IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 199 of 2003 Reserved on: 28.07.2011 Date of decision: 19.08.2011 Nand Ram ... Appellant Versus Sant Ram ... Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. G.D. Verma, Senior Advocate with Mr. Ashish Jamalta, Advocate. For the respondent: Mr. Bhupinder Gupta, Senior Advocate with Mr. Janinder Mittal, Advocate. V.K. Ahuja, J. : This is a Regular First Appeal filed by the appellant/defendant under Section 96 C.P.C. against the judgment and decree of the Court of learned Additional District Judge, Solan, dated 30.6.2003, wherein a suit for recovery of ` 6,35,425/- filed by the respondent as plaintiff, has been decreed against the appellant/defendant. 2. Briefly stated, the facts of the case are that the plaintiff filed a suit for recovery of the amount alleging that he, defendant and one Dhani Ram are sons of Sobha Ram and they own land in village Prhar-Ki-Ber, which devolved upon them from their father Sobha Ram. It was alleged that the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 plaintiff, defendant and their brother Dhani Ram agreed to partition their moveable and immoveable properties, which were joint amongst them. The terms of the said compromise were settled orally and the said oral partition was duly acted upon. According to the said partition, the moveable house articles, ancestral house, cow-shed in abadi beside agricultural land was partitioned. The respective parties came in separate possession and exclusively owned and possessed their respective holdings. However, the revenue entries could not be got changed by the parties. It was further alleged that on 12.3.1980, a Notification under Section 4 of the Land Acquisition Act was issued by the State of Himachal Pradesh with respect to the land comprised in Khasra Numbers as detailed in the plaint. 3. The oral partition between the parties had taken place much prior to issuance of the notification under Section 4 of the Act, but the revenue entries showed the plaintiff and defendant to be owners of the said land in equal shares. On the basis of the wrong revenue entries, the proceedings under Land Acquisition Act proceeded and an Award was announced by the Land Acquisition Collector on 17.10.1980 awarding the amount of compensation. It was further alleged that the plaintiff wanted to file petition under Section 18 of the Land Acquisition Act for enhancement of amount of compensation with respect to the land, as awarded by the Land Acquisition Collector. However, since the entries in the revenue record showed the plaintiff and defendant to be owners in equal shares and the award was also made on the basis of the revenue entries. It was agreed that the plaintiff and defendant shall file joint petition under Section 18 of 3 the Act. The defendant agreed to execute the necessary documents in favour of the plaintiff giving him all authority to receive the amount of compensation exclusively, though the award was in the joint name of the parties. The relations in between the parties were cordial and there was no dispute. Therefore, a joint petition under Section 18 of the Act was filed. It was forwarded to the Court of District Judge, Solan. 4. Thereafter, the plaintiff and defendant executed a Memorandum of Partition on 17.6.1985 acknowledging the factum of having partitioned all moveable and immoveable properties and also acknowledged the fact that the land which was acquired under the notification under Section 4 of the Act was exclusively owned and possessed by the plaintiff. The defendant in the said Memorandum of Partition declared and acknowledged that the amount of compensation exclusively belonged to the plaintiff who shall be entitled to receive the same to the exclusion of the defendant. Thus, the defendant has waived his right to receive the amount of compensation. The defendant also executed Special Power of Attorney in favour of the plaintiff on 24.6.1985 authorizing the plaintiff to receive the entire amount of compensation. The Memorandum of Partition was duly effected in other villages where the parties own joint property and the necessary entries were duly corrected. The parties acknowledged the factum of oral partition, which was duly reflected in the Memorandum of Partition duly accepted by the parties. The plaintiff filed the proceedings for enhancement of the amount of compensation and was successful in getting the same enhanced as per the order of the District Judge dated 25.6.1985. The State of 4 Himachal Pradesh and others preferred an appeal against the said award of the District Judge in this Court and the plaintiff preferred cross objections. Since the defendant was a party in the Land Reference, therefore, he was arrayed as one of the parties in the appeal as well as in the cross objections. The plaintiff believed that he is solely entitled to the amount of compensation and, therefore, made all necessary expenses and the defendant did not contribute a single penny. In appeal vide order dated 24.12.1986, the case was remanded to the Court of District Judge and the plaintiff took all necessary steps for further adducing evidence at his own expenses. The District Judge, Solan, passed the award enhancing the amount of compensation. The State of Himachal Pradesh and others as well as the plaintiff preferred appeals. In both the proceedings, the defendant was also arrayed as one of the parties. However, the expenses were borne out by the plaintiff, which appeals are still pending adjudication in this Court. 