1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 338 OF 2005 Shree Rawalnath Devasthan, represented by the President of its Managing Committee with its office at Sanvordem, Sanguem Taluka-Goa. ... Appellants versus Shri Datta Vishwas Sanvordekar, major of age, resident of Anandwadi, Sanvordem, Sanguem Taluka, Goa. ... Respondent Shri S. D. Lotlikar, Senior Advocate with Ms. Vinita Palekar, Advocate for the Appellants. Shri R. G. Ramani, Advocate for the Respondent. CORAM : F. M. REIS, J. DATE : 17TH JUNE, 2011. ORAL JUDGMENT Heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants and Shri R. G. Ramani, learned Counsel appearing for the Respondent. 2 2. The above appeal challenges the Judgment and Award passed by the learned Reference Court dated 18-10-2005 in Land Acquisition Case No.423 of 1995 whereby the compensation awarded was directed to be paid to the Respondent herein. 3. Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants has assailed the impugned Judgment and pointed out that there is evidence on record to substantiate that the land acquired belongs to the Appellants. According to Shri Lotlikar, learned Senior Counsel the property which was acquired was part and parcel of the property which was shown in the cadastral survey under No.106. Learned Senior Counsel further submits that the properties inscribed in the matriz Nos.39 and 40 are included in the said property surveyed under cadastral survey No.106. Learned Senior Counsel further submitted that there was an Act of Demarcation on record which was performed in the erstwhile Portuguese regime wherein even the alleged grandfather of the Respondent was present. Learned Senior Counsel has further submitted that the learned Reference Court has erroneously discarded the said survey on the ground that it was not promulgated without addressing 3 itself to the fact that there was a demarcation which was conducted at the relevant time. Learned Senior Counsel submitted that even Form No.III of the new survey records which have otherwise not been promulgated, in the property under survey No.1/4, the Appellants are shown in the occupants' column and the name of the Respondent figures in the other rights column where a house is being occupied. Learned Senior Counsel submitted that the alleged grandfather was a sevekari of the temple and he was rendering such services to the temple authorities. Learned Senior Counsel has taken me through the evidence on record and pointed out that there was substantial evidence on record to show that the amount awarded is to be paid to the Appellants. Learned Senior Counsel submitted that the findings given in the present proceedings would affect the claim of the Appellants as far as the remaining portion of the land is concerned as the land acquired admeasures only 755 sq. meters, whereas the whole property admeasures more than 12,000 sq. meters wherein the temple is located and as such, the impugned Judgment deserves to be quashed and set aside. 4. On the other hand, Shri R. G. Ramani, learned Counsel for the Respondent has supported the impugned Judgment. Learned Counsel 4 has further pointed out that the Appellants have failed to adduce evidence that the acquired portion belongs to them. Learned Counsel has further submitted that the temple which is existing in the property under survey No.1/4 was constructed by his grandfather and he was maintaining and looking after the said temple. Learned Counsel has submitted that besides examining the Respondent there were witnesses who have been examined and submitted that the land acquired was part and parcel of the property of the Respondent herein. Learned Counsel has further submitted that the cadastral survey plan has not been promulgated and as such no evidenciary value can be given to such records. Learned Counsel has taken me through the evidence on record and pointed out that the Appellants have failed to establish their claim and on the contrary the Respondent has adduced evidence on record to establish his ownership and possession of the acquired portion of the property. Shri Ramani, learned Counsel has as such submitted that the appeal deserves to be rejected. 5. Having heard the learned Counsel and on perusal of the record the following point for determination arises. 5 Whether the Reference Court was justified to come to the conclusion that the amount awarded is to be paid to the Respondent? 6. On perusal of the impugned Judgment, I find that the learned Reference Court after examining the material on record has come to the conclusion that the Appellants as well as the Respondent have failed to establish their title to the acquired portion. The learned Judge has examined the matriz records as well as the survey plan and other documents adduced by the parties and has come to the conclusion that the title has not been established by both the parties. Admittedly, the Respondent has not challenged his finding nor filed any cross objection. Though, Shri Lotlikar, learned Senior Counsel for the Appellants has contended that the Appellants have established their title over the acquired portion, I find that on the basis of the material on record which consists of the survey records and the matriz records which cannot confer title, the learned Reference Court was justified to come to the conclusion that both the parties have not been able to establish their exclusive title to the acquired land. Such finding of the Reference Court cannot be said to be perverse as no documents of title have admittedly 6 been produced by both the parties. As such, the title of the parties will have to be established in appropriate proceedings and