1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 107 OF 2005 1. Shri Pandhari Babu Naik, major, married, r/o Torla, Shiroda, Ponda Taluka. 2. Shri Datta Babu Naik, major, married, r/o Torla, Shiroda, Ponda Taluka. ... Appellants versus State, Chief Secretary, Government of Goa (Through D. Conservator of Forest, Cashew Division, Ponda, Goa). ... Respondent Shri M. B. Da Costa, Senior Advocate with Shri J. A. Lobo, Advocate for the Appellants. Shri G. Shirodkar, Additional Government Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 19TH NOVEMBER, 2010. ORAL JUDGMENT This is defendants' appeal and is directed against Judgment dated 7-12-2004 of the learned IInd Adhoc Additional District Judge, Panaji, by which the suit filed by the plaintiff has been decreed and the 2 defendants have been restrained from interfering in the suit property. Earlier, the defendants were restrained by an Order of temporary injunction dated 9-12-1996 against which the defendants had not filed any appeal. 2. The parties hereto shall be hereinafter referred to in the names as they appear in the cause title of the suit. The dispute between the plaintiff and the defendants is as regards 86,000 sq. meters of survey No. 802/1(or simply survey No.802) of village Shiroda. 3. The case of the plaintiff is that there exist a cashew plantation in Ponda taluka belonging to the plaintiff spread over an area of 2768000 sq. meters and covers several survey numbers including survey No.802. The other survey numbers are mentioned in para 2 of the plaint, and the said entire plantation is divided in seven blocks and the disputed property is block No.4 which covers an area of 86,000 sq. meters comprising of the said survey No.802 of village Shiroda which was an irregular polygon and bounded one side by survey No.836 of village Shiroda, on the other side by property belonging to Manguesh Yesso Porab and on the third side partly by survey No.801 and partly by 3 village Panchawadi and on the fourth side by boundary of village Panchawadi and on the fifth side by survey No. 837 of village Shiroda(by clockwise direction). According to the plaintiff, the property was acquired for developing cashew plantation from the Comunidade of Shiroda and notifications under Sections 4 and 6 were published on Gazette dated 26-12-1974 and 29-3-1975 respectively, and by award of the Land Acquisition Officer dated 2-7-1975 compensation payable in the sum of Rs.1,7,328/- was paid to the Comunidade of Shiroda and after taking possession of the said land, the plaintiff through the Forest Department raised a cashew plantation and after the cashew plantation started yielding fruit, the same was regularly auctioned to the highest bidders from the year 1981 to the year 1992 and there was no obstruction or objection from any person or persons and the plaintiff through its Forest Department has been in continuous possession and enjoyment of the said plantation including the suit portion from the time possession was taken by the plaintiff from the Comunidade of Shiroda but somewhere in the first week of November, 1993 when the employees of the plaintiff visited the cashew plantation, they saw the defendants interfering in the suit portion of the cashew plantation and the employees informed the Officers of the plaintiff and after the defendants were 4 questioned by the said Officers the defendants went away and again on 2-12-1993 the employees of the plaintiff found the defendants raising some fence and they reported the matter to their Officers who questioned the defendants again, and this time, the defendants challenged the Officers saying that they would continue to interfere with the suit portion and they would not allow the plaintiff to auction the suit portion. 4. Claiming that the defendants had no right to the suit portion of the cashew plantation of the plaintiff which they had acquired from the Comunidade of Shiroda the plaintiffs filed a suit, inter alia, for permanent injunction. 5. The case of the defendants was that the disputed property was never acquired by the plaintiff and they were never in possession of the same and it was further their case that it was their ancestral property and their names were recorded in form Nos.I and XIV in the occupant's column. It was their case that the plaintiff was falsely claiming the said property. 