:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE FIRST APPEAL NO.7 OF 1991 FIRST APPEAL NO.7 OF 1991 FIRST APPEAL NO.7 OF 1991 Shankar Namdeo Shinde ...Appellant. (Org.Applicant/Claimant) v. 1. Deoram Namdeo Shinde Since deceased through his legal heirs, A. Bhairu Deoram Shinde B. Tanubai Deoram Shinde 2. Nivrutti Namdeo Shinde 3. Raghunath Namdeo Shinde 4. Laxmibai Namdeo Shinde 5. Bhimabai Baburao Anarathe 6. Avadabai Santu Vaje 7. Nanubai Santu Palade 8. Sou. Fulabai Tukaram Avati 9. The Special Land Acquisition Officer, Nashik ...Respondents. AND AND AND FIRST APPEAL NO.8 OF 1991 FIRST APPEAL NO.8 OF 1991 FIRST APPEAL NO.8 OF 1991 Shankar Namdeo Shinde ..Appellant (Org. Applicant/Claimant) v. 1. Deoram Namdeo Shinde Since deceased through his legal heirs (Amended as per Courts order and trial Courts Exh.18) A. Bhairu Deoram Shinde B. Tanubai Deoram Shinde 2. Nivrutti Namdeo Shinde 3. Rahgunath Namdeo Shinde 4. Laxmibai Namdeo Shinde 5. Bhimabai Baburao Anarathe 6. Avadabai Santu Vaje 7. Nanubai Santu Palade 8. Sou. Fulabai Tukaram Avati 9. The Special Land Acquisition Officer, Nashik ...Respondents. Mr.R.M.Haridas i/by P.N.Joshi , advs. for the Appellant. Mr.V.Z.Kankaria , adv. for the Respondent Nos.1A, 1B, 2 to 4, 6 to 8. :2: CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 12TH August, 2008. DATE: 12TH August, 2008. DATE: 12TH August, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Both these appeals may be disposed off by the common judgment because both these appeals arise out of the common judgment rendered in Land Acquisition Reference No.194 of 1988 and Land Acquisition Reference No.246 of 1989 passed by the learned Joint District Judge, Nashik. 2. To state in brief, 10 properties situated at Village: Murambi and two properties situated at Village:Vadivarhe were acquired by the Special Land Acquisition Officer. The present appellant, who claimed that he was one of the joint shareholders, had 5/27th share in the said lands and therefore, he claimed 5/27th share in the compensation awarded by the Special Land Acquisition Officer. In respect of those lands, he had also filed Special Civil Suit No.108 of 1981 in the Court of Civil Judge Senior Division, Nashik claiming partition and separate possession in the acquired lands. By the judgment dated 7th August, 1990, the learned IIIrd Joint Civil Judge, Senior Division at Nashik passed the judgment and declared that the plaintiff/appellant before this Court was entitled to 5/27th share in all 32 agricultural lands and some house properties situated at Murambi. According to the :3: defendants/respondents, he was not entitled to claim any share in the property, which was acquired by the Special Land Acquisition Officer. The learned Joint District Judge passed the the impugned judgment in both the land references on 31st October, 1990 and held that the appellant was entitled to 5/27th share in the compensation under the properties bearing gat nos.578, 582, 587 and 610 of Murambi village while his claim in respect of eight other properties was dismissed. The learned Reference Court observed that even though the IIIrd Joint Civil Judge Senior Division, Nashik passed the judgment on 7th August, 1990 declaring that the appellant is entitled to 5/27th share in all the 32 properties including properties, which were acquired, that judgment has not become final because the defendants/respondents declared their intention to prefer an appeal against that decree. In view of this, the learned Reference Court perused the oral and documentary evidence and passed the impugned order. Being not satisfied with the rejection of the claim in respect of six properties of Village Murambi and two properties of Village Vadiwarhe, the original applicant has preferred these two appeals because the said judgment was passed in two reference applications. 3. Heard the learned counsel for the parties and perused the impugned judgment passed by the learned Joint District Judge, Nashik as well as the judgment :4: passed by the learned IIIrd Joint Civil Judge, Senior Division, Nashik in Special Civil Suit No.108 of 1981. 