1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 312 OF 2005 1. Shri Oprosiano Fernandes, major in age, landlord, residing at House No.1514, Zuem, Velim, Salcete, Goa. 2. Smt. Aramita Conceicao Fernandes of major age, housewife, resident of House No.1514, Velim, Salcete, Goa. ... Appellants versus 1. The Director of Land Survey, Directorate of Land Survey, Government of Goa, Panaji, Goa. 2. The Government of Goa, through its Chief Secretary, with its office at Secretariat, Panaji, Goa. 3. Communidade of Velim, through its Attorney, with office at Velim, Salcete, Goa. ... Respondents Shri Sudesh Usgaonkar, Advocate for the Appellants. Shri Guru Shirodkar, Government Advocate for the Respondents. 2 CORAM : F. M. REIS, J. DATE : 8TH APRIL, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Decree dated 23-8-2005 passed by the learned Additional District Judge, South Goa at Margao in Civil Suit No.65 of 2004. 2. A suit came to be filed by the appellants for declaration and other consequential reliefs on the ground that they purchased a property from Fr. Basilio Eufemio da Visitacao Andrade by virtue of the sale deed dated 3-7-1973 duly registered in the office of Sub-Registrar of Salcete at Margao, which was a fishing pond and bounded towards the east by the property of same name of Ana Aurora Gomes and Fazenda, towards the west and south by the said Fazenda and towards the north by Mariano Vaz and others and described in the Land Registration Office of Salcete at Margao under No.7472 of Book B-23 and enrolled in the Taluka Revenue Office having an area of 908 sq. meters. It is further their case that after the purchase of the said property the appellants had filled up the southern portion and as such the southern portion of the suit fishing pond had become a landed property whereas its northern portion 3 continued to be a fishing pond. It is further their case that the suit fishing pond has not been surveyed in the survey records and according to the appellants towards the western side of the said fishing pond there is a property surveyed under No.65 and the area of the suit fishing pond appears to have been merged with the area of the property as surveyed in the records of rights under No.65 having an area of 9300 sq. meters. According to the appellants, they are in possession of the suit portion as identified in the plans produced by the appellants which is at Exh.C-26 in two colours blue and yellow attached to the plaint. Accordingly, the suit came to be filed seeking a declaration as well as other consequential reliefs. 3. The respondent Nos.1 and 2 resisted the suit of the appellants but, however, the respondent No.3 did not file any written statement. It is the case of the respondent Nos.1 and 2 that the fishing pond vests in the State Government. It is further their case that the alleged sale deed relied upon by the appellants cannot create any legal effect as according to them the vendor in the said sale deed had no title to any portion of the property as mentioned therein. It is further the case of the respondent Nos.1 and 2 that the suit portion claimed by the 4 appellants did not belong to the appellants but the same belonged to the respondent No.1 and as such prayed that the suit filed by the appellants deserves to be dismissed. 4. The learned Judge after framing the issues and recording the evidence has come to the conclusion that the appellants have failed to establish that the suit portion of the property belongs to the appellants. Being aggrieved by the said Judgment, the appellants have preferred the said appeal. 5. Shri Sudesh Usgaonkar, learned Counsel appearing for the appellants has assailed the impugned Judgment and pointed out that as per the pleadings of the appellants, the suit portion of the property is duly registered before the Land Registration Office as well as stands inscribed in the matriz records in the name of the predecessor in title of the appellants. Learned Counsel further submitted that the very fact that the property is inscribed in the matriz record itself discloses that the suit property does not belong to the respondent No.1. Learned Counsel further took me through the evidence on record and pointed out that the appellants establish the identity of the suit property by the plan at 5 Exh.C-26. Learned Counsel further took me through the evidence on record and pointed out that the respondents examined Shri S. R. Rane, Surveyor who has not done any exercise to verify the documents and the situation at loco but merely made a statement to the effect that the vendor of the appellants had no title to the suit portion. Learned Counsel took me through the impugned Judgment and pointed out that the learned Judge has not at all considered the evidence on record which conclusively establishes that the suit portion belongs to the appellants. Learned Counsel as such submitted that the impugned Judgments deserve to be quashed and set aside and the suit filed by the appellants deserves to be decreed. 