NIRAKAR SAMAL Vs. NISAKAR SAMAL

JUDGEMENT

(1.) THIS appeal is against the Order Dated 13.9.2012 passed by the Learned Civil Judge (Senior Division), Jajpur in I.A. No. 160 of 2011 arising out of C.S. No. 68 of 2011. The Appellant is the Plaintiff -Petitioner in the suit for partition in which, he claims 1/6th share in the suit schedule property. It is claimed that during pendency of the suit, the Appellant came to know about display of a notice for compulsory acquisition of Ac.0.110 of land, out of plot No. 415 under Khata No. 172 of Mouza -Patharapara showing R -1 (D -1 in the suit) as the sole owner. This plot forms part of the plaint schedule land in which Appellant has got 1/6th share. Since R -1 tried to grab the entire compensation amount, the Appellant filed the interim application with prayer to restrain R -2 the Collector -cum -Competent Authority Land Acquisition Officer, National High Way, Cell, Jajpur from disbursing the entire compensation amount to R -1.

(2.) IT is not in dispute that the Plaintiff & D -1 to D -5 are the sons & daughter of late Judhistir Samal, who has left behind the suit schedule properties. R -1 filed objection taking the stand that after death of the father, Judhistir, there was severance of joint status &, in the year 1989, there was an amicable partition in which suit lot No. 3 property fell to the share of R -1 of which the plot under acquisition forms a part. Therefore, it is claimed, R -1 alone is entitled to get the entire compensation amount. Learned Trial Court has passed the impugned order refusing to restrain disbursement of the compensation amount but directing Opp. Party R -1 to furnish an undertaking that in the event partition of the suit property is allowed then R -1 shall refund the Petitioner's share in the amount of compensation with 6% interest.

(3.) RESPONDENT No. 1, in his objection, has contended, inter alia, that the property under acquisition having vested absolutely in the Government, suit for partition in respect of that property is no more maintainable & the Land Acquisition Act, 1894 being a special Act having provisions like Section 30 of the said Act to deal with the matters on apportionment of compensation, a suit for partition in respect of the compensation amount is not maintainable.