PRABH DAYAL Vs. DHAN DEVI

JUDGEMENT

(1.) COLLECTOR Land Acquisition P. W. D. Jammu acquired land measuring 669 -kanal 17 -marla in Housing colony at Rail Head Complex, Jammu and some of the land belonging to the parties included in it. The collector then made award in favour of the parties but Bhagmal disputed apportionment worked out by the collector and accordingly a reference under sec. 31 of the Land Acquisition Act was made by the collector to learned District Judge, Jammu. The reference was, however, heard by the learned Additional District Judge, Jammu who, vide his order dated 14 -6 -1980 held the apportionment of the awarded compensation to be made in three shares, one share going to Bhagmal, respondent No. 1, other to Sardha Ram, respondent No. 2 herein and third share to the appellant. Aggrieved by that judgment and decree appellant has come up in appeal before this court.

(2.) DURING the pendency of appeal, Bhagmal respondent No. 1 died. An application C. M. P. 166/81 was filed for bringing on record his legal representatives. This court on Nov. 17, 1981 allowed that application and legal representatives of Bhagmal respondent, namely Smt. Dhan Devi widow and Smt. Nirmal Kumari daughter of the deceased were brought on record. Afterward Dhan Devi also died and another application CMP No 151/82 was moved for substituting her daughter Smt. Nirmal Kumari for her which was allowed vide order passed on 27 -4 -1983. Sardha Ram, responded No. 2 also died and this application has been filed by the appellant for bringing on record his widow Maya Devi as he had died issueless. In the application date of death has been given as 8 -8 -1982 but according to the petitioners information was provided to them by the counsel appearing for legal representatives of Bhagmal respondent. Smt. Nirmal Kumari has filed objections opposing the application. She has averred in her objections that Sardha Ram respondent died on 8 -8 -1982 in house No. 86 -B, Rampore, Gandhi Nagar, Jammu but the petitioner -appellant chose to file application after a gap of more then 6 & half years She has further stated than Sardha Ram had all along been living during his life time alongwith Vishwa Mitter appellant No. 4 who happened to be the real brother of Prabhdayal petitioner. Sardha Ram expired in House No. 86 -B Rampore Gandhi Nagar, Jammu whereas Prabhdayal petitioner was putting up in adjacent house No. 85 -B Rampore Gandhi Nagar, Jammu having common wall. According to her application is hopelessly barred by time and the appeal abates as a whole.

(3.) I have heard the learned counsel appearing for the petitioner appellant as also learned counsel for the respondent. Learned counsel for the appellant has argued that appellants had no knowledge about the death of Sardha Ram and they came to know about it from the counsel appearing for the other side and he immediately moved an application. His further contention is that Order 22 C. P. C. does not apply to proceedings under Land Acquisition Act and even if application has been filed after expiry of period of limitation it cannot be treated to be time barred. In support of his argument he has referred to AIR 1964 M. P. 171 and AIR 1970 Patna 209. Learned counsel for the respondent has, however pleaded that the parties were closely related to each other and in fact the deceased -respondent Sardha Ram was putting up in adjacent house of the petitioner where Vishwa Mitter, appellant No, 4 was also residing and the appellants had full knowledge about the death of Sardha Ram which took place on August 8, 1982. He has further argued that present application has not been filed in proceedings under Land Acquisition Act but the court is adjudicating upon an appeal against the judgment and decree and as such provisions of O 22 C. p. C. would certainly apply. I have considered these contentions raised by either side.