Allowed

Sri. Basavaraj S/O. Marigeppa Bembalgi v. the Special Land Acquisition Officer

Karnataka HC1 Sept 2023MFA/101595/2017

Case brief

AI extract

What is this about?

In a first appeal under Section 54(1) of the Land Acquisition Act, the High Court of Karnataka allowed the appeal and set aside the reference award. The court held that the appellant, as the sole beneficiary of a testamentary will regarding maternal properties, is entitled to the entire compensation, not a shared interest with other legal heirs.

What did the court decide?

The first appeal was allowed. The impugned award regarding the specific suit properties was set aside. The appellant was declared solely entitled to the entire compensation, and the SLAO was directed

Sri. Basavaraj S/O. Marigeppa Bembalgi Vs the… — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:11468-DB MFA No. 101595 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1^ST DAY OF SEPTEMBER, 2023 PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 101595 OF 2017 (LAC)

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BETWEEN:

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SRI. BASAVARAJ S/O. MARIGEPPA BEMBALGI AGE: 60 YEARS, OCC: BUSINESS, R/O: BEMBALAGI CHAWL, MUCHAKHANDI CROSS, BAGALKOTE, DIST: BAGALKOTE-587101.

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…APPELLANT

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(BY SMT. PALLAVI S.PACHHAPURE AND SRI. RAJENDRA R.PATIL, ADVOCATES)

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AND:

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THE SPECIAL LAND ACQUISITION OFFICER BAGALKOT TOWN DEVELOPMENT AUTHORITY, BAGALKOTE, DIST: BAGALKOT-587101.

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SRI. SHIVANAND S/O. MURIGEPPA BEMBALAGI SINCE DECEASED BY HIS L.R'S

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JAGADISH T R HIGH COURT OF KARNATAKA DHARWAD BENCH 2023.10.12 12:40:53 +0530

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2A. SMT. VIJAYABAI W/O. SHIVANAND BEMBALAGI, AGE. 62 YEARS, OCC. HOUSEHOLD WORK, R/O. BEMBALAGI CHAWL. MUCHAKHANDI CROSS, BAGALKOTE, DIST. BAGALKOTE-587101.

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2B. SMT. RAJALAKSHMI D/O. SHIVANAND BEMBALAGI W/O. ARUN @ SHRISHAIL VANTAMURI, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: SECTOR NO. 50, 2^ND CROSS, OPPOSITE TO C.B. PATIL ADVOCATE, BHAVANI BUILDING, NAVANAGAR, BAGALKOTE, DIST: BAGALKOTE-587101.

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2C. SRI. MANJUNATH S/O. SHIVANAND BEMBALAGI, AGE: 27 YEARS, OCC: PRIVATE JOB,

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NC: 2023:KHC-D:11468-DB MFA No. 101595 of 2017

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R/O: BEMBALAGI CHAWL,

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MUCHKHANDI CROSS,

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BAGALKOTE, DIST: BAGALKOTE-587101.

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SRI. VISHWANATH S/O. MURIGEPPA BEMBALAGI MAJOR, OCC: BUSINESS, R/O: BUILDING NO.10, HOUSING COLONY EXTENSION, BAGALKOT, DIST: BAGALKOT-587101.

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SRI. MAHANTESH S/O. MURIGEPPA BEMBALAGI SINCE DECEASED BY LEGAL HEIRS.

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4A. SMT. SARVAMANGALA W/O. MAHANTESH BEMBALAGI AGE: 57 YEARS, OCC: HOMEMAKER, R/O: BEMBALAGI CHAWL, MUCHAKHANDI CROSS, BAGALKOTE, DIST: BAGALKOTE-587101.

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4B. SMT. MUKTA W/O. MURUGESH PATANSHETTI AGE: 31 YEARS, OCC: HOMEMAKER, R/O: BEMBALAGI CHAWL, MUCHAKHANDI CROSS, BAGALKOTE, DIST: BAGALKOTE-587101.

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SMT. SARVAMANGALA W/O. RAJASHEKHAR KONDAD, MAJOR, OCC: HOUSEWIFE, R/O: C/O. DR. RAJASHEKHAR, GTEETA CLINIC, BUDDEKAL STREET ADONI, TAL: ADONI, DIST: KURNOOL-518001. ANDHRA PRADESH STATE.