6. The learned trial Court framed several issues. The learned 5 trial Court observed that the defendants who were claiming to be the owners in possession of the suit portion had never produced any documents except form Nos.I and XIV to justify their ownership. The learned trial Court observed that DW1 had admitted in cross-examination that he came to know about the existence of their names in form Nos.I and XIV only when notice of mutation was received by him and that the defendants had also not given any explanation as to how the property had come in the hands of their ancestors. The learned trial Court noted that the receipts produced by the defendants of Goa Bagayatdar Sahakari Kharedi-Vikri Society Ltd. Shiroda could not help the defendants to prove possession over the suit property and the contention of the defendants that the suit property was not acquired could not be accepted. The learned trial Court also noted that DW2/Yeshwant Vithal Kamat had admitted in the cross-examination that the property belonged to the Comunidade and the same was acquired by the Government. The learned trial Court also noted that the certificate of possession produced on record shows that the possession was taken over by the plaintiff from the Comunidade of Shiroda along with several other properties and that the evidence on the whole showed that the plaintiff was the owner in possession of the suit property. 6 7. Shri M. B. Da Costa, learned Senior Counsel, submits that the defendants were not intimated about the acquisition but concedes that the Comunidade of Shiroda has been paid the compensation due and payable on account of acquisition and further concedes that till date the defendants have not taken any action to recover the compensation from the said Comunidade of Shiroda. Learned Senior Counsel submits that the document of possession-Exh.PW1/7 signed by the Divisional Forest Officer cannot be taken to be a document of taking of possession and it could have been prepared subsequently. Learned Senior Counsel submits that the signature of any of the defendants was not taken on the said certificate of possession-Exh.PW1/7. Learned Senior Counsel submits that in case the plaintiff had taken possession of the disputed portion of survey No.802/1 it was necessary for the plaintiff to have drawn a panchanama and signature of the defendants taken thereon and in this context, Shri Da Costa, learned Senior Counsel has placed reliance on the case of Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab and others((1996) 4 SCC 212) and Mohinder Singh Sharma and others v. State of Haryana and others(AIR 1989 Punjab and Haryana 110). Learned Senior Counsel further submits that in case the plaintiff had taken over the possession as 7 per certificate dated 4-2-1976 at Exh.PW1/7 colly, the defendants would not have been allowed to enjoy the disputed property from the year 1976 to the year 1993. Further, learned Senior Counsel submits that PW1/Raghunath Dessai had stated that they had taken possession of the acquired property in July, 1975 and this shows that the certificate of possession dated 4-2-1976 was prepared subsequently. Learned Senior Counsel has further submitted that DW3/Custodio Gomes who is an auction purchaser has supported the case of the defendants. 8. The plaintiff had produced the Gazette notification under Section 4 of the Land Acquisition Act, 1894 published on Gazette dated 6-12-1974 and so also the Gazette notification under Section 6 of the same Act published on Gazette dated 29-3-1975 as well as the award of the Land Acquisition Officer dated 2-7-1975 by which the compensation payable of Rs.1,27,328/- was awarded to the said Comunidade of Shiroda. The notifications show that it is the Comunidade of Shiroda who was shown as a party believed to be interested in survey No.802, amongst other survey numbers. It is quite probable that when the said notifications were published, the survey records were at their nascent stage and were not finalized and survey No.802 was recorded in the 8 name of Comunidade of Shiroda. There can be no other explanation otherwise why the name of Comunidade of Shiroda should have been shown as a person believed to be interested in the land surveyed under No.802 of Village Shiroda when survey No.802 was notified for acquisition. It is only after the survey records were promulgated that the names of the defendants came to be shown in the occupants column of survey No.802/1 of which the defendants are now seeking to take advantage. The plaintiff, amongst others, had examined PW2/Agnelo Juliao Barbosa who was working in the Directorate of Land Survey and who at the relevant time was on deputation to the Forest Department and who had stated that he had examined the Comunidade plan and had surveyed the land to be acquired by the Government for the purpose of cashew plantation. According to him, the entire area admeasuring 2768000 sq. meters was acquired from the Comunidade of Shiroda and it included the suit portion. The defendants were unable to make any dent into his evidence. The plaintiff had also examined PW4/Shri Mahadev Hede, the attorney of the Comunidade, who had stated that the Government had acquired the said area admeasuring 2768000 sq. meters and that they were paid the compensation. As stated by him, survey No.802 was included in