High Court
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14815.21wpIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.4815 OF 20211]Sindubai alias Kalabai Rambhau Kapse, Age-67 years, Occu. Agril., R/o. Pimparkhed, Tq.: Ashti, Dist. : Beed. 2]Rambhabai Balbhim Gavhane, Age-64 years, Occu. Agril., R/o. Wamanbhau Nagar, near new bus stand, Pathardi, Tq.: Pathardi, Dist.: Ahmednagar. 3]Bhimabai Laxman Gavhane, Age-60 years, Occu. Agril., R/o. Alhatwadi, Tq.: Pathardi, Dist. : Ahmednagar. 4]Meenabai Dilipa Gaikwad, Age-55 years, Occu. : Agril. R/o. Akolner Railways, Tq. & Dist. : Ahmednagar.5]Lahanabai Vishnu Pathak, Age-48 years, Occu.:Agril. R/o. Sadhwad, Tq.:Pathardi, Dist.:Ahmednagar. .. PETITIONERS(Orig.Plaintiffs) VERSUS 1]Raosaheb Baburao Dahatonde Died Through L.Rs. 1-A]Shashikala wd/o. Raosaheb Dahatonde, Age: 56 years, Occu. Household, R/o. Underkhel, Tq.Ashti, Dist. Beed. 24815.21wp1-B]Sau. Vandana Arjun Parbhane, Age: 39 years, Occu. Household, R/o. Darewadi (Gaothan), Tq.and Dist. Ahmednagar. 1-C]Navnath s/o. Raosaheb Dahatonde, Age: 37 years, Occu. Agril., R/o. Underkhel, Tq.Ashti, Dist. Beed. 1-D]Sau. Sunanda w/o. Ramdas Jare, Age: 35 years, Occu. Household, R/o. At Sasewadi, Post. Jeur (Baijabaiche), Tq. & Dist. Ahmednagar. 1-E]Sau. Suvarna Indrajeet Gavhane, Age: 27 years, Occu. Household, R/o. Navjeevan Colony, G/9-4, N-11, HUDCO, Aurangabad. 1-F]Amol s/o. Raosaheb Dahatonde, Age: 24 years, Occu. Agril., R/o. Underkhel, Tq. Ashti, Dist. Beed. 2]Eknath Baburao Dahatonde, Age-47 years, Occu. : Agril., R/o. as above. 3]Jalindar Baburao Dahatonde, Age-42 years, Occu. : Agril.,R/o. as above. 4]Kausabai Baburao Dahatonde, Age-81 years, Occu. : Agril.R/o. As above. .. RESPONDENTS(Orig.Defendants no.1 to 4) 34815.21wp…Mr.C.K.Shinde, Advocate for the petitioners Adv.V.D.Salunke, Advocate for respondent nos.1A to 1F.…CORAM : ARUN R. PEDNEKER, J. Reserved on : 28.03.2024. Pronounced on : 13.06.2024 JUDGMENT : 1]By the present Writ Petition, the petitioners arechallenging the impugned order dated 02.02.2021 to theextent of clause (4) of the operative order passed by theAppellate Court, District Judge-1, Beed in Misc. Civil AppealNo.31/2020 thereby rejecting the application for temporaryinjunction restraining the respondents – defendant nos. 1 to3 from withdrawing the compensation amount vide awardpassed in LAR No.335/2012 and thus maintaining the orderpassed below Exh.5 by the Civil Judge Senior Division, Beeddated 02.07.2020 to the above extent. The effect of orderdated 02.02.2021 of the Appellate Court is that theapplication for the injunction filed by the petitioners –plaintiff is allowed to the extent of granting temporaryinjunction restraining defendants from alienating the suit 44815.21wpproperty. However, the Appellate Court has not interfered inthe order of the trial Court to the extent of permittingdefendant nos. 1 to 3 from withdrawing compensationamount vide award passed in LAR No.335/2012. Brief facts leading to filing the present writ petition can besummarized as under :2]The facts emerging from the pleadings of theparties are that one Mr.Baburao Kanhu Dahatonde was theowner of the following properties : Sr.No.Survey No.Area 1.5/10-592.6/AA/10-293.7/A/21-014.8/A/30-215.17/19-296.59/111-247.8511-628.80/AA2-949.102/A/80-4510.58/0/141-20 All these properties were ancestral properties ofBaburao and situated at village Underkhel, Taluka Ashti,District Beed. Baburao had two wives, namely, Kalabai andKausabai. As there was no male issue to Kalabai, Baburao 54815.21wpmarried with Kausabai and defendant nos.1 to 6 are bornout of the said wedlock. Out of the suit properties, propertyof survey No.58/0/14, admeasuring 1 Hector 20 R. ofvillage Underkhel, Taluka Ashti, is the exclusive property ofthe plaintiffs as it is inherited by them through their motheras per compromise decree passed in RCS No.493/1998. On10.01.1997, following properties of Baburao were acquiredby the Government : Sr.No.Survey No.Acquired areaH.R. 1.6/10-292.59/11-003.50-594.102/280-175.102/340-026.102/530-107.8/30-21Baburao expired on 23.03.2006. The award inrespect of aforesaid acquired properties came to be passedon 29.09.2004 and the compensation amount ofRs.8,07,514/- was paid on 28.04.2006. Said payment waswithdrawn by the defendant nos. 1 to 3 and not a singlerupee was paid to the plaintiffs towards their share. On05.12.2006, the defendant nos. 1 to 3 submitted an 64815.21wpapplication to take entry of death of Baburao and theirnames in the record of right. On 10.01.2017, mutationentry no.573 was taken showing that Baburao was survivedby 3 sons and 9 daughters and widow Kausabai. However,in the revenue record, only names of the defendant nos. 1to 3 were entered to the record of the