1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 58 OF 2005 1. Shri Sawaivir Sadassiva Rajendra Bassavaling Raje Wadiyar(expired). 2. Smt. Umadevi Raje Wadiyar both r/o Shivtirtha Palace Bandora, Ponda, Goa. 3. Shri Bassavaling Sadashiva (since deceased) Rajendra Wadiyar Raje. 3(i) Kum Malavika Raje Wadiyar, aged 10 years (ii) Kum Sagarika Raje Wadiyar, aged 7 years. 4. Smt. Vasundhara Raje Wadiyar 5. Shri Madhuling Naguesh Rajendra Wadiyar all r/o Shivtirtha Palace, Bandora, Ponda, Goa. (represented through their attorney Shri Venkatesh Keshav Sawkar, Tishem, Borim, Ponda Goa). ... Appellants versus 1. Smt. Claudina Rodrigues 2. Helen Rodrigues 3. Luis Rodrigues 4. Ciril Rodrigues 5. Charles Rodrigues 2 6. Seby Rodrigues 7. Dorothy Rodrigues All r/o E-2/3, Bangur Nagar, Goregaon West, Mumbai. 8. Smt. Maria Angela Rodrigues 9. Clementina Rodrigues 10.Xavier Rodrigues 11.John Rodrigues 12.Josefina Rodrigues All r/o E-2/3 Jalnidhi Co-op Housing Society Ltd., Bangur Nagar, Mumbai, 400 090. (The respondent nos.1 to 12 represented through their attorney Shri Antonio S. Rodrigues, the respondent no.13). 13.Antonio Sebastiao Rodrigues r/o Villa Vailakini, 312A, Nagmodem, Navelim, Salcete, Goa. ... Respondents Shri R. G. Ramani, Advocate for the Appellants. Shri Sudesh M. S. Usgaonkar, Advocate for Respondent Nos.1, 8 and 13. CORAM : F. M. REIS, J. DATE : 17TH MARCH, 2011. JUDGMENT : The above appeal challenges the Judgment and Award dated 3-11- 2004 passed in Land Acquisition Case No.363 of 1995. 3 2. The Government acquired land for construction of a new Broad Gauge line for Konkan Railway at Loliem and Poiguinim of Canacona Taluka and by an award passed under Section 11 of the Land Acquisition Act, 1894 dated 21-6-1994 the amount of compensation payable came to be determined. The land which was acquired in the said proceedings was having an area of 6250 square meters out of the property surveyed under No.168/1(part) and in view of the dispute between the parties the matter came to be referred under Section 30 of the said Act to the learned District Judge. By Judgment and Award dated 3-11-2004, the Reference Court directed that the compensation which has been awarded be paid to Party Nos.1, 2 and 3 along with interest accrued thereon. 3. Being aggrieved by the said Judgment, the appellants who are party Nos.4, 5a, 5c, 5d, 5e had preferred the present appeal. 4. Shri R. G. Ramani, learned Counsel appearing for the appellants/ parties nos.4, 5(a), 5(c), 5(d) & 5(e) has submitted that part of the property surveyed under No.168/1 is part and parcel of the property belonging to the appellants. He has further pointed out that the property of the appellants and the respondents is depicted at Exh.46 prepared by the expert examined by the appellants and it can be safely assumed that the acquired portion of the land belongs to the appellants. Learned 4 Counsel further submitted that the property belonging to the respondents corresponds to the property shown by letters 'A' in yellow colour and not 'B' in green colour which belongs to the appellants. He further clarified that the dispute in the present case is restricted to the portion shown in green colour by letter 'B' and in yellow colour by letter 'A. He pointed out that on the basis of the evidence on record, it is clear that the acquired portion belongs to the appellants. Learned Counsel has further submitted that the evidence has not been correctly appreciated by the Reference Court and as such has come to an erroneous conclusion that the property belongs to the respondents. Learned Counsel has taken me through the evidence on record and pointed out that the boundaries shown in respect of the property belonging to the appellants conclusively establish that the acquired portion belongs to the appellants. Learned Counsel has submitted that though the evidence of the power of attorney holder examined by the appellants may not be accurate nevertheless the evidence of the witnesses of the appellants establish that the acquired portion belongs to the appellants. Learned Counsel has taken me through the evidence on record and claimed the Reference Court has misconstrued the evidence on record and submitted that the impugned judgment be quashed and set aside. 5. On the other hand, Shri Sudesh Usgaonkar, the learned Counsel appearing for the respondents nos.1,8 & 13 has supported the impugned 5 judgment. He pointed out that there is no irregularity committed by the Reference Court while passing the impugned judgment and that the evidence has been rightly appreciated. The learned Counsel has further taken me through the documents produced by the respondents specially the sale deed at Exhibit AW1/A collectively, which is a deed of declaration, partition and sale and acquaintance dated 19/10/1936. He has also taken me through the documents of land registration and inscription at Exhibit AW1/B and pointed out that boundaries shown in the Land Registration Document encompasses the land acquired which conclusively establishes that the portion acquired forms part and parcel of the property of the respondents. The learned Counsel has taken me through the evidence of the appellants as well as their witnesses and pointed out the contradictions therein and submitted that the appellants have miserably failed to establish that the land acquired forms part and parcel of their property. The learned Counsel has further submitted that the admissions of power of attorney itself would suffice for this Court to come to the conclusion that the claim of the appellants to the acquired land is far fetched and has no basis in law or in fact. The learned Counsel pointed out that the eastern boundary as well as the other boundaries as shown in the Land Registration Document correspond to the properties found at loco and establish that the land acquired belongs to the respondents. The learned Counsel, as such, pointed out that there is no substance in the above appeal and the same deserves to be rejected. 