HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
APPEAL SUIT No. 1592 OF 1993
JUDGMENT:
Appellant Nos.
1 to 3 are the defendants in O.S.No.5 of 1989 on the file the trial Court (Senior
Civil Judge), Nirmal. The suit was filed
against them by the appeal respondent as sole plaintiff for the reliefs of
recovery of Rs.32,747-30 paise, from said defendants, saying they claimed and
received the compensation sum of Rs.25,411-38 paise, on 04.08.1987 as if the
land of them for said acquired land of Ac.2-25 Guntas in S.No.331 of Bamini-K
village for purpose of Sri Ram Sagar Project Reservoir, for further relief of
declaration that said plaintiff is entitled to receive the additional benefits
under the Land Acquisition Act of the sum of Rs.11,112/- lying in deposit to
the credit of L.A.O.P.No.1069 of 1984 and for interest, costs and other
reliefs. The suit was since decreed by the trial Court by decree and judgment
dated 22.10.1992, for said amount of Rs.11,112/- awarded by the Court in
L.A.O.P.No.1069 of 1984 to withdraw by plaintiff and by restraining the
defendants from receiving the same and also
for Rs.32,747-30 paise to recover by plaintiff from the defendants with
interest at 6% p.a. from date of suit till realization and for costs of the
suit certified Rs.5,478/-, the appellants preferred the appeal impugning the
same.
2. Before deciding the appeal lis, the factual
matrix of the case from the pleadings and the evidence of both sides before the
trial Court which is the subject matter of the appeal lis is the following:-
2(a). As per plaint in brief, in addition to what
is referred above to avoid repetition, for the acquired land there was section
30 reference under the Land Acquisition Act in O.P.114 of 1974 by showing in
all 6 claimants, of whom the 1st defendant (Chinniga’ s/o late
Turupu Raja) and the defendants 2 and 3 Pedda Chinniga and Chinniga (sons of late
Saiga on one side and also the plaintiff on other side were the rival claimants
over said property, that said Turupu Raja was only a tenant and for default committed
by him, the Tahsildar, Nirmal passed eviction order dated 31.12.1965 and as
such the plaintiff was the Pattadar and absolute owner for the said land of
S.No.331(old 24), that the appeal filed by Turupu Raja before District
Collector was also dismissed on 06.10.1967 that reached finality and later for
delivery of possession under Section 32 of the A.P.(T.A.) Tenancy Act, a
Tahsildar directed the plaintiff to seek remedy under Section 28 of the Act and
the appeal filed by the plaintiff resulted by remand order of District Revenue
Officer (D.R.O.) dated 30.09.1974 directing Tahsildar for considering whether
there was proper termination of tenancy in asking for delivery and Tahsildar
thereupon enquired and held that the tenancy of Turupu Raja was correctly
terminated in directing delivery of possession to plaintiff and against said
order for possession the defendants preferred appeal before D.R.O. and that was
also ended in dismissal on 12.05.1977 in proof of they lost right of tenancy in
the land of S.No.331 and they cannot claim any right over the land in question
and the same was contended in the L.A.O.P.No.114 of 1994 that was decided by
the Additional District Court on 14.09.1976 in favour of plaintiff as solely
entitled to compensation for the acquired land and against said order the
defendants preferred appeal with delay
condonation application in C.M.P.No.13230 of 1976 as A.S.(SR) No.7812 of
1976 and the conditional order dated 25.03.1977 in condoning the delay subject
to costs of Rs.150/- was not complied with and it was ended in
dismissal as a result the order in L.A.O.P.No.114 of 1994 dated 14.09.1976
became final and later the plaintiff has given a representation for making
Section 18 reference seeking enhanced compensation that was not seen the light,
but for, of the reference by the defendants fraudulently and by suppressing the
facts, that was covered by O.P.No.108 of 1976 and transferred from the
Additional District Court Adilabad, to Subordinate Court, Nirmal, then
constituted and re-numbered as O.P.No.1069 of 1984 that was ordered on
18.04.1985 for enhancement of compensation, that the said proceedings were
taken place behind back of the plaintiff though he is the original owner and
the defendants have no rights over the property acquired, that the defendants
obtained cheques for Rs.1,20,068-45 paise on 04.08.1987 and out of said amount
the market value with consequential benefits for the subject land comes to
Rs.25,411-38 paise which the defendants received though due to the plaintiff and
are liable to refund with interest from that date and further the additional
benefits amount of Rs.11,112/- deposited to the credit of the O.P.No.1069 of
1984 and the defendants obtained order
for its withdrawal on 27.12.1990 in I.A.No.1684 of 1990 suppressing the above
facts of the plaintiff’s entitlement and hence the suit claim with suit
reliefs.
