1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 86 OF 2002 Shri Modko Bitio Gauncar- Since deceased by Legal Heirs: 1a) Shri Shabu Modko Gaonkar, son of late Modko Gaonkar, age 55 years. 1b) Smt. Mayavati Shabu Gaonkar, wife of Shabu Modko Gaonkar, age 51 years. Both residents of House No.261, Badsarem Gaondongurim, Canacona, Goa. 1c) Shri Ramesh Modko Gaonkar, son of late Modko Gaonkar, age 37 years. 1d) Smt. Reshali Ramesh Gaonkar, wife of Ramesh Modko Gaonkar, age 35 yrs. Both residents of House No.218/A, Badsarem Gaondongurim, Canacona Goa. 1e) Smt. Pitol alias Mayavati Molu Gaonkar, daughter of late Modko Gaonkar, age 58 years. 1f) Shri Molu J. Gaonkar, Husband of Pitol alias Mayavati Molu Gaonkar. Both residents of Ziltawadi, Gaondongurim, Canacona, Goa. 2 1g) Smt. Janki alias Bhimarathi Vagonkar, daughter of late Modko Gaonkar, age 48 yrs. 1h) Shri Bhiva V. Vagonkar, husband of Janki alias Bhimarathi Vagonkar, Both residents of Chaporli, Shristhal, Canacona Goa. 1i) Smt. Abole alias Chandravati Janu Gaonkar, daughter of late Modko Gaonkar, age 42 yrs. 1j) Shri Janu Gaonkar, husband of Abole alias Chandravati Janu Gaonkar, Both residents of Satorli, Gaondongurim, Canacona, Goa. .......... Appellant. V/s. 1. State of Goa, through Chief Secretary with Office at Secretariat, Panaji, Goa. 2. Conservator of Forest with Office at Panaji, Goa. 3. Range Forest Officer, Panaji, Goa. 4. Comunidade of Gaondongrem, Canacona, Goa. ......... Respondents. 3 Mr. Sudesh Usgaonkar, Advocate for the appellant. Mr. S. Vahudulla, Government Advocate for the respondents. CORAM :- D.G. KARNIK, J. Date :- 27th August, 2010. ORAL JUDGMENT : This appeal is directed against the Judgment and Order dated 3rd November, 2001 passed by the IInd Additional District Judge, South Goa, Margao, dismissing the suit filed by the appellant (original plaintiff). 2. Appellant is the original plaintiff. Respondent No.1 is the State of Goa which has been substituted in place of Union of India- the original defendant No. 1 in the suit. Respondents No.2 and 3 are the Officers of the State of Goa, working in its Forest Department and respondent No.4 is the Comunidade of Gaondongrem. The appellant filed a suit, bearing Civil Suit No.30/1983, against the Union of India (substituted by the State of Goa) and its Officers for a perpetual injunction restraining them from disturbing or interfering with his 4 possession of the suit land. According to the appellant, the suit land belongs to respondent No.4 Comunidade of Gaondongrem and was leased out by it to the appellant since prior to the year 1973. The lease was last renewed in the year 1973 and though the lease was not renewed thereafter, he continued to be in possession of the suit land. According to him, the Forest Department wrongfully claimed itself to be the owner of the land and tried to plant some nilguiri plants and thereby prevented the appellant from enjoying the suit land. He, therefore, filed the suit for perpetual injunction, restraining the respondents from disturbing his possession of the suit land. Respondent No.4 Comunidade of Gaondongrem remained ex-parte and the suit was contested only by the other respondents. Respondents No.1 to 3 denied that the suit land belongs to respondent No.4 Comunidade of Gaondongrem and contended that the suit land was a forest land and belongs to the State. They denied the existence of any lease in favour of the appellant and denied that the appellant was in possession of the suit land. The trial Court, after consideration of the evidence adduced before it, held that respondent No.4 Comunidade of Gaondongrem was not the owner of the suit land. It also held that the appellant failed to prove any lease in his favour, allegedly granted by 5 respondent No.4 Comunidade. It also held that the appellant was not in possession of the suit land and accordingly, dismissed the suit. 3. After hearing the parties, the following points arise for my consideration : (I) Whether the appellant proves that the suit land was leased out to him by respondent No.4 in the year 1973 as alleged by him ? (II)Whether the appellant proves that the suit land was in his possession since the year 1973 as an agricultural tenant ? 