1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 181 OF 2005 Shri Budho Arjun Gurav, Son of late Shri Arjun Gurav, Major in age, Agriculturist, Resident of Bambar, Nanode, Satari, Goa. … Appellant V e r s u s 1. Shri Pandurang Fati Gaonkar, Son of Shri Fati Gaonkar, Major in age, Married, Labourer, Resident of Dhave, Amedi, Nagargao, Sattari-Goa. 2. Shri Rama Gopal Gaonkar, Son of late Shri Gopal Gaonkar, Major of age, Married, Labourer, Residing at Dhave, Amedi, Nagargao, Sattari, Goa. 3. Government of Goa, through Chief Secretary, Secretariat, Porvorim, Goa. … Respondents. Mr. S.D. Lotlikar, Senior Advocate with Mr. K.B. Surjuse, Advocate for the Appellant. Mr. D. Pangam, Advocate for Respondents Nos.1 & 2. CORAM : F.M. REIS, J. DATE : 11th FEBRUARY, 2011 JUDGMENT : The above appeal challenges the judgment and decree dated 31/03/2005, passed by the learned Additional District Judge, 2 Mapusa in Civil Suit No.202/2004, whereby the suit filed by the appellant came to be dismissed. 2. It is the case of the appellant that there is a property known as “Haddichem Bhorod” situated at Nanora Village in Sattari Taluka, surveyed in the record of rights under no.10/2. It is further their case that the said property is bounded towards the east by the paddy field which is in possession of one late Laxman Apa Gurav and by a nalla towards the west, by the property of Vassu Bablo Paryekar on the north and towards the south by the property known as “Gauthan” belonging to the appellant. It is further their case that the property was exclusively enjoyed by Laxman Apa Gurav, who was in peaceful possession since the last 80 years and that he expired on 4/11/1982 and his wife expired on 2/02/1992. A deed of gift dated 13/03/1986 was executed whereby the suit property was inter alia gifted to the father of the appellant by the said Laxman Apa Gurav and his wife and the father of the appellant expired on 26/09/1992. It is further their case that though the property belonged to the Government of Goa, the same was exclusively enjoyed and possessed by said Laxman Apa Gurav and prior to him in similar circumstances by his father. It is further their contention that in the survey records the name of the Government still figures 3 as occupant which the appellant came to know recently and no steps have been taken to get the name deleted. So also it is further their case that the names of the respondents nos.1 & 2 have been recorded in the survey records in the other rights column as encroachers in the suit property, but however, the same has been wrongly recorded and the respondents are not in possession of the suit property. It is further their case that the suit property consists of fruit bearing trees and all the trees were being enjoyed by them and prior to them by said Laxman Apa Gurav. The details of their acts of possession have also been stated in the plaint. It is further their contention that the respondents have no right or title to the suit property which the appellant is in possession and consequently the suit came to be filed restraining the respondents by a permanent injunction from interfering in whatsoever nature in the suit property and/or from obstructing the appellant in enjoyment of the suit property on any count. Thereafter, by an amendment, the respondent no.3 has been added which is Government of Goa and the prayer clause also came to be amended seeking a declaration that they have acquired ownership by prescription. 3. The respondents nos.1 & 2 filed their written statement and disputed the claim of the appellant. It is their case that the said 4 property bearing Survey No.10/2 is also surveyed in 2 more numbers namely 11/8 and 11/9 of village of Nanora. It is further their contention that the suit property along with the other integral part of the suit property bearing Survey No.11/8 is possessed and enjoyed by the said respondents and their father since last over 60 years. It is further their case that the said survey numbers belong to the Government and the same have been encroached upon by the said respondents and their father and their names have been rightly recorded in the survey record. For the aforesaid reasons, as stated in the written statement, it is their contention that the appellant has no right for any relief sought by him and, consequently, the suit deserves to be dismissed. An additional written statement came to be filed by the said respondents wherein they disputed the claim of the appellant that he was in possession of any portion of the suit property. 4. After framing of the issues, the evidence came to be recorded. The first affidavit in evidence is of Budho Gurav, who has stated about his claim with regard to the suit property. The said witness in support of his claim has produced the deed of gift which is at Exhibit 28 as well as the death certificate. He has also produced documents such as receipts from the Goa Bagayatdar Sahakari 5 Sanstha 30 in number at Exhibit 30 collectively, as well as, 5 licences from the Excise Department at Exhibit 33 and copy of the share certificate and the survey records and survey plan. The said witness has been cross-examined, who has stated that he does not have any own property in village Kodal but they are cultivating the property belonging to others. He has further stated that the said property comprises of two survey numbers besides survey no.10/2 which is the suit property. The