Karnataka High Court
Shankrayya S/O Iranna Nimbal And Ors vs Shaila W/O Ravikumar And Anr on 21 February, 2024
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RFA No. 200018 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR FIRST APPEAL NO. 200018 OF 2020
(PAR/POS)
BETWEEN:
1. SHANKRAYYA
S/O IRANNA NIMBAL,
AGE: 56 YEARS,
OCC: AGRICULTURE,
R/O: KULALI, TQ:AFZALPUR,
DIST: KALABURAGI
2. GODAWARI
D/O SHANKRAYYA NIMBAL,
AGE:16 YEARS,
3. PAVITRA
Digitally D/O SHANKRAYYA NIMBAL,
signed by
SACHIN AGE:15 YEARS,
Location:
HIGH COURT
OF 4. AISHWARI
KARNATAKA D/O SHANKRAYYA NIMBAL,
AGE: 8 YEARS,
5. KAVERI
D/O SHANKRAYYA NIMBAL,
AGE: 5 YEARS,
6. SWATI
D/O SHANKRAYYA NIMBAL,
AGE: 4 YEARS,
(APPELLANT NO.2 TO 6 ARE THE MINORS UNDER
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RFA No. 200018 of 2020
THE GUARDINASHIP OF THEIR NATURAL FATHER
APPELLANT NO.1 HEREIN)
...APPELLANTS
(BY SRI. RAVI B. PATIL, ADVOCATE)
AND:
1. SHAILA
W/O RAVIKUMAR,
D/O SHANKRAYYA NIMBAL,
AGED ABOUT 26 YEARS,
OCC: AGRICULTURE,
R/O NAGARAHALLI,
TQ:SINDAGI,
DIST: VIJAYAPURA,
NOW AT SHAHABAZAR COLONY,
KALABURAGI-585101.
2. SPECIAL LAND ACQUISITION OFFICER,
MINOR IRRIGAITON YOJANA,
KALABURAGI-585102.
...RESPONDENTS
(BY SRI.AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI.SHARANAGOUDA V.PATIL, ADVOCATE FOR R-1; SRI.
MALHARA RAO, AAG AND SRI.G.B.YADAV, HCGP FOR R-2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
COURT OF SENIOR CIVIL JUDGE AND JMFC, AT AFZALPUR IN
O.S.NO.30/2018, DATED 25.10.2019 AND CONSEQUENTIALLY
TO DISMISS THE SUIT OF THE RESPONDENT NO.1/PLAINTIFF
IN ENTIRETY BY ALLOWING THE PRESENT APPEAL.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 200018 of 2020
JUDGMENT
1. This appeal is filed by defendants 1 to 6 challenging
the Judgment and Decree dated 25.10.2019 passed in
O.S.No.30/2018 on the file of the Senior Civil Judge and
JMFC, Afzalpur, decreeing the suit of the plaintiff in part.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. The plaint averments are that the plaintiff is the
daughter of the defendant No.1 through his first wife-
Jyothi @ Jagadevi. The mother of the plaintiff-Jyothi @
Jagadevi died on 15.07.1999 and thereafter, the
defendant No.1 married Smt. Gurubai and through her
defendants 2 to 6 were born. It is the case of the plaintiff
that there are three items of schedule properties which are
the ancestral properties and accordingly sought for
partition and separate possession in respect of the same.
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It is also stated in the plaint that the item No.1-land
bearing Sy No.39/1-3 to an extent of 2 acre 34 guntas of
Bamanni Village, Afzalpur Taluk, was acquired by the
defendant No.7 and award of Rs.25,86,772/- has been
granted and accordingly, the plaintiff sought for one-
seventh share in the schedule properties. Hence, plaintiff
has filed suit for partition and separate possession in
respect of the suit schedule property.
4. After service of summons, defendant No.1 entered
appearance and filed detailed written statement denying
the plaint averments. It is the contention of the defendant
No.1, that the item No.1 of the schedule properties has
been acquired and compensation was released during the
year 2017 and therefore, he contended that the plaintiff is
not entitled for apportionment in the compensation
awarded by the defendant No.7. It is also the contention
of the defendants that the schedule properties are the self
acquired properties of the defendant No.1 and accordingly,
sought for dismissal of the suit.
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5. On the basis of the rival pleadings, the Trial Court
has formulated the following issues for its consideration:
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6. In order to establish her case, plaintiff got examined
herself as P.W.1 and produced 23 documents and same
were got marked as Exhibits P1 to P23. On the other hand,
defendant No.1 got himself examined as D.W.1, however,
no documents were produced on behalf of the defendants.
7. The Trial Court, after considering the material on
record, by its Judgment and Decree dated 25.10.2019,
decreed the suit of the plaintiff in part, holding that the
plaintiff is entitled for one-seventh share in the schedule
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properties. Being aggrieved by the same, the defendants
have preferred this Regular First Appeal.
8. Having taken note of the pleadings on record, the
points that arise for consideration in this appeal are as
follows:
1) Whether the Judgment and Decree
passed by the Trial Court requires
reconsideration?
