K.V.Kunhimohammed vs K.V.Shaikutty

Sathish Ninan, J

The suit for declaration of title over a land acquisition compensation amount, and for consequential injunction, was dismissed by the trial court. The plaintiff is in appeal.

The plaintiff and the defendant are brothers. They have two other brothers and two sisters. They entered into Ext.A1 Partition Deed in the year 1971. In Ext.A1 partition, the property in R.S.75/1, known as “Cheneerimala” and “Karimbanchola”, describing the extent as 6 acres, was allotted to the plaintiff, defendant and another brother Avarankutty. The plaintiff was allotted three acres as included in Item 4, the defendant was allotted 1 acre as included in item 11, and Avarankutty was allotted two acres as included in item 14 therein. The entire property was acquired in land acquisition proceedings. Advance possession was taken under Section 7 of the Land Acquisition Act (hereinafter referred to as the “LA Act”). The Tahsildar passed Ext.A2=B18 award dated 01.06.1986. The compensation awarded was ₹ 6,32,460/-. The award mentions that, though the area mentioned in Ext.A1 Partition Deed is only 6 acres, the actual extent available is 3.6003 hectares = 8.89 acres. Though the award mentioned four persons as the occupants of the property, the 4th person viz. one K.K.Kunhammad appeared and filed a statement before the Land Acquisition Officer that he has no right over the property. The award amount was received by three brothers in equal shares.

Seeking enhancement of the quantum of compensation reference application was moved under Section 18 of the Land Acquisition Act. The reference court enhanced the amount to ₹ 56,18,233/-. Ext.A3 = B5 is the award passed by the reference court. The Government preferred appeal before this Court as LAA 41/1996. This Court as per Ext.A4 judgment dated 18.06.1999 interfered with the award of the reference court to a limited extent.

After the judgment of this Court the three brothers filed cheque applications for release of the amounts in deposit. The plaintiff filed IA 985/1999 seeking disbursal of one half of the amount in deposit. The claim was so made relying upon the proportion in which the property was allotted to the three brothers in Ext.A1 Partition Deed viz. 3:1:2 to the plaintiff, defendant and Avarankutty respectively. The application was opposed by the defendant. IA 920/1999 was filed by the defendant claiming 1/3 shares, and I.A. 921/1999 was filed by Avarankutty claiming 1/3 shares. As per Ext.A5 = B14 order, the reference court upheld the plaintiff's claim, thus granting 3/6 shares to the plaintiff, 1/6 shares to the defendant and 1/3 shares to Avarankutty. There is no dispute that Avarankutty was entitled to 1/3 shares since even going by the proportion 3:1:2 he is entitled for 1/3 shares. Challenging the order defendant approached this Court in CRP 391/2001. As per Ext.A6 judgment, this Court set aside the order. This Court noticed that the reference was only for enhancement of compensation. It was observed that the plaintiff can establish his claim for 3/6 shares over the amounts in appropriate proceedings. The plaintiff filed a review petition as RP 186/2001. The review petition was disposed of clarifying that the court has not expressed with regard to the share for which the plaintiff is entitled to. Ext.A7 is the order dated 11.04.2001 on the review petition. It is thereafter that the present suit was filed on 22.06.2001.

The trial court dismissed the suit on various grounds such as, limitation, constructive res-judicata, estoppel, non-joinder of necessary parties, and on the ground of maintainability of the suit.

I have heard Sri.B.G.Bhaskar, the learned counsel for the appellant and Sri.T.Sethumadhavan, the learned counsel for the respondent.

The points that arises for determination are :-

(i) Is the finding of the trial court that the suit is barred by limitation, correct in law?

(ii) Was the trial court right in having held that the suit is barred by constructive res judicata?

(iii) Was the trial court right in having held that the suit is barred by estoppel?

(iv) Is the finding of the trial court with regard to non-joinder of parties sustainable on the facts of the case?

(v) Was the trial court right in holding that the suit is not maintainable?

I proceed to deal with the issues one by one. The trial court held that the cause of action for the suit accrued with the award is passed and that the suit is time barred. In the case at hand, the claim is not for the original award amount but is in respect of the enhanced compensation. No doubt, the claim is for the value of the property. But, at the time of passing of the award or dispossession, the plaintiff could not have made a claim over the enhanced amount because it is not in existence. Therefore, the finding of the trial court that the cause of action for the suit arose at the time of passing of the award cannot be sustained. The proceedings for enhancement of compensation culminated only by the judgment of this Court in LAA 41/1996 which was passed on 18.06.1999. Claim over that amount could have been made only after that. The claim of the plaintiff for one half of the enhanced amount was denied by the defendant when cheque application was filed as IA 985/1999. The suit has been filed in the year 2001 i.e. within a period of three years. Hence the suit is within the period of limitation. The finding to the contrary entered into by the trial court is liable to be set aside and I do so.