the same would have to be decided on its own merits in accordance with law. 7. The learned Judge whilst passing the impugned Judgment has found that the Respondent was in exclusive possession of the acquired portion. I have perused the evidence of the Respondent as well as of the Appellants and I find that there is nothing on record to suggest that the Respondent has produced any documentary or other evidence to establish that he is in exclusive possession of the acquired portion. On the contrary, it is the case of the Appellants that the deceased grandfather of the Respondent was a sevekari/priest of the temple and as such it is well known that persons exercising such duties were permitted to enjoy properties for the purpose of rendering them services. The fact that such services were rendered have not been disputed by the Respondent. But, however, it is sought to be contended by the Respondent that the temple which is located in the portion of the said property surveyed under No.1/4 was constructed by his grandfather, but, however, there is no evidence on record to substantiate such claim. It is an admitted fact that the property which is inscribed under matriz No.39 stands in the name of 7 the grandfather of the Respondent and the property which is inscribed under No.40 stands in the name of the Appellants. The cadastral survey plan which is stated to be not promulgated discloses that the property which is surveyed under No.106 admeasures an area of 12,880 sq. meters. The survey records suggests that the property surveyed under No.1/4 admeasures about 7000 sq. meters. As such, the contention of the parties to the effect that the cadastral plan under No.106 corresponds to the properties inscribed under matriz nos.39 and 40 cannot be said to be not justified. Considering the said aspect and in view of the fact that there is no dispute that the said property surveyed under No.106 includes the temple which is belonging to the Appellants, I find that the presumptions which arise in favour of the Appellants and the Respondent in view of the fact that the property is inscribed in their respective names has not been rebutted by any of them. There is no dispute that survey records have not been promulgated as the records produced are in Form III which indicated that the records have not yet been promulgated. Under Section 107 of the Land Revenue Code, until the record of right, for any area is prepared in accordance with the provisions of the Code, the exiting record of rights in force in that area under any law for the time being in force shall be deemed to be the record of rights prepared 8 under the Code. In the present case, the parties do not dispute that the matriz records which were in existence prior to the coming into force of the Land Revenue Code disclose the names of the Appellants and the Respondent in respect of matriz Nos.39 and 40 which includes the land acquired. There is no definite material on record to establish as to whether the Appellants or the Respondent were in actual possession of the acquired portion of the land. As such the only option available to the learned Reference Court was to apportion the compensation in favour of the Appellants and the Respondent in the proportion of 50:50. The fact remains that the Appellants did not dispute that the grandfather of the Respondent was enjoying the property as a sevekari and in such capacity the house of the Respondent is located in the property surveyed under No.1/4. As such, it would be appropriate and in the interest of justice that the amount of compensation awarded be apportioned in favour of the Appellants and the Respondent in the aforesaid manner. The apportionment has been ordered as both the parties failed to rebut the presumptions of possession keeping the issue of title open in respect of the property surveyed under nos.1/4 and 1/5. The learned Judge whilst passing the impugned Judgment has erroneously come to the conclusion that the possession of the acquired portion of the land was with the 9 Respondent when on the contrary there was no definite evidence to that effect. Apart from that, the reliance by the learned Judge to the document at Exh.65 colly. produced by PW2-W1 is not at all justified. Merely by an unilateral act without anything more the possession of the properties cannot be established. The said document has no eventual value nor does it by itself support the contention of the Respondent that he was in possession of the acquired portion of the land. On the basis of the material produced by the parties, I find that the Reference Court was not justified to direct that the compensation for the acquired portion of the land is to be paid to the Respondent. The Reference Court has come to the conclusion that both the parties were not able to establish their title with regard to the property part of which has been acquired in the said acquisition proceedings. Hence, keeping the issue of title open, I find that the impugned Judgment passed by the Reference Court deserves to be modified and the compensation awarded is to be apportioned in the proportion 50:50 in favour of the Appellants and the Respondent. The point for determination is answered accordingly. 8. In view of the above, I pass the following order:- 10 ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Award dated 18-10-2005 is modified and the compensation awarded by the Land Acquisition Officer with accrued interest thereon is directed to be apportioned 50% in favour of the Appellants and the remaining 50% in favour of the Respondent herein. 3. The appeal stands disposed of accordingly with no orders as to costs. F. M. REIS, J. RD