Bangalore District Court
Smt. Jaitoom Bi vs Special Land Acquisition Officer on 13 January, 2023
1
L.A.C. No.96/1995
KABC010004511995
IN THE COURT OF THE II ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H. No.17)
Dated this the 13 th day of January, 2023.
PRESENT:
Smt. SHEILA B.M., M.Com.,LLM.
II Addl. City Civil and Sessions Judge, Bangalore.
: LAND ACQUISITION CASE NO.96/1995 :
CLAIMANTS: 1. Smt. Jaitoom Bi
Since dead by her LRs application
dismissed for non prosecution on
10/01/2023
2. Sri. Mohammed Afsar
S/o Late Mohammed Rafiq
R/a No.41,
Swagath Main Road
Tilaknagar, Jayanagar,
Bengaluru-29.
3. Sri. Shaik Anwar
Since dead by his LR's
3(a). Smt. Afraz Jan
3(b). Sri. Nafeez Pasha
3(c). Sri. Aneez Pasha
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L.A.C. No.96/1995
All are residing at No.220,
Islampura,
Jamya Maszid Main Road, HAL
Bangalore-560 017.
4(i) Smt. Rakhiya Bi
4(ii). Shaik Babu
4(iii). Shaik Babujan
4(iv). Shaik Mehaboob
4(v). Shaik Ibrahim
All are residing at: Muslim Mohalla,
Janatha Colony, Sulibele Hobli,
Hosakote Taluk,
Bengaluru Rural District,
Bengaluru 562129.
5. Smt. Hussain Bi
Since dead by LR's
5(a). Smt. Hasina
5(b). Sri. Shaik Amanulla
5(c). Sri. Shaik Jonny
5(d). Maji
All are Residing at No.381,
Aditya Nagar, Chikkabettalli,
Bengaluru North Taluk,
Bengaluru- 560097.
(C1 - Dead)
(C2 by N.M.R, Advocate)
(C-3 to 5 by C.V.S, Advocate)
/vs/
RESPONDENTS:- 1. Special Land Acquisition Officer, B.D.A,
Bengaluru.
2. The Commissioner, B.D.A., Bengaluru -
Respondents
(By. M.M.P, Advocate)
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L.A.C. No.96/1995
: JUDGMENT :
The respondent/SLAO, Bangalore Development Authority, Bangalore has sent this reference under Sections 30 and 31(2) of L.A. Act, 1894 (hereinafter referred as 'L.A. Act' for short) for apportionment of compensation amount.
.2. The brief facts of the case is that the land bearing Sy.No. 85/4 measuring 38 guntas of Aalahally, Uttarahalli Hobli, Bengaluru South Taluk has been acquired for the purpose of formation J.P.Nagar 9th stage. Preliminary notification was issued on 05.01.1989. The final notification has been published in the Gazette on 27.07.1991. The L.A.O. has passed award on 02-08-1993. LAO has fixed the compensation of Rs.1,58,008/- as owner has not claimed the compensation amount, LAO has deposited the amount before the court and has sent reference to the court. The amount of Rs.1,58,008/- has been kept in F.D. in SBI Bank, Cauvery Bhavan branch, Bengaluru.
.3. After receipt of reference, this Court has registered the case and issued notice to both parties. 4
L.A.C. No.96/1995 .4. In spite of taking paper publication none of the claimants had appeared before the court, so the reference was closed on 11.04.2001. On 01-12-2010, impleading application has been filed by claimants 3 to 5. On 25-01-2011 claimant Nos.2 filed application under Order 1 Rule 10 and both applications have been allowed on 01-04-2013. Thereafter they have filed their claim statement.
.5. The claimant No.2 has stated that the land in Sy.No.85/4 measuring 38 guntas situated at Alahally village originally belonged to Jaitoom Bi wife of late Chikka Abdhul Gaffar. She had acquired the property under registered sale deed 03-06-1972. After purchase Katha has been transferred to her name.
.6. It is stated that during the life time late Jaitoom Bi had offered to sell the schedule property in his favour and had accepted the offer and agreed to purchase the schedule property for a consideration of Rs.7,02,000/- which included sale consideration in respect of land in Sy.No.85/3 and 85/4 of the same village. It is stated that, late Smt.Jaitoom Bi had gifted the schedule property in his favour and also executed 5 L.A.C. No.96/1995 GPA dated 04-11-1991 in his favour. Ever since the date of acquisition he is in a physical possession and enjoyment of the schedule property as lawful owner.
.7. The legal heirs of first claimant have no manner of right, title or interest over the said land. Hence, the claim of legal heirs of late Smt.Jaitoom Bi is illegal and baseless.
