1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 27 OF 2005 Shri Arjun Ganesh Velip, Agonda, Canacona, Goa. ... Appellant versus Communidade of Agonda, Agonda-Goa. ... Respondent Shri Sudin Usgaonkar, Advocate for the Appellant. Shri P. A. Kamat, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 28TH OCTOBER, 2010. JUDGMENT This appeal is directed against Judgment dated 30-8-2004 of the learned reference Court, Margao, by which the Comunidade of Agonda, the Respondent herein, is held entitled to receive the compensation due and payable on account of acquisition of 3,750 sq. meters of land by award dated 26-4-1991 being the south western portion of survey No.23/1 of Agonda village which was acquired for the improvement of the road going from Parvem to Mudkud in Village Panchayat of Agonda, in Canacona taluka. 2 2. Both the parties claimed the said compensation of Rs.2,42,950/- due and payable on account of the said acquisition. 3. The case of the Respondent/Party No.1 was that the land of survey No.23/1 was owned and possessed by the Comunidade alone and it is they who were entitled to the compensation payable. It was their case that the said property was known as “Bhuram” and also as “Dovorneamol” having matriz No. 437(of village Belquem). 4. The case of the appellant/Party No.2 was that the acquired portion was part and parcel of property known as “Fanca” or “Deula Codchem Morod” and “Murumbo” having matriz Nos.45 and 43 respectively. Matriz No.45 was recorded in the name of Codo Paica Velip, the great grandfather of Party No.2, being bounded on the east by the aforamento of Jose Lourenco Gomes; on the west by Fanca of Bicro Kantu Velipo and Fanca of Babu Fochdo Velipo; on the north by Murumbo of Codo Paica Velipo, the great grandfather of Party No.2, and Murumbo of Bombo Sanclu Velipo and on the south by the aforamento of the said Jose Lourenco Gomes and it is presently surveyed under No.23/1(part) to 9, 37/1, 39/3 and 147/9. 3 5. The property Murumbo was enrolled under matriz No.43 in the name of Codo Paica Velip, the great grandfather of Party No.2. The said property Murumbo is bounded on the east by Murumbo of Bombo Sanclu Velipo; on the west by Fanca Mola of Comunidade; on the north by the aforamento of Jose Lourenco Gomes and on the south by Fanca of Bicro Cantu Velipo and Fanca de Deus Paica i.e. of Party No.2 and this property Murumbo was surveyed under No.23/1(Part) and other survey numbers and both the said properties were adjacent to each other and they were situated at Mudkud in Village Panchayat of Agonda and the said acquired portion was part and parcel of the said properties and that of survey No.23/1 in which there were cashew trees, forest trees and other fruit bearing trees, besides there were houses of Party No.2 and his family members and were in enjoyment and possession of Party No.2, and, therefore they were entitled to for the total compensation payable on account of the acquisition. 6. The learned reference Court framed several issues and by Judgment dated 30-8-2004 concluded that the acquired portion was part and parcel of the property known as “Bhuram” also known as “Dovorneamol” having matriz No. 437, and as a result held Issue No.1 4 as proved. Consequently, the learned reference Court held that Party No.2 was not the owner in possession of the acquired property, and, therefore was not entitled to receive the compensation, and as a result held Issue No.4 as not proved. 7. Both the parties have claimed ownership and possession of the acquired property. Both the parties did not have any title documents to support their respective claims and the Respondent/Comunidade also did not have the “Tombo” plan as there was no “tombacao” done of its properties but had in their favour promulgated survey records of Form Nos. I and XIV in which the name of Comunidade of Agonda has been recorded in the occupant's column with no other entry in the tenant's column or other rights column. 8. The appellant did not examine himself but examined his attorney, one Nami Chandru Velip who has not disclosed his relationship either with the Party No.2 or his connection with the disputed property and it appears that he too has a house in the disputed property and he has raised the present claim through Party No.2 in an attempt to save the 5 same. The matriz certificates produced, have been collected by him and not by Party No.2. 9. The Party No.2 had started extracting laterite stones from the suit property and the Respondent/Comunidade filed a Civil Suit bearing Special Civil Suit No.129/97/B which has been decreed against one Visso Velip and the appellant/Party No.2 by Judgment dated 23-8-2010 and an appeal against the said Judgment is said to be pending before the Court of District Judge at Margao. 