Karnataka High Court
Smt.Meenakshi W/O Madhurakar @ vs Shri.Pandurang Bhimarao Laxmeshwar on 21 January, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.100553/2018 (DEC/INJ)
c/w RSA NOS.100552, 100557, 100558, 100559, 100592, 100593,
100594 and 100595 OF 2018
RSA No.100553/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
2
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SHRI KAVAN S/O RAJAN DESHPANDE
AGE: 30 YEARS, OCC: STUDENT,
R/O 'VAIKUNTA PRASAD',
OPP.DISTRICT COURT, DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH & SRI.D.M.MALLI, ADVS. FOR R1 & R2)
3
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.20/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.850/2008.
RSA No.100552/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
4
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SHRI RANGRAO S/O GOVINDRAO KULKARNI,
AGE: 80 YEARS, OCC: STUDENT,
R/O 'VAIKUNTA PRASAD',
OPP.DISTRICT COURT, DHARWAD.
3. SMT.BHAVANA W/O VASANTRAO PATIL,
AGE: 58 YEARS, OCC: SELF EMPLOYED,
R/O 223, VINAYAK NILAY, SARASWATI NAGAR,
VIJAYNAGAR (WEST), BENGALURU-560 040.
4. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
5. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
5
(BY SRI.SUDARSHAN SURESH ADV. FOR R1(B) & R1(1 TO 3),
SMT.SAVITHRIS.KULKARNI, ADV. FOR C/R3)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.21/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.851/2008.
RSA No.100557/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
6
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SHRI MALLIKARJUN S/O ALLAPPA SIDNAL,
AGE: 68 YEARS, OCC: SERVICE,
R/O 54/1856, SUHASH NAGAR,
CHEMBUR-MUMBAI-400071.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH & SRI.D.M.MALLI, ADVS. FOR R1 & R2)
7
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.23/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.853/2008.
RSA No.100558/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ABHISHEK PATIL & SRI.M.H.SHINDE, ADVS.)
8
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SHRI AJIT S/O MADHAVRAO DESHPANDE,
AGE: 59 YEARS, OCC: SERVICE,
R/O MULUND (WEST) MUMBAI-400080,
OPP.DISTRICT COURT, DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.HANUMANTHA REDDY SAHUKAR, ADV. FOR R1,
SRI.SHASHANK HEGDE, ADV. FOR R4,
R3 SERVED, R2 NOT KNOWN)
9
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.24/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.854/2008.
RSA No.100559/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
10
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SMT.SHANTA V.SHIRAHATTI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O WEST COAST PAPER MILLS,
DANDELI-581325, TAL: HALIYAL,
DISTRICT: UTTARA KANNADA.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3,
SRI.C.N.HARLAOUR & SRI.S.S.TATTIMANI, ADVS. FOR C/R2,)
11
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.25/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.855/2008.
RSA No.100592/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
12
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. DR.ASHOK S/O VADIRAJ KALAMADANI,
AGE: 60 YEARS, OCC: MEDICAL PRACTITIONER,
R/O RAJ ANNEXE, GREEN GARDEN',
GOKUL ROAD, HUBBALLI-580 030, DIST: DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3 & R2,
SRI.C.N.HARLAPUR & SRI,.S.N.KINI & SRI.N.S.KINI &
SRI.S.S.KULKARNI, ADVS. FOR R2)
13
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.22/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.852/2008.
RSA No.100593/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
14
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. PADMANABHA S/O SURYAKANT JOSHI,
AGE: 69 YEARS, OCC: RETIRED,
R/O NO.19, DIVYASHREE, APOORVA NAGAR,
GOKUL ROAD, HUBBALLI-580 030, DIST: DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3,
SRI.C.N.HARLAPUR & SRI.S.S.TATTIMANI, ADVS. FOR C/R2)
15
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.43/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.93/2012.
RSA No.100594/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
16
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. MALTESH S/O DYAVAN JOSHI SAVANUR,
AGE: 64 YEARS, OCC: RETIRED,
R/O LIG 42, 6TH CROSS, NAVANAGAR,
HUBBALLI-580 025. DIST: DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3),
SRI.C.N.HARLAPUR & SRI.S.S.TATTIMANI, ADVS. FOR RC/R2)
17
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.41/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.94/2012.
RSA No.100595/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
18
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. PARASHURAM CHIDAMBARBHAT JOSHI,
AGE: 64 YEARS, OCC: RETIRED,
R/O 'PRABHU NIVAS', H.NO.KHB 10/B,
TWONSHIP DANDELI-581325 DIST: UTTAR KANNADA.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.42/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.95/2012.