.8. The property was sold in the year 1986 under sale agreement in favour of Syed Ameer Jhan his father and subsequent to the demise of his father the vendor Smt.Jaitoom Bi had executed the registered GPA after receiving the full sale consideration from him. Since the execution of the sale deed, in pursuance to the execution of sale agreement and GPA could not be done in view of Government restriction on registration, to convey the right, title and interest over the land, the owner had executed Hibba as per Mohammadan Law. Hence, this claimant has become the absolute owner. He has requested the court to release the compensation amount in his favour.
.9. Claimants 3 to 5 have filed claim statement stating that they are the legal heirs of Fathima Bi. They had 6 L.A.C. No.96/1995 filed P & Sc No.15008 of 2006 and same has been transferred and renumbered as P & SC No. 200/2009. After recording evidence, the learned Civil Judge Mayohall CCH21 had expressed that P & SC No.15008/06 can be considered by Land Acquisition Court.
.10. Sy.No.85/4 of Avalahally (which should be Alahally) village, measuring 1 acre 3 guntas was left by Fathima Bi who died on 10-11-1975 and claimants are the sons of brother of Fathima Bi. They are the legal heirs of Fathima Bi. It is stated that, BDA had awarded compensation amount of Rs.1,58,008/- and the said amount is in deposit in the SBI. The said amount could not be disbursed as Fathima Bi left without any issues and her husband had also died. The BDA had issued notice in respect of acquisition of 38 guntas in respect of survey no.85/4. The claimants are entitled to the award amount deposited by the BDA being the Legal representatives. Hence, has requested the court to grant 1/3rd share to each branch.
.11. The respondent has filed objections stating that the Khatedar and Anubhavadar name is Jaitoom Bi W/o. 7
L.A.C. No.96/1995 Abdhul Gaffar. The landlord has not filed any claim statement. As per the revenue records and award passed by the BDA, Jaitoom Bi and Abdhul Gaffar are the absolute owners of the suit schedule property. The award amount has been deposited in the City Civil on 23-06-1995 under Sec.30 and 31(2) of Land Acquisition Act. It is stated that the Honb'le court should verify the Legal representatives of Khatedar and Anubhavadar of the suit schedule property and then release the compensation amount to genuine person.
.12. The claimant No.2 has been examined as PW.1. During cross-examination the advocate for LRs of claimants 3 to 5 filed an application I.A.No.12 under Sec.33(1) of Karnataka Stamp Act, 1957 r/w sec.151 of CPC to impound Ex.P12 and Ex.P13. I.A.No.12 has been allowed. Ex.P12 and P13 has been impounded and office was directed to keep the certified copy of Ex.P12 and Ex.P13 in the file and send the original of Ex.P12 and Ex.P13 to Dy. Commissioner to deal with the same under Sec.39 of the Act. The claimant No.2 has not produced the receipt for having paid the duty and penalty. The case was posted for further cross-examination of PW.1 8 L.A.C. No.96/1995 and he did not tender for further cross-examination. So his evidence came to be discarded.
13. Legal representative of Claimant No.4 Sheik Babu has been examined as PW.2. Ex.P14 to Ex.P20 are got marked.
.14. Heard the arguments.
.15. The following points that would arise for my consideration are:
(1) Which of the claimants are entitled to receive the compensation amount disputed in this case? (2) What order or award?
.16. My findings on the above points are:
Point No.1 : As per discussion Point No.2 : As per final order, for the following:
REASONS .17. POINT No.1 : Sheik Babu Legal representative of claimant No.4 has been examined as PW.2. He has stated that he is giving evidence on his behalf as well as on behalf of claimants No.3 to 5. It is stated that Legal heirs of Fathima Bi had filed P & SC.No.15008/06 and the same has been 9 L.A.C. No.96/1995 transferred and renumbered as P & Sc. No.200/09 and the same is connected to this case. It is stated that the learned City Civil Judge, Mayo hall after recording evidence expressed that P & Sc.No. 15008/06 can be considered by the Land Acquisition Court and accordingly, the same was represented before this court. PW.2 has stated that they are the Legal representatives of property situated in respect of 85/4 situated at Alahally, measuring 1 acre 3 guntas left behind by Fathima Bi. The documents produced by them reflects the ownership of Fathima Bi. The claimants have produced the death certificate of Fathima Bi as per Ex.P14. From the said document, it is seen that Fathima Bi had died on 10-11-1975. Ex.P15 in Genealogical tree pertaining to the family of Sheik Kazim Sab, from the document it is seen that Fathima Bi is the daughter of Khazim Sab and he had died without issues. The claimants No.3 to 5 are the sons of brothers of Fathima Bi. Ex.P18 is RTC extract in respect of Sy.No.85/4 measuring 38 guntas for the year 1997 to 2001. In column No.9 the name of BDA has been entered. Ex.P19 is the RTC extract for the year 1994 to 1997. In column 10 L.A.C. No.96/1995 No.19 the name of Jaitoom Bi wife of Abdhul Gaffar has been entered and the name of BDA has been entered. Ex.P20 is an order in P & Sc No. 200/2009.
