1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.346 OF 2005 1. Shri Cantu Raghoba Gaonkar, 2. Smt. Umavati Cantu Gaonkar, 3. Shri Krishna Sada Gaonkar, 4. Smt. Suda Krishna Gaonkar, All above resident of H.No.685, Condir, Rivona, Sanguem, Goa. 5. Shri Gopal Ganesh Velip, 6. Smt. Kamavati Gopal Velip, R/o. H.No.687, Benurdem, Quepem, Goa. 7. Shri Bobi Nilu Amolka, 8. Smt. Shobavati Nilu Amolkar, Both r/o. H.No.79, Kalvona, Rivona, Sanguem, Goa. 9. Smt. Amrutem Krishna Velip, R/o. H.No.26, Cavarem, Quepem, Goa. 10. Smt. Jayanti Dina Sawant, R/o. H.No.68, Muscavarem Colomba, Sanguem, Goa. 11. Smt. Shane Krishna Velip, R/o. H.No.74, Cavarem, Quepem, Goa. 12. Smt. Bhimarathi Babu Gaonkar, 13. Shri Shashi Babu Gaonkar, 14. Shri Suresh Babu Gaonkar, 2 15. Shri Gokuldas Babu Gaonkar, All R/o. Panzorkonni, Cuncolim, Goa. 16. Smt. Sapana Kantu Velip, R/o. Gaodongri, Canacona, Goa. 17. Shri Saptu Sonu Gaonkar, 18. Smt. Prema Saptu Gaonkar, Residing at H.No.688, Condir, Rivona, Sanguem, Goa. 19. Smt. Shashikala Suresh Gaonkar, 20. Smt. Rohini Shashi Gaonkar, Major, housewife, residing at H.No.65, Panzorconni, Cuncolim, Goa. 21. Shri Kantu Tolu Velip, R/o. H.No.83, Gaondongri, Canacona, Goa. …. Appellants V/s 1. Shri Dharmu Paik Gaonkar, Expired through his legal heirs, (a) Shri Mahadev Nilu Gaonkar, Son of Low Late Dharmu Gaonkar, (b) Smt. Surat Mahadev Gaonkar, Resident of H.No.689, Condir, Rivona, Sanguem, Goa. 2. Smt. Satyabhama Dharmu Gaonkar, 3. Shri Bhilu Shanu Gaonkar, Agriculturist, 4. Smt. Mog Bhium Gaonkar, Housewife, 5. Shri Budho Shiva Gaonkar and his wife, 6. Smt. Onvol Budho Gaonkar, 3 Resident of H.No.684, Condir, Rivona, Sanguem, Goa. 7. Shri Fotti Shiva Gaonkar, Agriculturist, 8. Smt. Essu Fotti Gaonkar, Resident of H.No.684, Condir, Rivona, Sanguem, Goa. 9. Shri Nanu Shiva Gaonkar, (expired) through his legal heirs, (a) Shri Manguesh Nanu Gaonkar, Son of deceased, (b) Shri Ankush Nanu Gaonkar, Son deceased, (c) Shri Sandeep Nanu Gaonkar, Son of deceased, (d) Kum. Sheela Nanu Gaonkar, Daughter of deceased, (e) Kum. Mitra Nanu Gaonkar, Daughter of deceased, (f) Kum. Ankita Nanu Gaonkar, Daughter of deceased, All R/o. H.No. 699, Condir, Rivona, Sanguem, Goa. 10. Smt. Amrutem Nanu Gaonkar, Resident of H.No.699, Condir, Rivona, Sanguem, Goa. 11. Smt. Diulu Vithal Gaonkar, Housewife, 12. Shri Chandrakant Vithal Gaonkar, 13. Miss Suganda Vithal Gaonkar, Resident of H.No.677, Condir, Rivona, Sanguem, Goa. 14. Shri Molu Velip, Agriculturist and his wife, 15. Smt. Sukanti Molu Velip, 4 Housewife, Resident of H.No.38, Cavrem, Quepem, Goa. 16. Shri Rohidas Velip, Agriculturist, expired through his legal heirs, (a) Kum. Sangeeta Rohidas Velip, (b) Kum, Anjanni Rohidas Velip, (c) Kum. Rajanni Rohidas Velip, Condir, Rivona, Sanguem, Goa. 17. Smt. Vimal Rohidas Velip, Housewife, resident of H.No.677, Rivona, Sanguem, Goa. 18. Smt. Jayanti Puno Malik, Housewife, Resident of Malkamem, Quepem, Goa. 19. Shri Ramakant Vithal Gaonkar, Agriculturist, resident of H.No.677, Condir, Rivona, Sanguem, Goa. 20. Shri Kushali Putu Gaonkar, Agriculturist, 21. Smt. Gopika Kushali Gaonkar, Housewife, 22. Shri Fondu Putu Gaonkar, Agriculturist, 23. Smt. Prema Fonsu Gaonkar, Housewife, resident of H.No.674, Condir, Rivona, Sanguem, Goa. 24. Smt. Satyavati Vithoba Gaonkar, Housewife, 25. Shri Ganesh Vithoba Goankar, Agriculturist, 26. Smt. Nila Vithoba Gaonkar, Housewife, 5 27. Shri Damodar Vithoba Gaonkar, Agriculturist, 28. Miss Somati Vithoba Gaonkar, 29. Shri Mohan Vithoba Gaonkar, Agriculturist, Resident of H.No.633, Condir, Rivona, Sanguem, Goa, 30. Shri Putu Nilu Ambaulikar, Agriculturist, 31. Shri Mahadev Nilu Ambaulikar, Agriculturist, Resident of H.No.692, Condir, Rivona, Sanguem, Goa. 32. Shri Datta Rama Velip, Agriculturist, 33. Smt. Prema Datta Velip, Housewife, 34. Shri Rohidas Nagu Velip, Agriculturist, 35. Smt. Ratana Rohidas Velip, Housewife, Resident of Vichundrem, Neturlim, Sanguem, Goa. 36. Shri Raghu Shankar Gaonkar, Agriculturist, 37. Smt. Janaki Raghu Gaonkar, Housewife, Resident of Panjorcon, Cuncolim, Goa. 38. Shri Hari Sagun Gaonkar, Agriculturist, 38 (a) Shri Gopal Chandra Gaonkar, Agriculturist, Expired through his legal heirs, (a) Shri Channu Gopal Gaonkar, Agriculturist, and his wife, (b) Smt. Rajani C. Gaonkar, Resident of Panjorkonn, Cuncolim, Goa. 6 39. Shri Yesso Rama Gaonkar, Expired through his legal heirs, (a) Smt. Ramini Yessu Gaonkar, W/o. late Yessu Gaonkar, (b) Kum. Rajeshri Yessu Gaonkar, (c) Rajesh Yessu Gaonkar, All above residing at H.No.85, Panzorkonni, Cuncolim, Goa. 40. Shri Sadhanand Hari Gaonkar, Agriculturist, 41. Shri Santosh Hari Gaonkar, Agriculturist, 42. Smt. Shane Hari Gaonkar, Housewife, resident of H.No.77, Panzorconni, Cuncolim, Goa. 43. Smt. Vitom Bomo Gaonkar, Housewife, Resident of Barcem, Quepem, Goa. 44. Smt. Durga Shanbu Velip, Housewife, 45. Shri Krishna Shanbu Velip, Agriculturist, 46. Smt. Kukune Shambu Velip, Housewife, R/o. H.No.29, Barcem, Quepem, Goa. (Respondents Nos.1 to 46 were deleted as parties to the suit as per Order of the Trial Court dated 23/07/2002). 