D.P. Singh, J.@mdashHeard counsel for the parties.
2. Brief facts for decision of this petition are that the Respondent Nos. 2 to 5 constituted a partnership firm and by a registered sale deed dated 23.7.1984 purchased khasra No. 35 from its owner Sri Khacheru in village Agraula, Pargana Loni, district Ghaziabad. Thereafter, they sold certain portion of the said land by carving out plots for residential purposes and the remaining land measuring more than six bighas was acquired by the State Government. An award was rendered granting compensation at the rate of Rs. 42 per sq. yard and the Respondent Nos. 2 and 3 received half of the compensation in accordance with their share in the property while Respondent Nos. 4 and 5 also received their share. However, a reference u/s 18 was lodged by Respondent Nos. 4 and 5 through the partnership firm for the entire acquired land of plot No. 35 which was allowed and the compensation was enhanced to Rs. 72 per sq. yard. But, when the decree was prepared it was only for half of the portion on the ground that the reference was only on behalf of Respondent Nos. 4 and 5. The Respondent Nos. 2 and 3 filed miscellaneous application under Sections 152 and 153, CPC before the District Judge for modification of the judgment and order dated 30.5.2001, stating that the reference was for the entire land and was made by the partnership firm and by mistake the decree has been prepared only for half of the land in view of their non-impleadment. After contest the said judgment was modified vide order dated 2.1.2003 and by order dated 21.4.2003 the account of the Petitioner for payment of compensation was attached. Both these orders are impugned in the present writ petition.
3. Learned Counsel for the Petitioner has firstly urged that the application under Sections 152 and 153, CPC was not maintainable and at best the Respondents could have made an application u/s 28A of the Land Acquisition Act. In support of his contention, he has relied upon a decision of the Apex Court in the case of
4. In Hansoli''s case (supra) the question before the Court was as to whether dismissal of a reference application u/s 18 would amount to not having made any application for the purposes of Section 28A. Thus, the ratio given therein would not help the Petitioner in support of this contention. In Hansoli''s case the Courts held that Section 28A was a beneficial provision and its interpretation should be such which advances its object.
5. From the record it is clear that the partnership firm had filed the reference through two of the four partners. From the application, which is on record, it is apparent that the reference was made for the entire land and it was not confined only to the share of the two partners. It is admitted to the Petitioner that the land was jointly bought by all the four partners and the judgment in the reference also shows that it dealt with entire land, but curiously the decree was prepared only in favour of the two partners. It cannot be doubted that when an undivided property is subjected to litigation, even one joint holder can resist the claim for the entire property. The four partners were co-owners and other co-owners would also be entitled for the enhanced compensation in accordance with their shares if it is enhanced for some co-owners. The Apex Court while considering the provisions of the Act, prior to the introduction of Section 28A, in the case of
Having regard to the view we propose to take and the manner of disposal intended to be given, it is unnecessary for us to even advert to the relevance or applicability of Section 28A of the Act to the case of nature before us. The 4th Respondent indisputably is a co-owner along with her children who were added as Petitioners 2 to 5 to the award dated 5.2.1986, in which case, even on the first principles of law one co-owner is entitled to have the benefit of the enhanced compensation given in respect of the other co-owners in a reference made at his instance in respect of the land acquired, which belonged to all of them, jointly. So far as the fact that in this case the 4th Respondent''s application for reference u/s 18 was rejected by the Tribunal ultimately on the ground that the reference was made on a belated application, does not make any difference and, is no reason, in our view, to differentiate the claims of such co-owners whose claims came to be really sustained and that of the 4th Respondent, for differential treatment.
6. It went on to hold that since real and substantial justice have been done to the parties it refused interference on mere technicalities.
7. Counsel for the Petitioner has insisted that once the appeal against reference order was pending before this Court, the application u/s 152 was not maintainable. This contention need not detain us any further in view of the ratio laid-down by the Apex Court in the case of
8. Even assuming that the Respondents ought to have approached the Court u/s 28A or that application u/s 152, CPC was not maintainable, this technical argument need not be considered especially in view of the decision in the cases of Jalandhar Improvement Trust and A. Viswanatha Pillai (supra) and as substantial justice has been done between the parties, no interference under the discretionary jurisdiction of Article 226 of the Constitution of India is required.
9. For the reasons given hereinabove, this petition fails and is dismissed. No order as to cost.
