1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.59 OF 2005 Communidade de Provincia de Balli, through its attorney Rohidas Datta Faldessai, r/o. Balimath, Taluka Quepem – Goa. …. Appellant V/s 1. Kushali Govind Gaunkar, 2. Nagu Puno Gaunkar, 3. Narain Katu Gaonkar, 4. Laximan Chimot Gaonkar All r/o. Velip Wada, Barcem, Quepem – Goa. …. Respondents Mr. J.C. Silva, Advocate for the Appellant. Mr. J.E. Coelho Pereira, Senior Advocate with Mr. A. Phadte, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 29th NOVEMBER, 2010 JUDGMENT : Heard. 2. The dispute between the appellant – Communidade and the respondents nos.4 & 5 in Land Acquisition Case No.262/1994 is regarding the receipt of compensation due and payable on account of acquisition of 6675 square metres of land of Survey No.128/5 of Barcem Village. 2 3. There is no dispute that Survey No.128/5 of Barcem Village in Canacona Taluka stands recorded in the names of respondents nos.4 & 5 in the survey records. 4. By the impugned judgment dated 30/10/2004 of the learned Reference Court, the said compensation payable has been ordered to be paid to the said respondents nos.4 & 5. 5. The case of appellant Communidade was that their names were wrongly recorded. It was their case that they were in possession of the said land of Survey No.128/5 for more than 100 years. It was their case that the said land was known as the 'Goncalamolla' enrolled under matriz No.13 in the Land Revenue Office. 6. On the other hand, it was the case of respondents nos.4 & 5 that they were the lawful co-owners of the property known as 'Borimolla' or 'Borodpoiquim Madulla – Madxetta', situated in village Barcem surveyed under no.128/5, enrolled under matriz No.2 and having land registration no.2300 and that as per the said matriz their property was bounded on the east by Goncalamolla, on the west by real road which leads to Canancona, on the north by 3 Vangxeta of Nilu Rama Velip and others and on the south by Vusselabuim of Panglo Sanclu Gaokar of Barcem. The boundaries of Land Registration were also given, which are different from the boundaries of matriz, in para 3 of their statement of claim and the same were rectified by deed dated 18/11/1988. It was their case that they had inherited the said property upon the death of their great grandfather Paik Kalso Gaonkar and that by the acquisition they have been deprived of their main source of income. 7. The Communidade in support of their claim had produced several documents namely the said certificate of matriz no.13 at Exhibit 21. A license for cutting forest produced at Exhibit 22, three estimates of income for the years 1936 to 38, 1945 to 47 and 1963 to 65 at Exhibits 23,25 & 26 respectively. Another license was also produced at Exhibit 27 and an award in Land Acquisition Case No.264/94 in relation to Survey No.131/2 at Exhibit 29. The Communidade had also examined an expert and had produced another report. 8. On the other hand, the respondents had produced the land registration certificate of land registration no.2300 at Exhibit 36 and the said deed of rectification at Exhibit 37, certificate of matriz 4 no.2 at Exhibit 38 and birth certificates and the said survey record in Form No.III at Exhibit 41, regarding which learned Counsel on behalf of the Communidade, concedes that till date no effort was made on behalf of the Communidade for correction of the said survey record and it could certainly be inferred that the survey record in Form No.3 is now translated into Form No.I and XIV and the survey is promulgated. 9. The Communidade was unable to identify the properties enrolled under matriz no.13 as the property surveyed under No.125/5 of village Barcem. The evidence given by the Communidade expert has been rejected by the learned Reference Court, in para 13 of the learned judgment as the said expert did not have any expertise in identifying immovable properties in as much as he had also not surveyed the entire property enrolled under matriz no.13 in loco as well as with reference to the survey numbers. In fact, the learned Reference Court observed that it was his job first to identify the boundaries of the entire property covered in his documents and, thereafter, to find out the corresponding survey numbers within the said boundaries and unless the said boundaries were found out it was difficult to find out whether any particular survey holding was in the said 5 boundaries or not. The learned Reference Court also noted that the plan approved by the said expert did not show all the boundaries of the matriz no.13, but it showed that the said plan was prepared by sitting in his office and as per the instructions given on behalf of the said Communidade and therefore his statement that survey No.128/5 was part and parcel of matriz no.13 could not be accepted, as it had no meaning at all. 10. Counsel on behalf of the Communidade submits that matriz no.13 as well as Survey No.128/5 have a rivulet on its eastern side. It may be so, but no property can be identified with the help of only one boundary. Moreover, one does not know whether the property having matriz no.13 is located at the source of the said rivulet or any where else. The other documents produced by the Communidade did not refer to either the survey number or to matriz number and some of them not even to village Barcem and this aspect of the case has been dealt by the learned Reference Court in para 8 of the judgment. 11. The acquired property admittedly is surveyed under no.128/5 of village Barcem and the names of said respondents nos.4 & 5 have been shown in the survey records which had a presumption in 6 their favour that they are in possession of the said property. Learned Counsel on behalf of Communidade concedes that the Communidade has taken no steps to correct the said records. In the absence of any other documents or acceptable evidence produced on behalf of the Communidade, it could not be said that the said presumption was rebutted which otherwise was a rebutable presumption. This aspect has been considered by the learned Reference Court in para 15 of the judgment. 12. The learned Reference Court has meticulously assessed the evidence produced. No fault can be found with the judgment of the learned Reference Court. 13. There is no merit in this appeal and, accordingly, the same is hereby dismissed. N.A. BRITTO, J. NH/-