H.L. Agrawal, J.@mdashThis second appeal by the plaintiff arises out of a suit instituted by him for recovery of Rs. 3090 from the defendant second party and Rs. 1455 from the defendant third party received by these defendants as compensation from the Land Acquisition Officer for acquisition of certain lands. A sum of Rs. 104 was also claimed as interest. The name of the State of Bihar, which was defendant first party, was struck out in the Court of Appeal below.
2. The case arose in the following circumstances. One Aghori Rai had two sons, Gena Rai and Kita Rai. The plaintiff is the grandson of Gena Rai and the defendant second party is the widow of his another grandson Sukho Rai Defendant third party is the widow of a son of Kita Rai, namely, Sarwan Rai According to the plaintiff''s case, his brother Sukho Rai died in a state of jointness, and he being the sole surviving member came in possession of the entire properties of the family. However, defendant second party executed in his favour a registered deed of surrender (Ext. 6) on 4-1-1956, and on the same day the plaintiff executed a deed of maintenance in her favour (Ext. 7) with respect to the properties which were acquired in the aforesaid land acquisition proceeding.
The plaintiff''s case against the defendant third party is that she executed a sale deed in his favour in respect of the land in question along with other lands on 13-5-1942 (Ext. A) for valuable consideration, and in this way the plaintiff got possession over those lands which were acquired in the name of defendant third party as well.
Defendant first party (the State of Bihar) acquired 2 acres of land for some public purpose. According to the further case of the plaintiff, the Land Acquisition Officer, in collusion with the defendants second and third parties, prepared the awards in their favour for the above-mentioned amounts according to their respective interest in the plot in question. When the plaintiff learnt of the same, he filed an objection, but it was dismissed and the monies were immediately paid to the said defendants. Accordingly, the plaintiff demanded the money and served a notice, but having failed to get the relief instituted the present suit after service of notice on defendant first party. The plaintiff also pleaded that sometime after the death of her husband, defendant second party took another husband, namely, one Kamleshwari Singh and also begot a daughter by this marriage, and thereby she ceased to have the right of maintenance under the deed of maintenance aforesaid.
3. Three separate written statements were filed on behalf of each set of the defendants, and one of the pleas taken with which we are concerned was that the suit itself was not maintainable, being barred under the provisions of the Land Acquisition Act. The further case of the defendant second party was that the deed of surrender was a sham and fraudulent transaction which was taken from her in the garb of a deed of partition. The allegation of remarriage was also seriously challenged by her as being entirely mala fide and motivated. The defendant third party also denied the execution of the sale deed in favour of the plaintiff. According to her case, she wanted to execute the sale deed in favour of her Samadhi Sarjug Choudhary, but the plaintiff by practising fraud upon her, got his own name scribed in the said document.
4. In the trial Court evidence was led by the parties on the question of remarriage of defendant second party, and the learned Munsif held in her favour of this question, disbelieving the plaintiff''s case altogether. At the same time he held the deed of, surrender to be a duly executed and genuine document. The trial Court also held that the sale deed executed by defendant third party in favour of the plaintiff was not fraudulent. It, however, found that the suit of the plaintiff in the absence of any legal notice u/s 52 of the Land Acquisition Act was not maintainable against the defendant first party, and that it was maintainable against the other defendants. The suit was, accordingly, decreed against defendants second and third parties, as claimed by the plaintiff, with costs.
5. Against the decision of the trial Court, both the defendant second and third parties filed an appeal, and the lower appellate Court, without considering all the facts and circumstances which had weighed with the trial Court in coming to the finding that the deed of surrender was not a fraudulent, but a genuine document, much less recording any clear finding in this regard to the contrary, purported to set aside the said finding in paragraph 16 of its judgment, by simply observing that by this document the said defendant was deprived of her right over the property. It affirmed the finding of the trial Court with respect to the execution of the sale deed by defendant third party in favour of the plaintiff. It, however, took a view that the suit in question was incompetent and not maintainable on account of the special remedy provided in the Land Acquisition Act itself. The plaintiff has, therefore, come up to this Court in second appeal.
