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Bombay High Court · body

2013 DIGILAW 269 (BOM)

Jaisingrao Abasaheb v. Pratapsing Wamanrao Rane

2013-02-01

U.V.BAKRE

body2013
JUDGMENT This appeal is filed by respondents no. 1 to 5 of Land Acquisition Case No. 77 of 1989 against the Judgment and Award dated 14/08/2001 passed by the learned Additional District Judge, Mapusa in the said case. 2. It is seen from the records that the appeal has been shown as dismissed as against Respondents no. 3, 4 and 7 on the ground that they were not served and no steps were taken to serve them within the time fixed. However, it is noticed that Respondents no. 3 and 4 are none else than Respondents no.2(1) and 2(2) who are duly served. It is further seen that Respondent no.7 is respondent no.2(6) who has also been duly served. It is, therefore, clear that the appeal has been wrongly shown as dismissed as against Respondents no. 3, 4 and 7. It is seen that Respondent no.2(7) is unmarried daughter of deceased Respondent no.2 who could not be served and the appeal has been dismissed as against her. However, she is from the set of the claimants who are duly represented by the learned Advocate Mr. C. Mascarenhas and therefore her interest is protected by the said set of claimants. 3. The parties shall be referred to in the manner in which they appear in the cause title of the said Land Acquisition Case No. 77 of 1989. The appellants no. 2 and 3 are the legal representatives of deceased respondent no.2 numbered as respondents no. 2(a) and 2(b) in the said Land Acquisition case. 4. Facts giving rise to the appeal, in short, are as follows: Government had acquired land admeasuring 11255 square metres from Survey No. 28 (part) and 9825 square metres from Survey No. 805(part) situated at Latambarcem village of Taluka Bicholim for construction of Left Bank Main Canal of Tillari Irrigation Project. Compensation to be paid to the interested parties was determined by Special Land Acquisition Officer by award made on 30/1/1985. However, as there was dispute between the interested parties regarding the compensation awarded for the above acquired land, the learned Special Land Acquisition Officer made reference under Section 30 of the Land Acquisition Act, 1894 (L.A. Act, for short) which gave rise to the said Land Acquisition Case No. 77 of 1989. 5. There were three sets of claimants in the said case. One was the Applicant, the second was of respondents no. 5. There were three sets of claimants in the said case. One was the Applicant, the second was of respondents no. 1 to 5 and the third was of respondents no. 6 to 11. 6. The applicant claimed that the acquired land from survey no. 28 (200 hands from the nalla) and from survey no. 805 belonged to his late father Wamanrao Sardessai and that they are absolute owners of the said property and therefore the entire compensation should be paid to him. The applicant had further claimed an amount of Rs. 10,000/- towards the cost of the wood and the trees and also compensation at the rate of Rs. 50/- per square metre on account of loss of earning, alleging that the land was fertile. 7. The respondents no. 1 to 5 claimed that the applicant on one side and respondent no.1 on the other side, by virtue of an agreement dated 09/04/1990, agreed to own and possess specific areas of the said survey holdings no. 28 and 805, to the exclusion of other. According to them, in respect of survey no. 805, the southern portion as shown under letter 'C' in the plan annexed to the said agreement belongs to the respondent no. 1 and his brothers and out of this portion, a part admeasuring 2625 square metres has been acquired and the compensation pertaining to this part is payable to the respondent no. 1 and his brothers. They further alleged that in respect of the same survey no. 805, the southern plot shown under letter 'D' admeasuring 41700 square metres belongs to the applicant and from this portion a part admeasuring 4600 square metres has been acquired and the compensation in respect of this part is payable to the applicant. In respect of survey no. 28, the respondents no. 1 to 5 claimed that an area of 6605 on the northern side shown under letter 'A' in the plan annexed to the agreement dated 9/4/1990 belongs to the respondents no. 1 to 5 and out of this portion , a part admeasuring 1300 square metres has been acquired and compensation in respect of this part is payable to the respondents no 1 to 5. They stated that as per the said agreement, the remaining area admeasuring 56095 square metres from survey no. 1 to 5 and out of this portion , a part admeasuring 1300 square metres has been acquired and compensation in respect of this part is payable to the respondents no 1 to 5. They stated that as per the said agreement, the remaining area admeasuring 56095 square metres from survey no. 28 belongs to the applicant and a part admeasuring 9925 square metres from this portion has been acquired and the compensation in respect of this part is payable to the applicant. They therefore prayed that compensation be accordingly apportioned between the applicant and the respondents no. 1 to 5. 