Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 318 of 2004
Pandurang Undir Barashe .. Appellant
(Orig.plff)
V/s
1. Genmal T. Parmar @ Marwadi
2. Mangilal Tulshiram Parmar
3. Khmechand Manrupaji Parmar
since deceased through LRs
Smt.Radhabai Khemchand Parmar
4. Lalchand Manrupaji Parmar
5. Laxmichand Shankarlal Parmar
since deceased through LRs
5/1 Smt.Shantibai Laxmichand Parmar
5/2 Ratan Laxmichand Parmar
5/3 Ashok Laxmichand Parmar
5/4 Smt.Pushpa Laxmichand Parmar
5/5 Smt.Bebibai Laxmichand Parmar
5/6 Smt.Varsha Lamxichand Parmar ..Respondents
(Orig.defts)
Shri C.G.Gavnekar for Appellant
Shri P.S.Dani for Respondent nos.2 and 4.
CORAM:S.R.SATHE,J.
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DATED:14th Feb. 2006
ORAL JUDGMENT ORAL JUDGMENT :- ORAL JUDGMENT
1. The Appellant original plaintiff in Special Civil
suit No.8 of 1983 has preferred this appeal against the
judgment and order passed by the 1st Ad Hoc Additional
District Judge, Raigad-Alibag in Civil Appeal No.84 of
2000 whereby the order passed by the learned trial Judge
declaring that the plaintiff is entitled to claim
earnest money of Rs.500/- and interest of Rs.490/- from
compensation awarded by the Land Acquisition Officer of
the said lands was set aside and appeal was dismissed.
For the sake of convenience hereafter the parties shall
be referred to as the plaintiff and defendants.
2. Brief facts giving rise to this appeal are as under
. The suit lands described in detail in para 1 of the
plaint were owned by one Tulsiram, deceased father of
the defendant nos 1 and 2 and Motiram, deceased father
of defendant nos.3 and 4. Deceased Tulsiram and
deceased Motiram were real brothers. Defendant no.5
Laxmichand is the cousin of defendant nos.1 to 4.
Deceased Tulshiram and Motiram executed an agreement to
sell dated 17-4-1963 in favour of plaintiff and agreed
to sell the suit land for Rs.5,000/- and accepted
Rs.500/- as earnest money. On the date of said
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agreement plaintiff was also put in possession of the
suit lands. On 20-4-1964 the deceased Tulshiram and
defendant no.3 Khemchand issued notice to the plaintiff
and terminated an agreement to sell and asked plaintiff
to hand over possession of the suit land. However,
plaintiff did not comply the said notice hence Tulshiram
and Khemchand issued second notice dated 19-1-1966 and
again asked for ;possession. However, curiously enough,
though the plaintiff had not returned the possession,
deceased Tulshiram and Khemchand or their heirs did not
take any further steps for acquiring possession from the
plaintiff.
3. On 3-2-1970 the suit lands were acquired by the Land
Acquisition officer and Notification to that effect was
issued under Section 11 of the said Act. As plaintiff
was in actual possession of the suit land he came to
known that defendants are trying to secure compensation
in respect of acquisition of the suit lands. He
therefore approached the Land Acquisition office.
However, he was informed that he may get his right
determined in the civil court. Hence plaintiff filed
present suit for a declaration that the defendants are
not entitled to receive compensation amount out of
acquisition proceedings of the suit land and on the
contrary plaintiff is having right to receive the said
compensation. He also prayed for permanent injunction
restraining the defendants from receiving the
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compensation amount. The plaintiff also averred in the
plaint that as the defendants did not take any steps for
getting possession after notice dated 19-1-1966 and
plaintiff remained in possession of the said land
continuously, he became owner of the said land by
adverse possession.
4. The defendants filed their written statement at Exhs
24 and 25 and opposed the suit claim. They contended
that the plaintiff failed to comply his part of the
contract inasmuch as he did not pay consideration amount
as agreed nor he filed any suit for specific
performance.According to them plaintiffs had no
right,title or interest in the suit property and as such
he was not entitled to claim any compensation out of the
land acquisition proceedings of the suit land.They also
contended that plaintiff has not become the owner of the
suit land by adverse possession as alleged by him.
Hence on all these grounds the defendant no.1 prayed for
dismissal of the suit.
5. On these pleadings the learned trial Judge framed
issues on Exh.2. After considering the evidence adduced
by both the parties, the learned trial Judge came to the
conclusion that the plaintiff had received possession of
the suit land under agreement to sell dated 17-4-1963.