5. It was further alleged that the enhanced amount of compensation was deposited by the authority and this Court ordered on 23.8.1989 that the amount of ` 8,45,000.20 be released to the claimants on their furnishing security. Since the plaintiff and defendant, both were represented by the same counsel in those proceedings, therefore, it was ordered that the claimants would be entitled to withdraw the amount, though the plaintiff was only entitled to receive the amount on the basis of the understanding. The plaintiff did not point out to this Court that the order of release be passed only in favour of him since the relations in between the parties were cordial. The plaintiff applied for 5 release of the amount and furnished security bond for himself and got a Special Power of Attorney on behalf of the defendant since the amount was deposited in the name of both the parties. However, the intentions of the defendant became dishonest, who also applied in the Court of the District Judge, for release of the amount in his favour. The said proceedings for release of the entire amount of compensation to the plaintiff were contested by the defendant and ultimately, the Court of the learned District Judge on 7.6.1995 ordered that half of the amount of compensation be released in favour of Anant Ram, defendant and the prayer of the plaintiff to delete the name of the defendant was rejected. The plaintiff agitated the matter in Civil Revision but remained unsuccessful. The defendant had made false representation to the Court of learned District Judge and claimed the half share in the amount of compensation, though he was not entitled to receive the same because the Memorandum of Partition was duly executed in his favour. Thus, it was alleged that the defendant has illegally received a sum of ` 5,59,846/- and alongwith interest a sum of ` 6,35,425/- is due from the defendant to the plaintiff, which he had withdrawn unlawfully. Hence, the suit for recovery of the amount filed by the plaintiff. 6. The defendant took up preliminary objections in regard to maintainability, cause of action and limitation etc. On merits, in regard to the land it was pleaded that other land has been partitioned in family arrangement by all the brothers, but this land has been notified for acquisition by the State Government during the year 1980. It was not subjected to partition proceedings at any point of time. The property in suit was not the subject 6 mater of partition and, therefore, the revenue entries remained the same and the orders were rightly passed by the Court for release of the amount. The plaintiff did not challenge the said entries in the revenue record to be incorrect. The alleged Memorandum of Partition was neither legal nor valid and was not admissible in evidence. It was also pleaded that the defendant never waived his rights over the land in question nor in the amount of compensation. Therefore, the defendant never agreed to the withdrawal of total amount of compensation by the plaintiff. The defendant did not give any assurance to the plaintiff that he will be wholly entitled to the compensation and as such, the plaintiff was not entitled to the amount. 7. On the pleadings of the parties, the following issues were settled by this Court on 10.12.1997:- “1. Whether the suit is not maintainable in the present form, as alleged? If so, its effect. … OPD 2. Whether the plaintiff has no legally enforceable claim against the defendant? If so its effect. … OPD 3. Whether the plaintiff has no cause of action as alleged? If so, its effect. … OPD 4. Whether the plaint lacks full and material particulars? If so, what are such particulars and effect thereof. ... OPD 5. Whether the suit is barred by limitation, as alleged? If so, its effect. … OPD 6. Whether the suit is barred by principles of res judicta, as alleged. If so, its effect. … OPD 7. Whether there was oral partition between the parties, which are duly acted upon, as alleged? If so, its effect? … OPP 7 8. If Issue No. 7 is answered in affirmative, whether the land acquired for the purposes of development and improvement of Thodo ground, Solan fell exclusively to the share of the plaintiff? … OPP 9. Whether the Power of Attorney executed by defendant in favour of plaintiff is not legal and valid or was procured and manipulated? If so, its effect? … OPD 10. Whether the plaintiff is exclusively entitled to the amount of compensation for the acquired land, including the enhanced amount, as alleged? … OPP 11. Whether the defendant has relinquished/waived his rights, to receive the amount of compensation and is estopped on account of his acts, deeds and conduct to claim any right in the amount of compensation for the acquired land, as alleged? … OPP 12. Whether the plaintiff is entitled to recover the suit amount? … OPP 13. Whether the plaintiff is entitled to interest on suit amount? … OPP 14. Relief. “ 8. Parties led their evidence and the learned trial Court vide its impugned judgment decided all the issues in favour of the plaintiff and as against the defendant and consequently decreed the suit of the plaintiff for recovery of the amount. 9. I have heard learned counsel for the parties and have gone through the record of the case. 10. The submissions made by the learned counsel for the appellant were that Notification under Section 4 of the Act had been issued prior to the date of the partition and the 8 proceedings for release of the amount were initiated thereafter, but no objection at any stage was raised by the plaintiff that since the partition has already been effected in between the parties, he was entitled to the release of the amount exclusively to the exclusion of the defendant. The dates of partition deed, notification and awards are material, which may be summarized as under:- (i) Memorandum of Partition Ext. PW1/A is dated 17.6.1985. (ii) Notification under Section 4 of the Land Acquisition Act was issued on 12.3.1980. (iii) The date of the award of the Collector is 17.10.1980. (iv) The