IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 LA.App..No. 334 of 2006() ------------------------- LAR.29/2004 of SUB COURT, TIRUR .................... APPELLANT(S): CLAIMANT E ------------------------ SEETHALAKUMARI, D/O.SANKARAN, SHERLOCK, OPP.PAZHSSI PROJECT CAMPUS, THANA, KANNUR-670 006. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): CLAIMANTS A,B,C,D & RESPONDENTS ---------------------------------------------- 1. VALIYAPARAMBIL SARITHA, D/O.SANKARAN. 2. VALIYAPARAMBIL SANTHOSHKUMAR, S/O.SANKARAN, DO. 3. VALIYAPARAMBIL SWETHA, D/O.BHASKARAN, RAYIRIMANGALAM, TIRUR. 4. SUDHEESHKUMAR, S/O.V.G.SANKARAN. 5. THE SPL.TAHSILDAR (L.A), TIRUR. 6. V.S.SANISH KUMAR, S/O. LATE V.G.SANKAR, VIKAS HOUSE, NEAR DURGA HIGH SCHOOL, KANHANGAD, KASARAGOD DISTRICT. (IMPLEADED VIDE ORDER DATED 20/10/2008 IN I.A.NO.461/2008) BY GOVT.PLEADER SRI.C.R.SHYAMKUMAR ADV. SRI.P.U.SHAILAJAN FOR R1 TO 3 GOVERNMENT PLEADER C.R.SHYAMKUMAR FOR R5 SRI.R.SUDHISH FOR R4 SMT.M.MANJU FOR R4 SRI.R.SUDHISH FOR ADDL.R THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE & K. HARILAL, JJ. ------------------------ L.A.A..No.334 OF 2006 ------------------------ Dated this the 25th day of November, 2011 JUDGMENT Harilal, J. This appeal arises from the judgment dated 6/12/2005 passed by the Subordinate Judge, Tirur in Land Acquisition Reference No. 29/2004. 7.53 cents of property consisting of 0.365 Ares in Re-Survey No. 314/7, 0.0405 Ares comprised in Re-Sy No.314/8, 0.0305 Ares of land comprised in Re- survey No. 314/9 was acquired as per the award No.2/04 dated 15/1/2004 and the total compensation determined was Rs. 2,58,645/-. There were 5 claimants and they were numbered as A, B, C, D and E. Initially the court issued notice against A, B and C claimants only. But, subsequently D and E claimants were impleaded. The above Reference was made to determine the question of apportionment among the eligible claimants. The claimants A, B, D and E are the children of one Shankaran and Mythili. According to the statement filed by A and B claimants, the property comprised in re-survey No. 314/7 was in tenancy L.A.A.No.334/2006 2 right with Mythili the mother of A and B claimants and grand mother of C claimant. The property comprised in re-survey Nos.314/8 and 314/9 belong to Mythili in jenmum right. The said Mythili executed a settlement deed by which she gifted the property in favour of the claimants A, B and C as per the Registered Document dated 13/11/1987. D and E claimants have no right over the property. The jenmum right claimed by D claimant as per document No. 519/1964 in respect of the property comprised in Survey No. 314/7 is lost by the operation of Kerala Land Reforms Act. D claimant is only entitled to get compensation that has to be paid to the landlord in respect of the tenanted premises as per the Kerala Land Reforms Act even if the claim raised by the D claimant is admitted. Therefore, A, B C claimants are entitled to receive the amount in deposits before the court. 2. The D claimant filed a statement claiming that he has purchased the property as per the document No. 519/1964 and Mythili has no right over the property and Mythili has purchased the right of mortgage only and Mythili has no right of fixity of tenure. Being a mortgagee, she is entitled to get value of L.A.A.No.334/2006 3 improvements only and she claims that she is entitled to get 1/8th share in the acquired property. 3. The claimant E filed a statement contending that the amount in deposit belongs to E claimant and other claimants who are the legal heirs of Sankaran. The property in re-survey No.314/2 was purchased by Shankaran by a registered document. The property in Survey Nos.314/8 & 9 also belong to Shankaran. After the death of Shankaran the right devolved on his legal heirs. There are seven children and wife is alive. Therefore, each claimant is entitled to get 1/8th share in the acquired property. Neither the D claimant nor the claimants A, B & C have any exclusive right over the property. 4 On behalf of A, B, C claimants AW1 and AW2 were examined and AW1 is A claimant and AW2 is her mother. Exts.A1 to A8 were marked. D claimant gave evidence as DW1 and Exts.D1 to D4 were marked. 