suit property andnames of the plaintiffs and defendant nos. 4 to 7 were notentered due to collusion of defendant nos. 1 to 3 with theconcerned revenue officer. After demise of Baburao,defendant nos. 1 to 3 stopped giving share of theagricultural produce of the suit land to the plaintiffs. Assuch, the plaintiffs demanded their share in thecompensation amount of Rs.8,07,514/- received bydefendant nos. 1 to 3. Similarly, plaintiffs also demandedtheir share in the produce of agricultural suit land.However, the defendant nos. 1 to 3 claimed to be the onlylegal heirs of deceased Baburao. As such, the present suit isfiled claiming share in the compensation amount of theacquired land and for partition of the suit land. Theproperty of survey No.58/0/14 is devolved upon the 74815.21wpplaintiffs from their mother as per Court decree. Thecompensation is yet to be paid to the plaintiffs. 3]It is the case of the plaintiffs that the plaintiffsare having 1/13th share each in the suit properties. Theyhave also share in the compensation amount granted in LARNo.335/2012. The compensation amount is not yetdeposited in the said award. Hence, the suit for partitionand separate possession of their 1/13th share each in thesuit properties and in compensation amount of the acquiredland. The defendant nos. 1 to 3 contended that theirmother, Kausabai was the first wife and Kalabai was thekeep of Baburao and that they are only the legitimatechildren of Baburao. The defendant nos. 1 to 6 are thelegitimate children of Baburao. It is further stated that inthe year 2003, Baburao had partitioned his property in thepresence of village men and in the said partition, defendantnos. 4 to 7 had relinquished their rights of the properties infavour of the defendant nos. 1 to 3. Hence, the property ofBaburao was mutated in the names of defendant nos. 1 to 3. 84815.21wp4]During the lifetime of Baburao, defendant no.1had filed RCS No.432/1997 against defendant nos. 2, 3 and7 for partition and separate possession of his share in theancestral properties. The present suit properties and suitproperties in RCS No.432/1997 are identical. In that suit,compromise was effected on 30.03.1999 in Lok Adalat andon the basis of award passed in Lok Adalat, defendant nos.2 to 3 became owner and possessor of the suit properties.As dispute regarding suit property is already decided, thissuit is barred by principle of res-judicata.5]It is further case of the defendants that as theplaintiffs are born from the relations of Baburao andKalabai, Baburao was intending to give something to themfor livelihood. Therefore, he decided to give property ofsurvey No.58/0/14 admesuring 60 R. to the plaintiffs anddefendant no.10. Accordingly, RCS No.493/1998 was filedat Ashti Court and on 18.08.1998, compromise was effectedin that suit and said land was given to the plaintiffs anddefendant no.10. 94815.21wp6]In the instant civil suit for partition filed by thepetitioners, application for injunction was filed. By theorder dated 02.07.2020, the trial Court while consideringthe interim application formulated the following points : No.Points Findings 1.Whether the plaintiffs have a prima facie case togrant temporary injunction as prayed?No.2.Whether the balance of convenience lies infavour of the plaintiffs?No. 3.Whether the plaintiffs will suffer irreparable lossin the event of not granting temporaryinjunction?No.4.What order ?Application isrejected, as perfinal order. Accordingly, by the aforesaid order, theapplication for interim injunction was rejected and the samewas carried in Appeal. By order dated 02.02.2021 in Misc.Civil Appeal No.31/2020, the Appellate Court formulatedthe following points : Points Findings 1.Whether plaintiffs made out prima-faciecase in his favour?Yes. 2.Whether plaintiffs proved that balance ofconvenience lies in their favour?Yes 3.To whom irreparable loss would be Irreparable loss would 104815.21wpcaused if injunction is allowed orrefused ?cause to plaintiffs ifinjunction to alienate thesuit property is refused.However, no irreparableloss would cause toplaintiffs if injunction towithdraw compensationamount of land acquired isrefused. 4.Whether the impugned order passed bylearned Civil Judge (S.D.) Beed belowExh.5 in Reg. Civil Suit No.94/2014,dated 02-07-2020 calls for anyinterference in the present appeal ?Yes. Partly. 5.What order ?Appeal is partly allowed asper order passed below. 