Soma Singh vs Jaigobind Pande and another

Varma, J.—In this appeal defendant 2 in the trial Court is the appellant. He held 1 bigha 17 kathas 14 dhoors of land under the plaintiff on a rental of Rs. 3-13-0. He has been found to bean under-raiyat with rights of occupancy in the land. It appears that the plaintiff was an occupancy raiyat who was in possession of a holding of 18 bighas 14 kathas and 2 dhoors in area with a rental of Rs. 88-12-6 in village Lahladpore in the District of Saran. Out of the land in possession of the appellant, 10 kathas 5 dhoors were acquired for the B. & K.W. Railway and the amount of compensation was fixed at Rs. 311-12-5 which was ultimately handed over to defendant 2. It appears that the plaintiff on getting information of this payment of money to defendant 2 filed a suit claiming the whole of the amount. The trial Court dismissed the suit on the ground that it was barred by limitation. The suit was filed on 19th January 1928, and the compensation under the Land Acquisition Act, was given to the defendant on 11th August 1926. The trial Court was evidently of opinion that Art. 17, Limitation Act, applied and therefore the trial Court dismissed the suit. The case came up in appeal before the District Judge who allowed the appeal in part and ordered that 50 per cent of the amount given to the defendant be made over to the plaintiff. It is against this order that defendant 2 has come up in appeal and I also notice that there is a cross-objection on behalf of the plaintiff.

Mr. A.K. Hitter appearing on behalf of the appellant urges three points; first, that the suit was not maintainable inasmuch as he maintains that the Collector''s award is final unless the Collector himself chooses to refer the matter to the Civil Court under S. 18, Land Acquisition Act. In support thereof he refers to the decision of the Calcutta High Court in the case of Saibesh Chandra v. Bejoy Chand Mohatap Bahadur, 1922 Cal 4 = 65 IC 711, where their Lordships held that in the case before them the award of the Collector was final. Now in order to understand the real difference between the case just HOW mentioned and the case in hand, I shall only point out that whereas in the Calcutta case it was distinctly found that all the formalities required under the law were observed in that case, especially the formality with regard to notice about which their Lordships say:

We are of opinion that the plaintiff having been served with notice under S. 9 of the Act was bound to apply for reference under S. 18 when he was dissatisfied with the award, and he cannot maintain a suit in the ordinary civil Court.

From this it is clear that the decision was based on the fact that the notices were served upon the plaintiff as required by law; whereas Mr. A.K. Mitter has to concede that although notices mentioned in S. 9, Cls. (1) and (2) were served the notice contemplated under Cl. (3) was not served upon the plaintiff. Cl. (3), S. 9, Land Acquisition Act, 1 of 1894, runs thus:

The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate.

Now, if this notice was not served upon the plaintiff, he was certainly justified in questioning the correctness of the award, because it is chiefly with the object of protecting interests like his that Cl. (3) to S. 9 has been enacted. I had the advantage of the assistance of the learned Government Pleader in this connexion and he has drawn my attention to the third proviso of Cl. (2) to S. 31, Land Acquisition Act, which runs as follows:

Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.

And if the person so entitled wants to enforce his right, there is nothing in the Land Acquisition Act, to prevent him from doing so. The nest question urged by Mr. A.K. Mitter which is really supplementary to the first point is that the suit was barred by limitation as it was a case which was governed by Art. 17, Limitation Act. The period prescribed there is one year only if the claim is against the government for compensation for land acquired for public purposes. But looking at the facts of the case a little more closely one cannot help coming to the conclusion that Art. 17 does not apply. The case of the plaintiff is that the money which ought to have been received by him has been handed, over to defendant 2 and the prayer portion of his plaint makes it clear as to what he wants and that will throw a good deal of light upon the question of limitation. He prays:

That after adjudicating the points mentioned above (1) Let it be decided that the plaintiff is entitle to realize Rs. 311-12-5 from defendant 1 (i.e. the Secretary of State for India) or defendant 2 (the present appellant) as the Court thinks proper, besides Be. 52-14-0 interest from the date of payment to the date of suit plus future interest.

From this it is clear that it was not a case in which the Government had acquired land and had not paid money to the plaintiff; but the plaintiff''s case is that the Government had acquired the land, but had paid the money to one who was apparently entitled to it; but the plaintiff has also got interest in the land and claims, the money paid by the Government. The lower appellate Court noticed the mistake of the trial Court and came to the conclusion on the facts alleged that it was a case which was governed by Art. 62, Limitation Act, which allows a period of three years. I am of opinion that on the facts of this case the proper Article that is applicable would be Art. 120, Limitation Act, because S. 62 provides for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff''s use. At the time when the defendant received the money there was no indication nor even any allegation in the plaint that the defendant received the money for the use of the plaintiff. That being the position Art. 62 will not apply and the proper Article to apply would be Art. 120, Limitation Act.

The third point that has been urged by by ''Mr. A.K. Mitter is on the question of apportionment of the compensation. He contends that as he is an under-raiyat with occupancy rights, he has lost possession of the land which was the means of his subsistence and the raiyat under whom he held was only entitled to rent from him. Therefore the division of the award between the plaintiff and himself into two equal halves is not proper. In attempting to find out the basis upon which these awards are divided, I bad the advantage of listening to Mr. Girindra Nath Mukharji on the point. His contention is that although the under-raiyat has acquired occupancy right there is nothing to indicate that his right is cither transferable or heritable. Therefore the plaintiff who is an occupancy raiyat is losing the chance of stepping into his shoes after the under-raiyat''s death. He says further that he is entitled to apply for enhancement and therefore he is entitled to a good proportion of the sum awarded as compensation, if not the whole. It is very difficult to lay down any hard and fast rule on the basis of which awards in land acquisition cases can be apportioned between various types of people interested in the land; but looking at a case re-ported in A.M. Dunne v. Nobo Krishmi, (1890) 17 Cal 144, it appears that the proportion that has been fixed by the lower appellate Court is not wrong. Moreover it is not a point of law and when the lower appellate Court after looking into the various circum stances of the case has come to a finding on this point, unless it be shown that he has violated some principles of law, 1 am not prepared to upset the proportion fixed by him.

In the circumstances the appeal will be dismissed. The cross-objection will also be dismissed. The parties will bear their own costs.