47. Communidade of Rivona, Through Administrator of Communidade, Salcete, Margao, Goa. 48. The R.F.O., Forest Office, Quepem, Goa. 49. The Conservator of Forest, Junta House, Panaji, Goa. 7 50. The Chief Secretary, Government of Goa, Panaji-Goa. …. Respondents Mr. M. Amonkar, Advocate for the Appellants. Mr. G. Shirodkar, Government Advocate for Respondents Nos.48,49 & 50. CORAM : F.M. REIS, J. DATE : 1st JULY, 2011 JUDGMENT : Heard Shri M. Amonkar, the learned Counsel appearing for the appellants and Shri Guru Shriodkar, the learned Government Advocate appearing for respondents nos.48,49 & 50. Respondent no.47, though served failed to remain present. 2. The above appeal challenges the judgment and decree dated 15/09/2005, passed by the learned Additional District Judge, Margao in Civil Suit No.109/2004. 3. Briefly, the facts which led to the filing of the suit by the appellants are that the appellants claim that they are the owners in possession of the property known as “Sordobagaet” and “Condivalla Codimolly” situated in ward Cavodda of Village Colomba in Sanguem 8 Taluka, which is bounded towards the east by the fenced stones, towards the west by the limit of village Maina, towards the north by the coconut grove of the heirs of Paclo Barisucar and towards the south with the border of Nomoxim of Lord Paico and that the said property is described in the Land Registration Office under No.9020 at page 120 of Book B26 and inscribed in Taluka Revenue Office under No.139 to 150. It is further their case that the suit property was originally belonging to his ancestors and in the Matriz record the name of their ancestor namely Shri Cantu Gurco Gaonkar is recorded. It is further their case that after the death of the said Shri Cantu Gurco Gaonkar, the property was transferred to his wife Smt. Radhika Gaonkar in view of the inventory proceedings initiated upon his death. It is further their case that in the year 1971 the respondents tried to interfere with the suit property and, accordingly, proceedings were initiated under Section 145 of the Criminal Procedure Code before the Deputy Collector, Quepem. It is further their contention that the respondents nos.1 to 46 have made encroachments into the suit property by building houses therein, though without any right and they are claiming ownership right on the said portion of the property. According to the appellants, there are various fruit bearing trees in the suit property which are in their enjoyment and according to them the suit property corresponds to the property surveyed under no. 120,121,124,125,128,123 and 109 (part) of village of Rivona 9 of Sanguem Taluka. It is further their case that the survey records wrongly disclosed name of Communidade of Rivona as well as the name of the Forest Department in respect of the portion of the property claimed by the appellants under survey no.109(part). Accordingly, the suit came to be filed praying, inter alia, for a declaration that the appellants are the owners in possession of the said property and for other consequential reliefs to rectify the survey records. 4. During the pendency of the said suit, the names of respondents nos. 1 to 46 came to be deleted. The suit proceeded only against respondent no.47 which is Communidade of Rivona and the remaining respondents which are the Government Authorities. The said respondents filed their written statement disputing the claim of the appellants. The respondents nos.48 to 50 have claimed that the portion of the property surveyed under no.109(part) claimed by the appellants forms part and parcel of the property belonging to the Government as the same is in occupation and enjoyment of Forest Department. It is further their case that the possession of the said property is with the said respondents and, in fact, according to the said respondents they were even auctioning the fruit bearing trees and other trees located in the whole property surveyed under no.109(part) of the said village. They accordingly prayed that the suit be dismissed. 10 5. The learned Judge after framing the issues and recording the evidence of the respective parties, by the impugned judgment and decree dated 15/09/2005, dismissed the suit filed by the appellants. Being aggrieved by the said judgment and decree the appellants have preferred the present appeal. 