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2006 DIGILAW 731 (MAD)

Vijayalakshmi & Others v. Premkumari & Others

2006-03-15

T.V.MASILAMANI

body2006
Judgment :- (Civil Revision Petition against the fair and decretal orders dated 11.2.2005 in I.A.No.7 of 2005 in O.S.No.3 of 2005 on the file of the Principal District Judge, Cuddalore.) This Civil Revision petition is filed by the defendants 21, 22 and 26 to 29 in O.S.No.3 of 2005 on the file the Principal District Judge, Cuddalore. 2. The respondents/plaintiffs in the said suit filed an interlocutory application in I.A.No.7 of 2005 under Section 151 C.P.C. to stay all further proceedings in L.A.O.P.No.9 of 1993 on the file of the I Additional Sub Court, Cuddalore till the disposal of the said suit. The learned Principal District Judge upon hearing both sides and on the basis of the records of the case granted an order of stay as prayed for. Hence, the revision. 3. The facts leading to the filing of the revision are briefly stated as follows:- The respondents herein filed the suit in O.S.No.3 of 2005 pending on the file of the Principal District Judge, Cuddalore for partition of their 5/33 share in the compensation amount deposited in the above said L.A.O.P.No.9 of 1993. They have based their claim that their father Singaravelu (since deceased) was entitled to 1/3 share in the entire property acquired by the Government and that since he died on 7.1.1958 leaving behind his widow, 7 daughters and 4 sons and they entitled to 5/33 share in the said compensation amount. Since the revision petitioners who are the other heirs of one of the co-owners of the property acquired moved the petition in E.A.No.185 of 2004 to send for the amount in the said L.A.O.P. from the bank, the respondents filed the said suit and obtained the impugned order of stay in I.A.No.7 of 2005 and therefore this revision has been filed challenging the impugned order. 4. Heard Mr. K. Kannan, learned counsel appearing for the revision petitioner and Mr.M.Ilango, learned counsel appearing for the respondents. 5. Learned counsel for the revision petitioners has submitted the following in his argument challenging the impugned orders passed by the court below:- Firstly, he has referred to Section 54 of the Land Acquisition Act 1894 (Central Act No.1 of 1894) and contended that since the said Act is a complete Code in itself, for adjudication of disputes with reference to any proceedings arising under the said Act, a civil suit is barred. Nextly, he has contended that the daughters of the deceased Singaravelu, who did not make any claim before the Land Acquisition Officer, are not entitled to any relief in a civil court. Similarly, they did not include themselves as parties to question the apportionment of compensation amount under Section 30 of the said Act and therefore the compensation amount for the land acquired would be paid only to the claimants who are entitled to the same. Therefore only 4 persons, namely, Balasubramaniam, Ramaswamy, Ramalingam and Ravichandran who got the specific direction from this Court in W.P.No.947 of 1990 for enhancement of the compensation are entitled to receive the same. The plaintiffs in the suit, who did not join with them and who did not seek for reference, have waived their right regarding the said amount. The court below erred in deciding that the petitioners are the legal heirs of Ramalingam, but on the contrary, the revision petitioners who are the wife and children of Ramalingam alone are the legal heirs under Class I to the schedule read with Section 8 of the Hindu Succession Act. Hence he has contended that the petition filed by the respondents herein before the court below was devoid of merits and therefore he has urged that the revision petition has to be ordered as prayed for. 6. Learned counsel for the revision petitioners has cited the decision Ambey Devi v. State of Bihar ( AIR 1996 S.C. 1513 ) in support of his contention that only the claimant who has obtained the order of reference for enhancement of the share of his compensation is entitled to receive the same and that the other co-owners who failed to file any reference in respect of their share cannot seek enhancement of compensation of their share. Therefore he has urged that the respondents who did not take part in the acquisition proceedings under the Land Acquisition Act cannot lay any claim for the enhancement of compensation amount awarded by the court below. The ratio laid in the said decision in paragraph 3 reads as under:- "Valid reference is a pre-condition for the Civil Court to adjudicate the objections raised in the reference application. In this case, it is found by the High Court that the appellant had not made any application under Section 18(1). The ratio laid in the said decision in paragraph 3 reads as under:- "Valid reference is a pre-condition for the Civil Court to adjudicate the objections raised in the reference application. In this case, it is found by the High Court that the appellant had not made any application under Section 18(1). The jurisdiction of the Civil Court to determine higher compensation, as laid down under Section 23 of the Act, would arise only when a valid reference has been made under Section 18 within the prescribed limitation. The jurisdiction of the Court is founded on a valid reference and then the Civil Court gets jurisdiction to determine the compensation on the basis of the objections raised by the claimant." 