Abdul Jabbarsab and Others vs The Deputy Commissioner, Haveri District and Others

H.G. Ramesh, J.—These first and second appeals are filed by two branches of the family stating that they have got right and title over the suit property, which has been taken over by the City Municipality, Ranebennur without following due procedure and without paying the compensation. Accordingly, two separate suits were filed by two branches of the family before the Civil Judge, Ranebennur and the matter was contested by the respondent-City Municipal Council, Ranebennur. Both the suits were tried together as common prayer and common averments were involved. Both the suits came to be dismissed. However, one of the branches filed regular first appeal stating that they have got every right over the property and without following due procedure, the Town Municipality, Ranebennur has acquired the property belonging to the plaintiffs. The regular appeal filed by the other branch came to be dismissed on the point of delay. As against the same, the second appeal has been preferred.

Heard the leaned counsel for both the parties.

The possession of the property was taken way back in the year 1962 and the compensation amount was deposited by the then Collector and accordingly, it is contended that there are documents to show that there was an acquisition.

It appears that the property is available with the Town Municipality, Ranebennur. If the records are there stating that there was acquisition of the property by the Government for the benefit of Town Municipality of Ranebennur, then there must be a notification. If no notice was issued to the plaintiffs and even if it is issued and it is not taken care of, it is a different aspect. However, if the compensation is awarded and deposited as per Section 12 of the Land Acquisition Act, then necessarily there must be notice. What is being noted is that the trial Court in both the matters preferred by both the branches dismissed the suits on the ground they have failed to prove the title over the property. This might be on the ground that one of the parties who filed the suit has admitted regarding the acquisition. Be that as it may. In the first appeal filed in R.F.A. No. 124/2004, it is to establish the title and another branch preferred; the second appeal in R.S.A. No. 5456/2010 is against the dismissal of the regular appeal on the ground that there is inordinate delay in preferring the appeal. So these two branches of the family have sought for declaration and injunction on the ground that they have not been notified and also there was no acquisition.

If there is acquisition of the land way back in the year 1959 or 1962 and possession was taken over during the year 1962, there must be some proceedings taken place in the form of a Gazette notification that would be available. Even if the trial Court has dismissed the suits filed by the plaintiffs, then necessarily the said order of the trial Court has to be set aside in the event it is found that plaintiffs have got title over the property. If there is any discrepancy as to the title and identity of the property is concerned, the same be clarified by the lower appellate Court depending upon the documents and entries available to the parties. If the property belonging to the plaintiffs have been taken over by the Government for the benefit of Town Municipality, Ranebennur, then definitely at this point of time, they cannot seek for restoration of the property. At the most they can seek for awarding compensation and if already the compensation is awarded and it is deposited, proportionally the plaintiffs are entitled for the same. As regards the identity of the property is concerned, if the property does not belong to the plaintiffs and the property is taken over by the Town Municipality, Ranebennur, then acquisition of the property is sustainable. For this purpose, a Commissioner preferably the Assistant Commissioner or Taluka Surveyor could be appointed to measure the property belonging to the plaintiffs and the extent of it.

With the above observations, both the appeals are allowed thereby directing the lower appellate Court to entertain the regular appeal by condoning the delay. Both the parties are at liberty to lead additional evidence, if any, and also the Commissioner''s report for the purpose of identification of the property.

The judgment and decree passed by the lower Court in dismissing the appeal on the ground of limitation is set aside and the matter is remitted to the trial Court. So also in R.F.A. No. 124/2004 filed against the dismissal of the suit by the trial Court is also set aside and the matter is remitted to the trial Court. Both the suits filed by the parties are restored on board to decide afresh based on the documents available. Send back the records to the trial Court forthwith.

The applications regarding production of documents are allowed and the same be remitted to the trial Court for consideration and for marking of those documents.

No order as to costs.