fa-j 693-16.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 693 OF 2016
1] Smt. Kalavati w/o Prabhakarji Madavi
Aged about 40 years, Occ: Household
R/o Bidborgaon, Post. Amgaon, Deoli
Tah. Hingna, District-Nagpur.
2] Smt. Mandatai w/o Amrutji Kukudde
Aged about 37 years, Occ.: Household
R/o Hiwari, Post.Sheldoh, Tah. Selu
District-Wardha.
3] Smt. Jayabai @ Tai w/o Kavaduji Dhurve
Aged about 34 years, Occ.: Household
R/o Double Gate Borkhedi, Post Mohgaon
Tehsil and District- Nagpur.
4] Smt. Mirabai w/o Bhagwanji Kukkude
Aged about 30 years, Occ.: Household
R/o Jungad, Post. Kelzar
Tah. Selu, District-Wardha. ....... APPELLANTS.
(Ori.Objector)
...V E R S U S...
1] Smt. Pushpa Yadavrao Varkhade
Aged bout 53 years, Occ.: Cultivation/Household
2] Ku. Sharda d/o Yadavrao Varkhade
Aged about 23 years,
Above Both are residents of
Mandva (Mahar), Tahsil Hingna and
District-Nagpur.
3] Shri. Ashok s/o Chandrabhan Varkhade
Aged about 45 years, Occ.: Business
R/o Takalghat
Tehsil Hingna and District-Nagpur.
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fa-j 693-16.odt
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4] Smt. Sitabai wd/o Chandrabhan Varkhade
Aged about 70 years, Occ.: Household
R/o Takalghat, Tehsil Hingna and
District-Nagpur.
5] Shri. Dadarao s/o Chandrabhan Varkkhade
Aged about 50 years, Occ.: Cultivator
R/o Near House of Shri. Sunsinghji Karnake
Gondwana, Tah. Hingna and
District-Nagpur. .......RESPONDENTS.
(Ori.Applicants)
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Shri S. O. Ahmed, Advocate for Appellants.
Shri S. D. Ingole, Advocate for Respondent nos. 1 & 2.
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CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE : 6 th JULY, 2017.
ORAL JUDGMENT This appeal is preferred against the judgment and order dated 11.3.2016 passed by Ad-hoc District Judge-2, Nagpur in Reference Case No. 159 of 2013 under Section 30 of the Land Acquisition Act, 1894.
2] Brief facts of the appeal can be stated as follows:-
One Chandrabhan Warkhade was the owner of various agricultural lands. He had four daughters, who are appellants in this appeal and three sons by name Yadavrao, Ashok-respondent no.3 and Dadarao-respondent no.5. Yadavrao is succeeded by his widow wife-respondent no.1 Pushpa and ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:16:38 ::: fa-j 693-16.odt 3 daughter respondent no.2- Sharda. Respondent no.4 Sitabai is the widow of Chandrabhan.
3] As per the case of appellants, Chandrabhan partitioned his property amongst his three sons in the year 1975. At the time of partition, appellants were not given their share in the ancestral property as they were minors. Hence, when they became major, they claimed their share but it was refused. Meanwhile, the property came to be acquired by the Collector, Nagpur under the Land Acquisition Act, 1894. As the appellants claimed their share in the amount of compensation which was to be awarded towards the acquisition of land and respondents nos. 1 and 2 refused to give that share, Reference petition came to be filed under Section 30 of the Act.
4] In support of their case, appellant no.1 Kalavati examined herself and also produced on record the various documentary evidence like 7/12 extract of the agricultural land. Pushpabai respondent no.1 also examined herself and relied upon the various documents. In the light of the same, the trial Court was pleased to hold that the appellants herein had failed to ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:16:38 ::: fa-j 693-16.odt 4 establish their claim over the compensation amount and hence, allowed respondent no.1 and 2 to receive entire amount of compensation.
5] Being aggrieved by this order of the Reference Court, this appeal is preferred. According to learned counsel for appellants, the relationship between the parties is not disputed. It is admitted that the appellants are the daughters of Chandrabhan and, therefore, it is urged that appellants are entitled to get their share in the amount of compensation which was awarded towards the acquisition of the property which was originally belonging to their father Chandrabhan. It is submitted that the respondent nos.1 and 2 are not allowing appellants their share in the compensation amount and the trial Court has accepted the contention of respondent nos. 1 and 2 and wrongly rejected the claim of the appellants. Therefore, the impugned judgment and order of the Reference Court needs to be set aside. 6] Per contra, learned counsel for respondent nos. 1 and 2 has supported the said judgment and order by further pointing out that appellants herein have already filed a suit for partition ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:16:38 ::: fa-j 693-16.odt 5 and separate possession along with a request for apportionment in the amount of compensation. Moreover, it is also pointed out that the entire amount of compensation has already been withdrawn by respondent no.1 in April, 2016 itself.
7] In the light of these rival submissions, I am of the considered view that this appeal needs to be dismissed and my reasons for the same three and they are follows:
Appellants are undisputedly the daughters of Chandrabhan. However, they can become entitled to get share in the compensation amount, only if they prove that properties which came to be acquired by the Collector were ancestral landed property of their father Chandrabhan. If those properties were self-acquired property of Chandrabhan and Chandrabhan has already effected the partition amongst his three sons in the year 1975 itself, then it follows that the appellants cannot be entitled to get any share in the compensation amount. In this respect the evidence of the appellant no.1 goes to show that she has admitted in her cross-examination that she does not know whether the property belonging to her father was a self-acquired property or otherwise. Appellants have also not produced on record any ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:16:38 ::: fa-j 693-16.odt 6 evidence like the entries in revenue record to show that prior to Chandrabhan the name of his father was appearing in the revenue record so that it can be inferred that the properties were ancestral landed property of Chanrabhan. In absence of such evidence, it has to be held that Reference Court has rightly refused the claim of the appellants over the compensation amount and upheld the right of respondent nos. 1 and 2 to withdraw the entire amount. 8] The second reason why this appeal needs to be dismissed is the subsequent event of respondent nos. 1 and 2 having already withdrawn the entire amount of compensation after dismissal of the reference petition before the trial Court. It is submitted by learned counsel for respondents that the reference petition came to be dismissed by Trial Court on 11.3.2016 and respondent nos. 1 and 2 had withdrawn the entire amount of compensation in April, 2016. Therefore, if any stay was granted to the execution of the order of the Reference Court, as it was granted in the Month of June, 2016, hence, the fact remains that the amount already being withdrawn, this appeal has also becomes infructuous.
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fa-j 693-16.odt 7 9] Third reason is that the appellants have already filed the substantive suit, bearing Regular Civil Suit No. 360/16 before the Court of Civil Judge, Senior Division, Nagpur, seeking the various reliefs of declaration, partition, separate possession and also for apportionment of the compensation amount and restraining respondent nos. 1 and 2 from withdrawing the said amount. Hence, if the appellants have any rights in the compensation amount, those rights can be decided in the substantive suit pending before Civil Court. This appeal was for limited purpose of restraining the respondents no.1 and 2 from withdrawing that amount and apportioning some share to appellants in the said compensation amount. In view of the said amount being withdrawn by respondent nos. 1 and 2, appeal has become infructuous.
Appeal therefore, stands dismissed with no order as to costs.
Needless to state that the rights of the parties will be decided independently in the pending suit, without being affected by the dismissal of this appeal.
JUDGE RGIngole ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 09:16:38 :::