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2003 DIGILAW 1195 (JHR)

Golak Modak v. Mihir Kumar Chakraborty

2003-09-24

VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the appellant is directed against the impugned judgment and decree dated 17.06.1991 and 27.06.1991 respectively passed in Land Acquisition Reference Case No. 52 of 1989 by Shri Banke Bihari Rai, Land Acquisition Judge, Dhanbad whereby and whereunder the reference under Section 30 of the Land Acquisition Act (hereinafter referred to as the said Act) made by the Land Acquisition Authorities, Dhanbad for deciding the right, title and interest of the applicants-respondent in respect of the acquired land for getting compensation was allowed. 2. The State of Bihar (now Jharkhand) had acquired plot No. 581 of Khata No. 95 having an area of 74 decimals and plot Nos. 585 and 587 of Khata No. 2 having an area of 55 decimals and 11 decimals respectively, i.e. 1.40 acres of land situate in village Alkadiha P.S. Jharia, District Dhanbad for BCCL vide Land Acquisition Case No. 8 of 1979-80/16 of 1981-82 and award No. 65 in respect thereof was prepared in the name of opposite party appellant and the amount of compensation as determined by the Land Acquisition Authorities was paid to the opposite party appellant. A petition under Section 30 of the said Act was filed on 23.06.1989 by the applicants-respondent before the Land Acquisition Authorities in Land Acquisition Case no. 8 of 1979-80/16 of 1981-82 claiming themselves as rightful owner of plot Nos. 585 and 587 aforesaid entitled to get the compensation amount in respect thereof as per the award aforesaid and for a direction to the opposite party appellant to refund the compensation amount so received in respect thereof to the applicants-respondent. 3. The Land Acquisition Authorities referred the petition of the applicants respondent filed under Section 30 to the Land Acquisition Court for adjudication. 4. The case of the applicants respondent is that they are the owner of plot Nos. 585 and 587 of Khata No. 2 having right, title and interest and possession therein and the award No. 65 was wrongly prepared in the name of the opposite party appellant in respect thereof. 4. The case of the applicants respondent is that they are the owner of plot Nos. 585 and 587 of Khata No. 2 having right, title and interest and possession therein and the award No. 65 was wrongly prepared in the name of the opposite party appellant in respect thereof. It is alleged that they have acquired the aforesaid two plots by virtue of the registered sale deed dated 09.03.1960 and they have acquired valid right, title and interest therein and they were in possession thereof till the date of their acquisition and they also stand mutated in respect thereof and had paid rent to the State and rent receipts have been granted to them and award has not been prepared in their favour by the Land Acquisition Authorities in respect thereof and no notice under the provision of the said Act was also ever been served upon them. It is alleged that opposite party appellant has no right, title or interest in the aforesaid two plots and they were never in possession over the same till their acquisition and the award has been wrongly prepared in the name of the opposite party appellant. It is also alleged that the opposite party appellant was not entitled to receive the compensation of the said land and in this view of the matter he may be directed to refund the said amount of compensation to the applicants respondent. 5. The opposite party-appellant had filed rejoinder before the Land Acquisition Court in this reference case stating, inter alia, therein that he was the rightful owner in possession of the aforesaid two plots and the award in respect, thereof was rightly prepared in his name and he is the direct descendant of the original recorded owner and he was inherited the aforesaid two plots. He has further made out a case by way of amendment of his rejoinder that plot Nos. He has further made out a case by way of amendment of his rejoinder that plot Nos. 585 and 587 besides plot No. 581 were acquired by his grandfather Mahanand Modi who had reclaimed paddy fields by cutting earth and prepared culturable land and was in possession till his death which happened about 45 years ago and he was succeeded by his only son one Gosto Modak who was in possession of the said plot till his death which happened in the year 1960 and after his death this appellant has succeeded the said plots and is in possession thereof and thus by continuous uninterrupted possession for more than statutory period adversely to Raimuni Mudian and Ratu Mahto, the appellant had acquired permanent indefeasible right by prescription by continuous adverse possession. It is also alleged that he also made a reference under Section 18 of the said Act which was referred to the Land Acquisition Court giving rise to Land Acquisition Case No. 16 of 1985 and the amount of compensation was enhanced as per order dated 05.09.1988 of the Land Acquisition Court and he has already received the compensation regarding the aforesaid two plots beside, plot No. 581 and the applicants respondent had never made any objection in respect thereof. It is alleged that applicants respondent had no right, title and interest in the aforesaid two plots and they were never in possession over the same. The further case of the opposite party appellant is that the claim of the applicants respondent that they have acquired right title and interest in the aforesaid two plots by virtue of the sale deed dated 09.03.1960 executed by Ratu Mahto is absolutely baseless and unjustified as Ratu mahto and his minor son Sahdeo Mahto had absolutely no right or interest in the said two plots. It is also alleged that Ratu Mahto claims to have acquired the aforesaid two plots by a registered Patta dated 04.06.1943 executed in favour of Raimuni Mudian but in fact the said Patta stands in the name of Ambika Mahtoin and as such neither Ratu Mahto or his vendees had any right title and interest in respect of the said two plots. Lastly it has been alleged that the reference is also barred by limitation. 