8. The respondents no. 6 to 11 claimed that an area of 11255 square metres from survey no. 28/0 falls within 200 haths (cubics) from the nallah which is boundary of the said survey holding and which was originally owned and possessed by late Wamanrao Sardessai. The said respondents further claimed that there was partition between the applicant and the respondents no. 6 to 11 by virtue of Consent Decree dated 19/9/1995 in Special Civil Suit No. 49 of 1985 passed the learned Civil Judge, Senior Division, Bicholim on 19/09/1995, in terms of which the shares between them have been fixed at 45% to the applicant and 55% to the respondents no. 6 to 11 respectively. They further claimed that the acquired area of 9825 square meters from survey no. 805/0 also falls within 200 haths (cubics) from the nallah which is the boundary limit and that the said property has also been partitioned in terms of the Consent Decree in the proportion of 45% and 55% respectively. The respondents no. 6 to 11 therefore claimed the compensation as per their share, in terms of above proportion. 9. Accordingly, the learned Reference Court framed issues. The applicant examined himself as AW.1 and he produced the certificate of Inventario Orphonologico no. 5808/47 along with translation as Exhibit AW.1/A–Colly; the agreement dated 09/04/1990 along with plan as Exhibit AW.1/B. In the cross-examination of AW.1, the Compromise Decree dated 19/9/1995, in Special Civil Suit No. 49 of 1985 was taken on record. The respondents no. 6 to 11 examined the respondent no.7 as RW.1 and he produced the same Compromise Decree in Special Civil Suit no. 49 of 1985 as Exhibit RW.1/B. He produced indices of land in Form no.3 of survey holdings no. The respondents no. 6 to 11 examined the respondent no.7 as RW.1 and he produced the same Compromise Decree in Special Civil Suit no. 49 of 1985 as Exhibit RW.1/B. He produced indices of land in Form no.3 of survey holdings no. 28/0 and 805/0 as RW.1/D, the judgment and order passed by the Additional Collector as Exhibit RW.1/E. In his cross-examination, he produced the joint application for Compromise filed by the parties in Special Civil Suit No. 49 of 1985 as Exhibit RW.1/D1. The respondents no. 1 to 5 then examined the respondent no. 1 as RW.2. He has produced the Forms no. I & XIV of survey holdings no. 28/0, 805/0 and 806/0 as Exhibit RW.2/A-Colly. and the order of the Awal Karkun in a Dispute Case as Exhibit RW.2/B. The respondents no. 1 to 5 examined respondent No. 5 as RW.3 and he produced a certificate along with translation as Exhibit RW.3/A. They also examined one surveyor namely, Prazeres Gonsalves as RW.4. 10. Upon consideration of the entire evidence on record, the Reference Court has observed that the learned Counsel appearing on behalf of the applicant has fairly conceded that the earlier claim of the applicant to the entire land and compensation was abandoned by him. She also found that even otherwise, the evidence on record does not support the case of the applicant to claim the entire land and compensation. The Reference Court held that in terms of the agreement dated 09/04/1990 which is at Exhibit AW.1/B the applicant has agreed for apportionment of awarded amount between him and the family of Appasaheb Rane that is of Respondent no.1. She found that an admission was brought out in the evidence of AW.1 that there was a suit filed by Respondent no. 6 against the applicant and other persons being Special Suit No. 49 of 1985. The Reference Court found that Compromise Decree was drawn in the said suit by which 55% was allotted to the respondents no. 6 to 11 whereas balance 45% was allotted to the other persons including the applicant. The Reference Court found that AW.1 has also admitted that the property involved in the present proceedings was part of the said Civil Suit in which the Compromise Decree came to be drawn. The learned Reference Court, therefore, held that respondents no. 6 to 11 whereas balance 45% was allotted to the other persons including the applicant. The Reference Court found that AW.1 has also admitted that the property involved in the present proceedings was part of the said Civil Suit in which the Compromise Decree came to be drawn. The learned Reference Court, therefore, held that respondents no. 6 to 11 have not been able to dispute the validity of the said Agreement dated 09/04/1990. The learned Reference Court found from the evidence of RW. 1 that he had asserted his claim to the compensation in the proportion of 55% in view of the said Consent Decree. It was found that the agreement dated 09/04/1990 was not acceptable to RW.1. However she further found that there was no denial by RW.1 that the property surveyed under nos. 28 and 805 belonged to the family of Wamanrao Sardessai alone. The Reference Court therefore held that the