6 6. In support of their claim for compensation the respondents have examined Shri Anthony Sebastiao as AW1. He has stated in his deposition that they own the property known as “Morod” situated at Galjibag, Poinguinim, which was originally purchased by his father in the year 1936 from Ana Maria Fernandes. His father had purchased only the western portion of this property. The area was 9675 square metres. He has further stated that this property is also known as “Morodtikan” or “Morod Kutumban” and a portion of the said area was acquired for the construction of the road which goes from Talpona/Galjibag to Poinguinim. He has further stated that on account of construction of the said road, the property got bifurcated into two portions and the upper portion from the road was surveyed under no.168/1 and the lower portion was surveyed under no.167/1 which is a paddy field portion and the bandh surrounding the said paddy field and touching the river which is surveyed under no.167/2. The area of the property surveyed under no.168/1 is admeasuring 7850 square metres and the acquired portion forms part of the said survey number. He has further given the boundaries of the property surveyed under no.168/1 towards the eastern side with the remaining portion belonging to the sellers having a stone marking boundary separating the property and the remaining portion of the sellers, towards the west by the foot path and water drain, towards the south west there is a nalla which was filled up 7 where the school building has been constructed and towards the north by the top of the hill of the Communidade and towards the south with a road Talpona to Ponguinim. Beyond the said road towards the southern side is the remaining portion of the property surveyed under no.167/1 and 167/2. He has further stated that towards the north western side and after the drain there is a property belonging to the appellants herein. He has also produced a declaration for the payment of tax which is at Exhibit AW1/C. The survey records are at Exhibit AW1/E collectively and the survey plan at Exhibit AW1/D. He has further stated that in the portion of the property surveyed under no.168/1 the house belonging to the respondents is located. In cross-examination, he has stated that his father has purchased half of the entire property. He further stated that the land of Ana Maria Fernandes the seller of the property is located towards the east of their property. He has further stated that half of the property purchased by his father corresponds to three survey numbers bearing survey no.167/1, which is sloppy and survey no.167/2 which is a paddy field and 167/1 part of which is a bandh. 7. On perusal of the document at Exhibit AW1/A, it is evident that Joaquim Vicente Rodrigues purchased from Ana Maria Fernandes and her son and daughter-in-law half of the western side of the property registered under no.3574 for the price of Rs.300/- on 19/10/1936. On perusal of the Land Registration Document at Exhibit AW1/B in respect 8 of the property which is described under no.3574, I find that the property is bounded towards the east by the marked stone plunged in the bandh which separates the property of the same name consisting of three xerins sold to Vassudev Vitola Boto from Loliem by Savitri Follina Vitoba Babu Follo and his wife Rucmina, on the west by the drain and road, on the north by the top of the hill and on the south by the drain and river of salt water. AW1 in his evidence has clearly stated that the existence of the boundary stones on the eastern side of the property surveyed under no.168/1 which has not been challenged in the cross- examination. Apart from that even on perusal of the plan at Exhibit 46, the southern boundary of the property claimed by the respondents is bounded by a river. The survey record in respect of the property surveyed under no.168/1 so also the plan at Exhibit AW1/D disclose that the property stands surveyed in the name of Mauricio Rodrigues, Paulo Rodrigues and Antonio Sebastiao Rodrigues. This also shows that the property is not surveyed in the name of the appellants. The matriz record also disclose that the tax was being paid by the father of the respondents. 8. The respondents also examined Shri Krishna Prabhu Dessai, who has stated in his affidavit that land acquired belongs to the respondents. He has been duly cross-examined. He has further stated that the western portion of the boundary is the drain which at site is the drain and the old 9 way and towards the north is the top of the hill and he accordingly stated that the property surveyed under no.168/1 and 167/1 and 2 cannot be the part of the property belonging to the appellants. The appellants have examined Venkatesh Keshav Sawkar, who is the attorney of the appellants and claimed that the property forms part of the property inscribed in matriz record under no.779. The appellants also examined one draftsman Vidhyadhar Shet. He has prepared a plan at Exhibit 46 and has stated that the property shown by letter 'A' belongs to the respondents and letter 'B' belongs to the appellants. Another witness examined on behalf of the appellants is Leao Agnelo Rebello, who has stated that there are cashew trees in the property surveyed under no.168/1 and alleged that he was looking after the said property on behalf of the appellants. 