(1) This is an appeal by the original defendants against a decree passed in favour of the plaintiffs-respondents awarding Rs. 14,457, costs of the suit and interest at 3 per cent from date of suit till full satisfaction on Rs. 12, 517-8-0 or on so such out of it as may remain unrealised from time to time. The plaintiffs belong to the Dev' family. It is their case that the village of Mouje Chincholi, Taluka Haveli, was given in Inam by Shri Chhatrapati Raja Shahu to Shri Narayan Maharaj Dev, son of Chintaman Maharaj Dev, for meeting the expenses of the Deity Shri Mangalmurti at Chinchwad. Apart from the village of Chincholi, other villages like Chinchwad, Raval, Charoli were also given in Inam. It appears that the Inam was for meeting the expenses of the Deity. In 1744, there were disputes in the Dev family and that is why Peshwa Bajirao set apart half of the Inam villages and properties for religious and charitable purposes under a Tahanama, and the remaining half of the properties were distributed amongst the members of the Dev family to provide for their household needs and maintenance. After this Tahnama, some more properties were received by the Vahivatdar of the Sansthan from the contemporary rulers and by the end of 1774-74 the newly acquired properties came to be also divided under the terms of the Tahnama of the year 1744, and half of that was reserved to the Sansthan for the above-mentioned purposes. That was the effect of the Tahnama which was made by the Peshwa Madhavrao Ballal who gave an award to that effect. When the vahivat of the Sanstham's properties was being thus carried on, one Dhondo Ganesh Dev and other members of the Dev family filed Civil Suit No. 2 of 1883 in the District Court at Poona against the then Vahiwatdars of the Sansthan, Chintaman Bajaji Dev and his son Appaji. The suit was filed for removal of the Vahiwatdars Chintaman and his son and the framing of a new scheme for the vahivat of the Sansthan and its property. It appears that the defendants in that suit denied that the Chinchwad Sansthan was a public religious or charitable institution and they stated that they were not trustees but owners of the property in suit. They denied that they committed any breach of trust and they also asserted that they were not liable to render any account of their management. The District Court passed a decree removing Chintaman Bajaji Deo and Appaji Deo from trusteeship of the Sansthan and appointing new trustees, after framing a new scheme. There was an appeal against this decision of the District Court, being Appeal No. 71 of 1886, by Chintaman Bajaji Dev, and this Court confirmed the decree of the lower Court. The case was sent back to the District Court to take accounts and also to report as to the best mode of providing, in the future, for the management, both secular and spiritual, of several shrines and their endowments, after giving notices to the parties to the suit. Since the defendants had asserted their private ownership to the suit properties, this Court also reserved to the defendants
'the rights, in execution of this decree, to show that certain of the lands mentioned in the plaint as belonging to the Sansthan were not included in the property appropriated to the Sansthan by the Peshwa's award or in subsequent grants.'
This case is reported in Chintaman Bajaji Dev v. Dhondo Ganesh Dev, ILR 15 Bom 612. Chintaman appears to have died subsequently and in accordance with the direction of this Court, his son Appaji submitted Darkhast Application No. 10 of 1891 in the District Court at Poona as owner and male heir of Chintaman, and in that darkhast he prayed for a declaration that the properties mentioned in the annexure to the application were of his private ownerships and for delivering the same in his possession by right of ownership after taking them out of possession of the Sansthan's trustees. It seems that the District Court gave its decision in the said darkhast on 20th March 1896 and that decision was that certain properties mentioned in the application, including the right to recover assessment of Rs. 417-4-0 out of the revenue of the village Chincholi, did not belong to the Sansthan. The District Court also passed an order that the said property which was held not to belong to the Sansthan should be delivered in the possession of the darkhastdar Appaji. Against this decision, the trustees of the Sansthan appear to have filed an appeal to this Court, being Appeal No. 104 of 1896, and the only modification made by this Court in the decree of the District Court was that the village Chikhali, taluka Haveli, which was held by the District Court as property not belonging to the Sansthan was held to belong to the Sansthan. The result of this decision was that Appaji's right to recover assessment of Rs. 417-4-0 appears to have been recognized, the finding being that this amount did not belong to the Sansthan. On 11th September 1903, an order was passed by the District Judge that the right of recovering Rs. 417-4-0 out of the revenue of the village Chincholi should be delivered to the said Appaji and this decision appears to have been announced by beat of drum on 30th September 1903. It is not disputed in this appeal that this amount of Rs. 417-4-0 has been paid to