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2014 DIGILAW 178 (ORI)

Nirakar Samal v. Nisakar Samal

2014-03-18

R.DASH

body2014
JUDGMENT This appeal is against the Order Dated 13.9.2012 passed by the Learned Civil Judge (Senior Division), Jaipur in I.A. No.160 of 2011 arising out of C.S. No.68 of 2011. 2. The Appellant is the Plaintiff-Petitioner in the suit for partition in which, he claims 1/6th share in the suit schedule property. It is claimed that during pendency of the suit, the Appellant came to know about display of a notice for compulsory acquisition of AC.0.110 of land, out of plot No.415 under Khata No. 172 of Mouza Patharapara showing R-1 (D-1 in the suit) as the sole owner. This plot forms part of the plaint schedule land in which Appellant has got 1/6th share. Since R-1 tried to grab the entire compensation amount, the Appellant filed the interim application with prayer to restrain R-2 the Collector-cum-Competent Authority Land Acquisition Officer, National High Way, Cell, Jaipur from disbursing the entire compensation amount to R-1. 3. It is not in dispute that the Plaintiff & 0-1 to 0-5 are the sons & daughter of late Judhistir Samal, who has left behind the suit schedule properties. R-1 filed objection taking the stand that after death of the father, Judhistir, there was severance of joint status &, in the year 1989, there was an amicable partition in which suit lot No.3 property fell to the share of R-1 of which the plot under acquisition forms a part. Therefore, it is claimed, R-1 alone is entitled to get the entire compensation amount. Learned Trial Court has passed the .impugned order refusing to restrain• disbursement of the compensation amount but directing Opp. Party R-1 to furnish an undertaking that in the event partition of the suit property is allowed then R-1 shall refund the Petitioner's share in the amount of compensation with 6% interest. . 4. Being dissatisfied, the Appellant Petitioner has challenged the impugned order contending that the same suffers from non-application of judicial mind, that due weightage to the materials on record has not been given, & that this being a suit for partition & the land under acquisition being a part of the joint family properties, interest of all the co-sharers would be best protected, if the compensation amount is not disbursed to anyone of the co-sharers. 5. 5. Respondent No.1, in his objection, has contended, inter alia, that the property under acquisition having vested absolutely in the Government, suit for partition in respect of that property is no more maintainable & the Land Acquisition Act, 1894 being a special Act having provisions like Section 30 of the said Act to deal with the matters on apportionment of compensation, a suit for partition in respect of the compensation amount is not maintainable. 6. The impugned order reflects that the landed properties, which are subject-matter of the suit for partition, stand recorded under several khatas showing separate recording of the suit properties in the name of the parties. The fact of amicable partition has been admitted by the co-sharers including the Appellant in Rent Case No.3135/167. There are also some sale transactions effected by some of the parties to the suit admitting the fact of amicable partition. The land which is under acquisition stands recorded in the name of R-1. The Learned Court below is of the opinion that recitals in the sale deeds admitting amicable partition have been made to facilitate the respective parties to sell specific portion of the suit property & therefore such recitals cannot be conclusive proof of prior partition. So far the entries made in the rent case regarding prior partition •is concerned, the Court below is of the view that at this stage it cannot be said on the basis of such entries that there has been a prior partition, more so when all RORs taken together indicate that there has been inequitable distribution of property. With, such observation, the Learned lower Court has held that there is a strong prima facie case made out by the Plaintiff Appellant. Regarding balance of convenience, the Learned lower Court has taken into consideration the fact that the plot under acquisition was recorded in M.S. ROR published in 1993 as 'Huda' giving rise to a presumption that at the time of its publication, there was no house over that plot &, therefore, the house under acquisition is presumed to have been constructed by R-1. According to R-1, after the amicable partition, he has constructed a house over plot under acquisition & had been using it as his dwelling house. According to R-1, after the amicable partition, he has constructed a house over plot under acquisition & had been using it as his dwelling house. Verifying the voter list of the years 1984, 1995, 1999 & 2010 of Mouza-Namatikiri, Patharapada, the Learnec lower Court has observed that the Appellant No.1 is residing in Namatikiri whereas R-1 is residing in Mouza-Patharapada. The Appellant does not appear to have taken plea that the house under acquisition is the ancestral house of the joint family: Appellant's contention is that the acquired property being a part of joint property, possession thereof by one co-parceners enures to the benefit of all the co-parceners. Learned Trial Court rejecting the said submission has taken the view that since R-1 is facing imminent dispossession from the property under acquisition & would be rendered homeless, the balance of convenience leans in favour of R-1. For the same reason the Learned lower Court has opined that R-1 would suffer irreparable injury, if he is restrained from receiving the awarded amount. 7. Considering the submissions made by the Learned Counsels & the materials on record placed before this, Court, this Court finds the view taken by the Learned lower Court to be quite reasonable. It is not refuted by the Learned Counsel for the Appellant that over the plot under acquisition, R-1 has got his dwelling house & consequent upon the acquisition, he would be dispossessed from the house standing over that plot. Presumption is there in favour of R-1 that if no interim order is passed restraining disbursement of the compensation, the Appellant would not suffer any irreparable loss. R-1 has got 1/6th share in the suit property. If partition is ultimately allowed, the interest of the other co-sharers can be protected by way of adjustment from the share of R-1 towards the value of the respective share of the co-sharers' in the compensation amount. 8. On the maintainability of the partition suit in respect of the property under acquisition, Learned Counsel for the R-1 has cited two decisions of the Apex Court in Laxmi Chand & ors -v- Gram Panchayat Kararia & ors; AIR 1996. SC 523 & State of Bihar -v- Dhirendra Kumar & ors; AIR 1995 SC 1955 . In the first reported case, the validity of the acquisition & of the award was challenged by filing a civil suit. SC 523 & State of Bihar -v- Dhirendra Kumar & ors; AIR 1995 SC 1955 . In the first reported case, the validity of the acquisition & of the award was challenged by filing a civil suit. In the 2nd case, a Civil Suit was filed with a petition for interim injunction to restrain the land acquisition authority from dispossessing tile Plaintiff till disposal of the suit. In the present case, the parties do not challenge the acquisition of the land. The dispute is with regard to apportionment of the compensation amount, which can be dealt with under Section 30 of the Land Acquisition Act. No authority has-been cited as to whether a suit for partition would be a bar in view of the provisions contained in Section 30 of the Land Acquisition Act. In my considered view, the Judgment cited by the Learned Counsel for R-1 is not applicable to the present case. In Baburao Parashuram Ukhwda -v- Smt. Laxmibai & anr 1995 AIHC 1897, the Bombay High Court has observed that a suit for partition by one co-sharer claiming a share in the compensation amount awarded' by the. Land Acquisition Authority is maintainable in the Civil Court. Be that as it may, at this stage, it is not considered appropriate to thrash out on the maintainability of the suit. 9. In view of the discussions made above, this Court does not consider it to be appropriate to interfere with the impugned order. Accordingly, the FAO is dismissed on contest but without cost.