Sri T Madhwapathi Vs Sri Aravinda Bhat Y G

THIS MSA IS FILED UNDER ORDER 54(2) OF THE LAND ACQUISITION ACT., AGAINST THE JUDGMENT AND DECREE DATED 12.09.2022 PASSED IN MA.NO.22/2019 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, UDUPI ., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 10.07.2019 PASSED IN LAC.NO.20/2008 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ACJM, UDUPI, DISPOSING THE SUIT HAS MADE REFERENCE UNDER SECTION 30 AND 31 OF THE LAND ACQUISITION ACT.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.Sachin B. S., learned counsel for the appellants and Sri.Gopala Krishna Soodi, Additional Government Advocate for respondent No.1.

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Present second appeal is filed by the claimants challenging the order passed by the First Appellate Court in MA No.22/2019 whereby the order of the reference Court in LAC No.20/2008 is modified by granting 60% of the awarded compensation to the appellants and 40% to the remaining claimants who claims to be mulgenidar.

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Admitted facts for disposal of the present appeal are as under:

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3.1. Land in Sy.No.88/4 of Shivalli village, Udupi District was acquired for the purpose of ‘Malpe Molakalmur Road Expansion Project’.

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3.2. There is no dispute as to the acquisition but what when it came for distribution of compensation amount, claimant No.5 raised objections with the acquiring authority whereby the matter was referred to the Civil Court under Section 30 and 31 of the Land Acquisition Act.

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Learned Judge in the reference Court after notifying the claimant and the counter claimant, held an enquiry and after considering the oral and documentary evidence placed on record, held that the appellants are entitled for compensation amount for the acquired land.

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Being aggrieved by the same, Aravind Bhat Y. G. and Ashok Kumar, who are claimant Nos.5(a) and 5(b) being the legal representatives of the original claimant No.5 by name Sulochana G. Bhat filed an appeal challenging the award passed by the reference Court in MA No.22/2019.

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Learned Judge in the First Appellate Court after hearing the parties, noted that Sulochana G. Bhat was the

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mulgenidar and therefore, she is also entitled for the compensation to the extent of 40% and claimant Nos.1 to 4 are entitled for compensation to the extent of 60% and allowed the appeal in part.

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Being further aggrieved by the same, claimant

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Nos.1 to 4 have preferred the present second appeal on the following grounds:

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The Impugned Judgment & Award passed by the Court Below is unjust, opposed to law, contrary to the pleadings and evidence placed on record by the parties. Under such circumstances, the Impugned Judgment & Award passed by the Court Below is liable to be set aside.

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The Court Below has committed an error while passing the Impugned Award, which is in consideration of irrelevant material placed on record by the Respondent No. 1 & 2, and non-consideration of relevant material placed on record by the Appellants. Under such circumstances, the Impugned Judgment & Award passed by the Court Below is liable to be set aside.

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The Court Below has committed an error in disbelieving the evidence adduced by the Appellants and passing the Judgment based on the misconception of real point in controversy in the case, and which is opposed to the case set up by the Appellants. Under such circumstances, the Impugned Judgment & Award passed by the Court Below is liable to be set aside.

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HC-KAR

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The Impugned Award passed by the Court Below is contrary to the pleadings and evidence in the case, contrary to the facts found or is inconsistent with the statement of reasons thereof. The Judgment is based on quaint reasoning or is vague, indefinite, ambiguous, arbitrary, vitiated by prejudice, based on distorted view of evidence, based on surmises or extraneous consideration, no reasons have been given for findings, material facts and evidence placed by the Appellants have been ignored in arriving at the conclusion of the facts. Under such circumstance the Impugned Judgment passed by the Court Below is liable to be set aside.

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The findings arrived at the Appellant by the Court Below is vitiated by error of law of substantial nature, as it was based on no evidence and the same is based on simple conjectures and surmises and on an inadvisable piece of documents and such, vitiated by error of law. Under such circumstance the Impugned Award passed by the Court Below is liable to be set aside.

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The Court Below has committed an error in not appreciating the evidence in proper perspective. Under such a circumstance the Impugned Award passed by the Court Below is liable to be set aside.

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The Impugned Award passed by the Court Below is not in accordance with law and the same is contrary to the provisions contained under the land Acquisition Act and Indian Evidence Act and the relevant laws and judicial precedence applicable to the case.

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The Impugned Award passed by the Court Below is unjust and unsustainable either at law and on facts of the case.

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When the Appellants proved the case with the preponderance of probabilities, however the Court

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Below has put undue burden of proof on the Appellants.