He did not pay further amount as contemplated and failed
to prove that he was ready and wiling to perform his
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part of the contract. The learned trial Court also came
to the conclusion that the plaintiff has failed to prove
that he has become owner of the suit land by virtue of
adverse possession. The learned trial Court also held
that plaintiff is not entitled to get compensation
amount as alleged but he is certainly entitle for refund
of earnest money and interest thereon. He therefore
decreed the suit accordingly.
6. Being aggrieved by the said order the plaintiff
filed Regular Civil Appeal NO.84 of 2000. After hearing
argument of both the learned Advocates the first
Appellate Court also came to the conclusion that the
plaintiff had not become the owner by virtue of adverse
possession nor he was entitled to get any compensation
amount as he is not "person interested" as contemplated
under Section 3(b) of the Land Acquisition Act, 1894
(hereinafter referred to as the said Act). He also held
that the plaintiff is not even entitle to refund of
earnest money out of compensation amount arising out of
the land acquisition proceedings. He therefore partly
allowed the appeal and set aside the declaration granted
in favour of the plaintiff.
7. the above mentioned order is challenged by the
plaintiff in this second Appeal. The appeal is heard
finally at the admission stage.
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8. In this appeal before me, Shri Gavnekar, learned
Advocate for the plaintiff has urged only two points.
Firstly, he submitted that both the Courts below have
failed to consider that right to receive compensation
for compulsory acquisition of land under the said Act is
not restricted to those persons who have a legal or
proprietary interest or estate in land and is available
to all persons who have a right or claim to land, even
if such right or claim does not amount to legal or
proprietary estate or interest in the land. According
to him the plaintiff being in possession of the suit
land since 1963 till the acquisition of the land and
actual delivery of possession is by him the plaintiff
has a right to receive the compensation. As against
this the defendants right if any has already been
extinguished. Secondly, he canvased before me that the
trial Court had in fact held that the plaintiff is
entitled to claim amount of earnest money together with
interest out of the said compensation proceedings but
though there was no appeal filed by the defendants
against the said order the first Appellate Court has set
aside the said order in the appeal filed by the
plaintiff and thereby committed an error of law. He,
therefore, submitted that an appeal be allowed and the
plaintiff’s suit be decreed.
9. As against this Shri P.S.Dani,learned Advocate for
the defendant has supported the judgment and order
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passed by the first appellate Court.
10. It is not in dispute that deceased Tulshiram,
defendant no.3 executed an agreement to sell in respect
of the suit lands in favour of the plaintiff on
17-4-1963 and agreed to sell the suit land for sum of
Rs.5,000/- after accepting the earnest money of rs.500/-
and putting plaintiff in possession of the suit land.
As per the terms and conditions of the said agreement
further amount of Rs.1500/- was to be paid by the
plaintiff by end of March 1964 and subsequent
instalments were to be paid in the year 1965 and 1966.
It is also an admitted fact that the plaintiff did not
pay the subsequent instalments as agreed nor he filed
suit for specific performance of the contract at any
time. Admittedly,in the year 1964 the defendants nos,.1
and 3 had issued notice to the plaintiff and informed
him that his agreement has been cancelled and he was
called upon to hand over possession. Similar notice was
issued to plaintiff even in the year 1966. However, no
action was taken by the defendant in pursuance of the
said notices and admittedly plaintiff continued in
actual possession of the suit land. Accordingly the
suit lands were in his possession till the year 1984,
when the possession was taken from him by the Land
Acquisition Officer.
11. The substantial question of law is whether
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plaintiff is entitled to get compensation out of
acquisition proceedings of the suit land or whether the
defendants being owners of the suit land are only
entitled to get entire amount of compensation. Answer
to this question depends on the point as to whether the
plaintiff is a "person interested" as contemplated under
Section 3(b) of the said Act. In order to find out what
person interested means, it would be necessary to see
the relevant provisions. Section 3(b) says :
3. Definitions - In this Act, unless there is
something repugnant in the subject or context,-
a) x x
(aa) x x
(b) the expression "person interested"
includes all persons claiming an interest in
compensation to be made on account of the
acquisition of land under this Act, and a
person shall be deemed to be interested in
land if he is interested in an easement
affecting the land.
