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2013 DIGILAW 688 (KAR)

Meenaxi v. Pandurang Bhimrao Laxmeshwar

2013-06-14

S.N.SATYANARAYANA

body2013
JUDGMENT S.N. Satyanarayana, J.—Appellants in Miscellaneous Appeal No. 105/2011 on the file of the I Additional District and Sessions Judge, Dharwad has come up in this miscellaneous second appeal impugning the judgment and decree dated 26/06/2012 passed therein. The peculiar facts and circumstances of the case leading to this miscellaneous second appeal are as under:-- Appellants herein are respondents 1 to 4 in Misc. Case No. 67/2010 on the file of the Principal Senior Civil Judge, Hubli, which was initiated pursuant to reference under Section 31 of the Land Acquisition Act. The said proceedings is with reference to right to receive compensation for 9 plots formed in R.S. No. 3 situated at Gokul village, Hubli taluk. The fact that the aforesaid land belonged to the family of respondents in the said proceedings and the said land was acquired by KIADB for upgradation of Hubli Air Port is not in dispute. It is also not in dispute that pursuant to said acquisition, a rival claim was made by petitioner in Misc. Case No. 67/2010 contending that he is an agreement holder in respect of the suit property having acquired the right to purchase the same under agreement of sale dated 27/08/1984 having paid full consideration to the family of respondents, he is entitled to compensation awarded for the said land and in the said proceedings. 2. It is also seen that subsequent to agreement of sale and prior to acquisition of land by KIADB, the said land was converted into residential plots after getting the land converted for non-agricultural purpose, nearly 59 plots were sold to different persons and only 9 plots were left unsold. In Misc. Case No. 67/2010, under Section 31 of the Act, rights of the parties were adjudicated and an order was passed holding right of the petitioner to receive compensation for the unsold plots. The said finding is subject-matter of the appeal which was challenged by the respondents therein who felt aggrieved by the said order. Though the respondents were required to file the appeal in the appropriate Court, i.e. in the High Court, they wrongly invoked the jurisdiction of District Court, Hubli to impugn the judgment and decree passed in Misc. Case. 67/2010. 3. Though the respondents were required to file the appeal in the appropriate Court, i.e. in the High Court, they wrongly invoked the jurisdiction of District Court, Hubli to impugn the judgment and decree passed in Misc. Case. 67/2010. 3. In the said proceedings they suffered an adverse order and later, having realised that they have committed blunder in approaching the district court instead of this court to challenge the said order, have come up in this Miscellaneous Second Appeal. In this appeal they have sought for setting aside the judgment passed by the Additional District and Sessions Court Dharwad in the proceeding initiated by themselves on the ground that the proceedings initiated by them was in a court having no jurisdiction to entertain the same and the decree passed therein is nullity. In support of that, they tried to rely on several judgments. However, when this appeal had come up for admission, learned counsel appearing for the respondents also came up before this Court with objection regarding maintainability of this appeal inasmuch as the decree passed by the District Judge is nullity. Both the parties to this proceedings admit that the judgment and decree passed by the I Additional District and Sessions Judge, Hubli, in Misc. Case No. 105/2011 while sitting in judgment over the order passed in Misc. Case No. 67/2010 on the file of the Principal Senior Civil Judge, Hubli, is nullity. 4. In that view of the matter, this Court feel that question of hearing this matter for admission does not arise and the matter is required to be sent back and while doing so, it is to be confirmed that the judgment and decree passed by the I Additional District and Sessions Judge, Hubli, in Misc. Appeal No. 105/2011 is nullity. The learned counsel appearing for the appellant would bring to the notice of this Court the decision rendered by this Court in the matter of Sannakariyappa v. Laksh-makka, reported in 1967 (2) MLJ 629 wherein under such circumstances, this Court has held as under:-- Where an appeal was wrongly filed in the District Court, the decision of District Court would be without jurisdiction. The proper course to be followed in the second appeal to the High Court is to direct the District Court to report to return the memo of appeal for presentation to the proper Court applying Order 7 Rule 10 read with Section 107, CPC. Following the said judgment it is hereby ordered that the judgment and decree passed in Misc. Appeal No. 105/2011 on the file of the I Additional District and Sessions Judge, is set aside and the matter is remanded back to the lower appellate Court. In the remanded matter, the District Judge shall return the appeal memo to the appellant to be filed before the Court having jurisdiction to entertain the same within the time frame fixed therein. Accordingly, this miscellaneous second appeal is disposed of. It is made clear that returning the appeal memo and fixing the date to refile the same before appropriate Court shall be done within one month from the date of receipt of this order.