9. The learned Judge while passing the impugned judgment has come to the conclusion that the parties nos.1,2 & 3 before the Reference Court who are the respondents herein have established that they are entitled to the compensation in respect of the property acquired bearing survey no.168/1. The learned Judge has further come to the conclusion that the claim of the appellants has not been established. While passing the impugned judgment, the learned Judge has noted that the survey records stand in the name of the respondents. The learned Judge has also considered the Land Registration Document as well as inscription 10 to come to the conclusion that the ancestors of respondents had purchased the western half of the property. The learned Judge has also noted that the loose stone wall boundary shown in Exhibit 46 is not on the western side as claimed by the said surveyor but it runs in north to south direction, slightly tilted towards the eastern side. The learned Judge, as such, found that the claim of the appellants that the property of the respondents is located towards the western side as disclosed in the said plan cannot be accepted. The learned Judge has found that for the survey records produced by the respondents at Exhibit AW1/D the existence of the boundary wall on the western side is shown by letter A,B & C and the same is parallel to the road. The learned Judge has also taken note of the evidence of said Shri Krishna Prabhu Dessai to come to the conclusion that the property under survey no.168/1 forms part of the property belonging to the respondents. Dealing with the evidence of the appellants, the learned Judge found that the claim is based on the matriz records. The affidavit at Exhibit 33 of the attorney of the appellants has been considered and it has been noted that in the cross-examination he started that he was visiting the property from the year 1965 onwards, though the power of attorney was given in his favour in the year 1979. He has further admitted that somebody else was looking after the property from 1975 to 1979. He has further admitted about the existence of house in survey no.168/1 belonging to the respondents. The learned Judge has also noted that from the time of 11 publication of the survey records and till the filing of the present reference no action was taken by the appellants for any rectification. The said attorney has also admitted that the appellants were not in possession of the unacquired portion of the survey no.168/1. He has stated that it is in possession of one Baretto and on the subsequent date claimed that he was one Agnelo Rebello. He has further admitted that the land adjoining to property survey no.168/1 was sold to said Rebello who is also enjoying the trees existing in survey no.168/1. He has further admitted that no portion of property surveyed under no.168/1 was sold to said Rebello. The learned Judge disbelieved the said contention for the reasons stated in para 14 of the impugned judgment. He has further admitted that from the time the property was sold to Barettto he had stopped enjoying the property survey no.168/1. The learned Judge from the evidence of the said attorney has come to the conclusion that unacquired portion was not in possession of the appellants and that they have totally failed to rebut the presumption under Section 105 of the Land Revenue Code. The learned Judge on appreciation of the documentary evidence adduced by the respondents and the witnesses examined by the appellants has come to the conclusion that the compensation awarded is to be paid to the parties nos.1,2 & 3 who are the respondents herein. 10. On perusal of the evidence on record, I find that there is no 12 infirmity committed by the learned Judge in directing that the compensation be paid to the respondents. As noted above, the Land Registration Document produced by the respondents at Exhibit AW1/B clearly discloses that the land acquired forms part and parcel of the property of the respondents. Even on perusal of the matriz record under matriz no.779 discloses that the eastern boundary of the property claimed by the appellants is the property belonging to the predecessor in title of the respondents and the Communidade of Poinguinim. The southern boundary shows the property of the predecessor in title of the respondents and the river and the western boundary is the property of the appellants whereas the northern boundary is the property belonging to one Guiri. There is no dispute that the property of Communidade is surveyed under no.157/1 of Poinguinim village. Considering the boundaries as disclosed even in the matriz record, I find that the property shown in green colour by letter 'B' as well as the property shown in yellow colour by letter 'A' at Exhibit 46 forms part and parcel of the property belonging to the respondents. Apart from that there is no dispute that the house of the respondents is located in the property surveyed under no.168/1. The depiction sought to be made by the appellants to put up their claim over the acquired portion of the property cannot be accepted. The learned Judge has rightly considered the cardinal points as disclosed in the plan at Exhibit 46 and as alleged by the witnesses of the appellants came to the conclusion that the claim of 13 the said witnesses is erroneous. The boundaries and documents produced by the respondents disclose that the land acquired forms part and parcel of the property belonging to the respondents. 11. The appellants have failed to produce any evidence to establish that acquired portion of the land acquired forms part and parcel of the property claimed by them. The learned Judge has rightly appreciated the evidence on record and directed that the compensation has to be paid to respondents. There is no infirmity committed by the learned Judge. 12. There is no merit in the above appeal and, consequently, the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-