Vinay Kumar and Ors. vs Parshotam Dass and Ors.

A.L. Bahri, J.—This appeal is by the owners Vinay Kumar and others, filed against the judgment of Additional District Judge, Kama], dated March 12, 1986, whereby several land acquisition reference filed under sections 18 and 30 of the Land Acquisition Act (hereinafter called ''the Act'') were disposed of the present appeal relates to Land Acquisition Case No. 152/4 of 1983 (Parshotam Dass and others v. State of Haryana and others.) filed under section 30 of the Act. The Additional District Judge held Parshotam Dass and others as tenants over the land measuring 8 Kanals 8 Marlas comprised in Khasra Nos. 9094 and 9095 and thus allowed 1/3rd out of the compensation for the acquired land. On an objection being raised during arguments that Amar Nath, a coowner of the land in dispute was not impleaded as a party, C.M. No. 2192Cl of 1989 was filed on behalf of Parshotam Dass and others, for impleading Amar Nath Kapur as a party. However, subsequently the said application was withdrawn and was thus dismissed on July 19, 1990 by this Court.

State of Haryana issued notification under section 4 of the Act on October 17, 1978, intending to acquire 80.49 Acres of land. Subsequently, 79.58 Acres of land was acquired. The Land Acquisition Collector announced Award on June 2, 1982, fixing market value at different rates keeping in view the quality of the land. The landowners were not satisfied with the amount of compensation fixed. They moved different references under section 18 of the Act. Amar Nath Kaput and his children Viney Kumar and others moved one such reference under section 18 of the Act (Land Acquisition case No. 4/4/ of 1985). As already stated above, Parchotam Dass and others filed reference under sections 18 and as well as 30 of the Act claiming themselves to be tenants over the land in dispute (8 Kanals 8 Marlas) comprising two Khasra Nos. 9094/54 and 9095/34 the present appeal relates to the latter case. The Additional District Judge allowed compensation at the rate of Rs. 30/ per square yard. The High Court disposed of appeals fixing the market value of the acquired land at the rate of Rs. 32/ per square yard. In the case of Parshotam Dass and others they were held to be tenants and 1/3rd of the compensation was ordered to be paid to them. Vinay Kumar and others, children of Amar Nath Kapur, have filed the present appeal.

Shri M.L. Sarin, Sr. Advocate, appearing on behalf of the appellants argued that the reference made on behalf of Parshotam Dass and others was liable to be dismissed on the short ground that Amar Nath one of the coowners was not impleaded as a party. At the preliminary stage, objection in this respect was taken in the written statement filed by the appellants and an issue was also framed. In appeal also application was filed by Parshotam Dass and others form impleading Amar Nath as a party, however, the same was dismissed as withdrawn asstated above. Since Amar Nath is not a party in the present proceedings, reference filed by Parshotam Dass and others under section 30 of the Act was liable to be dismissed. In support of this contention reliance has been placed on the decision of the Supreme Court in State of Punjab v. Nathu Ram, AIR 1962 Supreme Court 89. The ratio of the decision aforesaid is not at all applicable to the facts of the case in hand. In that case two brothers jointly owned the land which was acquired. The District Judge decided the reference filed under section 18 of the Act, State of Punjab filed the appeal. One of the joint owners died. Then the question arose as to whether the appeal had abated ? The Supreme Court held that the appeal could not proceed against the other brother as legal representatives of the deceased brother were not brought on the record. Abatement of the appeal against one of the brothers resulted in total abatement as decree/judgment against the deceased brother had become final and contradictory decree could not be passed subsequently in the appeal. That was a case under Order 22 Rules 4 and 11 read with )Order 1 Rule 9 of the Code of Civil Procedure. Subsequently, after the said decision. Code of Civil Procedure was amended. Now on account of the death of one of the respondents appeal is not to abate but the appeal is to reach its end by decision on merits. It is left to the legal heirs of such deceasedrespondent to be impleaded as parties.

