IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL FIRST APPEAL No. 690 of 2009 BETWEEN:-

ARUN KUMAR NIGAM S/O LATE SURAJ PRASAD NIGAM, AGED ABOUT 77 YEARS, OCCUPATION: ADVOCATE R/O 2245/1, WRIGHT TOWN, JABALPUR (MADHYA PRADESH)

.....APPELLANT (BY SHRI K.S JHA - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH COLLECTOR, JABALPUR (M.P)

2. PUBLIC WORK DEPTT., THROUGH SUPREINTENDENT ENGINEER, NARMADA CIRCLE, JABALPUR (M.P)

3. SMT. CHANDRAMUKHI (DELETED)

4. SMT. INDU DEVI (DELETED)

5. SMT. SOMDEVI (DELETED)

6. SMT.SHASHIDEVI (DELETED)

7. SMT.SUMAN (DELETED)

8(A) SMT.UMA DEVI (DELETED)

8(B) RAMAKANT NIGAM (DELETED)

8(C). SHRIKANT NIGAM (DELETED)

8(D). DIVYAKANT NIGAM, AGED ABOUT 41 YEARS, S/O L.P NIGAM

8(E). KAMALKANT, AGED ABOUT 36 YEARS, S/O L.P NIGAM

8(F). VISHWAKANT, AGED ABOUT 38 YEARS, S/O L.P NIGAM

8(G). VINAYKANT (DELETED)

8(H). ASHWANIKANT S/O L.P.NIGAM, AGED ABOUT 32 YEARS, 8(I). ANJANIKANT S/O L.P.NIGAM, AGED ABOUT 30 YEARS, 8(J). DR.PURNIMA NIGAM (DELETED)

8(K). SMT. UTTAMA NIGAM D/O L.P. NIGAM, AGED ABOUT 40 YEARS

8(L). SMT.PRATIMA (DELETED)

RESPONDENTS NO.8(A) TO 8(L) RESIDENT OF MARHATAL 211, JABALPUR)

....RESPONDENTS (SHRI SANDEEP DUBEY – PANEL LAWYER FOR RESPONDENT 1/ STATE AND SHRI INDRA KUMAR PATEL – ADVOCATE FOR RESPONDENT 11 - 12)

__________________________________________________________

Reserved on : 20.03.2024 Pronounced on : 08.04.2024

J U D G M E N T

This first appeal has been preferred by the appellant-Arun Kumar Nigam against the final award dtd. 15.09.2009 passed by 2^nd Additional District Judge, Jabalpur in Land Acquisition MJC No. 43/2004 whereby compensation of Rs. 76,118-50 ps. along with interest @ 6% p.a. has been awarded holding all the legal heirs of Suraj Prasad Nigam to be entitled for the compensation.

2. Instant appeal was admitted for final hearing on 30.11.2009 and is listed today for orders but looking to the date of institution of original MJC (which is 30.01.1963) and with the consent of counsel for the parties, is heard finally.

3. Although impugned award passed by Court below has been challenged in its entirety but main thrust is about findings recorded by Court below in respect of execution and proof of Will dtd. 18.11.1964 (Ex.LR-1) and competency of Suraj Prasad Nigam to execute the said Will as well as in respect of exclusive ownership of Suraj Prasad Nigam over the Tank in question i.e. in respect of issue no. 5A, 8, 12 and 13.

4. As per learned Counsel for the appellant, relevant facts in short are as under :-

-Disputed Tank was settled by the State Government exclusively in favour of Suraj Prasad Nigam (in short ‘S.P. Nigam’) under Section 5 of the M.P. Abolition Of Proprietary Rights, Act 1950, which has been so recorded in the exclusive name of Suraj Prasad Nigam as bhumiswami in Jamabandi/ Khatauni of the year 1958-59.

-Notification under Section 4 of the Land Acquisition Act, 1894 (in short ‘the Act of 1894’) was published on 09.05.1960 and on 14.06.1960 notification under Section 6 of the Act of 1894 was published. Later on 27.03.1962 award was passed by Land Acquisition Officer (in short ‘LAO’) in respect of acquiring the land of S.P. Nigam.

-On 02.08.1962 an application for reference under Section 18 read with Section 30 of the Act of 1894 was filed by Suraj Prasad Nigam to the Collector. On 21.01.1963 case was referred by LAO to District Judge, Jabalpur. On 30.01.1963 reference case was registered at the instance of Suraj Prasad Nigam.

-On 18.11.1964 a registered Will was executed by S.P. Nigam in favour of Smt. Kamlesh Nigam W/o Arun Kumar Nigam (in short ‘A.K.Nigam’) in respect of his properties except a House situated at Village Kodia, which was bequeathed to Laxmi Prasad Nigam (in short ‘L.P. Nigam’).

-On 28.11.1966 Suraj Prasad Nigam had died.

-On 14.11.1967 an application under Order 1 Rule 10 read with Order 22 Rule 1 CPC was filed by Smt. Kamlesh Nigam for her impleadment on the basis of Will dated 18.11.1964 executed by Late Suraj Prasad Nigam i