10. The dispute between the father of Party No.2(appellant herein) and the Comunidade started way back on 22-4-1981 when the father of the Party No.2 by name Ganesh Visso Velip filed an application to the Mamlatdar of Record of Rights for re-survey of the property under survey No.23 of Agonda village and to separate his portion of land from above property and to record the same in his name. The said case was registered as D. C. No.293/Agonda-Canacona which came to be disposed of by the Inspector of Survey and Land Records, by Judgment dated 16-10-2006 and it was held therein that since the records of rights of Agonda village pertaining to survey Nos.23/1 and 147/7 was already 6 promulgated, the Mamlatdar, Records of Rights had no jurisdiction to entertain the said application and as such the proceedings were dropped pursuant to an application filed by the Comunidade dated 28-1-2002. 11. The appellant/Party No.2 has tried to create a title in their favour with the help of matriz certificates of matriz nos.43, 45 and 136. Matriz Nos.43, 45 and 136 refer to properties known as “Murumbo”, “Fanca” or “Deula Codchem Morod” and aforamento “Burbaivelemo Mua”, respectively, all situated at village Mudcheli while the suit property claimed by the Comunidade is in village Belquem. 12. Shri Sudin Usgaonkar, the learned Counsel on behalf of appellant/Party No.2 submits that property matriz No.43 is to the north of property matriz No.45 and further submits that property matriz No.136 of Jose L. Gomes is on the north, east and south of the said two properties. Learned Counsel submits that it is admitted that the property having matriz No.136 of the said Jose Lourenco Gomes was initially of the Comunidade, and, therefore according to the learned Counsel, the property of the Comunidade under matriz No.437 ought to be on the eastern side of the said property under matriz No.136 of Jose Lourenco 7 Gomes and not touching the properties claimed by Party No.2. Learned Counsel submits that it is admitted position that the said Jose Lourenco Gomes was a lessee of the Comunidade. However, what is not explained by any of the parties to the reference is that the said Jose Lourenco Gomes on the matriz certificate has been shown to be a lessee of Comunidade of Nagadale and not of the Comunidade of Agonda. 13. The submission that the property Murumbo under matriz No.43 lies to the north of property Fanca under matriz No.45 cannot be accepted because one of the northern boundaries of property Fanca under matriz No.45 is property Murumbo under matriz No.44 of Bombo Sanclo Velip while the southern boundary of property Murumbo under matriz No.43 is the property Fanca under matriz No.42 of Bicro Cantu Velip and Fanca of Dono Paica inscribed in the name of Cado Paica Velip. The said Gomes who is said to be the owner of Burbaivelemo under matriz No.136 has his property surveyed on the southern side under survey No.38/1 only which falsifies the case of Party No.2 that there is any property of the said Gomes on the north or east of property having matriz No.43. This inconsistency is sought to be explained by stating that the property on the eastern side of matriz No.45 is survey 8 No.24/1(part) wrongly surveyed in the name of third parties instead of Shri Gomes but to ascertain this position, the Party No.2 did not examine either the said Gomes or the said third parties. Likewise, the eastern boundary of matriz No.43 has been shown as Bombo Sanclu Velipo but the eastern boundary of matriz No.45 has been shown as that of the said Gomes. If the acquired portion is the south-western portion of survey No.23/1 it could not be part of both the properties claimed by the Party No.2 but had to be only of property Fanca having matriz No.45 as according to Party No.2, property Murombo having matriz No.43 lies to the north of Fanca having matriz No.45. The boundaries given by the appellant/Party No.2 do not at all tally so as to identify the said two properties having matriz Nos.43 and 45 as contiguous properties. The least which was expected of Party No.2 was to examine the owners of adjoining properties to find out whether they really had the properties as claimed by Party No.2. That apart, all that the attorney of Party No.2 stated is that Codo Paica Velip and Rama Cussodo Velip were their ancestors without even showing as to who he or Party No.2 was in relation to them. This statement was not in consonance with the fact pleaded and such a vague statement even did not require a denial. Just collecting matriz certificates from here and there would not establish the 9 title to the properties more so after the disputed property has now been surveyed in the name of the Comunidade of Agonda. Party No.2 had failed to identify that the property now surveyed under survey No.23/1 in the name of Comunidade corresponds to the properties earlier enrolled under matriz nos.43 and 45 apart from the fact that the Party No.2 had also not proved by convincing evidence that Party No.2 was the successor of the persons on whose names the properties were enrolled. The learned reference Court in para 15 of the Judgment has referred to the matriz certificate of matriz No.43 and has rightly concluded that it was a small paddy field, on the basis of seeds required for its cultivation. 