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2005 DIGILAW 499 (PNJ)

Food Corporation Of India v. Sohan Lal

2005-04-07

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. The Food Corporation of India (for brevity the judgment debtor - petitioner) has approached this Court by invoking Article 227 of the Constitution challenging order dated 16.11.2004 passed by the learned Addl. District Judge, Hoshiarpur vide which the application filed by the legal heirs of the decree holder under Order XXI Rule 15 read with Order I Rule 10 and Section 151 of the Code of Civil Procedure, 1908 (for brevity the Code) has been allowed. It is pertinent to mention that decree in favour of Parshotam Lal-decree holder, was passed in lieu of the compensation of land measuring 33 kanals 6 marlas owned by one Dr. Sohal Lal Syal and Parshotam Lal Syal in equal shares. The land was acquired on 10.1.1978 and possession was taken on 2,2,1978 by the judgment debtor-petitioner, The Collector announced his award on 16,4,1979, In the reference made under Section 18 of the Land Acquisition Act (for brevity the Act) the learned Addl. District Judge vide his award dated 17,10,1980 enhanced the compensation of the acquired land to the tune of Rs. 200/- per marla and payment of the enhanced compensation was released to Dr. Sohan Lal and Parshotam Lal. However, they still filed R.F.A. No. 227 of 1981 and compensation was enhanced further to the tune of Rs, 420/- per marla besides granting benefit of Sections 23-1 A, 23(2) and 28 of the Act, Parshotam Lal thereafter expired and was survived by Smt, Krishna Syal, widow, three sons and a daughter namely Sunil Kumar, Anil Kumar, Rakesh Kumar and Ms. Adarsh Bawa. 2. Ms. Adarsh Bawa being daughter and L.R. of Parshotam Lal filed execution application for recovery of her 1/5th share out of the share of her father in accordance with the enhanced compensation awarded by this Court in R.F.A. No. 227 of 1981 to the tune of Rs. 420/- per marla. The application was resisted and was pending. During the pendency of the application tiled by Ms, Adarsh Bawa, three sons and the widow also filed an application under Order XXI Rule 15 read with Order I Rule 10 and Section 151 of the Code, After considering the reply and the arguments of the parties, the application has been allowed by over-ruling the objection with regard to the limitation. The operative part of the order of the Id. Addl. The operative part of the order of the Id. Addl. District Judge reads as under: "...in the present case, application by one of the legal heirs of Parshotam Lal claiming share had been filed and pending adjudication for claiming her share from the amount of enhanced compensation payable to Parshotam Lal and the same application by Smt. Adarsh Bawa had been filed within limitation, One of the legal heir i.e. Adarsh Bawa having already filed application for claiming her share out of the compensation payable to Parshotum Lal deceased-claimant, within limitation and the said application was pending adjudicating at which stage the other legal heirs of Parshotam Lal filed the present application for claiming their proportionate share from the enhanced amount of compensation payable to Parehotam Lal deceased-claimant, therefore, the period of limitation is not to be counted from the filing the present application by the other legal heirs but is to be calculated from the date the earlier application had been filed by one of the legal heir i.e. Adarsh Bawa for claiming her share from the amount of enhanced compensation payable to deceased-claimant Parshotam Lal and as has already been noticed, the earlier application filed by Adarsh Bawa one of the legal heirs within limitation. The present application of other legal heirs for claiming the amount of compensation of their shares out of the compensation payable to Parshotam Lal deceased-claimant therefore, cannot be said to be barred by limitation and is legally maintainable. Both the objections of the respondents are accordingly declined and the respondents are directed to make the payment of the share of the compensation payable to present applicants out of the share of compensation payable to deceased-claimant Parshotam Lal, en or before 18,12.2004." 3. Ms. Deepli Purl, learned counsel for the JD-petitioner has argued that the period of limitation which is required to the applied to the applications filed by the successors or decree holder respondent nos. 3,4 and 5 would run from the date they have filed the application i.e. 2.6.2003 and no benefit of the application filed by one of the LRs. Ms. Adarsh Bawa could be granted as her application was within the period of limitation for making claim of l/5th share to the enhanced compensation as ordered by this Court in RFA No. 227 of 1981 decided on 21.4.1988. Ms. Adarsh Bawa could be granted as her application was within the period of limitation for making claim of l/5th share to the enhanced compensation as ordered by this Court in RFA No. 227 of 1981 decided on 21.4.1988. According to the learned counsel once the application has been filed on 2.6.2003 after a delay of number of years the same should have been dismissed as time barred. 4. After hearing the learned counsel I am of the considered view that a composite award has been announced in favour of the predecessor - in - interest of the respondent. It is well settled principle that a co-sharer is owner of every part of the land and would be considered to be in possession by a fiction of law, A similar question was considered by the Supreme Court in the context of a co-sharer seeking reference under Section 18 of the Land Acquisition Act and on the basis of the benefit granted to such a co-sharer the others have been held entitled to file execution application for enhanced compensation. The afore-mentioned question was posed by the Supreme Court in the case of A. Vishwanatha Pillai and Ors. v. The Special Tehsildar and Ors., The views of the Supreme Court can be quoted with advantage from the last para of the judgment which reads as under: "When one of the co-owners or coparceners made a statement in his reference application that himself and his brothers are dissatisfied with the award made by the Collector and that they are entitled to higher compensation, it would be clear that he was making a request, though not expressly stated so but by necessary implication that he was acting on his behalf and on behalf of his other co-owners or coparceners and was seeking a reference on behalf of other co-owners as well. What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under Section 18 they are equally entitled to receive compensation pro rata as per their shares. What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under Section 18 they are equally entitled to receive compensation pro rata as per their shares. The Courts below committed manifest error in refusing to pass an award and payment thereof to the appellants merely on the ground that there was no mention in this regard to the reference application or two of them sought reference in respect of two awards and the last one made no attempt in their behalf." 5. The principle that all the co-share are owner of every part of the land by fiction of law and considered to be in possession can be applied to the facts and circumstances of the present case. Once one of the co-sharer has made a claim to the extent of l/5th share for enhanced compensation there is no reason why the other L.Rs. would not be entitled to make similar claim. Such a claim cannot be defeated by taking the shelter behind the provisions of the Limitation Act. Therefore, there is no merit in this petition. Dismissed.