6. On the other hand, Shri Guru Shirodkar, learned Government Advocate appearing for the respondent Nos.1 and 2 has supported the impugned Judgment. Learned Government Advocate submitted that there is no evidence on record adduced by the appellants to establish that the predecessors of the appellants had any title to the suit property. Learned Government Advocate further submitted that though it is the claim of the appellants that the property is registered in the Land Registration Office as well as the property stands inscribed in the name 6 of the predecessors in title of the appellants, nevertheless there is no identification carried out by the appellants to establish that the property as described in the Land Registration Office and the matriz records corresponds to the suit portion of the property as claimed by the appellants. Learned Counsel further took me through the evidence on record and submitted that the appellants have failed to establish the identity of the property and in view of Section 14 of the Land Revenue Code such suit portion does not belong to any private party but the respondent No.1. Learned Government Advocate further submitted that there is no infirmity committed by the learned Judge whilst passing the impugned Judgment and consequently no interference is called for, to the impugned Judgment. 7. Having heard the learned Counsel and on perusal of the record, the following points for determination arise:- 1. Whether the suit portion as claimed by the appellants corresponds to the property registered in the Land Registration Office under No.7472 of Book B-23? 7 2. Whether the learned Judge was justified in dismissing the suit filed by the appellants? 8. On perusal of the impugned Judgment and the evidence on record, I find that the land registration documents produced by the appellants disclose the boundaries of the property which is known as “Tercol” situated at Velim. The boundaries as mentioned in the Land Registration Office are at Exh.34. The property is also shown inscribed in the matriz record. There can be no dispute that the properties of the Government are not inscribed in the matriz record. In order to consider whether the suit portion is corresponding to the property as described in the Land Registration Office, I find that the appellants have not adduced any evidence to the identity of the suit portion of the property vis a vis the property and the boundaries as disclosed in the Land Registration Office. When it was pointed out to the learned Counsel appearing for the appellants as to what evidence has been produced, to show that the suit portion corresponds to the property claimed to be registered in the Land Registration Office, Shri Sudesh Usgaonkar, learned Counsel for the appellants fairly conceded that the appellants have not examined any expert to carry out any such exercise as according to him there was no 8 dispute on such count raised by the respondents in their written statement. But, however, it is well settled that it is for the appellants to prove their case. At this stage, Shri Usgaonkar submitted that an opportunity be given to the appellants to examine an expert to establish the said aspect and as such the matter be remanded to the learned Judge to decide the matter afresh, after giving the appellants such opportunity. Shri G. Shirodkar, learned Government Advocate appearing for the respondents has opposed the said request. 9. Having perused the evidence on record, there is no dispute that a property known as “Tercol” is registered in the Land Registration Office under No.7472 of Book B-23. The property stands described in the name of a person who is claimed to be the predecessor in title by the appellants. No doubt, once the property stands registered in the Land Registration Office the ownership and possession is assumed to be of such person in view of Article 953 of the Portuguese Civil Code. It is incumbent upon the appellants to first identify the suit portion of the property vis a vis the land as described in the Land Registration Office. Unless such exercise is carried out the question of contending that the property belongs to the appellants would not arise. Considering the 9 request of learned Counsel appearing for the appellants to the effect that the appellants would adduce evidence to establish the said aspect, I find that in the interest of justice an opportunity could be given to the appellants to adduce such evidence after giving an opportunity to the respondents to cross-examine such expert. It is to be noted that the respondents have in fact not adduced any evidence to establish that the suit portion belongs to the respondent No.1. The claim of the respondent No.1 is merely on the basis of the provision of Section 14 of the Land Revenue Code which is rebuttable. Considering the overall evidence on record, I find that the evidence adduced by the appellants was not sufficient for the Court to come to any definite conclusion about the rival claims. As such, in the facts and circumstances of the case, I find that in the interest of justice the matter be remanded to the learned Judge to decide the suit afresh, in accordance with law. The points for determination are answered accordingly. 10. In view of the above, I pass the following Order:- ORDER 1. The appeal is allowed. 2. The impugned Judgment and Decree is quashed and set aside. 10 3. Civil Suit No.65 of 2004 is restored to the file of the learned Judge. 4. The learned Judge is directed to decide the suit afresh after hearing both the parties and giving an opportunity to the appellants to lead further evidence in accordance with law. 5. Needless to say that the respondents will be entitled to lead evidence in rebuttable. 6. Appeal stands disposed of with no order as to costs. 7. Parties are directed to appear before the learned Judge on 4-7-2011 at 10.00 a.m. F. M. REIS, J. RD