1. Heard Mr D. Pangam, who appears along with Mr N. Vernekar for the Petitioner and Mr R. Menezes for the Respondents.

2. The Petitioner challenges the judgment and order dated 15.04.2019 made by the executing Court in Execution Application No.286/2016 for the execution of the judgment and award dated 06.12.2011 in Land Acquisition No.4/1988.

3. Mr Pangam, learned counsel for the Petitioner, submits that the executing Court has travelled beyond the scope of judgment and award dated 06.12.2011. He pointed out that before the reference Court, only the Respondents were parties. There was no reference to Fr. Andren Caietan Lobo or Maria Efiginia Lobo. Still, the executing Court has now granted the benefit of enhancement to the said parties. Mr Pangam submitted that the impugned judgment and order to the extent it travels beyond what was held and awarded in the judgment and award dated 06.12.2011, must be set aside because the same is in excess of jurisdiction vested in the executing Court.

4. Mr Pangam submitted that the executing Court incorrectly held that it was “undisputed” that Fr. Andren Caietan Lobo had died before the application for enhancement was made under Section 18 of the Land Acquisition Act, 1894 (the said Act). He submitted that the Petitioner never accepted this position, and further, the Respondents adduced no evidence regards the date of Fr. Andren Caietan Lobo's demise. He submitted that this is an error which goes to the root of the matter because if Fr. Andren Caietan Lobo expired after the reference application dated 28.04.1987 was made, then, clearly, the said Fr. Andren Caietan Lobo had waived his right to seek enhanced compensation. Mr Pangam submits that since the executing Court has not appreciated this aspect, the impugned judgment and order warrants interference.

5. Mr Pangam submitted that there was no evidence whatsoever to link the Respondents with Maria Efiginia Lobo. He, therefore, submits that the executing Court exceeded jurisdiction in concluding that the said Maria Efiginia Lobo was one of the co-owners or that the Respondents were her legal heirs. Mr Pangam submits that this is also a good enough reason to set aside the impugned judgment and award.

6. Mr Pangam submitted that the executing Court erred in relying upon A. Viswanatha Pillai and others Vs The Special Tahsildar for Land Acquisition No.IV and others which was distinguishable from facts. He submitted that in A. Viswanatha Pillai (supra), the issue of coownership was raised in appeal, and the award was ultimately modified. He submitted that in the present case, the issue of co-ownership was sought to be raised in execution proceedings, which was impermissible as held by the Hon'ble Supreme Court in Ambey Devi Vs State of Bihar and others AIR 1996 SC 1513 [LQ/SC/1996/555] , Ramesh Singh Vs State of Haryana and others (1996) 4 SCC 469 [LQ/SC/1996/114] and Chintaman s/o Barbajidupare Vs Vithabai w/o Deoraojiwahane and others (2009) 4 Mah LJ 313.

7. Mr Pangam submitted that even if it is assumed that there was a conflict between the decisions of the co-equal benches of the Hon'ble Supreme Court in A. Viswanatha Pillai (supra) on one hand and Ambey Devi (supra) and Ramesh Singh (supra) on the other, it is not as if the earliest decision was binding, but this Court had the option to rely upon the decisions which suited the factual situation the best or decision which according to the Court expressed the position of law better. He relied on Atma Ram and others Vs State of Punjab and others AIR1959 SC 519 and Kamleshkumar Ishwardas Patel Vs Union of India and others 1994 Mh. L.J. 1669 (FB) in support of this proposition.

8. Based on the above grounds, Mr Pangam submitted that the impugned order be set aside.

9. Mr Menezes defended the impugned judgment and order based on the reasoning reflected therein. He pointed out that Fr. Andren Caietan Lobo expired on 29.12.1985, i.e. before the remaining co-owners applied for reference on 28.04.1987. He produced a death certificate of Fr. Andren Caietan Lobo on record. He also pointed out that Fr. Andren Caietan Lobo had left behind a Will, in terms whereof the Respondents were his legal heirs. He pointed out that even irrespective of Will, the Respondents were legal heirs of the late Fr. Andren Caietan Lobo.

10. Mr Menezes pointed out that there was never any dispute raised about the Respondents being legal representatives of Maria Efiginia Lobo. He pointed out that no such challenge was raised during the crossexamination or otherwise before the reference Court or during the execution proceedings. In any case, he produced Maria Efiginia Lobo's Will, in terms whereof the Respondents were her legal heirs. He pointed out that even otherwise, the Respondents were legal heirs of Maria Efiginia Lobo, one of the co-owner of the acquired property.