Application filed by Parshotma Das and others for impleading Amar Nath as party was got dismissed as withdrawn. Shri Sarup Chand Goyal, Advocate, appearing on behalf of the respondents, while referring referring to the decision of Allahabad High Court in Tejdhari and others v. Baul and others, AIR 1981 Allahabad 47 and of Sukhdev Singh Kang, J. in Niranjan Singh and others, AIR 1984 Punjab and Haryana 250, urged that Amar Nath could not be impleaded as a party in the proceedings and if he had nay right in the land he could establish by filing a separate suit. S.S. Kang, J. in para 4 of the judgment in Niranjan Singh''s case observed as under:

"Proceedings before the court on a reference made by the Collector under Section 30 are of a special nature. The Court can take cognizance of the dispute regarding apportionment of compensation of the acquired land, only on a reference and the enquiry is confined to a dispute between certain parties. The court cannot enlarge its scope by impleading others as parties. The persons who had not appeared before the Collector and staked any claim to compensation for the land, in dispute, and have not raised any grievance as to the apportionment of compensation in the award of the Collector, cannot come forward to join issue before the Court adjudicating on the reference."

Subsequently the matter was considered by the Division Bench in Karnail Singh v. Jagir Singh, 1985 RRR 645 (P&H) : AIR 1984 Punjab and Haryana 294. That was a case where civil suit was filed by a person claiming interest in the land acquired, after the decision of the reference made under section 30 of the Act to which he was not a party. It was held that the suit was maintainable under third proviso to section 31(2) of the Act. The Award is final so far as the Collector and the persons interested are concerned. But it is not so among the persons interested in the land. The persons interested can get their dispute resolved either by asking the Collector to make a reference under section 18 of the Act or by a separate suit. After the Collector announces and Award for the compensation for the acquired land, two types of the Act; one of the dispute relates to the apportionment of the compensation so determined by the collector. Such a dispute is decided as required under section 30 of the Act. The Collector is required to make reference of such a dispute to the amount of compensation is to be apportioned. The other dispute is among the persons interested entitled to receive the compensation. If there is any dispute as to the title to receive the compensation the reference is required to be made under section 18 of the Act as provided under Section 31(2) of the Act. Third Proviso added to Section 31 (2) of the Act reads as under :

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."

The aforesaid provision shows that if a person has received compensation as determined by the Collector under section 11 of the Act, he would be liable to pay the same to the person lawfully entitled thereto. Such a person who was not a party before the Collector or the Court in the proceedings contemplated under the Act can file a separate suit to establish his title/interest in the land acquired and thus claim compensation from the Collector if the amount is not disbursed or from the persons who had received compensation from the Collector. This is the ratio of the decision of the Division Bench in Karnail Singh''s case (supra). It is further stated that the dispute settled by the Court as required under section 30 or section 31(2) of the Act between the parties so impleaded would be binding on them. But such a decision cannot be binding on a person who was not a party in the proceedings though he was interested in the land, such a person can establish his title or interest in the land in a separate suit, as stated above.