Next is the contention of constructive res judicata. According to the defendant, the plaintiff had a right before the Land Acquisition Officer to seek for reference with regard to the dispute on apportionment. The same having not been done, the present suit is barred by constructive res judicata. I am unable to agree with the contention. Section 11 of the Code of Civil Procedure reads thus:-

“11. Res judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

Explanation IV to Section reads thus:-

“Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”

There is no adjudication of rights before the Collector nor is it a Court. In Parangan Madhavi v. State of Kerala & others, 2003 (1) KLJ 365, this Court held that, under the Land Acquisition Act, the Collector being not a Court or other Authority to which the Code of Civil Procedure applies, the rule of Resjudicata will not apply. Therefore, the plea of res judicata is only to be negatived. The point is answered accordingly.

Coming to the plea of estoppel, to attract the same there must be a representation on the part of the plaintiff with regard to a state of affairs which the defendant was not aware and on such representation the defendant must have acted to his detriment. When the defendant had knowledge of the real state of affairs and he has not acted to its detriment, estoppel is not attracted (See Nabeeza C. H. v. K.H.Abdul Kareem and Ors. 2016 (1) KHC 303, R.S.Maddanappa (deceased) after him by his legal representatives v. Chandramma & anr. AIR 1965 SC 1812, Tresa Xavier v. Mary Simon and Ors. 2014 (4) KHC 131). In the case at hand, the defendant cannot be heard to say that he was not aware that under the partition the property was divided in the ratio of 3:1:2. At any rate there has been no act by the defendant to his prejudice/detriment consequent on any representation by the plaintiff. Therefore, the finding of the trial court that the suit is barred by estoppel, cannot be sustained.

The plea of non-joinder is founded on the averments in paragraphs 9 of the plaint, the same reads thus:-

“9. The partition deed dated 2251 of 1971 set apart items 4, measuring 3 acres to the plaintiff, item 11 measuring one acre to the defendant, and item 14 measuring 2 acres to Avarankutty. No other sharer was allotted any portion of this property. Though the partition deed takes in only six acres, the actual extent of the property as seen from the acquisition proceedings is 8.89 acres. The difference of 2.89 acres was not included in the partition deed, since a dispute was raised by the northern neighbour over the area. The understanding was that the said disputed area, lying to the immediate north of the eastern half of the total property, adjoining the property set apart to the plaintiff, will go to the share of the plaintiff, as the same is within the boundaries shown in the partition deed, for the property allotted to the plaintiff. The dispute was settled with the northern neighbour and hence the plaintiff became the full owner of the 2.89 acres also.”

It is stated that the excess extent of 2.89 Acres was not included in the partition since there was dispute with a neighbor. The occupant of that area viz. K.K.Kunhammad appeared before the Land Acquisition Officer and submitted that he does not have any claim over the property. The averment that, “there was an understanding that the said property will go to the share of the plaintiff” has not been proved. Therefore, the 2.89 acres which is not included in the partition deed remain in common between all the children viz. the four brothers and two sisters. The other siblings are thus necessary parties to the suit, is the contention. However, on a reading of the plaint in its entirety it can be understood that, though at paragraph 9 averments as above was made, he conceded to the sharing of compensation for the total extent inclusive of the excess area in equal proportion for the original award amount and is making a claim for the enhanced amount in the ratio of 3:1:2. The claim is not for the excess area. The defendant having accepted the award amount in respect of the entire area, the plea of non-joinder has no basis. The plea is thus answered against the defendant.

Now coming to the issue of maintainability of the suit, the learned counsel for the appellant, relying on the judgments of the Apex Court in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer and Another AIR 1961 SC 1500, Bhagwan Das and Others v. State of U.P. and Others AIR 2010 SC 1532,  Chimanlal v. Spl. Land Acquisition Officer AIR 1988 SC 1652 would contend that the award of the Collector is only an offer. The claimant may or may not accept the offer. In terms of the third proviso to Section 31(2) of the Land Acquisition Act, 1894, it is open to make a claim for the compensation amount on the strength of the title of the plaintiff. The learned counsel would, referring to the observation of the Apex Court in Dr. G.H. Grant v. The State of Bihar AIR 1966 SC 237 that, “the Collector has no power to finally adjudicate upon the title to compensation; that dispute has to be decided either on a reference under Section 18 or under Section 30 or in a separate suit”, contend that the right to approach a civil court with a suit on title is saved. To further canvass the said argument, the learned counsel would rely on the observations of the Apex Court in Sharda Devi v. State of Bihar AIR 2003 SC 942 which reads thus:-

“The scheme of the Act does not attach a similar finality to the award of the Collector on the issue as to the person to whom compensation is payable; in spite of the award by Collector and even on failure to seek for reliefs, such issue has been left available to be adjudicated upon by any competent forum.”

