NAND RAM Vs. SANT RAM

JUDGEMENT

(1.) This is a Regular First Appeal filed by the appellant/defendant under Section 96 C.P.C. against the judgment and decree of the Court of learned Additional District Judge, Solan, dated 30.6.2003, wherein a suit for recovery of Rs. 6,35,425/- filed by the respondent as plaintiff, has been decreed against the appellant/defendant. Briefly stated, the facts of the case are that the plaintiff filed a suit for recovery of the amount alleging that he, defendant and one Dhani Ram are sons of Sobha Ram and they own land in village Prhar-Ki-Ber, which devolved upon them from their father Sobha Ram. It was alleged that the plaintiff, defendant and their brother Dhani Ram agreed to partition their moveable and immoveable properties, which were joint amongst them. The terms of the said compromise were settled orally and the said oral partition was duly acted upon. According to the said partition, the moveable house articles, ancestral house, cow-shed in abadi beside agricultural land was partitioned. The respective parties came in separate possession and exclusively owned and possessed their respective holdings. However, the revenue entries could not be got changed by the parties. It was further alleged that on 12.3.1980, a Notification under Section 4 of the Land Acquisition Act was issued by the State of Himachal Pradesh with respect to the land comprised in Khasra Numbers as detailed in the plaint.

(2.) The oral partition between the parties had taken place much prior to issuance of the notification under Section 4 of the Act, but the revenue entries showed the plaintiff and defendant to be owners of the said land in equal shares. On the basis of the wrong revenue entries, the proceedings under Land Acquisition Act proceeded and an Award was announced by the Land Acquisition Collector on 17.10.1980 awarding the amount of compensation. It was further alleged that the plaintiff wanted to file petition under Section 18 of the Land Acquisition Act for enhancement of amount of compensation with respect to the land, as awarded by the Land Acquisition Collector. However, since the entries in the revenue record showed the plaintiff and defendant to be owners in equal shares and the award was also made on the basis of the revenue entries. It was agreed that the plaintiff and defendant shall file joint petition under Section 18 of the Act. The defendant agreed to execute the necessary documents in favour of the plaintiff giving him all authority to receive the amount of compensation exclusively, though the award was in the joint name of the parties. The relations in between the parties were cordial and there was no dispute. Therefore, a joint petition under Section 18 of the Act was filed. It was forwarded to the Court of District Judge, Solan.

(3.) Thereafter, the plaintiff and defendant executed a Memorandum of Partition on 17.6.1985 acknowledging the factum of having partitioned all moveable and immoveable properties and also acknowledged the fact that the land which was acquired under the notification under Section 4 of the Act was exclusively owned and possessed by the plaintiff. The defendant in the said Memorandum of Partition declared and acknowledged that the amount of compensation exclusively belonged to the plaintiff who shall be entitled to receive the same to the exclusion of the defendant. Thus, the defendant has waived his right to receive the amount of compensation. The defendant also executed Special Power of Attorney in favour of the plaintiff on 24.6.1985 authorizing the plaintiff to receive the entire amount of compensation. The Memorandum of Partition was duly effected in other villages where the parties own joint property and the necessary entries were duly corrected. The parties acknowledged the factum of oral partition, which was duly reflected in the Memorandum of Partition duly accepted by the parties. The plaintiff filed the proceedings for enhancement of the amount of compensation and was successful in getting the same enhanced as per the order of the District Judge dated 25.6.1985. The State of Himachal Pradesh and others preferred an appeal against the said award of the District Judge in this Court and the plaintiff preferred cross objections. Since the defendant was a party in the Land Reference, therefore, he was arrayed as one of the parties in the appeal as well as in the cross objections. The plaintiff believed that he is solely entitled to the amount of compensation and, therefore, made all necessary expenses and the defendant did not contribute a single penny. In appeal vide order dated 24.12.1986, the case was remanded to the Court of District Judge and the plaintiff took all necessary steps for further adducing evidence at his own expenses. The District Judge, Solan, passed the award enhancing the amount of compensation. The State of Himachal Pradesh and others as well as the plaintiff preferred appeals. In both the proceedings, the defendant was also arrayed as one of the parties. However, the expenses were borne out by the plaintiff, which appeals are still pending adjudication in this Court.