:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 31 OF 2004 1. Shri Govind Jaiwant Prabhu Dessai, major of age, 2. Smt. Premlata Jaiwant Prabhu Dessai, major of age, both residing at Municipal Bldg., Shop No.2, Quepem Goa. ... Appellants V e r s u s Shri Parshuram Jaiwant Prabhu Dessai, “Jaigiri”, Simepain, Mangueshi, Mardol Goa. ... Respondent Mr. G. Teles, Advocate for the Appellants. Mrs. A. Agni, Advocate for the Respondent. CORAM : F. M. REIS, J DATE: 17 th SEPTEMBER, 2010. ORAL JUDGMENT The above Appeal challenges the judgment and award dated 10th November, 2003 passed by the learned Additional District Judge, South Goa, Margao, in Land Acquisition Case No. 482/1995. 2. The Government sought to acquire the land for the purpose of construction of a new broad gauge line of Konkan Railway in Loliem Village of Canacona Taluka, by way of an additional area and as such issued a notification under Section 4 of the Land Acquisition Act, 1894 dated 27th October, 1994, published in the Official Gazette dated 27th October, 1994. :2: During the said proceedings, a total area of 2755 square metres of the land was notified to be acquired under the provisions of Section 6 of the said Act. After conducting the necessary inquiry as envisaged, an award was passed under Section 11 of the said Act dated 18th October, 1995. The area which was sought to be acquired admeasures 675 square metres from survey No. 79/1 part and an area of 350 square metres out of the property surveyed under survey No.79/5 part of village Loliem. In view of dispute raised between the Appellants and Respondent with regard to the apportionment of the compensation awarded by the Land Acquisition Officer, the matter was referred for adjudication before the learned District Judge under the provisions of Section 30 of the said Act. After recording of evidence and hearing the parties, the learned Additional District Judge partly allowed the said reference and the Respondent/party No.1 was held to be entitled to the entire compensation together with interest accrued therein. Being aggrieved by the said judgment and award, the Appellants who were party nos. 2 and 3 before the Reference Court preferred the present Appeal. 3. The learned Counsel appearing for the Appellants has assailed the impugned judgment and submitted that there was ample evidence on record for the Reference Court to come to the conclusion that the Respondent was not entitled for the entire compensation. He further submitted that a specific portion of the property which was the subject matter of the acquisition was in ownership and possession of the Appellants and as such the Appellants were entitled to receive the compensation as awarded by the Land Acquisition Officer. The learned Counsel further :3: submitted that the Reference Court has totally misdirected itself to come to the conclusion that the property surveyed under survey No.79/1 and 79/5 were part and parcel of the property subject matter of the Inventory Proceedings initiated upon the death of late Jaiwant Prabhu Dessai. He further submitted that the property surveyed under survey Nos.79/1 and 79/5 has nothing to do with the property known as 'Candlentil' which was the subject matter of the said Inventory Proceedings. The learned Counsel further submitted that the property which has been acquired was part and parcel of the property 'Powado' which was independent from the property ''Khandem' which has nothing to do with the property which was the subject matter of the said Inventory Proceedings. The learned Counsel further submitted that though the said property originally belonged to his deceased parents, nevertheless, the same was not the subject matter as the same was not enlisted in the list of assets upon the death of the deceased father. The learned Counsel took me through the notes of evidence and he submitted that though there is ample evidence on record to substantiate that the property claimed by the Appellant was independent from the property which was the subject matter of the said Inventory Proceedings, the learned Judge has erroneously come to the conclusion that the land acquired was a part and parcel of the property which was the subject matter of the said Inventory Proceedings initiated upon the death of the deceased father. The learned Counsel as such submitted that once the Respondent has admitted the existence of the said property 'Powado', the burden was on the Respondent to substantiate that the land acquired was a part and parcel of the property which was the subject matter of the said :4: Inventory Proceedings. He as such submitted that the impugned judgment and award deserves to be quashed and set aside. 4. On the other hand, the learned Counsel appearing for the Respondent has supported the impugned judgment. The learned Counsel has submitted that the controversy sought to be advanced by the learned Counsel appearing for the Appellants before this Court was not even pleaded by the Appellants. The learned Counsel took me through the statement of the claim put forward by the Appellants before the Reference Court and submitted that there is nothing in the pleadings of the Appellants with regard to the contention sought to be advanced by the Appellants before this Court. The learned Counsel thereafter took me through the notes of evidence in the proceedings before the Reference Court and pointed out that the Appellants themselves have admitted in the cross examination that the subject matter of the property which was enlisted in the Inventory Proceedings initiated upon the death of the father, was in fact recorded in the record of rights under survey Nos.79/1 and 79/5. The learned