HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE NOUSHAD ALI Dated 13-7-2010. APPEAL SUIT No.353 of 2000 Between: D.Kesamma and others. …Petitioners. And: D.Sivamma and others. ...Respondents. HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE NOUSHAD ALI APPEAL SUIT No.353 of 2000 ORDER: (Per the Honourable Sri Justice V.Eswaraiah) This appeal is filed by the appellant aggrieved by the order dated 23-9-1999 passed in O.P.No.996 of 1987 on the file of the Additional District Judge, Medak at Sangareddy. In the aforesaid order in O.P.No:996 of 1987, the reference made by the Special Deputy Collector (Land Acquisition), Singoor Project, Sangareddy was answered holding that the claimant No.14 who is the legal representative of claimant No.3 alone is entitled to receive the compensation amount deposited in the said O.P. The brief facts of the case relevant for the purpose of disposal of the appeal are that: The land of an extent of Ac.4.30 Guntas in S.No.731/A and another extent of Ac.10-00 in S.No.731/B situated at Khadrabad village, Andole Mandal, Medak District, standing in the name of Smt.Noorunnisa Begam, claimant No.13 was acquired for the purpose of Singoor Project under the Land Acquisition Act. It is the case of the parties to the appeal that the said land was inherited by the sons of one Narasimhulu namely (1) D.Balaiah and (2) Nagaiah. Appellants herein belong to the branch of Balaiah and the respondents other than 7th respondent belong to the branch of Nagaiah. The appellants are the claimant Nos.6,7 and 9 to 12 and claimant No.8 D.Satyamma is made as respondent No.6. Respondents 1 to 5 are claimant Nos.1 to 5 and respondents 8 to 11 are the claimants 14 to 17 and 7th respondent herein is the claimant No.13 in the O.P. It is stated that though the said land stood in the name of Smt. Noorunnisa Begum as pattadar but the protected tenancy was granted in favour of D.Sivaiah being the elder son of the other branch of Nagaiah. According to the appellants, the entire land was purchased by all the claimants from the claimant No.13 but Sivaiah being the elder son of Nagaiah, protected tenancy was granted in his name. It is stated that though the protected tenancy was granted in the name of Shivaiah, the compensation was paid according to the respective shares to all the claimants. But there was a dispute with regard to the claim made by the 13th claimant claiming that as per the agreement of sale in respect of Ac.10-00 in S.No.731/B, Sivaiah the protected tenant has to pay 1/3rd of the compensation of the said land to her and the entire compensation of Ac.4.30 Guntas in respect of S.No.731/A. It is stated that in fact, during the course of award proceedings, she was not present and the award was passed on 7-4-1986 vide award No.4 in the proceedings No.B/226/83. Accordingly, the Special Deputy Collector ordered that 1/3rd of the total compensation of the land of an extent of Ac.10-00 in S.No.731/B and the total compensation of Ac.4-30 Guntas in S.No.731/A amounting to Rs.65,879-16ps and 1/24th share out of 2/3rd share amounting to Rs.3,395-83ps was ordered to be deposited in the District Court under Section 30 and 31 of the Land Acquisition Act for adjudication and ordering payment to the rightful person. While referring the matter to the Court, all the shareholders as well as Noorunnisa Begum were directed to be made as parties to the dispute. The remaining 2/3rd of the total compensation of the land in S.No.731/B pertaining to Ac.10-00 amounting to Rs.50,937-51ps was ordered to be paid to the following claimants as extracted below: __________________________________________________________ SNo Name of the awardee Share Amount Name of the payee Amount awarded payable ______________________________________________________________________________________________ 1.Smt. D.Sivamma } 1/24th 3,395-83 Smt. D.Sivamma 3,395-83 w/o Shivaiah } w/o Shivaiah } 2.Sri D.Ramulu } S/o Shivaiah 3.Sri Manaiah s/o of Nagaiah 1/12th 6,791-67 Sri Manaiah son of 6,791-67 Nagaiah 4.Sri D.Lakshmaiah 1/12th 6,791-67 Sri D.Lakshmaiah 6,791-67 s/o of Nagaiah s/o of Nagaiah 5. Smt. D.Narasamma 1/12th 6,791-67 Smt. D.Narasamma 6,791-67 w/o Narayana w/o Narayana 6. Smt. D.Kesamma } w/o Mallaiah } } 5. Smt. D.Kesamma 5,093-75 7. Smt. D. Eashwaraiah } w/o Mallaiah. S/o Mallaiah } 1/4th 20,375-00 } 6. Sri Eashwaraiah 5,093-75 8. Smt. D.Chandraiah } s/o Mallaiah s/o Mallaiah. } } 7. Sri Chandraiah 5,093-75 9. Smt. D.Gopala Krishna } S/o. Mallaiah. s/o Mallaiah. 