12. It is argued on behalf of the plaintiff that as the
plaintiff is in actual possession of the suit land since
the year 1963 and defendants did not take any steps to
get back possession though they had in fact issued
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notices regarding termination of the agreement to sell,
the plaintiff has become owner by virtue of adverse
possession. It is also submitted that right of
defendants has in fact come to an end as they have not
taken any action to secure possession within 12 years
from second notice, issued in the year 1966. However,
from perusal of the record it is very clear that the
contention as regards to adverse possession has been
given up by the plaintiff. In fact in his deposition he
has clearly stated that he never sent notice or informed
by any mode to the defendants that he was cultivating
the suit lands by adverse possession. What is more to
be noted is that admittedly plaintiff entered in the
suit land under an agreement to sell. So in a way it
was a permissive possession. When such is the position
merely because subsequently the defendants terminated
the said agreement but did not take action to secure
possession it cannot be said that the plaintiff has
acquired title by virtue of adverse possession. It is
needless to say that even if the plaintiff’s possession
is called unauthorised still then it cannot be said that
he has perfected his title by virtue of adverse
possession nor it can be said that right of defendants
to secure possession has come to an end. So, one thing
is certain that the plaintiff cannot claim any
compensation on the basis that he has become owner by
adverse possession.
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13. Naturally, the next question for our consideration
is whether merely because at the relevant time the
plaintiff was in actual possession of the suit land it
can be said that he is a ‘person interested’ as
contemplated under Section 3(b) of the said Act. Shri
Gavnekar, learned Advocate for the plaintiff has drawn
my attention to a case Dossibai Nanabhoy Jeejeebhoy V/s
P.B.Bharucha - LX BLR 1206 LX BLR 1206 wherein the Division Bench of LX BLR 1206
this Court has held that right to receive compensation
for compulsory acquisition of land under the Land
Acquisition Act 1894 is not restricted to those persons
who have a legal or proprietary interest or estate in
the land and is available to all persons who have a
right to claim land, even if such right or claim does
not amount to legal or proprietary estate or interest in
the land. This proposition is not disputed and cannot
be disputed. However, the facts of the said case and
the facts of the case in hand are quite different. That
was a case where the first claimant was willing to grant
lease and the second claimant was willing to accept the
lease and the question arose as to whether the proposed
lessee is entitled for compensation and what would be
apportionment. However, in the instant case admittedly
the plaintiff has failed to pay balance consideration
amount as per the stipulation embodied in the agreement
to sell. Not only that but he has failed to prove that
he was ready and willing to perform his part of the
contract. Admittedly, he did not file any suit for
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specific performance of the agreement to sell. So.
merely,because he continued in possession and defendants
the original owners did not take any action against him
to get back the possession it cannot be said that he has
acquired a right to accept compensation as a ‘person
interested’.
14. As against this, Shri P.S.Dani, learned Advocate
for the defendant, has placed reliance on a case of
Mahammad Akil Khan V/s Premraj Jawanmal Surana and Anr.
AIR 1972 Bom 217 AIR 1972 Bom 217 wherein Division Bench of this Court AIR 1972 Bom 217
has made following observations.
"a contract for sale of immovable property
is a contract that a sale of such property
shall take place on terms settled between
the parties. It does not of itself, create
any interest in or charge on such property.
When the seller and buyer are both willing
to perform their respective parts of the
contract but the specific performance of the
contract has become impossible by the
unexpected interference by the State in
acquiring the property, the buyer will be
entitled to recover from the seller any
purchase money properly paid together with
interest and also earnest with interest and
to that extent he would have had under
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Section 55(6)(b) of T.P. Act a charge on
the land".
15. In fact relying on this authority the learned trial
Court granted relief of declaration in favour of the
plaintiff that he is entitled to claim earnest money
with interest from the compensation amount. Of
course,in the above cited ruling both the parties were
willing to perform their part of contract while in the
instant case it does appear that it is not so and the
contract has also frustrated as a result of acquisition
of land. So, having regard to the peculiar facts of the
case it cannot be said that the plaintiff is a "person
interested" as per Section 3(b) of the said Act or he is
a person interested in the land as contemplated under
Section 9 of the said Act.
16. So, when we find that the possession of the land is
in fact taken by way of part performance as per the
agreement to sell and subsequently the said agreement
has been cancelled he was in fact not entitled to retain
the possession and he should have been required to hand
over the same to the defendants. Considering this
aspect both the courts below have rightly held that the
plaintiff is not entitled to get any share in the amount
of compensation in lieu of acquisition of the suit land.