Respondents no. 6 to 11, as legal representatives of late Wamanrao Sardessai from his second marriage, did not dispute the claim of the applicant for apportionment, the applicant being the issue of late Wamanrao Sardessai from his first marriage. The Reference Court further found that RW.2 has admitted that the land to the extent of 200 cubics on either sides of the nallah belonged to Wamanrao Sardessai. From the evidence of RW.3, the learned Reference Court found that though he was not a party to the agreement Exhibit AW.1/B, he was agreeable to the terms agreed upon by his brother with the applicant. From the evidence on record, the learned Reference Court held that said agreement dated 09/04/1990, which is inter-se between the applicant and Respondent no. 1, would be restricted to 45% share of the applicant by virtue of Consent Decree in Suit no. 49 of 1985. Since the applicant had agreed the claim of Respondents no. 1 to 5 to the acquired land, the Reference Court held that the applicant would necessarily have to agree to apportionment of their 45% share with respondents no. 1 to 5 since the respondents no. 6 to 11 have been held to be entitled to 55% of share in the property. Therefore, the Reference Court held that the compensation shall be apportioned between the applicant and respondents no. 6 to 11 in the proportion of 45% and 55% respectively and in so far as Respondents no. 1 to 5 since the respondents no. 6 to 11 have been held to be entitled to 55% of share in the property. Therefore, the Reference Court held that the compensation shall be apportioned between the applicant and respondents no. 6 to 11 in the proportion of 45% and 55% respectively and in so far as Respondents no. 1 to 5 are concerned their right to apportionment would be restricted to 45%, which the applicant would have otherwise alone been entitled to. Hence, it has been held that the respondents no. 6 to 11 are entitled to 55% of the compensation awarded by the Land Acquisition Officer vis-a-vis the acquired land from survey no. 28 and 805 each and that the applicant and Respondents no. 1 to 5 are entitled to balance 45% of the compensation so awarded by the Land Acquisition Officer, in the proportion of the areas described by the Reference Court earlier. The Respondents no. 1 to 5 are aggrieved by the impugned judgment and award. 11. It is seen from the records that the appeal has been shown as dismissed as against Respondents no. 3, 4 and 7 on the ground that they were not served and no steps were taken to serve then within the time fixed. However, it is noticed that Respondent no. 3 is none else than Respondent no.2(1) who is duly served and Respondent no.4 is none else than Respondent no.2(2) who is also duly served. It is further seen that Respondent no.7 is respondent no.2(6) who has also been duly served. It is, therefore, clear that the appeal has been wrongly shown as dismissed as against Respondents no. 3, 4 and 7. It is seen that Respondent no.2(7) is unmarried daughter of deceased Respondent no.2 who could not be served and the appeal has been dismissed as against her. However, she is from the set of the claimants who are duly represented by the learned Advocate Mr. C. Mascarenhas and therefore her interest is protected by the said set of claimants. 12. The learned Counsel appearing on behalf of Respondents no. 1 to 5 submitted that the Reference Court could not have held that the respondents no. 1 to 5 and applicant be jointly entitled to 45% compensation after holding that the agreement dated 09/04/1990 is valid. C. Mascarenhas and therefore her interest is protected by the said set of claimants. 12. The learned Counsel appearing on behalf of Respondents no. 1 to 5 submitted that the Reference Court could not have held that the respondents no. 1 to 5 and applicant be jointly entitled to 45% compensation after holding that the agreement dated 09/04/1990 is valid. He pointed out that under the said agreement which is at Exhibit AW.1/B, the applicant and the respondent no. 1 had apportioned independent area to themselves, exclusively. The learned Counsel further submitted that the learned Reference Court ought to have given a finding about the extent of area acquired from exclusive portions belonging to Respondents no. 1 to 5 and the applicant. He further submitted that the Reference Court has erred in awarding 55% compensation to the Respondents no. 6 to 11 without holding as to what portion of the area exclusively belonging to the applicant was acquired. The learned Counsel appearing on behalf of the Respondents no. 1 to 5 pointed out that the respondents no. 1 to 5 were not parties to the suit and the consent decree dated 19/9/1995 and hence it was not binding upon them. He submitted that the Reference Court having not disbelieved the evidence of expert witness ought to have granted 100% compensation to the respondents no. 1 to 5 in respect of 1375 square metres from survey no. 28/0 and 1400 square metres from survey no. 805/0. According