THE DEPUTY CHIEF ENGINEER v. SMT. S. RAJALAKSHMI

respondent No.1 in LAC No.48/2017 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

3. Brief facts leading to this appeal are that the claimant's land measuring 1 acre in Sy.No.84 situated at Metagalli Village, Kasaba Hobli, Mysuru was acquired by preliminary notification dated 20.01.2004 followed by final declaration dated 03.02.2005. The Special Land Acquisition Officer passed the award on 16.08.2005 determining the market value of the subject land at Rs.2,50,000/- per acre. - 3 - NC: 2024:KHC:21960-DB MFA No.6079/2021 The possession of the land was taken by the respondents on

09.03.2004. Being aggrieved by the determination of market value by the Special Land Acquisition Officer, the claimant sought reference on 11.02.2014 which was numbered as LAC No.48/2017. The trial Court, vide impugned judgment and award, enhanced the market value of the acquired land at Rs.128/- per square feet along with all statutory benefits. Though the notice of the proceedings was served, respondent No.2 did not file any objections nor adduced evidence before the trial Court. The claimant examined herself as PW-1 and got marked Ex.P1 and Ex.P2. The respondents did not adduce any evidence. On hearing the parties, trial Court awarded compensation of Rs.128/- per square feet. Being aggrieved by the said award, the beneficiary of the acquisition has preferred the above appeal.

4. Sri.N.S.Sriraj Gowda, learned counsel appearing for respondent No.2 submits that the trial Court has committed error in entertaining the reference beyond 90 days. The award notice was served on the claimant on 30.09.2005 and the reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was sought on 11.02.2014. - 4 - NC: 2024:KHC:21960-DB MFA No.6079/2021 Thus, the reference is hopelessly barred by limitation. It is submitted that the trial Court erred in relying on Ex.P1, the award passed in LAC No.87/2015, as respondent No.2 - beneficiary was not arrayed as the respondent in that case. Hence, the said judgment could not be held binding against respondent No.2. It is further submitted that the trial Court is required to consider the factors like, whether the land is situated very near to the city and that the land is potential for residential and industrial use, without considering the same, the trial Court has determined the market value. It is also submitted that respondent No.2 has filed the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') and produced a copy of the notice dated 30.09.2005 which has been served on the original khatedar. Hence, the limitation to seek reference commences from 30.09.2005 and entertaining the belated reference by the trial Court is contrary to Section 18 of the Act. Hence, he seeks to allow the appeal.

5. Per contra, Sri.H.C.Shivaramu, learned counsel appearing on behalf of Sri.Prakasha H.C., learned counsel for respondent No.1 supports the impugned judgment and award - 5 - NC: 2024:KHC:21960-DB MFA No.6079/2021 of the trial Court and submits that respondent No.2 neither filed any objections nor adduced any evidence before the trial Court. Hence, the respondent No.2 cannot be allowed to contend with regard to the limitation and market value of the subject land, etc. It is submitted that the trial Court has rightly placed reliance on Ex.P1 and the lands mentioned in the said LAC No.87/2015 and the land in question are of the same village and have same potential value. It is further submitted that the respondent No.2 has now filed an application seeking to produce alleged copy of notice issued under Section 12(2) of the Act. However, the notice indicates that the same is not served on the claimant. Hence, he seeks to dismiss the appeal.

6. Considering the submissions of both sides and examining the materials on record as well as the trial Court records, the point that arises for consideration is : “Whether the impugned judgment and award calls for any interference”? ANALYSIS

7. It is not in dispute that the claimant's land measuring 1 acre in Sy.No.84 situated at Metagalli Village, - 6 - NC: 2024:KHC:21960-DB MFA No.6079/2021 Kasaba Hobli, Mysuru was acquired and award came to be passed on 16.08.2005 by determining the market value of the subject land at Rs.2,50,000/- per acre. Being aggrieved by the determination of market value by the Special Land Acquisition Officer, the claimant has sought reference under Section 18 of the Act which was entertained and numbered as LAC No.48/2017.

8. In support of the claim, the claimant examined herself as PW-1 and got marked the judgment in LAC No.87/2015 as Ex.P-1 and judgment in LAC No.67/2014 as Ex.P-2. PW-1 states that her land has been acquired and Special Land Acquisition Officer awarded meager compensation and under protest, she received the award amount and sought reference. However, the Special Land Acquisition Officer has not made the reference, hence, she sought reference under Section 18(3)(b) of the Act. She further states that the land of one Sri.Somashekhar has been acquired under the same notification for the same purpose and the land of the said Sri.Somashekhar is situated at Metagalli village. She deposed that the trial Court determined the market value in the case of Somashekhar at Rs.128/- per square feet in LAC No.87/2015, - 7 - NC: 2024:KHC:21960-DB MFA No.6079/2021 her land and the land of Somashekhar are adjacent to each other and similarly situated having same potentiality. She further states that a common award is passed by the Special Land Acquisition Officer in respect of her land and the land of Somashekhar, hence, she sought compensation on par with the one awarded in LAC No.87/2015. She deposed that her land and the land of Somashekhar are fertile lands, having non- agricultural potentiality, situated within the developed area of Mysuru city having high market value. She also deposed that the land has been acquired for public purpose and they being agriculturists, do not have other means for livelihood other than the lands acquired. She further deposed that the market value of land was more than Rs.2.50 Crore, every year it is being increased and presently the market value of the land is more than Rs.5.00 Crore per acre.