17. In my opinion, having regard to the facts and
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circumstances of the case plaintiff was even not
entitled to get back the earnest money also because
right to receive earnest money was also lost by him as
he did not file any suit for specific performance and
alternatively for refund of earnest money. However, the
fact remains that the trial court declared that the
plaintiff is entitled to get his earnest money with
interest. This finding is not challenged by the
defendants, they did not file any appeal nor they filed
any Cross Objections, when plaintiff filed the first
appeal. So, the learned Advocate for the plaintiff has
rightly submitted that the order passed by the first
appellate court setting aside the declaration that was
granted in favour of the plaintiff is wrong. He has
placed reliance on a case Banarsi and Ors V/s Ram Phal
(2003) 9 SCC 606 (2003) 9 SCC 606 wherein the Apex Court has observed (2003) 9 SCC 606
that:
"Where in a suit for specific performance of
contract of sale, relief of compensation or
refund of money/deposit in case of refusal
of specific performance also sought by
plaintiff and court while refusing the
larger relief of specific performance,
granted the smaller relief of compensation
or refund, the plaintiff would be a person
aggrieved by the decree and when appeal is
filed by defendant against the grant of
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relief of compensation or refund, held, the
plaintiff as a respondent can seek the
relief of specific performance of contract
or modification of decree only by taking
cross objection or by filing appeal of his
own - In absence of cross objection or cross
appeal,modification of the decree and grant
of relief of specific performance by the
appellate court would be without
jurisdiction."
18. So, the order of the first appellate court setting
aside the declaration granted by the trial court has to
be set aside.
19. The Appeal is partly allowed. The order passed by
the 1st Appellate Court on 18-12-2003 setting aside the
order declaring that the plaintiff is entitled to claim
earnest money of Rs.500/- and interest of Rs.490/- from
the compensation awarded by the Land Acquisition officer
for the said lands is quashed and the order passed by
the Court of C.J.S.D., Alibag on 27-2-1998 in Special
Civil Suit No.8 of 1983 is restored.
. Under the circumstances of the case parties to bear
their own costs of this appeal.
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(S.R.SATHE,J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 318 of 2004
Pandurang Undir Barashe .. Appellant
(Orig.plff)
V/s
1. Genmal T. Parmar @ Marwadi
2. Mangilal Tulshiram Parmar
3. Khmechand Manrupaji Parmar
since deceased through LRs
Smt.Radhabai Khemchand Parmar
4. Lalchand Manrupaji Parmar
5. Laxmichand Shankarlal Parmar
since deceased through LRs
5/1 Smt.Shantibai Laxmichand Parmar
5/2 Ratan Laxmichand Parmar
5/3 Ashok Laxmichand Parmar
5/4 Smt.Pushpa Laxmichand Parmar
5/5 Smt.Bebibai Laxmichand Parmar
5/6 Smt.Varsha Lamxichand Parmar ..Respondents
(Orig.defts)
Shri C.G.Gavnekar for Appellant
Shri P.S.Dani for Respondent nos.2 and 4.
CORAM:S.R.SATHE,J.
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DATED:14th Feb. 2006
ORAL JUDGMENT ORAL JUDGMENT :- ORAL JUDGMENT
1. The Appellant original plaintiff in Special Civil
suit No.8 of 1983 has preferred this appeal against the
judgment and order passed by the 1st Ad Hoc Additional
District Judge, Raigad-Alibag in Civil Appeal No.84 of
2000 whereby the order passed by the learned trial Judge
declaring that the plaintiff is entitled to claim
earnest money of Rs.500/- and interest of Rs.490/- from
compensation awarded by the Land Acquisition Officer of
the said lands was set aside and appeal was dismissed.
For the sake of convenience hereafter the parties shall
be referred to as the plaintiff and defendants.
2. Brief facts giving rise to this appeal are as under
. The suit lands described in detail in para 1 of the
plaint were owned by one Tulsiram, deceased father of
the defendant nos 1 and 2 and Motiram, deceased father
of defendant nos.3 and 4. Deceased Tulsiram and
deceased Motiram were real brothers. Defendant no.5
Laxmichand is the cousin of defendant nos.1 to 4.
