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Kalarikkal Lakshmikutty Amma Vs. Kankath Vettolil Kanhirapally Velappa Nair and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberA.S. No. 568 of 1969
Judge
Reported inAIR1973Ker79
ActsKerala Land Acquisition Act, 1961 - Sections 32 and 33; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 10; Land Acquisition Act, 1894 - Sections 30
AppellantKalarikkal Lakshmikutty Amma
RespondentKankath Vettolil Kanhirapally Velappa Nair and anr.
Appellant Advocate T.R. Govinda Wariyar and; K. Ramakumar, Advs.
Respondent Advocate V.R. Venkitakrishnan, Adv.
DispositionAppeal dismissed
Cases ReferredKishan Chand v. Jagannath Prasad
Excerpt:
property - acquisition - sections 32 and 33 of kerala land acquisition act, 1961, order 1 rule 10 of code of civil procedure, 1908 and section 30 of land acquisition act, 1894 - appellant challenged order passed by court below directing payment of entire compensation to 2nd respondent - appellant failed to prove his possession and title at time of acquisition - no reason to interfere with order passed by court below - appeal liable to be dismissed. - - the plea was overruled by the trial court and the order was confirmed in revision by the high court in the appeals filed in the high court by the claimants against the adequacy of compensation, the question of measurement of the land acquired was again unsuccessfully raised. vide 31 cal wn 384 =(air 1927 cal 352). but in our opinion,.....t.s. krishnamoorthy iyer, j. 1. this appeal arises out of a reference under the kerala land acquisition act for apportionment of compensation. 2. the appellant is the 1st respondent in the lower court. the second respondent in the lower court was impleaded in the appeal as the first respondent. it was represented before me by counsel for the appellant that the first respondent in the appeal died even during the pendency of the proceedings in the lower court and since his legal representatives were not brought on re-record his name has been struck off from the appeal. the second respondent in the appeal was impleadcd as the third respondent in the lower court on the basis of i. a. 1414 of 1967 filed by him. 3. the lower court by the decision under appeal directed the payment of the entire.....
Judgment:

T.S. Krishnamoorthy Iyer, J.

1. This appeal arises out of a reference under the Kerala Land Acquisition Act for apportionment of compensation.

2. The appellant is the 1st respondent in the lower court. The second respondent in the lower court was impleaded in the appeal as the first respondent. It was represented before me by counsel for the appellant that the first respondent in the appeal died even during the pendency of the proceedings in the lower court and since his legal representatives were not brought on re-record his name has been struck off from the appeal. The second respondent in the appeal was impleadcd as the third respondent in the lower court on the basis of I. A. 1414 of 1967 filed by him.

3. The lower court by the decision under appeal directed the payment of the entire compensation to the second respondent in the appeal. It is that decision of the lower court that is challenged in the appeal,

4. Learned counsel for the appellant raised two contentions. The first is that since the second respondent in the appeal was not a party to the proceedings before the Land Acquisition Officer and since there was no claim made by him before the Land Acquisition Officer, the learned Subordinate Judge acted without jurisdiction when he impleaded him as a party and considered his claim to the compensation. The second ground is that the evidence is insufficient to prove the exclusive right of the second respondent to the acquired property. Point No. 1. The reference to the lower court wa* under Section 33 (2) of the Kerala Land Acquisition Act on the ground that there is a dispute in regard to the title to the land acquired. In I. A. 1414 of 1967 filed in the lower court by the second respondent in the appeal for getting himself impleaded, he had stated that he did not receive notice from the Land Acquisition Officer as required by the Statute and that he was not impleaded as a party to those proceedings. It was further alleged by him that on 26-2-1967 he had applied before the Land Acquisition Officer that the land acquired belonged to him and the compensation money should be paid to him and that on 31-3-1967 he got a reply that he should make an application in the Land Acquisition Court where a petition is pending regarding apportionment of compensation. I. A. 1414 of 1967 was filed on 6-7-1967 under Sec. 151 and Order 1, Rule 10, Civil Procedure Code. No objection was raised by the appellant in the Court below to I. A. 1414 of 1967. The lower Court therefore, passed an order on 18-8-1967 impleading him as the third respondent in the trial proceedings. The rival claims of the appellant, first respondent and the second respondent to the acquired property were therefore, examined by the Court below. The first respondent in the appeal was claiming title to the acquired property on the basis of a partition karar of 1052 in his family. He was declared ex parte in the Court below and his claim was, therefore, not accepted. This part of the decision of the lower Court has become final.

5. Before I consider the question whether the lower Court was competent to have enquired into the claim of the 2nd respondent, it is necessary to dispose of a contention raised by the appellant's counsel. He pointed out that the 2nd respondent had filed a statement before the Land Acquisition Officer saying that he had no title to the acquired property and a petition has been filed by the appellant in this Court for calling for the file of the Land Acquisition officer produced in the Court below, which contains the said statement. In that petition, this Court passed an order calling for the file from the lower Court. A reply has been received from the lower Court to the effect that the said file has been taken back by the Land Acquisition Officer. The appellant did not pursue the matter to direct the Land Acquisition Officer to produce the file in this Court.

