Devappa Shaba Naik Dessai and Others Vs. Kesar Ganesh Naik Dessai, (Expired) and Others - Court Judgment

This appeal arises out of the Judgment and Award dated 20/6/2005 passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No. 15/1996.

2. Facts giving rise to the appeal are as follows:

The Government had acquired land for construction of road from Fatorpa to Cuncolim (Palki road) Phase-I. This included an area of 600 square metres of the property bearing survey no. 34/3 of Village Fatorpa. The award came to be passed by the Land Acquisition Officer on 22/12/1993. Since there was a dispute regarding the apportionment of compensation, a reference under section 30 of the Land Acquisition Act, 1894 was made by the Land Acquisition Officer to the District Judge, South Goa, which came to be registered as Land Acquisition Case No. 15/1996.

3. The parties no. 1 to 5, 8, 11, 12 and the legal heirs of Parties No. 6, 7, 9 and 10 filed their common written statement dated 20/8/1998 in which they stated as under:

They are entitled for entire compensation since they are owners in possession of the property bearing survey no. 34/3 of village Fatorpa in Quepem Taluka. They are enjoying the said property from the time of their ancestors and the title is in the name of Xaba Govind Naik, who is their ancestor. The acquired property is known as “Ponocoto or Coteadbor or Cotto” exclusively belonging to the said parties and the party No.13 has no right to the same.

4. The party No. 13 filed his written statement dated 16/9/1998 in which he stated as under:

The land which is subject matter of the acquisition is part of the bigger property belonging to party No.13, which is locally known as “Mestabhat”, which property is surveyed under different survey numbers including the one which is subject matter of the acquisition in the present case. A part of the said property is surveyed in village Cuncolim and a part of it is surveyed in village Fatorpa. The said property including the acquired land was in possession of the Party No. 13 and the remaining part of the whole property is still in possession of the Party No. 13 and is partly surveyed in village Cuncolim and partly in village Fatorpa. The parties no. 1 to 12 have never interfered with the said property at any time and the property of Party No. 13 is clearly demarcated at loco. Party no. 13, therefore, claimed the entire compensation.

5. Issues were framed by the learned reference court as per the pleadings of parties No.1 to 12 and party No. 13. The dispute was between parties no. 1 to 12, on one side and party No. 13 on the other side. The parties No. 1 to 12 as well as party no. 13 examined witnesses and produced documents. Upon consideration of the entire evidence on record, learned reference court held that the acquired land is out of the property belonging to party no. 13 and therefore only the party no. 13 is entitled to receive the entire compensation along with accrued interest thereon. Parties no. 1 to 5, 8, 9(a), 9(b), 11 and 12 are aggrieved by the impugned judgment and award and they have filed the present appeal.

6. Respondents no. 1, 2, 4 and 6 could not be served with the notice of hearing of the appeal after admission as they were reported to be dead. The appellants filed Miscellaneous Application No. 120/2006 for amendment of the Memo of Appeal, which application was allowed. Ground XXXI has been added to the Memo of Appeal to the effect that respondents no. 1, 2, 4 and 6 had expired on 24/8/2001, 23/6/2002, 23/2/1989 and 1/3/2003 respectively and their heirs were not brought on record. It is further alleged that as each of the parties had their individual claims to the acquired property and their rights did not devolve on the remaining parties to the proceedings, their legal representatives had to be brought on record. It has been further stated that in the absence of the legal representatives of deceased respondents, the reference Court could not have proceeded with the reference and passed the impugned judgment and award. It is thus alleged that the impugned judgment and award is a nullity. The death certificates of the deceased respondents have been produced in the said M.C.A. No. 120/2006.

7. Heard Mr. G. Teles, learned counsel appearing on behalf of the appellants and Mr. Sudesh Usgaonkar, learned counsel appearing on behalf of the respondent no. 5.

8. At the outset, learned counsel for the appellants submitted that the respondent no.1 i.e. party no. 6 (a), respondent no. 2 i.e. party no. 6 (b), respondent no. 4 i.e. party No. 10 and respondent no. 6 i.e. party No.7(a) had died respectively on 24/8/2001, 23/6/2002, 25/2/1989 and 1/3/2003, which is prior to the impugned judgment and award dated 20/6/2005 and their legal heirs were not brought on record and the rights of the deceased parties have not devolved on the remaining parties, therefore, the impugned judgment and award is a nullity. He submitted that the appellants came to know about their death only after the return of notices in the appeal and after making due inquiries and obtaining the death certificates from the relatives of the deceased persons. He therefore prayed that the impugned judgment be set aside and the case be remitted to the reference Court for appropriate steps. The learned counsel for the appellants has relied upon the judgments in following cases:

(i) “Vishwamber Vithal Kanekar Vs. Umakant K. Kanekar and 10 others”, (oral order dated 28/4/2011 passed by the learned Single Judge of this Court in First Appeal No.108 of 2010 and M.C.A. No.443/2011)

(ii) “AmarsangjiIndrasangji Vs. Desai Umed” (AIR 1925 Bombay 290)

