-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 36 OF 2006 AND FIRST APPEAL NO.241 OF 2006 FIRST APPEAL NO.36 OF 2006 1. Puno Kusod Gaunkar, Barcem, Quepem, Goa (since deceased represented by L.Rs.):- (a) Smt. Savitri Puno Gaonkar (b) Shri Krishna Puno Gaonkar (c) Smt. Karishma Krishna Gaonkar (d) Mr. Babu Puno Gaonkar (e) Kum Rekha Puno Gaonkar (f) Kum Primila Puno Gaonkar All r/o Velipwado, Barcem, Goa. 2. Chimot Jiu Gaunkar, Barcem, Quepem, Goa. ... Appellants V e r s u s 1. Comunidade de Provincia De Balli, Balli, Quepem. 2. Mrs. Bela Rosa Almeida, Barcem, Quepem, Goa. 3. Narayan Dholo Gaunkar, Velipwada, Barcem, Quepem. 4. Fondu Dholo Gaonkar, Velipwada, Barcem, Quepem. -2- 5. Nagu Puno Gaonkar, Velipwada, Barcem, Quepem. ... Respondents Shri S. Karpe, Advocate for the Appellants. Shri C. Mascarenhas, Advocate for Respondent No.2. FIRST APPEAL NO. 241 OF 2006 Bela Rosa Almeida, Barcem, Quepem, Goa. ... Appellant V e r s u s 1. Comunidade de Provincia de Balli, Balli, Quepem. 2. Narayan Dholo Gaunkar, Velipwada, Barcem, Quepem. 3. Fondu Dholo Gaunkar, Velipwada, Barcem, Quepem. 4. Nagu Puno Gaunkar, Velipwada, Barcem, Quepem. 5. Puno Kusod Gaunkar, Barcem, Quepem, Goa (since deceased, represented by L.Rs.): (a) Smt. Savitri Puno Gaonkar, (b) Shri Krishna Puno Gaonkar, (c) Smt. Karishma Krishna Gaonkar, (d) Mr. Babu Puno Gaonkar, -3- (e) Kum. Rekha Puno Gaonkar, (f) Kum. Primila Puno Gaonkar, All resident of Velopwado, Barcem, Goa. 6. Chimot Jiu Gaunkar, Barcem, Quepem, Goa. ... Respondents Shri C. Mascarenhas, Advocate for the Appellant. Shri S. Karpe, Advocate for Respondent Nos.5 and 6. CORAM : F. M. REIS, J. DATE : 5TH AUGUST, 2011. JUDGMENT Both the Appeals are taken up together for final hearing as both challenge the impugned Judgment and Award passed by the learned Reference Court in Land Acquisition Case no. 268/1994, by Judgment and Award dated 26.10.2005. 2. Land was acquired by the Government for the construction of a New Broad Gauge Line of Konkan Railway in Barcem, Padi, Quepem and Canacona Villages of Quepem and Canacona Taluka, admeasuring an area of 85800 square metres from the property surveyed under no. 17/1 Part of Village Barcem. In view of the dispute for the apportionment of the compensation awarded by an Award passed under Section 11 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'said Act'), dated 11.11.1983, a reference was made to the learned District Judge under Section 30 of the said Act. -4- 3. The Appellant no.1 in First Appeal no. 36 of 2006 was Party no.6 and the Appellant no.2 in the said Appeal was Party no.7 before the Reference Court whereas Appellant in First Appeal no. 241/2006 was Party no.2 before the Reference Court. The parties shall be referred in the manner as they so appear in the cause title of the impugned Judgment. 4. After recording of evidence and hearing the parties, the learned Reference Court by the impugned Judgment dated 26.10.2005, decided the reference in the negative and directed that the amount awarded together with interest accrued theron be refunded to the Land Acquisition Officer. 5. Being aggrieved by the said Judgment, the Party nos. 6 and 7 and the Party no.2 have preferred the present Appeals. 6. Shri S. Karpe, the learned Counsel appearing for Party nos. 6 and 7 have assailed the impugned Judgment and pointed out that the said Parties have adduced sufficient evidence on record to substantiate their claim that the land acquired belongs to the said Parties. The learned Counsel has submitted that they have produced documents which clearly disclose that the acquired portion of the land forms part and parcel of the property which is in possession of the said Parties. The learned Counsel has taken me through the impugned Judgment and Award and submitted that the learned Reference Court has misconstrued the documents to come to the conclusion that Parties no. 6 and 7 have failed to -5- establish their claim with regard to the compensation awarded by the Land Acquisition Officer. The learned Counsel further submitted that the said Parties have produced the Land Registration document under no. 2300, document of Matriz no. 10 together with Deed of Rectification dated 18.11.1888 in respect of the property which establish that the acquired portion of the land belongs to the said Parties. The learned Counsel further submitted that they have also produced the Forest Licence which establish that the said Parties were in possession of the acquired portion of the land. The learned Counsel has further submitted that they have examined an expert who has identified the property of the said Parties and pointed out that the acquired portion of the land belongs to the said Parties. The learned Counsel further submitted that the remaining Parties have no right at all to any portion of the acquired land and, as such, the compensation awarded is to be paid to the said Parties. 