1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.110 OF 2004 (1) Shri Kusta Narayan Ghadi, (2) Shri Bablo Narayan Ghadi, Both residents of Kansarpal, Ghadi Vaddo, P.O. Assonora, Goa – 403 503. …. Appellants V/s Gomantak D.B.S. Saunstan, Kansarpal, P.O. Assonora, Goa. …. Respondent Mr. D. Pangam, Advocate for the Appellants. Mr. S.D. Lotlikar, Senior Advocate with Mr. S.R. Rivonkar, Advocate for the Respondent. CORAM : F.M. REIS, J. DATE : 7th JANUARY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 27/01/2004, passed in Land Acquisition Case No.146/1990 by the learned Additional District Judge, Mapusa. 2. By an acquisition initiated by the Government, land under Survey No. 827/1(part) having an area of 12,375 square metres was acquired for the construction of the Left Bank Main Canal of Tillari Irrigation Project at Latambarcem. By an award passed under 2 Section 11 of the said Act, the compensation was fixed at Rs.1,32,117.20. In view of the rival claims put forward by the parties herein, the dispute was referred to the learned District Judge under Section 30 of the Land Acquisition Act, 1894. By judgment and award dated 27/01/2004 passed in LAC No.146/1990, the learned Additional District Judge at Mapusa held that the compensation as awarded by the Land Acquisition Officer is to be apportioned in favour of the applicants/respondents herein. Being aggrieved by the said judgment, the respondents/appellants herein have preferred the present appeal. 3. Mr. D. Pangam, the learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that the Reference Court has totally misdirected himself in holding that the amount of compensation is to be apportioned in favour of the respondents herein. The learned Counsel pointed out that the Reference Court has failed to consider the evidence adduced by the appellants and came to an erroneous conclusion that the amount deserves to be apportioned in favour of the appellants. The learned Counsel further submitted that the presumption under Section 105 of the Land Revenue Code would not arise in the present case as the survey records have not been promulgated. The learned 3 Counsel further submitted that the judgment of the learned Judicial Commissioner's Court can in no manner assist the case advanced by the respondents as the same is not binding on the appellants. The learned Counsel further submitted that there is no evidence on record adduced by the respondents to establish that the property which was subject matter of the acquisition was part and parcel of the property 'Molli' as claimed by the respondents. The learned Counsel further submitted that the property which is subject matter of the acquisition was in possession of the appellants and, as such, the compensation ought to have been awarded in favour of the appellants. The learned Counsel took me through the evidence on record and pointed out the infirmities in the deposition of the respondents and, as such, submitted that the Reference Court has erroneously appreciated the evidence on record and, consequently came to a wrong conclusion that the compensation is to be awarded in favour of the respondents. The learned Counsel took me through the evidence on record and pointed out that there is no discussion by the Reference Court to establish as to who was in possession of the acquired portion of the property. He, as such submitted that the impugned judgment deserves to be quashed and set aside. 4. On the other hand, Shri S.D. Lotlikar, learned Senior 4 Counsel appearing for the respondents has supported the impugned judgment. The learned Senior Counsel submitted that the Reference Court has rightly appreciated the evidence on record and come to the conclusion that the acquired land belonged to the respondents. The learned Senior Counsel further pointed out that as per the Exhibit 15, there is an order passed by the Deputy Collector to the effect that the land acquired is to be mutated in the name of the respondents herein. He further submitted that once the said order has not been challenged by the appellants, the same is binding on the appellants and, consequently, the presumption under Section 105 of the Land Revenue Code would arise in favour of the respondents. The learned Counsel further submitted that in view of the judgment passed by the learned Judicial Commissioner, the rights of the respondents to the property has been established as far as the property 'Molli' is concerned and, consequently, the question of the appellants now disputing the right of the respondents to the said property would not arise. The learned Counsel took me through the evidence on record and pointed out that there are no infirmities committed by the Reference Court while passing the impugned judgment and, as such, no interference is called for in the impugned judgment passed by the Reference Court. 5 5. Having heard the learned Counsel and on perusal of the records, the following point for determination arises in the appeal POINT FOR DETERMINATION Whether the Reference Court was justified to come to the conclusion that the property surveyed under no.827/1 was part of the property belonging to the respondents. 