8. Sri Gopala Krishna 5,093-75 } S/o. Mallaiah. 10.Smt. D.Susheela } w/o Mallaiah. } 1/12th 6,791-67 9. Smt. Gangamani 6,791-67 } D/oMallaiah. 11. Smt. D.Gangamani. } _________________________________________ Total 50,937-51 50,937-51 ___________________________________________________________________ Learned Counsel appearing for the appellants submits that the claimant Nos.6,7,9 and 10 were directed to be paid 1/4th share of the remaining 2/3rd and the claimant Nos.11 and 12 were directed to be paid 1/12th share. (Even as per reference order). The said claimants are appellants herein. Even according to the reference order, respondents-1 and 2 herein who are claimants 1 and 2 were awarded 1/24th share, respondents 3, 4 and 5 were awarded 1/12th share each. It is stated that when admittedly, the appellants have been awarded share in respect of undisputed 2/3rd share of the land in S.No.731/B pertaining to Ac.10-00, it is their case that they are also entitled to the share in respect of the disputed share of 1/3rd in S.No.731/B. It is further stated that they are also entitled for the share in respect of the land in S.No.731/A. It is further stated that even as per the reference order, in para 3, by the Special Deputy Collector, it is noticed that Sivamma and her sons claimants 1 and 2 appeared before the Special Deputy Collector and disputed with regard to the claim of Noorunnisa Begam relating to 1/3rd share stating that the lands belong to them and the same is payable to all the share holders as follows: 1. Smt. Devarapally Shivamma w/o Shivaiah. } 1/8th share } 2. Sri ” Ramulu s/o -do- } 3. Sri ” Manaiah s/o Nagaiah 1/8th share 4. Sri ” Laxmaiah s/o Nagaiah. 1/8th share 5. Smt. ” Narsamma w/o Narayana. 1/8th share 6. Smt. ” Keshamma w/o Mallaiah 1/8th share 7. Sri ” Eshwaraiah s/o Mallaiah. } 3/8th share 8. Sri “ Chandraiah s/o Mallaiah. } 9. Sri ” Gopalakrishna s/o Mallaiah. } 10. Sri ” Susheela w/o Mallaiah. } 1/8th share 11. Smt. ” Gangamani D/o Mallaiah . } It is stated that it is only with regard to the scope of reference as to whether Smt. Noorunnisa Begum is entitled to 1/3rd share in respect of 731/B of an extent of Ac.10-00 and the total extent of S.No.731/A of Acres.4.30 Guntas and if she is not entitled, all the claimants are entitled to their respective shares. But it is stated that the reference Court erroneously held that the claimant No.14 who is the legal heir of claimant No.3 Manaiah/respondent No.8 herein alone is entitled to receive the compensation deposited in the said O.P. The reference Court while rejecting the claim of Noorunnisa Begum-claimant No.13 entirely relied on the Certificate issued by the Additional Revenue Divisional Officer, Sangareddy in the name of Shivaiah and based on the evidence of P.Ws.1 and 2 stating that certificate under Section 38-E was issued in favour of Shivaiah. As per the evidence of claimant No.14 who is the legal representative of claimant No.3 namely Manaiah, who was examined as P.W.1, the grandfather Nagaiah had four sons namely Shivaiah, Manaiah, Laxamaiah and Narayana, and Shivaiah died and Shivaiah had wife and daughter-in-law who are claimant Nos.1 and 2 and claimant No.14 is the only son of Manaiah claimant No.3 and claimant No.4 died leaving behind his wife, sons i.e., claimants 16 and 17 and Narayana died leaving behind his wife. They are protected tenants of Survey No.731 consisting of Ac.14.27 Guntas and 38-E Certificate was granted in favour of Shivaiah who