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2003 DIGILAW 1244 (JHR)

Bholu Mahato v. Putki Devi

2003-10-14

VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeo Narayan, J. 1. These appeals at the instance of the opposite parties-appellant are directed against the analogus impugned judgment and decree dated 21.7.1990 and 6.8.1990 passed in Land Acquisition Reference Case Nos. 2 of 1990 and 3 of 1990 by Shri B.B. 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 petitioners-respondent in respect of the acquired land under award Nos. 59(Gh) and 61 in Land Acquisition Case No. 24 of 1984-85 for getting compensation were allowed. 2. The State of Bihar (now Jharkhand) had acquired plot Nos. 1, 5, 8, 19, 38. 51 and 194 having in all the area of 5.54 acres appertaining to Khata No. 12 situate in village Sapta PS Baliapur, district Dhanbad for B.C.C.L for rehabilitation of the displaced persons vide Land Acquisition Case No. 24 of 1984-85 and award No. 59(Gh) in respect thereof was prepared in the name of opposite parties-appellant and Rs. 32.855/- being the amount of compensation as determined by the Land Acquisition Authorities was paid to the opposite parties- appellant. The State of Bihar (now Jharkhand) have also acquired plot Nos. 2, 3, 9, 10, 11, 12, 27, 29, 97, 174, 176, 181. 186, 183, 190 and 191 of Khata No. 12 of the said village for the said purpose vide Land Acquisition Case No. 24 of 1984-83 and award No. 61 was also prepared in respect thereof in the name of the opposite parties-appellant and a sum of Rs. 1,38,666/- as compensation determined by the Land Acquisition Authorities was paid to the opposite parties- appellant. Award No. 59(Gh) has its co-relation with Land Acquisition Reference Case No. 3 of 1990 corresponding to First Appeal No. 185 of 1990 whereas award No. 61 has its co-relation with Land Reference Case No. 2 of 1990 corresponding to First Appeal No. 186 of 1990. 3. Two petitions under Section 30 of the said Act were filed on 16.9.1989 in Land Acquisition Case No. 24 of 1984-85 by the petitioners-respondent claiming herself as rightful owner of the land aforesaid under acquisition entitled to get half of the compensation amount in respect thereof as per the awards aforesaid and to refer the matter to the Land Acquisition Court for adjudication. 4. The Land Acquisition Authorities referred the petitions of the petitioners-respondent filed under Section 30 of the said Act to the Land Acquisition Court for adjudication. 5. The facts averred in both the reference petition by the petitioners- respondent are similar regarding her right, title, interest and possession in respect of the land under acquisition in respect of which award Nos. 59(Gh) and 61 were made. The case of the petitioners-respondent is that the land under acquisition under both the awards aforesaid stands jointly recorded in the name of Darwari Mahto son of Prasadi Mahto and Bisto Mahto son of Bhikhoo Mahto and the opposite parties-appellant are the descendants of Bisto Mahto. It is alleged that Darwari Mahto aforesaid had died leaving behind his two sons, namely, Rena Mahto and Bauri Mahto and daughter Sukni Mahtoin and Rena Mahto and Bauri Mahto died issueless leaving Sukni Mahtoin as their heir and the petitioner-respondent Putki Devi is the daughter of Sukni Mahtoin. It is alleged that Sukni Mahtoin died in the year 1968 leaving petitioner-respondent Putki Devi as her only heir. It is also alleged that the opposite parties-appellant have only half share in the land under acquisition and they are only entitled to get half of the compensation whereas they have received the entire amount of compensation under both the awards aforesaid. It is also alleged that the petitioners-respondent has half share in the land under acquisition and she is entitled to get half of the compensation amount determined by the Land Acquisition Authorities under the awards aforesaid. It has also been alleged that she had filed an objection under Section 9 of the said Act before the Land Acquisition Authorities but no award was prepared in her name. It is also alleged that the petitioner-respondent was in joint possession with the opposite parties- appellant over the land in acquisition and rent in respect thereof was also, paid jointly. 6. No objection/rejoinder was filed by the opposite parties- appellant in that land reference cases aforesaid. 7. The learned Court below has framed the following issue for adjudication in this case : "whether the applicant (Putki Devi) has got right, title and interest to the extend of 1/2 share in the acquired lands of Khata No. 12 of village Sapta and she is entitled to get 1/2 share in the compensation awarded to the opposite party for the same ? 8. 