YESHWANTSINGH Vs. SAGARMAL

JUDGEMENT

(1.) THIS second appeal of the Plaintiff, Sardar Yeshwantsingh is directed against the decree passed by Shri B. R. Dubey, IV Additional District Judge, Indore, in Civil Appeal No. 274/52 confirming the decree of the trial Court dismissing bis suit for declaration of his title to and possession of the land in suit and damages.

(2.) THE land in suit, municipal khasra Nos. 7779 and 7786, total area 2367 sq. ft., situated in Khajuri Bazar, Indore, belonged to Mashir Bahadur Sardar Rao Shivchandji Kothari who died during the pendency of the suit and therefore his son the present Appellant was brought on record as bis legal representative. The suit was filed in December 1947 and the Prime Minister, Holkar State, Indore, was impleaded as Defendant No. 1 and Rao Bahadur Rajya Bhushao Kanhaiylal Bhandari as Defendant No. 2. Defendant No. 2 died during the pendency of the first appeal and therefore Suganmal and Narendra Singh, who are his legal representatives were brought on record and they are Respondents 1 & 2 in this appeal. Defendant No. 1 was substituted by the 'State of Madhya Bharat' on the formation of the State of Madhya Bharat, and now in this appeal the said State has been substituted by the 'State of Mahdya Pradesh, Bhopal,' as Respondent No. 3, on account of the Reorganization of the States.

(3.) THE case of the Plaintiff was that by virtue of the proviso to Section 6(1) of the Indore Land Acquisition Act, no declaration under Section 6 of the Act could be made unless the compensation to be awarded for the property to be acquired is to be paid by a company or wholly or partly out of public revenues or some fund controlled or managed by a local authority but in the instant case the compensation was paid by Defendant No. 2, agreivate person and thus there as a breach of the provisions of the said proviso. He alleged that it was on this condition that the acquisition of the land for purposes of the Nandlal Bhandari High School was sanctioned by Huzur Shri Shan ar Order No. 32 dated 25 -2 -1945 (Ex. P.1) It was averred that since the compensation was made payable by Defendant No. 2 to the Plaintiff in contravention of the provisions of the proviso to Section 6 () of the Act, the declaration dated 10 -2 -1947 made under Section 6(1) is ultra vires, illegal and void. Similarly, taking over possession of the said land by the Government and making it over to Defendant No. 2 was also unlawful. Accordingly Appellant's father brought the suit for a declaration of his title to and possession of the land in suit, Rs. 100 for damages for trespass and mesne profits amounting of Rs. 1,566 from 24 -4 -1947 to 4 -11 -1947 and also future profits.