date of execution of Special Power of Attorney Ext. PW1/B-1/AW1/E dated 24.6.1985 by defendant Nand Ram in favour of the plaintiff in respect of land, reference petition pending before the District Judge. (v) Application Ext. PW1/C for refund of the amount filed by the plaintiff for himself and on behalf of his brother. (vi) Ext. PW1/D surety bond furnished by the defendant for release of sum of ` 4,22,500/- dated 18.1.1995. (vii) Ext. PW1/E notice issued by the defendant to plaintiff on 31.7.1992 regarding cancellation of Special Power of Attorney dated 24.6.1985. (viii) Ext. PW1/K1, a copy of the order dated 23.8.1989 passed by this Court, which reads as under:- “C.M.P. No. 16 of 1989. Heard learned counsel for the parties. Out of the amount lying in deposit, the respondent-claimants would be entitled to withdraw an amount of Rs.8,45,000.20 on their furnishing solvent security for its restitution 9 to the satisfaction of District Judge, Solan. Similarly, the Municipal Committee Solan would also be entitled to withdraw the aforesaid amount of Rs.81,097.33 alongwith interest on furnishing a solvent security for its restitution to the satisfaction of District Judge, Solan.” (ix) A copy of order Ext. PW1/L passed by the learned District Judge on the application on behalf of Nand Ram for refund of the amount. Both the applicants/brothers are represented by different counsel and the amount of ` 4,22,500/-, was ordered to be released in favour of the claimant Nand Ram on his furnishing surety bond. (x) Ext. PW1/M application filed before the District Judge by Sant Ram for himself and as Attorney of Nand Ram dated 4.7.1991. 11. A reference can be made to the statement of the plaintiff as PW-1 and he denied that no family partition had taken place. He admitted that in the year 1981-82 the compensation assessed by the Collector Land Acquisition was paid in equal shares to him and the defendant. Reference was also made at the instance of both the parties and the District Judge has held him and the defendant entitled to the compensation in equal shares. He also admitted that appeal in the High Court was filed by the State against him and the defendant and an appeal for enhancement was preferred by him and the defendant in this Court. He pleaded that he filed the application alone and denied that it was filed by both of them and also stated that copy of Memorandum of Partition was attached therein. He claimed that 10 amount of compensation was refunded exclusively to him. However, both these facts did not stand substantiated from any of the orders referred to above, which shows that the amount was directed to be released in favour of both the parties in equal shares and separate surety bonds were furnished by both the brothers. In case, the amount has been released exclusively in favour of the plaintiff, there was no necessity for filing the suit. The mere fact that he may have been pursuing application on behalf of himself as well as his brother does not entitle him to the amount in question exclusively. Even if the Power of Attorney was executed in his favour to receive the amount in question, he was entitled to the amount, which had to be kept trust on behalf of his brother, but there is no reference that the defendant has relinquished his right to receive the compensation in favour of his brother. However, subsequently, the Power of Attorney was revoked as discussed above and the amount was released in favour of both the brothers in equal shares, who furnished surety bonds separately. 12. I need not refer to the other evidence since the facts are not in dispute, but the material question for consideration is as to whether the plaintiff was entitled to the amount exclusively. He had failed to bring it to the notice of any of the Courts, that is, Court of Land Acquisition Collector, District Judge or this Court, that no orders should be passed in favour of the defendant since on the basis of the partition deed he has relinquished his share in favour of the plaintiff. The main question which arises for consideration is in case the deed had already been executed on 17.6.1985 and the proceedings for release of the amount before the District Judge and the High Court were initiated for release of 11 the amount. Thereafter, why this matter was not brought to the notice of the Courts by him that the deed has already been executed in his favour and he was entitled to the amount exclusively. Even in the appeals filed by the State of H.P. or by him, these were filed by both the brothers and were contested by both the brothers and when the amount had been released in favour of the defendant for his share, he filed a suit on 22.2.1997 after he had failed to bring it to the notice of any Courts in those proceedings before that date that he alone was exclusively entitled to the amount and this question be determined by the Court. 13. The main question which arises for consideration is as to whether this question of apportionment of the compensation was to be determined by the Land Acquisition Collector or by the District Judge on a reference and as to whether the plaintiff was entitled to the amount after it has been released in favour of his brother also and whether he can claim the same if he failed to bring it to the notice of any Courts or file any reference petition under Section 18 of the Act. It is not disputed that the plaintiff and defendant filed an application under Section 18 of the Act for enhancement and the compensation was also enhanced and the only question is whether he took up the plea at that time in petition under Section 18 of the Act that he is exclusively entitled to the amount of compensation. 