14. As far as the possession is concerned, as already stated, the property has now been surveyed in the name of the Comunidade as “Bhuram” which according to learned Counsel is a corrupted name of “Murumbo”. Be that as it may, according to the Comunidade, the property “Bhuram” surveyed in their name is also known as “Dovorneamol” and their property is situated in village Belquem. The Comunidade has produced form Nos. I and XIV of survey No. 23/1. Under the law, there is a presumption that the Comunidade is in 10 possession of the said property which has been surveyed in their name. The presumption, no doubt is rebuttable, and, therefore it is to be seen whether the Party No.2 has succeeded in rebutting the said presumption. The attorney of Party No.2 has stated that there is a hospital in survey No.23/1 and there is also a temple constructed by the Velip Community. According to the attorney of the Comunidade, the said hospital was built with the permission of the Comunidade but according to the attorney of Party No.2, it was built with the consent of the family members of Party No.2. However, it is interesting to note that none of the family members have come forward to say that anyone of them had given permission to the Government to build a hospital, and it is certainly more probable that it is the Comunidade who had permitted the Government to set up the said hospital. The attorney of Party No.2 has stated that Party No.2 was residing at Parvem prior to coming to reside in survey No.23/1. He also stated that the house constructed by Party No.2 was about 25 years back. Pointing out to these facts, Shri P. A. Kamat, learned Counsel on behalf of the Comunidade, submits that the said statements show that Party No.2 was not residing in the suit property from the time of their ancestors but came to reside there about 25 years back. Insofar as the so-called permission produced by Party No.2 learned Counsel submits 11 that it does not show in which property it was allowed to be constructed and that apart, it is also not a permission as contemplated under the law, and, therefore the Party No.2 has to be considered as an encroacher in the property of the Comunidade as claimed by them. I am entirely in agreement with the said submissions of the learned Counsel Shri Kamat. That apart, the attorney of Party No.2 has clearly admitted in the cross- examination that survey No.23 and its sub-divisions are having the properties of Comunidade and are cultivated by its tenants. This is a clear admission to show that Party No.2 is not entirely in possession with the property surveyed under No.23/1. The attorney of Party No.2 also stated that there are nine residential houses in the property Fanca surveyed under No.23/1, and there are two houses which belong to them. He has again admitted that survey No.23 and its sub-divisions from 1 to 9 have been recorded in the name of Comunidade and some of the sub- divisions are also shown as having tenants. This entirely demolishes the case that Party No.2 is in possession of the entire property surveyed under No.37/1. He has further stated that the other houses in the said property are of their relatives and the same were constructed with their permission. If that is so, nothing had prevented Party No.2 from examining the other persons occupying the said houses. The fact that the 12 other houses were constructed after he constructed his house and are not shown in the survey records would show that they were constructed after the survey records were prepared, and, therefore would tend to support the case of the Comunidade that they were constructed about 10 years back as claimed by them. In case the Party No.2 was in possession of survey No.23/1 or any part thereof they would certainly not allow the people from the village to enjoy the mango trees on a specious plea that the mango trees were of ordinary quality. It appears that the attorney of Party No.2 like Party No.2 is an encroacher in the land of the Comunidade and it is for that reason that he has stated that there are two houses which belongs to them and, presumably one belongs to him and the other to Party No.2, and it is only one license of his own(of attorney) which he has produced and that too without any reference to the survey number. Suffice it to observe that Party No.2 has a presumption of possession in its favour, as the name of the Comunidade is recorded in Form Nos.I and XIV of survey No.23/1 which is fortified by the admissions made by the attorney of Party No.2. Party No.2 has failed to rebut the said presumption or show that they are in possession of the property surveyed 13 under No.23/1. The Judgment of the reference Court therefore cannot be faulted. 15. Hence, I find there is no merit in this appeal, and consequently the same is hereby dismissed. N. A. BRITTO, J. RD