Smt. Kalavati W/O. Prabhakaraji ... vs Smt. Pushpa Yadavarao Varkhade ...
2017 Latest Caselaw 4128 Bom

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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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 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)
 -------------------------------------------------------------------------------------------
          Shri S. O. Ahmed, Advocate for Appellants.
          Shri S. D. Ingole, Advocate for Respondent nos. 1 & 2.  
 -------------------------------------------------------------------------------------------

             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

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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

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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

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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

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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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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