6. On perusal of the written statement filed by the appellants, their claim was that the property surveyed under No.827, sub- divisions 1,2 & 3 of Village Latambarcem of Bicholim Taluka forms part of the property known as “Pisteavoril Bhumi” or “Pisteachea Boroda Voril Bhumi” and is owned and possessed by the appellants being the heirs and successors of late Babli Narayan Ghadi. It is further their case that the entire property surveyed under No.827 was registered in the Land Registration Office of Bardez under no.16232 of Book No.42 and their boundaries are mentioned therein. It is further their case that the property known as “Ambeachea Casavoril Tucdo” situated at Latambarcem is registered under Survey No.817 with sub-division and lies on the eastern side of the property belonging to the appellants' Survey No.827. It is further their case that the said property was under 6 litigation which ended up in the judgment passed by the learned Judicial Commissioner's Court dated 30/12/1980. It is further their case that the property which is subject matter of the acquisition is mainly cashew garden and that the other property surveyed under no.828 with its sub-divisions has the residential houses of the appellants. Accordingly, it was the claim of the appellants that they are entitled for the compensation awarded in the said proceedings. 7. In support of the claim of the respondents, they examined Deelip Karekar as AW1 who was the constituted attorney of the respondents. It is his case that the respondents are the owners in possession of the property known as 'Molli' situated at Kansarpal and surveyed under no.827/1, 827/2, 827/3 (parts) and the said property was alloted to the respondents by a grant of the Communidade dated 5/02/1834. The boundaries of the property 'Molli' were stated to be as the nalla towards the east, west by the land of Communidade of Latambarcem, north by the property of Zoriche Thikan and towards the south by the property of Mharwado. It is further his case that there was dispute between the parties which came to be concluded by an order dated 30/12/1980 wherein it has been held that the property 'Molli' belonged to the respondents. It is further his contention that the dispute raised 7 before the Deputy Collector in respect of the said property also came to be disposed of whereby the said survey numbers were held to be belonging to the respondents and the names of the appellants were ordered to be deleted from the survey records. It is further his contention that the order of the Deputy Collector was not challenged by the appellants. He, accordingly, claimed that the compensation is to be paid to the respondents. In his cross- examination, he denied the suggestion that the property “Pisteachea Boroda Voril Bhumi” is distinct from the property 'Molli'. He has further stated that property 'Molli' is registered in Land Registration Office under no.518. He admitted that towards the northern side, the land under the grant is not shown as Zorichem Thikan, but the property is shown as Kansar's and temple of Kalika. He has further admitted that the survey proceedings were pending when the dispute was under adjudication before the learned Judicial Commissioner. He denied the suggestion that the respondents had never enjoyed the property surveyed under no.827. 8. In support of their claim to the compensation, the appellants examined Shri Kushta Narayan Ghadi. He has stated that he is the co-owner in possession of the property known as “Pisteache 8 Boroda Voril Bhumi” which is described in Land Registration Office of Bicholim and bounded on the east by the property of Communidade of Latambarcem; on the west and south by the aforamento of Dhano Govind Gaunkar and on the north by the aforamento of property of Babli Narayan Ghadi as per the Certificate of description. He has further stated that the said property came to be partitioned by document dated 13/04/1944 between Babli Narayan Ghadi, Soma Mucunda Magico and Siva Dulo Ghadi. He has further stated that the said property is enrolled in Taluka Revenue Office in the name of Babli Narayan Ghadi under Survey No.827/1, 2 & 3 of Village Latambarcem. He has further stated that in the survey records their names figure in respect of all the three sub-divisions and that the land was originally granted to their ancestors by the Communidade of Latambarcem and that their ancestors occupied an area larger than the area originally granted and the larger area occupied by the ancestors was legalised by the Communidade as per the documents in their possession. He has further stated that their property has nothing to do with the property 'Molli' belonging to the respondents. In the cross-examination, he has initially given the boundaries with regard to the 1/3rd share gifted to him by late Babli, but thereafter stated that they are boundaries of the whole 9 property. He has further admitted that the property of Babli is within the boundaries of the property mentioned in the description as Exhibit 19. He has further stated that the area has not been correctly shown in the inscription certificate at Exhibit 18. He has further stated that Babli was in possession of the area in excess to the one granted to him by the Communidade. He has stated that he was in a position to produce the document showing the regularisation of the said possession and he was accordingly directed to produce such document. He has admitted that in Exhibit 22 there is nothing mentioned to the fact that excess property was enjoyed by said Babli. He has admitted that there are discrepancies in the boundaries as shown in the matriz record. On further cross-examination, the said witness has produced the document showing the act of possession in their favour which is at Exhibit 26. He has admitted that the area shown in the said grant is 9,200 square metres. He has admitted that the total area of the property in survey records is 63,000 square metres and the area granted is only 9,200 square metres to said Babli Ghadi. He has further admitted that in the year 1944 as per Exhibit 22, 1/3rd is kept for Babli