5. The question to be considered is whether the claimants D and E are entitled to get 1/8th share as claimed by them. Even though claimant No. D raised very serious contentions, the Court below rejected that contentions due to the lack of evidence L.A.A.No.334/2006 4 and the findings against the D claimant attained finality in the absence of appeal against the said findings. Therefore, the remaining question to be considered is whether the claimant E is entitled to get share as claimed by her. The learned Sub Judge has analysied the title over the property comprised in each survey number in detail. E claimant has produced E1 document No. 1111/196. There is an encumbrance certificate with reference to the property comprised in resurvey No. 314/2. 6. Sri. K.V.Sohan learned counsel for the appellant submits that O.S. No.145/2007 filed by the E claimant claiming right over the property is pending before the Sub Court, Tirur and in that suit E claimant has raised a claim for 1/8th share in the schedule property of that suit. The learned counsel further submits that even though the property is in the name of Mythili she is only a name lender or benami. She had no independent income to acquire the property. The property acquired absolutely belongs to Shankaran the husband of the Mythili. Since the property belongs to Shankaran, after the death of Shankaran, the right title and interest over the property devolved upon his children and wife equally. Therefore, the Land L.A.A.No.334/2006 5 Acquisition Officer ought to have apportioned the amount due to them equally. 7. In this appeal the appellant has produced a true copy of the plaint in O.S. No.145/2007 filed before Sub Court, Tirur. We have considered the plaint averments and reliefs sought for in the plaint in view of the claim raised in this land acquisition proceedings. On going by the plaint schedule and the reliefs sought for it could be seen that there is no challenge against the gift deed executed by Mythili in favour of A. B & C claimants and the reliefs sought for is only for partition and separate possession of 1/8th share in the B schedule property. It is pertinent to note that there is no prayer for setting aside the alleged gift deed executed by Mythili in favour of A, B & C claimants. B schedule in that suit consists of 5 items of properties comprised in different Re-Survey numbers. It is surprising to note that the Re-Survey numbers, in which acquired property is comprised, are not seen in these 5 items of B Schedule except item No.2 comprised in Sub division 5 and 7 of Re-survey No.314. But it is specifically described that this is the property excluding the land acquired. Therefore, it could be seen that subject matter of L.A.A.No.334/2006 6 O.S. 145/2000 has no relation with the acquired property and pending suit has no consequences or relevancy at all in determining money due to the claimants in land acquisition reference . Even if the subject matter is same , in land acquisition proceedings apportionment cannot be made in anticipation of the decision, which would come out in a pending suit. Similarly, apportionment cannot be postponed till the outcome of the pending suit. Apportioning must be in accordance with the right, title and interest over the property on the date of section 4 (1) notification only. 8. No document is seen produced in support of their claim in the reference proceedings. Exts.E1 and E2 are documents in respect of the property comprised in Re- Survey No.314/2. The property comprised in that Re-Survey number has not been acquired in the proceedings. On the other hand, claimants A, B & C proved their title and possession over the acquired property at the time of 4(1) notification. 9. In the result of the above discussion, it could be seen that claim raised by E claimant is unfounded and unsustainable. The learned Sub Judge rightly considered the right, title and L.A.A.No.334/2006 7 interest over the property of each claimant in view of the document available on record and found that the claim put forward by the claimants D and C are unsustainable. We are not inclined to interfere with the above findings. Hence this appeal is devoid of merit and will stand dismissed. PIUS C.KURIAKOSE,JUDGE K. HARILAL, JUDGE. dpk