KAKASAHEB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This first appeal is preferred by original Respondent No.3 in Land Acquisition Reference No.639 of 1991 under Section 30 of the Land Acquisition Act, being aggrieved by the decision of the learned Joint Civil Judge, Senior Division, Osmanabad delivered on 23.1.1996 disposing of said Land Acquisition Reference, whereby it is held that the estate of the deceased Shevantabai was inherited by present Respondent Nos.2 and 3 and not by appellant Kakasaheb as the alleged Will in favour of appellant Kakasaheb was not duly proved to have been attested and as such not admissible in evidence.

(2.) Briefly stated, it is not disputed that deceased Shevantabai was the owner of land bearing survey No.224 situated at Kallam. The land was acquired by the Government and the Land Acquisition Officer awarded an amount of Rs.52051/= as compensation. The said amount is claimed by present Respondent Nos.2 and 3 by inheritance saying that Shevantabai, who was widow, died issueless and Respondents No.2 and 3 being nephews of Shevantabai, were her close relatives and, therefore, entitled to get compensation. As against that, present appellant also approached Land Acquisition Officer and claimed that deceased Shevantabai had executed a Will in his favour and as such, he is legatee and hence entitled to claim compensation. It is also averred by appellant Kakasaheb that previously, Shevantabai had filed suit, being R.C.S. No. 107 of 1977, in the Court of Civil Judge, Senior Division. Kallam initially against five Defendants for injunction. However, subsequently, present Respondents Nos.2 and 3 made an application in the said suit for being added as parties to the said suit. Consequently, they were added as Defendant Nos.6 and 7. During pendency of that suit plaintiff Shevantabai died and, therefore, present appellant Kakasaheb made application in that suit for substituting him in place of deceased Shevantabai as her legal representative on the basis of the Will executed on 15.1.1975. Appellant Kakasaheb was, accordingly, substituted in place of deceased Shevantabai in said suit as her legal representative, by holding that he had proved the Will. It is contended on behalf of the appellant that the said finding is binding on present Respondent Nos.2 and 3 and there is bar of res judicata.

(3.) The Reference Court, to whom the reference was made by the Land Acquisition Officer under Section 30 of the Land Acquisition Act, called upon the present appellant and Respondent Nos.2 and 3 to lead evidence. Reference Court held that the alleged Will dated 15.1.1975 was not properly attested as required by law as the Will was attested by only one witness and as such the Will was invalid and does not confer any right on the present appellant (Respondent No.3 in L.A.R.) The Reference Court held that decision in R.C.S. No. 107 of 1977 does not operate as resjudicata. Ultimately, the reference court held that Respondent Nos.l and 2 in the said L.A.R. (present Respondent Nos. 2 and 3) are entitled to receive compensation of Rs.52,051/= awarded by the Land Acquisition Officer. It is this award and judgment which is challenged in this second appeal by original Respondent No.3 Kakasaheb.