6. Lastly it has been alleged that the reference is also barred by limitation. 6. In view of the pleadings of the parties and learned Court below formulated the issue which is to the effect as to whether the applicants respondent are the rightful owner of the acquired land appertaining to plot No. 585 and 587 of Khata No. 2 of village Alkadiha entitled to get compensation as per the said award and also whether the award has been wrongly prepared in the name of the opposite party appellant and payment made to him as per the award is wrong and illegal. 7. In view of the evidence oral and documentary on the record the learned Court below held that the applicants respondent are the rightful owner of the aforesaid two plots and they are entitled to get compensation in respect thereof and the award in question in respect of the aforesaid two plots was wrongly prepared in the name of opposite party appellant who had no right, title or interest therein nor was he in possession thereon and the compensation was illegally paid to him. The learned Court below has also held that the claim of the applicants respondent is not barred under the provisions of the Limitation Act. In view of the finding aforesaid the opposite party appellant was directed to refund the amount of compensation in respect of the aforesaid two plots received by him to the applicants respondent. 8. Assailing the impugned judgment it has been submitted on behalf of the appellant that the appellant has inherited the aforesaid two plots as heir of the recorded tenant and he was in possession of the same till the date of its acquisition and the possession of the said land having been taken by the State after their acquisition and award has also been prepared rightly in his name and he has received the compensation under the award on protest and also filed a petition under Section 18 for enhancement of the compensation determined by the Land Acquisition Authorities which was allowed in Land Acquisition Reference Case No. 15 of 1985 though an appeal has been filed by the State before the High Court which bears F.A. No. 252 of 1989 and the said appeal is still sub-judice. It has also been submitted that during the entire period of the proceeding of the acquisition the applicants-respondent kept mum and did not come forward to lay his claim in respect of the said land. It has also been submitted that Land Acquisition Authorities had found the possession of the appellant over the said plots at the time of the acquisition and in view of the evidence on the record brought by the appellant the learned Court below has taken an erroneous view holding the right, title and interest as well as the possession of the applicants-respondent thereof, it has also been submitted that the sale deed in favour of the applicants-respondent in respect of the aforesaid two plots is a simply paper transaction and it was never given effect to and the applicants- respondent never came in possession over the aforesaid two plots and thus the applicants-respondent has no right, title and interest in the aforesaid two plots and they were never in possession over the same and viewed thus, the impugned judgment is unsustainable. 9. Refuting the contention aforesaid it has been submitted by the learned counsel for the applicants-respondent that the applicants-respondent had acquired the aforesaid two plots by virtue of the sale deed stated 09.03.1960 executed by Ratu Mahto as self as well as on behalf of his minor son Sahdeo Mahto and he has acquired right, title and interest in the aforesaid two plots by virtue of the said sale deed and he also came in possession over the same and since then he is continuing in possession over the said two plots. It has also been submitted that the said land was acquired by Ambika Mahtoin, the wife of Ratu Mahto aforesaid by virtue of the registered Patta dated 04.06.1943 executed by the then landlord Raimuni Mudian and the vendors were in possession of the said property since the execution of the registered Patta till the date of the sale in favour of the applicants-respondent. It has also been contended that the applicants-respondent had no knowledge of the acquisition of the aforesaid two plots and when he came to know about it he filed the petition under Section 30 of the said Act. It has also been contended that the applicants-respondent had no knowledge of the acquisition of the aforesaid two plots and when he came to know about it he filed the petition under Section 30 of the said Act. It has also been submitted that there is no document on the record to evidence the fact that the appellant is the owner of the document on the record to evidence the fact that the appellant is the owner of the aforesaid two plots inherited by him as the descendants of the recorded tenant and the award has been wrongly prepared in the name of the appellant in respect of the aforesaid two plots. It has also been contended that the appellant has changed the nature of his case of acquiring his right and title in respect of the aforesaid two plots by amendment of his rejoinder deliberately introducing the fact that his grandfather had reclaimed the said land and converted the same into paddy field and since then his grandfather and his descendants are coming in possession over the aforesaid plots and perfecting title by adverse possession and due to the vaccinating stand of the appellant it is clear that the appellant had no title in respect of the suit land at all nor was he ever in possession thereon. Lastly it has been contended that no period of limitation has been prescribed for reference under Section 30 of the said Act and in support of his contention reliance has been placed upon the ratio of the case of Dr. G.H. Grant v. The State of Bihar, AIR 1966 SC 237 . 