to the learned Counsel, the Reference Court has mixed up the agreement dated 09/04/1990 and Consent Decree dated 19/09/1995 ignoring that the same are independent of each other. He further submitted that the learned Reference Court ought to have appointed a Commissioner to identify the exact area acquired from the portions belonging to the Respondents no. 1 to 5 and the applicant when it was clearly spelt out that the property to the extent of 200 haths (cubics) on either side of Nallah belonged to the applicant and beyond that, the land belonged to the respondents no.1 to 5. He, therefore, prayed that the case be either remanded to the Reference Court with a direction to appoint Commissioner to identify the exact area or in the alternative to set aside the impugned judgment and award and grant compensation to the respondents no. 1 to 5 as calculated by the expert witness. 13. He, therefore, prayed that the case be either remanded to the Reference Court with a direction to appoint Commissioner to identify the exact area or in the alternative to set aside the impugned judgment and award and grant compensation to the respondents no. 1 to 5 as calculated by the expert witness. 13. On the other hand, the learned Counsel appearing on behalf of respondents no. 3 to 6 submitted that Wamanrao Rane Sardessai was the original owner of the said property and that respondents no. 6 to 11 are his legal heirs and they had filed application for compromise in Special Civil Suit no. 49/85 and a compromise decree has been made by virtue of which the share of respondents no. 6 to 11 is 55% and that of applicant, his sisters and their spouses is 45%. He therefore contended that the agreement between the applicant and the respondents no. 1 to 5 can only pertain to the said 45% share of the applicant. He therefore submitted that there is no merit in the appeal and if at all there is any dispute, then 55% share of respondents no. 6 to 11 will have to be separated and appeal will have to be dismissed as far as their share is concerned and if necessary the case be remanded for determining the exact shares of applicant and respondents no. 1 to 5 in the remaining 45% of the share. 14. I have gone through the records and proceedings in the light of arguments submitted by the learned Counsel for the parties. 15. It is seen that in the cross-examination of RW.1-Udaysingh Wamanrao Rane Sardessai, who is respondent no.7, he has stated that the entire property bearing survey nos. 28 and 805 belongs to the family of Wamanrao Rane Sardessai only and that in the Civil Suit No. 49/85 filed by him and others, Pratapsingh Wamanrao Rane (applicant) who is the son of the first wife of his father Wamanrao Rane Sardessai was taken as one of the co-owners of the property involved in that suit and that 45% of the right to the property is owned by said Pratapsingh Wamanrao Rane and his sisters namely Saraswati Ghatge and Lalitadevi Bhosle and their husbands namely Gajantrao and Anandrao, respectively. He has further stated that he is claiming 55% of the right for him and on behalf of his brothers and his mother. He has stated that for the said proportion, he is relying on the decree of the Court. He has admitted that in between Survey no. 28 and 805, there is a nallah. He has admitted the existence of the agreement dated 09/04/1990. However, he has added that the said agreement is not acceptable to him. 16. AW.1, Pratapsingh Rane (applicant) has deposed in his examination-in-chief that there was a dispute between him and Jaisingrao Abasaheb Rane (respondent no.1) in respect of survey no. 806, 805 and 28 due to which an agreement was executed between him and said Jaisingrao whereby certain portion was agreed as belonging to him and certain portion to said Jaisingrao Abasaheb Rane and his family. However, in his cross examination he has stated that there is a nallah in the suit property and that on either side of this nallah, area extended to 200 cubics belongs to his father. 17. RW.2- Jaisingrao Rane (Respondent No.1) has deposed that there is a nallah running from East to West in between the property surveyed under no. 28 and 805 and that as per the agreement Exhibit AW.1/B executed between him and the applicant, it was decided that 200 hands from either side of the nallah of survey nos. 28 and 805 shall belong to the applicant and his family whereas land beyond 200 hands shall belong to his family (i.e. the family of Jaisingrao). He has produced the Forms no. I to XIV of survey no. 28, 805 and 806 as Exhibit RW.2/A Colly. He has stated that initially the name of the father of the applicant namely Wamanrao Rane Sardessai was not included in the original record of rights and there was a dispute case pending before the Mamlatdar of record and rights under no. DC/120. He has stated that the Survey Officer gave the order that Wamanrao Rane Sardessai will have right to 200 hands on either side of the nallah. He has produced the order of the Survey Mamlatdar as Exhibit