- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 240 OF 2000. Shri Vinayak P. Shinkre, son of late Padmanabh Shinkre, of full age, landlord, Karta of Shinkre family, residing at Pandit- Wada, Ponda-Goa. (Deceased by legal heirs) 1 Shri Hemant Vinayak Shinkre, son of late Vinayak Shinkre, 2 Smt. Seems Hemand Shinkre, wife of Shri Hemant Shinkre, 3 Shri Shyam Vinayak Shinkre, son of late Vinayak Shinkre, 4 Smt. Shoba Shyam Shinkre, wife of Shri Shyam Shinkre, All residing at: House No.96, Kirshna Kunj, Dhavli, Ponda Goa. ........ Appellants. Versus Shri Pandu Krishna Naik, Member of Yesso Sagun Naik, Vaunshaj Trust; resident of Tisk, Ponda Goa. ......... Respondent. - 2 - Mr. V. Menezes, Advocate for the Appellants. Mr. S. R. Rivonkar, Advocate for the Respondent. Coram:- S. C. DHARMADHIKARI, J. Date:-15th April, 2011. ORAL JUDGMENT This is an Appeal from an order passed by the learned Additional District Judge, in Land Acquisition Case No. 25/1993. 2. By this judgment which has been delivered on 10.7.2000, the learned Judge has allowed the reference and held that 1/3rd share of compensation be paid to the Original Applicant ( Respondent herein) Pandu Krishna Naik, who is member of Yesso Sagun Naik, Vaunshaj Trust. 3. The Appellants claim title to the property which is subject mater of acquisition and with regard to which compensation has been paid to the parties on the basis of Gift Deed dated 6.5.1899. That the Gift Deed is stated to be executed by one Mr. Yesso Porob Shinkre in favour of five grandsons namely Venkatesh Vishnu Shinkre, Kashinath Vishnu Shinkre, Padmanab Vishnu Shinkre, Jaganath Vishnu Porob Shinkre and Bhjiku Vishnu Shinkre. The Appellants' predecessor- Vinayak - 3 - is the heir of Padmanab. He is claiming as Karta of the joint family. Mr. Menezes in support of this appeal, submits that as far as shares of Ravi Sitaram Naik, Damodar Govind Naik and Pandu Krishna Naik, these persons have allegedly acquired 1/3rd share in the property under Sale Deed dated 5.4.1984. There is further sharer called Uno Pandurang Porob Sinkro who is stated to have sold 1/3rd of the property under Sale Deed dated 22.11.1902 in favour of Laxman B. Naik, Purshottam B. Naik and Premanand B. Naik. 4. My attention has been invited by Shri Menezes to the Trust Deed dated 19.3.1984. Shri Menezes submits that this trust Deed does not refer to any property and it could not have referred to the immovable property and particularly the land under acquisition because that came to the share of so called trustees vide a Sale Deed executed on 5.4.1984 i.e. a Sale Deed which is exhibited as Exh. AW1/G. This Sale Deed is between Vishnu Naik Gaunekar, son of Soiru Naik Gaunekar, Smt. Padmavatibai Vishnu Naik Gaunekar, Gajanan Tata Naik Gaunekar, Smt. Janakibai Gajanan Naik Gaunekar, Shridora Ramchondra Naik Gaunekar, Smt. Ramabai Shirdora Naik Gaunekar, Shri Soiru - 4 - Ramachondra Naik Gaunekar which expression is being defined as landlords and Shri Ravi Sitaram Naik, Shri Damodar Govind Naik and Shri Pandu Krishna Naik as purchasers. He submits that although these persons are referred to as Trustees of Yesso Sagun Naik Vaunshaj Trust which is the Applicant before the Court below, yet recitals of the Sale Deed would show that these are independent purchasers. The property has not devolved on the trustees, therefore, this Sale Deed cannot be said to have conferred any title in favour of trustees(Original Applicant trust). He submits that the Appellants relied on the Gift Deed, a copy of which is at page 129 of paper book. This Gift Deed is dated 6.5.1899 which has been exhibited as Exh. RW1/C collectively. He submits that together with this is matriz certificate with the xerox copy of form I and XIV at page 92 establishing that Yesso Sagun Naik who is predecessor in title of the Appellants had right, title, interest in the property to the extent of 1/3rd share. It is the submission of Mr. Menezes, therefore, that it cannot be said that original Applicant had 1/3rd share in the property which he may be claiming. Therefore, other sharers' claim cannot override the right of the Appellants/original Respondents to the - 5 - extent of their 1/3rd share under the Gift Deed of 6.5.1899. Mr. Menezes invited my attention to the aforementioned documents together with impugned order and submitted that the impugned order in a cryptic manner discusses some of the documents but without making any reference to the Gift Deed or claim of the Appellants straightaway holds that Sale Deed dated 20.11.1902 is proved. So also the claim of the original Applicant before me to the entire property. In such circumstances Mr. Menezes submits non consideration of vital documents and oral evidence on record vitiates the impugned Order. In these circumstances, he submits that impugned order be quashed and set aside to the extent it denies the original Respondent/Appellant before me 1/3rd share in the acquired property and the amount of compensation. 5. On the other hand, Mr. Rivonkar supports the impugned award and submits that it discusses the entire oral and documentary evidence and once it was found that dispute is confined to 1/3rd share in the compensation awarded, then, it was not necessary for the Court below to advert to each and every document and arguments of parties. For all these reasons he submits that appeal be dismissed. - 6 - 6. With the assistance of Shri V. Menezes and Shri S. R. Rivonkar, learned Counsel appearing for the parties, I have perused Appeal Memo and all Annexures thereof including deposition of Power of Attorney who has been examined on behalf of the Applicant. Audumber J. Shinkre is the Power of Attorney of original Respondent Shri Vinayak. He has deposed about the Gift Deed dated 6.5.1899 and has extensively deposed about the right of the original Applicant to claim compensation. His deposition on record together with the written statement of the Applicant would go to show that what has been claimed is that the Respondent Vinayak is 1/3rd owner of the entire property. Only a part of the entire property is acquired by the State. The deponent specifically referred to the Gift Deed and the survey record in Form I and XIV. There is also reference made to the matriz certificate and it is