1 first appeal no.248 of 2005 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 248 OF 2005 Gopal Padmanaba Chari, House No.64, Arali, Betul, Goa-03 603. ... Appellant versus 1. Communidade of Quitol, Quitol, Quepem, Goa. 2. Teodoes L. Fernandes, Attorney of Salvador Dias, Juvem, Near Betul Post Office, Betul Goa- 403 603. ... Respondents Shri R. G. Ramani, Advocate for the Appellant. Shri S. D. Padiyar, Advocate for Respondent No.1. CORAM : SMT. R. P. SONDURBALDOTA, J. DATE : 15TH SEPTEMBER, 2011. JUDGMENT This appeal is directed against the award dated 3-6-2005 passed by the IIIrd Additional District Judge, South 2 first appeal no.248 of 2005 Goa, Margao in Land Acquisition Case No. 70 of 1993 which was a reference under Section 30 of the Land Acquisition Act, 1894 for apportionment of compensation awarded by the Land Acquisition Officer. The impugned award rejects the claim of the Appellant and grants the claim made by Respondent No.1. Respondent No.2 in his written statement before the Reference Court made a categorical statement that he has no interest in the property and hence claims no right to any part of compensation payable therefor. The challenge to the impugned award is on merits with a contention that the Reference Court has not properly appreciated the evidence led by the parties before it. 2. By notification bearing No.22/174/89/RD dated 13-12-1989 issued under Section 4 of the Land Acquisition Act, 1894 and published in the Official Gazette dated 4-1-1990, several lands were acquired for setting out an Institute of Safety and Environment Management for Petroleum Industries of 3 first appeal no.248 of 2005 India at Betul, Quitol Village of Quepem Taluka. One of the lands acquired was 9,800 sq. meters from survey No.69/1. By the award of the Land Acquisition Officer compensation of Rs.16,636/- was awarded for the said land. The matter came to be referred to the District Court under Section 30 of the Land Acquisition Act since there were 5 interested parties claiming ownership of the land. All the parties filed their written statements. However, at the hearing of the reference, party Nos.2, 4 and 5 remained absent and the reference proceeded ex-parte against them. There is no challenge by these parties to the award of the Reference Court. They have thus accepted the award. 3. In view of the acceptance of the award by original party Nos.2, 4 and 5, the dispute in the challenge to the award is restricted to the claims made by original party No.1 i.e. Respondent No.1 and original party No.3 i.e. the Appellant. 4 first appeal no.248 of 2005 Therefore, the pleadings of these two parties alone are required to be looked into. Respondent No.1 is Communidade of Quitol. It claims in its written statement that it is the owner of property known as “OTHIMOLLO' and “CHINCHAMOLLA” bearing matriz No.161. It contends that the land acquired admeasuring 9,800 sq. meters forming part of survey No.69/1 is a part of the property of “OTHIMOLLO” and “CHINCHAMOLLA”. The written statement refers to original party No.4 and one Ruin Tato Vaz whose names had been included in Form 1 and XIV of survey No.69/1 in the occupants' column to contend that the names have been wrongly included in the forms and that they have no right to the property. This claim is seen to be accepted by the two persons by not challenging the award. The Appellant in his written statement does not dispute that Respondent No.1 is the owner of the property “OTHIMOLLO” and “CHINCHAMOLLA”. He, however, claims to be a co-sharer of a portion of that property having acquired title to it 5 first appeal no.248 of 2005 by adverse possession. He contends that property by name “CONDI” bearing matriz No.176 is a part of property “OTHIMOLLO” and “CHINCHAMOLLA” and covers survey Nos.68/1, 69/1 and 70/10 of village Quitol. He claims to have acquired title to property “CONDI” by adverse possession since he and his ancestors have been holding and enjoying the same for a period of more than 100 years. The written statement, however, does not set out the details of the occupation of the Appellant and his predecessors. 4. On the pleadings between the parties, the Reference Court framed the following 4 issues:- 1. Whether the Party no. 1 proves that the acquired land is part and parcel of its property known as “Othimollo” and “Chinchamolla” bearing Matriz no.161? 6 first appeal no.248 of 2005 2. Whether the Party no.3 proves that the acquired land forms part and parcel of property “Condi” bearing Matriz No.176? 3. Whether the Party no.3 proves that the said property was owned, possessed and enjoyed by him and other co- sharers since last more than 100 years and that they have acquired title by adverse possession? 4. Whether the Party no.5 proves that the acquired land is part and parcel of his property known as “Orzuna Conda”? By the impugned Order, it answered Issue No.1 in the affirmative and Issue Nos. 2 to 4 in the negative. 5. The affirmative answer to Issue No.1 is obvious in view of the pleadings and the admission by the Appellant contained in the pleadings. The scope of the appeal therefore 7 first appeal no.248 of 2005 gets further narrowed down to the claim made by the Appellant of title to part of the property of “OTHIMOLLO” and “CHINCHAMOLLA” which part has been described as “CONDI” by adverse possession. 6. The Reference Court in the impugned Order has observed that the pleadings of the Appellant are devoid of the essential ingredients of adverse possession which are (i) the actual possession, (ii) continuous possession, (iii) possession with necessary animus on the part of the person claiming title by adverse possession. Written statement of the Appellant confirms the observations. The pleadings of the Appellant are silent on the area of property “CONDI”, the overt acts of possession over the property and the manner in which the possession has been hostile to Respondent No.1. The Reference Court has further noted that there is no evidence produced by the plaintiff in support of the claim of acquisition of title to the 8 first appeal no.248 of 2005 property by adverse possession. In the absence of the necessary pleadings, the Appellant could not have led any evidence on his claim of title by adverse possession in respect of property “CONDI”. It is also undisputed position that in the acquired land of 9,800 sq. meters of survey No.69/1 there were no houses or trees and it was a bharad and rocky land. Therefore, any reference to the houses by the Appellant in his evidence could not have been related to the land acquired. In the circumstances, in my opinion, the finding of the Court of Reference that the Appellant has failed to establish his title to part of the acquired land by adverse possession does not require any interference. 7. Shri R. G. Ramani, learned Counsel for the Appellant then submits across the bar that the Appellant, if not as an owner of the property acquired, but as a person in possession of part of the property, would be entitled to receive some share in 9 first appeal no.248 of 2005 the compensation awarded. Firstly, this contention ought to have been taken up as an alternate plea in the written statement which has not been done. Secondly, the claim of possession by the Appellant is based on the claim of having houses and fruit bearing trees enjoyed by him on the land in question. Since the land acquired had no houses or trees on it and it was a bharad and rocky land any claim of the Appellant on possession can also not be sustained. Hence, the appeal is dismissed. No order as to costs. SMT. R. P. SONDURBALDOTA, J. RD