1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 293 OF 2004 1. Shri Ram Govind Gaonkar, s/o late Govind Teplu Gaonkar, alias Dutorcar, major, widower, agriculturists, landlord; 2. Shri Laximan Ram Gaonkar, son of Ram Govind Gaonkar, major, married and his wife; 3. Smt. Shobavati Laximan Gaonkar, housewife and landlady; 4. Shri Balsu Ram Gaonkar s/o Rama Govind Gaonkar, major, All residing at H. No. 26, Debem-Morpilla, Taluka Quepem, Post Fatorpa, State of Goa. 5. Puno Govind Gaonkar, s/o late Govind Teply Gaonkar, major, married, landlord and his wife; 6. Smt. Radhika Puno Gaonkar, major, housewife and landlady; Both residing at Morpila, H. No. 26, Dabem, Dabem-Morpirla, Taluka Quepem, Post Fatorpa, State of Goa. 7. Shri Bhisso Govind Gaonkar, s/o late Govind Teplu Gaonkar, major, married, landlord and his wife; 8. Mayawati Bhisso Gaonkar, wife of Bhisso Govind Gaonkar, 2 major, residing at Dabem, Morpirla, Taluka Quepem, H. No. 26. 9. Shri Sukdo Govind Gaonkar, s/o late Govind Teplu Gaonkar, major, married, landlord and his wife; 10. Smt. Subhadra Sukdo Gaonkar, major, housewife, landlady, both r/o H. No. 26, Dabem-Morpirla, Taluka, Quepem. 11. Mhalu Bhikro Gaonkar, son of late Bhikaro Teplu Dutorcar, major, widower, landlord, 12. Shri Sarvanant Mhalu Gaonkar, s/o Shri Mhalu Bhikro Gaonkar, major Bachelor; 11 and 12 both r/o H. No. 27 Dabem-Morpirla, Taluka-Quepem. 13. Shri Shaba Bhikro Gaonkar, son of late Bhikro Teply Detorcar, major, married and his wife; 14. Smt. Premavati Shaba Gaonkar, wife of Shaba Bhikro Gaonker, major, housewife and landlady, both r/o H. No. 27 Dabem-Morpirla, Taluka-Quepem. 15. Shri Shambu Bodko Gaonkar, son of late Bodko Kusta Dutorcar, major, married, landlord and his wife; 16. Smt. Kamlavati Shambu Gaonker, major, housewife, landlady, both r/o H. No. 24, Dabem-Morpila, Taluka Quepem 3 17. Shri Sonu Shanu Gaonkar, s/o late Hanu Paik Dutorcar, major, married, landlord, 18. Shri Mohan Sonu Gaonker, s/o Sonu Shabu Gaonker, major, bachelor; 19. Shri Satyawan Sonu Gaonker, s/o Sonu Shanu Gaonker, major, bachelor; 20. Shri Ratnakar Sonu Gaonker, s/o Sonu Shanu Gaonker, major, bachelor 17 and 20 above all r/o H. No. 25, Dabem-Morpirla, Taluka, Quepem. 21. Shri Purso Shanu Gaonker, s/o late Shanu Paik Dutorcar, major, married and his wife; (Expired) a) Ganesh Purso @ Purshottam Gaonkar, (son), major, married and his wife; b) Smt. Geetanjali Ganesh Gaonkar, Major, housewife; c) Rajendra Purso @ Purshottam Gaonkar, Son, major, bachelor, All r/o H. No. 25, Dabem, Morpirla Taluka and d) Jayu Chandrakant Raiker, daughter and her husband e) Chandrakant Raiker, Major, married, agriculturists, R/o Kerim-Rivona, Taluka Sanguem. 4 f) Suman Krishna Velip, daughter and her husband; g)Krishna Shiva Velip, major, married, agriculturist, r/o Pariamol-Canacona. h) Sugandha Ulhas Gaonkar, daughter, major, married and her husband; i) Ulhas Gaonker, major, married, agriculturist, r/o Subdolem-Balli, Quepem Post, Balli j) Miss Sharmila Purso @ Purshottam Gaonkar, minor, represented by her mother as natural Guardian, r/o H. No. 25, Dabem-Morpirla, Taluka-Quepem 22. Smt. Kushavati Purso Gaonkar, major, housewife, landlady, Both r/o H. No. 25, Dabem-Morpirla Taluka Quepem, Post Fatorpa. 23. Shri Krishna Shanu Gaonker, major, married, s/o late Shanu Paik Dutorcar and his wife; (since deceased) a) Dilkush Krishna Gaonkar (son) b) Dayanand Krishna Gaonkar (son) c) Savita Krishna Gaonkar (daughter) All r/o House No. 25, Dabem, Morpirla, Quepem-Goa. 24. Smt. Lilavati Krishna Gaonker, 5 major, housewife and landlord, both r/o H. No. 25, Dabem-Morpirla, Taluka Quepem, Post Fatorpa. 25. Shri Narayan Paik Gaonkar, s/o late Paik Bodco Dutorcar, major, married, landlord and his wife, (since deceased through his heirs) a) Chandra Narayan Gaonkar, s/o late Narayan Paik Gaonkar, aged about 35 years and his wife; b) Smt. Chandru Gaonkar, major, married, housewife, c) Shri Khusali Narayan Gaonkar, son of late Narayan Paik Gaonkar, aged about 30 years, bachelor, all Indian nationals, All residents of H. No. 24, Dabem-Morpirla, Taluka Quepem. 