R.F.A. No. 2547 of 1987 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.F.A. No. 2547 of 1987
Date of decision: September 08, 2008
Sawinder Kaur
.. Appellant
v.
Balbir Singh
.. Respondent.
CORAM: HON’BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Nitin Kumar, Advocate for the appellant.
None for the respondent.
Rajesh Bindal J.
The challenge in the present appeal is to the award of the learned
Court below in proceedings for apportionment of compensation on account of
acquisition of super structure on the land owned by the appellant/land owner. The
learned Court below directed for apportionment of compensation to the extent of
1/3rd to the appellant/land owner and 2/3rd to the respondent/tenant.
Briefly, the facts are that the land along with super structure No. 31,
situated outside Bhitteward was acquired. Admittedly, the land beneath the super
structure was owned by the appellant. The dispute was as to who had raised
construction thereon. The learned Court below, on consideration of the evidence,
recorded a finding that the respondent/ tenant, who had claimed to have raised the
structure, could not prove the same by leading cogent evidence, meaning thereby
the claim made by the appellant/land owner to the effect that the super structure
was constructed by her was proved. However, still by applying the thumb rule even
in the case of compensation payable on account of super structure, the Court
directed for apportionment thereon in the ratio of 2/3rd and 1/3rd between the
tenant and the owner respectively.
Learned counsel for the appellant submitted that the apportionment
made as such by the learned Court below is not in conformity with law.
Admittedly, separate proceedings for apportionment of the compensation on
account of acquisition of land which was in possession of the respondent were
pending. The dispute in the present case is on account of compensation receivable
R.F.A. No. 2547 of 1987 [2]
by the appellant on account of acquisition of super structure on the land. When the
super structure was proved to have been constructed by the appellant, there was no
question of apportionment of compensation received on account thereof.
Heard learned counsel for the appellant. No one has appeared for the
respondent.
Even on various previous dates after 3.6.1988, the respondent
remained unrepresented.
A perusal of the impugned award of the learned Court below shows
that in the proceedings where the amount of compensation on account of super
structure was determined at Rs. 37,754.20, apportionment to the extent of 1/3rd and
2/3rd was made between the appellant and the respondent, being owner and the
tenant respectively. Super structure No. 31 stood on Khasra No. 110/27 (0-9
marlas). The claim set up by the respondents that in fact, he had raised that
construction could not be proved by leading cogent evidence and finally the issue
was decided against the respondent and it was held that the structure was
constructed by the appellant. The respondent-tenant, against whom the finding was
recorded, has chosen not to file any appeal before this Court challenging the said
finding. It has not come on record as to what happened in the proceedings for
apportionment of compensation on account of acquisition of land, as is evident
from the impugned award, the same were stated to be pending at that time. On
account of acquisition of super structure, the owner thereof was paid the cost as
assessed. There is no question of apportionment thereof with the tenant in the
property. No judgment taking a view that even for compensation on account of
super structure, apportionment has to be made in addition to the apportionment for
compensation on account of acquisition of land.
In view of my above discussion, the appeal is allowed and the
impugned award is set aside. The appellant-owner is entitled to receive the entire
amount of compensation on account of acquisition of super structure on the
acquired land.
(Rajesh Bindal)
Judge
September 08, 2008
mk