and 2/3rd was sold to Siva Dulo Ghadi and Vithoba Ghadi. To a specific question that as per the grant the area is shown as 9,200 while as per the land description document the area 10 is 1,200 square metres, the said witness gave no reply inspite of the question being repeated. But, however, he thereafter stated that both the areas are not correct. He denied the suggestion that Babli was not in possession of the area in excess to the one granted to him. The next witness examined is Poliki M. Reddy as RW2 who is stated to be a Field Surveyor. He has produced the report as well as the sketch which is at Exhibit 35. He has stated in cross- examination that he has only prepared site inspection report and not a survey report and that he has not seen the title document of the appellants before conducting the site inspection and preparing the drawing. He has also stated that he is not in a position to state the boundaries of the documents as he has not perused the same. He has stated that he has only shown the area which is being acquired for the purpose of the canal located in the property under survey no.827/1,2 & 3. He has admitted that the residential houses are located on the eastern side of the property and are beyond survey no.827. The next witness examined is RW3, Datta Ghadi. He has stated in his affidavit that the appellants are the owners of the property known as “Pisteachea Boroda Voril Bhumi” and boundaries of which are mentioned at para 3 of the affidavit. He has further stated that he was the auction bidder of the cashew zone of the said property for the period of 1982 to 1992 and that the said 11 property fell in the said cashew zone and it is owned and possessed by the appellants. He has however stated that he is aware that part of the said land has now been acquired. In the cross-examination, he has admitted that he is extracting juice of the cashew fruits located in his property. He has stated that the applicants are having many properties and he is not aware about their names or survey numbers. He has admitted that the property under Survey No.827/1,2 & 3 is admeasuring 63,000 square metres and is rectangular in shape. He has further stated that he has not seen the property documents. He has further stated that Kalika temple is at a distance of 1 km from the land. He has further stated that he is not aware whether names of the appellants have been cancelled from the survey records in view of the appeal before the Deputy Collector. He has denied the suggestion that the said property is known as 'Molli'. He denied the suggestion that he falsely stated that he was removing cashew from the said trees. He has further stated that the property surveyed under no.828 is part of the property “Pisteachea Boroda Voril Bhumi”. 9. The learned Judge while appreciating the evidence on record has minutely considered the oral as well as documentary evidence adduced by both the parties. The learned Judge has considered the 12 admissions which were made by the appellants in their examination in chief as well as the inferences which could be drawn from such admissions. The learned Judge has also considered the evidence adduced by the appellants on record including the depositions of RW1, RW2 and RW3 and highlighted the manner in which the documentary evidence was produced by the said respondents during the examination of the said witnesses. The learned Judge has also considered the document at Exhibit 12 which was an order passed in the appeal preferred by the appellants before the Deputy Collector whereby the claim of the respondents came to be accepted. The respondents had sought to delete the names of the appellants from the survey records and include their names in such records. The learned Judge has also taken into consideration the judgment passed in First Appeal No.3/1980. The learned Judge further took note of the fact that in view of the said order, the names of the appellants came to be deleted and the names of the respondents were ordered to be restored in the respective records. Another document taken into consideration is Exhibit 21 which is a Modi document whereby the property 'Molli' came to be granted by Communidade of Latambarcem in favour of the respondents. The boundaries shown in the said document and those claimed by the respondents were the same. The learned Judge also considered the 13 judgment of the learned Judicial Commissioner dated 30/12/1980 whereby the dispute between the Communidade and the respondents came to be decided whereby the respondents were held to be the owners of the property known as 'Molli' or 'Mollo' or 'Moloi' with undefined boundaries and the Communidade was said to be the owner of the property known as Ambeachea Cassavoril Tucdo. The learned Judge further considered the documents adduced by the appellants and found that the land registration document discloses that only an area of 1,200 square metres was granted to the appellants and the same was silent with regard to the claim of regularisation. The learned Judge considered the fact that the property surveyed under no.827 admeasures an area of about 63,000 square metres which cannot be reconciled with the claim of the appellants on the basis of the documentary evidence. The learned Judge further held that the appellants have failed to establish the location of their so called property with the property surveyed under no.827. The learned Judge further held on the basis of material on record that considering the contentions of the appellants that the said matter of the land acquired was the subject matter of the property wherein the dispute was pending before the A.K. in D.C. Case No.397, came to the conclusion that the appellants were not entitled to raise such contrary claims. 