TMI Blog2012 (5) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... ase No. 12 of 1991, are being disposed of, finally, at the admission stage, as was already notified to the parties, by previous orders of this Court. Facts giving rise to the Appeal/Cross-Objection, in short, may be stated as under: Land admeasuring 787 square metres from Survey No. 106(part) of Carapur village was acquired for construction of 300m3 Ground Level Reservoir and Pump House at Carapur in Bicholim Taluka. By Award dated 19/05/1989, the learned Land Acquisition Officer (L.A.O.) awarded a sum of ₹ 20,737/- as compensation for 11 the said acquired land. However, there was dispute regarding the ownership of the property. Hence, the L.A.O. made reference under Section 30 of the Land Acquisition Act, 1894 (The Act, for short) which gave rise to the said L. A. Case No. 12 of 1991. 2. For the sake of convenience, the Appellants shall hereinafter be referred to as Sanyogita Rane group. The respondents No. 1(i), 1(ii), 2(i), 2(ii), 4(i), 4(ii), 7(i), 7(ii)(a) to (d) of the Appeal shall hereinafter be referred to as the members of Manoramabai Rane group. The respondents No. 10 to 18 of the Appeal (Cross-objectioners) shall hereinafter be referred to as Morajkar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancestral property in Goa ever since they were married and settled in Gwalior, in the State of Madhya Pradesh. After the death of Zaidev Zaitoji Rane, the third inheritor, Zaiba Satroji Rane has been in exclusive possession of the said property till the date of his death i.e. till 8/4/1987. Zaiba Satroji Rane left behind his wife Mrs. Sanyogita Rane Sardessai, two sons i.e. Jitendra Rane Sardessai and Sanjay Rane Sardessai and daughter Mrs. Jyoti Botelho as his sole heirs. Mr. Sanjay Rane holds the power of attorney for the other heirs of Zaiba. Government has acquired 787 square metres of land from this plot 'Culona bearing survey No. 106 of Carapur village. Hence, 2/3rd share of compensation belongs to the heirs of late Zaiba Satroji which be handed over to Mr. Sanjay Rane. 5. The learned Advocate, on behalf of Manoramabai Rane group, filed applications dated 26/04/1999 and 30/11/1999, which are at Exhibits 11 and 15 respectively. In these applications, it was stated as follows : In L. A. Case No. 19 of 1989, Manoramabai Rane was respondent No. 2 and after her death, the Vakalatnama on behalf of her eldest son Shri Fatehsingh Rauji Rane was filed as he was appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was considered and the appeal was dismissed. The Reference Court therefore held that the property bearing survey No. 106 belongs to Manoramabai Rane group. The learned Reference Court has relied upon the case of Ramprakash Vs. Charan Kaur and another (AIR 1997 SC 3760), wherein, inter alia it has been observed that: it can safely be said that where two connected suits have been tried together and the findings recorded in one of the suits have become final in absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata. This is the ratio of the above cited case law decided by the Apex Court of the country. Thus, there is absolutely no necessity to go into other aspects of the appeal, especially when on factual side, as detailed above, the decree, not appealed against by the present Appellant, passed by the First Appellate Court, has become final between the parties, which has created a legal bar for the maintainability of the present appeal whereby the decree passed in the other suit has been assailed. Consequently, the Reference Court ordered that entire compensation awarded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, Manoramabai Rane group can file execution proceedings and succeed to get the compensation awarded for the acquired land which was subject matter of that case. He, however, contended that the said Judgment and Award in L. A. Case No. 19/1989, being under challenge and in jeopardy, the issue decided therein cannot be said to be finally decided. He argued that since the issue of ownership is still pending before the Hon'ble Supreme Court, the provisions of res judicata under Section 11 of Civil Procedure Code or principles analogues to the same, are not applicable. He submitted that the ratio in the case of Ramprakash (supra) has been wrongly applied by the Reference Court. 12. Learned Counsel for Sanyogita Rane group, invited my attention to Section 53 of The Act which provides that the Code of Civil Procedure is applicable to the Act. He therefore contended that under Section 30, the Reference Court had to decide the reference as per the procedure prescribed by Civil Procedure Code. According to him, each of the parties had to file Written Statement so that each party could know the case of the other party and then had to lead evidence. He pointed out that the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Others Vs. Chief Executive Officer, M.P. and others [(2004) 10 SCC 126], he argued that in terms of sections 42 and 43 of the Evidence Act, if a judgment, though not inter parties, is sought to be relied on not as precedent but as a piece of evidence, it should be tendered in as evidence. According to him, since the members of Morajkar group were not parties to that L. A. Case No. 19/1989, the said judgment and order dated 12/6/1995 passed in that case, is not inter parties judgment and since the same has not been tendered in as evidence, it could not have been looked into by the Reference Court. He relied upon Ramesh Chand Ardawatiya Vs. Anil Panjwani [(2003) 7 SCC 350], wherein it has been held that even in ex parte Proceedings, though the Court is not bound to frame