HEMANTA KUMAR BANERJEE Vs. SATISH CHANDRA BANERJEE

JUDGEMENT

(1.) The facts giving rise to this second appeal and the connected civil Revision Case No. 1815 of 1940 may be shortly stated as follows: The plaintiffs and the defendants in the suit, out of which this appeal arises, are cosharers in respect of certain joint properties which they inherited from their common ancestor, one Earn Ratan Banerjee. Ram Ratan died leaving behind him his three sons, namely Shib Narayan, Pitambar and Gopal. Defendants 1 to 3 are the heirs of Shibnarayan while the plaintiffs and the pro forma defendants are the heirs of the other two brothers Pitambar and Gopal. Amongst the properties, which belonged to the descendants of Ram Ratan, there was a plot of land at Chetla in the district of 24-Parganas, being premises No. 3, Chetla Hat Road, a portion of which was acquired by the Government under the Land Acquisition Act. This property which was owned by all the parties, stood in the name of Shib Narayan alone and consequently defendants 1 to 3, who are the heirs of Shib Narayan figured as the only claimants in the land acquisition proceedings and the award was made exclusively in their names. The date of the award is 21 July 1930. There was a reference thereafter at the instance of defendants 1 to 3 under Section 18, Land Acquisition Act, which was unsuccessful, and the compensation money awarded to these three claimants, after deducting all costs, stood at Rs. 7857-6-8.

(2.) In 1931 plaintiff 1, Hemanta Kumar, filed a suit in the Court of the first Subordinate Judge at Alipur against all his cosharers praying for a declaration that the acquired property (which was item 5 in the plaint schedule) as well as certain other properties belonged jointly to all the cosharers. There was a further prayer for declaration of specific shares of the parties in the joint lands. This suit was decreed by the trial Court on 16 September 1932 and the decision was not challenged by way of appeal by any of the defendants. Thereafter Hemanta Kumar, plaintiff 1, in the present suit, together with the other heirs of Pitambar and Gopal applied to the Land Acquisition Court for payment of their proportionate shares in the compensation money on the basis of the decree made in the title suit mentioned above. The Land Acquisition Court refused this application, holding that the proper remedy of the applicants lay in a suit under Section 31 (2), Land Acquisition Act. Thereafter a petition of revision was presented to this Court against this order, under Section 115, Civil P. C, and a rule was obtained which was eventually discharged on 22 July, 1936. On 8 August 1936, defendants 1 to 3 applied to the Land Acquisition Court for payment of the entire compensation money awarded to them. In this application it was stated that defendants 1 and 2 were entitled to a moiety share of the compensation money, while the other half was payable to defendant 3, who was a Hindu widow. This application was allowed; half of the total amount awarded as compensation was paid to defendants 1 and 2, while the other half, which was payable to defendant 3 was invested in Government promissory notes under the provisions of Section 32, Land Acquisition Act, she being a limited owner with restricted powers of alienation.

(3.) On 22 February, 1938 the present suit was instituted by Hemanta Kumar alone against defendants 1 to 3, and the claim related to his own share in the compensation money amounting to Rs. 384 odd annas. The other heirs of Pitambar and Gopal were made pro forma defendants in the suit. The pro forma defendants 4 to 8 later on applied to be made co- plaintiffs. Their prayer was allowed, and the claim of the original and added defendants having exceeded the pecuniary jurisdiction of the Court of the Munsif, the suit was tried by the Subordinate Judge, First Court, Alipur. The reliefs claimed by the plaintiffs were of a three-fold character: In the first place, they prayed for a declaration of their right to certain shares in the compensation money that was allowed in the land acquisition proceedings including the amount that was withdrawn by defendants 1 and 2. In the second place, they prayed for recovery of half of the amounts payable in their shares from defendants 1 and 2 who had withdrawn half of the compensation money. The third prayer was that the plaintiffs might be regarded as claimants in the apportionment ease and their names might be inserted as parties in the said proceedings.