the plaintiffs by the village officers. Appaji appears to have died in March 1907 and he left a son by name Annaji. Plaintiff No. 1 and Annaji had a dispute with regard to the partition of the family property and the dispute was referred to arbitrators who passed an award on 20th June 1907 and awarded plaintiff No. 1 his share of Rs. 150 out of the amount of Rs. 417-4-0 being the amount that was payable to Appaji, and the balance of Rs. 267-4-0 was included in the share of Annaji. A decree in terms of the award was passed on 29th June 1907. It appears that on 5th December 1910, Annaji executed a will directing certain dispositions of his property after his death as he had no issue, his only relations being his mother Parwatibai, his wife by name Laxmibai and his sister by name Krishnabai and plaintiff No. 1. Annaji died on 8th December 1910 and it is the case of the plaintiffs that under the will of Annaji, plaintiff No. 1 has become the residuary legatee out of the movable and immovable properties belonging to Annaji, after legacies given to Annaji's mother, wife and sister and other person were satisfied. Plaintiff No. 1 filed an application Miscellaneous Application No. 291 of 1910 in the District Court at Poona for the grant of a probate and the probate came to be granted in favour of plaintiff No. 1 with regard to the will, on 18th November 1911. It is the case of the plaintiffs that since 1911, it is the plaintiffs who have been every year recovering Rs. 417-4-0 out of the revenue of Mouje Chincholi openly and uninterruptedly and without any hindrance. There is no dispute in this appeal that the present plaintiffs are the successors-in-title of Appaji who filed the darkhast (Exhibit 48) in 1891 in accordance with the directions of this Court in Appeal No. 71 of 1886 (ILR 15 Bom 612). It appears that some time in 1948 the Government acquired by requisition, for military purposes, all the lands of the villages Chincholi, except those assessed at Rs. 127 and the award of the Collector, Poona District, in this connection was given on 3rd November 1950, in which he ordered that as the village has been recorded as Devasthan Inam in the name of defendant No. 1 Shri Dev Sansthan, Chinchwad, an amount of Rs. 52,442-13-0 be paid to defendant No. 1 Sansthan by way of compensation, and the said amount was received by defendant No. 1 Sansthan on 22nd November 1950. It is the case of the plaintiffs that the defendant No. 1, Sansthan had received Rs. 1,455-10-10 out of the village recoveries in the year 1948 and that the plaintiffs received Rs. 417-4-0 out of the said recoveries, after deduction of the expenses incurred for Kadim Hakkadar, Government judi, services, etc. That is why plaintiff No. 1 intimated to the Special Maqhalkari, Haveli, that he may be given his share in the amount of compensation. But before a reply was received, the amount came to be paid to defendant No. 1. Hence plaintiff No. 1 applied to the Collector, Poona District, on 8th March 1951 praying that the compensation amount calming to plaintiffs' share be called for from defendant No. 1 Sansthan and be awarded to him. The Collector of Poona informed plaintiff No. 1 by his reply dated 5th April 1951 that the plaintiff No. 1 being a partner of Chincholi village, should recover from the Sansthan the amount coming to his share by filing a suit in the Civil Court, if the Sansthan refused to pay such amount to plaintiff No. 1. That is why plaintiff No. 1 applied on 7th April 1951 to the Committee of Trustees of defendant No. 1. Sansthan for payment of his share of compensation amount. But the Committee picked up a dispute and resolved to approach the District Judge, Poona, with a prayer to call for the opinion of the Remembrancer of Legal Affairs to the Government in the matter. The District Judge, however, informed the Sansthan Committee on 28th July 1951 that the committee should seek the opinion of such local pleaders as commended their confidence, whereafter the District Judge would pass an order in the matter. Accordingly the opinion of the District Government Pleader was obtained by the Committee and that opinion was that in respect of compensation for the annual recovery of Rs. 417-4-0 the plaintiff was entitled to receive from defendant No.1 Sansthan his share of the said amount of Rs. 52,442-13-0- and the amount of interest at a reasonable rate accuring due from the day when plaintiff demanded the amount from the defendant No. 1 Sansthan. In spite of this opinion of the District Government Pleader and in spite of full knowledge of the plaintiffs' vahivat, some of the trustees again filed their objections before the District Judge. The District Judge had not passed final orders in the matter; but as plaintiffs were advised that their suit would be time-barred unless filed immediately, they filed the present suit on 18th November 1953, praying for a decree for Rs. 12, 517-8-0 being the amount which the plaintiffs were entitled to receive from the Sansthan out of Rs. 52,442-13-0, Rs. 1,939-8-0 interest accrued due at the rate of 6 per cent, per annum from 7th April 1951 to 18th November 1952, in all Rs. 14,457 with costs and future interest at the rate of 6 per cent per annum from the date of suit till payment of the said amount.
