1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.62 OF 2006 Communidade of Adnem, Adnem, Taluka Quepem. …. Appellant V/s 1. Divina D'Silva, 2. Rodney D'Silva, 3. Francis D'Silva all r/o. Adnem, Taluka Quepem. 4. Bhiku Shanu Velip, Near Quepem Court, Sirvoi, Taluka Quepem. …. Respondents Mr. R.G. Ramani, Advocate for the Appellant. None for the Respondents. CORAM : F.M. REIS, J. DATE : 11th APRIL, 2011 JUDGMENT : The above appeal challenges the judgment and award passed in Land Acquisition Case No.213/1999, dated 15/11/2005 by the learned Additional District Judge, South Goa at Margao. 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as 'the said Act', dated 28/02/1994, the land was acquired by the Government for the 2 construction of a road from Adnem to Cupawada in the Village Panchayat of Bali, Quepem Taluka. An area of 1950 square metres from the property surveyed under no.34/0 (part) of Village Adnem was also included for acquisition in the said notification. In view of the rival claims put forward by the parties to the compensation awarded by the Land Acquisition Officer in the award under Section 11 of the said Act to the tune of Rs.55,693/-, the dispute was referred to the learned District Judge under Section 30 of the said Act for adjudication. By judgment and award dated 15/11/2005, the learned Reference Court directed that the amount of compensation awarded be paid to the legal heirs of party nos.2 & 3/respondents nos.1,2 & 3 herein. Being aggrieved by the said judgment and award, the appellant/party no.1 has preferred the present appeal. 3. Shri Ramani, the learned Counsel appearing for the appellant has vehemently argued that the learned Judge has mis appreciated the evidence on record and has come to the erroneous conclusion that the appellant has no right at all to the compensation awarded by the Land Acquisition Officer. The learned Counsel further submitted that though the claim of the respondents nos.1,2 & 3 was that the property is registered in the Land Registration Office under 3 no.3975 which is at Exhibit C-36 there is no evidence on record to substantiate that the property which has been acquired under Survey No.34 forms part and parcel of the property acquired. The learned Counsel further submitted, on going through the evidence on record, that the boundaries as shown in the records of the Land Revenue do not correspond to the property which is the subject matter of the present acquisition. The learned Counsel has further submitted that on the contrary, the appellant has established by cogent evidence on record that the property which has been acquired forms part and parcel of the property inscribed in the Taluka Revenue Office under No.58. The learned Counsel has further taken me through the boundaries as mentioned in the matriz record in respect of the property inscribed under no.58 and pointed out that the property which has been acquired falls within the said boundaries. The learned Counsel has further submitted that on the basis of the material on record, the Reference Court was not justified to pass the impugned judgment and that the amount of compensation awarded ought to have been paid to the appellant herein. 4. Respondents though served failed to remain present at the time of hearing of the above appeal. 4 5. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION Whether the land acquired in the present proceedings forms part and parcel of the property as claimed by respondents nos.1,2 & 3. 6. On going through the evidence on record, I find that in support of their claim to the compensation awarded by the Land Acquisition Officer, the appellant has examined their attorney. He has stated in his affidavit that the Communidade owns the property which is described in the Land Registration Office under matriz no.58 and is denominated as a property known as “Gotto Vomolla or Gotana Mol” which is surveyed under no.34. According to the said attorney, the property stands surveyed in the name of the appellant as well as the respondents nos.1,2 & 3. He has further stated that the remaining respondents have no right to any portion of the land acquired. In his cross-examination he has stated that the property of the Communidade are recorded in the book of inventory. He has further stated that the said property is registered in the name of the Communidade, but however, in his further cross 5 he has admitted that there was a prior acquisition which according to him was a property which was surveyed under no.36. He has denied the suggestion that the boundaries mentioned by him are not in consonance with the evidence of PW1. The next witness examined by the appellant is PW2/Manohar Ram Phal Dessai, who claimed to be the component of the said Communidade. He has stated that the land acquired is part of the property belonging to the Communidade and, as such, the Communidade is entitled to such compensation. In his cross-examination, he has stated that on eastern side of the said property is the Village of Quepem and Rivona. He has further stated that on the western side is the property of one Paguvir Padiyal and on the southern side is the property of Ram Babu Fal Dessai. The next witness examined by respondents nos.1,2 & 3 namely Herbert D'Silva/PW3 stated that the portion of the property acquired is part and parcel of the property described in the Land Registration Office under no.3975 and bounded towards the east by Bibiancho Dongor, towards the west by the road leading to Ambaulim, towards the south by the property described under no.3973 known as Davothi