4. On perusal of the record, it appears that the appellant Shankar is son of one Namdeo through his wife Sonubai while the defendants were children of Namdeo from his another wife Laxmibai. Even though when the land references were before the learned Joint District Judge, Nashik, statement was made that the judgment and decree passed by the Civil Judge Senior Division, Nashik in partition suit would be challenged after taking instructions. The learned counsel for the respondents made a statement that no appeal has been preferred and thus, the judgment and decree passed in the Special Civil Suit No.108 of 1981 has become final. In view of this, it is declared that the plaintiff/appellant is entitled to 5/27th share in 29 properties from Village: Murambi, 2 properties from Vadivarhe and one property from Village: Gadgarsangvi. On perusal of the impugned judgment in the land reference, it appears that out of 29 properties of Village:Murambi, 10 lands were acquired by the Government in the decree. The Civil Judge Senior Division, Nashik in the partition suit described the properties by their survey numbers while when the lands were acquired, their gat numbers were shown. Therefore, in paragraph 9 of the impugned judgment, the learned Joint District Judge, Nashik has given comparative table of the said lands. It is as follows: :5: S.No. Gat No. Amount of Compensation 1) 107 549 Rs.76,725 2) 126 578 Rs.46,154.35 3) 127/2 582 Rs.25,131.70 4) 130/1 587 Rs.4,388.00 5) 137/2 610 Rs.41,243.95 6) 136/3 623 Rs.70,300.55 7) 98/3+4+5 506 Rs.10,384.10 8) 128 583 Rs.3,297.45 9) 98/2 514 Rs.19,854.70 10) 309/2 536 Rs.25,699.45 All these ten properties are from Village: Murambi. The learned Joint District Judge held that in the properties shown at 2,3,4 and 5, i.e., gat nos.578, 582, 587 and 610 of land had 5/27th share. However, the learned Joint District Judge, Nashik rejected the claim in respect of remaining six properties shown at Sr.Nos.1 and 6 to 10, i.e., land gat nos.549, 623, 506, 583, 514 and 536 for the reasons given in the order. However, in Special Civil Suit No.108 of 1981 for partition, rights of the parties have been finally decided. That judgment and order operates res-judicata and it must be held that appellant had 5/27th share in these six properties also in which the right was refused to him by the learned Joint District Judge. 5. On careful perusal of the paragraph nos.12 and 13 of the impugned judgement, it can be gathered that land survey nos.432/2, 428/2 of Village: Vadiwarhe have been marked as Gat No.552 and 553. Judgment in Special :6: Civil Suit No.108 of 1981 shows that the plaintiff was declared to have 5/27th share in the land survey no.428/2, 432/2 of Vadivarhe. In view of this the appellant is entitled to get 5/27th share in the compensation in respect of these two lands also. 6. In view of the facts and circumstances noted above, it must be held that rights of the parties have been finally declared in Special Civil Suit No.108 of 1981 and as a result of the same, the appellant is entitled to 5/27th share in the compensation awarded by the Special Land Acquisition Officer in respect of all the ten properties of Village: Murambi and both the properties of Vadiwarhe, which was acquired by the Government. Therefore, the impugned order rejecting the claim of the appellant in respect of six properties of Murambi and two properties of Vadiwarhe has to be set aside. 7. In the result, both the appeals are allowed. The impugned judgment and order in the land reference no.194 of 1988 and land reference no.246 of 1989 are hereby set aside. It is hereby declared that the appellant/applicant Shankar Namdeo Shinde is entitled to 5/27th share in the compensation awarded for the ten lands bearing gat nos.549, 578, 582, 587, 610, 623, 506, 583, 514, 536. of Village:Murambi and the land gat nos.552, 553 of Village:Vadiwarhe. Award be modified :7: accordingly. Parties shall bear their own costs in the appeal. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)