2) Whether the Trial Court is justified in
granting 1/7th share to the plaintiff in
the compensation awarded by the
defendant No.7?
3) What order?
9. Heard Sri. Ravi B. Patil, learned counsel appearing
for the appellants and Sri. Ameet Kumar Deshpande,
learned Senior Counsel appearing for Sri. Sharanagouda V.
Patil, learned counsel for the respondent No.1, along with
Sri. Malhara Rao, learned Additional Advocate General and
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Sri. G.B. Yadav, learned High Court Government Pleader
appearing for respondent No.2.
10. Sri. Ravi B. Patil, learned counsel appearing for the
appellants argued the Trial Court has committed error in
holding that the plaintiff is entitled for one-seventh share
in the compensation awarded by the defendant No.7 as
the plaintiff has to approach the Deputy Commissioner
under Section 18 and 30 of the Land Acquisition Act (for
short, hereinafter referred to as 'Act') and thereafter,
approach the Reference Court which has to pass orders
under Section 30 of the said Act. He further contended
that, Item No.1 of the suit schedule property was not in
existence as on the date of the filing of the suit and
accordingly, sought for interference of this Court. In order
to buttress his arguments, learned counsel appearing for
the appellants places reliance on the Judgment of the
Hon'ble Supreme Court in the case of SHYAMALI DAS
Vs. ILLA CHOWDHRY AND OTHERS reported in
(2006) 12 SCC 300 and argued that the impugned
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Judgment and Decree passed by the Trial Court is contrary
to law.
11. Per contra, Sri. Ameet Kumar Deshpande, learned
Senior Counsel appearing for the respondent/plaintiff
sought to justify the Judgment and Decree passed by the
Trial Court. It is contended by the learned Senior Counsel
that the Civil Court is having jurisdiction to divide the
property equitably as the plaintiff / respondent is the co-
parcener of the joint family of defendants and as such it is
argued that though the item No.1 of the schedule property
is acquired by the defendant No.7 and the plaintiff being
one of the joint family members, is entitled for share in
the compensation awarded by the acquiring authority and
therefore sought for dismissal of the appeal. In this
regard, he places reliance on the Judgment of this Court in
the case of PRAMILA BAI AND OTHERS Vs.
SATYANARAYANACHAR AND OTHERS IN RFA No.
427/2005 disposed of on 11.01.2012 and argued that
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the suit is maintainable claiming share in the
compensation awarded by the defendant No.7.
12. Sri. Malhara Rao, learned Additional Advocate
General and Sri. G.B. Yadav, learned High Court
Government Pleader appearing for the respondent
No.2/defendant No.7 argued that the Civil Court has no
jurisdiction to grant relief by awarding compensation to
the plaintiff and accordingly, sought for disposal of the
appeal.
13. In the light of the submissions made by learned
counsel appearing for the parties, I have carefully
examined the original records. The Defendant No.1
married Jyothi @ Jagadevi and in their wedlock, plaintiff
was born. Jyothi @ Jagadevi died on 15.07.1999 and
thereafter, defendant No.1 married Gurubai and in their
wedlock, defendants 2 to 6 were born. The relationship
between the parties is not disputed. The suit is filed
seeking for partition in respect of three items of the
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schedule properties. The grievance of the appellants is
with regard to allotting 1/7th share in the compensation
awarded by the defendant No.7. Item No.1 of the schedule
property had been acquired by the defendant No.7 and
award of Rs.25,86,772/- had been granted to the
defendant No.1. The plaintiff at paragraph 6 of the plaint
has stated that, item No.1 of the schedule property has
been acquired and accordingly, award has been made.
Prayer at paragraph 13(b) reveals that the plaintiff
claiming 1/7th share in the compensation awarded by the
competent court. The plaintiff at paragraph 7 of the plaint,
urges that the defendant No.1 has withdrawn the
compensation amount behind the back of the plaintiff. The
said aspect of withdrawing compensation by the defendant
No.1 is not disputed by the parties. Though the learned
counsel appearing for the appellants, places reliance on
the Judgment of the Hon'ble Supreme Court in the case of
SHYAMALI DAS (supra), at paragraph 19 therein, it has
been held as follows:
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"19. The Act is a complete code by itself. It
provides for remedies not only to those whose
lands have been acquired but also those who claim
the awarded amount or any apportionment thereof.
A Land Acquisition Judge derives its jurisdiction
from the order of reference. It is bound thereby.
Its jurisdiction is to determine adequacy or
otherwise of the amount of compensation paid
under the award made by the Collector. It is not
within its domain to entertain any application of pro
intersse suo or in the nature thereof."