Counsel further submitted that the case which was advanced by the Appellants before the Reference Court was to the effect that the Appellants were in adverse possession of a specific area of the land acquired which they failed to prove by any cogent evidence. The learned Counsel further submitted that besides a specific share having devolved in the Inventory Proceedings initiated upon the death of the father, the remaining share was gifted by the mother in favour of the Respondent and as such the Respondent is the exclusive owner in possession of the land acquired. The learned Counsel further submitted that :5: the Reference Court has minutely examined the evidence on record and after appreciating the evidence adduced by both the parties has rightly come to the conclusion that the Appellants have no right to the land acquired as the land acquired belongs to the Respondent exclusively. The learned Counsel further pointed out that there is no infirmity in the impugned judgment and as such no interference is called for by this court in the present Appeal. 5. Having heard the learned Counsel for the Appellants and the Respondent and on perusal of the records, the following point for determination arise in the present Appeal : POINT FOR DETERMINATION Whether the Reference Court was justified to award the total amount of compensation awarded by the Land Acquisition Officer to the Respondent herein ? 6. Before considering the submissions advanced by the learned Counsel, it would be appropriate to go through the statement of claim put forward by the respective parties. The Respondent in his written statement has stated at para 2 that he is the son of late Jaiwant Yesu Prabhu Dessai and upon his death Inventory Proceedings were initiated wherein the property 'CANDLENTIL' was allotted partly to him and partly to his mother Ganga Prabhu Dessai. It is further his contention that 2/5th share in the property was allotted to his mother which subsequently by a deed of gift :6: dated 14th June, 1979, his said mother gifted in his favour her 2/5th share in the said property. His further case is that in the record of rights the said property is surveyed under survey Nos. 79/1 and 79/5 and in the promulgated records his name figures therein. Without prejudice to his said contention, he has also raised a plea that he had become owner of the said property by adverse possession. 7. The statement of claim made by the Appellant no.1 is that there exists a property 'Candlentil' situated at Loliem, and surveyed under survey No.79/1 admeasuring an area of 23125 square metres. A portion of the said area on its western side was acquired by the Konkan Railway and such portion falls in the area owned, possessed, developed and enjoyed by him admeasuring an area of 2400 square metres. His further case is that out of the said area of 2400 square metres, the Corporation had acquired an area of 700 square metres in the year 1992 and an area of 675 square metres in the year 1995 which was in his ownership. He claimed that he had acquired prescriptive title to the said area of 2400 square metres. It is further his case at para 5 (III) that there is a property known as 'Gorgina' bearing survey No. 79/5 of Village Loliem admeasuring an area of 3450 square metres, out of which he is in possession of a portion thereof separately admeasuring an area of 1000 square metres consisting of coconut trees and areca nut trees and other trees since the year 1966. His further case is that the Respondent is in possession of the remaining portion of survey No. 79/5 which is lying between a road and a house and as such claimed that he is entitled for the entire compensation to the extent of an area of 350 square metres in the :7: property surveyed under survey No. 79/5. He further contended that the Appellant No.3 is also enjoying a portion of the property in the said survey number. 8. The Appellant No.2 in the written statement has in fact supported the contention raised by the Appellant No.1. 9. On the face of the said pleadings of the Appellants, it is pertinent to note that the contention of the learned Counsel appearing for the Appellants to the effect that the land acquired is a part and parcel of the property known as 'Powado' admeasuring an area of 2400 square metres is not at all found in the pleadings of the Appellants. So also the contention of the Appellant No.1 in his deposition that the land acquired forms a part of the property known as “Candlentil Powado” is also not pleaded in the statement of claim put forward before the Reference Court. In fact the Respondent had filed his statement of claim on 18th December, 1996 while the Appellants had filed their statement on 11th March, 1998 and nothing has been mentioned in the said written statements with regard to the claim of the Respondent that the land acquired forms a part of the property known as 'Candentil' which was allotted to the Respondent and his deceased mother in the said Inventory Proceedings. As such it is not open for the Appellants to raise contentions which have no foundation in their pleadings. The Apex Court in the judgment reported in (2010) 7 SCC 689 in the case of Union of India and others V/s Jagdish Pandey and others has held at para 19 thus : :8: “19. It is a well settled rule that parties are expected to raise specific pleadings before the first forum for adjudication of the dispute. Those pleadings are the basis of the case of the respective parties even before the appellate/higher Courts. The parties would be bound by such pleadings, of course, subject to the right of amendment allowed in accordance with law. In the present case, no such amendment has been carried out even before the High Court and it will be unfair for this Court to get into the controversy of factual matrix of the case at this stage of the proceedings, particularly, when there exists no justification whatsoever on record as to why even these averments were not made before the Tribunal and not even before the High Court , despite the fact that the Tribunal had specifically made comments in this regard in its judgment. Even before this Court but for bald averments no documents, data or cogent material has been placed for appropriate adjudication of the rights of the parties”. 