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2017 DIGILAW 438 (KAR)

ASSISTANT COMMISSIONER AND LAND ACQUISITION OFFICER CHITRADURGA v. ZAHIRUDDIN @ ZAHIRUDDIN KHAN

2017-02-09

ASHOK B.HINCHIGERI

body2017
JUDGMENT : 1. This appeal is directed against the judgment, dated 10.1.2013 passed by the Court of the Principal District and Sessions Judge, Chitradurga in M.A. (LAC) No. 4/2012. 2. The facts of the case in brief are that the respondent’s land measuring 1 acre 10 guntas standing at Sy. No. 121/P of Sajjanakere Village, Chitradurga Taluk was acquired for the purpose of constructing the bridge. In that regard, the preliminary notification was issued on 29.6.1995. The Land Acquisition Officer (LAO) passed the award fixing the market value at Rs. 12,500/- per acre. The Reference Court raised it to Rs. 30,000/- per acre. Not content with the same, the respondent-claimant filed M.F.A. No. 7503/2007 (LAC), which was remanded to the Reference court for fresh enquiry. In the remanded matter, the Reference Court raised the market value to Rs. 1,15,000/- per acre. Aggrieved by the said enhancement, the appellant filed M.A. No. 12/2011 before the Fast Track Court, Chitradurga. The said appeal was dismissed on 30.11.2011. Thereafter, the respondent filed M.A. (LAC) No. 4/12 belatedly before the Court of District and Sessions Judge, Chitradurga. In the said appeal, the appellants filed the cross-objection notwithstanding the dismissal of their M.A. No. 12/11. The respondent withdrew his appeal by filing the memo on 17.9.2012. As the appellants insisted that their cross-objection would survive, the learned District Judge examined the issue and by the judgment, dated 10.1.2013 dismissed the cross-objection on the ground of maintainability. 3. Sri M.A. Subramani, the learned Government Pleader appearing for the appellants submits that there is no legal impediment in filing the cross-objection, even when the respondent’s appeal is dismissed. He agitates that even when the respondent has withdrawn his appeal, the appellants are entitled to have their cross-objection considered. 4. Sri K. Rama Bhat, the learned counsel appearing for the respondent relies on the decision of this Court in the case of Sri Annasaheb Balesha Waghe and Others vs. Sri Appasaheb Dada Pommai and Others, reported in ILR 2007 KAR 2395, wherein it is held that a party, who has not preferred an appeal against a portion of the decree of which he is aggrieved, may prefer a cross-objection, which is in the nature of a cross appeal. 5. 5. He also relies on the Hon’ble Supreme Court’s decision in the case of Superintending Engineer and Others vs. B. Subba Reddy, reported in (1999) 4 SCC 423 to advance the submission that cross-objection is like an appeal. As per the language clearly employed in Order 41 Rule 22 of C.P.C. 1908, the respondent, who may not have appealed from any part of the decree, is given an opportunity to file a cross-objection. 6. The submissions of the learned counsel have received my thoughtful consideration. The substantial question of law that arises for my consideration is whether the appellants (respondents in M.A. (LAC) No. 4/2012) can maintain their cross-objection notwithstanding that filed M.A. No. 12/11, which was dismissed on merits? 7. The plain reading of Order 41 Rule 22 of C.P.C. reveals that it can be filed by the respondent, who has not appealed from any part of the decree. If a party has preferred an appeal and if the appeal is dismissed on merits, thereafter the question of filing the cross-objection would not arise at all. If the appellants had not filed the appeal, but only filed the cross-objection, it was open to the appellants to insist that their cross-objection be considered notwithstanding the withdrawal of appeal filed by the respondent. But the appellants having filed the appeal are not entitled to demand that their cross-objection be considered, even when the respondent has withdrawn his appeal. 8. There is another way of looking at the controversy. Admittedly what was challenged by the respondents in M.A. No. 12/2011 is the enhancement of market value to Rs. 1,15,000/- per acre. What follows from the dismissal of the said appeal is that the fixation of market value at Rs. 1,15,000/- per acre is not on the higher side. The dismissal of M.A. No. 12/2011 has attained the finality. For the reasons best known to the appellants, they have not chosen to file a second appeal against the judgment, dated 30.11.2011 passed in M.A. No. 12/11. The resultant position is that the fixing of market value at Rs. 1,15,000/- per acre is accepted by the Government. Having accepted the same and when the land-loser also accepts the market value of Rs. 1,15,000/- per acre by giving up his claim for enhancement by withdrawing the appeal, nothing survives for any grievance of any party. The resultant position is that the fixing of market value at Rs. 1,15,000/- per acre is accepted by the Government. Having accepted the same and when the land-loser also accepts the market value of Rs. 1,15,000/- per acre by giving up his claim for enhancement by withdrawing the appeal, nothing survives for any grievance of any party. Thus, answering the substantial question of law against the appellants, I dismiss this appeal. 9. No order as to costs.