14 Accordingly, the Reference Court has ordered that amount is to be apportioned in favour of the respondents. 10. On minutely perusing the impugned judgment, I find that there is no infirmity committed by the Reference Court in appreciating the evidence on record. The material adduced by the appellants establishes that the Land Registration Document produced by the appellants discloses that the area of the property is 1,200 square metres. The document of grant by the Communidade produced by the appellants further shows that the area granted to the appellants admeasures 9,200 square metres. Even assuming there is a typographical mistake in recording the area in the said Land Registration Document, nevertheless considering that the area of the property surveyed under no.827 admeasures 63,000 square metres, the appellants have failed to adduce any evidence to substantiate their claim that the land acquired admittedly surveyed under no.827/1 forms part of the property which was originally granted to the appellants by the Communidade. The contention of the learned Counsel appearing for the appellants to the effect that the appellants were in possession of an excess area beyond the one which was alloted to them by the Communidade can not be accepted. There is no evidence on record adduced by the 15 appellants to substantiate their said claim. In fact, the evidence adduced with regard to their said claim for the compensation to the land acquired cannot be accepted. The witness examined by the appellants/RW3 who states that he was plucking the cashew apples from the cashew trees in the cashew zone which included the area of the land acquired, has not been established by any documentary evidence on record. In the cross-examination, he was unable to sustain the said contention and no evidence has been adduced to substantiate his claim that any cashew apples were removed from the trees which were stated to be located in the acquired land. Apart from that the field surveyor examined by the appellants has also not perused any documents of title nor has prepared any survey plan to disclose the actual boundaries vis-a-vis the boundaries as shown in the Land Registration records. The orders passed by the Deputy Collector at Exhibit 12 demonstrate that the names of the appellants came to be deleted in view of the dispute raised by the respondents in respect of the property surveyed under no.827/1 which is subject matter of the present acquisition. The said order has become final. No grievance has been raised to the deletion of the names of the appellants from the survey records. 11. The judgment of the Judicial Commissioner's Court, 16 conclusively establishes that the respondents are the owners of the property 'Molli' which was originally granted to them by the Communidade. Once the ownership of the said property 'Molli' has been established and the names of the appellants do not figure in the survey records, the question of the appellants having any claim to the acquired portion of the land would not arise. The survey records of the property Surveyed under No.827 cannot be referred to the title of the appellants. The boundaries in the Land Registration Document of the property of the appellants do not correspond to the boundaries of the property of the said survey number. There is a big discrepancy in the area shown in the Land Registration document vis-a-vis survey records and no satisfactory explanation has been given by the appellants in support of their contention that they were in possession of any excess area. There is no evidence on record produced by the appellants to establish that the alleged excess area was belonging to the Communidade and the same came in their possession and/or regularised in their favour. Having failed to establish any material to that effect, the question of putting up any claim to the compensation of the acquired land on the basis of such material does not arise. 12. On the other hand, the respondents have produced 17 documentary evidence including their original grant in Modi language at Exhibit 11 which shows the boundaries of the properties. The learned Judge has rightly appreciated the evidence on record produced by the respondents and considered the boundaries as stated in the documents and has come to the conclusion that on the basis of such material, the compensation awarded by the Land Acquisition Officer is to be apportioned in favour of the respondents herein. As the appellants have failed to establish their claim that the acquired land was part of their property, the question of apportioning any compensation in favour of the appellants would not arise. 13. The contention of the learned Counsel for the appellants that the evidence has not been appreciated by the Reference Court in proper perspective cannot be accepted. The Reference Court has minutely examined every piece of evidence produced by both the parties and after appreciating the same has rightly come to the conclusion that the compensation awarded by the Land Acquisition Officer is to be apportioned in favour of the appellants. There is no infirmity committed by the Reference Court while passing the impugned judgment and holding that the amount awarded by the Land Acquisition Officer has to be apportioned in favour of the 18 respondents. The point for determination is answered accordingly. 14. In view of the above, I find there is no merit in the above appeal and the same is dismissed accordingly, with no orders as to costs. F.M. REIS, J. NH/-