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…RESPONDENTS

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(BY SRI. M.M.KHANNUR, GOVT. ADV. FOR R1; SRI. S.S.NIRANJAN, ADV. FOR R2(A, B, &C); SRI.LINGARAJ MARADI, ADV. FOR R3; R4(A), R4(B) AND R5-HELD SUFFICIENT)

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THIS MFA IS FILED U/SEC.54(1) OF LAND ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD DATED 02.08.2016 PASSED IN LAC.NO.204/2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BAGALKOT.

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THIS APPEALCOMING ON FOR FURTHER HEARING, THIS DAY, S.R.KRISHNA KUMAR, J., DELIVERED THE FOLLOWING:

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3 - NC: 2023:KHC-D:11468-DB MFA No. 101595 of 2017

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JUDGMENT

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This appeal is directed against the impugned judgment and award dated 02.08.2016 passed in LAC.No.204/2013 by the II Additional Senior Civil Judge and JMFC, Bagalkot.

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Heard learned counsel for the parties and

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perused the material on record.

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The material on record discloses that the appellant and respondents 2 to 5 are the legal heirs of late Murigeppa Bembalagi who expired on 25.09.2006 and their mother Smt.Gangubai Bembalagi had predeceased their father on 14.05.2003. The appellant filed a suit in O.S.No.201/2004 against his siblings for partition and separate possession of his share in the properties of his father late Murigeppa Bembalagi before the Civil Court. The appellant's mother, Smt.Gangubai also owned immovable properties which she bequeathed in favour of the appellant vide last will and testament dated 24.05.2000. The respondent No.4 herein, Mahantesh,

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4 - NC: 2023:KHC-D:11468-DB MFA No. 101595 of 2017

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brother of the appellant also instituted one more suit in O.S.No.265/2003 against the appellant and other siblings. challenging the aforesaid will dated 24.05.2000 executed in favour of the appellant and for other reliefs. In this context it is relevant to state that suit schedule properties involved in O.S.No.201/2004 filed by the appellant comprised of portions of CTS(TP)No.217B/1 of Ward 10 of Bagalkot belonging to his father Murigeppa Bembalagi while the suit schedule properties involved in O.S.No.265/2003 filed by respondent No.4, Mahantesh comprised of two separate/different items also being portions bearing CTS (TP) No.2178/1, situated at Ward No.10 of Bagalkot and owned by their mother late Smt. Gangubai which had been bequeathed in favour of the appellant as stated supra. Both the suits were clubbed and disposed of together by the Trial Court vide common. judgment and decree dated 24.04.2009 under which while O.S.No.201/2004 filed by the appellant for partition and separate possession of his share in the properties of his father Murigeppa Bembalagi was decreed in his favour, the

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other suit in O.S.No.265/2003 filed by the respondent No.4 against the appellant claiming right in the properties of their mother Smt. Gangubai was dismissed by holding that the will dated 24.05.2000 had been proved by the appellant by virtue of which he had become the sole and absolute owner of the said properties which were the subject matter of O.S.No.265/2003 before the Trial Court.

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Meanwhile, on 11.02.2008, the State Government initiated acquisition proceedings in respect of the aforesaid properties which were the subject matter of both O.S.No.201/2004 and O.S.No.265/2003 referred to supra which culminated in an award dated 08.06.2011. When the appellant claimed the entire compensation. awarded in respect of the properties which were subject matter of O.S.No.265/2003 owned by his mother Smt.Gangubai who had bequeathed the same in her favour under the aforesaid will dated 24.05.2000, the respondent No.4-Mahantesh raised objections and requested the respondent No.1-SLAO not to disburse the

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said amount in favour of the appellant. Accordingly, the SLAO referred the dispute to the Reference Court which considered the rival claims and came to the conclusion that all the legal heirs of late Murigeppa Bembalagi and Smt.Gangubai including the appellant and respondent No.2 to 5 herein were entitled to equal 1/5th share in all the acquired properties which were subject matter of both the suits in O.S.No.201/2004 and O.S.No.265/2003 referred to supra. Aggrieved by the impugned judgment and award passed in LAC.No.204/2013, the appellant filed a review petition in R.P.No.1/2017 which was also dismissed by the reference Court vide order dated 18.04.2017. Aggrieved by the impugned orders, only insofar as it relates to rejecting the claim for entire compensation in respect of the properties involved in O.S.No.265/2003 which had upheld the claim of the appellant, he is before this Court by way of the present appeal.