8. In view of the oral and documentary evidence on the record the learned Court below came to the finding that Sukni Mahtoin had succeeded to the interest of her brothers Rena Mahto and Bauri Mahto dying issueless and she became an absolute owner in respect thereof under the provisions of Hindu Succession Act and the petitioner-respondent Putki Devi is the daughter of Sukni Mahtoin aforesaid and on her death in the year 1968 she had succeeded the said property. It has also been held by the learned Court below that possession of one co- sharer over the property, under acquisition shall be deemed that all the co- sharers are in possession thereon and the absence of actual physical possession of the petitioner-respondent has no bearing in the absence of any pleading of the opposite parties-appellant regarding her ouster and perfecting their title by adverse possession. On the basis of the aforesaid finding the learned Court below held that the petitioners-respondent here right, title and interest in the land under acquisition to the extent of half therein and she is entitled to get compensation to the extent of half under both the awards aforesaid. In view of the finding aforesaid the learned Court below allowed the reference in favour of the petitioner- respondent. 9. Assailing the impugned judgment it has been submitted by the learned counsel for the opposite parties-appellant that both the awards have been rightly prepared in favour of the opposite parties-appellant as they have perfect right, title and interest therein and Purcha (Ext. C) if the revisional survey stands in their name alone. It has also been submitted that the petitioner-respondent was never in possession of the land under acquisition and the learned Court below did not consider this aspect of the matter and has erred in allowing the reference. It has also been submitted that opposite parties- appellant have acquired an indefeasible title with respect to the land under acquisition and even if there was any defect in the title the same became perfected by remaining in possession openly and adversely for more than the statutory period to the knowledge of all concerned including the petitioner- respondent and her predecessor-in-interest, if any. It has also been submitted that the remedy lies with the petitioner-respondent by filing a suit for declaration of her title and claim of half interest in the land under acquisition. It has also been submitted that the remedy lies with the petitioner-respondent by filing a suit for declaration of her title and claim of half interest in the land under acquisition. It has also been contended that the petitioner- respondent in her evidence has admitted the tact that she has never cultivated the land in dispute and she also does not stand mutated in respect thereof which is sufficient to come to the finding that the petitioner-respondent has no right, title interest and share in the land under acquisition. 10. Refuting the contention aforesaid it has been submitted by the learned counsel for the petitioners-respondent that there is no dispute in respect of the fact that the land of Khata No. 12 under acquisition stands jointly recorded in the name of Darwari Mahto and Bisto Mahto. It is also an admitted fact that opposite parties-appellant are the descendants of Bisto Mahto aforesaid. There is also no dispute in respect of the fact that Darwari Mahto died leaving behind his two sons, namely, Rena Mahto and Bauri Mahto and one daughter Sukni Mahtoin and Rena Mahto and Bauri Mahto died issueless leaving behind Sukni Mahtoin as their heirs and Sukni Mahtoin died in the year 1968 leaving behind his only daughter Putki Devi, the petitioner-respondent and the witnesses examined on behalf of the opposite parties-appellant have admitted the aforesaid facts and in this view of the matter petitioner-respondent Putki Devi has right, title and interest in the land under acquisition. It has also been contended that the opposite parties-appellant have not filed any objection/rejoinder/written statement in the reference proceeding before the Land Acquisition Court making out a case of ouster of the petitioners-respondent from the suit" property and perfecting their title by adverse possession and in this view of the matter the opposite parties-appellant cannot be said to have absolute title in respect of the entire land under acquisition and it is a settled law that possession of one co-sharer shall be deemed to be the possession on behalf of all the co-sharers. It has also been submitted that Purcha of the revisional survey in respect of the land under acquisition prepared in the name of opposite parties-appellant has no bearing as it is not a document of title. It has also been submitted that Purcha of the revisional survey in respect of the land under acquisition prepared in the name of opposite parties-appellant has no bearing as it is not a document of title. Lastly it has been contended that the petitioner-responded has right, title and interest in the land under acquisition to the extent of half and thus she is entitled to get half of the compensation amount as determined by the Land Acquisition Authorities and both the awards exclusively prepared in the name of the opposite parties-appellant are illegal, invalid and incorrect and, therefore, there is no infirmity in the finding of the learned Court below. 