IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI REGULAR FIRST APPEAL No.1082 of 2018 (DEC) BETWEEN :
K.VIGNESHWARA BALIGA S/O.K.SRINIVAS BALIGA AGED 40 YEARS REP. BY GPA-HOLDER SRI.K.SRINIVAS BALIGA PRESENTLY RESIDING AT:
NEAR NITTUR VITTALA SHETTY COMPOUND, NITTUR, PUTTUR VILLAGE, UDUPI TALUK – 576 103. ... APPELLANT (BY SRI.B.M.BALIGA, ADVOCATE) AND:
1. H.PADMANABHA SHENOY S/O.LATE H.VITTAL SHENOY AGED ABOUT 80 YEARS R/O.HAVANJE VITTAL SHENOY COMPOUND, KUNJIBETTU POST SHIVALLI VILLAGE UDUPI – 576 102.
2. MR.K.N.RAMESH, MAJOR (FATHER’S NAME NOT KNOWN) OFFICE OF CHIEF ELECTORAL OFFICER NIRVACHANA NILAYA MAHARANI’S COLLEGE CIRCLE SHESHADRI ROAD BANGALORE – 560 001.
3. THE LAND ACQUISITION OFFICER AND ASST. COMMISSIONER KUNDAPUR SUB-DIVISION KUNDAPUR – 576 201.
(UDUPI DISTRICT).
4. THE COMMISSIONER UDUPI CITY MUNICIPAL COUNCIL UDUPI – 576 101. ...RESPONDENTS (BY SRI.T.I.ABDULLA, ADVOCATE FOR R-1, SRI.S.R.DODAWAD, ADVOCATE FOR R-2, G.A. FOR R-3) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT DATED 26.04.2018 IN O.S. NO.20/2017 PASSED BY THE HON’BLE ADDL. SENIOR CIVIL JUDGE & ACJM., UDUPI DISTRICT, IN O.S. NO.20/2017 PARTLY DISMISSING THE SUIT AS AGAINST DEFENDANTS NO.2 TO 4 AND CONSEQUENTLY TO RESTORE THE SUIT BEARING O.S. NO. 20/2017 AS AGAINST DEFENDANTS NO.2 TO 4 ON THE FILE OF THE HON’BLE ADDL. SENIOR CIVIL JUDGE, UDUPI AND ETC., THIS REGULAR FIRST APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT I.A.No.1/2019 has been filed by the appellant seeking early hearing of the application. In the circumstances, we have heard learned counsel for the appellant and learned counsel for respondent Nos.2 and 4. Respondent No.1 is served and unrepresented. There is no representation on behalf of respondent No.3.
2. The appellant is the plaintiff in O.S.No.20/2017 which is pending on the file of the Court of Additional Senior Civil Judge at Udupi as against the first respondent herein / defendant No.1 in the suit. The suit has been dismissed as against defendant Nos.2 to 4 who are respondent Nos.2 to 4 herein by order dated 26.04.2018 on a preliminary issue. Being aggrieved by the dismissal of the suit as against defendant Nos.2 to 4 herein, the plaintiff in the said suit has preferred this appeal.
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the trial Court.
4. Briefly stated the facts are that the plaintiff filed the suit through his General Power of Attorney Holder seeking the relief of declaration that the plaintiff was the owner of land measuring 1 cent in Sy.No.122/9A in Shivalli Village as on 2008-09 and on the date when possession of the said land was taken over by the defendant Nos.2 to 4 pursuant to acquisition proceeding and that the plaintiff is entitled to compensation of Rs.11,00,720/-; that the order dated 13.08.2010 in LAC No.1/2010 passed by the Civil Court (Sr.Dn.) granting a sum of Rs.11,00,720/- to defendant No.1 was null and void and that defendant Nos.1 to 4 are jointly and severally liable to pay the plaintiff a sum of Rs.22,56,400/- with interest at the rate of 18% per annum from the date of suit till its realization.
5. It is the case of the plaintiff that he was the absolute owner of the land bearing Sy.No.122/9A, measuring 1 acre 25 cents and land bearing Sy.No.122/10A, measuring 6 cents in Shivalli Village, by virtue of gift deed dated 12.11.2004 which was gifted by his father, the original owner of the said lands and who was carrying on a hotel business in the name and style of Dwadashi Hotel. That the said lands were the subject matter of proceedings under the Karnataka Land Reforms Act, 1961. The said lands were allotted to one – H.Dayanand Shenoy, brother of defendant No.1, by virtue of will dated 17.08.1981. The said H.Dayanand Shenoy acquired the right over the property under the will dated 17.08.1981 and the same was originally rented to the father of the plaintiff in the year 1987 and subsequently, he sold the same to the father of the plaintiff as per sale deed dated 15.09.1997. The father of the plaintiff, who is the GPA holder of the plaintiff transferred the said land to the plaintiff by executing a settlement deed dated 12.11.2004. It is the further case of the plaintiff that 3.25 cents of land in Sy.No.122/10A and 1 cent of land in Sy.No.122/9A were acquired for the purpose of improving the drainage system vide notification dated 10.09.2008. The land was acquired by defendant No.2, who was the then Land Acquisition Officer / Assistant Commissioner, Kundapura, Sub-division, holding the office of the defendant No.3 and the acquiring Authority was defendant No.4, Udupi City Municipal Council. The said land was for the purpose of widening the Kalsanka – Ambagilu road into a double road and drainage system. That two notifications were issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (for short ‘the Act’). In the preliminary notification, at Sl.No.10 with regard to Sy.No.122/9A, plaintiff’s name was also shown as the interested person. But subsequently, in the award the name of the plaintiff was deleted and name of defendant No.1 only was shown and award amount of Rs.11,00,720/- was awarded in respect of 1 cent of land to defendant No.2, although the said land belonged to the plaintiff.