26. Smt. Dwarki Narayan Gaonker, major, housewife and landlady, Both r/o H. No. 24, Dabem-Morpirla, Taluka Quepem. 27. Shri Fondu Paik Gaonkar, s/o late Paik Bodco Dutorcar, major, married and his wife, (since deceased) a) Reshmawadi Ramesh Gaonkar, daughter in law, b) Prakash Fondu Gaonkar, son, c) Paik Fondu Gaonkar, son, d) Ravi Fondu Gaonkar, son, 6 e) Narana Fondu Gaonkar, daughter, All r/o Dabem-Morpirla, Quepem-Goa. 28. Smt. Parvati Fondu Gaonkar, major, married, housewife, Both r/o Dabem-Morpirla, Quepem-Goa. 29. Shri Vithoo Babu Goankar, s/o late Babu Vithoo Dutorcar, major, married, landlord and his wife; 30. Smt. Chandrawati Vithoo Gaonkar, major, housewife, landlady, Both r/o H. No. 23, Dabem-Morpirla, Quepem-Goa. 31. Shri Cuiro Babu Gaonkar, s/o late Shri Babu Vithoo Dutorcar, major, married, landlord, and his wife; 32. Smt. Dayavati Cuiro Gaonker, major, housewife, landlady, Both r/o H. No. 23, Dabem-Morpirla, Taluka-Quepem. 33. Shri Arjun Babu Gaonker, s/o late Babu Vithoo Dutarcar, major, married, landlord and his wife; 34. Smt. Laxavati Arjun Gaonker, major, housewife, landlady, Both r/o H. No. 23, Dabem-Morpirla, Quepem-Goa. 7 35. Shri Bhiva Babu Gaonker, s/o late Babu Vithoo Dutorcar, major, married, landlord and his wife; 36. Smt. Bhagyavati Bhiva Gaonker, major, housewife, landlady, Both r/o H. No. 23, Dabem-Morpirla, Quepem-Goa. 37. Smt. Savitri Janu Velip, widow of late Janu Nagu Velip, major, landlady, r/o H. No. 26, Dabem-Morpirla, Quepem-Goa. … Appellants V e r s u s 1. The Government of Goa, through its Chief Secretary, having office at Secretariat, Panaji-Goa. 2. The Forest Department, Government of Goa, through Conservator of Forests, Junta House, 18th June Road, Panaji-Goa. 3. The Communidade of Province de Balli, through its Attorney, Chandrakant Naik Dessai, major, married, c/o Office of the Administrator of Communidade of Salcete of South Zone, Margao, Salcete, Goa. … Respondents Mr. S.D. Lotlikar, Senior Advocate with Mr. K.B. Surjuse, Advocate for the Appellants. Ms. Sapna Mordekar, Additional Government Advocate for Respondents Nos.1 & 2. 8 CORAM : F.M. REIS, J. DATE : 3rd FEBRUARY, 2011 JUDGMENT : The above appeal challenges the judgment and decree passed in Civil Suit No.106/2004 dated 29/09/2004 passed by the learned Additional District Judge, South Goa, Margao. 2. Parties shall be referred to in the manner as they appear in the cause title of the impugned judgment. 3. The plaintiffs filed the suit claiming, inter alia, that they are the co-owners and in joint possession and enjoyment of a vast landed property known as “Dando” situated at Dabem of village Morpirla of Quepem Taluka, which is enrolled in Taluka Revenue Office under Matriz No.73 and bounded on the east by the paddy field Madiantil Soroddp of “Camara Agraria” of the Communidade of Province De Balli, towards the west by the boundary of the village Colla of Canacona Taluka, on the north by the property Dandea Ollo of Sanclu Cazurcar of Dabem and others and towards the South by the boundary of village Colla of Canacona Taluka. It is further their case that the property is surveyed under no.85/1(part), 87/2 and 86/1 of village Morpirla. The area claimed 9 in respect of the property surveyed under no.85/1 was delineated in the plan A attached to the plan. It is further their case that basically the suit property is a cashew zone having other fruit bearing trees in an area of 26.32 hectars from Survey No.85/1 (part) which forms part and parcel of their property. It is further their case that the remaining part of the property of the said survey number belongs to Communidade of Province De Balli. It is further their case that the Government Forest Department had no right to any portion of the said property, but, however, their names are wrongly included in the property bearing survey no.85/1. It is further their case that the said portion of the property is in their exclusive possession and that the suit property is also