19
THESE APPEALS COMING ON FOR DICTATING ORDERES THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned Regular Second Appeals are filed by the plaintiffs questioning the common orders passed in batch of suits wherein the suits filed in O.S.Nos.850 to 855 of 2008 are dismissed as not maintainable.
2. Common questions are involved in all the appeals which are tagged and heard together.
3. Brief facts leading to the case are:
Appellants/plaintiffs filed suits seeking the relief of declaration that the sale deed executed by defendant No.1 in favour of defendant No.2 as illegal, null and void and not binding on the plaintiffs share. The appellants/plaintiffs further sought relief of declaration that plaintiffs are entitled to receive the compensation amount in respect of the suit properties acquired by defendant Nos.3 and 4. The consequential relief of perpetual injunction is also sought 20 against defendant Nos.3 and 4 from paying compensation amount to defendant No.2 in respect of suit properties. The subject matter of second appeals is non-agricultural land.
The appellants/plaintiffs contended that originally land bearing Sy.No.3/1 was renumbered as R.S.No.3/B, which was totally measuring 6 acres situated at Gokul Road, Hubballi. The appellants/plaintiffs contended that land was converted for non-agriculture purpose and residential plots were laid. One M.R.Naik who is the husband of plaintiff No.1 and father of plaintiff Nos.2 to 4 died intestate on 18.04.1993 leaving behind present appellants as legal heirs. The appellants/plaintiffs contended that they have succeeded to the suit properties after the death of M.R.Naik. Appellants/plaintiffs further contended that Sy.No.3/1 was purchased out of the income of the ancestral properties of deceased M.R.Naik and also income accrued by the joint family business.21
4. The grievance of the appellants/plaintiffs is that original defendant No.1 on the basis of the General Power of Attorney alleged to have been executed by M.R.Naik on 27.12.1984 has transferred the suit schedule property by way of sale to defendant No.2 under registered sale deed dated 13.06.1997. The appellants' contention is that defendant No.1 was fully aware of the fact of death of M.R.Naik and though alleged GPA executed by deceased M.R.Naik automatically ceased, has ventured to transfer the suit schedule property in favour of defendant No.2. On these set of grounds, the appellants/plaintiffs claimed that sale deed executed by defendant No.1 in favour of defendant No.2 in respect of suit property is illegal, null and void and therefore, not binding on the plaintiffs.
5. The appellants/plaintiffs have also specifically averred in the plaint that suit property was acquired by defendant No.3. Therefore, appellants/plaintiffs contend that defendant No.2 is not entitled to receive any 22 compensation amount from defendant Nos.3 and 4 in respect of suit schedule property. The appellants/plaintiffs claim that they are absolute owners and therefore, it is only appellants/plaintiffs who are entitled to receive the compensation amount that would be determined by defendant Nos.3 and 4 for having acquired the suit schedule property. On these set of pleadings, the appellants/plaintiffs filed the suits seeking identical reliefs in respect of separate plot numbers and also plots covered under those individual sale deeds.
6. Defendant No.1 on receipt of summons tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.1 took a specific contention in his written statement that GPA executed by M.R.Naik who is ancestor of the appellants herein was one coupled with interest. Therefore, it was well within the authority of defendant No.1 to deal with the properties in terms of authorization given under GPA. 23 Therefore, defendant No.1 has contended that based on the GPA, he has sold the various plots by executing registered sale deed dated 13.06.1997 in favour of defendant No.2 and has also parted with possession pursuant to sale deeds.
7. Defendant No.3 has also filed written statement. The defendants seriously questioned the maintainability of the suit and specific averments were also made in the written statement. It is in this background the trial court having formulated issues proceeded to treat the additional issue No.1 as preliminary issue.
8. The appellants/plaintiffs and respondents / defendants in support of their contentions canvassed arguments in regard to maintainability and non- maintainability of the suit. The trial court has taken note of the order passed by this court in W.P.No.61411/2010. The said proceedings in W.P.No.61411/2010 arose out of an interlocutory application filed at the instance of defendant 24 No.1 under Order 39 Rule 1 and 2 of CPC. The said application was allowed by the trial court, which was reversed by the first appellate court on an appeal filed under Order 43. Therefore, against the divergent orders, it was respondent No.1/defendant No.1 who approached this court in W.P.No.61411/2010. This court disposed of the writ petition having taken judicial note of the fact that land was already acquired. This court was of the view that since there is serious title dispute in respect of suit schedule property between the defendants and plaintiff Nos.1 to 4, i.e., present appellants and respondent Nos.1 to 4, were reserved with the liberty to file an application under Section 18(2)(a) of the Land Acquisition Act with a further direction that, if such an application is filed, the Land Acquisition Officer was directed to deposit the entire compensation amount before the appropriate court under Section 31 of the Land Acquisition Act. On these set of reasoning, this court disposed of the above cited writ petition.