7. Therefore it was held in the judgment referred supra that filing an application with in the period of limitation in the land acquisition proceedings under Section 18 of the Land Acquisition Act is a condition precedent to make a reference under Section 18 thereunder and that only thereafter under Section 20 of the said Act, the civil court having jurisdiction can issue notice and conduct enquiry as contemplated under the Act. As has been rightly contended by him, if the ratio of the said decision is applied to the facts of this case, the irresistible conclusion would be that since the respondents were not made parties to the land acquisition proceedings referred to above, the court below could not have had any jurisdiction to grant stay of the proceedings in L.A.O.P.No.9 of 1993 on the file of the I Additional Sub Judge, Cuddalore in the suit filed by the respondents for partition. 8. Similarly, learned counsel for the revision petitioners has also cited the decision Kanakarathamma v. State of Andhra Pradesh ( AIR 1965 S.C. 304 ) for the proposition that the court has no jurisdiction to go behind the award of the Land Acquisition Officer and predetermine the quantum of compensation, unless a reference under Section 30 of the Land Acquisition Act for the apportionment of the compensation amount among the claimants was made in accordance with law. Hence, he has urged on the basis of the principle of law laid down therein that the court below had no jurisdiction to grant stay of the proceedings in the land acquisition proceedings referred to above. 9. Hence, he has urged on the basis of the principle of law laid down therein that the court below had no jurisdiction to grant stay of the proceedings in the land acquisition proceedings referred to above. 9. Per contra, the learned counsel for the respondents has contended that since Singaravelu, their father died intestate leaving behind his sons and daughters, the respondents being daughters of the deceased are entitled to succeed to the estate of the deceased in accordance with law. Therefore he has submitted further that in the suit for partition filed by them for 5/33 share in the properties left by Singaravelu, they are entitled to proportionate apportionment in the compensation amount payable towards the estate of the deceased acquired by the Government. Hence, he has urged that the impugned order is valid under law. 10. In this context, learned counsel for the revision petitioners brought to the notice of this court that a comprehensive suit for partition and separate possession of the immovable properties belonging to the family of Ramasamy Pillai and his sons, Shanmugasundaram, Singaravelu, Balasubramanian, was instituted by one of the sons of Singaravelu against the descendants of other two brothers before the Sub Court, Kumbakonam in O.S.No.101 of 2002 and therefore he has contended further that the remedy to get a share in the estate of Singaravelu is available to the respondents herein by impleading themselves as parties to the said suit or to file an application to transfer the suit under question to the file of the said court for joint trial. 11. Further, learned counsel for the revision petitioners has submitted that as per the written statement filed in the said suit, the properties were under valued and the suit is also bad to non-joinder of necessary parties as well as for partial partition and hence he has urged that the respondents can very well work out their rights to get their due share in the properties left by Singaravelu in the said suit. 12. Therefore he has submitted that since the respondents can very well work out their equity in the said suit if they are impleaded as parties to get their 5/33 share allotted, the revision petitioners may be permitted to withdraw the amount of enhanced compensation awarded by the Subordinate Judge in the said land acquisition proceedings. 12. Therefore he has submitted that since the respondents can very well work out their equity in the said suit if they are impleaded as parties to get their 5/33 share allotted, the revision petitioners may be permitted to withdraw the amount of enhanced compensation awarded by the Subordinate Judge in the said land acquisition proceedings. Hence, he has contended that in any view of the matter, the impugned order passed by the court below is not sustainable under law. 13. In view of the fact that the said suit for partition of the family properties has been filed by one of the heirs of the Singaravelu in the court of Principal Subordinate Judge, Kumbakonam, this Court is of the view that both on facts and in law, the respondents have no locus standi to insist for grant of stay in respect of the claim of the revision petitioners in the land acquisition proceedings. If the respondents are in fact entitled to any share in the estate of the deceased Singaravelu, it is still open to them to get their due share either in that suit in O.S.No.101 of 2002 pending before the Principal Subordinate Judge, Kumbakonam or by getting transfer of the suit in O.S.No.3 of 2005 on the file of the Principal District Judge, Cuddalore to the file of the Principal Subordinate Judge, Kumbakonam for being tried jointly along with the above said suit so as to get the same relief as prayed for by them. 14. In any view of the matter, it is seen that the impugned order passed by the court below is liable to be set aside as prayed for in this revision petition and therefore the revision petition is allowed. Consequently, C.M.P.No.5273 of 2005 is closed. However, there shall be no order as to costs.