10. It is pertinent to mention at the very outset that plot Nos. 585 and 587 having an area of 55 decimals and 11 decimals respectively appertaining to Khata No. 2 besides plot No. 581 having an area of 74 decimals of Khata No. 95 were acquired by the State of Bihar (now Jharkhand) for BCCL vide Land Acquisition Case No. 8 of 1979-80/16 of 1981-82 and award on 65 in respect thereof was prepared in the name of the appellant and the amount of compensation as determined by the Land Acquisition Authorities was paid to the appellant. The appellant had made the reference under Section 18 of the said act for enhancement of the compensation so determined by the Land Acquisition Authorities, which was allowed vide Land Acquisition Reference Case No. 15 of 1985 vide judgment dated 05.09,1988 and the compensation was enhanced. The State has preferred an appeal in respect thereof which is said to be still subjudice before this Court. A consolidated award No. 65 was prepared in respect of plot No. 581 as well as of plot Nos. 585 and 587 aforesaid. The applicants-respondent do not claim any compensation in respect of plot No. 581 appertaining to Khata No. 95. The applicants- respondent claims the compensation amount received by the appellant in respect of plot Nos. 585 and 587 on the ground that the said award in the name of the appellant has been wrongly prepared and the appellant has no right, title and interest in respect thereof. The applicants-respondent claim their right, title and interest in the aforesaid two plots by virtue of the sale deed dated 09.03.1960 (Ext. 1) executed by Ratu Mahto in respect thereof. It has also been asserted by the applicants- respondent that the aforesaid two plots were acquired by virtue of the registered Patta dated 04.06.1943 (Ext. 3) executed by the then landlord in favour of the wife of Ratu Mahto aforesaid. Their case further is that the wife of Ratu Mahto were in possession of the aforesaid two plots by virtue of the said registered Patta and, thereafter, the applicants-respondent are in coming over the possession by virtue of the sale deed aforesaid. The appellant had made out a case that he has inherited the aforesaid two plots as descendants of the recorded tenant of the aforesaid two plots and by amendment he also introduced an alternative case that his grandfather had reclaimed the said land and converted it into paddy field and since then his grandfather and his descendants including this appellant are in possession over the said two plots. It is relevant to mention at the very outset that there is no document on the record brought by the appellant to evidence the fact that the appellant is the descendant of the recorded tenant of the aforesaid two plots. It is relevant to mention at the very outset that there is no document on the record brought by the appellant to evidence the fact that the appellant is the descendant of the recorded tenant of the aforesaid two plots. There is also no documentary evidence on the record that the appellant has ever paid any rent in respect of the aforesaid two plots either to the ex-landlord or to the State of Bihar. It also appears that the appellant was also not mutated in respect thereof O.W. 3 Golak Modak, the appellant, has deposed that since his hosh he is in cultivating possession over the same. However, in his evidence on oath he has not disclosed that he has inherited the said two plots being the descendants of the recorded tenant in respect thereof. O.W. 3 has also not whispered in his evidence on oath that his grandfather has reclaimed the said land and has converted it into a paddy field. The appellant claims the aforesaid two plots by virtue of his possession over the same and to have acquired his title therein by virtue of his continuous possession. It is equally pertinent to mention here that O.W. 3, the appellant has also not deposed as to when his grandfather had reclaimed the said land and converted it into a paddy field. O.W. 1 Khantu Modi and O.W. 2 Khedan Bapri have also deposed in their evidence that the appellant was in possession over the aforesaid two plots and prior to him his ancestors were in cultivating possession over the same O.W. 2 has also deposed that he had cultivated the aforesaid two plots for a period of 12 years on behalf of the appellant prior to their acquisition. It is also relevant to mention here that the appellant in his evidence has not stated regarding perfecting his title over the aforesaid two plots by adverse possession. As against this the applicants-respondent claims to have acquired the aforesaid two plots by virtue of Ext. 1, the sale deed dated 09.03.1960, executed by Ratu Mahto in their favour and the aforesaid two plots were acquired by registered Patta dated 04.06.1943 