6. During the pendency of the appeal in this Court, defendant second party, namely, respondent No. 1 died and it was urged in the affidavit filed on be-half of the respondents that this appeal has become incompetent in the absence of any substitution. It has been stated in the affidavit filed on their behalf that respondent No. 1 died on 15-12-1971, leaving behind a minor daughter Krishna Kumari aged about twelve years. This fact was challenged on behalf of the appellant and it was asserted on his behalf that he being the only heir of the said respondent, her interest had devolved upon him and there was no necessity of any substitution. A subsequent affidavit was filed on behalf of the respondents stating that the said Krishna Kumari was the adopted daughter of the said Maheshwari Devi. Learned counsel for the appellant, however, placed before me the deposition of Maheshwari Devi in the trial Court where, while challenging the plaintiff''s case of re-marriage, she had stated that she had no minor daughter. The statement of defendant second party herself clearly falsifies the assertion of the respondents that the defendant second party had any such daughter who could be aged twelve years in 1972. There is thus no force in the contention of the respondents that this appeal has become incompetent on this account and it must be held that on the death of defendant second party, namely, Maheshwari Devi, her interest devolved upon the plaintiff-appellant.
7. Learned counsel appearing for the plaintiff-appellant seriously challenged the finding of the Court of appeal on the point of the validity of the deed of surrender (Ext. 6) executed by the defendant second party. It has already been observed earlier that the trial Court has discussed this question in a great detail and on reference to a large number of documents, materials and circumstances, it has come to the conclusion that the said deed of surrender was not a fraudulent document. The lower appellate Court, however, in a very brief discussion and without referring to any of the circumstances or material, on which it could be held that the said document was a fraudulent one, has purported to take a different view on the ground that this arrangement deprived the said widow of her property. The said finding of the lower appellate Court cannot be upheld as it is well settled that the Court of appeal below while reversing a finding on fact and coming to a contrary conclusion must consider all the material reasons and circumstances which had weighed with that Court in coming to a particular finding. I would, accordingly set aside this finding and hold in agreement with the trial Court that the deed of surrender (Ext. 6) was a genuine and valid document.
8. I now take up the real question which has to be considered in a greater detail, namely, as to whether the plaintiff''s suit was competent and maintainable or was otherwise hit by any provision of the Land Acquisition Act. In this regard the case of the plaintiff is that the Land Acquisition Officer had prepared awards in the names of defendants second and third parties in their collusion, and having come to know of the same, he filed an objection to the same and also produced documents in support of his claim on 30-4-1963, but even without giving him any opportunity of being heard, his objection was dismissed forthwith and the compensation money was paid to the aforesaid defendants, keeping him in dark. The trial Court has held that the suit was competent against the defendants second and third parties and was incompetent only against the defendant first party.