part of the property surveyed under no.86/1 recorded in the name of the plaintiffs. It is further their case that the plaintiffs are in enjoyment of the said survey no.87/2 as part of the ancestral property and not in the capacity of a tenant. They have also amended the plaint to inter alia state that they are in possession of the property for last about 80 years and, therefore, the same crystallized a title in their favour. It is further their case that the cashew apples of the suit property are sold to the respective auction bidders of the locality. They accordingly prayed that the name of the Forest Department is to be deleted from the survey records in respect of the property bearing survey no.85/1 to the 10 extent of their property and, accordingly, sought a declaration of title over the said portion of the property and rectification of the survey records and also permanent injunction to restrain interference with the suit property. 4. The defendants nos.1 & 2 filed their written statement. It is their case that they have planted nilgiri trees and other forest trees in the portion of the property under survey no.85/1 and the Forest Department has a right to the said portion of the property. They disputed the claim of the plaintiffs as far as the said portion of the property is concerned. It is further their case that the entire area of the property bearing survey no.85/1 is in their possession and that the name of the Forest Department is rightly recorded in the survey records. The said defendants disputed the claim of the plaintiffs as far as their claim of possession is concerned and prayed that the suit be dismissed. 5. After framing the issues and recording of the evidence, the learned Judge by the impugned judgment dated 29/09/2004 has partly decreed the suit and come to the conclusion that the plaintiffs have established that they are in possession in respect of property bearing survey nos.87/2 and 86/1. The claim of the 11 plaintiffs in respect of the portion of the property bearing survey no.85/1 came to be rejected. The learned Judge also came to the conclusion that the defendants have established that they are in possession of the suit property bearing survey no.85/1 and that the name of defendant no.2 is rightly recorded in the survey records. Accordingly, the suit filed by the plaintiffs came to be disposed of by the impugned judgment. 6. Being aggrieved by the said judgment, the plaintiffs have preferred the present appeal. 7. Shri S.D. Lotlikar, the learned Senior Counsel appearing for the plaintiffs has assailed the impugned judgment on two counts. He pointed out that as far as the claim of the plaintiffs in respect of the property bearing survey no.86/1 is concerned, the learned Judge has decided the issue in favour of the plaintiffs, but however, in the operative part of the said judgment, the said survey number has not been included. He, accordingly, prayed that the property bearing survey no.86/1 is also to be accepted to be belonging to the plaintiffs. The learned Counsel further submitted that in the deposition of PW1/Vithu Gaonkar, he had exhaustively stated that the plaintiffs had done extensive cultivation of fruit bearing trees in 12 the portion of the property bearing survey no.85/1. Learned Counsel further submitted that the plaintiffs have produced oral evidence to establish that the substantial area of the property bearing survey no.85/1 was in their possession. Learned Senior Counsel submitted that there was evidence on record to substantiate that the cashew apples existing in the said portion of the property were being enjoyed by the plaintiffs. Learned Senior Counsel took me through the impugned judgment and pointed out that the learned Judge has erroneously drawn a presumption under Section 105 of the Land Revenue Code, when survey records produced on record were not promulgated. Learned Counsel further submitted that in any event such presumptions stand rebutted in view of the fact that the plaintiffs have adduced oral evidence that the