25
9. It is in this background, Misc. case No.67/2010 was presented by respondent No.1/defendant No.1. On enquiry, the said petition was allowed by holding that respondent No.1 is entitled for compensation and the claim of present appellants/plaintiffs was rejected.
10. The trial court while examining the maintainability of the suit has referred to these two relevant orders and has come to the conclusion that the present suit filed by appellants/plaintiffs would virtually amount to re-litigating on the same cause of action. If the claim of interse dispute between the appellants and respondents is decided in Misc. case No.67/2010, the relief sought by the appellants/plaintiffs in the present suits cannot be entertained and it is in this background, the trial court proceeded to dismiss the suit by recording a finding that the same is not at all maintainable.
11. Being aggrieved by the judgment of the Trial Court, the appellants-plaintiffs preferred an appeal before 26 the First Appellate Court. The First Appellate Court having re-appreciated the entire material on record has also concurred with the findings of the Trial Court and on independent assessment, has held that if the interse dispute between the appellants-plaintiffs and respondents- defendants is decided in a Civil Misc.No.67/2010, the appellants-plaintiffs cannot be permitted to re-agitate the same cause and has consequently dismissed the appeal. It is against this concurrent judgment and decree of the Courts below the present appellants-plaintiffs are before this Court.
12. Learned Counsel Sri. Akshya Katti reiterating the grounds would vehemently argue and contend before this Court that both the Courts have erred in dismissing the suit as not maintainable on the ground that order passed in Civil Misc. No.67/2010 has attained finality. He would submit to this Court that the present suits are filed seeking relief of declaration to the effect that the sale deeds 27 executed by respondent No.1 in favour of respondent No.2 are null and void and therefore, he would submit to this Court that when disputed question of fact are involved, the Trial Court has erred in non-suiting the appellants-plaintiffs by summarily deciding the lis between the parties by treating additional issue No.1 as preliminary issue and this has led to miscarriage of justice and same would warrant interference at the hands of this Court. He would submit to this Court that in view of the complex dispute between the parties, the Trial Court ought to have relegated the parties to full-fledged trial and was not justified in adopting a shortcut way of treating additional issue as preliminary issue and therefore, would contend that the valuable rights of the parties have been scuttled at threshold without even permitting the plaintiffs to lead evidence and place on record cogent and clinching evidence to demonstrate that the appellants-plaintiffs dehors the GPA executed by their father M.R. Naik have got independent right and therefore, any transaction entered into between their father M.R.Naik 28 and respondent No.1 would not take away the valuable rights of appellants-plaintiffs in the suit schedule properties. These significant details are virtually ignored by both the courts below and therefore, several substantial questions of law would arise for consideration at the hands of this Court and therefore, he would submit that this is a fit case for admission.
13. Per contra, learned counsel Sri. Sudarshan Suresh repelling the contentions and arguments canvassed by the counsel for appellants-plaintiffs would submit to this court that though respondents-defendants have multiple defences and arguable points to support the concurrent judgments of the Courts below in regard to maintainability of the suit but however, he would restrict his arguments to the judgment rendered by the Division Bench of this Court in MFA No.22850/2013. He would submit to this Court that the judgment rendered by the Division Bench of this Court would clinch the issue and the dispute has to be put to 29 quietus in view of judgment rendered by the Division Bench of this Court. To buttress his arguments, he has placed on record the judgment rendered by the Division Bench of this Court along with a memo. He would straight away take the attention of this Court to paragraph 4 of the judgment and by placing reliance on relevant paragraphs of the judgment he would submit to this Court that the claim of the appellants-plaintiffs, if any, is finally nailed by the Division Bench of this Court and ratified by the Hon'ble Apex Court. If these two judgments are looked into, then he would submit to this Court that there is absolutely no scope to look into the claim of appellants-plaintiffs. The orders under challenge would further get strengthened by the subsequent judgment rendered by this Court and therefore seeks for dismissal of the appeals. He has also placed reliance on the following judgments.
