-: 1 :- FA-516/98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 516 OF 1998 Pandharinath Mukundrao Dangre Deceased through his legal heirs :- 1A) Sharad Pandharinath Dangre; 1B) Ramkrishna Pandharinath Dangre; (Since deceased-Through his wife/legal heir) 1-B-1) Smt. Surekha Ramkrishna Dangre, Age – Adult, Occ: Household, R/at : 54, Parekh Bldg, Bhoiwada, 2nd floor, Bhuleshwar, 1C) Pramila Jaganmath Katkar, (Since deceased-Through her legal heirs) 1C-1) Jaganath Katkar (Since deceased-Through her legal heirs) 1C-2) Shirish Jaganath Katkar, Age: Adult, Occu: Business, 1C-3) Sanjay Jaganath Katkar, Age- Adult, Occu: Business, Sr. Nos. 1C-1 to 1C-3- All R/at 33, 32, Mahavir Marg, Barshi. 1D) Ratnaprabha Pandurnath Wadgaonkar; 1E) Pushpa Surendra Kasar; 1F) Usha Prakash Dorle; 1G) Bharati Narendra Mahurkar; 1H) Pratibha Dilip Chivate; 1I) Durga Ajit Gargatti; 1J) Vasanti Sharad Dorle. ..APPELLANTS. Versus srp -: 2 :- FA-516/98 1. Sambhajirao Laxmanrao Shirole (Since deceased through his Legal heirs) 1A) Satish Sambhajirao Shirole Age – Adult, Occu : Business. 1B) Ajit Sambhajirao Shirole Age – Adult, Occu : Business. 1C) Dilip Sambhajirao Shirole Age – Adult, Occu : Business. Sr. nos. 1A to 1C r/at : 263, Shivaji nagar, Pune. 2. Radhikabai Krishna Gadgil; 3. Gopal Purushottam Shirole; 4. Jaywant Sitaram Thorat; 5. Anand Yashwant Thorat; 6. Suresh Chaturbhuj Jamwar; 7. Suvarna Sahakari Bank Ltd, Pune. 8. Special Land Acquisition Officer No. 14 Pune 9. The State of Maharashtra. ..RESPONDENTS. Mr. R. N. Sanghavi for Appellants. Mr. Dilip Bodake for R-1A to 1C. Mr. V. P. Sawant with Prabhakar Jadhav for R-3 to 5. Mr. A. R. Patil, AGP for R- 8 & 9. Coram : SMT. RANJANA DESAI & R. V. MORE, JJ. Date : September 16, 2010. Oral judgment (Per R. V. More,J.) : -: 3 :- FA-516/98 1. The appeal takes exception to the judgment and award passed by Extract Joint District Judge, Pune in Land Reference No.337 of 1991 under section 30 of the Land Acquisition Act, 1894 for apportionment of compensation to be awarded to the rival claimants in respect of acquisition of land bearing Final Plot No.465 part, CTS No. 1085 part of village Bhamburda (Shivajinagar), Taluka - Pune City, District - Pune admeasuring 12153.54 sq. mtrs. [hereinafter for short referred to as “the said land”]. 2. The brief facts giving rise to the present appeal are as follows :- That, the said land was acquired by SLO-14, Pune for the purpose of Akashwani and Doordarshan offices. The award was declared on 7th March 1991 and therefore compensation of Rs.24,44,904/- was offered. As there were rival claims, the Land Acquisition Officer forwarded reference under section 30 of the Land Acquisition Act, 1894 for determination and apportionment of the compensation amount payable to rival claimants, to the District Court, Pune. Public notice was issued to rival claimants to appear and file their say. In response to this notice, respondent no.1, respondent no.2, respondent nos.3 to 5 and the appellants filed their respective claim statements. Respondent no.1 claimed 1/4th share in the said land and consequently in the -: 4 :- FA-516/98 compensation. Respondent no.2 also claimed 1/4th share. Respondent nos.3 to 5 claimed that their predecessor-in-title had leased out the said land long back. It was also pointed that respondent no.3 has 63.6 pai and respondent nos.4 & 5 together have 25.2 pai share in the said land accordingly they have sought share in the compensation amount. The appellants also filed claim statement. They claimed that they are legal heirs of deceased Pandharinath Dangre. The appellants also claimed that Pandharinath was one of the co-owners of the said land, having 1/5th share and therefore they are entitled to 1/5th share in the compensation awarded. 3. Learned Extra Joint District Judge, Pune who disposed of this reference by the impugned judgment and order, held that respondent no. 1 has 33.125% share, respondent no.2 has 20.625% share, respondent no.3 has 33.125% share and respondent nos.4 & 5 together have 13.125% share in the said land and consequently in the amount of compensation. So far as the appellants are concerned, learned District Judge held that they are not entitled for any share in the compensation as they have not proved their ownership to the said land. 4. Respondent no.1 has examined himself at Exhibit-114 to prove his case. Respondent no.3 examined himself on behalf of himself and respondent nos. 4 & 5. Appellant no.1A was examined on behalf of the -: 5 :- FA-516/98 appellants. 5. Mr. Sanghavi, learned counsel for the appellants relied upon the observations of the Land Acquisition Officer on page nos. 3 & 4 of the award passed under section 11 of the Land Acquisition Act, 1894 and contended that Pandharinath Dangre is shown to be the co-owner of the said land. He also submitted that Reference Court cannot go beyond the award and refuse the appellants to have share in the compensation. He also relied upon Exhibit 129, namely, the Extract of Property Card, and submitted that Pandharinath Dangre was one of the co-owners of the said land. He submitted that this evidence is sufficient to come to the conclusion that said Pandharinath Dangre had share in the said land and consequently the appellants are entitled for compensation. 