other survey numbers are 11/8 and 11/9. He had admitted that the names of the respondents nos.1 & 2 are recorded in the other rights column of all the three survey numbers. He has admitted that the survey number has been mentioned in the deed of gift produced by him. He has also admitted that the temple came to be constructed in the year 1985. He has admitted that towards the east of the property there is a nalla and the paddy field. He has admitted that original property belonged to the Government and there are 1000 cashew trees and 10 jack fruit trees. There are also jungle trees in the suit property. He has further stated that the property surveyed under no.11/8 and 11/9 are possessed by them and are in their enjoyment and both the survey numbers are integral part of the suit property. The next witness examined is Balchandra Gaonkar, who has stated that he knows the suit property surveyed under number 10/2 and that he 6 was taking the collection of the yield of the cashew growth from late Laxman Apa Gurav for 16 years. He has given the boundaries of the suit property and further stated that he has stopped taking the cashew yield from the year 1995. He has further stated that there is a house of the appellant in the suit property and also a temple has been constructed in one part of the suit property. In the cross- examination he has stated that the name of the property was given to him by the appellant. He has further stated that when he was 8 years old he got engaged in the suit property for the collection of the yield of the cashew nuts. He has further stated that in the year 1994 it was appellant who had given the suit property to him for the purpose of collecting the cashew crop. He has further stated that presently the appellant is not enjoying the cashew nut growth which is situated by the side of property and the same is given by the appellant to any person who pays the highest amount. He has further stated that the distance from the suit property and the house of Laxman Gurav is about 400 metres. The next witness examined is Pandurang Parsekar, who has stated that the said property is basically a cashew growth and there are about 1000 to 1200 cashew trees and they are in possession of the appellant. He has further stated that the appellant has another cashew growth which bears survey number 4/1 and the yield of the same was being 7 collected by the appellant and his family members. In the cross- examination, he has stated that he is residing at a distance of 5 metres walk from the suit property. He has further stated that he knows the respondents for the last many years, however, he could not state the exact number of the years. He denied the suggestion that the appellant was not in possession of the suit property. Next witness is Narayan Savordekar, who has stated that he knows Budho Gurav so also Arjun Gurav and that the cashew grow commonly known as “Nileadeache Bhorad” was in possession and enjoyment earlier by Laxman Ape Gurav up to his death and thereafter with the appellant. In the cross-examination, he has stated that even by approximation he is not in a possession to tell as to when the temple came to be constructed. He further stated that he is brother-in-law of Laxman Ape Gurav and he has been residing in the house of Laxman along with the appellant Budho Gurav. He has further stated that on the day Laxman died, the respondents puked up dispute with the appellant. The next witness is Fati Gaonkar, who has also stated about the construction of a temple in the said property. He was duly cross-examined by the respondents. The next witness is Gopiki Gawas, who has stated that the appellant is in enjoyment of the suit property and the cashew trees existing therein. She has also stated that the temple is 8 located on one side of the property. She also stated that she knows Balchandra Paryekar on whose behalf she was engaged to carry out some work in the property. She has further stated that she is not aware what was the yield of the cashews. 5. The respondents have examined DW1/Shri Pandurang Fati Gaonkar, who has stated that the property originally belonged to the Government and the same is being encroached by his predecessors in title. He has further stated that besides his predecessors in title no other persons including the appellant have got any right to the suit property. He has stated that Excise licences are not relating to the suit property. He has further stated that as a mere tolerance they had allowed the appellant to construct a residential house some years back at the place touching the boundary line of the suit property and except the said house, the appellant is not having any right. He has further stated that late Laxman Apa Gurav in collusion with the Talathi managed to get his name included in the cultivators column of Form No.I and XIV in respect of the suit property for some years which came to be noticed by them when the present suit came to be filed. He has further stated that the entry of late Laxman Apa Gurav in the cultivators Column in the survey records is a mistake. He has 9 further stated that the appellant has no right to the suit property. In the cross-examination, he has further stated that he is conducting auction for distillation of liquor in respect of the property surveyed under no.29/6. He has admitted that his name is included in the cultivators column of 29/6 and the name of Fatti Rama