R.W.2/B. He has stated that they admit the right of Wamanrao Rane Sardessai to the extent of 200 hands on eight side of the nallah and that the land registration certificate of the said property accordingly shows like that. He has produced the order of the Survey Mamlatdar as Exhibit R.W.2/B. He has stated that they admit the right of Wamanrao Rane Sardessai to the extent of 200 hands on eight side of the nallah and that the land registration certificate of the said property accordingly shows like that. RW.2 has stated that the property other than 200 hands on either side of nallah and property survey no. 806 are enjoyed by them from the time of their ancestors. He has specifically stated that he maintains that the land to the extent of 200 hands on either side of the nallah is of the applicant and his family and the remaining property is of his family, including survey no. 806. The evidence of RW.2 has not been challenged by the applicant. In his cross-examination by the learned Advocate for the Respondents no. 1 to 5, RW.2 has admitted that on either side of the nallah, land to the extent of 200 cubics belonged to Wamanrao Rane Sardessai who had children. He could not say anything to the suggestion that there was a decree that Pratapsingh Rane is entitled to 45% share and Udaysingh Rane is entitled to 55% share. 18. In the Form no. 3 of survey no. 28, produced by RW.1 as Exhibit RW.1/D, it is mentioned that land with the width of 200 hands on the eastern side of nallah belongs to Wamanrao Rane Sardessai whereas remaining land belongs to Jaisinghrao Rane. In the Form No. 3 of Survey no. 805, it is mentioned that land with the width of 200 hands from the Western side of the nallah belongs to Wamanrao Rane Sardessai and remaining land belongs to Jaisinghrao Rane. Same entries are existing in the Forms no. I and XIV of survey nos. 28 and 805, which are produced by RW.2 as Exhibit RW.2/A Colly. 19. RW.4 Shri Prazeres Gonsalves has stated that as per the land registration certificate land was standing in the name of Wamanrao Rane Sardessai, on both sides of nallah to the extent of 200 cubics and that 200 cubics on either side of nallah was 90 metres on either sides. He has further stated that excluding the said 90 metres portion on either side of nallah which was of Wamanrao Rane Sardessai, Jaisinghrao Rane and his family was having 1375 square metres of the property bearing survey no. He has further stated that excluding the said 90 metres portion on either side of nallah which was of Wamanrao Rane Sardessai, Jaisinghrao Rane and his family was having 1375 square metres of the property bearing survey no. 28 and 1400 square metres of the property bearing survey no. 805, out of the total acquired land. He has stated that Wamanrao Rane Sardessai was having 8425 square metres of land from survey no. 805 and 10850 square metres of land from survey no. 28. 20. The total area of survey holding no. 28/0, before acquisition, was 62,700 square metres. An area of 11225 square metres has been acquired from survey no. 28/0. The total area of survey no. 805, before acquisition, was 48725 square metres and the area of acquired land from the survey no. 805 is 9825 square metres. As is seen from the sketch of the acquired land, the acquired land of the present case from survey nos. 28 and 805 runs from West to East direction. The nallah lies between survey no. 28/0 and 805 cutting the same that is to say the nallah runs in North to South direction, between the two survey holdings. Thus, some acquired land lies within 200 hands(cubics) from the nallah on both the sides and remaining beyond 200 hands (cubics) till the Eastern as well as Western boundaries of survey nos. 28 and 805 respectively. The question therefore arises as to how much area of the acquired land lies within 200 hands (cubics) from nallah on either side and how much acquired land lies beyond 200 hands(cubics) till the Eastern boundary of Survey no. 28 and Western boundary of survey no. 805. The learned Reference Court has not addressed itself to this crucial and material question though the Reference Court has observed that AW.1 (applicant) has admitted that an area extending to 200 cubics on either side of the nallah belonged to his late father and that even RW.2 (respondent no.1) and RW.3 (respondent no. 5) have also admitted that land to the extent of 200 cubics on either side of nallah belonged to Wamanrao Rane Sardessai. 