Shivappa vs Iranagouda

S.N. Satyanarayana, J.—Defendants 6 to 11 in OS. No. 33/2012 on the file of Senior Civil Judge, Basavana Bagewadi, have come up in this writ petition impugning the common order dated 4.6.2014 passed on IA. Nos. 2, 15 and 16 in aforesaid original suit. Admittedly, the said suit is for the relief of partition and alleged separate possession of plaintiff in the suit schedule property.

The facts which are not in dispute are that the land bearing Sy. No. 274 said to be measuring to an extent of 26 acres 21 guntas of Masoothi village, Basavana Bagewadi Taluk was the land granted jointly in favour of one Smt. Channawwa and another Sri. Yamanappa under a common order. In the said order of Land Tribunal it is made clear that the western half portion is the property of Smt. Channawwa and eastern half portion is the property of Sri. Yamanappa. Incidentally, both Sri. Yamanappa and Smt. Channawwa are not alive. It is their legal representatives, who are present before the trial Court. The plaintiff in the original suit is said to be the son of Smt. Channawwa, given in adoption to another family. Defendant Nos. 1 to 5 are the other children of Smt. Channawwa, who continued to be in her family till her death. So far as defendant Nos. 6 to 11 are concerned, they are the legal representatives of deceased Sri. Yamanappa. Further it is not in dispute that a portion of land bearing No. 274 is acquired by NTPC for its project. The land which is acquired by them fall in both portions i.e., eastern as well as western portion of land bearing Sy. No. 274. It is clearly understood between the parties that in the acquired land also they are entitled to compensation in equal share in respect of which both are loosing equal extent of land in question.

When the matter was pending for consideration in the court below, it is stated that the acquiring body NTPC deposited a sum of Rs. 40,55,625/- in the court below towards compensation for the portion of land acquired in Sy. No. 274 and the said amount would enure to the benefit of the legal representatives of Smt. Channawwa as well as Sri. Yamanappa. When the matter stood thus, three applications are filed; first one in IA. 2 is by the plaintiff seeking an order of restraint against defendants from receiving any portion of the compensation amount pending disposal of original suit, second one in IA. 15 is by defendant Nos. 6 to 11 seeking release of remaining 50% of the amount in their favour and third one in IA. 16 is by defendant Nos. 1 to 5 seeking release of another 50% of the amount in deposit in their favour. All the three applications are clubbed together, heard and disposed of by common order dated 4.6.2014. While disposing of said applications, IA. 2. filed by plaintiff seeking an order of injunction restraining the defendants from receiving the compensation is concerned, it is rejected. So far as IA. 15 and 16 are concerned, the court below while allowing the said applications and permitting for withdrawing the compensation has directed the defendant Nos. 1 to 5 as well as 6 to 11 to keep 1/6th share of plaintiff in deposit. Being aggrieved by the same, the applicants in IA. 15, namely defendant Nos. 6 to 11 have come up in this writ petition.

Heard the learned Counsel for the petitioners as well as contesting respondents, namely plaintiff and defendant Nos. 1 to 5 in the court below. On going through the order impugned as well as material available on record, this Court is unable to understand the reason behind restriction put by the trial court in defendants 6 to 11 withdrawing 50% of the amount which is in deposit. Admittedly, the land bearing Sy. No. 274 was jointly granted in favour of Smt. Channawwa as well as Sri. Yamanappa. The shares of Smt. Channaww's family as well as Sri. Yamanappa's family is clearly defined as western half portion to Smt. Channawwa and eastern half portion to Sri. Yamanappa. It is also not in dispute that the acquiring body-NTPC while acquiring the land has acquired only a portion of land in Sy. No. 274, which was equally belonging to both the shares. Therefore, from out of the compensation which is deposited, defendants 6 to 11 have a clear and distinct share of 50% towards the loss of their land proportionately in the said acquisition.

It is further not in dispute that the plaintiff in OS. No. 33/2012 who is first respondent herein is claiming 1/6th share only from 50% share of his mother's property i.e., Smt. Channawwa's property. In the event of his adoption not being proved and he is held to be a member of Smt. Channawwa's joint family and in the event it is held that he is having 1/6th share in the estate of Smt. Channawwa, he is entitled to 1/6th share from out of 50% of the amount that is due to Smt. Channawwa's family, i.e., the compensation which is paid towards the land acquired from Smt. Channawwa's share. When that being the case, the order of trial court in directing defendant Nos. 6 to 11, who are petitioners herein to deposit 1/6th share from out of the compensation amount, which would enure to the benefit of Sri. Yamanappa's share, does not stand to reason. In that view of the matter, the order of trial court imposing restriction regarding defendant Nos. 6 to 11 receiving the total extent of 50% share in the amount of compensation lying in OS. No. 33/2012 does not stand to reason. Similarly, the order regarding payment of court fee on the said amount also does not stand to reason since the petitioners herein have not sought for enhancement or filed counter claim in the said proceedings.

With the aforesaid observations, this writ petition is allowed. The common order dated 4.6.2014 passed in OS. No. 33/2012 the file of Senior Civil Judge, Basavana Bagewadi, so far as it pertains to IA. No. 15 which is filed by defendant Nos. 6 to 11 seeking release of 50% of the compensation amount deposited towards Sri. Yamanappa's share, wherein the court below has imposed restriction regarding deposit of 1/6th share of the petitioners herein to protect the alleged interest of plaintiff in the said suit is hereby set aside.