11. It is pertinent to mention at the very outset that the land of Khata No. 12 of village Sapta, PS Baliapur, district Dhanbad was acquired by the State of Bihar (now Jharkhand) for B.C.C.L. vide Land Acquisition Case No. 24 of 1984-85 and the award No. 59(Gh) for an area of 5.54 acres of land of Khata No. 12 and award No. 61 for an area of 9.78 acres of Khata No. 12 v/ere prepared in the name of opposite parties-appellant exclusively and sum of Rs. 32,855/- and Rs. 1,33,666/- as compensation determined by the Land Acquisition Authorities under award No. 59(Gh) and award No. 61 respectively were paid to the opposite parties-appellant. The petitioner-respondent Putki Devi filed a petition on 16.9.1989 under Section 30 of the said Act in Land Acquisition Case No. 24 of 1984-85 before the Land Acquisition Authorities to refer the matter to the Land Acquisition Court to decide that she has right title and interest to the extent of half in the land under acquisition by virtue of the heir and descendant of recorded tenant Darwari Mahto in respect thereof and she is entitled to half of the compensation amount aforesaid and the Land Acquisition Authorities , accordingly, referred the matter under Section 30 of the said Act to the Land Acquisition Court which gave rise to Land Reference Case Nos. 3 of 1990 and 2 of 1990 respectively. It id pertinent to mention at the very outset that the opposite parties-appellant did not file any objection/rejoinder/written statement in either of the Land Reference Cases aforesaid before the Land Acquisition Court. 3 of 1990 and 2 of 1990 respectively. It id pertinent to mention at the very outset that the opposite parties-appellant did not file any objection/rejoinder/written statement in either of the Land Reference Cases aforesaid before the Land Acquisition Court. Therefore, there is no counter version of the opposite parties- appellant disputing the right, title and interest of the petitioner- respondent in respect of the land under acquisition. However, five witnesses including opposite parties-appellant Nabin Mahto have taken oath in this case for opposite parties-appellant to dispute the right title and interest of the petitioner-respondent. 12. Let us now scan the evidence on the record. The petitioner-respondent Putki Devi has examined herself as AW 1. She has deposed that the land under acquisition was recorded jointly in the name of Bisto Mahto and Darwari Mahto and the opposite parties-appellant are the descendants of Bisto Mahto aforesaid. She has further deposed that Darwari Mahto died leaving behind his two sons, Rena Mahto and Bauri Mahto and a daughter Sukni Mahtoin. She has also deposed that Rena Mahto and Bauri Mahto died issueless leaving behind Sukni Mahtoin and she is the daughter of Sukni Mahtoin being her sole heir. Her evidence is further to the effect that the lands under acquisition were in the joint possession of both the parties and the rent in respect thereof was also paid jointly. However, in para 5 of her cross- examination she has deposed that she has not herself cultivated the land but she used to go over the land with her mother Sukni Mahtoin. She has further deposed that Sukni Mahtoin died about 20 years ago which comes to the period of year 1970, It, therefore, appears that Sukni Mahtoin had succeeded the properties left by her two brothers on their death and she became a perfect owner thereof as per the provisions of Hindu Succession Act, 1956. She has also deposed that she has right title and interest In the land under acquisition to the extent of half, OW 1 Haru Mahto examined on behalf of the opposite parties-appellant in para 2 of his evidence has admitted that Darwari Mahto had two sons, namely, Rena Mahto and Bauri Mahto and a daughter Sukni Mahtoin. She has also deposed that she has right title and interest In the land under acquisition to the extent of half, OW 1 Haru Mahto examined on behalf of the opposite parties-appellant in para 2 of his evidence has admitted that Darwari Mahto had two sons, namely, Rena Mahto and Bauri Mahto and a daughter Sukni Mahtoin. He has also deposed that both the sons of Darwari Mahto had predeceased him but in para 4 of his cross-examination he has contradicted himself by deposing that after the death of Darwari Mahto and Bisto Mahto their sons were jointly cultivating the land under acquisition. Therefore, his evidence that Rena Mahto