Deceased Tulshiram and Motiram executed an agreement to
sell dated 17-4-1963 in favour of plaintiff and agreed
to sell the suit land for Rs.5,000/- and accepted
Rs.500/- as earnest money. On the date of said
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agreement plaintiff was also put in possession of the
suit lands. On 20-4-1964 the deceased Tulshiram and
defendant no.3 Khemchand issued notice to the plaintiff
and terminated an agreement to sell and asked plaintiff
to hand over possession of the suit land. However,
plaintiff did not comply the said notice hence Tulshiram
and Khemchand issued second notice dated 19-1-1966 and
again asked for ;possession. However, curiously enough,
though the plaintiff had not returned the possession,
deceased Tulshiram and Khemchand or their heirs did not
take any further steps for acquiring possession from the
plaintiff.
3. On 3-2-1970 the suit lands were acquired by the Land
Acquisition officer and Notification to that effect was
issued under Section 11 of the said Act. As plaintiff
was in actual possession of the suit land he came to
known that defendants are trying to secure compensation
in respect of acquisition of the suit lands. He
therefore approached the Land Acquisition office.
However, he was informed that he may get his right
determined in the civil court. Hence plaintiff filed
present suit for a declaration that the defendants are
not entitled to receive compensation amount out of
acquisition proceedings of the suit land and on the
contrary plaintiff is having right to receive the said
compensation. He also prayed for permanent injunction
restraining the defendants from receiving the
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compensation amount. The plaintiff also averred in the
plaint that as the defendants did not take any steps for
getting possession after notice dated 19-1-1966 and
plaintiff remained in possession of the said land
continuously, he became owner of the said land by
adverse possession.
4. The defendants filed their written statement at Exhs
24 and 25 and opposed the suit claim. They contended
that the plaintiff failed to comply his part of the
contract inasmuch as he did not pay consideration amount
as agreed nor he filed any suit for specific
performance.According to them plaintiffs had no
right,title or interest in the suit property and as such
he was not entitled to claim any compensation out of the
land acquisition proceedings of the suit land.They also
contended that plaintiff has not become the owner of the
suit land by adverse possession as alleged by him.
Hence on all these grounds the defendant no.1 prayed for
dismissal of the suit.
5. On these pleadings the learned trial Judge framed
issues on Exh.2. After considering the evidence adduced
by both the parties, the learned trial Judge came to the
conclusion that the plaintiff had received possession of
the suit land under agreement to sell dated 17-4-1963.
He did not pay further amount as contemplated and failed
to prove that he was ready and wiling to perform his
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part of the contract. The learned trial Court also came
to the conclusion that the plaintiff has failed to prove
that he has become owner of the suit land by virtue of
adverse possession. The learned trial Court also held
that plaintiff is not entitled to get compensation
amount as alleged but he is certainly entitle for refund
of earnest money and interest thereon. He therefore
decreed the suit accordingly.
6. Being aggrieved by the said order the plaintiff
filed Regular Civil Appeal NO.84 of 2000. After hearing
argument of both the learned Advocates the first
Appellate Court also came to the conclusion that the
plaintiff had not become the owner by virtue of adverse
possession nor he was entitled to get any compensation
amount as he is not "person interested" as contemplated
under Section 3(b) of the Land Acquisition Act, 1894
(hereinafter referred to as the said Act). He also held
that the plaintiff is not even entitle to refund of
earnest money out of compensation amount arising out of
the land acquisition proceedings. He therefore partly
allowed the appeal and set aside the declaration granted
in favour of the plaintiff.
7. the above mentioned order is challenged by the
plaintiff in this second Appeal. The appeal is heard
finally at the admission stage.
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8. In this appeal before me, Shri Gavnekar, learned
Advocate for the plaintiff has urged only two points.
Firstly, he submitted that both the Courts below have
failed to consider that right to receive compensation
for compulsory acquisition of land under the said Act is
not restricted to those persons who have a legal or
proprietary interest or estate in land and is available
to all persons who have a right or claim to land, even
if such right or claim does not amount to legal or
proprietary estate or interest in the land. According
to him the plaintiff being in possession of the suit
land since 1963 till the acquisition of the land and
actual delivery of possession is by him the plaintiff
has a right to receive the compensation. As against
this the defendants right if any has already been
extinguished. Secondly, he canvased before me that the
trial Court had in fact held that the plaintiff is
entitled to claim amount of earnest money together with
interest out of the said compensation proceedings but
though there was no appeal filed by the defendants
against the said order the first Appellate Court has set
aside the said order in the appeal filed by the
plaintiff and thereby committed an error of law. He,
therefore, submitted that an appeal be allowed and the
plaintiff’s suit be decreed.