The learned counsel would also draw the attention of this Court to yet another portion of the judgment wherein it is held “the Collector is under Section 30 not enjoined to make a reference; he may relegate the person raising a dispute as to apportionment or as to the person to whom compensation is payable to agitate the dispute in a suit and pay the compensation in the manner declared by his award”.

Here it would be relevant to note the difference between references under Section 18 and Section 30 of the Land Acquisition Act. Section 18 and 30 reads thus:-

“18. Reference to Court.― (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken:

Provided that every such application shall be made,―

(a) If the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;

(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.”

“30. Dispute as to apportionment.― When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.”

Noticeably, Section 30 reference is confined to two issues viz. (i) dispute regarding apportionment of compensation and, (ii) dispute regarding the persons to whom compensation is payable. Section 18(1) enables reference, in addition to the grounds above on- (a) dispute regarding measurement of the land and (b) dispute regarding the quantum of compensation. Therefore, the matters for reference under Section 30 is also included in Section 18. The Apex Court has, in G.H. Grant (Dr.) v. State of Bihar AIR 1966 SC 237, Sharda Devi v. State of Bihar AIR 2003 SC 942, Meher Rusi Dalal v. Union of India AIR 2004 SC 3491 and P.K. Sreekantan v. P. Sreekumaran Nair AIR 2007 SC 516 delineated exhaustively the differences in the applicability of the two sections. The Apex Court held that, a person interested, who is present at the time of passing of the award or is served with notice under Section 12(2) of the LAA Act regarding the passing of the award, is bound to apply to the Collector under Section 18 raising the disputes if any relating to the matters specified. But a person who has not been served with notice of passing of the award and who had not appeared in the proceedings before the Collector may seek for reference under Section 30.

The Apex Court held thus :-

“..... A person shown in that part of the award which relates to apportionment of compensation, who is present either personally or through a representative, or on whom a notice is served under sub-s. (2) of S. 12 must if he does not accept the award, apply to the Collector within the time prescribed under S. 18(2) to refer the matter to the Court. But a person who has not appeared in the acquisition proceeding before the Collector may if he is not served with notice of the filing, raise a dispute as to apportionment or as to the persons to whom it is payable, and apply to the Court for a reference under S. 30, for determination of his right to compensation which may have existed before the award, or which may have devolved upon him since the award. Whereas under S. 18 an application made to the Collector must be made within the period prescribed by Sub-s (2) Cl. (b), there is no such period prescribed under S. 30. Again under S. 18 the Collector is bound to make a reference on a petition filed by a person interested. The Collector is under S. 30 not enjoined to make a reference : he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his award.”

The Apex Court further observed :-

“In our judgment the powers exercisable by the Collector under Section 18(1) and under Section 30 are distinct and may be invoked in contingencies which do not overlap.”

In Sharda Devi v. State of Bihar AIR 2003 SC 942 it was held that, a person present either personally or through representative or on whom a notice is served under Section 12(2) is obliged, subject to his specifying the test as to locus, to apply to the Collector within the time prescribed under Section 18(2) to make a reference to the court. It was also held that Section 30 would be available for being invoked by the persons interested if they were neither present nor represented in the proceedings before the Collector nor were served with notice under Section 12(2) of the Act or when they claim on the basis of a title coming into existence post award. Therefore, as observed by the Apex Court, though at the first blush it would appear that Section 30 overlaps Section 18 in part, in fact it is not so. When a person interested was not present at the time of passing of the award nor had taken part in the acquisition proceedings nor was served with notice of the award under Section 12(2) of the LAA Act seeks for reference under Section 30, it is open for the Collector to either make a reference under Section 30 or to relegate the party to a civil court. The 3rd proviso to Section 31(2) is also to be understood as a claim by such a person and not enabling a party who was obliged to move under Section 18 seeking adjudication on apportionment or title as the case may be.

