THE EXECUTIVE ENGINEER, YAVATMAL Vs. MANIK PANJABRAO KALMEGH

JUDGEMENT

(1.) The question that arises for consideration in this application is whether an appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, the Code) can be admitted in part by restricting the grounds of challenge as made to the entire decree ?

(2.) In First Appeal No.492/2017 the appellants have challenged the award passed by the Reference Court in L.A.C.No.613/2005 dated 04.04.2015 on various grounds. By the said award the Reference Court enhanced the compensation that was payable for the acquired land as well as for the trees standing therein. When the appeal came up for admission on 27.04.2017 the Court observed that with regard to the compensation awarded for the land it was not permissible for the appellants to challenge that adjudication in view of the fact that similar orders passed in favour of other claimants by the Reference Court especially in L.A.C.Nos.48/2006 and 165/2006 had not been challenged by the appellants. Thus while admitting the appeal it was observed "hence we admit the appeal, only in respect of the challenge by the VIDC to the enhancement of compensation for the trees and the borewell ". In other words, the first appeal was admitted only on the grounds of challenge to the enhancement of compensation for the trees and the borewell but not for the land.

(3.) Shri M.A.Kadu, learned counsel for the applicants/appellants submits that the reason given by the Court in the order dated 27.04.2017 for not permitting the appellants to challenge the award of the Reference Court insofar as the compensation was enhanced for the acquired land was incorrect. According to him, it was wrongly stated that the adjudication in L.A.C.Nos. 48/2006 and 165/2006 had not been challenged by the appellants. The relevant proceedings were L.A.C.No.48/2007 and not L.A.C.No.48/2006. First Appeal No.244/2017 had been filed by the appellants for challenging the award passed in L.A.C.No.48/2007. Further the land acquired in L.A.C.No.165/2006 was dry crop land and it was not similar to the land in the present appeal which was irrigated. Hence on this incorrect premise, the appellants could not be prevented from challenging the award insofar it enhanced the compensation for the land in the present proceedings. On account of such restricted admission the claimants were permitted to withdraw the amount of compensation for the land without furnishing any security. According to him, the respondents by narrating incorrect facts led the Court to pass said order, it was therefore liable to be reviewed. The learned counsel sought to place reliance on the decision in S.P.Chengalvaraya Naidu Vs. Jagannath 1994 AIR SC 853 in that regard.