9. As against this Shri P.S.Dani,learned Advocate for
the defendant has supported the judgment and order
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passed by the first appellate Court.
10. It is not in dispute that deceased Tulshiram,
defendant no.3 executed an agreement to sell in respect
of the suit lands in favour of the plaintiff on
17-4-1963 and agreed to sell the suit land for sum of
Rs.5,000/- after accepting the earnest money of rs.500/-
and putting plaintiff in possession of the suit land.
As per the terms and conditions of the said agreement
further amount of Rs.1500/- was to be paid by the
plaintiff by end of March 1964 and subsequent
instalments were to be paid in the year 1965 and 1966.
It is also an admitted fact that the plaintiff did not
pay the subsequent instalments as agreed nor he filed
suit for specific performance of the contract at any
time. Admittedly,in the year 1964 the defendants nos,.1
and 3 had issued notice to the plaintiff and informed
him that his agreement has been cancelled and he was
called upon to hand over possession. Similar notice was
issued to plaintiff even in the year 1966. However, no
action was taken by the defendant in pursuance of the
said notices and admittedly plaintiff continued in
actual possession of the suit land. Accordingly the
suit lands were in his possession till the year 1984,
when the possession was taken from him by the Land
Acquisition Officer.
11. The substantial question of law is whether
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plaintiff is entitled to get compensation out of
acquisition proceedings of the suit land or whether the
defendants being owners of the suit land are only
entitled to get entire amount of compensation. Answer
to this question depends on the point as to whether the
plaintiff is a "person interested" as contemplated under
Section 3(b) of the said Act. In order to find out what
person interested means, it would be necessary to see
the relevant provisions. Section 3(b) says :
3. Definitions - In this Act, unless there is
something repugnant in the subject or context,-
a) x x
(aa) x x
(b) the expression "person interested"
includes all persons claiming an interest in
compensation to be made on account of the
acquisition of land under this Act, and a
person shall be deemed to be interested in
land if he is interested in an easement
affecting the land.
12. It is argued on behalf of the plaintiff that as the
plaintiff is in actual possession of the suit land since
the year 1963 and defendants did not take any steps to
get back possession though they had in fact issued
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notices regarding termination of the agreement to sell,
the plaintiff has become owner by virtue of adverse
possession. It is also submitted that right of
defendants has in fact come to an end as they have not
taken any action to secure possession within 12 years
from second notice, issued in the year 1966. However,
from perusal of the record it is very clear that the
contention as regards to adverse possession has been
given up by the plaintiff. In fact in his deposition he
has clearly stated that he never sent notice or informed
by any mode to the defendants that he was cultivating
the suit lands by adverse possession. What is more to
be noted is that admittedly plaintiff entered in the
suit land under an agreement to sell. So in a way it
was a permissive possession. When such is the position
merely because subsequently the defendants terminated
the said agreement but did not take action to secure
possession it cannot be said that the plaintiff has
acquired title by virtue of adverse possession. It is
needless to say that even if the plaintiff’s possession
is called unauthorised still then it cannot be said that
he has perfected his title by virtue of adverse
possession nor it can be said that right of defendants
to secure possession has come to an end. So, one thing
is certain that the plaintiff cannot claim any
compensation on the basis that he has become owner by
adverse possession.
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13. Naturally, the next question for our consideration
is whether merely because at the relevant time the
plaintiff was in actual possession of the suit land it
can be said that he is a ‘person interested’ as
contemplated under Section 3(b) of the said Act. Shri
Gavnekar, learned Advocate for the plaintiff has drawn
my attention to a case Dossibai Nanabhoy Jeejeebhoy V/s
P.B.Bharucha - LX BLR 1206 LX BLR 1206 wherein the Division Bench of LX BLR 1206
this Court has held that right to receive compensation
for compulsory acquisition of land under the Land
Acquisition Act 1894 is not restricted to those persons
who have a legal or proprietary interest or estate in
the land and is available to all persons who have a
right to claim land, even if such right or claim does
not amount to legal or proprietary estate or interest in
the land. This proposition is not disputed and cannot
be disputed. However, the facts of the said case and
the facts of the case in hand are quite different. That
was a case where the first claimant was willing to grant
lease and the second claimant was willing to accept the
lease and the question arose as to whether the proposed
lessee is entitled for compensation and what would be
apportionment. However, in the instant case admittedly
the plaintiff has failed to pay balance consideration
amount as per the stipulation embodied in the agreement
to sell. Not only that but he has failed to prove that
he was ready and willing to perform his part of the
contract. Admittedly, he did not file any suit for
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specific performance of the agreement to sell. So.
merely,because he continued in possession and defendants
the original owners did not take any action against him
to get back the possession it cannot be said that he has
acquired a right to accept compensation as a ‘person
interested’.