(2) Shri Dev Sansthan Chinchwad was impleaded as defendant No. 1 to the suit. Plaintiff No. 1 being trustee of the Sansthan on the date that the suit was filed, was also impleaded as defendant No. 2, while defendants Nos. 3 to 6 were impleaded as the other trustees of the Sansthan, Defendants Nos. 1, 3, 4, 5 and 6 resisted the suit on behalf of defendant No. 1 by their written statement (Exhibit 15). One of their objections to the suit was that it was untenable as plaintiff No. 1 was also defending the suit in his capacity as a co-trustee of the defendants. It seems that at the time the suit was filed, plaintiff No. 1 was the chief trustee of the Sansthan who had applied to the Committee in his personal capacity to recognise his private claim and pay his dues. It appears, however, that as he filed the present suit, the learned District Judge removed him from the office of trustee even before the trial of the suit commenced. That is why defendant No. 2 came to be struck off from the suit as he had been removed from the office. The other contentions of the defendants were that the suit was bad for multifariousness, that plaintiff had no title to receive Rs. 417-4-0 out of the Vasool of the village of Chincholi; that the prior proceedings were not binding on defendant No. 1 Sansthan and the trustees, as the Sansthan was not a party to them and that as plaintiff No. 1 was himself a trustee of defendant No. 1 he could not acquire title by adverse possession against the Sansthan. It was further contended that in any case the defendants should not be ordered to pay costs as the plaintiffs had by their negligence failed to take proper steps to assert their claim in the land acquisition proceedings.
(3) On these pleadings, several issues were framed. The trial Court held that the suit was not bad for multifariousness inasmuch as both the plaintiffs claimed a right to receive Rs. 150 out of the Vasool from the village of Chincholi by grant and judicial decisions, whereas plaintiff No. 1 claimed a right to receive Rs. 267-4-0 out of the Vasool of the village as a legatee under the will of Annaji. It may be mentioned that this question has not been pressed in this appeal. It was held further that it was open to the defendants to put plaintiffs to a proof of their title in spite of prior Court proceedings or documents. It was found that the plaintiffs proved that their joint family had a right to receive Rs. 150 out of Vasool from the village of Chincholi and plaintiff No. 1 had a right to receive Rs. 267-4-0 out of the said vasool as a legatee under the will of Annaji. It was further held that plaintiffs had acquired the above rights by adverse possession despite the fact that plaintiff No. 1 had been a trustee of the Sansthan. It was further found that plaintiffs were entitled to Rs. 12,517-8-0 out of the compensation amount awarded under the land acquisition proceeding and interest on that sum at 6 per cent per annum from the date of demand till date of suit and at 3 per cent thereafter. It was further found that plaintiffs would be entitled to their costs even though they had not pursued their claim in the land acquisition proceedings. In accordance with these findings, the trial Court passed a decree in favour of plaintiffs for an amount of Rs. 14,456 and interest at 3 per cent from date of such suit till full satisfaction on Rs. 12,517-8-0 or on so much out of it as may remain unrealised from time to time, as also costs, which were to come out of the estate of defendant No. 1 Sansthan. It is against this decree that the present appeal has been filed by the Sansthan through its trustees.
(4) Now, the first question that has been raised in this appeal by Mr. Jabagirdar, learned Counsel, appearing on behalf of the appellants, is question of title. It is conceded that plaintiffs are the successors- in-title to Appaji, who filed Darkhast NO. 10 of 1891 in accordance with the directions of this Court in Appeal No. 71 of 1886, by heirship and will of Annaji, What is, however, disputed is plaintiffs' title to receive Rs.417-4-0 out of the revenue of the village of Chincholi on the basis of the earlier decision. It is contended that the decision of the District Court in Darkhast No. 10 of 1891 (Exhibit 48) as well as the decision of this Court in First Appeal No. 71 of 1886 are not binding on the defendant No. 1 Sansthan, which was not a party to these proceedings and the same would not operate as res judicate. It is also contended that the learned trial Judge erred in no admitting a document which was certified copy of the Tahnama (award) given by the Peshwa in 1744. It appears that on 23rd June 1955 the defendants filed a list (Exhibit 46) with one document consisting of a certified copy as well as a simple copy of the said Tahnama, and that document was allowed to be tendered subject to the question of its admissibility. It seems however, that when the document was sought to be exhibited, objection was raised by the plaintiffs to its admissibility on the ground that the document produced was the copy of a copy. That objection was upheld by the learned trial Judge. The defendants-appellants have filed Civil Application No. 1897 of 1956 in this appeal praying for permission to produce additional evidence consisting of a certified copy of the Tahnama of 1744. The grievance of the appellants is that it was an error on the part of the trial Court not to exhibit the document produced along with Exhibit 46 on 23rd June 1955 and reject it as being not admissible at the time of arguments which as caused great prejudice to the defendants. There is considerable force in this argument. Admittedly, a certified copy of the said Tahanama was also produced along with Exhibit 46, as the learned trial Judge has himself remarked in paragraph 10 of his judgment when he has somewhat criticised the plaintiffs for their vehement opposition to the production of that document. A certified copy on the said Tahanama is also produced in Civil Application No. 1897 of 1956 in this Court. Defendant No. 3, Ramchandra Cajanan Dev (Exhibit 67), who is one of trustees of the Sansthan, and who was the only witness on behalf of the Sansthan, has stated in his evidence that the original Tahanama could not be traced despite search. It is true that the search was arranged through the Karbhari of the Sansthan 2 or 3 years before he gave evidence in anticipation of the suit and the Karbhari reported that the original Tahanama was not praceable. The said Karbhari however, was not called to give evidence on this point. It appears that even at the time of the prior litigation in Suit No. 2 of 1883 and the First Appeal No. 71 of 1886 of this Court, reported I ILR 51 Bom 612, the original Tahanama was taken as lost or not available. If that be so, in our judgment, the trial Court's view in rejecting the document produced along with Exhibit 46 as inadmissible is erroneous. The result is that we direct that the certified copy of the Tahanama of 1744 produced along with Exhibit 46 should be admitted and should be marked as Exhibit 46A. In that view of the matter, it is not necessary to pass any order on the Civil Application for additional evidence, preferred by the appellants.
