Sakhubai @ Rakabai Wd/O. Dhondu ... vs Dhanpal S/O. Kashiram Bhoyar And ...
2017 Latest Caselaw 4014 Bom

 fa1177.16.J.odt                    1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                       FIRST APPEAL NO.1177 OF 2016


 1]       Sakhubai @ Rakabai wd/o Dhondu
          Sahare (dead through her legal heirs)

          1]      Gajanan s/o Dhondba Sahare,
                  Aged: Major, Occ: Private Job.
                  R/o Saleshahari, Tah. Bhiwapur,
                  Dist. Nagpur.

          2]      Smt. Tursabai w/o Rarnaji Bhomale,
                  Aged: Major, Occ: Household
                  R/o Salai, Tahsil Umrer,
                  Dist. Nagpur.

          3]      Smt. Kantabai Deorao Bhoyar (dead)
                  thr. Her LR's

          3A]     Janardhan s/o Deorao Bhoyar,
                  Aged: Major, Occ: Agriculturist,
                  R/o Khapri, Tah. Umrer,
                  Dist. Nagpur.

          3B]     Smt. Sushila w/o Tularam Choudhari,
                  Aged: Major, Occ: Agriculturist,
                  R/o Karhandala, Tah. Kuhi,
                  Dist. Nagpur.

          3C]     Smt. Rekha w/o Shantaram Rohankar,
                  Aged: Major, Occ: Agriculturist,
                  R/o Kakipar, Tah. Paoni,
                  Dist. Bhandara.

          4]      Smt. Shantabai w/o Manikrao Gadekar,
                  Aged: Major, Occ: Agriculturist,
                  R/o Salwa, Tah. Kuhi,
                  Dist. Nagpur.           ....... APPELLANTS



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  fa1177.16.J.odt                           2

                                   ...V E R S U S...

 1]       Dhanpal s/o Kashiram Bhoyar,
          Aged 60 years, Occ: Agriculturist
          R/o At Yerkheda, Post: Mahalgaon
          (Kalu), Tah. Chimur, Dist. Chandrapur.

 2]       State of Maharashtra through the
          District Collector, Nagpur.

 3]       Special Land Acquisition Officer
          No.2, Vidarbha Patbandhare Vikas
          Mahamandal, Nagpur.                       ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri A.H. Jamal, Advocate for Appellants.
          Shri P.A. Markandeywar, Advocate for Respondent No.1.
          Shri A.R. Chutke, AGP for Respondent No.2.
 -------------------------------------------------------------------------------------------

 CORAM:            DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J. 

 DATE:               th
                   5    JULY, 2017.


 ORAL JUDGMENT



 1]               In the reference petition filed under Section 30 of the

Land Acquisition Act, 1894, for the proper adjudication of the

share of the appellant and respondent No.1, in respect of the

award passed on 13.07.2011 vide Land Acquisition Case No.10-

A/65-05-06, for the land bearing new Survey No.122 admeasuring

1 H 86 R situated at Mouza Saleshahari, the learned Reference

Court of Adhoc District Judge-2, Nagpur, vide his judgment and

order dated 13.10.2015 held respondent No.1 alone to be entitled

to get the amount of the compensation. Hence, being aggrieved

thereby, the instant appeal is preferred.

2] Brief facts of the appeal are stated as follows:

One Sakharam s/o Watu Bhoyar, was the owner of

various agricultural lands situated at village Saleshahari. During

his life time, he effected partition in the said land amongst his

three sons namely (i) Kashiram, (ii) Vishvanath and (iii) Shivram.

He had two daughters namely Sakhubai and Anjana. His son

Kashiram had one son by name Dhanpal. The appellants herein

are the legal heirs of Sakhubai, whereas, Dhanpal is respondent

No.1. As per the case of the appellants, they are having equal

share in the land left behind by Sakharam. The name of their

mother Sakhubai was also appearing in the 7/12 extract of the

acquired land till the year 1992. However, by producing some

false and fabricated document called as relinquishment deed

respondent No.1 has got the name of Sakhubai deleted from the

records of rights of the acquired land on 15.07.1992.

