JUDGMENT

This appeal is against the Order Dated 13.9.2012 passed by the Learned Civil Judge (Senior Division), Jaipur in I.A. No.160 of 2011 arising out of C.S. No.68 of 2011.

2. The Appellant is the Plaintiff-Petitioner in the suit for partition in which, he claims 1/6th share in the suit schedule property. It is claimed that during pendency of the suit, the Appellant came to know about display of a notice for compulsory acquisition of AC.0.110 of land, out of plot No.415 under Khata No. 172 of Mouza Patharapara showing R-1 (D-1 in the suit) as the sole owner. This plot forms part of the plaint schedule land in which Appellant has got 1/6th share. Since R-1 tried to grab the entire compensation amount, the Appellant filed the interim application with prayer to restrain R-2 the Collector-cum-Competent Authority Land Acquisition Officer, National High Way, Cell, Jaipur from disbursing the entire compensation amount to R-1.

3. It is not in dispute that the Plaintiff & 0-1 to 0-5 are the sons & daughter of late Judhistir Samal, who has left behind the suit schedule properties. R-1 filed objection taking the stand that after death of the father, Judhistir, there was severance of joint status &, in the year 1989, there was an amicable partition in which suit lot No.3 property fell to the share of R-1 of which the plot under acquisition forms a part. Therefore, it is claimed, R-1 alone is entitled to get the entire compensation amount. Learned Trial Court has passed the .impugned order refusing to restrain• disbursement of the compensation amount but directing Opp. Party R-1 to furnish an undertaking that in the event partition of the suit property is allowed then R-1 shall refund the Petitioner's share in the amount of compensation with 6% interest. .

4. Being dissatisfied, the Appellant Petitioner has challenged the impugned order contending that the same suffers from non-application of judicial mind, that due weightage to the materials on record has not been given, & that this being a suit for partition & the land under acquisition being a part of the joint family properties, interest of all the co-sharers would be best protected, if the compensation amount is not disbursed to anyone of the co-sharers.

5. Respondent No.1, in his objection, has contended, inter alia, that the property under acquisition having vested absolutely in the Government, suit for partition in respect of that property is no more maintainable & the Land Acquisition Act, 1894 being a special Act having provisions like Section 30 of the said Act to deal with the matters on apportionment of compensation, a suit for partition in respect of the compensation amount is not maintainable.

6. The impugned order reflects that the landed properties, which are subject-matter of the suit for partition, stand recorded under several khatas showing separate recording of the suit properties in the name of the parties. The fact of amicable partition has been admitted by the co-sharers including the Appellant in Rent Case No.3135/167. There are also some sale transactions effected by some of the parties to the suit admitting the fact of amicable partition. The land which is under acquisition stands recorded in the name of R-1. The Learned Court below is of the opinion that recitals in the sale deeds admitting amicable partition have been made to facilitate the respective parties to sell specific portion of the suit property & therefore such recitals cannot be conclusive proof of prior partition. So far the entries made in the rent case regarding prior partition •is concerned, the Court below is of the view that at this stage it cannot be said on the basis of such entries that there has been a prior partition, more so when all RORs taken together indicate that there has been inequitable distribution of property. With, such observation, the Learned lower Court has held that there is a strong prima facie case made out by the Plaintiff Appellant. Regarding balance of convenience, the Lea