(5) Mr. Jahagirdar contends that if the Tahanama (Exhibit 46A) is examined, it will be found that the amount of Rs. 417-4-0 consisting of Rs. 347-12-0 (Moglai) and Rs. 69.8.0 (Sardeshmukhi) out of the Vasul of Mouje Chincholi was given to the branch of Digambar Dev, one of the brothers of the original acquirer Shri Narayan Dev. That, according to Mr. Jahangirdar, would show that plaintiffs have no title to receive Rs. 417-4-0 out of the vasul of Chincholi Village. It is further contended that that amount went to the Sansthan by way of exchange and, therefore, plaintiff has no title to the said amunt. In order to appreciate this argument, it is necessary to refer to the earlier litigation of 1883, to which a reference has already been made. As already stated, some relaters of the Deity had filed Suit No. 2 of 1883 against Chintaman and his son Appaji, who were then Vahivatdar trustees of the Sansthan, praying for removal of these trustees and the preparation of a scheme. That suit resulted in the removal of Chintaman and his son Appaji and a scheme was prepared by the District Court. Against this decision there was an appeal preferred by Chintaman to this Court, being appeal No. 71 of 1886, which confirmed the decision of the removal of the trustees, and sent the case back to the District Court to take accounts from the said trustees and for making provision for the future management of the trust after giving notices to the parties to the suit and the residents of villages where the shrines were situated with a view to their offering suggestions to the Court in framing the necessary scheme. This Court also reserved to defendants the rights, in execution of the decree, to show that certain of the lands mentioned in the plaint as belonging to the Sansthan were not included in the property appropriated to the Sansthan by the Peshwa's award or in subsequent grants. After this decision, reported in ILR 15 Bom 612 Appaji filed Darkhast No. 10 of 1891 praying for a declaration that the properties mentioned in the darkhast were his own private properties and not the properties of the Sansthan his father Chintaman having died in the meanwhile. That darkhast was decided by the District Judge in favour of Appaji and a number of properties mentioned in the darkhast including the amount of Rs. 417-4-0 from out of vasul of the village Chincholi were held as not appropriated to the Sansthan. To that darkhast the new trustees of the Sansthan seem to have been impleaded as opponents by Appaji, the earlier trustees Chintaman and his son Appaji himself having been removed. In that darkhast the Tahnama of 1744 was relied upon and the judgment of the learned District Judge shows that it was contended on behalf of the Sansthan that the amount of Rs. 417-4-0 out of the vasul of the Village Chincholi had been allotted to the descendants of Digamber Dev, on the basis of the said document, which was Exhibit 86 in that darkhast. It was also the case of the trustees then that the claims allotted to Digamber under that Tahnama inclusive of Rs. 417-4-0 were subsequently exchanged for a sum of Rs. 1,000 from revenues of the Village Chinchwad, with the result that Digamber's branch appears to have lost any claim to that amount. That contention does not appear to have been upheld on the ground that there was no evidence of any such adjustment as alleged, with the result that it was held that Rs. 417-4-0 out of the vasul of the village Chincholi, which was claimed by Appaji as his own, was held as not belonging to the Sansthan. A number of other properties claimed by Appaji were also held as not being appropriated to the Sansthan, including the village of Chikhali. Against this decision or the District Judge dated 20th March 1896, there was an appeal to this Court, being First Appeal No. 104 of 1896, by the trustees, which was decided on 22nd February 1897, and this court confirmed the decision of the District Judge in the Darkhast, with the only modification that village Chikhali which was held not appropriated to the Sansthan by the learned District Judge was held to belong to the Sansthan.
