SHIVMAL Vs. RAMCHANDRA BAPU

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The applicants brought a suit in the Small Cause Court, Darwha, under proviso 3 to Section 31(2), Land Acquisition Act, for recovery of Rs. 100 that had been wrongly paid according to them to the defendant non-applicant. Certain land was acquired for construction of the Darwha-Pusad Railway and admittedly a part of field No. 74, which belongs to the non-applicant, was acquired during the acquisition proceedings. There are ten mango trees in that field, and the applicants alleged that those trees were sold to their father Bholalal on 28th March 1885 for Rs. 200. During the acquisition proceedings two of these trees, which were standing on the land acquired, were also taken possession of and compensation amounting to Rs. 200 was paid, of which Rs. 100 was paid to the applicants and Rs. 100 to the non-applicant. The applicants however contended that the whole sum of Rs. 200 should have been paid to them and nothing should be paid to the non-applicant. They however accepted the sum of Rs. 100 and admittedly did not question the award made by the Collector, nor did they apply that a reference should be made under Section 18(1) of the Act, but instead of that they filed their suit in the Small Cause Court and the Judge of that Court after fully considering the matter has held that the suit could not lie and therefore dismissed it without going into the merits.

(2.) THE learned Counsel for the applicants has contended that that decision of the Judge of the Small Cause Court is wrong for two reasons: first, that no notice was served upon his clients as required by Section 9(3) of the Act, and, secondly, that the view of law, taken by the lower Court is incorrect and that a person aggrieved by the apportionment of compensation may make an application for reference under Section 18 of the Act, or may bring a suit in the civil Court and that his suit in the civil Court is not barred if he does not make a reference under Section 18 of the Act. I am of opinion that both these contentions put forward by the learned Counsel are incorrect.

(3.) IT may be remarked that the notice was not produced and from that a presumption may be drawn that, if it had been produced, it would go against the applicants' contention. Further I am doubtful whether the fact that the applicants did or did not receive a notice under Section 9 (3) of the Act would invalidate the proceedings, because admittedly they did receive a notice for the apportionment of the compensation and they appeared in answer to that notice. That notice would appear to have been sent under Section 12(2) of the Act. According to Hurmutjan Bibi v. Padma Lochun Das (1886) 12 Cal 33 the decision in which was passed whilst the old Act of 1870 was in force, a separate notice of the apportionment had to be given under Section 39 of that Act, Act 10 of 1870, and any person not served with such a notice was not bound by the proceedings and could bring a civil suit under the proviso to Section 40 of that Act, which corresponds to the third proviso to Section 31(2) of the present Act. In the present case, admittedly the applicants did receive a notice of the apportionment of the money and therefore I would hold that they are bound by the proceedings and cannot bring a suit under the third proviso to Section 31(2) of the present Act.