6. Shri M. Amonkar, the learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that the learned Judge has erroneously refused the claim of the appellants as according to him there was sufficient material on record for the learned Judge to come to the conclusion that the appellants are the owners in possession of the suit property. The learned Counsel further submitted that as far as the respondents nos.48 to 50 are concerned, the claim of the appellants is restricted to the portion of the property surveyed under no.109 (part) only which was in possession and enjoyment of the appellants. The learned Counsel further pointed out that the appellants have produced the Matriz record in respect of the whole property including property claimed by them surveyed under no.109 (part) and, as such, there is no reason for the learned Judge to refuse declaration as claimed by the appellants. The learned Counsel has further submitted that the appellants have fruit bearing trees in the disputed portion of the 11 property surveyed under no.109 (part) wherein they have cashew trees which are in their enjoyment and, as such, in view of such possession itself the claim of the appellants deserves to be granted. The learned Counsel has further submitted that the appellants have examined surveyor, PW6 who has identified the property claimed by the appellants and, as such, there was no reason for the learned Judge to arrive at a conclusion that the appellants have failed to identify the suit property. The learned Counsel has taken me through the evidence on record as well as the impugned judgment and pointed out that the learned Judge has not at all appreciated the evidence adduced by the appellants in accordance with law and, as such, the impugned judgment deserves to be quashed and set aside. 7. On the other hand, Shri Guru Shirodkar, the learned Government Advocate appearing for respondents nos.48,49 & 50 has supported the impugned judgment. The learned Counsel has pointed out that though some Matriz records have been produced by the appellants, nevertheless, there is no evidence adduced by the appellants to substantiate their allegation that the portion of the property under survey no.109(part) corresponds to the boundaries as mentioned in the said Matriz records. The learned Counsel has further submitted that the survey records rightly stand in the name of the respondents nos.48 to 50 as far as the 12 property under survey no.109 (part) is concerned, and as such, the presumption under Section 105 of the Land Revenue Code is to be drawn in favour of the said respondents. The learned Counsel further submitted that PW1 himself has admitted that as far as the suit portion of the property surveyed under no.109(part) is concerned, it is in possession of the said respondents. The learned Government Advocate has further taken me through the reliefs claimed by the appellants and pointed out that the appellants are not entitled for any such reliefs as admittedly the appellants are not in possession of the disputed portion of the property, besides the fact that there is no identification of the suit property on the basis of the documents produced by the appellants. The learned Counsel further took me through the impugned judgment and pointed out that there is no infirmity committed by the learned Judge, and as such, the appeal deserves to be dismissed. 8. Having heard the learned Counsel and on perusal of the record, following points for determination arise in the present appeal: POINTS FOR DETERMINATION: (i) Whether the appellants have established that the disputed portion of the property surveyed under no.109 (part) is in ownership and possession of the appellants. 13 (ii) Whether the learned Judge was justified to come to the conclusion that the appellants have failed to establish their claim on the suit property. 9. Dealing with the points for determination as referred to herein above, on perusal of the claim of the appellants, I find that it is the case of the appellants that they are owners in possession of a specific property as identified in para 1 of the plaint. The boundaries stated in the said part have not been established at loco by any evidence adduced by the appellants. The boundaries disclosed at para 1 of the plaint have not been identified with the boundaries as mentioned in the survey plan. The said boundaries disclose that the western boundary of the property is the limit of village Maina and towards the east by the fenced stones and towards the north by coconut grove of Paclo Barisucar and towards the south with the border of Nomoxim of Lord Paico. The claim of the appellants to the portion of the property under survey no.109 (part) admeasuring an area of 22,050 square metres does not disclose that the western boundary thereof is village of Maina. Though it is sought to be claimed that survey no.125 also forms part of the property of the appellants, but however, the survey plan discloses that there are many structures existing therein and as per the case of the appellants themselves such persons are claiming rights to