property known as “Dando” of village Morpirla was in their possession. Learned Senior Counsel also took strong objection to the finding of the learned Judge while discarding the evidence of PW5/Vilas Raikar, who was an expert and who had admitted that he had drawn the plan at annexure A, which was part of the plaint filed by the plaintiffs. Learned Senior Counsel further submitted that the finding of the learned Judge that disputed portion of the property bearing survey no.85/1 has not been identified cannot be accepted in view of the plan produced by 13 PW5. Learned Senior Counsel, as such, submitted that the impugned judgment deserves to be quashed and set aside to the extent as claimed for by the plaintiffs. 8. On the other hand, Ms. Mordekar, learned Additional Government advocate appearing for the respondents nos.1 & 2 has supported the impugned judgment. She pointed out that it is admitted fact that as far as the property bearing survey no.86/1 is concerned, the said respondents have no claim to the said portion of the property but however, as far as the claim of the plaintiffs in respect of the property bearing survey no.85/1, there is no evidence adduced by the plaintiffs to substantiate their claim that the possession of the said portion was with the plaintiffs. The learned Additional Government Advocate further submitted that the learned Judge has duly appreciated the evidence on record and rightly come to the conclusion that the possession of the property bearing survey no.85/1 was with the said respondents. Learned Additional Government Advocate further submitted that the plaintiffs have failed to identify the portion of the property claimed by them in respect of survey no.85/1. Learned Additional Government Advocate further submitted that the possession of the suit portion of the property is with the respondents nos.1 & 2 as the 14 Forest Department has planted nilgiri trees and other forest trees in the said portion of the property. Learned Additional Government Advocate, as such, pointed out that the impugned judgment deserves to be quashed and set aside. 9. Having heard learned Counsel and on perusal of the record, following points for determination arise in the appeal: POINTS FOR DETERMINATION : (i) Whether the property bearing survey no.86/1 belongs to the plaintiffs. (ii) Whether the plaintiffs have established that part of the property bearing survey no.85/1 belongs to the plaintiffs. 10. Dealing with the first point for determination, on perusal of the impugned judgment specially para 10 thereof, I find that the learned Judge has categorically come to the conclusion that the plaintiffs have established that the property bearing survey no.86/1 and 87/2 belongs to the plaintiffs. Once the learned Judge has come to such conclusion and there is no challenge to the said finding by any of the defendants, there is no reason not to accept the contention of the learned Senior Counsel to the effect that the property bearing survey no.86/1 has to be held to be belonging to 15 the plaintiffs. As such, the first point for determination is answered accordingly. 11. Dealing with the second point for determination and on perusal of the records, I find that the plaintiffs have adduced evidence to claim that the property bearing survey no.85/1 is in their possession. The said claim of possession has not been considered by the learned Judge while passing the impugned judgment. Apart from the evidence of PW1, evidence of PW2, PW3 and PW4 also state that part of the property bearing survey no.85/1 is in possession of the plaintiffs. The aspect as to whether the said claim of possession is to be accepted or not should be a matter to be appreciated after considering the entire evidence on record including the documentary evidence produced by the parties. The plaintiffs have also produced the document of Land Registration in respect of the property registered in the Land Registration Office under No.10642 wherein the boundaries of the property are mentioned. The aspect as to