(iii) “Udai Ram Vs. Dharam Chand” (AIR 1994 Raj. 187)

9. On the other hand, learned Counsel appearing on behalf of the respondent no. 5 submitted that this is not a suit where the provisions of the Code of Civil Procedure regarding abatement and bringing of legal representatives on record are strictly applicable. He pointed out that in the First Appeal No. 108/2010, the reference Court had awarded compensation in favour of dead parties. He contended that the reference Court in the present case has awarded compensation in favour of Party no. 13 and the parties no. 1 to 12, who had jointly claimed title to the acquired land, have been held to be not entitled to receive compensation and it is out of these parties that some had died. He submitted that interest of the deceased parties was substantially protected by the other parties. He further submitted that if the appellants succeed in the appeal, the judgment can be made in favour of all entitled to it. Learned Counsel has relied upon the following judgments:

(i) “AlihusainAbbasbhai and others Vs. Collector, Panch Mahals” (AIR 1967 Gujarat 118)

(ii) “Sardar Amarjit Singh Kalra (Dead) by Lrs. Vs. Pramod Gupta (Smt.) (Dead) By Lrs. And ors.” [(2003) 3 SCC 272]

10. The reference under section 30 of the Land Acquisition Act was made by the Land Acquisition Officer on 19/1/1996, by naming all the parties no. 1 to 13, though the original parties no. 6, 7, 9 and 10 had already expired. But after the notice was dispatched to all the said parties, the legal heirs of deceased parties no. 6, 7, and 9 filed an application dated 16/3/1998 before the reference Court for bringing them on record, which application was allowed. Wakalatnama was filed by learned Advocate on behalf of parties no. 1 to 5, 8, 10 to 12 and legal representatives of deceased parties no. 6, 7 and 9, though in fact, the party no. 10 was not alive. Thereafter, a common written statement signed by parties no. 1 to 5, 8, 11, 12 and legal heirs of parties no. 6, 7, 9 and 10 was filed on 20/8/1998. No doubt, the said written statement filed by the parties no.1 to 5, 8, 11, 12 and legal heirs of Parties no.6, 7, 9 and 10 is a common written statement of all the said parties. However, they have all claimed to be co-owners in possession of the acquired property and apportionment of compensation in their favour.

11. In the case of “Vishwamber Kanekar”, [First Appeal No. 108/2010 (supra)], the respondents no. 1 and 4 of the appeal, who were parties no. 2 and 5 in the Land Acquisition Case No. 4/2007 had died before passing of the award by the reference Court and no legal heirs were brought on record, whereas, one Kashikant Kanekar, who had expired before passing of the impugned judgment and award was shown ex parte in the said Land Acquisition Case. The learned Single Judge held that the impugned award is a nullity and set aside the same and remitted the matter to the reference court thereby giving an opportunity to any of the parties to the reference to file appropriate applications for setting aside abatement and for substitution of the heirs of the deceased parties. As has been contended by the learned counsel for respondent no. 5, in the above First Appeal No. 108/2010, the reference court had awarded compensation in favour of dead persons whereas in the present case the compensation has not been awarded in favour of any dead person. But the fact remains that the award has been passed against some parties who were already dead during the pendency of the reference. The heirs of the said deceased parties no. 6(a), 6(b), and 7(a) were not brought on record. Though the party no. 10 had also died, however, he is shown as living person in the cause title of the impugned judgment and decree and instead of rejecting the reference against the legal representatives of deceased party no. 10, namely 10(a)-Raghoba Kushali Desai and 10(b)-Roshani Raghoba Desai, who have signed the written statement, the reference has been rejected as against the deceased party no. 10. Therefore, the impugned award is a nullity since the same is passed against four dead persons and the same is also ineffective as against the legal representatives of said deceased parties as the said legal representatives have not been brought on record, since their death was allegedly not known to anybody on record, though they had become co-owners. The rights of the deceased parties had not devolved upon the remaining parties.

12. In the case of “Amarsangji Indrasangji” (supra), which second appeal was filed by the plaintiff of original suit, the appellant in the first appeal (defendant in the original suit) had died and the first appeal was decreed in ignorance of appellant's death. In the second appeal, the learned Division Bench of this Court held that the decree was a nullity and remanded the case to the first appellate Court decreeing the appeal to deal with an application for setting aside and bringing his heirs on record. Mr. Usgaonkar, learned Counsel appearing on behalf of the respondent no. 5 pointed out that in the case supra, there was one other appeal in which the same contention was raised by the plaintiffs but there were two defendants and not one and accordingly it was conceded that the point as to abatement does not arise. In the present case also there were altogether 12 parties which included legal heirs of four deceased parties as against one party and only some of the legal heirs had died from the group of parties no. 1 to 12. According to Mr. Usgaonkar, there is no prejudice caused by not bringing the legal representatives on record since the right was claimed by the all parties no 1 to 12 and legal heirs jointly. The above submission is not acceptable. The parties no. 1 to 5, 8, 11, 12 and legal heirs of parties no. 6, 7, 9 and 10 might have filed a common written statement. But they had claimed to be co-owners of the acquired land. After the death of some of the parties, their legal representatives became co-owners. It is nobody's case that upon the death of parties no. 6(a), 6(b), 7(a) and 10, their right to the acquired land, if any, and consequently right to compensation devolved upon the remaining parties no. 1 to 5, 7(b), 8, 9(a) , 9(b), 11 and 12 or to any of them. In the Memo of Appeal, the appellants have alleged that each of the parties had their individual claims to the acquired property and their rights did not devolve on the remaining parties to the proceedings and therefore their legal representatives had to be brought on record, which was not done. All the said parties had only a common cause against the party no. 13.