7]The Appellate Court has held that nothing isproduced on record to show that, the plaintiffs haverelinquished their share in favour of the defendants and inview of Hindu Succession [Amendment] Act, 2005, primafacie it shows that, the plaintiffs have share in the suitproperty as well as in the compensation amount of landacquired by the State.8]The learned counsel for the petitioners contendsthat the Appellate Court although held that prima facie thepetitioners are entitled to get share in the suit propertyand in the compensation amount and hence the appellate 114815.21wpcourt ought to have restrained the defendants fromwithdrawing the compensation of the acquired suit landsand protect the right of the petitioners qua compensationdetermined in LAR No.335/2012.9]Per contra, the learned counsel for therespondents submit that the Land Acquisition Act iscomplete code in itself and no independent suit ismaintainable for claiming compensation determined underthe Land Acquisition Act and only remedy to the petitionerswas under Section 18 or 30 of the Land Acquisition Act. Thelearned counsel further submits that there can be no interimdirection issued for securing the compensation in anindependent suit. 10]Thus, the question that arises for considerationbefore this Court is that whether an independent civil suitfor share of compensation of the acquired land ismaintainable when the plaintiffs were not before the LandAcquisition Authority or had not filed proceedings underSection 18 and 30 of the Land Acquisition Act, 1894. 124815.21wp11]As regards maintainability of independent civilsuit for claim of share in the compensation of the acquiredland is concerned, the Hon’ble Supreme Court in the case ofG.H.Grant Vs. State of Bihar reported in 1965 DGLS [SC] 99[1966 AIR (SC) 237 = 1965 (2) MLJ 29 has held at parano.19 as under : (19)……. The Collector has no power tofinally adjudicate upon the title tocompensation, that dispute has to be decidedeither in a reference under S. 18 or unders. 30 or in a separate suit. Payment ofcompensation therefore under s. 31 to theperson declared by the award to be entitledthereto discharges the State of itsliability to pay compensation (subject toany modification by the court), leaving itopen to the claimant to compensation toagitate his right in a reference under s. 30or by a separate suit. 12]In the case of Comunidade of Bambolim Vs.Manguesh Betu Kankonkar reported in 2001 (Supp.)Bom.C.R. 99 = 2001 (2) Mh.L.J. 160, the Bombay HighCourt relying upon the judgment in the case of G.H.GrantVs. State of Bihar [supra] has held that a separate suit ismaintainable by a party for determining the right of aparty / qua acquired property, although the party was notbefore the Land Acquisition Authority and had not filed 134815.21wpproceedings under Section 18 or 30 of the Land AcquisitionAct. 13]In the case of Devalibai Nandalya Gavit Vs.Honji Rama Vasawe & Ors. reported in 2011 (6) Bom.C.R.45, the Bombay High Court has also held that the Collectorhas no power to adjudicate finally upon the title of theacquired land and that the dispute has to be decided eitherunder section 30 or in a separate suit. 14]In this regard reference can be made to thejudgment of the Hon’ble Supreme Court in the case ofRajasthan Housing Board and Anr. Vs. Chandi Bai & Ors. inCivil Appeal No.11912 of 2018, decided on 07.12.2018wherein it has held at para no.2, 3, 4 and 21 as under : 21.The remedy of the respondents, if any,was to claim a compensation from Doongra byseeking reference under Section 18 orSection 30 of the Land Acquisition Act or tofile a civil suit against him to recovercompensation on the basis of title. A civilsuit to invalidate the land acquisition isnot maintainable. 144815.21wp15]The Supreme Court in the case of RajasthanHousing Board [supra] has held that the Civil Court had nojurisdiction to decide the validity of the proceedings underthe Land Acquisition Act. However, in the fact situation,held that the person would have right to recover thecompensation on the basis of title by filing separate suit orreference under Section 18 and 30 of the Land AcquisitionAct. The person who was not party to the land acquisitionproceedings and has any right in the acquired lands isentitled to recover compensation from the person who hasreceived it, by filing independent suit.16]Next question that arises for consideration iswhether in an independent suit for partition andcompensation of acquired land an interim order ofinjunction can be passed against the land acquisitionAuthorities not to disburse the compensation amount to theclaimants. It is by now well settled that the Land AcquisitionAct is a complete Code as regards determination of thecompensation and disbursal of the same. 154815.21wp17]In the instant case, the partition suit is filedprior to the acquisition of the joint family property. TheAppellate court has held that the plaintiffs have right in thesuit property and thus it has granted injunction qua suitproperties against the defendants from creating third partyinterest. As regards acquired joint family property, theAppellate Court, in view of the proviso to Section 31 (2) ofthe Land Acquisition Act, has held that in the event the suitsucceeds, the plaintiffs would be entitled to recover the partof compensation which is withdrawn by the defendants.Proviso to Section 31 (2) reads as under : 31. Payment of compensation or deposit ofsame in Court.