was the kartha and eldest son of the family. Without recording any specific finding as to how the claimant No.14 became the owner and possessor of the said land, the Reference Court held that claimant No.14 alone is entitled to receive the compensation. We are of the opinion that the order of the Reference Court has been passed without any reference to the Reference order of the Land Acquisition Officer. If the protected tenancy was granted in favour of Shivaiah, Shivaiah’s wife, son or daughter-in-law alone are entitled to get share but not claimant No.14 who is the son of Manaiah, who is one of the four brothers. However, it is stated that Shivamma and her son were the only legal heirs of the protected tenant Shivaiah. It is stated that compensation is to be paid to all the shareholders as per the shares indicated above. In fact, the scope of the reference is to make all the claimants as parties and to decide the legal entitlement to all the respective shares while considering the disputed claim of Qamuruddin, GPA for Noorunnisa Begum, claimant No.13. When the claim of Noorunnisa Begum is rejected, we are of the opinion that the Reference Court ought to have considered the claims of all the claimants in the same proportion in which they have been paid the compensation in respect of undisputed 2/3rd share of amount in respect of the land of Ac.10-00 in S.No.731/B. Learned Counsel appearing for the appellants further submit that even according to Ex.A.3 certified copy of ceiling order of R.D.O. Sangareddy in C.C.No:1507 of 1975, dated 14.10.1991 in O.P.No.108/86, it is stated that the husband of claimant No.6 namely Kesamma filed a declaration and while passing the order by the Additional R.D.O., (Land Reforms), Sangareddy, it was observed that the land in S.No.731 was exchanged by one Shivappa who is alleged to be one and the same of Shivaiah in whose favour, the protected tenancy was granted. But the fact remains that the compensation amount in so far undisputed share of 2/3rd is concerned. No doubt, P.Ws.1 and 2 who have opposed the entitlement of the share of the appellants, also marked Exs.A.1 to A.5. But, the Reference Court did not consider or discuss anything about the said aspects. Claimant No.7 was examined as P.W.3 and it is stated that the said land was purchased by his forefathers from the father of the claimant No.13 and all of them have enjoyed the said land for about more than 40 years even prior to the acquisition of the said land and therefore, the branch of the appellants are entitled to 1/2 share to the said property. We are also of the opinion that neither of the parties have adduced any relevant evidence with regard to their possession and actual enjoyment of the said property immediately prior to the acquisition of the land. In fact, all the claimants have been paid share of the compensation in respect of the undisputed land and the reference Court did not consider the effect of the statement of the claimant Nos.1 and 2 i.e., Sivamma and Ramulu for compensation in respect of their two of the shareholders as stated in para 3 of the reference. Hence, the order impugned is liable to be set side and it is a fit case to remand the matter for consideration afresh. Both parties are entitled to adduce further evidence, if any in respect of their respective claims. Accordingly, the appeal is allowed setting aside the judgment dated 23.9.1999 in O.P.No:996 of 1987 on the file of the Additional District Judge, Medak at Sangareddy and remitting the matter back to the Court below for fresh consideration after affording an opportunity to both the parties of hearing and of producing further evidence, if any. There shall be no order as to costs. ________________________ JUSTICE V.ESWARAIAH ________________________ JUSTICE NOUSHAD ALI Dated 13-7-2010. Dvs HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE NOUSHAD ALI APPEAL SUIT No.353 of 2000 (Judgment delivered by the Honourable Sri Justice V.Eswaraiah) Dated 13-7-2010.