THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 3779 of 2010 DATE: 27-04-2011 Between: The District Collector, Visakhapatnam and another .. Petitioners And Smt.N.Tulasi Devi .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 3779 of 2010 ORDER: This revision petition is filed against the order dated 24.07.2009 in E.A.No.511 of 2006 in E.P.No.458 of 2002 in O.S.No.170 of 1994 on the file of the II Additional Senior Civil Judge, Visakhapatnam. The suit in O.S.No.170 of 1994 was filed by the plaintiff for recovery of damages of Rs.5,00,000/- towards the value of the machinery, which was damaged when the property was acquired, for which no compensation was paid according to the claim of the plaintiff. The suit was decreed ex parte after filing of the written statement. At the time of execution, E.A.No.511 of 2006 was filed under Section 47 of Civil Procedure Code, 1908 (for brevity “CPC”) to declare the judgment and decree obtained by the plaintiff is null and void on the ground that the compensation was already determined under the proceedings of Land Acquisition Act (for brevity “the Act”) and the compensation was paid and, therefore, the present claim and entertainment of the suit is not valid and the decree is not enforceable for want of jurisdiction of the Court. The respondent/plaintiff, on the other hand, claimed that the cause of action for the present suit is quite different from the Land Acquisition proceedings. The learned II Additional Senior Civil Judge, Visakhapatnam did not accept the contention of the revision petitioner and dismissed the application and aggrieved by the same the present revision is filed. The points that arise for consideration are : 1. Whether the order of the learned II Additional Senior Civil Judge, Visakhapatnam is legal? 2. Whether the decree for the damages obtained by the plaintiff is valid? POINTS: There is no dispute about the fact that certain part of the land belonging to the plaintiffs was acquired and compensation claim was in dispute and the matter was referred under Section 30 of the Act to the Civil Court with regard to the claims of some of the land owners. So far as the present plaintiff is concerned, she claims to have taken on lease an extent of Ac.2-00 cents belonging to one C.R.Sundar Iyar and there was a stone-crusher. The Land Acquisition Officer observed that there were two thatched sheds and one A.C. sheet motor room, crusher, etc. The contention of the learned counsel for the revision petitioner is that while passing of the award, the value of the structures were taken into consideration and in that the value of the stone-crusher is also shown and the value was fixed at Rs.30,000/- by the Land Acquisition Officer on the basis of the assessment made by the Engineering Department. Thereafter the value of the structures and also the stone- crushers was totally determined as a sum of Rs.62,228/- and it was deposited in the Court. Therefore, the award passed by the Land Acquisition Officer includes the claim of the plaintiff in the suit for damages of Rs.5,00,000/- for the alleged destruction of the stone- crusher. According to the case of the Government, the plaintiff has not raised any objection about the valuation of the stone-crusher or the structures when the award was passed and notices were also given to the plaintiff for appearance and the determination of the value made under the Act is final and the Civil Court does not have any jurisdiction to entertain the suit and consequently the decree passed by the learned II Additional Senior Civil Judge, Visakhapatnam, even if it is ex parte, is a nullity and there is no liability for the Government to pay the amount. But, however, as can be seen from the order of the lower Court, only the copy of the award was filed and there is no evidence to show as to what are the structures and what is the valuation arrived at by the Land Acquisition Officer before passing of the award. If the value of the stone-crusher was also taken into consideration at the time of passing of the award and if the plaintiff has not availed the opportunity of raising any claim under Section 18 of the Act for enhancement of the value, naturally the suit cannot be entertained by the Civil Court. But, however the plaintiff has also not gone into box in this application during the course of enquiry to prove as to whether there are bona fides in this claim and the Government has also not produced the relevant material as to whether the value of the stone-crusher was assessed and the compensation determined and paid by the Government includes the value of the stone-crusher. Therefore, all these aspects have to be considered by the Court afresh and both the parties shall be given an opportunity to adduce the evidence and then the Court shall determine whether the suit is maintainable and the decree is valid and enforceable or not. The learned counsel for the plaintiff contends that the award does not include the valuation of the stone-crusher as stated above. This is a fact to be determined by the lower Court after taking evidence on both the sides. Therefore, the order of the lower Court is set aside and the matter is remanded to the lower Court directing to give opportunity to both the parties to adduce further evidence about the liability and non- liability of the Government for payment of the suit claim and also to determine as to whether the suit is maintainable and the decree can be considered as valid or not for want of jurisdiction to entertain the suit. The lower Court shall dispose of the application within three months from the date of receipt of copy of this order. Accordingly the appeal is allowed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 27-04-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 3779 of 2010 DATE: 27-04-2011 MR