Gaonkar is included in other rights column as an encroacher. He has further stated that Arjun Budho Gurav is from Village Kodal and presently appellant is residing in Nanoda but he could not say for how many years he is residing in village Nanoda. He has admitted that the suit property surveyed under no.10/2 consists of cashew trees and jungle trees and that the appellant has constructed his house therein. He has further stated that the yield of the suit property is about 8 quintals of cashew nuts and he does not know the number of cashew trees. He has further stated that he has sold the cashew apples but does not know the names to whom the same were sold. He has further stated that from last 4 years he has not gone in the cashew growth of the suit property and, therefore, he is not in a position to give in terms of rupees the net income of the cashew apples or the cashew nuts. He has admitted the juice is extracted every year but denied the suggestion that the appellants were extracting the cashew juice. He has further stated that besides Form No.I and XIV there is no document to show that he was in 10 possession and enjoyment of the suit property. 6. The learned Judge while passing the impugned judgment has found that the record of rights of the suit property was at Exhibit 37. The learned Judge has found that the Government of Goa is entered in the occupants column and the names of respondents nos.1 & 2 are entered in the other rights column. The learned Judge further found that the name of the appellant, his late father and late Laxman Apa Gurav is not entered in the records of rights of the suit property. The learned Judge has drawn the presumption under Section 105 of the Land Revenue Code and held that Laxman Apa Gurav was not in possession of the suit property. The learned Judge examined the evidence of the witnesses examined by the appellant as well as the evidence of DW1 and held that the oral evidence adduced by the appellant is contradicted by the oral evidence adduced by respondents nos.1 & 2 and, therefore, he would decide the matter on the basis of documentary evidence. The learned Judge has further held that the entries in the cultivators column for two years cannot rebut the presumption arising from the survey records. The learned Judge further held that there was no documentary evidence to rebut the presumption under Section 105 of the Land Revenue Code. The learned Judge, as such, held 11 that the appellant has failed to prove that they had acquired title over the suit property. 7. Dealing with the issue no.2, the learned Judge on the basis of the entries in the survey records held that the presumption was not rebutted. Consequently, the suit came to be dismissed. 8. Shri S.D. Lotlikar, the learned Senior Counsel appearing for the appellant has assailed the impugned judgment and has pointed out that there is no appreciation of the evidence on record by the learned Judge while passing the impugned judgment. The learned Senior Counsel has taken me through the impugned judgment and pointed out that apart from narrating the statements made by the respective witnesses, the learned Judge had not at all appreciated the evidence of each and every witness examined by the appellant to come to the conclusion whether such evidence could be accepted or not. The learned Senior Counsel further submitted that even with regard to the evidence of respondents nos.1 & 2 no appreciation has been done by the learned Judge as to whether the evidence adduced by him deserves to be accepted. The learned Senior Counsel further submitted that the learned Judge has merely on the basis of the survey records drawn the presumption and came 12 to the conclusion that the respondents nos.1 & 2 were in possession of the suit property. The learned Senior Counsel further submitted that the evidence discloses that the appellant had adduced oral evidence to establish their possession over the suit property which evidence includes Excise licence and other material on record, apart from the oral evidence of the witnesses, so as to establish that the appellant had done substantial plantation in the suit property. The learned Senior Counsel further submitted that the respondents nos.1 & 2 have failed to adduce any evidence to substantiate their claim that they were in possession of the any portion of the suit property nor that they are enjoying any possession thereon and consequently findings of the learned Judge to that effect that the appellant has failed to establish his possession over the suit property deserves to be quashed and set aside. The learned Senior Counsel further submitted that the learned Judge has totally misdirected itself while passing the impugned judgment in not at all appreciating the evidence on record and consequently the appeal deserves to be allowed and impugned judgment and decree deserves to be quashed and set aside. 