1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 177 OF 2005 1. Shri Narcinva Shivram Sinai Nadkarni, aged about 68 years, landlord, married; 2. Smt. Mirabai Narcinva Sinai Nadkarni, major, housewife, Appellant No.2 duly represented by her Attorney Shri Narcinva Shivram Sinai Nadkarni; Both residents of Sanguem, Goa. 3. Shri Dinanath Anant Sinai Nadkarni(since deceased), through legal heirs:- (a) Shri Durgadas Dinanath Nadkarni, son; (b) Smt. Bharti Durgadas Nadkarni; Both residents of A-2, Chaitra Apartments, 2nd Floor, St.Joaquim Road, Borda, Margao-Goa. (c) Smt. Manuja S. Nadkarni, daughter-in-law; 2 (d) Shri Shripad D. Nadkarni, son; Both residents of Pratibha Co-operative Housing Society, Opposite St. Joseph High School, Aquem-Alto, Margao-Goa. (e) Dr. Vijay D. Nadkarni, son; (f) Dr.(Smt) Chandan V. Nadkarni, daughter-in-law; Both residents of Sanquelim, Goa. (g) Dr. Ajit G. Kantak; (h) Smt. Sushma A. Kantak, Both residents of Kantak Hospital, near District Court, Margao – Goa. (i) Shri Dilip N. Mungry; (j) Smt. Neelima D. Mungry, Both residents of Advocate Rosario Lawrence Road, Opp. P.W.D., Fatorda, Margao – Goa. (4)Smt. Sumanbai Dinanath Sinai Nadkarni, major, housewife, represented by her attorney Shri Durgadas Dinanath Sinai Nadkarni, resident of Sanguem – Goa. .... Appellants. 3 Versus (1) Government of Goa, through its Chief Secretary, Secretariat, Porvorim, Bardez – Goa. (2) Executive Engineer, Works Division XVI, Buildings (Central), Ponda – Goa. (3) Dr. Shankar Dattaram Sinai Nadkarni, Medical Practitioner; (4) Mrs. Shobha Shankar Nadkarni, housewife, Both residents of House No.1/1, Dando, Sanguem – Goa. (5) Inas Carvalho, major of age, resident of Dando, Sanguem – Goa. .... Respondents. Shri D. Pangam, Advocate for the Appellants. Shri S. Vahidulla, Government Advocate for the Respondent Nos.1 and 2. CORAM : F. M. REIS, J. DATE : 18th FEBRUARY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Decree 4 dated 31-8-2004 passed by the learned Additional District Judge, South Goa, Margao in Civil Suit No.205 of 2004. 2. A suit came to be filed by the appellants on the ground that there is a property known as “Caulgale” or “Caulgalle” described in the Land Registration Office under No.8812 and enrolled in the Revenue Office under nos.33, 37 and 38 and is bounded towards the east by the property “Madvagal” of Govind Sinai Nadkarni and others, towards the west by the limits or boundary of village Cacora, towards the north by the top of the hill and towards the south by a public way and the property “Campregal”. It is further their case that the said property is bifurcated by the Curchorem-Sanguem road and consists of paddy fields and partly by barren land. It is further their contention that during the survey the paddy field portion of the property was recorded in the name of the appellants under survey Nos.24/1, 24/2, 24/3, 26/1, 27/1 to 27/22, 29/3, 29/5, 29/15, 29/17 to 29/26. However, the barren land forming a portion of the said property having scarce cashew trees is wrongly surveyed under Nos.26/4, 29/4(Part) and 21/1(Part) in the name of the respondent No.1. Objections were raised to the said entries and for correction thereof in the name of the appellants but the survey objections came to 5 be rejected by the survey authorities on the ground that they have no jurisdiction. The dispute was subsequently raised before the Deputy Collector by the appellants to separate the area of the said property recorded in the name of the respondent No.1, and the said proceedings are pending before the said Deputy Collector. It is further their case that a part of the property was given to one Rama Gangaram Dotre for extraction of basalt stones. The appellants also claimed that they have done cashew plantation in the said property and they claimed that the respondents have no right to interfere with the said portion of the property, and consequently filed a suit for a declaration that the suit property as shown in the plan in green parallel lines of survey Nos.21/1, 26/4 and 29/4(Part) admeasuring an area of 1,21,650 sq. meters is part and parcel of their property and for correction of survey records. A permanent injunction was also sought by the appellants. 3. The respondents filed their written statement disputing the claim of the appellants and stated that they are not aware about the said property claimed by the appellants. They have further stated that the survey records have not been wrongly surveyed and that the appellants have no right to the said portion of the property as the same belongs to 6 the Government. The original defendant No.5/respondent No.5 has also filed the written statement and stated that all the trees existing in the suit property have been leased to the said respondent by the appellant No.1. He has further stated that actual area admeasuring 39,000 sq. meters is in his possession as a tenant. He has also stated that another portion has been granted by the Mamlatdar. He has further stated that the area under the Court complex does not belong to the appellants and belongs to the Government and granted to him on lease. 