issues and deliver judgment on each issue, it must scrutinise the available pleadings and documents, consider the evidence adduced, and frame the 'points for determination' and deal with each of the points at issue. It has been further held that merely because the defendant is absent, the Court shall not admit evidence, the admissibility whereof is excluded by law. He relied upon Porbuko Uma Mandrekar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliefs claimed therein. He produced a copy of the Order dated 11/12/2009 passed by the Hon'ble Apex Court in Petition for Special Leave (Civil) filed by Sanjay Rane and Ors. Vs. Saibai S. Dubaxi Ors., wherein the petitioners have been directed to make an application for stay instead of general stay prayed for. According to learned senior counsel, therefore, nothing remains in this appeal and that the same is bound to be dismissed. 16. Shri Dessai, further argued that in the first acquisition of 21,450 square metres from survey No. 106, which was subject matter of L. A. case No. 19/1989, though Smt. Saibai Dubaxi and Sanyogita Rane group had laid claim to the said vast acquired land, however, Morajkar group had not claimed any right and hence they were not parties to the said Land Acquisition Case. He then pointed out that during the second acquisition, said Morajkar group claimed right to the acquired land admeasuring 787 square metres of land from the same survey No. 106, which is subject matter of the present litigation due to which they were made parties to the reference. Mr. Dessai contended that land acquisition proceedings start with publication of preliminary noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 99 of the Code of Civil Procedure. 18. I have gone through the entire material on record, in the light of the arguments advanced by the Learned Counsel for the parties and the citations relied upon by them. 19. The point that arises for determination is whether the impugned judgment and decree is vitiated by errors and irregularities and that the Reference Court ought to have decided the matter on its own merits and ought not to have considered the Judgment passed in L. A. Case No. 19/89. 20. In the L. A. Case No. 12 of 1991, notices were issued to all the parties to the said reference. All the parties were duly served. The members of Morajkar group first filed their written statement and this was on 27/07/1995. Their written statement is at Exhibit 8. The members of Morajkar group, thereafter, started remaining absent. Even fresh notices were issued to some of them by giving them an opportunity and these notices were duly served but the said parties chose to remain absent. The matter proceeded ex parte against them. 21. On 26/04/1999, the learned advocate for Manoramabai Rauji Rane group filed an application (Exhibit 11) alleging that there were other Lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was whether Sanyogita Rane group proves that the suit plot which is part of survey No. 106 belongs to them. The second issue was whether Saibai S. Dubaxi proves that the suit plot which is part of survey No. 106 belongs to her. The third and the last issue was whether Smt. Manoramabai Rauji Rane proves that she is the owner of the said survey No. 106, to whom the compensation awarded by the L.A.O., is to be paid. It is seen that the learned District Judge, in the said L. A. Case No. 19 of 1989, held that only Manoramabai Rauji Rane is the owner of the said survey holding No. 106 of Carapur village of Bicholim taluka. In the said First Appeal No. 116 of 1997, the judgment and award, in L. A. Case No. 19 of 1989 has been maintained. 25. The application at Exhibit 15 was fixed for reply but the learned advocate for Sanyogita Rane group made an endorsement dated 18/01/2000 on the said application stating that he does not wish to file any reply but would file written submissions. The members of the Morajkar group as usual had remained absent. While stating that he does not wish to file reply to the said application, the Learned Counsel for Sanyogita Rane group did not inform the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. In the circumstances discussed earlier, in the present case, the question of recording evidence did not arise as in unambiguous terms, in L. A. Case No. 19 of 1989, it has been held that Smt. Manoramabai Rauji Rane is the sole owner of survey No. 106 of Carapur village of Bicholim taluka. This judgment In L. A. Case No. 19/89, was maintained in the said First Appeal No. 116 of 1997, by learned Single Judge of this Court. The finding given by this Court was binding on the Reference Court. Section 54 of the L. A. Act provides that subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and Order 45 thereof. In the present case, Sanyogita Rane group did not directly file the appeal to the Supreme Court f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: provided that nothing in this section shall apply to non-joinder of necessary party. In the absence of objection from Sanyogita Rane group, at relevant time, for decision of the case on the basis of the judgments in L. A. Case No. 19/89 and First Appeal No. 116/1997, and in the absence of contest of the proceedings by Morajkar group, the Reference Court cannot be said to have decided the case, not on merits, or without there being anything on record, justifying the Judgment. 28. In the case of Kunhayammed and others v/s. State of Kerala and another (supra), it has been held that in spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues ..... X X X X Extracts X X X X X X X X Extracts X X X X
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