11. Mr Menezes pointed out that the reference application dated 28.04.1987 was duly signed by Maria Efiginia Lobo. He submitted that merely because the Land Acquisition Officer chose not to specifically include the said Maria Efiginia Lobo's name in the reference to the reference Court, the said Maria Efiginia Lobo and, after her, her legal heirs cannot be denied the benefit of enhanced compensation.

12. Mr Menezes submitted that the Respondent's case was entirely supported by A. Viswanatha Pillai (supra) and Jalandhar Improvement Trust Vs State of Punjab and others (2003) 1 SCC 526 [LQ/SC/2002/1251] . He pointed out that these two decisions not only expressed the legal position better but had facts comparable to the facts in the present case.

13. Mr Menezes relied on Fati Laximan Raut Vs Special Land Acquisition Officer 2017(4) All MR 729 (DB) in which the decisions of the Hon'ble Supreme Court in A. Viswanatha Pillai (supra) and Jalandhar Improvement Trust (supra) were followed even though the decision in Ambey Devi (supra) was cited before the Division Bench.

14. Mr Menezes also relied on Collector Land Acquisition, National Hydroelectric Power Corporation Ltd., Vs Pune Ram 2018 0 Supreme (HP) 649 and Kalawati Vs Union of India 2004 0 Supreme (Del) 255 to point out how the said decisions support the view taken by the executing Court in the impugned judgment and order.

15. Mr Menezes finally relied on Sundeep Kumar Bafna Vs State of Maharashtra and another (2014) 16 SCC 623 [LQ/SC/2014/329] to submit that in case of conflict between the decisions of the co-equal benches of the Hon'ble Supreme Court, it is the latest which must prevail. He submitted that since Jalandhar Improvement Trust (supra) was the latest, the same must prevail.

16. For all the above reasons, Mr Menezes submitted that this petition may be dismissed.

17. The rival contentions now fall for determination.

18. The land surveyed under No.1/1 in Taleigao village, admeasuring approximately 30,103 square metres was acquired for public purpose under the provisions of Land Acquisition Act, 1894.

19. Being dissatisfied with the compensation determined/awarded by the Land Acquisition Officer, an application dated 28.04.1987 was made seeking reference under Section 18 of the said Act by the following:

"(a) Luis Francisco Piedade Lobo (Respondent No.1);

(b) Antonio Joao Bosco Lobo (Respondent No.2);

(c) Fernando (Fernandes) Jose Lobo (Respondent No.3);

(d) Mario Francisco Lobo (original Respondent No.4);

(e) Efigenia do Carmo Lobo; (f) Dr Jose Lules Lobo;

(g) Mario Francisco Lobo."

20. The above application dated 28.04.1987 was signed by Mario Francisco Lobo for himself and as an attorney for some of the applicants. However, what is important is that the application for reference bears the signatures of Efigenia do Carmo Lobo. Further, what is significant is that by the date this application was made, Fr. Andren Caietan Lobo had already expired, leaving a Will constituting the Respondents as his legal heirs.

21. Thus, the application for reference, in this case, was made by all the co-owners of the acquired property or, in any case, by the co-owners and their legal heirs. This is not a case where some persons claiming the independent right to the acquired lands, for the first time, applied for enhanced compensation in the execution proceedings. Instead, the record bears out that all the co-owners or, in any case, the co-owners and legal heirs of the deceased co-owners applied for reference and, after the reference Court made the award, applied for execution of the award.

22. Although the statement in the impugned judgment and order about there being no dispute that Fr. Andren Caietan Lobo had died before the application for reference was made may not be accurate, after the production of the death certificate from the official Government record, doubt about, if any, about Fr. Andren Caietan Lobo expiring on 29.12.1985, ic. much before the application for reference dated 28.04.1987 was made, no longer persists. There is material on record which establishes that the Respondents are legal heirs of the late Fr. Andren Caietan Lobo. Therefore, there is a substance in Mr Menezes’ submission that even the application for reference was made by the Respondents inter alia in their capacity as legal heirs of late Fr. Andren Caietan Lobo.