6. Even if the file had been made available, it is not open to this Court to look into the alleged statement without proof, as the filing of any such statement is not admitted by counsel for the 2nd respondent. It is thus not open to counsel for the appellant to. base any argument on the statement. When the file was available in the Court below, it looks strange why the statement if available was not sought to be proved in evidence.

7. I shall examine the question of jurisdiction of the lower Court to deal with the claim of the second respondent to the compensation amount. In the award passed by the Land Acquisition Officer, it is stated thus:

'Since there is dispute in regard to the title of the land the entire land value of Rs. 244-21, 15 per cent, solatium of Rupees 36-65 in all amounting to Rupees 280-96 will be awarded and deposited in the Sub-Court, Ottapalam under Section 33 (2) of Kerala Land Acquisition Act and a reference issued to the Court under Section 32 of the Act impleading the following parties.' The second respondent in this appeal was not one of the parties to the award. It is clear from the award that the reference to the Court was under Section 32 of the Kerala Land Acquisition Act. The said provision reads:--

'When the amount of compensation has been settled under Section 11 or Section 16, if any dispute arises as to the 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.'

Section 20 of the Kerala Land Acquisition Act enables a reference on the question of apportionment of compensation at the instance of any party interested and who has Dot accepted the award on his written application.

8. It has been ruled in Grant v. State of Bihar, (AIR 1966 SC 237), that the powers which are exercised by a Collector under Section 18 and under Section 30 of the Central Act 1 of 1894 corresponding to Sections 20 and 32 of the Kerala Land Acquisition Act are distinct and may be invoked in contingencies which do not overlap. It is not necessary that there should be an application by any person interested for a Collector to make a reference under Section 32 of the Kerala Land Acquisition Act.

9. In support of his submission, learned counsel for the appellant relied on Pramatha Nath v. Secy. of State, AIR 1930 PC 64; Indumati Debi v. Tulsi Thakurani, AIR 1942 Cal 53; Souri Rajalu Naidu v. Narayanan Namboodiripad, 1958 Ker LT 941; Padmanabha Menon v. Bhaskara Menon, 1963 Ker LT 595 and Unichirakutty Amma v. Krishnan Nair, 1964 Ker LT 484.

10. In AIR 1930 PC 64, the application for reference was under Section 18 of the Central Act regarding adequacy of compensation. During the pendency of the proceedings in the reference court the claimants raised objections to the measurement of the land acquired. The plea was overruled by the trial court and the order was confirmed in revision by the High Court In the appeals filed in the High Court by the claimants against the adequacy of compensation, the question of measurement of the land acquired was again unsuccessfully raised. The matter was taken to the Privy Council and the question of measurement was sought to be raised there. In repelling that contention the Judicial Committee said:--

'Their Lordships have no doubt that the jurisdiction of the Courts under this Act is a special one and is strictly limited by the terms of these sections. It only arises when a specific objection has been taken to the Collector's award, and it is confined to a consideration of that objection. Once therefore it is ascertained that the only objection taken is to the amount of compensation, that alone is the 'matter' referred, and the Court has no power to determine or consider anything beyond it.'

The above decision is distinguishable on facts and I do not think the above observations regarding the ambit of a reference under Section 18 can be extended to cases arising under Section 30 of the Central Act.

11. In AIR 1942 Cal 53, the reference was, no doubt, under Section 30 of the Land Acquisition Act. A stranger to the award and to whom no notice under Section 9 of the Land Acquisition Act was issued prayed for being impleaded in the reference court as an additional party as he claimed a share in the compensation money. The reference Court refused to implead him. The Calcutta High Court while confirming the order of the trial court observed regarding the scope of Section 30 of the Central Land Acquisition Act thus:--

'These words (referring to Section 30 of the Act) can reasonably be construed to mean that the jurisdiction of the Court is confined to a consideration of the dispute that is expressly referred to it by the Collector, An addition of parties may indeed be made when the persons who desire to be added as parties do not raise any new dispute but want to place other materials before the Court in connexion with the dispute that is referred to it by the Collector: Vide 31 Cal WN 384 = (AIR 1927 Cal 352). But in our opinion, it cannot be permitted in a case like this where the question sought to be raised is entirely a new one and is not covered by the reference made by the Collector.'

In view of the distinction pointed out by the Supreme Court between Sections 18 and 30 of the Land Acquisition Act, the above observations of the Calcutta High Court cannot now be accepted. The distinction between sections 18 and 20 which was sought to be raised in the Calcutta High Court was not accepted in view of its earlier decision in (1908) 12 Cal WN 987.