7. On the other hand, Shri C. Mascarenhas, the learned Counsel appearing for the Party no.2, has submitted that the property surveyed under no. 17/1 which is subject matter of the acquisition is part and parcel of the property “Cosmavol”, which was purchased by the grandfather of the said Party pursuant to a Deed of Sale dated 01.06.1914 from one Bisso Mono Velipo, Custam Rama Velipo and Bamptu Rama Velipo. The learned Counsel further submitted that the entire portion of the land acquired forms part and parcel of the property belonging to the Party no.2. The learned Counsel further submitted that the portion of the property is registered under Land Registration no. 12772 and inscribed in the Matriz record under no. 6451 and is surveyed under no. 17/1, which stands in the name of -6- the Party no.2. The learned Counsel has further taken me through the impugned Judgment as well as the material on record adduced by the said Party no.2 and submitted that the acquired land forms part and parcel of the said land surveyed under no. 17/1 and, as such, the compensation should be awarded in favour of the Party no.2. The learned Counsel further submitted that the Reference Court was not at all justified to direct the compensation to be refunded to the Land Acquisition Officer when it was incumbent upon him to decide the rival claim before the learned Judge and as such the question of refunding the amount of the Land Acquisition Officer would not arise. The learned Counsel further submitted that the learned Judge on the basis of the preponderance of probabilities, ought to have decided the dispute raised by the Parties and not direct the refund of the said amount to the Land Acquisition Officer. The learned Counsel further submitted that the learned Judge has committed an error and misconstrued the evidence on record and passed an erroneous Judgment directing that the amount deserves to be refunded to the Land Acquisition Officer. The learned Counsel further submitted that the Appeal of Party no.2 be allowed and the compensation be paid to the Party no.2. 8. The remaining Parties failed to challenge the findings given in the impugned Judgment refusing their respective claims to the compensation awarded in the said acquisition. 9. Having heard the learned Counsel and on perusal of the record, the following point arises for my determination : -7- POINT FOR DETERMINATION 1. Whether the acquired portion of the property surveyed under no. 17/1 belongs to the Party no.2 or Parties nos. 6 and 7 ? 10. Whilst considering the claim of the Parties nos. 6 and 7, the learned Judge has found that the said Parties are claiming compensation in respect of the different land acquisition proceedings on the basis of their claim that the property is forming part and parcel of the property known as “Madxette” or “Borimolla”, registered under Land Registration no. 2300 and inscribed in the Matriz Record under no.10 and surveyed under no. 17/1. The learned Judge has further found that all the survey numbers in respect of the said property have not been disclosed. When a party is putting a claim that the acquired property forms part and parcel of the property which is registered in the Land Registration Office, it is incumbent upon them to first establish the boundaries as disclosed in the Land Registration document and thereafter adduce evidence to show that the acquired portion of the property falls within the said boundaries. From the evidence on record adduced by the said Parties, I find that no such efforts were made by the Parties to identify the said boundaries. Apart from that, the learned Judge has not at all scrutinised the evidence on record to ascertain as to whether the acquired portion of the land forms part and parcel of the property registered in the Land Registration Office. When a party is putting up a claim to a vast portion of the land, it is quite possible that such portions can form part and parcel of different survey numbers. Merely because on the basis of the documents different claims are put up in different land acquisition proceedings, by itself cannot defeat the claim of the said Parties to the -8- acquired portion of land if at all they are so entitled. The learned Judge ought to have considered as to whether the property surveyed under no. 17/1 Part which has been acquired, is located within the boundaries as claimed by the said Parties. 