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7 - NC: 2023:KHC-D:11468-DB MFA No. 101595 of 2017

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A perusal of the material on record including the impugned orders will indicate that the reference court has come to the conclusion that as per the common judgment and decree passed in O.S.No.201/2004 c/w O.S.No.265/2003, all the heirs of late Murigeppa Bembalagi including the appellant were entitled to only 1/5th share each in the properties which were the subject matter of both the suits. In this context, the reference court failed to appreciate that while the subject matter of O.S.No.201/2004 were properties owned by late Murigeppa Bembalagi which was decreed in favour of the appellant and respondent Nos.2 to 5 by declaring that all of them were entitled to 1/5th share each, the subject matter of the connected suit in O.S.No.265/2003 were properties owned by Smt.Gangubai who had bequeathed the same in favour of the appellant to the exclusion of everyone else including the respondents herein and the said will had been upheld by the Trial Court which had dismissed the suit filed by the respondent No.4 under the very same common judgment and decree. In other words,

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8 - NC: 2023:KHC-D:11468-DB MFA No. 101595 of 2017

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the reference court has misconstrued and misread the common judgment and decree passed in O.S.No.201/2004 c/w O.S.No.265/2003 which clearly indicates that while all the parties were entitled to compensation to an extent of 1/5th share each in the properties involved in O.S.No.201/2004, it was the appellant alone who was

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exclusively and absolutely entitled to the entire compensation in respect of the properties involved in O.S.no.265/2003 to the exclusion of everyone else including the respondent and failure on the part of the reference Court in appreciating this as resulted in erroneous conclusion. So also, the said error which was apparent on the face of the record and can easily be discerned from the judgment and decree passed in the aforesaid suits has not been considered by the reference. court which has proceeded to dismiss the review petition filed by the appellant also. Under these circumstances, were of the considered opinion that the impugned orders passed by the reference court are contrary to law and fact

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9 - NC: 2023:KHC-D:11468-DB MFA No. 101595 of 2017

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as well as the material on record warranting interference

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by this Court in the present appeal.

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In the result, we pass the following;

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ORDER

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i) Appeal is hereby allowed.

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ii) The impugned order judgment and award dated 02.08.2016 passed in LAC.No.204/2013 on the file of the II Additional Senior Civil Judge and JMFC, Bagalkot insofar as it relates to the suit schedule properties involved in O.S.No.265/2003 is hereby set aside.

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iii) The appellant is alone declared to be solely and absolutely entitled to the entire compensation in respect of suit schedule. properties involved in O.S.No.265/2003 to the exclusion of everyone else including the respondents herein.

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iv) The respondent No.1-SLAO is directed to pay/disburse the entire compensation in respect of suit schedule properties involved in O.S.No.265/2003 in favour of the appellant forthwith without any delay.

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iv) In the event, the respondent No.1-SLAO has already paid/disburse any portion of the compensation amount in respect of suit schedule properties involved in O.S.No.265/2003 in favour of anyone else including the remaining respondents herein, respondent No.1-SLAO is directed to recover the same from the said other respondents and pay the same to the appellant forthwith without any delay.

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vi) So also, any such respondent(s) who has received any compensation in respect of suit schedule properties O.S.No.265/2003 is involved also directed in to redeposit/pay the said amounts to the respondent No.1SLAO so as to enable him to disburse the same in favour of the appellant.

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Sd JUDGE

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Sd JUDGE

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List No.: 1 Sl No.: 52

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Sri. Basavaraj S/O. Marigeppa Bembalgi v. the Special Land Acquisition Officer

Case brief

What is this about?

What did the court decide?

Sri. Basavaraj S/O. Marigeppa Bembalgi v. the Special Land Acquisition Officer

Case brief

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