(6) Mr. Jahagirdar contends that this defendant No.1 Sansthan, and this contention has been accepted by the learned trial Judge. It was argued that the original suit was filed by the relaters of the Deity in 1883 for the removal of the original trustees and the Sansthan as such was not a party to that suit. It appears however, that after the removal of the trustees fresh trustees were appointed under the scheme framed by the District Judge. In Appeal No. 71 of 1886 ILR 15 Bom 612 defendants were allowed express liberty to agitate in the course of execution proceedings as to whether certain l;ands alleged to belong to the defendants were not included in the property appropriated to the Sansthan by the Peshwa's award or in subsequent grants. Accordingly Darkhast No. 10 of 1891was filed by Appaji in the District Court, his father Chintaman having died in the meanwhile, and to that darkhast the new trustees of the Sansthan were impleaded as opponents. That is clear from the record of the said darkhast as well as from the original record of First Appeal No. 104 of 1896 which was decided on 22nd February 1897. The trustees of the Sansthan expressly laid claim to the amount of Rs. 417-4-0 as the property of the Sansthan, but that was negatived. In our view, it would be impossible to contend that that decision will not bind defendant No. 1 Sansthan, and it would still be open to the Sansthan to urge that the amount or Rs. 417-4-0 out of the vasul of the village of Chinchli belongs to the Sansthan.
(7) It is true that under the Tahnama of 1744 (Exhibit 46A) that amount appears to have been allotted to the branch of Digamber Dev. But it was claimed by Chintaman and his son Appaji as their private property along with other properties, in Suit No. 2 of 1883, though the plaintiffs in that suit had alleged that those property belonged to the Sansthan. Int darkhast as well as in appeal, the Sansthan's claim to that amount was rejected. It seems that after the decision of the District court, possession of the right of recovering Rs. 417-4-0 in the vasul of Chincholi village was given to Appaji by beat of drum and relative entries were made in the Record of Rights in this connection. Appaji died in March 1907 leaving a son Annaji. The members of the joint family of Appaji trated this amount as belonging to the joint family and by an award of the Poona Court in 1907 Rs. 150 came to the share of plaintiff No. 1 and the balance went to Annaji's share. Annaji died in December 1910 leaving no issue, and under his will his share in the vasul went to plaintiff No. 1 as residuary legatee. There is no dispute that the amount of Rs. 417-4-0 is being paid to plaintiffs right from 1903 till the date of the acquisition procedings. There is no dispute either that Plaintiff No. 1's name was being shown in the column of 'other rights' in respect of Rs. 417-4-0 in the Record of Rights. Ramchandra Gajanan Dev (Exhibit 67) who was examined on behalf of the trustees, has admitted these facts and stated that plaintiffs were getting Rs. 417-4-0 a year from the vasul of the Inam Village of Chincholi. Though it appears that he belongs to the branch of Digamber, he has not claimed the amount as belonging to Digamber's branch. Nor have the members of Digamber's branch sought to implead themselves in the present suit claiming ownership with respect to it. In our view, even assuming that the decision in Darkhast No. 10 of 1891 and First Appeal No. 104 of 1896 does not operate as res judicata against the Sansthan, there is sufficient evidence on the record to prove that plaintiffs have established their title to an amount of Rs. 417-4-0 out of the vasul of the village Chincholi.
(8) Mr. Jahagirdar then contends that even assuming that plaintiffs have established their right to be paid Rs. 417-4-0 of the vasul of Chincholi, the Sansthan will pay that amount to the plaintiffs every year and the plaintiffs will not be entitled to a share in the compensation moneys. Mr. Jahagirdar argued that the right of the plaintiffs does not amount to an interest in land. All that the plaintiffs get is the amount of Rs. 417-4-0 direct from the village officers of Chincholi; but that, according to Mr. Jahagirdar, does not amount to an interest in land and does not entitle the plaintiffs to a share in the compensation amount paid to the Sansthan. In this connection, Mr. Jahagirdar relied on certain admissions of plaintiff No. 1 Chintaman (Exhibit 58). It is not possible to accept this contention. No such point was raised in the trial Court. Under Section 9 of the Land Acquisition Act, the Collector has to give public notice stating that claims to compensation for all interests in land to be acquired may be made to him. Under Section 3(a) of the Act, the expression 'land' would include benefits to arise out of land, and under Section 3(b), the expression 'person interested', would include all persons claiming an interest in compensation to be made on account of the acquisition of land under the Act. Admittedly, in the Record of Rights, though the Devasthan is shown as the Kabjadar' plaintiffs are entered in the column of 'other rights' with regard to the amount of Rs. 417-4-0. This amount is being paid admittedly to the plaintiffs by the village officers. It would therefore, be difficult to accept the contention that plaintiffs have no interest in the land and as such are not entitled to a share in the compensation. Besides, the Sansthan is a public trust and we are not prepared to assume that the Sansthan would be entitled to take upon itself the responsibility of paying permanently Rs. 417-4-0 to the plaintiffs every year. This point, if at all, should have been raised in the trial Court and that not having been done, we do not think that it would be proper to allow the appellants to raise this point at the stage of appeal. In any case, the argument that plaintiff's right to get Rs. 417-4-0 every year from the vasul of Chincholi village is not an interest in land cannot be accepted.
