1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 171 OF 2004 IN CIVIL APPLICATION NO. 179 OF 2010 AND MISCELLANEOUS CIVIL APPLICATION NO. 815 OF 2010 Chandreshwar Bhutnath Devasthan, Parvat Paroda, with its office at Coto Amona, Quepem, Goa, represented by its Attorney Shri Chandrakant Shiva Raut Desai, age 52, occupation, service, married, residing at H.No. 85, Assolda, P.O. Chandor, Salcete, Goa. ... Appellant versus Ashok G. Zotkar H.No.230, Mulase, Paroda, Salcete-Goa. ... Respondent Shri Sudesh Usgaonkar, Advocate for the Appellant. Shri S. D. Lotlikar, Senior Advocate with Shri K. B. Surjuse, Advocate for the Respondent. CORAM : F. M. REIS, J. DATE : 18TH FEBRUARY, 2011. 2 ORAL JUDGMENT Heard Shri Sudesh Usgaonkar, learned Counsel appearing for the appellants and Shri S. D. Lotlikar, learned Senior Counsel appearing for the respondent. 2. The above appeal challenges the Judgment and Award dated 19-3-2004 passed by the learned Additional District Judge at Margao in Land Acquisition Case No.45 of 1990. 3. Pursuant to a notification under the Land Acquisition Act, 1894(herein after referred to as the said Act) dated 24-9-1986 land was sought to be acquired for laying of the pipeline and service road of the 160 MLD Selaulim Water Supply Project from Ambaulim to Paroda. Amongst the lands which were acquired, an area of 10,000 sq. meters forming part of survey No.81 was intended to be acquired. By award passed under Section 11 of the said Act dated 30-9-1988, the compensation was fixed at Rs.1,30,793.16 and in view of the rival claims, the matter came to be referred to the learned District Judge under Section 30 of the said Act. 3 4. By Judgment and Award dated 19-3-2004, the learned Reference Court directed that the compensation awarded along with interest accrued thereon is to be paid to Party No.3 who is the respondent herein. 5. Being aggrieved by the said Judgment, the appellants have preferred the present appeal. 6. Shri Sudesh Usgaonkar, learned Counsel appearing for the appellants has assailed the impugned Judgment and pointed out that the Reference Court has misdirected itself by holding that the compensation is to be paid to the respondent. According to him, the land acquired was belonging to the appellants and the compensation had to be awarded to the appellants herein. Learned Counsel further submitted that the respondent has failed to identify the property as claimed by him and stated to be registered in the Land Registration Office and as such, unless such identification was carried out, the question of directing the payment of compensation to the respondent would not arise. Learned Counsel further took me through the evidence on record and pointed out that the property acquired forms part and parcel of the property belonging to the 4 appellants. Learned Counsel has further submitted that in the earlier proceedings the claim of the appellants has been adjudicated wherein besides the appellants some other private parties were also parties in the Judgment passed in First Appeal Nos.42 of 1985 and 114 of 1985. Learned Counsel further pointed out that there was a grant in favour of the appellants which according to him is the subject matter of the land acquired in the present case. He further submitted that there is a dispute of title between the appellants and the respondent which is pending before the learned Civil Judge, Senior Division at Quepem in Regular Civil Suit No.10 of 1981 which has not yet been disposed of. Learned Counsel further submitted in the alternative that in case this Court decides to award the compensation to the respondent on the basis of the claim of possession, the issue of title is to be kept open to be decided in the said proceedings pending before the Civil Court. Learned Counsel has taken me through the evidence on record and pointed out that the proceedings are to be stayed until the said Civil Suit is disposed of by the Civil Court. Learned Counsel further submitted that he had also filed an application to amend the grounds in the appeal memo to impugn the Order passed in the reference proceedings whereby the application to stay the proceedings under Section 10 of the Civil Procedure Code came 5 to be rejected. Learned Counsel as such submitted that the Reference Court has erroneously come to the conclusion that the compensation is to be awarded in favour of the respondent, and accordingly prayed that the impugned Judgment be quashed and set aside and the compensation be directed to be paid to the appellants herein. 7. Shri S. D. Lotlikar, learned Senior Counsel appearing for the respondent has supported the impugned Judgment. Learned Senior Counsel has taken me through the evidence on record and pointed out that there is a suggestion put forward to the expert surveyor examined by the respondent to the effect that the property “Galle” is located in the property surveyed under No.82/1. Learned Senior Counsel further submitted that as such the question of contending that the respondent has not identified the property to demonstrate that the property registered in the name of the respondent does not include the property which is the subject matter of the acquisition would not arise. Learned Senior Counsel has further submitted that the respondent has conclusively established by oral as well as by documentary evidence specially the documents of excise license as well as the documents at Exh.50 that the respondent is in possession of the acquired portion of the land. Learned 6 Senior Counsel further took me through the notes of evidence and pointed out that the respondent has established that the acquired portion of the land is in possession and enjoyment of the respondent. Learned Senior Counsel further submitted that the question of title can be left open for the purpose of being adjudicated in the pending Civil Suit but considering that the respondent was in possession of the acquired portion of the land and in view of the material on record there is no fault committed by the Reference Court in directing that the compensation be paid to the respondent. Learned Senior Counsel has as such submitted that the appeal deserves to be dismissed. 