3] The grievance of the appellants is that Sakhubai has

never executed such relinquishment deed and as land belongs to

her father Sakharam and his grand-father, it being an ancestral

property, Sakhubai continued to have share and interest in the

said land. Mere deletion of the entry of her name from the

revenue record cannot obliterate or wipe out her share or interest

in the acquired land. Hence, appellants are also entitled to get

their share in the compensation, which is to the tune of

Rs.8,99,660/- with interest thereon, which is awarded by the

L.A.O. for acquisition of Survey No.122, area 1 H 86 R.

According to learned counsel for appellants, the Trial Court has

however, rejected their claim and hence the appellants are

constrained to approach this Court.

4] Per contra, submission of learned counsel for

respondent No.1 is that in the year 1992 itself, the name of

Sakhubai was deleted from revenue record and that too on the

basis of the relinquishment deed. If the appellants or their

predecessor Sakhubai had any grievance about deletion of her

name from the record of rights, they could have filed the suit. It is

submitted that Sakhubai has actually filed such suit for partition.

However, what happened of that suit is not brought on record. It

is urged that, if she had voluntarily given up her right in the

acquired land, there is no question of appellants getting any share

in the compensation, which is awarded by the L.A.O. It is

submitted that absolutely no case was made out by the appellants

and hence, Trial Court has rightly rejected the claim of the

appellants. According to learned counsel for respondent No.1

therefore, no interference is warranted in the impugned judgment

and order of the Trial Court.

5] The facts of this case are not realm of dispute. It is an

admitted position that Gat No.41/A, which was bearing old

Survey No.18/1 was previously owned and cultivated by

Sakharam; whereas Gat No.41/B old Survey No.18/2 was

cultivated by his brother Sambha as per the partition which was

effected between them, thereafter, Sakharam has effected the

partition amongst his three sons and in the said partition the land

bearing Sr.No.41/A went to the share of respondent No.1

Dhanpal. Sakhubai is the sister of Dhanpal's father Kashiram and

hence, parental aunt of Dhanpal. She was the daughter of

Sakharam. Appellants are her legal heirs. According to appellants,

as the acquired land was the ancestral property of her father

Sakharam, Sakhubai had also got the share in the same and

merely because her name was deleted from the record of rights,

her and share in the property cannot go away.

6] However, if the oral evidence on record and the

entries made in the 7/12 extract are perused, it can be seen that

though the name of Sakhubai appeared in the 7/12 extract, it

came to be deleted, by virtue of the relinquishment-deed dated

15.07.1992. The said removal of her name from the record of

rights, on the basis of her relinquishment-deed is proved on record

by Talathi Shankar Deodhar who is examined by the respondent

No.1. According to him, the name of Sakhubai was wrongly taken

in 7/12 extract and therefore, on the basis of this document,

which is her relinquishment-deed it was removed from 7/12

extract. The entries made in the 7/12 extract thus clearly go to

show that Sakhubai has, during her life time relinquished her

share in the acquired land in favour of respondent No.1. If it is so,

then apparently the appellants who are the legal heirs of Sakhubai

cannot get any right in the acquired land. If at all they want to

state that the said relinquishment-deed was a false and fabricated

document, they will have to first establish the same by filing a suit

for declaration to that effect or they will have to establish their

right in the property by filing a suit for partition.

7] It is pertinent to note that even though the name of

Sakhubai came to be deleted in the year 1992 itself, neither

Sakhubai nor the appellants have taken any steps in that

direction. Though it is stated by the appellant Gajanan Dhondiba

Sahare that such suit for partition was filed by Sakhubai; it is not

stated what happed about that suit. Further he has also admitted

that name of his mother Sakhubai was removed from the revenue

record in the year 1992 itself. Hence, if he was aware about the

same and also aware about the fact that the acquired land bearing

Survey No.41/A has gone to share of respondent No.1, the very

fact that he waited for such long period of 30 years, makes it

necessary to hold that unless the appellants established their right,

title in the acquired land, their claim for compensation cannot be

tenable. The Trial Court has therefore, rightly decided the

controversy involved in the case.

8] The appeal being devoid of merit stands dismissed.

9] As the appeal is dismissed, the Civil application has

become infructuous and stands disposed of.

JUDGE

NSN