whether the boundaries as mentioned in the land registration document cover any portion of the property bearing survey no.85/1 and whether the plaintiffs are entitled to the said portion is a matter which will have to be considered after appreciating the evidence on record. On perusal 16 of the impugned judgment, I find that such exercise has not been carried out by the learned Judge while passing the impugned judgment. The learned Judge has held that the plaintiffs have failed to establish the existence of the property with the boundaries as claimed by the plaintiffs. But, however, on perusal of the cross- examination of DW1, I find that the said witness had in fact accepted the existence of such property along with the boundaries. But, however, the fact as to whether the said boundaries correspond to or included as portion of the property bearing survey no.85/1 has not at all been considered by the learned Judge while passing the impugned judgment. As existence of the property has not been disputed, the fact remains that the exercise will have to be done to ascertain as to whether the boundaries as claimed by the plaintiffs include property bearing survey no.85/1. The learned Judge while passing the impugned judgment has drawn the presumption under Section 105 of the Land Revenue Code while it is an admitted fact that the plaintiffs had only produced form no.III and not the promulgated records. It is well settled that the said presumption is available only in respect of promulgated records and not on the draft records of rights. In the present case, though the existence of the property has been accepted by DW1, I find that there is no cogent evidence on record to establish as to whether the boundaries 17 as mentioned in the documents of the plaintiffs correspond and/or include any portion of the property claimed by the plaintiffs in the suit. The boundaries shown in Land Registration Document have also to be co-related with the suit property, and thereafter consider whether any portion thereof is in possession and ownership of the plaintiffs. Apart from that the surveyor has been examined and his evidence will have to be tested on the face of the documentary evidence and ownership claimed by the plaintiffs. 12. As the learned Judge has failed to correctly appreciate the evidence on record, I find that in the interest of justice, it would be appropriate that the learned Judge be directed to decide the claim of the plaintiffs with regard to the portion of the property bearing survey no.85/1 afresh, after giving both the parties an opportunity of being heard. In such circumstances, the only point for determination to be considered by the learned Judge is as follows: (i) Whether the plaintiffs are owners in possession of any portion of the property admeasuring 26.32 hectars of the property bearing survey no.85/1 of Morlpirla village, referred to at para 4 of the plaint? The said issue will have to be decided by the learned Judge after giving both the parties an opportunity to lead from the evidence in support of their rival claims. After such evidence is 18 adduced, the learned Judge shall hear both the parties and decide the suit afresh on the said point for determination, on the basis of the evidence which has already been adduced and additional evidence which shall be adduced by both the parties. 13. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment is modified and it is held that the appellants are the owners in possession of the property bearing survey no.86/1 and 87/2 of Morpirla village. (iii) The learned Judge is directed to decide the said point for determination referred at para 12 above afresh on its own merits, after hearing both the parties in the light of the observations made herein above and in accordance with law. (iv) All contentions of the parties on merits are left open. (v) The appeal stands disposed of accordingly with no order as to costs. (vi) The parties are directed to appear before the learned Judge on 21/03/2011 at 10.00 a.m. F.M. REIS, J. NH/-