10. It is well settled that no evidence beyond the pleadings can be gone into. In view of the said judgment of the Apex Court, the contention of the learned Counsel for the Appellants that the land acquired is a part and parcel of the property 'Powado' cannot at all be considered. 11. Dealing with the contention of the learned Counsel appearing for the Appellants to the effect that the property 'Candlentil' which has been :9: described in the Inventory Proceedings initiated upon the death of the said father is not the property surveyed under survey Nos. 79/1 and 79/5, I find that the same deserves to be rejected. In the cross examination of the Appellant No.1, he has categorically admitted that “It is true that in the Inventory Proceedings initiated upon the death of the father of party no.1 3/5th part of the property 'Adlem' by survey nos.79/1 and 79/5 was allotted to the party no.1”. He has further admitted that “ It is true that the mother of party no.1 had executed a gift deed in favour of party no.1”. In the said gift deed, she had gifted a part of her 2/5th share to party no.1 and 1/4th part of 2/5th share was given to all the children. The fact remains that the Appellant No.1 has categorically admitted that the property surveyed under survey Nos.79/1 and 79/5 are the property subject matter of the property described in the Inventory Proceedings initiated upon the death of father of the Respondent. The contention of the Appellants to the effect that only a part of 2/5th share was gifted and the remaining 1/4th part of 2/5th was gifted to all the children is contrary to the gift deed which has been produced by the Respondent. On perusal of the said gift deed dated 14th June, 1979 at Exhibit AW1/B, I find that the Reference Court was justified to come to the conclusion that 2/5th share of the said property allotted in the said Inventory Proceedings was gifted by the mother to the Respondent herein. On the face of such admission and the documents on record, the contention of the learned Counsel appearing for the Appellants that the property described in the said Inventory Proceedings is not the property surveyed under survey Nos.79/1 and 79/5 cannot be accepted. :10: 12. The Reference Court whilst passing the impugned judgment on the basis of the documentary evidence adduced by the parties, specially the allotments in the Inventory Proceedings as well as in the gift deed has rightly come to the conclusion that the property which was the subject matter of the acquisition belongs to the Respondent. There is no dispute that the allotments made in the said Inventory Proceedings have become final and no body has challenged the said allotments. Under Article 2158 of the Portuguese Civil Code, the partition of the properties legally made in respect of which there had not been any objection, confers on the co-heirs exclusive ownership of the properties partitioned among them. In view of the said provision of law, there can be no doubt that in view of the allotments in the said Inventory Proceedings, the ownership of the property which was the subject matter of the acquisition belongs to the Respondent. 13. The Reference Court whilst passing the impugned judgment has appreciated the evidence on record and has come to the conclusion that the contention of the Appellants that the property surveyed under survey No. 79/5 is a part and parcel of the property 'Gorgina' cannot be accepted. Though no submission with that regard was advanced by the learned Counsel for the Appellants nevertheless the findings of the Reference Court on that count cannot be said to be erroneous. The Reference Court has in fact examined the evidence on record and has come to the conclusion that the property surveyed under survey No.79/5 is not the property known as 'Gorgina'. In any event, the Reference Court has also considered the gift deed executed by the Appellant No.2 in favour of the Respondent which has :11: not been challenged to hold that the land acquired in any event belongs to the Respondent. As such, the said findings of the Reference Court cannot be faulted with. 14. The Reference Court has rightly rejected the contention of the Appellants to the effect that the land acquired was held by them by adverse possession. There is no pleadings about any hostile title nor any evidence brought on record to substantiate their claim about the adverse possession with regard to the land which was the subject matter of the Inventory Proceedings. The Reference Court on appreciating the evidence on record has rightly rejected the said plea of the Appellants. The Appellants have also failed to identify the alleged area of 2400 square metres claimed by them which has also been a good ground to reject the claim of the Appellants to the acquired land which belongs to the Respondent. No further contention has been raised by the learned Counsel for the Appellants. The point for determination is answered accordingly. As such there is no merit in the above Appeal and consequently the Appeal stands dismissed with no order as to costs. F. M. REIS, J at*