4. The learned Judge framed the issues and recorded the evidence of the witnesses examined by the respective parties and after appreciating the evidence has dismissed the suit filed by the appellants. The learned Judge has come to the conclusion that the appellants are the owners of the property referred to at para 1 of the plaint but has found that the appellants have failed to establish that the property surveyed under Nos.26/4 and 29/4(Part) and 21(1)(Part) has been wrongly surveyed in the name of the respondent No.1. The learned Judge also came to the conclusion that the appellants have failed to prove that they are owners in possession of the property surveyed under No.21/1(Part) and dismissed the suit filed by the appellants. 7 5. Shri D. Pangam, learned Counsel for the appellants has assailed the impugned Judgment and pointed out that the learned Judge has erroneously held that the Appellants have failed to establish that the suit portion of the property belongs to the appellants. He further submitted that the learned Judge has failed to consider the extent of the property as disclosed in the Land Registration documents to ascertain as to whether the suit property belongs to the appellants. The learned counsel submitted that once the property is registered, the title and possession thereof vests on the appellants and consequently the question of the respondents claiming any right therein could not arise. He further submitted that Learned Judge has wrongly held that the suit portion of the property was not in possession of the appellants. Learned Counsel further submitted that the learned Judge has failed to appreciate the evidence on record in a proper perspective and has relied on inadmissible documents to dismiss the suit. 6. On the other hand, Shri S. Vahidulla, learned Government Advocate for the respondent Nos.1 and 2 has supported the impugned Judgment. Learned Government Advocate submitted that the suit portion 8 of the property belongs to the respondent No.1 and the appellants have no right therein. Learned Government Advocate further submitted that the Court complex has been constructed in the suit portion and the appellants have no right at all to any portion of the said property. Learned Government Advocate further submitted that the suit itself is bad as no notice was issued prior to the filing of the suit nor any leave sought on that count. Learned Government Advocate took me through the evidence and pointed out that the suit property belongs to the respondent no.1. 7. Shri D. Pangam, learned Counsel for the appellants in reply to the submissions of the learned Government Advocate has submitted that there is an understanding arrived at between the appellants and the respondent No.1 to the effect that in case the suit portion belongs to the appellants, the respondents would duly compensate them for such land. 8. Having heard the learned Counsel and on perusal of the records, I find that the learned Judge whilst passing the impugned Judgment has essentially relied upon the matriz records in respect of the property which are stated to be enrolled under Nos.33, 37 and 38 of the 9 property “Caulgal” and PW1/Shankar Nadkarni has admitted that all these matriz numbers cover the paddy field portion and that as per the Land Registration documents the property is shown as a paddy field. The learned Judge has as such come to the conclusion that the appellants were owners of only the paddy field portion of the property. The learned Judge has further found that the boundaries of the Land Registration document do not tally with the old cadastral plan. The learned Judge has considered that the Land Registration document shows towards the west as village of Cacora but, however the old cadastral survey plan does not show any boundary as village Cacora. Learned Judge has further found that their Engineer PW2/Sakaram Bhende has stated that if the old cadastral plan is shown to him he will try to locate the property of the appellants as well as of the Government and on being shown the old cadastral plan bearing No.324 he has found that after comparing it, he has identified the said old number bearing No.324 by the letters A, B, C, D, E, F and G which is a part of survey No.21/1 and that in the old cadastral survey the same portion is recorded in the name of the Government. The learned Judge as such found that the suit portion belongs to the Government. 