Amar Nath Kapur and his children Vinay Kumar and others, as already stated above, moved a reference under section 18 of the Act which has al ready been disputed of. Even at the appellate stage Amar Nath was not impleaded as a party as there was a reference to a mutation in the revenue records that Amar Nath had transferred his rights in favour of Vinay Kumar and others. It was on that account, as has been argued by Shri Sarup Chand Goyal, Advocate, for Parshotam Dass and others, tenants, that Amar Nath was not interested in the land and was thus not a necessary party. In my view, in view of the evidence produced in this case, it cannot be said that Amar Nath had transferred his rights to Vinay Kumar and others. No transfer deed had been produced on the file. Even copy of the mutation of such transfer had not been produced. There is only a reference in the remarks column in the Khasra Girdawaris Exhibits P.29 and P.30 with respect to such a mutation of transfer of land by Amar Nath in favour of Vinay Kumar and others. Copies of the mutations are not pieces of evidence of title as held by the Full Bench in The State of Punjab v. Pohu Ram and anr., 1986 RRR 228 (P&H) : 1986 PLR(1) 109. Mere reference in the remarks column in the Khasra Girdawari of any such mutation does not prove the transfer of immovable property. Shri Sarup Chand Goyal, Advocate, has argued that Khasra Girdawaris are prepared by the officials in the performance of their official duty and are thus admissible in evidence. As far as this proposition is concerned, there is no dispute. Entries in the Khasra Girdawaris, are made by the Patwari and the object is to show the actual possession of a particular person who had sowed the crops. Otherwise, Khasra Girdawaris are not evidence of title of the land. The Khasra Girdawaris do not stand at a better footing than the Jamabanndi which prima facie proves title of the person so recorded in respect of the land. In the present case no copy of the Jamabandi of the land in dispute has been produced to indicate that Amar Nath had transferred his rights in the land in dispute in favour of Vinay Kumar and others. The evidence produced on the record is not sufficient to hold that Amar Nath had transferred his right, title or interest in favour of Vinay Kumar and others. Amar Nath thus being a proper party could be impleaded as such in the reference made by Parshotam Dass and others under section 30 of the Act. Even in appeal, Amar Nath could be impleaded as a party. However, nonimpleading of Amar Nath as a party is not fatal to the case. What was required under section 30 of the Act was that a person claiming apportionment of the compensation could move the Collector for making a reference to the Court. Parshotam Dass and others claiming themselves to be tenants over the land in dispute moved the Collector in this respect claiming apportionment of the compensation of the acquired land. They impleaded Vinay Kumar and others as parties. The dispute between Parshotam Dass and others and Vinay Kumar and others can be determined and settled on such a reference made under section 30 of the Act. The contention of Shri M.L. Sarin, Sr. Advocate, that a necessary party was not impleaded, namely Amar Nath, and the reference made under section 30 of the Act should be declined, cannot be accepted. It is the duty of the Court in a reference being made under section 30 of the Act to determine the question of apportionment of the compensation between the persons interested, not necessarily persons interested in the land. The dispute between Parshotam Dass and others on one side and Vinay Kumar and others on the other side was required to be determined by the Court. If the Court considers that some other person was also interested person, there was no bar for giving notice to such person and impleading him as a party for just decision of the case. The rules of procedure are meant to advance the cause of justice and on technical grounds the Court cannot refuse to administer justice. Be that as it may, even if Amar Nath has not been impleaded as a party, the rights of Parshotam Dass and others to apportion the compensation determined for the acquired land can well be determined.

Shri Sarup Chand Goyal, Advocate for the tenantsrespondents, has argued that Parshotam Das very well knew about the pendency of the present reference and he had also appeared as a witness on behalf of the landowners Vinay Kumar and others. Any decision given by the Court would be binding on Amar Nath. In my view in these proceedings such a question need not be determined. As and when Amar Nath files a separate suit, which he is entitled to do, if need be, such a question, if raised, can be determined. Otherwise as already stated above, Amar Nath was also one of the claimants along with his children to claim compensation for the acquired land as a coowner. Thus in the present appeal the question as to whether Parshotam Dass and others were tenants over land comprising two Khasra Nos. 9094 and 9095 is being determined. If they are held to be tenants, they would be entitled to the apportionment of the compensation awarded in the case.