11. Whilst dealing with the claim put forward by the Party no.2, the learned Judge found that the claim put up by her was that the acquired portion of the property surveyed under no. 17/1 was purchased by her grandfather namely Camilo Jorge Almeida by Sale Deed dated 01.06.1914. The learned Judge further found that the Party no.2 had admitted that in the Matriz Records, the said property was shown as a paddy field which was not the case with regard to the acquired portion of the land as the survey record disclose that it was a bharad land and as such rejected the claim put forward by the Party no.2. The learned Judge has further noted that the Party no.2 has also produced the document of Land Registration at exhibit 70. There is no dispute that the boundaries as shown in the Land Registration document and the boundaries as disclosed in the Sale Deed produced by the Party no.2 of the year 1914, are the same. Merely because there are discrepancies with regard to the existence of different trees, etc., in the Land Registration Officer and the Matriz Records, cannot by itself discard the correctness of such documents. Once the property is accepted to be registered in the Land Registration Office, the consequences thereof as contemplated under the provisions of Portuguese Civil Code would follow. It was incumbent upon the Reference Court to consider as to whether the property acquired is located within the boundaries as shown in the land Registration document. Apart from that, the said Party no.2 has also produced a Deed of Gift dated 07.08.1967 at exhibit 71 on -9- the basis of which their right to the acquisition of land was claimed by the Party no.2. The inferences drawn by the learned Judge on the basis of the proceedings before the Survey Authorities with regard to the enjoyment of the acquired portion of land cannot in any way be justified considering the claim put forward by the parties before the Reference Court. The learned Judge has erroneously discarded the documents of title produced by the Party no.2 so as to discard her claim to the compensation of the acquired portion of land. 12. On the basis of the evidence on record including the documentary evidence adduced by both the parties, I find that the learned Judge has not appreciated the evidence on record in a proper perspective. The learned Judge has not at all given any findings so as to identify the boundaries as shown in the Land Registration documents produced by the Party nos. 6 and 7 as well as Party no.2 to ascertain as to whether the acquired portion of the land falls within the said boundaries. The learned Judge has on irrelevant considerations discarded the claims put forward by the Party no. 2 and Party nos. 6 and 7 before the Reference Court. Once the reference is made under Section 30 of the said Act, the question of directing the refund of the said amount to the Land Acquisition Officer would not arise unless the claims of the parties are fictitious. It was incumbent upon the Reference Court to decide the apportionment of the compensation between the claims of the interested parties to the compensation. It is also to be noted that any amount which is received by any person under the said Act, shall not affect the liability of such person to pay the amount to the person lawfully entitled thereto under Section 31 of the said Act. -10- 13. Considering the said aspect, I find that in the interest of justice, the matter deserves to be remanded to the Reference Court to decide the reference afresh after hearing both the parties in accordance with law. The parties shall be at liberty to lead further evidence in support of their respective claims if so advised in accordance with law. The point for determination is answered accordingly. 14. In view of the above, I pass the following : ORDER (i) Both the Appeals are partly allowed. (ii) The impugned Judgment and Award dated 26.10.2005 is quashed and set aside and the Land Acquisition Case no. 268 of 1994 is restored to the file of the Reference Court. (iii) The Reference Court is directed to decide the reference afresh in the light of the observations made herein above in accordance with law. (iv) Both the Appeals stand disposed of accordingly with no orders as to costs. (v) Parties are directed to appear before the Reference Court on 12.09.2011 at 10.00 a.m. F .M. REIS, J. arp/*