The lower appellate Court, relying upon a decision In the case of9. The Supreme Court in the case of
As the Collector is not the authority empowered to adjudicate finally upon the title to compensation, which has to be decided by the Court on a reference u/s 18 or Section 30 of the Act or in a separate suit. This question has further come for consideration before different High Courts in India, including this Court and the Privy Council, some of which were cited at the Bar before me as well. It is not necessary to refer to all of them unnecessarily as a learned Single Judge of this Court on a reference to some of those cases in the case of
This line of cases, however, imposes the restriction on the person concerned, where a notice u/s 12(2) of the Act has been served upon him. u/s 12(2) of the Act, the Collector is bound to give immediate notice of the award to such of the persons interested as were not present personally or through their representatives when the award was made, and on receipt of the said notice, such a person was bound to make an application within the special period of limitation provided u/s 18 of the Act for reference to the Court, and if he foils to do so, he cannot challenge the award. It is not necessary for me to go deeper into the matter in view of a Bench decision of this Court in the case of Apurba Krishna Chandra v. State of Bihar (1973 BLJR 508) where this question has been directly answered and this Court has followed the view of the second line of cases referred to above, namely, that if a notice u/s 12(2) of the Act was served upon a person, he was bound to require the Collector to make a reference to the Court u/s 18 of the Act, and on his failure to do so, a separate suit for compensation did not lie as he cannot aspire for the same remedy by filing a civil suit,
In Apurba Krishna Chandra''s case, the Land Acquisition Officer had made a reference to the District Judge, Dhanbad, u/s 18 of the Act on the basis of certain objection raised before him regarding the payment of compensation determined by him. During the pendency of the reference, by virtue of the provisions of the Bihar Land Reforms Act, some of the lands acquired, vested in the State of Bihar. Accordingly, an application was filed before the District Judge by the State of Bihar claiming for the compensation money of those properties. This application was rejected by the District Judge on the ground that the Land Acquisition Officer had not made any reference in respect of the claim of the State of Bihar. Accordingly, the State of Bihar filed a suit for a declaration that it was entitled to a portion of the compensation on account of the vesting as aforesaid. There was a finding of fact recorded by the Courts below in that case that the plaintiff was duly served with the notice u/s 9(3) of the Act and had every knowledge of all stages of the proceeding under the Land Acquisition Act and to prefer its claim and apply for making a reference u/s 18 of the Land Acquisition Act. Accordingly, it was held that the suit of the State of Bihar was incompetent.
In the Supreme Court case of
The Supreme Court while dismissing the appeal held that a person who has not appeared in the land acquisition proceeding before the Collector may, if be is not served with the notice of the filing of the award, dispute as to the apportionment or as to the person to whom it is payable and apply to the Court for a reference u/s 30 of the Act, for which there was no period of limitation prescribed. The Collector u/s 30 of the Act is not bound to make a reference and may relegate the person raising a dispute as to the apportionment or as to the person to whom compensation is payable, to agitate the dispute in a suit.
10. With reference to the authorities referred to above and after examining the scheme of the Act, of course, it cannot be doubted that a complete machinery has been provided for settlement of the dispute, about the quantum of compensation, by resorting to the procedure prescribed by the Act as well as the dispute about the rights of the owners to compensation. But if notice of the filing of the award in question is not served on an interested person, he cannot be held to be bound to prosecute the remedy available under the Act itself as he may not apply to the Collector to make a reference u/s 18 of the Act, much less he was bound to make such an application. The other provision for making a reference in Section 30 being optional to the Collector himself, such a person need not make any such application at all u/s 30 and straightway file a suit in the Civil Court in its ordinary civil jurisdiction. This view finds well support from two cases of this Court, namely, (1)
11. I have already stated the relevant facts to show that the plaintiff''s definite case in the plaint is that the proceedings of the land acquisition case were collusive and that he was kept out of knowledge of the same. He had, therefore, no occasion to apply for a reference u/s 18 of the Land Acquisition Act within the prescribed time. In the written statement filed by defendant first party, it was not asserted that any notice of the filing of the award was served upon the plaintiff. Even assuming that the plaintiff could make an application u/s 30 of the Act, in view of the decision of the Supreme Court in the case of
12. It has already been seen that the defendant second party died during the pendency of this appeal. The appellant being the sole heir and legal representative of the said defendant second party, the interest of the plaintiff and the said defendant has merged. It is, therefore, not possible to pass any decree against the defendant second party. The plaintiff is, however, certainly entitled to a decree against the defendant third party for a sum of Rs. 1455. I would, accordingly, decree the suit of the plaintiff to the extent of Rs. 1455, against the defendant third party with pendente lite and future interest thereon at the rate of 6 per cent, per annum. The plaintiff is also entitled to the proportionate costs throughout.
13. In the result, the appeal is allowed as indicated above. The appellant will be entitled to proportionate costs against defendant third party throughout.
