Bombay High Court
Arun Gopalrao Sherkar And Another vs Digambar Gopalrao Sherkar on 19 January, 2021
Bench: R. G. Avachat
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5665 OF 2020
Arun Gopalrao Sherkar and another ... Petitioners
Versus
Digambar s/o Gopalrao Sherkar
(Since Died - through L.R's.)
1-A. Vandana Rajkumar Sherkar and others ... Respondents
....
Mr. V. D. Salunke, Advocate for petitioners
Mr. G. V. Mohekar, Advocate for respondent Nos. 1-A to 1-D.
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 13th JANUARY, 2021
PRONOUNCED ON : 19th JANUARY, 2021
PER COURT :-
. Heard learned counsel for the parties.
2. The order impugned in this writ petition has been passed
by the Court of 6th Joint Civil Judge, Senior Division, Osmanabad, on
applications below Exh.101 and 103 in Land Acquisition Reference
(L.A.R.) No.609 of 2016. By the impugned order, the application
moved by the petitioners for release in their favour the amount of
compensation payable to them on account of acquisition of land for
construction of National Highway, came to be rejected.
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3. Facts in brief:-
The petitioners are the brothers inter se. Deceased
respondent - Digambar was real brother of the petitioners. They
have one more brother, by name Suryakant and sister Chitrabai.
Agricultural lands, Gat Nos. 369/9, 345/6, and 344/3 belonged to
their father late Gopalrao, who passed away in November 1995. It is
the case of the petitioners that partition of the family properties took
place and the lands that have been acquired by the National
Highway Authority, had fallen to the share of the petitioners.
4. Admittedly, the petitioners were the only parties before
the Land Acquisition Authorities. The award has been passed in their
favour. A sum of Rs.25,77,495/- and Rs.25,55,082/- has been
awarded to both the petitioners, respectively as compensation under
the award dated 12.04.2016.
5. The original respondent - Digambar, filed a suit being
R.C.S. No.80/2010 for partition and separate possession of the
family properties. The suit was dismissed. Late Digambar is
unsuccessful in first appeal i.e. R.C.A. No.206/2014 preferred
against the judgment and decree passed in R.C.S. No.80/2010. He,
therefore, appears to have preferred Second Appeal in this Court.
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The same is pending on stamp number i.e. Second Appeal Stamp
No.24123/2019.
6. Meanwhile, the respondent preferred an objection to the
Competent Authority for distribution of the amount of compensation
in favour of the petitioners. The Competent Authority referred the
dispute to the Principal District Judge, Osmanabad, for
apportionment of compensation. The Principal District Judge, in turn
referred the same to the Court of 6 th Joint Civil Judge, Senior
Division, Osmanabad, for decision. The learned Judge vide his order
dated 05.12.2019, passed the order holding the petitioners to be
entitled to receive the amount of compensation. The respondent,
thereafter, preferred a writ petition being Writ Petition
No.3839/2020 and challenged the impugned order. The writ petition
was disposed of with an observation that the petitioner therein may
seek the relief as may be permissible in pending Second Appeal.
7. It appears that the respondent has not yet sought
circulation of the Second Appeal based on the order passed in the
writ petition. The learned 6th Joint Civil Judge, Senior Division,
Osmanabad, by his impugned order dated 23.06.2020, rejected the
applications Exh.101 and 103 with a direction not to disburse the
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compensation amount in favour of the petitioners until orders in that
regard are passed in Second Appeal. The petitioners are therefore
before this Court in this writ petition.
8. The learned counsel for the respondents submitted that
he would seek necessary directions from the Court seized of the
Second Appeal.
9. Learned counsel for the petitioners would on the other
hand submit that the original respondent has been unsuccessful in a
suit for partition and appeal preferred against it. The award has been
passed in favour of the petitioners. Their another brother and sister
have admitted the case of the petitioners.
10. True, this Court cannot sit in Second Appeal against the
judgment and decree passed in R.C.S. No. 80/2010. The fact,
however, remains that the original respondent has been unsuccessful
in his claim for partition of the family properties. Both the Courts
have concurrently held that the partition of the family properties did
take place. I have perused the judgment passed by both the Courts. It
appears that there was an oral partition. Memorandum thereof was
executed. These are the prima-facie observations so far as regards
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deciding the present writ petition. The amount of compensation has
remained undisbursed for over four years. The petitioners are found
to be entitled to receive the same. The interest of the respondents
could very well be secured, directing the petitioners to furnish bank
guarantee or solvent surety to the extent of share, if any, of the
original respondent. This order would necessarily be subject to any
order that may be passed in the Second Appeal as regards the claim
of the respondent for amount of compensation.
11. In view of the above, the writ petition is allowed in
terms of the following order:
ORDER
(i) The impugned order dated 23.06.2020 passed by
the 6th Joint Civil Judge, Senior Division,
Osmanabad on applications belwo Exh.101 and 103
in L.A.R. No.609 of 2016, is set aside.
(ii) The amount of compensation payable to the
petitioners be released in their favour.
(iii) Both the petitioners shall furnish bank guarantee or
solvent surety to the extent of Rs.10,00,000/-
(Rupees Ten Lakh) each and also furnish
undertaking that in case any adverse order is passed
against them as regards the amount of
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compensation, they would repay the same or return
it as may be directed in Second Appeal.
(iv) The bank guarantee/surety shall remain in force
until decision of the Second Appeal or any other
order that may be passed as regards the
respondents' claim for compensation pending in the
Second Appeal, whichever is earlier.
[ R. G. AVACHAT, J. ]
SMS
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