herein called 'The Act' in respect of a portion of the respondent's land. Other notifications under the same sections of the Act were again issued on September 10,1957 in respect of some other portion of the said land; and notifications under the said three sections of the Act were further issued in respect of the remaining land of the respondent on October 25, 1957. Thus, the Government acquired the entire land of the respondent measuring about 44 bighas, situated in the revenue estate of village Mohammadpur Munkka. Delhi, Compensation thereof under the awards of the Collector was paid in October, 1958, which was received by the respondent without prejudice to its objections. The respondent then filed a suit on December 2, 1960 for declaration that these notifications were illegal, invalid, void, ultra virus and without jurisdiction with the consequential relief of restraining permanently the appellants their officers and servants from interfering with the respondent's possession of the said land.
The suit was decreed by the learned sub-Judge on March 31, 1965. he held that the land of the respondent did not warrant resort to summary proceedings under Section 17 of the Land Acquisition Act as the same could not be treated as waste or arable land, that the Government had not applied its mind properly in issuing these notifications and that the suit was not barred. The jurisdiction of the Civil Court to entertain the suit was not ousted. It was also held that the acceptance of compensation by the respondent did not operate as an estoppel. The learned Additional District Judge. In appeal confirmed the findings of the trial Court and found that the respondent's land had been developed before the acquisition and was an urban area as the Moti Bagh and Vinay Nagar colonies had come up just adjacent to it at a distance of a few furlongs. The land thereforee, could not be treated as waste land which was a pre-requisite of the jurisdiction of the appellants for invoking the powers under Section 17 of the Act. The resort to Section 17 of the Act for dispensing with the compliance of the provisions of Section 5-A of the Act. requiring service of notices of the acquisition and inviting objections was, thereforee, not permissible.
It was only in the case of waste or arable land, that State Government acquired jurisdiction to invoke the powers under Section 17 of the Act. The Government by wrongly deciding the question as to the character of the land, could not give itself jurisdiction to give a direction to the Collector to take possession of the land under Section 17(1) of the Act. The learned Additional District Judge, thereforee, held that the aforesaid acquisition notifications were ultra virus being not in respect of waste or arable land. The proper provision applicable to the case was held to be Article 120 of the Limitation Act, which provided six years, limitation. The suit accordingly, was not barred by limitation. It was also held that the receipt of compensation by the respondent-society did not operate as estoppel, especially as the initial notifications were ultra vires. It was made clear in the decree itself that the respondent society would be entitled to take benefit of the decree, only if it paid to the Government the amount received by it together with interest and not otherwise.
It was further held that the appellants had failed to show as to who was in actual possession. Government records had not been produced prove that the appellants formally took possession of the land. The land being open area, it had to be treated in possession of the owner. As the acquisition notifications had been held to be ultra virus the respondent-society was treated as the owner and, thereforee, in possession of the land; their dispossession at any stage not having been proved. The suit for declaration was, thereforee, held to be competent. The notifications issued under Section 4 of the Land Acquisition Act were also held to have exhausted themselves and could not be treated as reservoir for further acquisitions. The appeal was, thereforee, dismissed and the judgment and decree of the trial court was affirmed.
3. In the second appeal Mr. S.S. Chadha, the learned counsel for the appellants raised three contentions; (I) that the finding that the land was not waste was not correct; (ii) the suit declaration should have been held not maintainable as possession was that of the Government and not of the respondent-society; and (iii) that Section 4 notification had survived. The last contention was of no held to the appellants, in view of the Land Acquisition (Amendment & Validation) Act, 1967. More than two years having already expired after the commencement of the said Act, no declaration under Section 6 of the act, could be made. The learned counsel, thereforee, did not press his third contention.
4. The finding that the land was not waste or arable land, but was developed land; and that the respondent was in possession thereof are findings of fact. They cannot be challenged in second appeal.
5. The lower appellate court has held that the land in dispute was substantially an urban area as Moti Bagh and Vinay Nagar colonies are just adjacent to the same at a distance of a few furlongs. It has further been found that the land was developed into plots and roads existed there. These are findings of fact and are supported by ample oral unrequited evidence of the various residents in the neighborhood. Even the Land Acquisition Collector in his award has stated, as reproduced in the judgment under appeal, that roads have been laid and plots have been demarcated. There is absolutely no rebuttal whatsoever to this. It was further brought on record by the respondent that it had spent about Rs. 40,000/- on development of land. Mr. Chadha contended that the respondent-society has failed to produce the cheques by which payments are said to have been made and had not produced its account books, which were admitted to have been maintained. He, thereforee, urged that on account of the failure of the respondent to produce the best evidence, in the shape of account books, presumption should have been made against it.
It is true that it was admitted that accounts were kept. P.W. 6 A. N. Bhardwaj, head-clerk of the respondent-society, had stated in his statement on oath that he had brought the account books in Court, when he appeared in the witness box to show that the said amount on the development of the land had been spent. No questions were asked from him in cross-examination on behalf of the appellants to discredit this statement, nor was any attempt made to look into the said account books, which were then lying in Court. Adverse inference could only be drawn if the appellants had asked the Court to order the respondent to keep the account books in Court and the respondent had then failed to do so. Neither any prayer to the effect was made on behalf of the appellants, nor was any question asked form the witness when he had actually brought the account books in Court. Non-production of the account books under the said circumstances would not be fatal to the respondent's case. In any case, it may be said that the respondent had failed to prove the spending of Rs. 40,000/- on the development of the land.
It could not be said that the lower appellate court had no evidence before it to hold that the land had been demarcated into plots and that roads existed at the site. The question for decision, was, whether it was an urban area or whether it was waste land. It is nobody's case that it was arable land. It was found that the land was adjacent to the developed colonies like Moti Bagh and Vinay Nagar colonies and was, thereforee, substantially an urban area. This finding cannot be assailed.
6. Same is the position with regard to the finding about the actual possession of the land. It is admittedly an open piece of land and nobody has been in actual physical possession thereof. The learned lower appellate Court found that the appellants had failed to adduce any evidence to show that physical possession were every obtained. In view of this, the finding that the respondent-society was in possession of the land is unimpeachable. The legal position about the scope of the jurisdiction of the his court to interfere in second appeal is now well settled. The High court would interfere in second appeal, it, inter alia, the finding recorded by the first appellate court is without any evidence, or if the evidence which is accepted by the lower appellate court was such that no reasonable person could have accepted and that really amounted to saying that there was no evidence. The High Court may then interfere, as finding of fact, without any evidence can be successfully challenged in second appeal. For, then it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. But, the High Court would not interfere if there is an error or defect in the appreciation or assessment of evidence by the lower appellate court. Even if the appreciation is patently erroneous and the finding of fact recorded is grossly defective, as a consequence thereof, that cannot be said to introduce a substantial error or defect in the procedure permitting interference by this Court. This court would not interfere even if it thinks that the finding accepted by the lower appellate court could not have been reasonably accepted. (See V. Ramachandra Ayyar v. Ramalingam Chettiar. : 3SCR604 ).
7. There is thus no scope for any interference by this Court in this second appeal, which lacks merit and is accordingly dismissed with cots. Counsel fee Rs. 200/-.
8. Appeal dismissed.