1. Shanti Budhiya Vesta Pate and others v.
Nirmala Jayaprakash Tiwari and others reported in (2010) Supreme Court Cases 104. 30
2. Seth Loon Karan Sethiya v. Ivan E John and others reported in AIR 1969 SC 73
3. Suraj Lamp and industries Pvt. Ltd., v. State of Haryana in LAWS (SC) 2011 10 2
4. Sunder and another v. Addl. Collector (Land Acquisition) and others reported 2012 SCC Online 2279
14. Heard the learned counsel for the appellants and the learned counsel appearing for respondents. Perused the concurrent judgment and decrees of the courts below and also I have bestowed my anxious consideration to the detail reasons given by the Courts below while recording a finding that the present suits filed by the plaintiffs are not maintainable. I have also given my anxious consideration to the judgment rendered by the Court below in Civil Misc. No.67/2010. The judgment rendered by the Division Bench of this Court in MFA No. 22850/2013 arises out of proceedings in Civil Misc. No.67/2010 wherein the Trial Court on examining rival claims has come to the conclusion that the ancestor of the appellant-plaintiffs namely 31 M.R.Naik has executed irrevocable general power of attorney coupled with interest. On perusal of the judgment of Division Bench of this Court, this Court would find that the appellants-plaintiffs have not at all taken any stand in regard to nature of the property. There are absolutely no contentions raised by the appellants-plaintiffs that the suit schedule property was a joint family ancestral property. The tenor of the pleadings and the manner in which the contest is made by the appellant-plaintiffs, an inference can be drawn that all along the appellants-plaintiffs contended that on account of death of M.R.Naik, the GPA in favour of respondent No.1 stands terminated. What can be gathered from these proceedings is that the appellants- plaintiffs are virtually claiming under M.R.Naik and at no point of time asserted independent rights than that of M.R.Naik. On a query to the counsel appearing for appellants-plaintiffs as to whether the appeal memo filed in miscellaneous first appeal is a part of the record, the counsel is fair enough in submitting to this Court that the 32 appeal memo filed in miscellaneous first appeal is not a part of the records. Even in Civil Misc.No.97/2010, the records does not contain the objections, if any, filed by the appellants-plaintiffs. At this juncture, counsel appearing for the appellants-plaintiffs has fairly conceded that the defence that it is a joint family property was not at all taken while tendering objections to the petition filed in Civil Misc. No.67/2010. If at the earliest point of time, the appellants-plaintiffs have not raised objection and have not asserted as to what is the nature of the suit schedule property, which was dealt by M.R.Naik by executing irrevocable GPA coupled with interest, the appellants- plaintiffs, at this stage, cannot be permitted to retract and take contrary stand and if such a stand is taken, the same is impermissible and cannot be entertained, as it is to be taken as an after thought. The judgment rendered by the Division Bench would clearly reveal that the sale consideration was not only received by M.R.Naik but by one of his son, who is appellant before this Court under the 33 instruction of M.R.Naik under valid receipts. The clinching evidence which is part of record it is also looked, it is forthcoming that the Division Bench has also recorded a finding that M.R.Naik in fact was compelled to sell this property to redeem the mortgage. It has also come on record that around 67 residential plots were formed and 59 plots have been sold to third parties under registered sale deeds. The Division Bench of this Court has further recorded a finding that the entire land was developed at the costs of Rs.20,00,000/-. It would be useful to cull out paragraphs 19 to 21 of the judgment rendered by the Division Bench of this Court in MFA No.22850/2013, which reads as follows:
"19. The petitioner-P.B. Laxmeshwar has to make payment of Rs.1,50,000/- to the Canara Bank towards the loan outstanding by M.R. Naik, in addition, he has to pay Rs.75,000/- if he disposes off the land of M.R. Naik as it is, as an agricultural land and if he converts the said land into non- agricultural one and forms plots and sell them, then he has to pay Rs.1,50,000/- instead of Rs.75,000/-34
in addition to the negotiated amount of Rs.1,50,000/- to the Bank. In addition, P.B.
Laxmeshwar has agreed to give one plot to M.R. Naik or his nominee measuring 40' x 60' free of cost. Under Clause 5 of Ex.P.22, it is mentioned that P.B.Laxmeshwar once makes payment as above, he is free to deal with the land as per his will and wish and M.R. Naik will have no claim over the property or the amount. The said agreement dated 27.12.1984 has been referred in Ex.P-23-General Power of Attorney in clause 7. Ex.P-23, irrevocable power of attorney has been executed in favour of P.B. Laxmeshwar by M.R. Naik to deal with the land only after the entire amount is paid to the bank as per the agreement and after obtaining clearance certificate from the bank. Therefore, on conjoint reading of Exs.P-22 and 23, it is clear that an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose for securing some benefit to the donee of the authority, the authority is irrevocable on the ground that it is coupled with an interest.