Vaddivoril and towards the north by the property known as Amboliancho Chudo. He has further stated that the property which is registered under no.3973 also belongs to the said respondents and they are 6 enjoying the said property. In the cross-examination, he has stated that the property acquired belonged to his grandfather Manuel Salvador Silva and after his death his father and uncle inherited the property. In further cross-examination, he has stated that the road on the western side leading to Ambaulim has been recently constructed somewhere in the year 1975 and that is why the western boundary at Exhibit C-36 is not shown as a road. He has further stated that he has property across both sides of the said road. He has further stated that the name of the property is wrongly shown in the survey records. Another witness examined by the said respondents was Francisco Minguel Da Silva/PW4, who was working as a Field Surveyor. He has stated that the names of the property in the survey record were on the basis of the inquiries and not on the basis of any documents. He has further stated that he has visited the whole property belonging to the said Herbert D'Silva at the site which included the property surveyed under no.22,23,25,26,27,28,29,30,31,32,33 and 34 and nobody objected to such inspection. The fact that the said Herbert D'Silva was having property on both sides of the road has not been disputed nor challenged in his cross-examination. The next person examined was Bhiku Shanu Velip/PW5, original party no.4, who has not challenged the impugned judgment nor has any amount 7 awarded to him. 7. On perusal of the evidence on record, the learned Judge has come to the conclusion that the respondents nos.1,2 & 3 have established that the property which is subject matter of the acquisition forms part and parcel of the property belonging to the said respondents. The Land Registration Document C-36 discloses that the southern side of the property registered under no.3975 is the property registered under no.3973. As stated herein above, the fact that the said Herbert D'Silva has property across the road has not been disputed by the appellant in the cross-examination. The learned Judge after appreciating the evidence on record has also found that the property inscribed under no.58 does not include the property which is subject matter of the acquisition in the present case. The matriz record produced by the appellant at Exhibit 21 no doubt cannot be considered to be a document of title. Merely because the revenue record also includes the name of the appellant would not establish any title of the name of the appellant as entries in the survey records do not create or defeat title. On perusal of the boundaries as mentioned in the said matriz record, I find that the same do not correspond to the boundaries nor does it include the property which is subject matter of the present acquisition. 8 Rajendra Sada Phal Desai/PW1 has also admitted that the property of Communidade is not described in the Land Registration Office nor the same is described in the book of records maintained by the Communidade in respect of their properties. On perusal of Exhibit C-36 the property is shown to be registered in favour of the ancestors of the respondents nos.1,2 & 3. The southern boundary of the property described under no.3975 is the property no.3973. Considering the material produced by the appellant, the learned Judge has rightly come to the conclusion that the appellant has failed to establish that the land acquired forms part and parcel of the property belonging to the appellant. The Land Registration Document produced by respondents nos.1,2 & 3 and the boundaries mentioned therein and the evidence on record adduced by them has been correctly assessed by the Reference Court to come to the conclusion that the compensation awarded is to be paid to the respondents. Though there is no appreciable evidence on record to substantiate the extent of the property claimed by respondents nos.1,2 & 3 vis-a-vis the survey records, but it is an admitted position that the rival claim is with regard to the vast property whereas the land acquired is only an area of 1950 square metres. 9 8. Shri Ramani, the learned Counsel appearing for the appellant pointed out that the findings of the Reference Court would affect the claim of the appellant with regard to the remaining portion of the property claimed by them, but however, the findings arrived at by the Reference Court are confined only to the area of 1950 square metres, which is subject matter of the acquisition of the present case. As such, it is clarified that the findings arrived at by the Reference Court would be confined only to the land acquired which was the subject matter of the acquisition in the present case admeasruing an area of 1950 square metres in respect of the property surveyed under No.34 (part). The findings have been arrived at on the basis of the material produced by the rival parties in the present proceedings and would not effect any claim of the any of the parties including the appellant with regard to the remaining portion of the land which would have to be decided on its own merits in accordance with law. 9. Subject to the said clarification, no interference is called for in the impugned judgment directing that the compensation awarded is to be paid to the respondents nos.1,2 & 3. The point for determination is answered accordingly. 10 10. In view of the above and subject to the said clarification, the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-