the acquired land. He also stated that he had 9 handed over the possession of the said land to the Forest Department and not only that the Comunidade had sought a reference made, and the District Court had enhanced the compensation to Rs.0.25 and the Government had filed an appeal against the order of the District Court. The defendants in case they were the owners or in possession of the disputed land of survey No.802 would not have remained quiet firstly, when the Comunidade was paid the compensation by the L.A.O. or not to recover the same from them or subsequently after an order of temporary injunction was passed against them without challenging the same. The evidence of PW4/Shri Hede has also gone unchallenged. The plaintiff had also examined PW5/Shri Suresh Gaonkar who had produced the auction agreements of the year 1983 and 1991, amongst other documents. 9. On the other hand, the defendants own witness DW2/Yeshwant Kamat had admitted in cross-examination and thereby destroyed the case of the defendants, by admitting that originally the suit property belonged to the Comunidade and that at present it was acquired by the Government. The defendants witness DW3/Kistod Gomes was unable to produce any document to support his claim that he had ever 10 taken on auction any part of the cashew plantation apart from the fact that he admitted that he had not taken auction of the disputed property and had taken auction of one property known as Chandel. The defendants witness DW4/Conceicao Filip Fernandes had gone to the extent of stating that he did not know to whom the property 802 belongs. DW1/Pandhari Naik in cross-examination had also admitted that they did not have any document to justify their ownership except form Nos.I and XIV. He had further stated that he did not know how the property came in the hands of his father and that he had not seen any documents concerning the disputed property. In further cross- examination he had admitted that he came to know that their name was figuring in form Nos.I and XIV only when he received the notice of mutation i.e. the mutation sought by the plaintiff subsequent to the acquisition. The receipts produced by him did not have any survey number mentioned on them and they could as well be of some other property owned by the defendants. The defendants had only brought their close neighbours to support the case of the defendants who did not at all stand the test of cross-examination inasmuch as their oral evidence also could not stand in the light of voluminous documentary evidence produced by the plaintiff to support its claim. 11 10. The plaintiff had produced the certificate of possession- Exh.PW1/7 dated 4-2-1976 signed by the Land Acquisition Officer, the Divisional Forest Officer, etc. and that the possession was given to the Forest Department, has been confirmed by none other then the attorney of the Comunidade. 11. The Apex Court in Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab and others(supra) has, inter alia, observed that the normal mode of taking possession is drafting the panchanama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession. 12. In my view, the defendants cannot take any advantage of the observations of the Apex Court in the above case for in this case the land belonged to the Comunidade and the possession was taken pursuant to certificate dated 4-2-1976 by the Land Acquisition Officer in the presence of the representative of the acquiring department. There was no 12 question of taking any signature of the defendants because the land was acquired from the Comunidade of Shiroda and the attorney of the said Comunidade has confirmed the possession of having been taken over by the plaintiff. In the case of Mohinder Singh Sharma and others v. State of Haryana and others(AIR 1989 Punjab and Haryana 110) there was no documentary evidence to show that possession was taken on the very day the award was passed, and, therefore it was observed that it could not be said that the possession was taken by the acquisition authority and the land had vested with the Government. Undue importance cannot be given to the statement of PW1/Raghunath Dessai when he stated that the acquired portion was taken in possession in July, 1975. He might have as well referred to the award which was passed on 2-7-1975. The certificate dated 4-2-1976 is a public document and carries with it the presumption of its correctness which cannot be just brushed aside by mere submission that it was prepared subsequently. The case of the plaintiff was proved by voluminous documentary evidence against none produced by the defendants, except an entry in form Nos.I and XIV of their names in the occupants column. 13 13. For reasons aforesaid, I find there is no merit in this appeal and consequently the same is hereby dismissed. N. A. BRITTO, J. RD