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The Court below failed to consider that as per Ex P1 partition deed acquired property was allotted to share of Venkata Krishna Acharya which was reserved for family Viniyogas and in the said partition deed it is recited that, no one has right to sell or alienate the said property any manner.

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When no document of Moologeni was produced by claimant. No. 5 to show that either Venkata Krishna Acharya or Mahalaxmi Amma or their ancestor have transferred Moolageni right in favour of Dooma Jogi or his ancestor, the court below committed an error in coming into conclusion that Claimant No. 5 is the Moolagenidar as tenant of acquired property and was in possession of the same. In other words there is no material and evidence to is establish that the claimant No. 5or predecessor has acquired the title of acquired property as a Moolagini tenant.

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No document is produced on record to show that Dooma Jogi purchased the Moolageni right of acquired land either from Venkata Krishna Acharya or from his legal heirs or from ancestorof Venkata Krishna Acharya and Das Acharya.

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When there is no document of title to establish the ownership of claimant No. 5 the court below committed error in awarding compensation to claimant No. 5.

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The court below failed to consider that claimant No. 5 has not produced any evidence or material to show that Srinivas Acharya and his children had Moolageni right over the acquired land to transfer the same to claimant No.5, the above said persons not produced any document that they have Moolageni right over acquired property to transfer the same to claimant No. 5 and when above said persons have no right

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over acquired property to transfer the same the claimant No. 5 cannot have better title then vendor especially when vendor have no transferable right the claimant No. 5 will not lawfully right over the property.

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Without prejudice above contention appellant submits that no document is produced to show that Moolageni has been paid to lawful owner by claimant No. 5.

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Finding recorded by appellant court that claimant No. 5 was in possession of subject property as a tenant is perverse and factually incorrect.

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The court below failed to consider that the person who had no right in acquired land has sold Molageni right without having any right in acquired land. Therefore, reliance placed by court on Ex-R43 is not binding on Appellant. The finding that the first party in Ex-P1 has only sold tenancy rights is erroneous.

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The findings recorded by the court below at Para No. 20.21 and 22 of the judgment is erroneous and contrary to evidence, facts and law.

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Learned counsel for the appellants reiterating

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the grounds urged in the appeal memorandum vehemently contended that the mulgeni patra was not a registered document and learned Judge in the First Appellate Court got misdirected himself in holding that when once the mulgeni patra is admitted in the evidence, same cannot be ignored while distributing the compensation for want of

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registration. Therefore, First Appellate Court erred in passing the impugned order which has resulted in miscarriage of justice and sought for allowing the appeal.

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In support of his arguments, he placed reliance on the judgment of the Hon’ble Apex Court in the case of LIC of India and Another v. Ram Pal Singh Bisen

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reported in 2010 (4) SCC 491 .

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Contesting respondents are served and

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unrepresented.

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Learned Additional Government Advocate for respondent No.11 submits that when once the compensation amount is deposited into the reference Court in view of the genuine disputes as to the claims, the role of the acquiring authority comes to an end and this Court may pass suitable orders.

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HC-KAR

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Having heard the arguments of learned counsel

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for the appellants and learned Additional Government Advocate, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that the First Appellate Court misdirected itself in recording a finding that when once the document is admitted in the evidence, probative value of the same stands established ipso fact o.

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The said preposition of law is well settled and in the decision relied on by learned counsel for the appellant

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in the case of LIC of India and Another as referred to

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supra, in paragraph Nos.25 and 26, it has been held as under:

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“25. We are of the firm opinion that mere admission of a document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law.

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26. As has been mentioned hereinabove, despite perusal of the record, we have not been able to come

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to know as to under what circumstances the respondent-plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.”

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Admittedly, mulgeni document is marked as Ex.R.1 and 5 is having more than Rs.100/- in value and is a compulsorily registrable document. No doubt, under Ex.R.42, rights have been transferred by way of registered document in the year 1956.

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In this regard, the Trial Court has discussed in detail in paragraph Nos.24 to 26 as under:

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24. On perusal of the Ex.R1 and R5 it is clearly recited that Dooma Jogi was possessing Moolageni right of the acquired property and he has mortgaged the said property in favour of Ananthayya Kamath as per Ex.R1 and R5. In the said deeds it is clearly recited that Moolageni shall be payable to Mahalaxmiamma who is the wife of Venkatakrishna Acharya. Though there is a reference that Dooma Jogi was moolagenidar of the acquired property no document of Moolageni has been produced to show that either Venkatakrishna Acharya or Mahalaxmiamma or their ancestors have transferred Moolageni right in favour of Dooma Jogi or to his ancestors. Moolageni is like a permanent lease. As per Section 107 of Transfer of Property Act,1882 any lease for a period of more than one year or it may perpetual

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lease said document shall be registered. The Transfer of Property Act, 1882 came into effect on 17.02.1882. Before the Transfer of Property Act came into existence in 1882 transfer of immovable properties in India were governed by the principles of English Law and Equity. In the absence of any specific statutory provisions the Courts had to fall back upon English Law on real properties.