6. Mr. Dilip Bodake, learned counsel appearing on behalf of respondent nos. 1A to 1C and Mr. V. P. Sawant learned counsel appearing on behalf of respondent nos.3 to 5 supported the impugned judgment and order. They submitted that the appellants could not produce any evidence to show their ownership to the said land and therefore the impugned order is rightly passed and no interference is called for. 7. At the outset we will consider the appellants’ submission that the Reference Court cannot go beyond the award under section 11 and refuse the appellants to have share in the compensation. Mr. Sangavi, -: 6 :- FA-516/98 learned counsel for the appellants submitted that since name of the predecessor-in-title of the appellants is mentioned in the award under section 11 as an owner of the said land, their title cannot be gone into in a reference under section 30 and what is required to be considered is only share in the compensation amount. The submission is without any merit. The Apex Court in Sardar Amarjit Singh Kalra (dead) by LRs. and others v. Pramod Gupta (dead) by LRs. and others [(2003) 3 SCC 272], in paragraph no. 13 considered the scope of reference under sections 30 and 31(2) of the Land Acquisition Act. The Apex Court held that the Reference Court is obliged to find out who really would be entitled to the compensation. In Sri Prasad Rao Mikkilineni & Ors v. State of A.P. and ors [(2009) SCC 371] there was a dispute about the title as well as regarding computation of appropriate compensation for acquiring the land in question. The Apex Court set aside impugned order of the High Court and directed the Land Acquisition Officer to make reference under sections 18 & 30 of the Land Acquisition Act to the appropriate Court. In Dr. G. H. Grant v. The State of Bihar [AIR-1966 SCC 237] , the Apex Court considered the scheme of the Land Acquisition Act and held that the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not -: 7 :- FA-516/98 among the persons interested. It was also held that the Collector has no power to finally adjudicate upon the title to compensation: that dispute has to be decided either in a reference under section 18 or under section 30 or in a separate suit. The ratio of above decisions of the Apex Court makes it abundantly clear that the Collector while arriving at compensation for acquired land cannot decide the issue of title and said issue is required to be decided in a reference under section 30 of the Land Acquisition Act. In the facts and circumstances, in order to prove entitlement to the share in compensation, the appellants must prove title of their predecessor-in-title in the said land. 8. We have gone through the evidence adduced before the Reference Court by the respective parties. We have also gone through the documents relied upon by the parties, especially the property card at Exhibit- 129 which is heavily relied upon by the appellants. We have also heard learned counsel for the respective parties. 8. Respondent no.1 has deposed at Exhibit 114. He stated that his father Laxman has 1/4th anna share in the said land therefore he is entitled to 1/4th share in the compensation awarded by the Land Acquisition Officer for acquisition of the said land. He relied upon Exhibit-125 to show that he has 1/4th share in the said land. Exhibit 125 is partition deed between respondent no.3, his father and brother under -: 8 :- FA-516/98 which 1/4th share is allotted to him in the partition. He stated that other 1/4th share is of one Radhabai Krishna Gadgil. In cross examination he has deposed that old Rupee was of Rs. 192 paiee. Out of the said property 63.6 paiee share belongs to himself, 63.6 paiee share belongs to respondent no.3, 39.6 paiee share belongs to respondent no.2 and 25.2 paiee share belongs to respondent nos.4 & 5 jointly. He specifically deposed that Dangre family had no concern with the acquired property and they were never in possession of whole or part of the property. He specifically denied the suggestion that Dangre family is entitled for any share in the compensation. Respondent no.3 in his deposition stated that owners of the said land are respondent no.1, 2, 4, 5 and he himself. He also deposed that respondent no.1 has 66.6 paiee share, respondent no.2 has 39.6 paiee share and he himself has 66.6 paiee share and respondent nos.4 & 5 together have 26.2 paiee share. So far as Dangre family is concerned, he specifically stated that their names do not appear in the extract of property card. They were never in possession of the said land and therefore they are not entitled to claim any share in the compensation. He was cross examined by the appellants and confronted with Exhibit 129 (Property Card). However, he denied that Pandharinath had 1/5th share in the said land. -: 9 :- FA-516/98 . Appellant no.1A-Sharad was examined on behalf of the appellants. In his examination-in-chief he stated that his father-Pandharinath Dangre was owner of the said land with Shirole family. He produced property card of the said land-Exhibit-129 and deposed that his father used to manage the property and recover the lease money. He claimed that the appellants together have 1/5th share in the said land, 1/5th share belongs to Shirole family and others. He was cross-examined by respondent no. 1, 2 and 3 to 5. He was confronted with the property card of the said land at Exhibit 115, 118 and 135. He admitted that in the property card at Exhibit 129, his father’s name is bracketed. He was also confronted with the lease deeds at Exhibit 132, 133 and 134 in which name of his father or grand father does not appear. He admitted that his father or he did not take any objection to the lease deeds. He specifically