13. In the case of “Udai Ram” (supra), during the pendency of appeal before the lower appellate Court, one of the defendants respondents namely Hazari died on 1/3/1984 but his legal representatives were not brought on record at any time. It was contended that the appeal before the Additional District Judge, Chittorgarh had abated so far as Hazari was concerned and as the decree of dismissal of the suit was joint and indivisible one, the appeal against remaining respondents also could not have proceeded and the decree having been passed against dead persons was nullity and cannot be sustained. The learned Single Judge of the Rajasthan High Court observed that the consensus of legal opinion, in such circumstances, appears to be that where in an appeal a decree is passed in ignorance of death of one of the defendants respondents during the pendency of that appeal, the appeal abates against the dead person. The High Court in appeal against such a decree cannot itself set aside the abatement nor can it affirm the decree passed by the lower appellate Court. The proper course in such a case is to set aside the ineffective decree passed by the lower appellate Court and remand the case to the court where abatement has taken place leaving the parties to take necessary steps to have the effect of abatement set aside if they so desire and if they can satisfy the Court that parties are entitled to get the abatement set aside under law. I am in respectful agreement with the view taken in the above judgment.

14. In the case of “Alihusain” (supra), relied upon by the learned Counsel appearing on behalf of the respondent no. 5, no doubt, it has been held that the applicant in a reference proceeding is not a “plaintiff ” and the proceeding is not a 'suit' within the meaning of Article 176 of the Limitation Act. However, it has been also held that the provisions of Order 22 Rule 3 of C.P.C. are applicable to a proceeding under Section 18 of the Land Acquisition Act. Hence this judgment cannot help the respondent no. 5 in any manner.

15. In the case of “SardarAmarjit Singh Kalra” (supra), relied upon by the learned Counsel for the respondent no. 5, appeal was preferred against judgment/decree passed on claims for compensation of several persons and during the pendency of the appeal some of the appellants died and there was failure to bring on record the legal representatives within time. The question was whether that would result in abatement or dismissal of the entire appeal or abatement of appeal only against the deceased entitling the Court to deal with others. The Apex Court held that it would depend upon the facts and circumstances of each case. It has been observed that a careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to regard the further progress as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. It has been held in paragraph 34(2) thereof that whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as was the case in that matter, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. It has been held that the awards/decrees, which were the subject matter of challenge before the High Court, in these cases, viewed in the light of the above conclusions, would not render them to be a joint and inseparable decree but, in substance a mere combination of several decrees depending upon the number of claimants before the court and, therefore, joint and several or separable vis-a-vis the individuals or their claims concerned. Consequently, even the abatement of the appeal in the High Court in respect of one or the other of the appellants cannot by itself result in the abatement of the appeal in its entirety or render it liable to be dismissed as not duly or properly constituted or not possible to be proceeded with. The legal representatives of the deceased appellants before the High Court were directed to be brought on record in the appeals before the High Court. This Judgment of the Hon'ble Apex Court also does not support the contention of the respondent no. 5.

16. Hence, there is no merit in the submission of learned Counsel for the respondent no. 10 that there is no necessity of bringing the legal representatives of the deceased parties on record. The impugned Judgment and Award, therefore, is liable to be quashed and set aside, the same being nullity and the matter remanded to the reference Court with opportunity to the concerned parties to do the needful. Since the parties no. 1 to 12 had filed a joint written statement and had claimed co-ownership to the acquired land and for the compensation, the said parties should be directed to file appropriate applications before the reference Court for setting aside abatement and substitution of the legal representatives of the deceased parties, as was previously done by them, before filing a common written statement.

17. Though, the learned Counsel for the parties had also made submissions on merits, I am not inclined to discuss merits of the matter, in view of the order that is required to be made in the facts and circumstances of the case.

18. In the result, the impugned judgment and award is, quashed and set aside. The matter is remitted to the reference Court with an opportunity to the appellants i.e. parties no. 1 to 5, 8, 11, 12, 7(b), 9(a), and 9(b) to file appropriate application/s for setting aside abatement and substitution of legal representatives of the deceased parties. Such applications shall be filed within a period of one month from the date of appearance before the reference Court, and shall be decided by the reference Court in accordance with law. If no such applications are filed, the reference Court shall proceed to dispose of the reference in accordance with law. The parties either personally or through their Advocates shall appear before the reference Court on 24th April 2013 at 10.00 a.m.

19. Appeal stands disposed of accordingly.