FIRST APPEAL No.339 OF 1992 Against the judgment dated 10.06.1992 and the award dated 18.06.1992 passed by Sri Ram Pravesh Sharma, Sub Judge-I, Aurangabad in Land Acquisition Case No. 151 of 1974/8 of 1975/17 of 1981. NEZAMUDDIN ANSARI AND ORS------------------------------------(Appellant) VERSUS CHELA NARSINGH DAS, CHELA OF AWADHESH SINGH --------------(RESPONDENTS) For the appellant Mr. Dhrub Narain, Sr. Advocate Mr. Jitendra Prasad Singh Mr. Abhishek & Mr. Sri R.K. Singh Advocates For the respondent: None P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO Mungeshwar Sahoo,J. J U D G M E N T The appellants have filed this First Appeal under section 54 of the Land Acquisition Act against the judgment dated 10.06.1992 and award dated 19.6.1992 by Sub Judge- I, Aurangabad in Land Acquisition Case No. 151 of 1974/8 of 1975/17 of 1981 whereby the learned court below on a reference under section 30 of the Land Acquisition Act held that the respondent has got title and possession over the acquired land measuring 19 decimals out of Plot No. 399, Khata No. 3 situated at village, Pandeykhab P.S. & District- 2 Aurangabad and confirmed the award prepared under the name of original opposite party Awadhesh Kumar Shastri and dismissed the claim application filed by the appellants. 2. The above mentioned land measuring 19 decimals was acquired by the State Government and the award to the tune of Rs 615.51 was prepared in the name of Awadhesh Kumar Shastri, the original opposite party. Bibi Jainab and others objected the award on the ground that they are the title holder and therefore, they are entitled to receive the award. Because of this dispute, the matter was referred by the said Land Acquisition Officer, Aurangabad to the Civil Court under section 30 of the Land Acquisition Act. 3. According to the appellants’ case, Fakira Mian was the recorded owner regarding the acquired property and after his death, the applicants/appellants are the rightful owner and are in possession of the acquired land, so they are entitled to receive the awarded amount. 4. On the otherhand, case of the opposite party is that the land acquired, was auction sold in Execution Case No. 68 of 1951 & delivery of possession was given in favour of the auction purchaser, Mahadeo Singh, Tunni Devi & others. The said auction purchasers transferred the acquired land in favour of Sri Murti Ram Laxman Janaki Jee through Ram Sharan Das Siwayat by registered deeds Ext.-A & Ext-A/1. Sri Ram Sharan Das created a trust in favour of Sri Ram 3 Laxman Janaki Jee and is coming in possession as Siwayat and therefore, the award was prepared rightly in his name. 5. After trial, the learned court below by the impugned judgment, dismissed the appellant’s case and found that the opposite party-respondents are the original owner and therefore, the award prepared is correct. 6. The learned senior counsel for the appellant, Mr. Dhrub Narain submitted that the learned court below has gravely erred in dismissing the appellants’ claim without considering the fact that earlier the claim of the appellant was decreed by terms of order dated 10.05.1978. The learned counsel further submitted that the appellants had produced documentary evidences in support of their claim that in the survey record of right, their ancestors were recorded as intermediary. After the death of ancestors, the appellants are in possession of the land but the learned court below has disbelieved the said documents Exts-1, 2 & 2/A. Therefore, the judgment and award are liable to be set aside. The learned counsel further submitted that the learned court below should have relied upon oral evidences adduced on behalf of the appellants. 7. It may be mentioned here that no body appeared on behalf of the respondent when this case was heard. 8. In view of the above contentions of the learned counsel appearing on behalf of the appellants, now only 4 point arises in this appeal for determination is as to whether the appellants have been able to prove their title and possession on the date of acquisition of the land in question or whether the award prepared in the name of opposite party is correct? F I N D I N G S 9. In support of their case, the appellants have examined Ram Prasad Mishra as witness No. 1. In the examination-in-chief, he stated that Fakira Mian had a son, Wali Mahmad. Wali Mahmad had a son and daughter, Bibi Jaidu Nisha. He has further stated that he cannot say as to who was in cultivating possession of the lands acquired. In the cross-examination, at paragraph-2, he expressed his inability to say anything about the land. From the evidence of this witness, it appears that he is unable to say anything regarding the claim of the appellants. Therefore, this witness has not at all supported the case of the appellants. 10. A.W. 2 Md. Suleman has stated that Fakira was recorded in the record of right. After death of Wali Mahmad, his sons and daughters are in possession. Except these two witnesses, no other witness has been examined in support of the case of the appellants. According to the A.W.2 also, he has not stated the genealogy and claimed that the appellants are in possession. It further appears that this A.W. 2 is not a party to the proceeding. Therefore, none of 5 the claimants have been examined by the appellants. 