8. Having heard the learned Counsel and on perusal of the records, I find that the learned Judge whilst passing the impugned Judgment has noticed on the basis of the written statement of the appellants that their claim is that the area acquired forms part and parcel of the property known as “Oiteiro Porvot” or “Oiteiro Chandranath” situated in the village of Paroda, Talvorda and Mulem and not described in the Land Registration Office. It is further their case that this Porvot was allotted to the Devasthan on 6-8-1823 by the then Government which is a huge property and has different parts of the property which 7 are known by different names. It is further their case that one part of the property is known as “Bibeandando” which is inscribed in the Land Revenue Office under No.260 of Paroda village and is surveyed in the Record of Rights under No.66(part), 70(part), 62, 81(part) and 78(part 2). In support of their claim, the appellants have also produced the decree dated 15-2-1985 in Special Civil Suit No.2 of 1983 wherein the learned Judge has held that the property surveyed under No.82/1 of Paroda village is part and parcel of the property Porvot. It is also noted that the respondent has also filed a suit in respect of the property surveyed under Nos.81/1 and 82/1 and the appellants have filed a counterclaim therein. The appellants accordingly claim that they are entitled to the compensation as the acquired portion of the land was part and parcel of their property. 9. The respondent has also filed his written statement and stated that the land which is subject matter of the acquisition belongs to the respondent along with his brothers and forms part of the property known as “Galle” situated at Paroda and registered in Land Registration Office at Quepem under No.5691 and enrolled in Taluka Revenue Office under No.329. It is further his case that the said property bears survey 8 Nos.81/1 and 82/1 and is being owned and possessed by him and his ancestors for a period of 100 years as exclusive owners. It is further his case that the property is wrongly shown in the Record of Rights under the name Modi and Zoller and that it forms part and parcel of property “Galle”. He has further stated that the property was standing in the name of one Vishnu Raghoba Porvatkar who was looking after the property of the respondent and his brothers and has given an affidavit before the Mamlatdar to the effect that his name was wrongly recorded in the property “Galle” and that the name of the respondent and his brother is to be included. He has further stated that the said property has been entered in the occupant's column of the Records of Rights in the name of Devidas Zotkar and the Party No.3 and the respondent herein. He has further stated that the property consists of cashew trees and other fruit bearing trees and that a house in which the mother of the respondent and the respondent reside is also located therein. He has further stated that the acquired land is surveyed under No.81 and forms part of the property “Galle” and as such, the compensation is to be paid to the respondent. 10. The learned Judge by the impugned Judgment has come to the conclusion that the appellants have failed to establish that they are 9 the owners in possession in respect of the property surveyed under No.81/1 which has been acquired by the Government. The learned Judge has come to the conclusion that the respondent has established that the property surveyed under No.81/1 is owned and enjoyed by the respondent. Whilst appreciating the evidence of the appellants, the learned Judge has found that though it was admitted that the property “Oiteiro Chandranath” is recorded in the cadastral book of the Devalaya no such record was produced before the Court. Whilst considering the claim of the appellants with regard to the deed of grant of 1823 claimed to have been granted in favour of the appellants, the learned Judge has considered the evidence on record and found that the admission of the appellants in his deposition would show that the Devasthan is not in possession of any document showing that survey No.81/1 is the property registered in the name of the Devasthan and that there was no document showing the transfer of the land in favour of the Devasthan. The learned Judge on perusal of the document dated 16-8-1823 has found that there was an auction of the Chandranath hill which was taken by the Mahajans and that the Devasthan had not signed the said document of grant. The learned Judge has as such found that the Devasthan could not have derived any title over the land on the basis of the said document. With 10 regard to the Judgment passed by this Court in the appeal arising from Civil Suit No.2 of 1983 and Regular Civil Suit No.66 of 1977, the learned Judge has found that the dispute in the said suit was in respect of the property surveyed under Nos.167 and 86 of Mullem village as admitted by the appellants in the cross-examination. The learned Judge has also found that the respondent was not a party to the said proceedings. The learned Judge as such came to the conclusion that the findings in the said proceedings were not binding on the respondent. The Reference Court refused to rely upon the report of the Commissioner appointed by this Court in the said proceedings as he was not examined nor the documents of the respondent considered by the said Commissioner. The learned Judge has also considered that in the suit filed by the respondent against the appellants an injunction is operating against the appellants restraining them from interfering with the property