by the wife of Ratu Mahto from the Ex-landlord and since then Ratu Mahto was in possession over the said two plots and after the sale deed the applicants-respondent are in possession over the same. 1, the sale deed dated 09.03.1960, executed by Ratu Mahto in their favour and the aforesaid two plots were acquired by registered Patta dated 04.06.1943 by the wife of Ratu Mahto from the Ex-landlord and since then Ratu Mahto was in possession over the said two plots and after the sale deed the applicants-respondent are in possession over the same. AW 4 Mihir Kurnar Chakraborty has deposed that Ambika Mahtoin is the wife of his vendor Ratu Mahto and at the time of the execution of the sale deed (Ext. 1) she had died. He has also deposed that he had acquired the aforesaid two plots by virtue of the sale deed (Ext. 1) executed by Ratu Mahto as self as well as on behalf of his minor son Sahdeo Mahto. He has also deposed that Ambika Mahtoin has acquired the said land by registered Patta dated 04.06.1943. AW 1 Jhatu Rewani and AW 2 Gobind Mahto have deposed regarding the possession of the applicants-respondent over the said plots from the date of the said deed and prior to that the possession of Ratu Mahto thereon. AW 4, the applicants- respondent had further deposed that the award of the aforesaid two plots has been wrongly prepared in the name of the appellant. His evidence is further to the effect that when the applicants-respondent did not get the compensation of the said land they made enquiry and it transpired that the award in respect thereof has been wrongly prepared in the name of the appellant and, thereafter, he preferred his claim by filing a petition under Section 30 of the said Act. He had also deposed that the appellant had no concern whatsoever with the aforesaid two plots. He has also further deposed that the applicants-respondent had acquired several other plots along with the aforesaid two plots by virtue of Ext. 1, the sale deed dated 09.02.1960, AW 4 has also deposed that they had cultivated the aforesaid two plots till 1988 and, thereafter the BCCL has taken physical possession of the said two plots. In view of the evidence referred to above it appears that Ambika Mahtoin had acquired the aforesaid two plots by virtue of Ext. 1, the sale deed dated 09.02.1960, AW 4 has also deposed that they had cultivated the aforesaid two plots till 1988 and, thereafter the BCCL has taken physical possession of the said two plots. In view of the evidence referred to above it appears that Ambika Mahtoin had acquired the aforesaid two plots by virtue of Ext. 3, the registered Patta dated 04.06.1943 and she was in possession over the same and after the death her heirs i.e. her husband Ratu Mahto as self and on behalf of her minor son Sahdeo Mahto had transferred the aforesaid two plots along with several other plots to the applicants-respondent by virtue of Ext. 1, the sale deed dated 09.03.1960. It further appears that the applicants-respondent came in possession over the aforesaid two plots by virtue of the said sale deed and they have acquired right, title and interest therein. The case of the appellant that he has right, title and interest in the suit property and he is in possession over the same does not stand established at all in view of the evidence on the record. I, therefore, hold in view of the evidence on the record agreeing with the finding of the learned Court below that the appellant had no right, title and interest in the aforesaid two plots and he was never in possession over the same and the award in his name has been wrongly prepared by the Land Acquisition Authorities in respect of the aforesaid two plots, I further hold agreeing with the finding of the learned Court below that the applicants-respondent have acquired valid right, title and interest in the aforesaid two plots by virtue of Ext. 1, the sale deed dated 09.03.1960 and they were in possession over the same at the time of the acquisition and as such the applicants-respondent are entitled to get the compensation as determined by the Land Acquisition Authorities and as enhanced by the Land Acquisition Court. The question of limitation has no application in this case in view of the fact that no period of limitation has been prescribed for a reference under Section 30 of the said Act and the ratio of the case of Dr. G.H. Grant (supra) is conclusive in which it has been observed that there is no period of limitation prescribed for submitting a reference under Section 30 of the said Act. G.H. Grant (supra) is conclusive in which it has been observed that there is no period of limitation prescribed for submitting a reference under Section 30 of the said Act. The claim of the applicants-respondent cannot be negatived simply because they have not earlier taken steps for getting the compensation of the aforesaid two plots. The learned Court below has properly weighed and considered the evidence on the record and has rightly held that the award has been prepared wrongly in the name of the appellant who had no title or possession in respect of the aforesaid two plots and the applicants-respondent are the rightful owner having right, title and interest in the aforesaid two plots at the time of the acquisition. Thus the applicants-respondent are entitled to get the compensation is respect of the aforesaid land on their acquisition. 11. There is no merit in this appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed. The appeal is hereby dismissed. In the facts and circumstances of this case there shall be no order as to costs.