6. The plaintiff has alleged collusion between defendant No.1 and defendant Nos.2 to 4 with regard to permitting defendant No.1 to withdraw the above amount of Rs.11,00,720/- in LAC No.1/2010. Therefore, the plaintiff sought for the aforesaid reliefs namely, declaratory relief that he is entitled to the award and also that the order dated 13.08.2010 passed in LAC No.1/2010 by the Civil Court (Sr.Dn.) granting award of Rs.11,00,720/- to defendant No.1 was null and void.
7. In response to the suit summons and Court notices, defendant Nos.1 to 4 appeared through their respective counsel and filed their written statement. Defendant No.1 filed its written statement denying the averments made in the plaint and contended that the suit was barred by limitation and was bad for non-compliance of the mandatory provision under Section 80 and Order XXVII of Code of Civil Procedure, 1908 (CPC) that the suit was not maintainable as the remedy of the plaintiff was to challenge the judgment passed in LAC Nos.1/2010 and 19/2010 by way of an appeal or assail the award No.7/2009-10 passed by the defendant No.3 on 13.11.2009. Therefore, the first defendant sought for dismissal of the suit.
8. Defendant No.3 filed its written statement contending that the allegations were false and that defendant No.2 being the then Land Acquisition Officer had discharged its duties in its Official capacity and defendant No.3 was not a necessary party. Defendant No.4 also denied the allegations made in the plaint and sought for dismissal of the suit.
9. Learned counsel for respondent No.2 submits that respondent No.2 / defendant No.2 had also filed written statement of objections in the suit, though in paragraph No.7 of the impugned order it has been stated that he had not filed any written statement.
10. On the basis of the rival pleadings, the trial Court framed eleven issues and five additional issues as per orders dated 12.01.2018 and 09.02.2018 respectively. Issue Nos.1 and 5 were treated as preliminary issues. The same read as under:-
1. Whether the suit is bad for non-compliance with the mandatory provision of Section 80 and Order XXVII of Code of Civil Procedure, 1908?
x x x 5. Whether the suit is maintainable?
11. After hearing the learned counsel for the respective parties, the trial Court answered Issue No.1, partly in the affirmative and additional Issue No.5 in the affirmative and held that the suit was not maintainable as against defendant Nos.2 to 4 and dismissed the suit as against them. Consequently, the suit was proceeded only against defendant No.1. Being aggrieved by the said order, the plaintiff has preferred this appeal.
12. We have heard learned counsel for the appellant / plaintiff and learned counsel for respondent Nos.2 and 4 extensively and perused the material on record.
13. Appellant’s counsel contended that the trial Court was not right in holding that the suit as against defendant Nos.2 to 4 was not maintainable and thereby, answered preliminary issue No.5 in the affirmative. He contended that the appellant had sought for a declaratory relief vis-à-vis title to 1 cent of land that was acquired by defendant No.4 and also to declare that the order dated 13.08.2010 passed in LAC No.1/2010 by the Civil Court (Sr.Dn.) granting award of Rs.11,00,720/- to defendant No.1 was null and void, as the plaintiff had the right, title and interest to the extent of land and only plaintiff was entitled to the said amount. That defendant Nos.2 to 4 in collusion with defendant No.1 had released the amount to defendant No.1 and hence, defendant Nos.2 to 4 were made parties to the suit. The trial Court was not right in holding that the suit was not maintainable as against defendant Nos.2 to 4 as it is on account of the action taken by the defendant Nos.2 to 4 in collusion with defendant No.1 that the plaintiff was deprived of his right to seek compensation of Rs.11,00,720/- which was erroneously paid by defendant Nos.2 to 4 to defendant No.1. He contended that the impugned order may be set aside and defendant Nos.2 to 4 may be continued as defendants in the suit and a direction may be issued for the disposal of the suit in accordance with law.
14. Per contra, learned counsel for respondent Nos.2 and 5 submitted in unison that the impugned order would not call for any interference in this appeal and that a suit cannot be filed to challenge an order passed in LAC No.1/2010 dated 13.08.2010 by the Civil Court (Sr.Dn.) granting Rs.11,00,720/- as compensation to defendant No.1. That the Reference Court has acted as a statutory Authority in passing the order dated 13.08.2010 in LAC No.1/2010 and that the plaintiff / appellant was aggrieved by the said order. The order passed by the Reference Court could not have been subject matter of challenge in the suit. They further submitted that if at all the appellant has any grievance with regard to defendant No.1 receiving the compensation amount, the appellant can always proceed and prosecute the suit as against defendant No.1. Hence, that there is no merit in this appeal.
