1. This appeal arises out of a dispute about the apportionment of a sum of Rs. 1,242-15-2 awarded as compensation for land taken under the provisions of the Land Acquisition Act, I of 1894. The first party, who is the appellant before us, claims that he had a lakhiraj title to the land acquired. The second party claim as patnidars and darpatnidars. The Land Acquisition Collector made an award in favour of the lakhirajdar and paid him the compensation. Then as the patnidars did not admit the title of the lakhirajdar, he referred the case to the Civil Court under Section 103 of the Act. The learned Subordinate Judge who heard the reference held that the first party had no lakhiraj right to the land and that the maliks, viz., the patnidars and darpatnidars were entitled to get the compensation that had been awarded. He directed that the maliks should get the above compensation from the Government and that the Government would be at liberty to realise from the first party the sum which had been wrongly paid to him. Against this decree the first party has preferred this appeal and the second party, after an unsuccessful application for review, have taken a cross-objection that the Court ought to have directed, the first party to pay them the compensation with interest from the date of his withdrawal-It is first contended on behalf of the appellant that the Collector, after he had paid the amounts, had no jurisdiction to make an order of reference to the Civil Court under Section 20 of the Land Acquisition Act. In support of this contention reliance is placed on the case of Gobindaranee Bailee v. Brinda Ranee Dasee 33 C. 110 : 12 C.W.N. 1039. In this case the learned Judges observed that it was open to doubt whether Section 18 or Section 3) of the Act can have any application after the money has actually been paid away. They, however, came to no decision that would be binding on us on this point and as pointed out in Mrinalini Dasi v. Abinash Chunder Dutt 6 Ind. Cas. 508 : 14 C.W.N. 1024 : 11 C.L.J. 533 a different view was taken in the case of Nobin Kali Debi v. Banalata Bibi 32 C. 921 : 2 C.L.J. 595. In our opinion though the Act clearly contemplates that when there is a dispute as to apportionment the reference to the Civil Court under Section 30 should be made before any payment has been made, still there is nothing in the Act that prohibits the Land Acquisition Collector from acting as he has done in this case, namely, making the reference after payment of compensation to one of the parties. When such a reference has been made, it is undesirable that the party who succeeds in showing that the Collector's order was wrong be compelled to resort to a regular suit to compel the opposite party to refund the compensation to which be has been held not to be entitled, nor can the rights of the opposite party be in any way prejudiced by the reduction of litigation. Before the lower Court the appellant raised no objections to the proceedings and unless those proceedings were without jurisdiction it is too late for him to plead prejudice. As we hold that the lower Court had jurisdiction we, therefore, decide against the first objection taken on behalf of the appellant.
2. On the merits we think the learned Subordinate Judge is right in holding that the appellant has no title to the land acquired. The unregistered deed of sale which is his title-deed is of a very suspicious appearance and in the absence of direct evidence of its execution and having regard to the unsatisfactory nature of the evidence called to prove the signatures of the attesting witnesses, we can attach no weight to it. The evidence as to possession is contradictory, but apparently the land which consists of a tank and its bank was regarded as of no value before the land acquisition proceedings were contemplated. The owner probably did little to assert his right or to prevent casual grazing and fishing by the villagers generally. However that may be, we are certainly not disposed on a perusal of the recorded evidence to reverse the finding of the lower Court on this point. The omission of the appellant to file any road-cess return with regard to this land goes strongly against his claim to have asserted a lakhiraj title to it. It is contended that the onus has been wrongly thrown on the appellant. This, however, is not a case in which the onus lies on the zemindar to prove the land is mal against a person claiming it as lakhiraj. The parties to hose proceedings claim the property as being in separate mahals. Also obviously a claimant in a land acquisition proceeding can get no share of the compensation with out establishing either title to or possession of the land acquired and the appellant has failed to prove either in this case.
3. We think the cross-objection taken by the respondent must be allowed. Government was not a party to these proceedings and the lower Court, therefore, could not direct in its decree that the amount payable to the second and third parties should be realised from Government. The order also is unnecessary. The money has to be paid by the first party and to be received by the second and third parties and it is simpler that the payment should be made directly by the former to the latter. The respondents are entitled to interest from the date of withdrawal which we allow at the rate of 6 per cent.
4. We dismiss the appeal with costs.
5. We allow the cross-objection taken by the respondent and vary the decree so far as it directs that the sum of Rs. 1,242-15-2 be realised from Government by the second and third parties and that Government will recover the said sum from the first party. This sum will be paid by the first party to the second and third parties with interest at 6 per cent. per annum from the date of withdrawal. The appellants will also pay the respondent's costs, if any, on this cross-objection.