12. At this stage, it will be advantageous to notice the third proviso to Section 33 of the Kerala Land Acquisition Act, Which reads:--

'Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.'

and Section 59 of the Kerala Act which reads:--

'Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court under this Act.' By virtue of Section 59 of the Kerala Act, Order 1, Rule 10, Civil Procedure Code, is made applicable to proceedings under the Land Acquisition Act if there is nothing inconsistent in the Land Acquisition Act to the applicability of the said rule. The right of the real owner of the property to get compensation is safeguarded by the third proviso to Section 33 of the Land Acquisition Act. Counsel for the respondent relied on the decision in Kishan Chand v. Jagannath Prasad, (1902) ILR 25 All 133 to justify the impleading of the additional party by the Court below. In (1902) ILR 25 All 133, the impleading was done in a reference under Section 30 of the Land Acquisition Act, The learned Judge observed:--

'The contention before us is that the Judge had no jurisdiction under the Land Acquisition Act to deal with any matter but the particular dispute which was referred to him by the Collector. The answer on the other side is that the provisions of Section 53 of Act No. I of 1894 are sufficiently large to allow the adaptation of Section 32 of the Civil Procedure Code to the matter before the Judge. The latter argument commends itself to us. We see no reason for restraining the wide language of Section 53 and the provisions of Section 32 of the Code of Civil Procedure appear to us to be in no way inconsistent with anything contained in Act No. I of 1894.'

13. Counsel for the appellant referred to me the decision of Raman Nayar, J., in 1958 Ker LT 941 to contend that in a reference for apportionment of compensation, it is not open to the Court to implead additional parties by applying Order 1, Rule 10, Civil Procedure Code. The reference in that case was one under Section 18 of the Land Acquisition Act and not under Section 30. The learned Judge overruled the plea for impleading in view of Section 21 of the Act. The decision in (1902) ILR 25 All 133 was distinguished on the ground that it related to a pre-award reference under Section 30 of the Act which is not governed by Section 21 thereof.

14. The question of impleading a party in a reference under Section 30 of the Land Acquisition Act under Order 1, Rule 10, Civil Procedure Code was considered by a Division Bench of this Court in 1963 Ker LT 595. Following (1902) ILR 25 All 133, the learned Judges pointed out:--

'So far as the court hearing a reference under Section 30 is concerned, by the express language of the Act itself the provisions of the Civil Procedure Code are made applicable and, therefore, we think, that under the provisions of Order 1, Rule 10 it is open to the Court to implead any person interested in the controversy pending before the Court provided the nature of the dispute referred to is not enlarged or altered.' The said decision is binding on me. The reference which has given rise to the appeal is not to decide the question of title to the property acquired as between the parties to the award. The wording of the reference is so wide that it cannot be contended that the jurisdiction of the court is restricted to the adjudication of the dispute between the parties before the Land Acquisition Officer.

15. When Section 33, 3rd proviso hat safeguarded the right of the real owner of the property to receive the compensation money when such a person has been directed to apply before the Court in which a reference as to apportionment is pending that is sufficient to confer jurisdiction in a reference under Section 32 of the Kerala Act to implead additional parties. If any jurisdiction is necessary this direction itself is a conferment of jurisdiction by the Land Acquisition Officer to the Civil Court. The objection, therefore, raised to the impleading of the second respondent as additional party cannot, therefore, stand. Point No. 2.

16. The question is whether there is sufficient evidence to uphold the title of the second respondent in the appeal to the property acquired. I need not examine the title of the 1st respondent to the compensation money as it was not upheld by the trial Court and he has not chosen to file an appeal against the decision. This dispute is now confined between the appellant and the second respondent. The appellant is the widow of Parthan Nair to whom certain properties have been allotted under Ext. B-1 partition deed of 5-10-1949. Properties in A Schedule 1 to 3 were allotted to Parthan Nair and properties in a Schedule 4 to 6 therein were allotted to the second respondent. A Schedule 2 includes a portion of survey No. 115/3 and A Schedule 5 also includes a portion of survey No. 115/3. The property which is the subject-matter of acquisition is also comprised in survey No. 115/3. The question to be considered is whether the property acquired is included in A Schedule 2 or A Schedule 5 in Ext. B-l. The learned Judge has found that it is included in A Schedule.

This is based no doubt on oral evidence. Both parties have not adduced any documentary evidence to point out whether the acquired property is included in A Schedule 2 or in A Schedule 5 of Ext. B-l. The proper thing would have been to identify the property with the help of a plan prepared by a Commissioner. That has not been done. R. W. 1 is the son of the appellant. After an analysis of that evidence the learned Judge has stated that he does not know anything about the matter and is not sufficient to prove the title of the appellant to the acquired property. The second respondent is R. W. 2. His evidence is unequivocal that the acquired property forms part of A Schedule item in Ext. B-1. He was not cross-examined on this aspect. The learned Judge would, therefore, conclude thus:--

'The evidence of R. W. 2 shows extremely clearly that the property acquired was in her possession and she alone had title to it at the time of the acquisition and not the first respondent.' I am satisfied that the above finding is correct.

17. I do not think I can entertain at this distance of time a prayer on behalf of the appellant for a remand to enable the appellant to adduce evidence.

18. I, therefore, dismiss the appeal But I make no order as to costs.


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