2(b). The
sum and substance of the written statement contest of defendant Nos. 1 to 3,
save those facts already referred above to avoid repetition, is that 1st defendant’s father Turupu Raja
was the Pattadar of S.No.331 and he was in exclusive, peaceful and continuous
possession and enjoyment of said property in his lifetime and perfected title
by adverse possession, after his death
succeeded by the defendants as legal heirs and they were never
dispossessed by any forum of law from said land in any proceedings between
plaintiff and said Turupu Raja or defendants, that their possessory right over
suit property is intact, that Tahsildar has no jurisdiction to decide title
dispute and the findings against Turupu Raja are not binding even the same was
final, therefrom, plaintiff was never in possession of said property, plaintiff
did not file even any Section 18 reference for enhancement of compensation but
for defendants and the Land Acquisition Officer (L.A.O.) answered the reference
in favour of the defendants and there was no any fraud played by the
defendants, they withdrew the enhanced compensation as per law, plaintiff
suffered out of his own negligence cannot claim any relief against the
defendants and there is no cause of action for the suit and hence to dismiss
the suit claim.
2©. From above pleadings, the trial Court
framed the following issues:-
i. Whether the plaintiff is entitled to recover
the suit amount of Rs.32,747-30 paise from the defendants and future interest
at 18% p.a.?
ii) Whether the defendants have perfected their title
by adverse possession over the suit S.No.331(New)?
iii) Whether defendant No.1 and his brother Saiga
played a fraud against plaintiff in receiving compensation?
iv) Whether the suit is barred by limitation?
v) To what relief?
vi) Additional Issue: Whether the plaintiff is
entitled for additional benefits awarded in O.P.No.1069 of 1984 and if so, he
is entitled to the permanent injunction?
vii) Additional Issue: Whether
the suit is maintainable from the alleged tenant or Pattadar was not
dispossessed by any revenue Court or revenue records were not rectified?
viii) Additional Issue: Whether the suit is
maintainable by plaintiff who did not take steps to add himself as party in
Section 18 reference of L.A.Act in the O.P.?
ix) Additional Issue: Whether the Court has got
jurisdiction to give any finding about dispossession of Turupu Raja or his
heirs or to confer rights of ownership or possession on plaintiff?
2(d). From above pleadings and issues and from the
evidence adduced before the trial Court on record that of plaintiff as P.W.1
and the 1st defendant as D.W.1 and with reference to the documents
of the plaintiff marked with no documents of defendants, as Exs.A.1 to A.11
viz., certified copies of respective orders of Tahsildar, District Revenue
Officer, District Collector, Mandal Revenue Officer, Additional District Judge,
High Court, judgment and decree in
O.P.No.1030 of 1984, amended decree and order in I.A.No.1684 of 1990; the trial
Court by its decree and judgment granted the reliefs in favour of plaintiff and
against the defendants which they impugned.
3(a). The appeal by defendants impugning legality
and correctness of trial Court judgment is with the contentions in the grounds
of appeal that the decree and judgment of the trial Court is contrary to law,
weight of evidence and probabilities of the case, that the trial Court erred in
holding that the defendants played fraud though if at all it is the plaintiff
and in holding that plaintiff alone is entitled to the compensation awarded in
the O.P.1069 of 1984 though he did not participate in enquiry, despite
participated and received compensation with regard to adjacent lands of
S.No.331 etc., for being not the owner but for the defendants and late Turupu Raja
for the said land acquired, that the award was also passed in the name of said
Turupu Raja and neither Turupu Raja nor the appellants ever were dispossessed much
less by the plaintiff, that the trial Court erred in saying the tenancy rights
of said Turupu Raja and the defendants were terminated by revenue authorities
and also ignored the factum of they otherwise perfected title by adverse
possession, that the trial Judge also erred in not considering the fact that
the award was passed in Section 18 reference of Land Acquisition Act, filed in
1976 and the suit filed in 1989 for said claim is barred by limitation, that
even the said enhanced compensation amount lying in deposit not entitled by
plaintiff apart from disentitlement to recovery of amount withdrawn claimed
that the findings of the trial Court are beyond the scope of the lis and hence
to set aside the said decree and judgment by dismissing the suit claim with
costs.
3(b). Heard both sides and perused the material on
record. In the course of hearing the appeal, the learned counsel for the
appellants-defendants reiterated the above contentions in seeking to set aside
the trial Court’s decree and judgment by dismissal of the suit claim. Whereas it is the contention of the counsel
representing the respondent-plaintiff that the appeal claim is speculative and
baseless in order to trouble further the plaintiff and the trial Court after
discussion of the entire evidence on record by proper appreciation of fact and
law came to the right and reasoned conclusion and for this Court while sitting
in appeal, there is nothing to interfere, hence, to dismiss the appeal. The
parties are being referred to for convenience as were arrayed before the trial
Court.
4.
From the above, the points arise for consideration in deciding the appeal lis
are:-
i. Whether plaintiff is not the owner, but for
defendants, or otherwise they got any right much less perfected title by
adverse possession against the plaintiff, of said admittedly acquired land of
Ac.2-25 Guntas in S.No.331 of Bamini-K village for purpose of Sri Ram Sagar
Project Reservoir and of which the defendants admittedly withdrew the initial
compensation amount?
ii. Whether the defendants are not liable for
reimbursement of said compensation amount received for which part of the suit
claim laid of Rs.32,747-30 paise that was decreed in favour of plaintiff by the
trial Court with interest at 6% p.a. from date of suit till realization?
iii. Whether the defendants and not the plaintiff
that is entitled to the amount in deposit of Rs.11,112/- with accrued interest
if any?
iv. Whether the trial Court’s decree and judgment
is liable to be set aside and if so, to what extent and with what result from
the appeal claim?