(9) Then it is further contended that the entire village of Chincholi is not acquired but admittedly land bearing an assessment of Rs. 127 has not been acquired by the Government. Mr. Jahagirdar, therefore, contends that plaintiffs should obtain the amount of Rs. 127 from the village officers in respect of the land that is not acquired and with regard to the balance of Rs. 290-4-0, at the most, plaintiffs would be entitled to a share in the compensation amount paid to the Sansthan. Mr. Jahagirdar contends that if this argument were accepted, the amount of compensation payable to the plaintiffs would be reduced to about Rs. 8,800. This argument again cannot be accepted. Such a plea was not taken in the written statement. No issue was framed about it and such a ground has not been taken even in the appeal memo. The point has been argued for the first time at the stage of hearing of this appeal and, therefore, cannot be allowed to be raised. That being so, we do not express any opinion on the point as to whether the amount of Rs. 127 out of the vasul of the village of Chincholi, which has not been acquired, would belong entirely to the Sansthan or whether plaintiffs would have a share in the same.
(10) Mr. Jahagirdar then contends that the suit itself is not competent because it was open to the plaintiffs to claim a share in the compensation amount in the land acquisition proceedings before the Collector, and they having failed to do so an independent suit as brought by the plaintiffs is incompetent. We may observe, in the first instance, that this point was not taken in the trial Court but this ground appears to have been raised under issue No.11 for the purpose of disallowing plaintiffs' costs of the suit. As already indicated, that contention was negatived by the trial Court. Mr. Jahagirdar says that he should be allowed to raise this point about the maintainability of the suit, as it is a pure point of law, and we have allowed Mr. Jahagirdar to argue the point. Mr. Jahagirdar argued that admittedly plaintiff No. 1, during the pendency of the land acquisition proceedings, was the chief trustee of the Sansthan and, therefore, he must be assumed to have had notice of the said proceedings. Plaintiff No. 1 in his evidence at Exhibit 58 has denied that he was aware of the acquisition proceedings from the beginning. But, as already indicated, before the moneys were paid to the Sansthan, plaintiff No. 1 had preferred a claim to a share in the compensation amount and ultimately the Collector appears to have asked him to recover his share by filing a suit in a Civil Court if the Sansthan did not pay his share in the compensation moneys. In these circumstances, it is difficult to hold that the present suit would not be maintainable.
(11) Under Section 9(3) of the Land Acquisition Act, apart from the public notice contemplated under sub-section (1) the Collector has also to serve notice to the occupier (if any) of such land and on all such persons known or believed to be interested therein. Under Section 11, the Collector is to proceed to enquire into the objections 9if any) of any person interested and into the respective interests of persons claiming compensation and then he shall make an award of the true area of the land, the compensation which in his opinion should be allowed for the land and the apportionment of the said compensation among all the persons interested in the land of whom, or whose claims, the Collector has information whether or not they have respectively appeared before him. Under Section 30, when the amount of compensation has been settled under Section 11, if any dispute arises as to apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court, which under Section 3(d) means the principal Civil Court of original jurisdiction, unless the Local Government has appointed a special judicial officer within specified local limits to perform the functions of the Court under the Act. Under sub-section (1) of Section 31, on making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in subsection (2). Under sub-section (2) if the persons interested shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to receive it, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted: Provided firstly that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount; secondly, that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18; and, thirdly, that nothing contained in subsection (2) shall affect the liability of any person who may have received the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. All these relevant provisions and especially the third proviso to sub-section (2) to Section 31, would go clearly against Mr. Jahagirdar's contention. But Mr. Jahagirdar contends that this proviso has been judicially interpreted and that the decision on this point would support his contention that the present suit is not maintainable. In this connection, reliance is placed, in the first instance, on the case of Raja Nilmoni Singh v. Ram Bundhoo Roy, 8 Ind App 90 (PC) in which it was held that the provisions of Sections 38, 39 and 40 of the Act X of 1870, for the settling of compensation for land taken for public purposes are intended to be final; and where it amount and distribution have been settled by a competent Court, the decision not having been appealed against, the settlement is final, and cannot be questioned in a suit brought by a person whose claim has been so adjudicated upon; and that the proviso in Section 40 applies only to persons whose rights have not been adjudicated upon under Sections 38 and 39. Section 40 of that Act provided that
'Payment of the compensation shall be made by the Collector, according to the award, to the persons named therein, or, in the case of an appeal under Section 39, according to the decision on such appeal; Provided that nothing herein contained shall affect the liability of any person who may receive the whole of any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.'