the said property. Apart 14 from the the eastern boundary which is fenced stone has also not been identified in the plan produced by the appellants and marked “X” for identification. Same is the case with regard to the northern and the southern boundary. The survey plan at Exhibit 53 also does not help the appellants to advance their case that the property surveyed under no.109 (part) forms part and parcel of the property claimed by the appellants. As such, the learned Judge was justified to come to the conclusion that the appellants have failed to identify the suit property. Apart from that the contention of the learned Counsel appearing for the respondents that the suit property has been identified by the surveyor examined by the appellants who is PW6, I find that the same cannot be accepted. On perusal of the affidavit in evidence filed by PW6, he has stated in para 5 of the said affidavit that he has prepared the plan after verifying the boundaries in the document and the boundaries as found in the survey plan. In the cross-examination, when a specific question was asked as to the boundaries upon which he has relied upon for the purpose of such determination, he has stated that he is not aware of any such boundaries. Apart from that the learned Judge in the impugned judgment while discussing issue no.1 has taken note of the fact that the said surveyor was unable to state in which village the demarcated area is located. He has further stated that he is not aware as to whether the property surveyed under no.109 belongs to the Forest Department. Such 15 evidence adduced by the appellants, by no stretch of imagination, can be accepted for the purpose of identifying the suit property as claimed by the appellants. Besides that, I find that on perusal of the evidence on record, that the boundaries as mentioned in the Land Registration Certificate record have not been identified at loco and, as such, there is nothing on record to establish that the property surveyed under no.109 (part) forms part and parcel of the property claimed by the appellants. The learned Judge after minutely considering the evidence on record is justified to come to the conclusion that the appellants have failed to identify the suit property. 10. The evidence of PW2 examined by the appellants cannot advance the case of the appellants as in his cross-examination he has clearly stated that he is not aware of the nature of the trees in the entire survey no.109. He has further admitted that there are forest trees in the entire property surveyed under no.109. He has also admitted that the cashew trees in the said portion of survey no.109 belong to the Forest Department. This evidence is contrary to the claim of the appellants. PW3 though in the affidavit in evidence claimed that the suit property belongs to the appellants and is in their possession, nevertheless in the cross-examination he has stated that he is not aware about the name of the suit property nor its survey number nor the area of the suit property 16 nor he had seen any documents. Similar is the evidence of PW4. He has also admitted in his cross-examination that there are jungle trees in the suit property. The evidence of the appellants in fact does not support nor corroborate the case put up by the appellants in the plaint and the oral evidence of the appellants. The evidence of PW6 cannot be accepted as he has not identified the property on the basis of the title documents claimed by the appellants and the boundaries found therein. Apart from that on perusal of the evidence of PW1 and specially his cross-examination he has admitted that the Forest Department was auctioning the whole property surveyed under no.109 including the disputed portion claimed by the appellants. This admission on the part of the appellants itself discloses that the appellants were not in possession of the disputed portion of the property surveyed under no.109 (part). On perusal of the reliefs sought by the appellants there is no prayer for restoration of possession of the suit portion of the property. The question of granting any relief of declaration of title on the basis of such evidence would not arise when the appellants are not in possession of the disputed portion. The learned Judge was justified to come to the conclusion that the appellants have failed to establish their ownership and possession of the disputed portion of the property. Hence, on going through the impugned judgment as well as the material placed on record and the evidence produced by the parties, I find that the learned Judge 17 has rightly appreciated the evidence on record and, as such, no interference is called for in the impugned judgment. Both the points for determination are answered accordingly. 11. In view of the above, the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-