Bombay High Court
Shridhar Rakhmaji Langde vs Babasaheb Kaduba Divte And Others on 28 November, 2023
2023:BHC-AUG:24952
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12043 OF 2023
Shridhar S/o. Rakhmaji Langde,
Age : 63 years, Occu : Agriculture,
R/o. Chite Pimpalgaon,
Tq. & Dist. Aurangabad. ...Petitioner
Versus
1. Babasaheb S/o. Kaduba Divte,
Age : 64 years, Occu : Agriculture,
R/o. Chitegaon, Goukul Nagar,
Post. Pimpalgaon,
Tq. & Dist. Aurangabad.
2. Prabhakar S/o. Kaduba Divte,
Age : 54 years, Occu : Agriculture,
R/o. As above.
3. Kamalbai Murlidhar Kulkarni,
Age : 65 years, Occu : Agriculture,
R/o. As above. ...Respondents
Advocate for Petitioner : Mr. M.K. Deshpande
Advocate for Respondent Nos. 1 & 2 : Mr. M.K. Bhosale
As per Court's order dtd. 27.10.2023, Respondent no. 3 is deleted.
CORAM : SHAILESH P. BRAHME, J.
Judgment reserved on : 10th November, 2023
Judgment pronounced on : 28th November, 2023
JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard learned
counsel for both the sides for final disposal.
2. The petitioner is challenging judgment and order dated
24.08.2023, passed by learned 10th Joint Civil Judge Senior Division,
Aurangabad in LAR No. 83 of 2007, dismissing the claim of the
petitioner.
3. The petitioner's claim was referred to the Civil Court under
Section 3H(4) of National Highway Act (herein after referred as 'Act' for
the sake of brevity). The land was acquired by the respondent nos. 2 and
3. The petitioner claims to be entitled to the compensation awarded by
Competent Authority under the Act.
4. The petitioner's claim is contested by the respondents. The
relevant facts to decide the controversy can be summarized as follows :
(i) An agreement to sale was executed on 17.10.2003, in favour of the
petitioner by original owner Yogesh (being minor through guardian).
(ii) The petitioner had paid Rs. 2,00,000/- out of the total
consideration of amount of Rs. 3,20,000/-.
(iii) Inspite of executing agreement in favour of petitioner, original
owner Yogesh executed sale deed in favour of present respondent nos. 1
and 2.
(iv) The petitioner had filed Special Civil Suit No. 129 of 2005 against
original owner Yogesh, his guardian and the respondent nos. 1 and 2, for
specific performance of contract, mandatory injunction, and refund.
(v) On 04.01.2007, the relief of specific performance of contract and
mandatory injunction was refused but the decree of refund of Rs.
2,00,000/- at the rate pf Rs. 6 % per annum from the date of filing of the
suit i.e. 21.03.2005 was passed.
(vi) Against the decree, First Appeal was filed in High Court. It was
transferred to District Court, Aurangabad, and registered as RCA No.
202 of 2012. It is still pending.
(vii) The part of the suit land sold to the respondent nos. 1 and 2 was
acquired by the Competent Authority under the Act. The petitioner
claimed the compensation and there was dispute for the entitlement. The
matter was referred to the Civil Court and registered as LAR No. 83 of
2017.
5. Learned counsel for the petitioner submits that his
substantive Appeal bearing RCA No. 202 of 2012 is pending and is
bound to succeed. He is, therefore, entitled to the compensation. It is
vehemently submitted that agreement to sale issued in his favour is prior
in time. The sale deed was executed in favour of the respondent nos. 1
and 2, fraudulently. The sale deed is void because it was minor's
property alienated without permission of the Court. He would further
submit that till the Appeal is decided finally, the amount of compensation
be not disbursed to the respondent.