It seems that the proviso to Section 40 of the old Act was similar to the third proviso to Section 31(2) of the present Act. It appears that in that case, there was a dispute between the Rajah of Pachete and his tenants as to the apportionment of the amount of compensation awarded and the Rajah was awarded an amount of Rs. 84 by the Court under the Land Acquisition Act and the tenants were awarded the rest of the compensation amount. The Rajah did not appeal under the provisions of the Land Acquisition Act and then filed a suit for the purpose of setting aside the decision as to apportionment of the amount of compensation given by the Court under the Land Acquisition Act. On these facts, the Privy Council confirmed the decision of the Courts in India that the proviso to Section 40 applied only to persons whose rights had not been adjudicated upon in pursuance of Section 38 and 39 and that the said proviso had not effect of permitting a person whose claim has been adjudicated upon in the manner pointed out by the Act, to have that claim reopened and again heard in another suit. In our view, this case, instead of favouring Mr. Jahagirdar's contention, goes against that contention. Then Mr. Jahagirdar relied on a ruling of the Calcutta High Court in Saibesh Chandra Sarkar v. Bejoy Chand Mohatap, AIR 1922 Cal 4, where it was held tht the Proviso to Section 31, clause 2, applies only to cases where the person is under a disability or is not served with notice of the proceedings before the Collector.in that case, the lands in question were acquired for a Railway and the Zamindar and the defendant (the Putnidar) were served with notices under Section 9 of the Land Acquisition Act. The Collector apportioned the compensation half and half between the Zamindar and the Putnidar. Neither party applied for any reference under Section 18. The Zamindar thereupon brought a suit for recovery of the amount which had been withdrawn by the defendant, on the ground that under the Putni Kabuliyat the Putnidar was not entitled to any portion of the compensation money. One of the defences raised to the suit was that plaintiffs ought to have applied for a reference under Section 18, of the Act and that no separate suit could lie. It was under these circumstances that the learned Judges of the Calcutta High Court held that the suit of the Zamindar was not competent. Mr. Jahagirdar laid stress on a passage in the judgment in that case that the Land Acquisition Act created a special jurisdiction and provided a special remedy and ordinarily when jurisdiction had been conferred upon a special Court for the investigation of matters which may possibly be in controversy, such jurisdiction as exclusive. No exception can be taken to this principle. But the facts of that case are distinguishable from the facts of the present case, because in that case the Collector had actually passed an order of apportionment against which no reference was sought under Section 18 of the Act.it is true that plaintiff No. 1 in the present suit was the chief trustee of the Sansthan at the relevant time. But he disowned knowledge of the acquisition proceedings. Even assuming that he had knowledge of the proceedings, it is not shown that plaintiffs No.2, who is equally interested in a share in the compensation amount, had notice of the said acquisition proceedings. In spite of the provisions of Section 11, the Collector does not appear to have considered the question of apportionment at all. Besides, plaintiffs applied though somewhat late, to the Collector for a share in the compensation amount and the Collector, instead of adjudicating upon that claim, appears to have asked the plaintiffs to file a suit to recover his share in case the Sansthan refused to pay them their share, We do not, therefore, think that the ruling of the Calcutta High Court relied upon by Mr. Jahagirdar will support the contention raised by him in this appeal. Mr. Jahagirdar then relied on a ruling of the Court of the Judicial Commissioner of Nagpur reported in Shivmal v. Ram Chandra Bapu, AIR 1933 Nag 322, where it was held that persons who have received notice and who have appeared before the Collector at the time of the apportionment of the compensation money must if they object to that apportionment, make application under Section 18 of the Act and are not able to avail themselves of proviso 3 to Section 31(2) of the Act and are, therefore, debarred from filing a suit. That decision again is distinguishable on facts, because there the claimants had not only received notice to receive the compensation amount but had appeared before the Collector at the time the compensation money was paid and accepted their share under oral protest.
(12) As against Mr. Jahagirdar's contention, it was urged by Mr. Chitale, learned advocate appearing on behalf of the respondents, that the suit would be competent because apportionment proceedings are entirely separate proceedings and would require a separate notice to person interested in the compensation money. In this connection, he relied on the decision of the Calcutta High Court in Hermiston Bibi v.padma Lochun Das, ILR 12 Cal 33, where it was held that the apportionment of the compensation under Section 39 of Act X of 1870 is intended to be proceeding distinct from that of settling the amount of compensation under the previous provisions of the Act, and any dispute as to the apportionment is only decided as between those persons who are actually before the Court. A separate notice, therefore, of the apportionment proceedings is requisite to bind any person by those proceedings, and where such a notice has not been served, any party interested, although served with the notice of the proceedings for setting the amount of the compensation, cannot be considered a party to the proceedings for apportioning it, and is not barred, by the decision of the latter proceedings, from bringing a suit under the proviso to Section 40, to recover a share of the money so apportioned. We do not think it is necessary to decide whether a separate notice of the apportionment proceedings would be required because admittedly in the present case there have been no apportionment proceedings. Mr. Chitale further contended that even assuming that plaintiffs No. 1 had