admitted that except property card extract at Exhibit 129, he does not have any other documentary evidence to show Dangre family’s interest in the said land. He also admitted that in Exhibit-129, name of his father is bracketed. He further admitted that he has not produced mutation entry of this bracketed entry. He also admitted that he has no evidence to show that his father was managing the said land. 10. So far as the share of respondent nos.1 to 5 in the said land and consequently in the amount of compensation is concerned, there appears -: 10 :- FA-516/98 no dispute amongst them. Respondent nos.1 to 5 have filed Pursis at Exhibit-149 in the Reference Court, in which they have admitted their respective shares in the said land. A perusal of evidence of respondent nos.1 to 5 makes it clear that respondent no.1 has 33.125% share, respondent no.2 has 20.25 % share, respondent no.3 has 33.125 % share and respondent nos.4 & 5 together have 13.125 % share. The claim of respondent nos.1 to 5 is corroborated by the documentary evidence, namely, 7/12 extract at Exhibit 115, Partition Deed at Exhibit 125, Lease Deeds at Exhibits-132, 133 and 134 and Property Cards at Exhibits 128, 135 and 129. 11. Now let us consider the question whether Pandharinath Dangre, the predecessor-in-title of appellants had any share in the said land. 7/12 Extract at Exhibit-115 does not show name of Dangre family as owner. The Property Cards at Exhibits-128 and 135 also do not show the name of Dangre family. Solitary document on which heavy reliance is placed by the appellants is the Property Card at Exhibit-129. The name of the appellants’ father is shown in this extract, however, same is bracketed. The appellants did not produce mutation entry in respect this bracketed entry nor the same appears on Exhibit-129. In the said extract name of Gangubai widow of Mahadeo Hari Bapat is also bracketed, however, names of her legal heirs are mentioned. There is no -: 11 :- FA-516/98 explanation coming forth from the appellants as to why name of Pandarinath Dangre came to be deleted from the Property Card which is at Exhibit-129. At this stage it is worth to note that Property Cards at Exhibits-128 and 135 do not show name of Pandharinath Dangre. 12. As far as lease of the said land is concerned, it is important to note that it was initially leased to Tata family and thereafter by the Tata family to Mehta Family and by Mehta family to Zamwar family. Lease deed with Tata Family was executed way back in the year 1879 by Shirole family. In none of these lease-deeds, name of Dangre family is shown. In these facts and circumstances, we are of the opinion that the appellants could not prove their title to 1/5th share in the said land, naturally they are not entitled for any share in the compensation. 13. Mr. Sanghavi, learned counsel for the appellants, for the first time during the course of arguments at final hearing stage, relied upon the order dated 25th April 2005 passed by the Division Bench of this court in First Appeal No.306 of 2000. By the said order, First Appeal 306 of 2000 was disposed of in terms of the consent terms. The dispute in the said First Appeal was between the appellants and respondent nos.1 to 5 in respect of compensation awarded by the Land Acquisition Officer in respect of land admeasuring 10,830.504 sq. mtrs. from Final Plot No. 465A situated at Ganesh Khind Road, Shivaji nagar, Pune. By consent -: 12 :- FA-516/98 Respondents’ therein agreed to give to the appellants an amount of Rs.5 lacs towards full and final settlement of their claims in respect of the land acquired. In our opinion, the appellants cannot rely upon the said order in the present proceeding to assert their right in the said land, as the said order was passed by consent and that too without prejudice to the rights and contentions of the parties to the appeal. Otherwise also the order passed by the Division Bench of this Court in the aforesaid First Appeal cannot be considered inasmuch as same was pointed out for the first time at the time of final hearing of the present appeal. In any case it was for the appellants to prove their title to the said land in order to claim share in the compensation awarded. We find that the appellants could not produce any evidence of title of their predecessor-in-title, except extract at Exhibit-129, namely, the Property Card, in which the name of their predecessor-in-title was bracketed. As stated above, the appellants have failed to furnish any explanation as to why the name of Pandharinath was bracketed. The documentary evidence produced by respondent nos.1 to 5 in the form of Property Cards and lease deeds negates the appellant’s case that their predecessor-in-title had any share in the said land. We find that the Reference Court has considered all the relevant aspects and come to the correct conclusion. After re- appreciating all the facts we find that there is no error in the impugned -: 13 :- FA-516/98 judgment and order so as to enable us to interfere with the same. The appeal is without any merit and same is therefore dismissed with no order as to costs. (Smt. Ranjana Desai,J.) (R.V. More, J.) At this stage, learned counsel for the appellants prays that the present judgment and order may be stayed for a period of eight weeks. Learned counsel for the respondents opposes the prayer. In the circumstances of the case, the present judgment and order is stayed for eight weeks from today. (Smt. Ranjana Desai,J.) (R.V. More, J.)