ISHWARBHAI DHOLABHAI DESAI Vs. SPECIAL LAQ OFFICER

JUDGEMENT

(1.) Both these appeals arise out of a common judgment and award rendered by learned Civil Judge (S.D.), Nadiad on 24.2.2004 in Land Acquisition Case Nos.214 and 215 of 1991 whereby the land references preferred by the respective claimants came to be dismissed.

(2.) Perusing the impugned judgment and award, it transpires that the reference Court did not ascertain the market value of the lands under acquisition, but both these cases came to be dismissed on same technical grounds. So far as LAQ No.214 of 1991 was concerned, the reference Court held that there was a dispute between claimant Ishwarbhai Dholabhai Desai (now deceased) and the opponents No.3 and 4, namely, Vaghri Ratibhai Gulabbhai and Shankarbhai Gulabbhai Vaghri regarding the ownership and possession of the land under acquisition. The case of the claimant was to the effect that the opponents No.3 and 4 did not succeed before the tenancy Court and the tenancy Court came to the conclusion that they had no right or lien over the land. However, mere fact that in village forms 7 and 12, the names of opponents No.3 and 4 emerged as cultivator and, therefore, the reference Court came to the conclusion that the whole reference deserved dismissal. The reference Court further observed that after the death of the original claimant Ishwarbhai Dholabhai, though by substitution his son Kanubhai Ishwarbhai was impleaded as claimant, but the reference Court came to the conclusion that Kanubhai Ishwarbhai, the son of Ishwarbhai failed to produce probate of will allegedly executed by Ishwarbhai and on that count it was held by the reference Court that LAQ Case No.214 of 1991 deserved dismissal. So far as LAQ Case No.215 of 1991 is concerned, the reference Court while dismissing the said case observed that in LAQ Case No.215 of 1991, opponents No.3 and 4 are not joined and, therefore, both the cases could not have been consolidated. In short, by assigning the above reasons, the reference Court dismissed both the reference cases without determining the just and fair amount of compensation.

(3.) Mr.H.M.Parikh, learned counsel representing the appellant submitted that the reference Court has taken a very hyper-technical view and without determining just and fair compensation, which the claimants are entitled to get, the reference Court dismissed both the land reference cases. It is submitted that so far as the Land Reference Case No.214 of 1991 is concerned, even the other side did not raise any dispute that Kanubhai Ishwarbhai was not the son and legal representative of deceased claimant Ishwarbhai Dholabhai. Ishwarbhai Dholabhai died pending said reference case before the reference Court and by order of the reference itself, Kanubhai Ishwarbhai, the son and legal representative of Ishwarbhai was brought on record. It is further submitted that the claimant himself joined opponents No.3 and 4 in the reference, so that dispute, if any, can be conveniently resolved and the claimant had come forward with documentary evidence showing that even the so called claim over the acquired land of the opponents No.3 and 4, was not considered by competent tenancy Court. That the opponents No.3 and 4 posed themselves as tenant in the acquired land, but their case was not at all accepted by the competent tenancy Court and they had lost said case.