14. On the other hand, learned counsel for the respondent had submitted that once due execution of the partition has been admitted by the plaintiff and it was a registered document, therefore, he cannot take the plea that he was not a 12 party to the same or that the defendant was not bound by the same and since he has relinquished his rights in the land, he was not entitled to the amount of compensation unlawfully received by him under the provisions of the Land Acquisition Act. The partition deed was admitted by the defendant in his statement as DW-1 that it bears his signatures. He stated that he never relinquished his share in favour of the plaintiff for the land which had already been acquired. He stated about the Power of Attorney Ext. PW1/B executed by him in his brother’s favour. It was also revoked vide Ext. PW1/A. He stated that their land is still joint. He also stated that the partition had already taken place before the issuance of Notification under Section 4 of the Act, but no partition deed had been executed. It has been clearly pleaded by the plaintiff himself in the plaint that the Memorandum of Partition was duly effected in other villages where the parties own joint property and the necessary entries on the basis of mutations were duly corrected. 15. A perusal of the partition deed shows that a reference has been made to the partition having been effected in respect of the land detailed therein including the suit land and as per the deed, the land for which a reference petition is pending had fallen to the share of the party of the first party, who will be exclusively entitled to the same. However, in case the mutation had been effected in respect of other properties on the basis of the partition why it was not reflected in the revenue record in regard to the suit land, which fact has been alleged by the plaintiff himself in the plaint. 13 16. My attention has been drawn to the decision of this Court in Mangat Ram Vs. Gulat Ram (since deceased) through his LRs Jagdeep Kumar & Ors., Latest HLJ 2011 (HP) 274, wherein learned Single Judge of this Court has referred to the provisions of the Himachal Pradesh Land Revenue Act dealing with partition and had observed that in case the partition takes place without intervention of Revenue Officer, it is the duty of private parties to apply to the Revenue Officer for order of confirmation/affirmation of partition. It is mandatory for Revenue Officer in such case to inquire the fact of partition and comply provisions laid down in Chapter 9. Parties have not resorted to such measures. Partitions were entered into in the year 1961 and 1972/74 were held to be no partition in the eyes of law. Mere arrangement in regard to cultivation of land is not partition. The Revenue Officer is to give due consideration for such arrangement in order to maintain possession of parties at the time of final partition. 17. It is, therefore, clear that in case the partition is effected without intervention of the Revenue Officer, the parties are required to apply to the Revenue Officer, who is bound to confirm the same after inquiring into the matter and until and unless it is done, it cannot be said that a due partition was effected in between the parties and was acted upon also. 18. Moreover, the main question which arises for consideration is as to whether the Civil Court was competent to determine this question that the plaintiff was exclusively entitled to the amount in question or this question was to be determined 14 by the Court of District Judge on a reference petition under Section 18 of the Act. I may make a reference to the decision of this Court noted down by me in Charan Dass Vs. State of H.P. & Ors., AIR 2009 Himachal Pradesh 1, wherein learned Single Judge of this Court had occasion to consider the provisions of Sections 18 and 30 of the Land Acquisition Act and the observations made in Paras 23 to 28 are relevant, which are being reproduced below:- “23. On a close scrutiny of the various provisions of the Act and the judgments cited hereinabove, it is apparent that a person who has appeared in the reference proceedings before the Land Acquisition Collector or who has received notice of filing of the award under Section 12(2) of the Act can only apply for a reference under Section 18 of the Act. He cannot apply for a reference under Section 30. As is clear from reading of Section 18 as well as the law laid down, under Section 18, all objections of the interested parties relating to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation amongst persons interested can be referred to the Collector. There is a general misconception that Section 18 relates only to enhancement of compensation and reference for apportionment can only be made under Section 30. This misconception is totally ill-founded. Under Section 18 the persons interested can objection to the award on any of the grounds aforesaid and the Collector is bound to make a reference in case the 15 reference has been sought within the time prescribed by law. 24. The right to make a reference under Section 30 can be exercised suo motu by the Land Acquisition Collector when the proceedings are pending before him. He may assess the compensation or value of the land. Thereafter, he may hold that intricate and complicated question of law relating to the title of the persons interested are involved and refer the matter to the Court under Section 30. However, in case he does not do so, and proceeds to apportion the amount between the parties interested those who were present before him, or who have received notice of the filing of the award must seek a reference within the period of the limitation prescribed under Section 18. 25. Reference under Section 30 can however, be sought by other persons which may include the persons interested, who were neither present before the Land