.18. The claimants 3 to 5 have filed the petition under Sec.372 of the Indian Succession Act and have sought for Succession certificate. By order dated 7th September 2010 this court has allowed the petition and has held that petitioners No.1 , 3 and 4 are entitled for all the assets and liabilities of Fathima Bi referred to, in the Schedule to the petition. For the reasons best known to the claimants No.3 to 5, the claimants have not produced the succession certificate.
.19. PW.2 has stated that out of 1 acre, 38 guntas has been acquired by the BDA in the year 1990-1991 and 1992. The said amount could not be disbursed as Fathima Bi had died without any issues and her husband had also expired. Ex.P17 is the notice issued by the BDA under Sec.12(2) calling upon the owner to produce title document. The claimants are only the Legal representatives and are entitled for the amount so deposited. It is also stated that, the BDA has issued notice in respect of the acquisition. 11
L.A.C. No.96/1995 .20. During cross-examination, PW.2 has stated that the Fathima Bi is his grandfather's sister. He admits that in P & SC case claimant No.2 has not been made as a party. It is suggested that survey number 85/4 was sold by Fathima Bi to Jaitoom Bi as per Ex.P2. PW.2 has denied the said suggestion. He admits to have seen the Ex.P2 document and he has not questioned the said document. He denies that in Ex.P17 and P19, in the acquisition proceedings in respect of survey No.85/4 the name of Fathima Bi has not been mentioned and the name Jaitoom Bi is mentioned. On perusal of Ex.P19, it is seen that name of Jaitoom Bi is mentioned and the name of Fathima Bi is not mentioned. The claimants have not produced the encumbrance certificate to substantiate their contention that, Fathima Bi continues to be the owner of the property till the date of acquisition. The claimant No.2 has produced Encumbrance Certificate which discloses the sale made by Fathima Bi in favour of Jaitoom Bi on 03-06-1972 in respect of survey number 85/4. Ex.P2 is the registered sale deed executed by Fathima Bi and her sister Mehabooba Bi in favour of Jaitoom Bi on 03-06-1972. The 12 L.A.C. No.96/1995 said sale deed has not been questioned by the legal heirs of Fathima Bi. As such, legal heirs of Fathima Bi did not acquire any title in respect of survey No.85/4. The claimants 3 to 5 though have contended that they have obtained succession certificate in respect of survey number 85/4 have not produced any certificate to substantiate their contention. So claimants No.3 to 5 have failed to prove that they are entitled to receive the compensation in respect of survey No.85/4.
.21. Claimant No.2 has led evidence and thereafter did not tender for further cross-examination. His evidence has been discarded. So, his claim is also dismissed. Legal representative of claimant No.1 though had filed application to bring them on record. Their application has been dismissed for non prosecution. Hence, his claim is rejected. For the said reasons, I answer the Point No.1 in the negative.
.22. POINT NO.2: In view of my finding on point No.1, I proceed to pass the following:
ORDER
The reference made by the
respondent/SLAO under Sections 30 and 31(2) 13 L.A.C. No.96/1995 of the Land Acquisition Act, 1894 in respect of Claimant No.2 and Lrs of claimant Nos.3 to 5 is dismissed.
The claim of Lrs of Claimant No.1 is rejected.
Office is directed to continue the F.D until further orders.
Draw award accordingly.
(Dictated to the Judgment Writer, transcribed by her, revised by me and after corrections, pronounced in open Court on this the 13th day of January, 2023.) (SHEILA B.M.) II Addl. City Civil and Sessions Judge, & Spl. Judge, Bangalore ANNEXURE
1. WITNESSES EXAMINED FOR CLAIMANTS:
PW.1 Syed Ismail PW.2 Shaik Babu
2. DOCUMENTS MARKED FOR THE CLAIMANTS:
Ex.P.1 General Power of Attorney Ex.P.2 Sale deed dated 03/06/1972 Ex.P.3 Encumbrance from 01/04/2004 to 07/12/2004 Ex.P.4 Encumbrance from 01/04/1971 to 31/05/1989 Ex.P.5 to Ex.P.8 RTCs 14 L.A.C. No.96/1995 Ex.P.9 Record of Rights Ex.P.10 Index of land Ex.P.11 General Power of Attorney Ex.P.12 Agreement of sale dated 04/01/1986 Ex.P.13 Agreement of sale dated 18/04/1990 Ex.P.14 Death Certificate of Fathima B. Ex.P.15 G-Tree Ex.P.16 Pass book front page Ex.P.17 Notice U/sec 9 & 10 of L.A. Act Ex.P.18 & Ex.P.19 RTC Ex.P.20 Order in P & Sc 200/2009.
3. WITNESSES EXAMINED FOR THE RESPONDENTS:
Nil
4.DOCUMENTS MARKED FOR THE RESPONDENTS:
Nil (SHEILA B.M.), II Addl. City Civil & Sessions Judge, & Spl. Judge Bangalore.