21. As per the depositions of AW.1(applicant), respondent no. 1 (RW.2) and respondent no.5(RW.3), land within 200 hands (cubics) on either side of nallah belonged to Wamanrao Rane Sardessai that is the father of applicant and of respondents no. 21. As per the depositions of AW.1(applicant), respondent no. 1 (RW.2) and respondent no.5(RW.3), land within 200 hands (cubics) on either side of nallah belonged to Wamanrao Rane Sardessai that is the father of applicant and of respondents no. 6, 7, 9, 10 and 11 and land beyond 200 hands (cubics) till Eastern boundary of survey no. 28 and Western boundary of survey no. 805 belonged to respondents no.1 to 5. It is only according to RW.1(Udaysingh) that is respondent no.7 who is the step brother of the applicant, the entire property bearing survey no. 28 and 805 belonged to the family of Wamanrao Rane Sardessai alone. Therefore, RW.1 claims that in terms of the Consent Decree, right to 55% belongs to respondents no. 6 to 11 whereas right to balance 45% belongs to the applicant and his sister. However it should be kept in mind that except the Consent Decree in Special Suit No. 49/85 there is nothing in favour of the respondents no. 6 to 11. This Consent Decree is based upon an agreement (consent terms). The respondent no.1 to 5 are not parties to the said consent terms and hence Consent Decree cannot bind them. 22. The applicant (AW.1) who was party to the said consent terms, however, admits that there is a nallah in the suit property and on either side of nallah an area extending to 200 cubics belonged to his father that is Wamanrao Rane Sardessai. Therefore as per the above admission of the applicant (AW.1), the consent terms in Special Suit No. 49/85 must relate only to the area of survey no. 28 and 805 extending to 200 cubics on either side of nallah since the applicant and his sisters on one side and respondents no. 6 to 11 on other side, all, claim through/under Wamanrao Rane Sardessai. The applicant has chosen not to contest this appeal. 23. As already stated above, there is no corroboration to the oral testimony of RW.1 but there is corroboration to testimony of AW.1, through RW.2 and RW.3. Besides, there is support of entry in the other rights column of survey forms no. 3, which are at Exhibit RW.1/D as well as promulgated survey Forms no. I and XIV, which are at Exhibit RW.1/A-Colly, in which it is specifically mentioned in respect of survey no. Besides, there is support of entry in the other rights column of survey forms no. 3, which are at Exhibit RW.1/D as well as promulgated survey Forms no. I and XIV, which are at Exhibit RW.1/A-Colly, in which it is specifically mentioned in respect of survey no. 28, that land of the width of 200 hands towards the Eastern side of the nallah belongs to Pratapsingh whereas balance lands belongs to Jaisinghrao and in respect of survey no. 805 that land of the width 200 hands towards Western side of the nallah belongs to Wamanrao Rane Sardessai whereas remaining land belongs to Jaisingrao. 24. By preponderance of probabilities, therefore, the claim of applicant to 45% of the share in the acquired land and that of the respondents no. 6 to 11 to 55% of the same, as per the consent terms, can pertain only to that portion of the acquired land from survey no. 28 and 805 which is within 200 hands (cubics) from the nallah on the either side and which originally belonged to Wamanrao Rane Sardessai. Since respondents no. 1 to 5 claimed their right under the agreement dated 09/04/1995, they would be entitled to balance acquired land from survey no. 28 and 805 beyond 200 hands (cubics) on either side of nallah. 25. In view of the fact that property to the extent of 200 hands (cubics) on either side of nallah belongs to the applicant and respondents no. 6 to 11 and beyond that belongs to respondents no. 1 to 5, it becomes utmost necessary to identify the exact area acquired from the said portions belonging to the applicant and respondents no. 6 to 11 on one side and to respondents no. 1 to 5 on the other side. For this exercise to be done, an expert Court Commissioner would be required to be appointed. Order XXIV Rule 9 of the C.P.C. provides for appointment of Commissioner. Since there is dispute as regard identity and extent of the area belonging to the parties, the Reference Court should appoint such a expert Commissioner preferably a trained surveyor. 26. The impugned judgment and award, therefore, is not sustainable. 27. Hence, the appeal is allowed. (a) The impugned judgment and award dated 14/08/2001 is quashed and set aside. The case is remanded to the Reference Court. 26. The impugned judgment and award, therefore, is not sustainable. 27. Hence, the appeal is allowed. (a) The impugned judgment and award dated 14/08/2001 is quashed and set aside. The case is remanded to the Reference Court. (b) The Reference Court shall appoint a Court Commissioner, preferably an expert surveyor to identify the exact area acquired from survey nos. 28 and 805 to the extent of 200 hands (cubics) on either side of nallah and beyond that up to the Eastern and Western boundaries of the said survey holdings and to file report with plan. (c) The Reference Court shall give opportunity to the parties to cross examine the Court Commissioner if they desired to do so. (d) The Reference Court shall dispose of the Reference in view of the observations made by this Court above, accordingly. (e) Appeal stands disposed of accordingly with no order as to costs. (f) Parties to appear before the Reference Court on 25/2/2013 at 10.00 a.m.