9. On the other hand, Shri D. Pangam, the learned Counsel appearing for the respondents nos.1 & 2 has supported the 13 impugned judgment. The learned Counsel pointed out that the main ground on which the suit has been filed by the appellant is that he had acquired title over the suit property, which contention has not been established by the appellant by any legal evidence on record. The learned Counsel further took me through the evidence on record and pointed out that there is no material on record before this Court to come to the conclusion that the appellant was in possession of the suit property. The learned Counsel further submitted that the appellant was aware that the suit property was standing in the name of respondents nos.1 & 2 and no action was taken to rectify such records which itself discloses that the appellant was not in possession of any portion of the suit property. Learned Counsel further submitted that on the basis of the material on record there is ample evidence to establish that the respondents nos.1 & 2 are in possession of the suit property and, as such, there is no infirmity committed by the learned Judge while passing the impugned judgment and, consequently, the appeal deserves to be rejected. 10. Having heard the learned Counsel and on perusal of the record, the following points for determination arise in the present appeal: 14 POINTS FOR DETERMINATION : (i) Whether the appellant has established that he is in possession of the suit property. (ii) Whether the appellant is entitled to relief of declaration as claimed by him in the suit. 11. It is to be noted that the dispute in the present case is not between the appellant and the respondents nos.1 & 2 and is not based on title but on the basis of their claim for possession. As such, the question to be decided would be as to who has a better right to be in possession over the suit property, after appreciating the evidence adduced by both the parties on that count. 12. On perusal of the impugned judgment, I find that the learned Judge has merely narrated portions of the evidence adduced by each of the witnesses examined by the appellant without at all indulging in any discussion of such evidence nor giving any reasons as to why the evidence of such witnesses cannot be accepted. The witnesses have been examined and cross-examined by the adverse party and it is incumbent on the learned Judge to examine every piece of evidence adduced by the parties and give appropriate reasons as to whether such evidence can be accepted or 15 not. 13. The evidence on record, has not at all been discussed by the learned Judge nor any reason given to discard oral evidence adduced by the appellant. In fact, the learned Judge has not at all done any appreciation of the evidence to ascertain as to whether the witnesses examined by the appellant are stating the correct facts or not. The learned Judge has merely relied upon the survey records, though the law is well settled that the presumption under Section 105 of the Land Revenue Code is a rebutal. Such presumption can be rebutted by adducing cogent and reliable evidence on record, be it oral or documentary evidence. While determining the suit on merits, the learned Judge would have to appreciate the oral evidence adduced by the respective parties and consider whether such presumption is available in favour of the persons in whose name the entries are recorded or is rebutted by the other side. 14. In the present case, there is no such appreciation done by the learned Judge and consequently the learned Judge was not at all justified in coming to the conclusion that the appellant has failed to establish that he was in possession of the suit property. The learned Counsel for the respondents was also unable to point out 16 that any such exercise was carried out by the learned Judge whilst passing the impugned judgment. 15. Considering the rival claims of both the parties, I find that in the interest of justice it would be appropriate on the facts and circumstances of the case that the matter be remanded to the learned Judge to re-assess the evidence on record in accordance with the well settled principles of law and pass a fresh judgment in the light of the observations made herien above. The first point for determination is answered accordingly. 16. With regard to the second point for determination, I find that though respondent no.3 has not filed the written statement, the appellant would have to establish that his claim of possession has resulted in a prescriptive title in his favour. This aspect will have to be decided by the learned Judge only in case the appellant is in a position to establish his claim of possession over the suit property, for the prescribed period. While deciding the first point for determination, it has been held that the matter deserves to be remanded for reassessment of the evidence on record to consider whether the appellant has established his claim of possession over the suit property. The claim of prescriptive title/adverse possession 17 over the suit property would have to be assessed by the learned Judge on the basis of the material produced on record by the respective parties. Considering that the matter is remanded for deciding the suit afresh, the second point for determination also has to be decided by the learned Judge while disposing of the suit. The second point for determination is answered accordingly. 17. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment dated 31/03/2005 is quashed and set aside. (iii) The Civil Suit No.202/2004 is restored to the file of the learned Additional District Judge, Mapusa. (iv) The learned Additional District Judge is directed to decide the suit afresh after hearing both the parties in accordance with law on its own merits. (v) All contentions of the parties on merits are left open. (vi) The parties are directed to appear before the learned Judge on 31/03/2011 at 10.00 a.m. F.M. REIS, J. NH/-