14. As against this, Shri P.S.Dani, learned Advocate
for the defendant, has placed reliance on a case of
Mahammad Akil Khan V/s Premraj Jawanmal Surana and Anr.
AIR 1972 Bom 217 AIR 1972 Bom 217 wherein Division Bench of this Court AIR 1972 Bom 217
has made following observations.
"a contract for sale of immovable property
is a contract that a sale of such property
shall take place on terms settled between
the parties. It does not of itself, create
any interest in or charge on such property.
When the seller and buyer are both willing
to perform their respective parts of the
contract but the specific performance of the
contract has become impossible by the
unexpected interference by the State in
acquiring the property, the buyer will be
entitled to recover from the seller any
purchase money properly paid together with
interest and also earnest with interest and
to that extent he would have had under
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Section 55(6)(b) of T.P. Act a charge on
the land".
15. In fact relying on this authority the learned trial
Court granted relief of declaration in favour of the
plaintiff that he is entitled to claim earnest money
with interest from the compensation amount. Of
course,in the above cited ruling both the parties were
willing to perform their part of contract while in the
instant case it does appear that it is not so and the
contract has also frustrated as a result of acquisition
of land. So, having regard to the peculiar facts of the
case it cannot be said that the plaintiff is a "person
interested" as per Section 3(b) of the said Act or he is
a person interested in the land as contemplated under
Section 9 of the said Act.
16. So, when we find that the possession of the land is
in fact taken by way of part performance as per the
agreement to sell and subsequently the said agreement
has been cancelled he was in fact not entitled to retain
the possession and he should have been required to hand
over the same to the defendants. Considering this
aspect both the courts below have rightly held that the
plaintiff is not entitled to get any share in the amount
of compensation in lieu of acquisition of the suit land.
17. In my opinion, having regard to the facts and
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circumstances of the case plaintiff was even not
entitled to get back the earnest money also because
right to receive earnest money was also lost by him as
he did not file any suit for specific performance and
alternatively for refund of earnest money. However, the
fact remains that the trial court declared that the
plaintiff is entitled to get his earnest money with
interest. This finding is not challenged by the
defendants, they did not file any appeal nor they filed
any Cross Objections, when plaintiff filed the first
appeal. So, the learned Advocate for the plaintiff has
rightly submitted that the order passed by the first
appellate court setting aside the declaration that was
granted in favour of the plaintiff is wrong. He has
placed reliance on a case Banarsi and Ors V/s Ram Phal
(2003) 9 SCC 606 (2003) 9 SCC 606 wherein the Apex Court has observed (2003) 9 SCC 606
that:
"Where in a suit for specific performance of
contract of sale, relief of compensation or
refund of money/deposit in case of refusal
of specific performance also sought by
plaintiff and court while refusing the
larger relief of specific performance,
granted the smaller relief of compensation
or refund, the plaintiff would be a person
aggrieved by the decree and when appeal is
filed by defendant against the grant of
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relief of compensation or refund, held, the
plaintiff as a respondent can seek the
relief of specific performance of contract
or modification of decree only by taking
cross objection or by filing appeal of his
own - In absence of cross objection or cross
appeal,modification of the decree and grant
of relief of specific performance by the
appellate court would be without
jurisdiction."
18. So, the order of the first appellate court setting
aside the declaration granted by the trial court has to
be set aside.
19. The Appeal is partly allowed. The order passed by
the 1st Appellate Court on 18-12-2003 setting aside the
order declaring that the plaintiff is entitled to claim
earnest money of Rs.500/- and interest of Rs.490/- from
the compensation awarded by the Land Acquisition officer
for the said lands is quashed and the order passed by
the Court of C.J.S.D., Alibag on 27-2-1998 in Special
Civil Suit No.8 of 1983 is restored.
. Under the circumstances of the case parties to bear
their own costs of this appeal.
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(S.R.SATHE,J.)
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