BARNIKANA APPALANAIDU Vs. BARNIKANA APPAYYAMMA

JUDGEMENT

(1.) An extent of Ac. 0. 62 cents in T.s. No. 807-2l of Anakapalle town was subject matter of land acquisition in respect of which the land acquisition officer made his award no. 81/ 76 Dt. 6-8-1976. During the award enquiry there was a dispute regarding the compensation, between the respondent (8th claimant) who is the owner of the land and the appellants (claimant 3 to 5) in whose favour the respondent and two others executed the sale agreement Ex. B-3 dated 14-5-1975 agreeing to sell the property to them for Rs. 5,800.00 and the appellants have taken possession of the property in terms of the said sale agreement Ex. B-3. The respondent disputed the truth of Ex. B-3 agreement. In view of the dispute regarding the entitlement of the parties to receive the compensation amount of Rs. 17,254-55 ps., the land acquisition officer made the reference to the civil Court under S. 30 of the land acquisition. Act. That reference was tried by the II addl. Subordinate Judge, visakhapatnam, in O.P. No. 40/77. The learned subordinate Judge found as of fact that Ex. B-3 agreement is true and the appellants have take possession of the land in terms thereof and were in possession of the land by the date of the acquisition. In this appeal, the correctness of this finding has not been disputed by the respondent.

(2.) The appellants stand with reference to the compensation amount is that they are entitled to protect their possession under S. 53-A of the T.P. Act; out of the sale consideration of Rs. 5,800.00 they have paid already the sum of Rs. 5, 300.00 and had to pay only the balance of Rs. 500.00 at the time of the registration of the sale deed; they were always prepared to perform their part of the contract; they are therefore entitled to be paid the entire compensation amount and the right of the respondent is only to receive that balance sale price of Rs. 500.00 out of the compensation amount. The case put forward on behalf of the respondent is that consequent on the acquisition of land, the agreement of sale is affected by the doctrine of frustration and the appellants are therefore entitled to receive back only the sum of Rs. 5,300.00 with interest at 6% per annum thereon from the date of payment till the land was taken possession, such amount totalling to Rs. 5.650-50 ps. And she is entitled to be paid the balance amount of Rupees 11,604-05 ps. On her own behalf and on behalf of her daughter-in-law and grandson who together constituted the members of a joint family. The learned subordinate judge placing reliance upon a bench decision of the Bombay High Court in M.A. Khan v. P.J. surana (AIR 1972 Bom 217) and that of the Nagpur High Court in Mohd. Abdul Jabbar v. Lalmia (AIR 1947 Nag 254) accepted the contention of the respondent and accordingly directed payment of the amount of only Rs. 5,650-50 ps. In favour of the appellant and the balance sum of Rs. 11,604-05 ps. In favour of the respondent. Claimants 3 to 5 have accordingly preferred this appeal questioning the correctness of the said judgment.

(3.) The main point that arises for determination in this appeal is how in view of the truth of Ex. B-3 agreement, the compensation amount should be apportioned between the claimants and the respondent. Ex. B-3 agreement dated 14-5-1975 which was executed not only by the respondent but also by her daughter-in-law and her grandson appala Naidu, Minor represented by his mother and antural guardian Mangamma, in favour of the appellants reads in its material terms as follows:-