(2)…Provided also that nothing hereincontained shall affect the liability of anyperson, who may receive the whole or anypart of any compensation awarded under thisAct, to pay the same to the person lawfullyentitled thereto. 18]In the case of Babusso Godu Gaunso Vs.Suryakant Moga Gaunso & others in First Appeal No.49 of1990, decided on 9th October, 1992, the Bombay High CourtBench at Panaji (Goa) at para no.10 has observed as under : 164815.21wp10.Therefore, the right which is alreadyin existence, is recognized by this provisoto Sub-section (2) of Section 31. If aperson claims his share from another personwho has received the compensation, he is notclaiming any special right created by theLand Acquisition Act, 1894 and is claiminghis right which he can establish in theCivil Court. This proposition is no more resintegra. In the case of Shri Deo SansthanChinchwad and others, Appellants v.Chintaman Dharnidhar Deo an another,Respondents (AIR 1962 Bom. 214) a DivisionBench of this Court was pleased to hold asfollows :-“Unless the claim of a person, whois lawfully entitled to a share in thecompensation money, is alreadyadjudicated upon under the provision ofthe Land Acquisition Act or such personhaving had notice of such proceedings,appears therein and fails to assert andprosecute his claim to a share inaccordance with the provisions of thatAct, he would be entitled under Section31 (2) Proviso 3, to file a suit torecover his share from the person whomay have received the whole or any partof the compensation amount awardedunder the Act.” 19]The Land Acquisition Act is complete Code initself and that there can be no injunction against theauthority not to disburse the amount of compensation to theclaimant in an independent suit. However, in a independentsuit, if the Court is of the opinion that the plaintiffs thereinare prima facie entitled to part of the compensation as 174815.21wpclaimed and it is necessary to secure the amount the CivilCourt at an interim stage may pass appropriate ordersdirecting the recipient of the compensation to secure theamount. Interim order is passed in aid of the final order thatcan be passed in suit. The Hon’ble Supreme court in thecase of the State of Orissa Vs. Madan Gopal Rungta decidedon 25.10.1951 held that an interim relief can be grantedonly in aid of and as ancillary to the main relief which maybe available to the party on final determination of his rightsin a suit or proceeding. 20]The Supreme Court in the case of SardarAmarjit Singh Kalra (Dead) by L.Rs. & others Vs. PramodGupta (Smt) (Dead) by Lrs. And others reported in [2003] 3SCC 272 has held at para no.33 as under : 33.… As far as possible, courts mustalways aim to preserve and protect therights of parties and extend help to enforcethem rather than deny relief and therebyrender the rights themselves otiose, “ubijus ibi remedium” (where there is a right,there is a remedy) being a basic principleof jurisprudence. Such a course would bemore conducive and better conform to a fair,reasonable and proper administration ofjustice. 184815.21wp21]In the instant case, the Appellate Court hasobserved that there is no partition between the familymembers and that the plaintiffs have not surrendered theirshare in the suit property as such it has protected theplaintiffs qua remaining suit property. The Appellate Courthas rendered findings that in the compromise decree,Baburao was given 1/4th share in Survey Nos. 5, 6, 7, 59-Aand 102/0 in which the plaintiffs also have share. The shareof the plaintiffs will have to be protected in the instant case.22]Thus, although there can be no injunctionagainst the authority / reference Court from disbursing thecompensation amount as determined under the LandAcquisition Act, the Court can issue directions to theclaimant / defendants before it to preserve the share of thecompensation as the plaintiffs may be entitled. 23]Thus, the directions can be issued to thedefendants to deposit the share of the plaintiffs, on receiptof the compensation amount from the Reference Court. Inthe instant case, the defendants are directed to deposit half
Decision
194815.21wpof the amount of compensation along with accrued interestthereon they would receive from the Reference Court inLAR No.335/2012 within a period of four weeks ofwithdrawing the compensation. 24]With the above directions, the present writpetition is disposed of. [ARUN R. PEDNEKER] JUDGE DDC