11. Out of the two witnesses, A.W. 1 has not at all supported the case and A.W. 2 has only stated about the genealogy and possession. Exts- 1, 2 & 2/A shows that proprietor Babu Ram Pd. Singh was holding 8 Anna share wherein Sheikh Fakira was shown as intermediary. These are the only evidences available in support of the applicants/appellants’ case. From the above evidences, it is not clear as to whether on the date of acquisition of land the applicants/appellants were owner and were in possession of the land? 12. It appears that the original O.P. Awadhesh Kumar Shastri was examined as O.P.W. No. 1. He has stated that by sale deed Ext-A and A/1, the auction purchasers sold the acquired land in favour of Sri Ram Laxman Janaki Jee alongwith other lands. A trust was created on 21/02/1966 and Chela Awadhesh Kumar was appointed as Siwayat and manager with regard to the lands inclouding the acquired land. He has also proved Ext-C, the canal Parcha standing in the name of Awadhesh Kumar Shastri, Exts- D & D/a are the rent receipts in the name of Sri Ram Laxman Janaki Jee, Exts-E/1 & E/2 are the water rent receipts. He has also proved Ext-F the judgment passed in Case No. 364B/1953- 54 and Ext-F shows that Mahadeo Singh & Smt Tunni Devi has applied for mutation of their name over 8 Anna propriety 6 interest of Tauji No. 5013/6 relating to village Pandeykhap on the ground that they have auction purchased the same in Execution Case No. 65 of 1951, 56 of 1952 & 60 of 1952 and claimed possession by virtue of auction purchase. This witness has also proved Ext-G certified copy of the order passed by Assistant Director, Consolidation in Chakbandi Appeal No. 261/86 which was filed by the Nizamuddin. The appeal was dismissed, Ext-G/1 the order of Consolidation Officer in Case No. 66 of 1985 whereby the objectors Jainab and others, was dismissed. The witness has also proved Ext-G/2 the order of mutation in Rent Fixation Case No. 18/1959-60. He has also proved the certified copy of rent roll Ext-H in the name of Lord Ram Laxman Janaki Jee with respect to Tauji No. 5013/6. The witness has also proved Ext H/1, the rent roll standing in the name of Smt. Tunna Devi with respect to the lands including the disputed land. 13. From the evidence of O.P.W. No. 1 it is clear that the lands were auction sold and the auction purchaser Tunni Devi and others came in possession and sold the same to Sri Ram Laxman Janaki Jee through Ext-A & A/1 and thereafter, the opposite party as Siwayat is coming in possession of the lands acquired and others purchased through the registered sale deeds. No doubt, in the Khewat, the ancestor of the applicants/appellants was recorded but because of subsequent events as stated by the opposite 7 party, the title passed to Sri Ram Laxman Janaki Jee and the opposite parties continued in possession. The possession of the opposite parties being the Siwayat of Sri Ram Laxman Janaki Jee was found by the various revenue authorities. 14. As discussed above, except Khewat, Exts- 1, 2 & 2/1 no other evidences have been adduced by the appellants to prove their con tenuous possession and also that their title did not divest. From the evidence, it does not appear that they ever disputed the genuineness of the documents produced by the O.P.W.1. No cross- examinations regarding the genuineness was made to the witness, O.P. W. No. 1. 15. Considering all the above facts and circumstances of the case, the learned court below by the impugned judgment found that the award has been rightly prepared in the name of original opposite party/respondent. 16. Shri Dhrub Narain, the learned senior counsel submitted that earlier the Reference Case was decided in favour of the applicants/appellants on the same set of evidence produced by the appellants but by the impugned judgement and award, a different view has been taken contrary to the earlier judgment. So far this submission is concerned, I find no force because it appears that earlier the order was passed ex parte on the basis of Exts-1, 2 & 2/A. It 8 appears that thereafter the opposite party appeared and filed application under Order 9 rule 13 for setting aside the ex-parte order on the ground that no notice was served on him. After inquiry, the learned court below found that no notice was served and therefore, the ex-parte order was set aside. In such circumstances, when the ex parte order was set aside, the said order was not in existence on the date of present judgment and award. The learned court below was, therefore, not required to even look into the said ex parte order which was set aside. 17. Next the learned senior counsel submitted that the present impugned judgment was passed without hearing the appellants. So far this submission is concerned also, I find no force because from the judgment itself, it is apparent that the appellants were represented by their learned counsel, Sri Mishra whose name is printed in the judgment. 18. The learned counsel relied upon the decisions reported in 2004(7) SCC 362 (Meher Rusi Dalal Vs Union of India & Ors), AIR 1974, Patna 262 (Dhanushdhari Rai Vs Manmohan Rai( & 2003(2) PLJR 180 SC (Sharda Devi Vs The State of Bihar) and on the basis of these decisions, submitted that the decisions of the court below passed after reference u/S 30 of the Land Acquisition Act will operated as res judicata. There is no dispute regarding the settled principles of law. These decisions are not applicable in the 9 Patna High Court, the 13 th day of July, 2010 AKV/AFR facts and circumstances of the present case because there is no question of res judicata. 19. In view of the above discussions, I find that the award has been prepared rightly in the name of the opposite party/respondent and the learned court below has rightly dismissed the applicants/appellants claim. I, therefore, confirmed the findings of the learned court below. 20. In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. (Mungeshwar Sahoo,J.)