6. Learned counsel submits that when land was acquired it was
in his possession. He is entitled to compensation because the sale deed
is void. He further submits that the findings recorded by Trial Judge that
the Appeal of the petitioner has not been restored and he is not interested
in prosecuting the Appeal is erroneous and perverse. Learned counsel
expresses an apprehension that if the amount is disbursed to the
respondents then his Appeal would become infructuous. He, therefore,
urges to restrain the disbursement.
7. Learned counsel for the respondents has repelled the
submissions of the petitioner by submitting that no right is created in
favour of the petitioner on the basis of agreement. The respondents hold
title document and entitled to compensation. He submits that even if the
amount is disbursed that would be on the undertaking. He would further
submit that the sale deed has not been challenged by the petitioner. His
client cannot wait for the compensation endlessly.
8. I have considered rival submissions canvassed by the
learned counsel across the bar.
9. The petitioner claims entitlement on the basis of agreement
to sale which cannot be said to be title document. As against that, the
respondents are armed with registered sale deed. The validity of the sale
deed is not the part of enquiry presently. The submissions of learned
counsel regarding transfer of the suit land of minor without seeking
permission of the Court and validity of the title of the respondents cannot
be gone into, at this stage. I restrain from expressing my view on the
validity of the sale deed because that may cause prejudice to the merits
of RCA No. 202 of 2012.
10. Learned counsel for the respondents has rightly pointed out
that the sale deed dated 26.08.2004 has not been challenged expressly by
the petitioner in Special Civil Suit No. 129 of 2005. When petitioner was
aware of execution of sale deed and according to him, his right to get
sale deed executed was prior in time then sale deed ought to have been
challenged. Whether the petitioner can succeed before the Appellate
Court without challenging the sale deed is the question to be decided by
Appellate Court. But at this stage of the proceeding, the respondent nos.
1 and 2, hold title of the suit land.
11. Learned counsel for the petitioner has heavily criticized the
findings recorded by the learned Judge that the petitioner was not
interested in prosecuting the Appeal and Appeal was not restored. The
Appeal was dismissed for non prosecution on 27.10.2016. Thereafter,
application for restoration bearing MARJI No. 388 of 2016, was filed
and it was allowed on 16.11.2017. Appeal was restored. Therefore, I do
not approve the findings recorded by the learned Judge in respect of
conduct and readiness of the petitioner. Though these findings are
erroneous that cannot take petitioner's case further.
12. In a suit for specific performance of the contract filed by the
petitioner only decree of refund of an amount with interest is passed. As
on the date the petitioner is entitled to the amount of compensation to the
extent of the amount directed to be refunded with interest. However, the
petitioner on his own volition deleted the respondent no. 3 on
27.10.2023. Learned Judge vide impugned judgment and order has
apportioned the amounts of compensation amongst the respondents
including deleted respondent no. 3. To preserve the amount of refund,
Rs. 2,00,000/- with interest, the respondent no. 3 is necessary party
which is not before this Court. I am unable to issue direction to withhold
the amount of refund with interest which is decreed in favour of the
petitioner.
13. The Appeal of the petitioner is sub-judiced. Even if it is
decided either way, the parties are likely to carry the matter in Appeal.
Learned counsel for the petitioner vehemently submitted that amount be
not disbursed till final decision of Appeal. This submission cannot be
countenanced because there is no certainty when the decree will gain
finality. The claimants cannot be stranded endlessly.
14. The findings recorded by the learned Judge cannot be said
to be perverse. They are based upon material on record except the
findings which I have dealt with in earlier paragraphs.
15. I do not find any case is made out to exercise writ
jurisdiction to preserve the amount of compensation. However, out of
abundant precaution and it is in the interest of justice it would be
appropriate to disburse amounts to the respondents by furnishing their
undertaking.
16. I do not find it necessary to interfere with impugned
judgment and order.
17. The Writ Petition is disposed of with a direction that the
amount shall be disbursed to the respondent nos. 1 and 2 on furnishing
undertaking or the security and subject to the outcome of RCA No. 202
of 2012.
[ SHAILESH P. BRAHME, J. ]
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