23. Similarly, the application for reference dated 28.04.1987 was made by Maria Efiginia do Carmo Lobo. Merely because LAO did not include her name in the reference made to the District Court cannot be a good ground to deny her enhanced compensation. In any case, even this issue is only academic because the said Maria Efiginia do Carmo Lobo died during the pendency of the reference. The Will now produced on record establishes that the present Respondents were legal heirs of the said Maria Efiginia do Carmo Lobo. The record also shows that said Maria Efiginia do Carmo Lobo was unmarried. At no stage was there any serious challenge about the Respondents not being legal heirs of the late Maria Efiginia do Carmo Lobo.

24. For all the above reasons, Mr Pangam's contentions based upon Fr. Andren Caietan Lobo's demise not preceding the reference application or the present Respondents not being legal heirs of late Maria Efiginia do Carmo Lobo cannot be accepted. Thus, based on facts as borne out from the record, no case is made out to interfere with the impugned judgment and order.

25. Even the legal position substantially favours the Respondents, given the decisions of the Hon'ble Supreme Court in A. Viswanatha Pillai (supra) and Jalandhar Improvement Trust (supra).

26. In A. Viswanatha Pillai (supra), the application for reference was made by only one of the co-owners. However, this co-owner, in his application, clearly stated that he, along with his three brothers, were entitled to 1/4" share each in the acquired land and that all of them were dissatisfied with the compensation awarded by the LAO. The reference Court, however, awarded enhanced compensation only to the co-owner who had actually applied for reference and this relief was denied to the remaining three co-owners.

27. In the above context, the Hon'ble Supreme Court held that such compensation could not have been denied to the remaining co-owners. The Court expressed surprise that the State, having acquired the property of a citizen, would take technical objections regarding the entitlement of the claim. The Court held that the State was certainly right and entitled to resist the claim for enhancement and lead evidence in rebuttal to prove the prevailing price as of the date of notification and ask the court to determine the correct market value of the lands acquired compulsorily under the Act. But as regards the persons entitled to receive compensation, it had no role to play.

28. The Hon'ble Supreme Court significantly held that it was settled law that one of the co-owners could file a suit and recover the property against strangers, and the decree would ensure to all the co-owners. The Court held that it was equally settled law that no co-owner has a definite right, title, and interest in any particular item or a portion thereof. On the other hand, the co-owner has the right, title, and interest in every part and parcel of the joint property or coparcenary under Hindu Law by all the coparceners. The Court referred to its decision in Kanta Goel Vs B. P. Pathak where it was held that the application by one of the coowners for eviction of a tenant for the personal occupation of the coowners was maintainable. The Court noted that the same view was reiterated in Sri Ram Pasricha v. Jagannath & Ors. (1976) 4SCC 184 and Pal Singh Vs Sunder Singh (1989) 1SCC 444.

29. The Court held that a co-owner is as much an owner of the entire property as a sole owner of the property. It was not correct to say that a co-owners property was not its own. The co-owner owns several parts of the composite property along with others, and it cannot be said that the co-owner is only a part owner or a fractional owner of the property. That position will undergo a change only when partition takes place and division is effected by metes and bounds.

30. Based upon the above principle, the Hon'ble Supreme Court, in terms, held that a co-owner of the property is an owner of the property acquired but entitled to receive compensation pro rata. Therefore, when one of the co-owners or coparceners made a statement in his reference application that he and his brothers were dissatisfied with the award made by the Collector and that they were entitled to higher compensation, it would be clear that he was making a request, though not expressly stated so, but by necessary implication, on behalf of the other co-owners or coparceners. The application for reference must therefore be construed as an application on behalf of the other co-owners as well because what was acquired was their totality of right, title, and interest in the acquired property. When the reference was made in respect thereof under Section 18, they were equally entitled to receive compensation pro-rata as per their shares. The Hon'ble Supreme Court concluded that the courts below committed manifest error in refusing to pass an award and payment thereof to the remaining co-owners merely on the ground that there was no mention in this regard in the reference application or that only two of them sought reference in respect of two awards and the last one made no application on their behalf.

31. The above ratio was reiterated by the Hon'ble Supreme Court in Jalandhar Improvement Trust (supra). In that case, the application for reference by one of the co-owners was rejected on the ground that the same was time-barred. The Hon'ble Supreme Court, however, held that even on the first principles of law, one co-owner is entitled to have the benefit of the enhanced compensation given in respect of the land acquired, which belonged to all of them jointly. The Court held that the rejection of the application for reference made by such a co-owner on the ground of limitation made no difference and was no reason to differentiate the claims of such co-owners. The Court held that it was fortified to some extent in the view expressed by the principles laid down in A. Viswanatha Pillai (supra).