notice of the acquisition proceedings in his capacity as a chief trustee, a separate notice should have been given to him since it must have been known to the Revenue authorities that he had an interest in a private capacity in the village vasul to the extent of Rs. 417-4-0. We do not think it is necessary to decide this question either for the purpose of the present appeal. Mr. Chitale has also invited our attention to the Privy Council decision in Ramchandra Rao v. Ramchandra Rao, 24 Bom LR 963: AIR 1922 PC 80, where it was held that the Land Acquisition Act of 1894 contemplated two separate and distinct forms of procedure, one for fixing the amount of compensation described as the award, and the other, for determining in case of dispute the relative rights of the persons entitled to the compensation money. Any dispute as to relative rights of persons entitled to receive compensation money is settled by litigation in the ordinary way. It was further held in that case that the decision of a competent Court even in proceedings under the Land Acquisition Act would operate as res judicata and the same question cannot be reopened in a subsequent litigation between the same parties. That case, it is true, is also distinguishable on facts. In the present case, the question of apportionment of the compensation amount appears to have been altogether lost sight of by the Land Acquisition authorities despite entries in the Record of Rights. When the plaintiffs applied to the Collector for their share in the compensation money, the amount had been already paid to the Sansthan and the Collector does not appear to have acted under any of the provisions of the Land Acquisition Act. He merely asked the plaintiffs to apply to the Sansthan for their share in the compensation amount and, in case of refusal, to file a suit to recover the same. Mr. Chitale contends that in these circumstances, in view of the third proviso to Section 31(2) of the Land Acquisition Act, the suit filed by the plaintiffs would be maintainable. In our judgment, there is considerable force in this argument. Under the third proviso to Section 31(2) of the Act, nothing contained in subsection (2) shall affect the liability of any person who may receive the whole or any part of any compensation awarded under the Act, to pay the same to the person lawfully entitled thereto. Unless, therefore, the claim of such a person, who is lawfully entitled to a share in the compensation money, is already adjudicated upon under the provisions of the Land Acquisition Act or such person having had notice to such proceedings, appears therein and fails to assert and prosecute his claim to a share in accordance with the provisions of that Act, he would be entitled to file a suit to recover his share from the person who may have received the whole or any part of the compensation amount awarded under the Act. We must, therefore, reject Mr. Jagirdar's contention that the suit is not maintainable as plaintiffs did not get their claim adjudicated upon under the provisions of the Land Acquisition Act.
(13) Mr. Jagirdar further contended that the lower Court's view that plaintiffs had acquired title to the right to receive Rs. 417-4-0 by adverse possession was erroneous. In the view that we have taken about plaintiffs' title, it is not necessary to decide this question. Since the point, however, has been argued, we shall briefly refer to the contention raised before us. The trial Court appears to have been of the view that plaintiffs had established their adverse possession right from the year 1744 when the Tahnama or the award of the Peshwa was given. We do not think that there is cogent evidence on the record to justify this finding. Mr. Jahagirdar contends that plaintiff No. 1 was at the time of the suit the chief trustee of the Sansthan and, therefore, he could not acquire title by adverse possession, even assuming that the right which plaintiffs claimed was capable of being acquired by adverse possession. It is difficult to accept Mr. Jagirdar's contention. As already stated, the right claimed by plaintiff was to a fixed share of Rs. 417-4-0 in the vasul of the Inam village of Chincholi. That right was recognised by the land revenue authorities and was recorded in the column of 'other rights' in the record of Rights. It must be held to be an interest in land. After the decision of Darkhast No. 10 of 1891, possession of the said right appears to have been awarded to Appaji by beat of drum. There is no dispute that the amount of Rs. 417-4-0 ia annually paid to the plaintiffs by the revenue officers of the village. Admittedly from the year 1903 till 1936 plaintiff No. 1 was not a trusteee. Plaintiff No. 1 appears to have become a trustee in 1936. If that be so, it is difficult to accept the argument of Mr. Jahagirdar that plaintiffs had not perfected their title to the right claimed by them by adverse possession.
(14) Mr. Jahagirdar then pointed out that the lower Court was wrong in awarding plaintiff's claim to interest at the rate 6 per cent, from the date of demand till date of suit, and that the proper course would have been to award interest at the rate of 4 p.c. which is the usual rate of interest awarded by the Court. In our view, that argument must be accepted. The Collector had no doubt asked the plaintiffs to file a suit after applying to the trustees of the Sansthan. Since the trustees raised objection, plaintiff No. 1 should have proceed to file a suit, after resigning his post of chief trustee. In our view, it would, therefore be proper to award to the plaintiffs interest only at the rate of 4 per cent per annum from the date of demand till date of suit. To that extent the decree of the trial Court will be modified.
(15) The result is that plaintiffs will be entitled to an amount on Rs. 12,517-8-0 with interest at the rate of 4 per cent from 7th April 1951 to 18th November 1953 and future interest at the rate of 3 per cent from the date of suit till the deposit of the amount of compensation by the defendants. The order of costs of the trial Court will be maintained. Plaintiffs will be entitled to their costs of this appeal from the defendants. There will be no order on Civil Application No. 1897 of 1958 and no order as to costs therein.
(16) Decree modified.