HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO.686 OF 2001 (Old No. 198 of 1991) 1. Sachhida Nand Painuly, 2. Paripurna Nand Painuly, 3. Keshwa Nand Painuly, All S/o late Sri Krishna Nand Painuly, R/o Suman Chawak, Tehri, District Tehri Garhwal. ................Opp.Party/Appellants. Versus 1. Ghananand, S/o Bhola Dutt, 2. Khilanand (died), S/o Indra Dutt, Substituted by his legal heir: 2/1. Sri Tara, S/o Sri Khilanand, Both R/o Village Chaudana, Patti Dhung Madar, District Tehri Garhwal. ........Applicants /Respondents. 3. State of U.P. .........Performa Respondent. Dated: 31.03.2008 Hon’ble Rajesh Tandon, J. Heard Sri Rajendra Dobhal, counsel for the appellants, Sri A.M. Saklani, counsel for the respondents no. 1 and 2/1 and Standing Counsel for the State. 2. By the present First Appeal filed under Section 96 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 22.2.1991 passed by the District Judge, Tehri Garhwal in Land Acquisition Reference No. 9 of 1998 Ghannanand Vs. Sachhidanand Painuly and others by which issue No. 3 has been decided allotting 1/12th share of the property to the respondents. 3. Briefly stated, the property in question being Khata No. 13 Khet No. 141, 144 Ward No. 4 was recorded as joint property in he revenuer records of the years, 1918, in which the name of his grand-father was the joint owner along with other co-shares. After the death of his grand-father, the father of the applicant namely Sri Bholadutt became the owner of the property in dispute and after the death of his father, the applicant being the heir became the owner of the property. Applicant has submitted that there is 1/12th share of the Applicant in the property in question. The applicant has submitted that the sale deed, which has been filed by the opposite party is not admissible in the evidence and only co- share cannot sell the property. Applicant has submitted that if more part of the property has been sold by the opposite party that that comes in their share, there will be no effect on the share of the applicant. The applicant has submitted that he is entitled to get 1/12th share from the amount of compensation, which has been awarded to the opposite parties. Special Land Acquisition Officer while awarding the compensation has recorded a finding to the effect: “bl lEcU/k esa 1932 ds cUnkscLrh [krk uEcj 13 ds lg[kkrsnkjksa }kjk vkifRr izLrqr dh xbZ A nksuksa i{kksa ds c;ku fy, x,A ekSds ij mDr [kkrs ds [ksr uEcjkuksa ij fLFkr Hkwfe Hkou ij Jh lfpnkuUn Jh ds’kokuUn Hkh ifjiw.kZUkUn iq=x.k d`".kkuUn iSU;wyh lifjokj jg jgs gSa o mUgha ds }kjk uo fufeZr edku gS A ,d Hkou iqjkuk gS ftl ij fd nks dejs Åij o nks dejs uhps gSA bl fookfnr Hkou ds fo"k; esa vkifRrdrkZ crkrs gSa fd mDr Hkou ij 3 dejs Åij o 3 uhps gSA vr% ekSds dh fLFkfr o nksuksa i{kksa ds c;kuksa ds vuqlkj izfrdj dk fu/kkZj.k Jh lfpnkuUn Jh ds’kokUkUn o Jh ifjiw.kkZUUkn iq= Jh d`".kkUkUn iSU;wyh rFkk Jherh izseorh iq=h d`".kkUkUn ds gd esa fd;k tkrk gSA** 4. The Opposite parties have filed a written statement sating therein that they are the sole owner of the property in question, which had been purchased bide sale deed dated 8.12.1955. It has further been stated that they have already received the amount of compensation and they are owners of the property in question due to adverse possession and the applicant Ghananand is not entitled to get any amount of compensation. 5. On the pleadings of the parties, the Reference Court has framed the following issues: “1- D;k izkFkhZ fookfnr laifRr esa lg Lokeh gS\ ;fn gka rks mldk izHkko\ 2& Lo;kpu\ 3& D;k foi{khx.k ,d rk rhu fookfnr lEifRr ds Lokeh izfrdwy v/;klu ds dkj.k gS\ 6. The reference was made claiming 1/12th share of the respondent. 7. While deciding the issue no. 1 and 2, the Reference Court has recorded the finding that the applicant Ghanand is co-owner in the property in question and the has 1/12th share in the said property and opposite parties no. 1 to 3 are not the owner of the property on the basis of adverse possession. Thus, the aforesaid issues have been decided accordingly. 8. While deciding the issue no. 3, the Reference Court has recorded the finding that the applicant is entitled to get a sum of Rs. 22,102.3 from the opposite parties no. 1 to 3 along with 6% future and pendent lite interest. 9. It appears that the respondent Ghannanand has filed a writ petition before the Allahabad High Court. The Division Bench of the Allahabad High Court on 18.03.1988 has passed the order to the following effect: “Ghananad, the petition, has filed this writ petition for Mandamus direction the Special Land Acquisition Officer (irrigation), I Tehri Garhwal, respondent. no. 2, to refer his application for his share in compensation made under Section 18 of the Land Acquisition Act. The application is stated to have been made on 12.6.87. For filing the writ petition we see little justification but as the reference has to be made, we consider it appropriate in the interest of justice to give direction to respondent no. 2 that the application may be dealt with the decided, if found compete to the District Judge at an early date.” 10. Counsel for the appellant has referred Ahad Brothers Vs. State of M.P. and another (2005) 1 SCC 545, where the Hon’ble Apex Court has observed as under: 7. The contention that it was not open to the appellant to urge that the Reference Court could not consider the question of title over the land having not challenged the order made by the High Court earlier permitting the amendment of the written statement, has no force. Merely because permission was granted to amend the written statement did not mean that the appellant could resist the claim of the respondent State as regards its right as owner over the land acquired. The respondent State itself has treated the appellant all along as the owner of the land. Not only in the notification acquiring the land, name of the appellant is shown as owner, even the revenue records also show the appellant as owner. Further the Land Acquisition Officer passed award in respect of this treading the appellant as owner entitled to receive compensation. If the State was owner of the land in question, there was no reason for it to acquire its own land. The State cannot be said to be a person interested to agitate any claim either under Section 18 or under Section 30 of the Act.” 11. Counsel for the appellant has submitted that no finding has been recorded as to whether the reference was within time or not. 12. Taking into consideration the arguments of the counsel for the appellant, the reference is remanded to the District Judge/Reference Court for deciding: (1) As to whether the reference was filed within time? (2) As to whether the property in question was self acquired by the appellant so as to eliminate the interest of the respondent? 13. The court below shall record the finding and pass the order within a period of three months from the date of filing of the certified copy of the order. 14. Consequently, A.O. is allowed. No order as to costs. (Rajesh Tandon, J.) 31.03.2008 Rathour