32. In Fati Laximan Raut (supra), the Division Bench of this Court followed A. Viswanatha Pillai (supra) and Jalandhar Improvement Trust (supra) even after noting the decision in Ambey Devi (supra). In the case before the Division Bench, the co-owners, who had not even applied for reference, filed a petition before the Division Bench of the High Court seeking a writ of mandamus directing the Respondents to pay enhanced compensation awarded to one of the co-owners in respect of the acquired property. The Division Bench granted this relief after concluding that normally a person whose land is acquired and thereupon award is made by the LAO fixing the compensation and seek enhancement thereof in the manner provided under the Land Acquisition Act by resorting to the provisions of Sections 18, 54 and 28 of the Land Acquisition Act, 1894. However, if such a person is co-owner of the land acquired and another co-owner gets enhanced compensation in reference to appeal etc., then such co-owner would be entitled to the same treatment even if he did not prefer an appeal, on the first principles of law that one co-owner is entitled to have the benefit of the enhanced compensation given in respect of other co-owners of the land acquired which belonged to all of them jointly.

33. The decision in Ambey Devi (supra) was in the context of an application made under Order I Rule 10 of the Civil Procedure Code for impleadment in reference proceedings under Section 18 of the Land Acquisition Act, 1894. Such observations will not apply to the facts of the present case.

34. In Chintaman s/o Barbajidupare (supra), the Division Bench was concerned with the application for impleadment of a co-owner under Order I Rule 10 of the Civil Procedure Code. Such impleadment was applied for before the reference Court itself. The observations made by the Division Bench were entirely in the said context, which is different and distinct from the context in the present matter.

35. Similarly, in Ramesh Singh (supra), the Hon'ble Supreme Court held that the executing Court is devoid of jurisdiction and power to go behind the decree either to implead third parties to it who are not persons claiming right, title and interest in the decree through the decree-holder nor does it have the power to pass an independent award and decree under Section 26 in favour of the third parties. In the present case, neither Fr. Andren Caietan Lobo nor Maria Efiginia do Carmo Lobo could be regarded as third parties, nor can it be said that the said two persons, after their demise, were not being represented by their legal heirs. Therefore, even the decision in Ramesh Singh (supra) would not apply to the facts of the present case.

36. Lesru Ram (deceased) through LR's Kalu Devi and others Vs Collector Land Acquisition NHPC and another 2018 0 Supreme (HP) 571, Pune Ram (supra) and Kalawati (supra) support the view taken in the impugned judgment and order. In any case, the view taken in the impugned judgment and order finds support in A. Viswanatha Pillai (supra), Jalandhar Improvement Trust (supra) and Fati Laximan Raut (supra).

37. Since the decisions in Ambey Devi (supra), and Ramesh Singh (supra) are distinguishable on facts, there is no necessity to consider the submission about the approach to be adopted by the Court when faced with conflicting decisions rendered by the co-equal benches of the Hon'ble Supreme Court. In any case, going by the decision of the Full Bench of this Court in Kamleshkumar Ishwardas Patel (supra), this Court will have to follow the decision, which, in its view, is better in point of law and has a closer nexus to the facts involved in the case before the Court. Following this principle, the decisions in A. Viswanatha Pillai (supra) and Jalandhar Improvement Trust (supra) will have to be followed.

38. However, even if the observations in Sundeep Kumar Bafna (supra) that inviolable recourse is to apply to the earliest view is to be followed, even then, the decision in A. Viswanatha Pillai (supra) will have to be followed. If the latest view is to be followed even then, Jalandhar Improvement Trust (supra) represents the latest view which will have to be followed.

39. For all the above reasons, no case is made out to interfere with the impugned judgment and order. Accordingly, this petition is liable to be dismissed and is hereby dismissed. The rule is discharged. The interim order is vacated. No costs.

40. The Respondents/claimants are now permitted to withdraw the amount deposited by the Petitioner in this Court or before the executing Court together with interest, if any, that shall have accrued on this deposited amount. If there is any shortfall, then leave is granted to the Respondents to apply to the executing Court for further execution.