SM 1 247.fa.1163.92 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1163 OF 1992 Raghunath Bhaurao Shinde, ] Age – 80 years, occupation-agriculture, ] risident of Nandurmadhmeshwar, ] Taluka- Niphad, District – Nashik. ] ...Appellant Versus Murlidhar Laxman Jadhav, ] Age – 55 years, occupation – agriculture, ] Residing at Nandurmadhmeshwar, ] Taluka – Niphad, District – Nashik. ] ...Respondent ____________ Mr. P. N. Joshi for the Appellant. CORAM: A. S. OKA, J. DATED : 23 RD JUNE, 2011. ORAL JUDGMENT: Heard learned Counsel appearing for the Appellant. The challenge in this Appeal is to the judgment and award made by the District Court in a Reference under Section 30 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act). 2. The acquired land is land bearing Gat No. 539 situated at Nandurmadhmeshwar, Taluka – Niphad, District – Nashik. SM 2 247.fa.1163.92 Before the Land Acquisition Officer, a dispute arose regarding the apportionment of compensation between the Appellant and the Respondent; and therefore, a Reference under Section 30 of the said Act was made by the Special Land Acquisition Officer. 3. Statements of claim were filed by both the parties. The Appellant who is described as the Opponent in the Reference contended that the lands bearing Gat No. 539 and 537 were earlier Survey No. 215/5-C and 215/5-A. It is contended that the said lands were owned by Smt. Jaibai Vetal Dhangar. It is contended that in auction held in the execution of a Decree passed in the Regular Civil Suit No. 61/63, the Appellant purchased the said lands. Therefore, since on the date of auction, the Appellant has become the owner of the said lands. The Respondent filed a statement of claim. The Respondent contended that the lands bearing Gat No. 537, 539 and 469 have been purchased by his father Laxman by a registered Sale Deed dated 21 st April, 1983 executed by the said Jaibai Vetarl Dhangar. The evidence was adduced by the parties. The learned Trial Judge held that the SM 3 247.fa.1163.92 Respondent and his brothers are entitled to receive the entire compensation amount. It was held that the Appellant had no right, title and interest in the acquired land. 4. The learned Counsel appearing for the Appellant has taken the Court through the record. He pointed out that the Sale Certificate issued to the Appellant by the Civil Court shows that the Appellant purchased land bearing Survey No. 341- Hissa No. 5- Survey No. 187- Hissa No. 5-B, Survey No. 215- Hissa No. 5-B and Survey No. 215, Hissa No. 5-C. He pointed out that the finding of the Trial Court is that Survey No. 215/5-B is the Gat No. 540 and Survey No. 215/5-C is in the Gat No. 538. He invited attention of the Court to the Civil Application No. 5987/91 which is an application seeking permission to lead additional evidence. He pointed out that in the said application, the Appellant has annexed an extract of consolidation proceedings which shows that corresponding survey number of Gat No. 530 is Survey No. 215/5- D. He pointed out that the said extract shows the name of the Appellant as the purchaser of Survey NO. 215/5-D. He submitted SM 4 247.fa.1163.92 that the said extract shows that the Reference Court proceeded on an erroneous assumption that Gat No. 539 has been purchased by the father of the Respondent from the said Jaibai Vetal Dhangar. He submitted that the fact that Survey No. 215/5-D corresponds to Gat No. 539 was not brought to the notice of the Reference Court. He submitted that there is already an observation made by the learned Trial Judge that the name of the Appellant continued in the revenue records which was deleted subsequently. His submission is that as the the Appellant was a deemed purchaser under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 in respect of the land bearing Survey No. 215/5-D, under the Sale Deed dated 21 st April, 1983, the said Smt. Jaibai Vetal Dhangar could not have transferred right, title and interest in the land bearing Gat No. 539 to the Respondent's father. 5. I have given careful consideration to the submissions. A statement of claim was filed by the Appellant before the Reference Court. In the said statement of claim, a specific contention of the Appellant is that the lands bearing Gat No. 539 and Gat No. 537 SM 5 247.fa.1163.92 correspond to Survey No. 215/5-C and 215/5-A respectively. It is the contention of the Appellant that the said lands bearing two survey numbers were purchased by him in auction in the execution of the Decree in Regular Civil Suit No. 61/63. Thus, the title is specifically claimed by the Appellant on the basis of the sale in execution of the said Decree; and not on the basis of the purchase under the said Act of 1948. 6. Now in Appeal, the case made out before the Trial Court of the purchase of the acquired land in execution and that the Survey No. 215/5-C corresponds to Gat No. 539 has been given up by contending that Hissa No. 5-D of Survey No. 215 corresponds to Gat No. 539. Apart from the fact that an altogether a new case is sought to be made out, the consolidation extract which is sought to be produced by way of additional evidence shows that though the name of the Appellant is shown as the deemed purchaser, it is stated that the sale was postponed as the said Jaibai was the widow on the tiller's day. The certified copy of the 7/12 extract of the acquired land is at Exhibit-36. The said certified extract shows SM 6 247.fa.1163.92 that in the other rights column, the name of the Appellant was shown as purchaser with a remark that as the landlady was widow, the tiller's day has been postponed. It appears that the said entry was deleted subsequently. It is neither pleaded nor there is any record to show that the Appellant became the purchaser under the said Act of 1948. In absence of such evidence, the said Jaibai Vetal Dhangar had right, title and interest till the year 1983 when she executed a registered Sale Deed in respect of Gat No. 539 in favour of the father of the Respondent. 7. In these circumstances, there is no merit in the Appeal; and the same is, accordingly dismissed. (A. S. OKA, J.)