5. As above points 1 to 3 are inter-related they
are to be dealt with together to avoid repetition and consistency. From overall
consideration of the evidence with reference to the pleadings, the fact that plaintiff was owner of the
property and father of 1st defendant Turupu Raja was tenant under
plaintiff over the property, if not, also of his brother Saiga no other than
father of defendants 2 and 3 is not in dispute in the course of evidence but
for to say pursuant to the eviction order passed by the tenancy Tahsildar
confirmed in appeal, neither Turupu Raja nor his brother Saiga much less the
defendants being their successors ever were dispossessed by the plaintiff. It
is therefrom clear that the defendants and their said predecessors were not the
owners and till delivery of possession pursuant to the termination of tenancy,
none can claim under law any adverse possession over the property much less
against the plaintiff. Once the plaintiff is the owner, the defendants much
less their predecessors -Turupuraja and Saiga cannot claim for any entitlement
to compensation over the land that was acquired, merely because they continued
after eviction orders passed and lis finalized by its confirmation over the
property, as their right to hold the property and right to claim any interest
in the property much less as tenant was lost, the mere possession unauthorizedly
or by not complying with the eviction order does not create any sort of even
little right to claim any portion of compensation. Admittedly, they did not
file any suit for declaration of title over the property much less any
counter-claim in the suit to say they perfected title by adverse possession
extinguishing the plaintiff’s right and title over the property and in the
absence of specific claim and relief in their favour they cannot take away the
right and title of the plaintiff. The
trial Court also in this regard properly appreciated the proposition of law
laid down in the decision relied upon of AIR
1989 AP DB page 10 holding that the person who got title will be entitled
to the compensation. When such is the
case, any amount they claimed and received for the land acquired they are bound
to reimburse under law as quasi contract with interest for the utilization of
the amount in its repaying, which is so far as the amount of Rs.32,747-30 paise
concerned for which the trial Court in its discretion under Section 34 CPC
awarded to recover with interest at 6% p.a. from date of suit till realization.
Even coming to the contention of said
claim for recovery of amount is barred by limitation concerned, it is not a
money lent to recover to count the three years limitation from the date of
lending or with similar provision much less the residue provision of Article
137 of Limitation Act to invoke for the computing but for only for date of
knowledge of plaintiff about the said amount recovered by them to claim and
recover and the cause of action pleaded by the plaintiff for that is also very
clear so also from the plaint pleadings to say the claim is within limitation
of three years period to compute from the starting of limitation period in
counting as also rightly concluded by the trial Court. Even coming to the
further contention of the defendants of they moved for Section 18 reference of
Land Acquisition Act for enhancement of compensation and not by plaintiff, that
does not confer any right to them and under law it is for all purposes what
they moved has to be considered and regarded on behalf of the plaintiff and not
otherwise for having no other independent right so to move and as such the
additional benefits of compensation lying in deposit in the L.A.O.P.No.1069 of
1984 is being entitled by the plaintiff and not by the defendants and as such
once it is the plaintiff that entitled for so holding and also in granting
injunction against the defendants from withdrawal, there is nothing wrong on
the findings arrived by the trial Court to interfere.
6. Even now coming to the finding of the trial
Court of there is a fraud on the part of the defendants, even after eviction
order in tenancy case filed and the same was also confirmed and even in
O.P.No.114 of 1974 disposed of by the Additional District Judge’s Court,
Adilabad on 14.09.1976 of plaintiff alone is entitled to the compensation for
the land acquired and even they went unsuccessful from dismissal of the delay
condonation petition of the appeal filed before the High Court in
non-compliance of the order dated 25.03.1977 and that became final and operate
as res-judicata their moving for
enhancement of compensation though covered by O.P.No.108 of 1976 of the
Additional District Judge’s Court, they could not have prosecuted the matter
further even after went unsuccessful and finality reached in the O.P.No.114 of
1974 proceedings and it is not only in that Court but also after O.P.No.108 of
1976 transferred to the Senior Civil Judge’s court and re-numbered as
O.P.No.1069 of 1984, they prosecuted the matter is nothing but to gain some
advantage possible behind the back of plaintiff but in the eye of law said
prosecution of the proceedings by them as concluded above is for all purposes
only as agent on behalf of plaintiff from the fact that what they cannot
directly derive benefit they cannot indirectly much less behind back of the
person entitled to the benefit and it is nothing but fraudulent outcome on
their part for so to conclude by the trial Court. Having regard to the above, there is nothing
for this Court to interfere with the trial Court’s decree and judgment and the
findings therein impugned in the appeal, but for to dismiss the appeal.
Accordingly, the points-1 to 3 are answered.
7. In the result, the appeal is
dismissed. Miscellaneous petitions, if any, pending in this appeal shall stand
closed. However, in the circumstances of the case, no costs.
_________________________
Dr. B. SIVA
SANKARA RĀO, J
Date: 02-12-2013
VVR
Note:
L.R. copy to be marked:
Yes/No