In the case at hand it is beyond dispute that the plaintiff is a person interested falling within the category of persons entitled to apply under Section 18 since he had taken part in the proceedings. He had even sought for a reference under Section 18, but sought reference only for enhancement of compensation. If he had any grievance with regard to apportionment of the compensation, he was obliged to seek for reference under Section 18 on that ground also. It is not open for him to contend that he has a remedy by way of seeking a reference under Section 30, or by way of a civil suit. As noticed above, such a course is not available to the plaintiff, he having appeared and taken part in the land acquisition proceedings.

So also the claim of the appellant is unsustainable in the light of Section 29 of the LA Act, he having conceded for apportionment before the Land Acquisition Officer. Section 29 reads thus:-

“29. Particulars of apportionment to be specified.― Where there are several persons interested, if such persons agree in the apportionment of the compensation, the particulars of such apportionment shall be specified in the award, and as between such persons the award shall be conclusive evidence of the correctness of the apportionment.”

Though the learned counsel for the appellant would contend that the apportionment before the Land Acquisition Officer gives only a valid discharge to the Government and does not affect the rights inter-se between the claimants, even on a plain reading of the section, the said argument has no force. As is evident from the Section, if the claimants agree in the apportionment of the compensation, the same shall be specified in the award, and between such persons it shall be conclusive evidence of the correctness of the apportionment. The conclusiveness provided therein is, between the claimants and not in the manner as contended by the appellant.

Here it is appropriate to refer to Ext.B19 statement filed by the plaintiff, the defendant and their brother Avarankutty before the Land Acquisition Officer. In the statement submitted on 28.04.1986 it was said that the entire property belongs jointly to them as per Ext.A1 Partition Deed. Thereafter on 31.05.1986, the three brothers including the plaintiff made a further statement before the Land Acquisition Officer that the compensation amount shall be calculated in equal proportion and cheques issued accordingly. The relevant endorsement on Ext.B19 reads thus:-

Therefore, the plaintiff, the defendant and their brother Avarankutty agreed for apportionment of the compensation amount in equal shares. Accordingly an award was passed apportioning the compensation amount in equal shares. The relevant portion of Ext.A2 Award reads thus:-

“In the circumstances, the compensation as shown below will be awarded to (1) Kudukkil Valappilthod Kunji Mohammed, S/o Mohammed (2)-do- -do- Sheikkutty @ Abdul Shukkur, S/o Mohammed and (3)-do- Avarankutty, S/o Mohammed of Pulikkal village and the amount will be paid to them in equal shares.”

It operates as a conclusive evidence of the correctness of the apportionment. Therefore, it is not open for the plaintiff to contend that the apportionment of the compensation was not in the correct proportion. The learned counsel for the appellant would contend that, the plaintiff is not challenging the apportionment of the original award amount and that the claim is limited to the enhanced compensation, and therefore, Section 29 is attracted. I am unable to agree with the contention. Compensation is the value for the land acquired. Enhanced compensation did not stem independent of the Award. The reference court only re-fixed the value of the land. Having agreed to apportion the value of the acquired land in a particular ratio and an award having been passed on such terms, in the light of Section 29 referred to above it is not open for the plaintiff to wriggle out of the same and make a claim for excess area. Incidentally it is to be noticed that, not only that the brothers had agreed for equal division of compensation before the Land Acquisition Officer, but also before the Reference Court when the Government deposited the enhanced compensation. The plaintiff, defendant and their brother Avarankutty had filed cheque applications as IA Nos.864/1996, 865/1996, 1143/1996 respectively (Exts.B7, B8 and B9) claiming equal shares. It is only after the disposal of the land acquisition appeal (LAA 41/1996) by this Court on 18.06.1999, that the plaintiff, for the first time, attempted to raise his claim for larger share. Therefore, the trial court was right in holding that the suit is not maintainable.

Learned counsel for the appellant would argue that, this Court had in the judgment in CRP 391/2001 (Ext.A6) and in the order in RP 186/2001 (A7) reserved the rights of the petitioner to claim his due share in appropriate proceedings. The defendant was also a party to the said proceedings. Therefore, the defendant cannot now contend against the maintainability of the suit, it is argued. The relevant observation by this Court reads thus:-

“The first respondent can establish his claim with regard to the 1/2 share in the amount lying in deposit in appropriate proceedings”

If the suit is not legally maintainable, by the observation as above it does not become maintainable. It goes without saying that, such claim in appropriate proceedings could be made only if he is legally entitled to and permissible under law. The very suit is not maintainable and in the light of Section 29 LA Act the claim of the plaintiff is unsustainable.

Resultantly, the appeal fails and is dismissed. No costs.