14. The Hon'ble Supreme Court held that the Reference
Court derives its jurisdiction from the order of reference
made by the Collector / Deputy Commissioner to apportion
the compensation if any "persons interested" thereunder
approach the Collector / Deputy Commissioner. The said
exposition of law by the Hon'ble Supreme Court is just and
proper in the event if there is any dispute relating to
apportionment of compensation. However, in the present
case, the plaintiff being co-parcener of joint family, is
seeking her share in the compensation awarded by the
competent authority and not disputing the claim of
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defendant No.1 under Section 18 of the Act. In that view
of the matter, the Judgment referred to by the appellants
is not applicable to the facts of this case. This Court in
PRAMILA BAI (supra) at paragraph 15 held as follows:
15.......Merely because the lands were acquired,
possession was taken over by the State and
compensation is paid, to claim a share in the
compensation amount, it is not necessary for the
plaintiff to file a suit for recovery of money, as
contended by the defendants. Even if the plaintiffs
have not appeared before the Land Acquisition
Officer and have not putforth their claim and did not
seek of reference under Section 30 of the Land
Acquisition Act, they are not precluded from claiming
a share in a suit for partition. In this regard the trial
Court committed serious error in not keeping in mind
the said legal position and denying the relief of 1/5th
share in the compensation amount on the ground
that plaintiff did not appear before the Land
Acquisition Officer, did not seek reference under
Section 30. The said approach is thoroughly wrong
and therefore it is set aside."
15. It is also pertinent to mention here that, High Court
of Gauhati in the case of ASHER ALI Vs. SUKHNA SEIKH
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(deceased by LRs) and others, reported in AIR 1992 GAU
1, at paragraphs 5, 9 and 10 held as follows:
"5. From a bare reading of Section 30 it is clear that
this section deals with dispute as to the
apportionment of the amount of compensation
settled under Section 11 or as to the persons to
whom it is payable. Power has been conferred on the
Collector under this section to refer such a dispute to
the decision of the court. No time limit has been
prescribed for making such a reference. It can be
made at any time. The power to make a reference is,
however, discretionary. As observed by Shah J.
(speaking for the majority) in Grant v. State of Bihar,
AIR 1966 SC 237 (at 243), the Collector is,
under Section 30, not enjoined to make a reference;
he may relegate the person raising a dispute as to
apportionment or as to the person to whom
compensation is payable, to agitate the dispute in a
suit and pay the compensation in the manner
declared by his award. This observation of the
Supreme Court itself, to my mind, is clear enough to
show that the civil court has jurisdiction to entertain
a suit filed by a person claiming a portion of the
compensation awarded by the Collector in land
acquisition proceedings.
***************
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9. A perusal of Section 30 of the Act also makes it
absolutely clear that this section itself contemplates
adjudication of dispute in regard to apportionment
etc. by the Court. It simply provides a simpler
procedure of reference by the Collector himself. The
object is to save the parties from unnecessary
expenditure and wastage of time in filing a separate
suit for the purpose. By any interpretation, from this
provision, exclusion of jurisdiction of the Civil Court
cannot be implied.
***************
10. In the light of the foregoing discussion, I am of
the clear opinion that a person claiming a part of the
compensation awarded by the Collector in land
acquisition proceeding under the Land Acquisition
Act, 1894 is entitled to file a civil suit. This view of
mine also gets full support from the ratio of the
decisions of the Punjab Chief Court in Chandu Lal v.
Ladli Begam, (1919) 49 Ind Cas 657 : (AIR 1919 Lah
411), Lahore High Court in Bago v. Roshan, AIR
1926 Lah 321 and Patna High Court in Md. Imram v.
Mohammad Jafar Momin, AIR 1972 Pat 482; State of
Bihar v. Banarsi Devi, AIR 1973 Pat 146 and Sarjug
Rai v. Maheswari Devi, AIR 1975 Pat 192."
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16. In that view of the matter, following the declaration of
law referred to above, I am of the view that, on the
reference made under Section 18 and 30 of the Act by the
competent authority namely Collector / Deputy
Commissioner, Reference Court has no jurisdiction to
adjudicate upon the title to compensation and the dispute
has to be decided in a separate suit, before the competent
Civil Court. It is to be noted that, the Land Acquisition Act
did not bar the jurisdiction of the Civil Court to entertain
the suit relating to share of the parties in the
compensation awarded by the competent Court. It is also
to be noted that, as on the date of filing of the suit, item
No.1 of the schedule property was not in existence as the
defendant No.7 had acquired the same and therefore, the
plaintiff is entitled for 1/7th share in the compensation
awarded by the competent authority in respect of
acquiring item No.1 of the schedule property. That apart,
the Civil Court has jurisdiction to grant share in the
compensation to the plaintiff, being co-parcenary of the
joint family of the parties. Therefore, I do not find
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acceptable ground to interfere with the Judgment and
Decree passed by the Trial Court and as such, the plaintiff
is entitled for one-seventh share in the compensation
awarded by the defendant No.7. Accordingly, the points
for consideration referred to above goes in favour of the
plaintiff. It is also to be noted therefore that, the plaintiff
is entitled for one-seventh share in item Nos.2 and 3 of
the schedule properties.
17. In the result, I pass the following:
ORDER
(i) Appeal is dismissed.
(ii) Judgment and Decree dated 25.10.2019
in O.S. No.30/2018 on the file of Senior
Civil Judge, Afzalpur, is confirmed and suit
is decreed accordingly.
Sd/-
JUDGE
sac