20. Where agency is created for valuable consideration, an authority is given to effectuate the security or to secure the interest of the agent, 35 the authority cannot be revoked. Section 202 of the Contract Act reads thus:
" S. 202. Termination of agency, where agent has an interest in subject-matter.- Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
illustrations
(a) A gives authority to B to sell A's land, and to pay himself out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death."
As per the said provision, if the agency is coupled with interest, it is irrevocable. From the reading of the illustration (a), it is clear, that if the authority is coupled with interest, principal cannot revoke the authority nor it can be terminated by insanity or death. Therefore, even after the death of the principal, the agent can act on the basis of the said authority. Therefore, the General Power of Attorney executed in favour of P.B. Laxmeshwar dated 27.12.1984 as per Ex.P-23 read along with Ex.P-22 is irrevocable power of attorney as it is coupled with interest.
36
21. The subject matter of Exs.P-22 and 23, Sy. No.3 of Gokul village has been acquired for the purpose of Air Port. In the meantime, P.B. Lakshmeshawar had converted the said land into non-agricultural land and formed layout and sites and sold some of the sites except site Nos.1, 6, 7, 8, 13, 15, 24, 40 and 42. The SLAO assessed the compensation in a sum of Rs.1,23,02,274/- and deposited the said amount with the Reference Court while making reference under Section 31 of the Land Acquisition Act. The said P.B. Laxmeshwar is having right to receive the said compensation in respect of the remaining plots except a plot measuring 40' x 60' which he has agreed to give to Sri. M.R. Naik or his nominee as per clause 2 of the agreement at Ex.P-22. Therefore, the appellants, who are the legal heirs of M.R. Naik are entitled to proportionate compensation along with accrued interest in respect of the plot measuring 40' x 60' and the said P.B. Laxmeshwar is entitled for the remaining amount of compensation along with accrued interest. What is the exact value of the site measuring 40' x 60' cannot be ascertained on the basis of the material available on record. Therefore, the matter requires to be remanded for the said purpose to the Reference Court so that the Reference Court can ascertain its value after giving 37 the parties an opportunity to lead their evidence in this regard."
15. If these relevant paragraphs are examined, the Division Bench of this Court having examined Ex.P23 has come to the conclusion that respondent No.1 was authorized by M.R.Naik to deal with the land. The Division Bench of this Court on conjoint reading of Ex.P22 and 23 has held that the agreement is entered into after receipt of sufficient consideration and consequently the authority is given for the purpose of securing same benefit to the donee of the authority and therefore in an unequivocal term the Division Bench of this Court held that the authority given under GPA to defendant No.1 is irrevocable as it is coupled with interest. Paragraph 21 would further remove all doubts as to whether appellants-plaintiffs can be permitted to continue with this litigation. At paragraph 21, the Division Bench of this court has held that the legal heirs of M.R.Naik are only entitled to proportionate compensation in respect of plot measuring 60 x 40 fts and 38 the respondent No.1 is entitled for the remaining amount of compensation along with accrued interest. These findings would nail the entire lis between the parties and would clinch the issue. Therefore, the judgment of the Division Bench of this Court would virtually put rest to the lis between the parties.
16. Probably the appellants/plaintiffs contention that on account of death of M.R.Naik, the agency stands terminated is based on assumption that the present GPA executed by M.R.Naik falls within the domain of Section 201 of Contract Act, which contemplates that an agency terminates, inter alia, by death of principal or agent. But this contention cannot be acceded, as admittedly, the present GPA executed by the ancestor of the appellants herein is coupled with interest and therefore, it is irrevocable. Section 202 of Contract Act lays down rule that an authority coupled with interest is irrevocable and therefore, the Division Bench of this court held that 39 defendant No.1 has interest in the suit schedule property. Therefore, it is irrevocable during the subsistence of such security or interest. If principal could not have terminated GPA during his lifetime, question of termination of agency only on account of death of principal is also not permissible as GPA which is coupled with interest falls under Section 202 of Contract Act and not under Section 201 of Contract Act. Therefore, death in itself would not terminate the irrevocable GPA.
17. Though judgment rendered in MFA No. 22850/2013 is a subsequent event, it would further strengthen the orders under challenge and therefore, I am of the view that there is absolutely no scope for any interference and the judgment rendered by the Division Bench of this Court has attained finality. As it stands ratified by the order passed by the Hon'ble Apex Court, I am of the firm view that no substantial question of law 40 arises in the present batch of second appeals, which are tagged together.
18. For the foregoing reasons, I proceed to pass the following:
ORDER No substantial question of law arises in these second appeals. Accordingly, appeals are dismissed.
In view of disposal of the appeals, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
Sd/-
JUDGE MBS/YAN/-