surveyed under Nos.81/1 and 82/1. With regard to the claim that there was an auction for extraction of stones as claimed by the appellants, the learned Judge found that no such lease agreement was produced before the Court. The learned Judge as such came to the conclusion that apart from the fact that the appellants failed to establish title over the property surveyed under No.81/1, the appellants also failed 11 to adduce evidence that they were in actual possession of the acquired land. The learned Judge discarded the contention of the appellants that in the year 1793 the property was given by them to the ancestors of the respondent. The learned Judge has noted the admission that the property which was granted to the ancestors of the respondent is surveyed under No.82/1(part) in the year 1793. The learned Judge has found that on perusal of the document at Exh. AW1 colly, the appellants were not allowed to enjoy the piece of the uncultivated land on both sides of Passalewal(nallah) and by the side of the land Galle granted to Dattem Kolvant and in between the village boundaries of Paroda and Ambaulim. Considering the measurements mentioned in the said document and the document of 1793, the learned Judge has found that the said document cannot be considered to be in respect of the acquired portion of the land. The learned Judge has appreciated the evidence adduced by the appellants and of the witnesses examined by them. The learned Judge found that the appellants have failed to prove that the acquired land admeasuring 10,000 sq. meters from survey No.81/1 was part of the property owned and in their possession. Whilst deciding issue no.2, the Reference Court has considered that the property stands registered in the Land Registration Office under No.5691 in the name of the ancestors of 12 the respondent of the property stated to be known as Galle. The statement of respondent No.1 to that effect was not even challenged in the cross-examination. The learned Judge has perused the boundaries as shown in the land registration documents as well as the Deed of Gift dated 21-2-1996 whereby the property was gifted in favour of Ashok Zotkar and Dattaram Zotkar who is the brother of the respondent. The learned Judge has also considered the evidence on record as well as the license whereby cashew juice was extracted and sold for distillation which is at Exh.46. The learned Judge has also considered the deposition of the surveyor Dangui and the plan produced at Exh.56 and came to the conclusion that the acquired portion of the land under survey No.82/1 was part of the property Galle. The learned Judge has also considered the boundaries of the property as shown in the Land Registration Office as well as the matriz records. The learned Judge also appreciated the witnesses examined by the respondent including the surveyor and has found that the boundaries as shown in the documents were clearly identified including the property of one Kenkre towards the eastern side in the plan prepared by the surveyor. The learned Judge has relied upon Article 953 of the Portuguese Civil Code as well as the other provisions of law as in force and has come to the conclusion that the property Galle 13 registered under No.5691 is the property belonging to the respondent. The learned Judge has found that the witnesses examined by the respondent have corroborated the case of the respondent and on perusal of the plan at Exh.56 has come to the conclusion that the water pipeline passes through the property surveyed under No.82/1 at a distance from the paddy portion. The learned Judge after appreciating the evidence on record has come to the conclusion that even the survey records stand in the name of the respondent and his brother and consequently the acquired portion of the land is in ownership and possession of the respondent and as such the respondent is entitled to the compensation awarded by the Land Acquisition Officer. 11. On perusal of the evidence on record, I find that the appellants have failed to produce any document to show that the acquired portion of the land was belonging to the Devasthan. The learned Judge has minutely examined the evidence of the witnesses and pointed out that though it was the claim of the appellants that they were in possession of the acquired portion of the land no evidence has been adduced by the appellants to establish the said aspect. In support of their claim to the compensation awarded in the said acquisition proceedings, 14 the appellants have examined AW1/Chandrakant S. Raut Dessai. In his examination in chief he has stated that in the acquired portion of the land there were 50 cashew trees, 3 tamarind trees, one mango tree and 7 coconut trees. He has further admitted that the survey records stand in the name of Ashok Zotkar who is respondent No.1 herein and Devidas Zotkar. In his cross-examination, he has stated that the tamarind tree was planted somewhere in the year 1972 and the said cashew trees were planted in the year 1980 and that the records were with the Devasthan. He has further stated that there were no records of the mango trees planted nor any records with regard to the planting of the coconut trees in the acquired portion of the land. He has further stated that the property is a vast area and he does not know who is cultivating the said paddy field nor their survey numbers in respect of the properties located on the northern side. He has further admitted that in respect of the acquired portion of the said property there is a Civil Suit pending in Quepem Court between the parties and the dispute therein is with regard to the entire property surveyed under Nos.81 and 82/1. He has further admitted that there is an injunction operating against the appellants from interfering with the property surveyed under Nos.81 and 82/1. He has further admitted that presently both the properties are