In order to prove that Parshotam Dass and others are tenants over the land in dispute, they have produced copies of the Khasra Girdawaris with respect to the land comprising Khasra No. 9094 Exhibit P.26. Copy of the Khasra Girdawari shows that Amar Nath allottee was himself in cultivating possession of this land. The entry as per this girdawari is upto 1960. Exhibit P.27 is a copy of the Khasra Girdawari for the years 1960 to 1965. Again the entry is in the name of Amar Nath in selfcultivation. Exhibit P.28 is the copy of the Girdawari for the years 1965 to 1968. The entry is in the name of Amar Nath except in March 1968 the entry was recorded in the name of Parshotam Dass s/o Hari Ram, Ghair Mumkin, Lagan One Hundred rupees annually. This would show that it was in March 1968 for the first time that entry in the name of Parshotam Dass appeared. Exhibit P.29 is the copy of the Khasra Girdawari from July 1968 to March 1972. In the column of possession the name of Parshotam Dass, Ghair Mumkin, Lagan One Hundred rupees annual is mentioned. Exhibit P.30 is the copy of the Khasra Gir dawari from November 1972 to 1977. The entry is as above in the name of Parshotam Dass. Similar entry exists in the name of Parshotam Dass in the copy of the Khasra Girdawari for the years 1977 to March 1982. Vide Exhibit P.31 from October 1982 to April 1985 and as per Exhibit P.32, PW 5 Parshotam Dass set up his case that Jadu Ram was owner of 18 Biswas of land out of the acquired land. However, actual physical possession over the aforesaid land was of Hari Ram father of Parshotam Dass. Hari Ram died in the year 1970 and thereafter he and his brother Prem Chand and Vishnu Bhagwan started cultivating the suit land as tenants. They had been paying batai to Jadu Rai. His father used to cultivate two Killas of land owned by Vinay Kumar etc. as tenant and was paying Rs. 130/ per year as rent to Amar Nath father of Vinay Kumar. His father started cultivating the land owned by Vinay Kumar and others about 30 years ago. After the death of their father he along with Prem Chand, Vishnu and Sat Parkash started cultivating this piece of land as tenants under Vinay Kumar etc. They continued to cultivate the land as tenants till it was acquired by the State. They had been paying Rs. 130/ to Vinay Kumar etc. This stand of Parshotam Dass is not supported by entries in the copiees of Khasra Girdawari referred to above. It was in 1970 that Hari Ram father of Parshotam Dass died. No entry in the revenue records in favour of Hari Ram in respect of the aforesaid Khasra No. 9094 was produced. The story that Hari Ram was actually a tenant of this Khasra No. and after his death Parshotam Dass and others became tenants thus cannot be accepted. In order to create tenancy, the consent of both the parties to such a relationship is necessary. PW5 Parshotam Dass deposed that his father Hari Ram was the tenant and after his death his sons became the tenants. This stand is not corroborated by the entries in the revenue record as discussed above. Hari Ram died in 1970 whereas Parshotam Dass was shown in the Khasra Girdawari in possession for the first time in March 1968 i.e. Parshotam Dass and others happened to be in possession of the land comprising this Khasra Number before the death of their father Hari Ram. This contradictory stand taken by Parshotam Dass and others negatives their case. In order to prove the relationship of landlord and tenant, as stated above, consent of both the parties was necessary. Such consent could be proved either from the documentary evidence or from oral evidence. The documentary evidence could be in the form of rent note, lease deed or payment of rent of batai. No such document has been produced on the record. One receipt mark ''X'' was produced at the later stage which was sought to be proved from the Expert witness. Vide this receipt a sum of Rs. 2000/ purports to have been paid by Parshotam Dass to Amar Nath topwaqrds sale consideration (Bainama). However, body of the receipt shows that Parshotam Dass could, cut the tree from the land comprising Khasra No. 9094 and land of Khasra No. 9095 which was vacant could be cultivated for 10 years from 1966 to 1976. This receipt can hardly be treated as payment of rent for the land in dispute in order to create the relationship of landlord and tenant. Thus it is not considered necessary to refer to the evidence vide which this receipt was sought to be proved. Parshotam dass and others, therefore, have failed to prove their tenancy over land comprising Khasra Number 9094.

The other part of the land comprises of Khasra No. 9095. In all of the Khasra Girdawaris already referred to above the entry was in the name of Hari Ram Wald Raghunandan, ghair morusi, lagan Rs. 38/ salana''. Although Hari Ram died in 19,70 as stated above, however, entries in the Khasra Girdawari referred to above continued in the name of Hari Ram. Mere entries in the Khasra Girdawari would not prove tenancy. No Jamabandi of the land in dispute was produced. Mark ''X'' the alleged receipt which was not earlier relied upon and produced at the later stage does not prove tenancy of land comprised in Khasra No. 9095 as well.

Since Parshotam Dass and others have failed to prove their tenancy over the land comprised in these two Khasra Numbers they are not entitled to apportionment of the compensation determined for the land acquired.

For the reasons recorded, this appeal is allowed with no order as to costs. Judgment of the Additional District Judge allowing apportionment of compensation of the land acquired in favour of Parshotam Dass and others is set aside.