contended that the suit property is not divided and Vinayak is in possession and enjoyment of 1/3rd share of the property. Survey record shows the name of Vinayak Padmanab Shinkre and he is son of Padmanab Shinkre who represents the joint family as karta. In the cross examination, he states that Yesso Porob Shinkre is the great grandfather of the - 7 - Donees. Contents of the Gift Deed and the persons who are referred to as Donees have shown the names of the persons together with relationship. There is also a deposition of one Pandu Naik. He has clearly stated that the dispute at present is of 1/3rd right of Vinayak Shinkre. He speaks about the Deed of Sale and refers to several documents in his examination in chief itself. He states that the name of Vinayak Shinkre is wrongly entered in record of rights in occupant column. He also refers to the name of Yesso Sagun Naik, owner of four properties namely “ Borkar” alias “Betuchangdem”, “Parodcar” alias “Davlimine”, “Pilfoll” alias “Dhavli” and “Ganchol” alias “Dhavli”, out of these only property “Borkar” is in dispute and subject matter of present proceedings. He extensively referred to the Sale Deed dated 5.4.1984 and the Trust Deed. In the cross examination, he states that he came to know in the year 1984 about the name of Vinayak Shinkre being shown in occupant column but no dispute was raised. It is stated that in the year 1902 ancestor of Vinayak Vishnu Parab Shinkre sold 1/3rd right to ancestors of Laxman Tanu Naik. He denies the suggestion that Vinayak Shinkre is enjoying 1/3rd right in the suit property. - 8 - 7. In these state of affairs, the least that is expected from the Court below is to discuss and refer to the entire oral and documentary evidence on record. It was necessary to make reference to the Gift Deed which has been duly exhibited and right of Vinayak Shinkre, predecessor of Appellants before me, if any, in the suit property. There is substance in the contention of the Advocate for the Appellants that the order is cryptic in nature. From a perusal of the reasons that have been assigned it appears that in para 6 there is reference to the documents. In paras 7 and 8 there is a reference to the arguments of both sides. Pertinently, in para 8 learned Judge refers to the argument of the Respondent Vinayak on the basis of martriz certificate and Gift Deed. Thus, Gift Deed was very much present to the mind of the learned Judge. Once it was exhibited on recored and there was deposition in support thereof by Shri Vinayak who is predecessor of the Appellants before me, then, it was incumbent upon the learned Judge to have assigned cogent and satisfactory reasons for disbelieving the version of the Respondent Vinayak and holding that original Applicant Pandu Krishna Naik had 1/3rd share in the entire property. Learned judge should have been - 9 - careful because even if the dispute is with regard to the property “Borkar” and subject matter of acquisition, it is part of larger property. In that larger property also parties are claiming their share. Any conclusion and finding on issue of title would then have a bearing on their claim in the larger property as well. In such circumstances, by not discussing the oral and documentary evidence and without reference to the vital document such as Gift Deed and by merely holding that a document which is dated 20.11.1902 and styled as Sale Deed clinches the issue, the learned Judge has committed a serious error. 8. His entire conclusion and finding is based on only this document. Learned Judge has omitted to make any reference to the Gift Deed dated 6.5.1899 and the stand of original Respondent Vinayak who is predecessor of the Appellants before me. He urged that the Sale Deed is not creating any title in favour of the trustees namely Ravi Sitaram Naik, Damodar Govind Naik and Pandu Krishna Naik. It was necessary to discuss as to whether the private trust has acquired the property or it is the individuals who claim share in the same. In such circumstances, by undertaking an exercise as if this court is - 10 - deciding the Reference under section 30 would require going into each and every document and evidence in detail for the first time. This is an appeal from the Award passed on the Reference under section 30 of the Land Acquisition Act, 1894. Instead of the Appellate Court undertaking the exercise which the trial Court should have undertaken, interest of justice would be served if the matter is remanded back to the trial Court for deciding the Reference afresh on merits and in accordance with law. I am not in agreement with Mr. Rivonkar that the Registration Certificate which is of 1872 would alone be decisive. According to Mr. Rivonkar, if this document shows that Yesso Shinkre had no right in the property, then, Gift Deed has no sanctity in law and that is because it is subsequent in point of time. However, even this aspect has not been dealt with by the learned judge, leave alone making reference to this Gift Deed and the Registration Certificate. Arguments of Mr. Rivankar to be accepted would also necessitate a remand. Thus, to be fair to both sides, remand in this case is imminent. 9. As a result of the above discussion, the impugned Award is quashed and set aside. Land Acquisition Case no. - 11 - 25/1993 is restored back to the file of District Judge, Panaji for being dealt with and decided afresh on merits and in accordance with law after giving opportunity to both sides to lead oral and documentary evidence and canvas their arguments. The learned Judge to whom the said case is assigned, shall decide the same independently and without being influenced by the Judgment and Award which is set aside by this Court. Since Reference is of 1993, the Court below to endeavor and dispose of the same as expeditiously as possible and within a period of 6 months upon receipt of the records from this Court. 10. It is made clear that I have not expressed any opinion on the rival contentions. To impress upon the Court below the need to deal with the same that the rival contentions have been set out and referred to in detail. There is no opinion rendered on merits of the controversy by me. In the circumstances, there will be no order as to costs. S. C. DHARMADHIKARI, J. vn*