and Bauri Mahto had pre-deceased Darwari Mahto is palpably false and incorrect. OW 1 has further admitted that Rena Mahto and Bauri Mahto had died issueless and after their death Sukni Mahtoin had died OW 2 in para 6 of his evidence has deposed that the sons of Bisto Mahto and Darwari Mahto were in joint cultivation of the land under acquisition alter the death of Darwari Mahto and Bisto Mahto. He has also deposed that Rena Mahto and Bauri Mahto are the sons of Darwari Mahto and they died issueless leaving behind their sister Sukni Mahtoin. He has also deposed in para 7 of his evidence that Sukni Mahtoin has died about 10 years ago i.e. in the year 1980. OW 1 has deposed in para 3 of his evidence that Putki Devi, the petitioner-respondent is the daughter of Sukni Mahtoin but she was not in cultivating possession of the land under acquisition. OW 2 and OW 5 have deposed that they do not know Putki Devi. OW 5 has further deposed that he cannot say as to whether Sukni Mahtoin had a daughter named Putki Devi. OW 3 Nabin Mahto is one of the opposite parties-appellant. He has deposed that Darwari died issueless and after his death his brother Bisto Mahto succeeded the land under acquisition. The evidence of this witness is palpably false and incorrect and the same stands contradicted by OW 1 and OW 2 referred to above. However, in para 3 of his evidence he has deposed that Putki Devi is the daughter of Sukni Mahtoin but they were never in possession over the land under acquisition. The evidence of this witness is palpably false and incorrect and the same stands contradicted by OW 1 and OW 2 referred to above. However, in para 3 of his evidence he has deposed that Putki Devi is the daughter of Sukni Mahtoin but they were never in possession over the land under acquisition. In para 6 of his cross-examination he has the audacity to say that he cannot say that Darwari had a daughter named Sukni Mahtoin. He has also deposed that he cannot say as to whether Putki Devi is the daughter of Sukni "Mahtoin. Therefore, the evidence of OW 3 is a highly unreliable and equally unacceptable. It, therefore, appears from the evidence on the record that Darwari Mahto died leaving behind his two sons, namely, Rena Mahto and Bauri Mahto and daughter Sukni Mahtoin and, thereafter, Rena Mahto and Bauri Mahto also died issueless leaving behind Sukni Mahtoin as their heir who had acquired right, title and interest in respect of the land under acquisition to the extent of their share. It further appears that Putki Devi is the daughter of Sukni Mahtoin aforesaid. I, therefore, hold agreeing with the finding of the learned Court below that petitioner-respondent Putki Devi has acquired valid right, title and interest in the land under acquisition on the death of her mother Sukni Mahtoin. The case of ouster of Putki Devi in respect of the land under acquisition as well as perfecting the title in respect thereof by the opposite parties- appellant by adverse possession in respect thereof has no bearing in this case in absence of any pleading in respect thereof in view of the fact that no objection/rejoinder/written statement has been filed by the opposite parties- appellant in this case. The absence of actual physical possession over the land under acquisition by petitioner-respondent Putki Devi does not negate her right, title and interest therein in view of the settled proposition of law that possession of one co-sharer enures, for the benefit of all the co-sharers. I, therefore, see no illegality in the impugned judgment requiring an interference therein. The petitioner-respondent has valid right title and interest in the land under acquisition to the extent of half therein and she is entitled to receive half of the compensation amount under both the awards. I, therefore, see no illegality in the impugned judgment requiring an interference therein. The petitioner-respondent has valid right title and interest in the land under acquisition to the extent of half therein and she is entitled to receive half of the compensation amount under both the awards. Therefore, both the wards have been wrongly prepared in favour of opposite parties-appellant in respect of the entire land under acquisition. The petitioner-respondent is, therefore, entitled to get half of the compensation amount under both the awards. 13. There is no merit in these appeals and they fall. The impugned judgment of the learned Court below is hereby affirmed. These appeals are dismissed, However, there shall be no order as to costs in the facts and circumstances of this case. Opposite parties-appellant are directed to refund the half of the compensation amount received by them under the said awards to the petitioner- respondent within three months failing which the petitioner-respondent shall recover the said amount in accordance with law.