15. Learned counsel for respondent No.2 submitted that the plaintiff had filed a memo seeking deletion of defendant No.2 from the array of parties and therefore, the appellant – plaintiff cannot have any grievance with regard to the deletion of the defendant No.2 in the suit.
16. Having heard learned counsel for the respective parties, the following points would arise for our consideration:-
1. Whether the trial Court was justified in holding that the suit was not maintainable as against defendant Nos.2 to 4 and hence, dismissed the suit as against them, by answering preliminary Issue No.5 in the affirmative?
2. What order?
17. The detailed narration of facts and contentions would not call for reiteration except highlighting the prayers sought by the appellant / plaintiff in the suit namely-
1. A declaration to declare that the plaintiff was the owner of land measuring 1 cent in Sy.No.122/9A in Shivalli as on 2008-09 as on the date of the acquisition and taking possession of land by defendant Nos.2 to 4 and therefore, entitled to compensation of Rs.11,00,720/-.
2. The order dated 13.08.2010 passed in LAC No.1/2010 by the Civil Court (Sr.Dn.) granting compensation of Rs.11,00,720/- to defendant No.1 was null and void.
3. Defendant Nos.1 to 4 are jointly and severally liable to pay to the plaintiff a sum of Rs.22,56,400/- with interest at the rate of 18% per annum from the date of suit till its realization and to confirm the order of attachment before the judgment of the defendant No.1’s schedule property as prayed in I.A.No.1.
18. A close reading of the aforesaid prayers would at once indicate that the plaintiff sought to challenge the order dated 13.08.2010 passed in LAC No.1/2010 by the Civil Court (Sr.Dn.) i.e., Reference Court awarding compensation of Rs.11,00,720/- to defendant No.1 pursuant to the land acquisition process. If the appellant / plaintiff was indeed aggrieved by the said order, the Act prescribes an appellate remedy against such an order. It is necessary to observe that when the Civil Court acts under the provision of the aforesaid Act, it is by way of discharging its statutory functions and adjudication in such cases is pursuant to the consideration of a separate and independent Authority for the purpose of adjudication of the compensation to be awarded to the persons entitled to it and also to decide as to who is the person really entitled to such compensation. Therefore, when the plaintiff aggrieved by the order dated 13.08.2010 passed in LAC No.1/2010 by the Reference Court, he could have always filed an appeal against the said order in terms of Section 54 of the said Act or file a review petition under Order XLVII Rule 1 of CPC, against the order passed by the statutory Authority namely, the Reference Court.
19. In the instant case, the Reference Court could not have adjudicated upon the subject matter of challenge in the Civil Court by filing a suit in terms of Section 9 read with Section 26 and Order VII Rule 1 of CPC. Therefore, the relief could not have been the subject matter of the suit filed by the appellant / plaintiff. Then, while considering the other reliefs, it is noted that the appellant / plaintiff sought for a declaration that he was the owner of the land measuring 1 cent in Sy.No.122/9A in Shivalli village as on 2008-2009 and therefore, was entitled to compensation pursuant to the acquisition of the said land by defendant Nos.2 to 4.
Admittedly, the compensation amount of Rs.11,00,720/- has been paid by defendant Nos.2 to 4 to defendant No.1. Therefore, it is for the appellant / plaintiff to establish in the suit that he was entitled to the said compensation vis-à-vis defendant No.1. The suit is not dismissed as against defendant No.1, the plaintiff can still proceed against defendant No.1 in the said suit.
20. In the circumstances, the trial Court was justified in holding that the suit as against defendant Nos.2 to 4 was not maintainable as they have discharged their liability under the provisions of the Act vis-à-vis the acquisition of 1 cent of land in Sy.No.122/9A in Shivalli village by taking possession of the said extent of land and paying compensation to defendant No.1 If it is the case of the plaintiff that defendant No.1 was not the person who was entitled to the said compensation and that the plaintiff was really entitled to the said amount, the same could have been challenged or sought for before the Reference Court or by challenging the judgment dated 13.08.2010 passed in LAC No.1/2010 in accordance with the provisions of the Act. The same not having been done would not enable the plaintiff to challenge the said order in a suit filed before the trial Court.
21. That apart, despite holding that the suit is not maintainable as against defendant Nos.2 to 4 who have discharged their liability in respect of the lands in question, the controversy as to who is entitled to the said compensation namely, plaintiff or defendant No.1, is still at large and plaintiff can still establish that he was really entitled for the said compensation and thereby, seek recovery of the same from defendant No.1 in the event he is successful in the suit. That is why, the trial Court has not dismissed the suit as not maintainable as against defendant No.1.
22. In the circumstances, we find that there is no infirmity in the order of the trial Court in dismissing the suit as against defendant No.2 to 4 as not maintainable. There is no merit in the appeal. The appeal is dismissed.
23. In view of the dismissal of the appeal, I.A.No.1/2019 is disposed.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE VMB