in possession of 15 the Respondent. The said evidence of AW1/Chandrakant S. Raut Dessai clearly suggests that the property is not in possession of the appellants herein and that the same is being possessed by the respondent. Though, it is claimed that such possession of the respondent has started recently nevertheless considering the admissions in the cross-examination of AW1/Chandrakant, I find that the appellants have failed to establish that any acquired portion of the land was in their possession or that the trees claimed to be existing therein were being planted or enjoyed by the appellants. AW2/Chandrakant Y. Prabhu Dessai has stated in his cross- examination that the appellants are in possession of the property surveyed under Nos.81 and 82/1 and that they are enjoying the fruits. This statement is totally contrary to the evidence of AW1/Chandrakant and in view of the admitted fact that there is an injunction operating against the appellants the said statement of AW2/Chandrakant cannot be accepted. The evidence of the said witness as such with regard to the claim of possession deserves to be discarded. AW3/Ulhas Datta Naik has also stated in the cross-examination that he is not aware as to who are the persons who have taken an auction of the mango trees in the suit property. Though the claim of AW4/Ramnath Gaonkar is that the trees existing in the acquired portion were in possession of the appellants 16 nevertheless such allegation cannot be accepted as no evidence has been adduced to substantiate that the appellants had ever enjoyed any of the trees existing in the acquired portion. 12. On the other hand, the respondent has produced excise licences of the year 1988 at Exh.48 as well as the documents of the land registration. He has also produced the licence dated 18-2-1983 issued in his favour of the Excise Department at Exh.57. He has further stated that the eastern boundary of the property which shows the property of Kenkre lies in the village of Paroda. He has further stated that the land where the house is located is at the same level of the property surveyed under No.82/1. He has denied the suggestion that the changes in the survey records were done fraudulently. In the cross-examination, the suggestion put forward is that the licences at Exh.48 are pertaining to the cashew trees existing around the house which has been denied by the respondent. The excise licence produced by the respondent discloses that the same pertained to the property “Galle” claimed by the respondent. The Order passed by the survey authorities at Exh.60 also show that the names of the respondent were ordered to be included in the survey records in respect of the said acquired portion of the land. The witnesses examined 17 by the respondent have also corroborated that the property which has been acquired was in possession of the respondent. The oral evidence on record adduced by the respondent establishes that the acquired portion of the land was in possession of the respondent and these aspects coupled with the provision of Article 953 of the Portuguese Civil Code establish that the respondent has adduced evidence to the effect that the acquired portion of the property was belonging to the respondent and in his possession. The appellants have failed to establish that they were in possession of the acquired portion. Apart from that, in the Civil Suit filed by the respondent a temporary injunction is also operating against the appellants though the Civil Suit is not disposed of. The presumption under Section 105 of the Land Revenue Code is in favour of the respondent to the effect that the acquired portion of the land was in his possession and the appellants have failed to rebut the said presumption by any evidence on record. 13. As far as the contention of Shri Sudesh Usgaonkar, learned Counsel appearing for the appellants that the property registered in the Land Registration Office has not been identified as the same also includes the property surveyed under No.81/1, I find that the said 18 contention cannot be accepted. The learned Judge by appreciating the evidence on record and the boundaries as shown in the Land Registration Records and the examination of the expert Dangui has come to the conclusion that the boundaries shown in the land registration documents encompasses the portion of the land surveyed under No.81. Apart from that, there is a specific suggestion put to Shri Dangui by the appellants to the effect that the property “Galle” forms part and parcel of property surveyed under No.82/1. The eastern boundary of the property has also been established on the basis of the evidence on record. As such, the contention of learned Counsel Shri Usgaonkar that the property as described in the Land Registration Office is not correlated with the boundaries of the survey records to include the acquired portion surveyed under No.81 cannot be accepted. 14. As far as the contention of Shri Usgaonkar to the effect that the Judgment passed by this Court in the said First Appeals would bind the respondent also cannot be accepted. Admittedly, the respondent is not a party to the said proceedings and in any event the right of the respondent over the acquired portion of the land nor his claim thereof was the subject matter of the said proceedings. Besides that, the said 19 Judgment passed by this Court was on the basis of the Commissioner's Report but, however, on perusal of the said report, I find that the Commissioner specially stated in the said report that some of the survey numbers from the said property were standing in the name of private parties. In other words, the issue as far as the claim of such private parties was left open. The respondent herein can be considered to be one of such private parties. The Commissioner has also not been examined. As the said report by itself discloses that the report given therein