10 9. The learned Government Advocate has fairly conceded that the cadastral survey plan produced on record has not been promulgated. No evidential value can be attached to such plan which has not been promulgated. The learned Judge was not justified to come to the conclusion that the suit portion of the property was belonging to the Government mainly on the basis of such identification. The learned Single Judge of this Court in the judgment reported in 1995(1) Bom.C.R. 588 in the case of Fabrica da Igreja de N. S. de Milagres vs. Union of India and others, has at Para 15 held thus : “15. In respect of the document of old Cadastral Survey No.209 there cannot be any dispute that since the same was not put to public objection or promulgated it cannot be held as a complete or officially closed document bearing any legal evidentiary value. Besides the appellant did not produce any 'Auto de demarcacao' which was an essential requirement to establish the correct boundaries of the land so demarcated upon the cadastral plan in support of its physical possession of the suit plot. Nowhere the appellant also pleaded that such demarcation was done by the competent authorities and in presence of the representatives of the concerned parties. It seems that the appellant was not even aware of the existence of the cadastral survey at the time of the filing of the suit as no reference is made in the plaint to the 'cadastro' and only in the subsequent amendment this fact was brought to the notice of the Court. The deed of demarcation also is silent on this aspect and only mentions the fact of the enrollment of the property in the matriz under 11 No.542 but even in this regard and apart from the effect of the evidence of the respondents, namely of their witness D.W.9 G. G. Kambli and D.W.8 R. G. Kamat, which per se is likely to cast a cloud on the very genuineness of the execution of this document, the fact remains that it is a settled position that a matriz document is neither an instrument of title nor a source of possession and that the organisation of the “matriz predial” is a mere administrative exercise aimed at collecting tax revenues from the land. As such no legal evidentiary value can be attributed also to the said registration for the purpose of establishing ownership title or presuming possession on the land.” Hence the reliance on such unpromulgated cadastral survey by the learned Judge is not justified. Apart from that, there is no dispute that the property claimed by the appellants is registered in the Land Registration Office. 10. Article 953 of the Portuguese Civil Code provides as under: “The inscription in the registration of a title of conveyance without condition precedent, involves, irrespective of any other formality, the transfer of possession in favour of a person in whose favour such inscription has been done.” Therefore the fact that the property of the Appellants has been shown in the Land Registration document not only confers on them due title in respect of the property but also it shows that they are in 12 possession of the property. 11. On perusal of the Land Registration Certificate, the boundaries of the property can clearly be identified. No doubt, the respondents would be entitled to rebut any presumption under the provision of Article 953 of the Portuguese Civil Code. The learned Judge would have to ascertain whether such presumption has been rebutted on the basis of the material adduced by the respondents. The learned Judge as such firstly ought to have considered the extent of the property claimed by the appellants on the basis of the survey plan vis a vis the boundaries as disclosed in the Land Registration document and after such exercise was conducted, the learned Judge ought to have considered whether the appellants had established that they were in possession of the property claimed by them, on the basis of the material produced by the parties. The learned Judge would have to ascertain whether such boundaries can be identified on the site, as mentioned in the Land Registration document. Without conducting such exercise, merely on the basis of relying upon an unpromulgated cadastral survey plan and matriz records, it cannot be accepted that the claim of the appellants could be rejected. The learned Judge has failed to carry out 13 such exercise and consequently an opportunity will have to be given to the parties to establish their respective contentions. Apart from that, the contention of the learned Government Advocate to the effect that notice under Section 80 has not been issued will also have to be considered by the learned Judge whilst disposing of the suit. The claim of Tenancy by the Respondent No.5 has been rightly rejected by the learned Judge. 12. In the interest of justice, considering the rival contentions raised by both the parties, it would be appropriate that the matter be remanded to the learned Judge to decide the suit afresh in the light of the observations made hereinabove. In case, the parties desire to adduce any further evidence, they are at liberty to file such application and the same shall be considered by the learned Judge on its own merits in accordance with law. 13. In view of the above, I pass the following: ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Decree dated 31-8-2004 is quashed and set aside. 14 3. Civil Suit No.205 of 2004 is restored to the file of the learned Additional District Judge, Margao. 4. The learned Additional District Judge, Margao is directed to decide the said suit afresh in the light of the observations made hereinabove. 5. All contentions raised by the parties on merits are expressly kept open. 6. Parties are directed to appear before the learned Additional District Judge on 28-3-2011 at 10.00 a.m. F. M. REIS, J. RD