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25. As per Ex.R1 Dooma Jogi possessed moolageni right of the acquired property prior to 1898. If really Dooma Jogi possessed moolageni right as per Section 107 of Transfer of Property Act there should be registered moolageni document. But, in this regard no document has been placed by the claimant No.5(a) and (b) to show that said Dooma Jogi had purchased the moolageni right of the acquired property either from Venkatakrishna Acharya or from his legal heirs or from ancestors of Venkatakrishna Acharya and Dasa Acharya. It is no doubt that as per Ex.R42 legal heirs of deceased Dooma Jogi have transferred moolageni right over the acquired property in the year 1956 to the claimant No.5 for consideration mentioned in the deed. It is to be noted that Srinivasa Acharya and his children who are the legal heirs of Dasa Acharya S/o. Ramachandra Acharya have also transferred right over the acquired property by executing registered document at Ex.R43.

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26. Now it is contention of claimant No.5(a) and (b) that in fact Srinivasa Acharya has possessed moolageni right over the acquired property and he has given volamoolageni to the Manjunatha Jogi. As such in order to confirm and perfect the title claimant No.5 has purchased moolageni right from Srinivasa Acharya and his legal heirs through Ex.R43. She has also purchased volamoolageni right from the legal heirs of the Manjunatha Jogi prior to purchase of moolageni right of

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the acquired property from Srinivasa Acharya and his children. As such the claimant No.5 is the absolute holder of the acquired property.

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17. Whereas the First Appellate Court without

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reference to the documents and only on the ground that the admission of P.W.1 in paragraph No.14 that acquired property was let out to main tenant namely Sulochana G. Bhat, has proceeded to hold in paragraph No.22 of its judgment as under and apportioned the compensation into 40:60 ratio for the claimant Nos.1 to 4 and 5 claimant respectively:

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“22. A perusal of the impugned judgment and award of the Trial Court goes to show that the Trial Court has failed to appreciate the evidence lead by the parties in proper perspective. The Trial Court has failed to consider the fact that First Party to the Ex.P1 Partition Deed had only let out the property as Moolageni to the original Claimant No.5. The Trial Court has wrongly held that the First Party to the Ex.P1 had no right to alienate the property. In fact, the First Party to Ex.P1 has not at all sold the property under the absolute sale deed. On the other hand, he had leased out the same under tenancy i.e. Moolageni. The reasons assigned by the Trial Court holding that the Claimant No.5 is not entitled for any apportionment in the compensation fixed for the acquired property are not proper. For the reasons discussed as

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above, this Court is of the opinion that the impugned judgment and award of the Trial Court is perverse, capricious and unsustainable under law, and there is a necessity to intervene in the impugned judgment and award of the Trial Court.”

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When once the mulgeni patra vide Exs.R.1 and R.5 was not registered, title of Sulochana G. Bhat based on Ex.P.42, cannot have any legal effect in transferring the rights for want of registration.

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Accordingly, the order of the First Appellate Court in apportioning the compensation by modifying the order of the learned Trial Judge needs interference in this appeal.

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Further, admission of P.W.1 that Sulochana G. Bhat was the main tenant is belied by the very documentary evidence placed on record on behalf of the respondents which has been dealt in detail by the Learned Trial Judge.

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Taking note of these aspects of the matter, following:

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HC-KAR

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ORDER

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i. Appeal is allowed

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ii. Order of the First Appellate Court in MA No.22/2019 dated 12.09.2022 on the file of the Principal District Judge, Udupi is hereby set aside.

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iii. Consequently, order passed by the reference Court in LAC No.20/2008 dated 10.07.2019 on the file of Additional Senior Civil Judge, Udupi is hereby confirmed.

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iv. No order as to costs.

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Sd/(V SRISHANANDA) JUDGE

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KAV List No.: 1 Sl No.: 74

Sri T Madhwapathi v. Sri Aravinda Bhat Y G

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Sri T Madhwapathi v. Sri Aravinda Bhat Y G

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