9. The perusal of Ex.P-1, the award in LAC No.87/2015 clearly shows that the land in question and land in Ex.P-1 situated adjacent to each other. The subject matter of the land in the present appeal is Sy.No.84 and the subject matter of land in LAC No.87/2015 is Sy.No.80/2 of Metagalli village of Mysuru Taluk. The evidence available on record - 8 - NC: 2024:KHC:21960-DB MFA No.6079/2021 clearly shows that the subject land and the land in LAC No.87/2015 have been acquired under the same notification for the same purpose and both lands have the same potentiality.

10. The Hon'ble Supreme Court in MUDDASANI VENKATA NARSAIAH (D) THROUGH LRS. v. MUDDASANI SAROJANA1, has held that the cross-examination is a matter of substance and not of procedure and the effect of non cross- examination of a witness is that the statement of witness has to be taken to be admitted. Similarly, in VIDHYADHAR v. MANIKRAO AND ANOTHER2, the Hon'ble Supreme Court has held that when a party to the proceeding does not enter into a witness box and states his / her case and does not offer himself / herself for cross-examination by the other side, a presumption would arise that the case set up by him / her is not correct.

11. Admittedly, the appellant, who was respondent No.2 before the trial Court, neither filed any objections nor adduced any evidence to controvert the pleading and evidence 1 (2016) 12 SCC 288 2 (1999) 3 SCC 573 - 9 - NC: 2024:KHC:21960-DB MFA No.6079/2021 of the claimant. Hence, in the absence of anything contrary to disbelieve the evidence of PW-1, we are of the considered view that the trial Court was justified in determining the market value of the acquired land in the instant case at Rs.128/- per square feet with all statutory benefits.

12. Respondent No.2 has contended that the reference is entertained beyond the period of limitation. To support the said contention, the application dated 19.06.2024 is filed under Order XLI Rule 27 of CPC along with said application the copy of the notice dated 30.09.2005 is produced. The affidavit accompanying the said application does not indicate any justifiable reason for non production of the said notice during the trial or at the time of filing the appeal. As per the copy the said notice dated 30.09.2005 issued under Section 12(2) of the Act, the same was served on one Smt.Chikkathayamma W/o.Papegowda. The said notice purportedly bears the thumb impression of said Chikkathayamma. First of all, same being a copy, inadmissible in evidence. Secondly, in the acquisition notification for Sy.No.84, the khatedars/anubhavadars are shown as Nagamma W/o.D.M.Narasimharao, H.S.Sarojamma - 10 - NC: 2024:KHC:21960-DB MFA No.6079/2021 W/o.L.Siddu, Narayanagowda, Jayaramedowda, Papegowda. Chikkathayamma's name is not found in the notification.

13. It is not in dispute that the claimant is the daughter of Nagamma, who acquired the title over the property by way of gift deed. However, the copy notice, which is now produced, does not indicate that the same is either served on the original owner of the land or any of the khatedars or on the claimant. Hence, the copy notice dated 30.09.2005 produced by the respondent No.2 along with the application under Order XLI Rule 27 of CPC does not help respondent No.2. There is no material available on record to indicate that the notice under Section 12(2) of the Act was served on owner/khatedar or anubhavadar, hence, the contention of the respondent No.2 that the reference is barred by limitation deserves no merit and the same is rejected.

14. Sofar as determination of compensation by the trial Court at Rs.128/- per square feet, it is based on the oral testimony of PW-1 and Ex.P-1. The trial Court has recorded its finding that the subject land and the land in Ex.P-1 are adjacent to each other, acquired under the same notification for - 11 - NC: 2024:KHC:21960-DB MFA No.6079/2021 the same purpose. The said finding is based on the evidence available on record and the said finding is neither perverse nor contrary to the material available on record calling for interference in the present appeal.

15. For the aforementioned reasons, we are of the considered view that the trial Court is justified in re- determining the market value of the claimant's land at Rs.128/- per square feet. The application filed by the respondent No.2 under Order XLI Rule 27 of CPC has no merit. The trial Court, vide its order dated 23.03.2015 in LAC No.67/2014, which is marked as Ex.P-2, by exercising its power under Section 18(3)(b) of the Act, directed the Special Land Acquisition Officer to refer the matter to the Civil Court in respect of the subject land. The respondent - Special Land Acquisition Officer has contested the aforesaid proceedings and raised a specific plea of limitation which has been negated by the trial Court and thereafter, impugned judgment has been passed. Admittedly, the respondent No.2 as well as the Special Land Acquisition Officer have not challenged the order dated

23.03.2015, which has attained finality. Hence, now respondent No.2 cannot be allowed to challenge only the - 12 - NC: 2024:KHC:21960-DB MFA No.6079/2021 impugned judgment wherein the market value of the acquired land has been determined. Hence, this Court cannot take cognizance of the document produced along with application, even the document produced along with the application does not indicate that notice under Section 12(2) of the Act is served on the land owner. Hence, the following: ORDER The appeal and the application under Order XLI Rule 27 of the CPC are dismissed. The amount in deposit shall be released to the claimant-respondent No.1 digitally on furnishing of the required documents. No order as to costs. Sd/- JUDGE Sd/- JUDGE RV/BSR List No.: 1 Sl No.: 58