4. Though the appellant had pleaded that respondent No.4 Communidade was the owner of the suit land and had leased out the suit land to him, no arguments were advanced before me regarding the alleged title of respondent No.4 Comunidade. In the absence of any title being proved, the trial Court has held that the appellant has failed to prove that respondent No.4 was the owner of the suit land. No arguments were advanced before me about the title of the respondent no. 4. Hence, the finding of the trial Court in that respect needs no interference. 6 5. It is the case of the appellant that respondent No.4 Comunidade leased out the suit land to him. Since it has not been proved that respondent No.4 was the owner of the suit land and it has been held that the suit land belongs to the respondent No.1 State of Goa, there is no question of respondent No.4 lawfully letting out the land to the appellant. The appellant, therefore, cannot claim any title either as a lessee or otherwise, as the title of respondent No.4 itself is not proved. Assuming, however, that the respondent No.4 Comunidade had some right, authority or interest to let out the suit land, the question that needs to be considered is whether the respondent No.4 had in fact let out the suit land to the appellant. Learned Counsel for the appellant invited my attention to a document at Exhibit 23 (page 153 of the paper book) which is stated to be a true translation in English of the original document in Portuguese. It is styled as “CERTIFICATE” and appears to have been signed by the Head Clerk of the respondent No.4. The said document is stated to be an extract of the original book in Portuguese language and the translation is issued on 5.8.1983 which is certified by Suresxa P. Lotlecar, Notary, Margao in the year 2001. In my view, the document is not proved in accordance with law. The original book from which the translated extract is made 7 was not produced in the Court. The translator was not examined to prove the truthfulness of the translation. The translation is not admissible in evidence. Assuming, however, that it is admissible in evidence, the document, in my view, does not support the case of the appellant at all. The document does not give the description of the property tallying with the suit property. All that appears from this document is that the appellant was allowed to enjoy usufruct of some property (of the respondent No. 4) under the triennial auction held and the usufruct was allowed to be enjoyed by the appellant for a period of 3 years from 1966 – 1968. It does not create any lease or title in favour of the appellant. A few receipts were produced from the year 1966 onwards, including the year 1973. No auction appears to have been held after the year 1968. In any event, no evidence was produced by the appellant regarding any right alleged to have been created in his favour in the year 1973. Though in the plaint the appellant has stated that the lease was last renewed in the year 1973, no document was produced on record either in the form of a lease or an auction document or any other document to show any right created in favour of the appellant in the year 1973. 8 6. The provisions of the Transfer of Property Act, 1882, as also the provisions of Indian Registration Act, 1908 have been made applicable to the State of Goa by Goa, Daman and Diu (Laws) No.2, Regulation 1963 (No.11 of 1963). The lease for a period of one more year can be created only by means of a registered instrument. No such registered instrument of the year 1973 or of any other year has been produced by the appellant on record. In the absence of any registered instrument having been executed, no lease could have been created in favour of the appellant either in the year 1973 or even in the year 1968 when the Certificate (Exhibit 23) was issued. I, accordingly, hold that the appellant has failed to prove that any lease or any other interest of whatsoever nature was created in his favour, in the year 1973 as alleged by the appellant. No lease or interest of whatsoever nature was created for the suit property in favour of the appellant either in the year 1973 or at any time earlier or later. 7. As regards the possession, the appellant examined himself (PW.1) and stated that the suit property was leased to him “from the time of liberation of Goa”. He then stated that there were some areca tress and coconut trees which were planted by his grandfather more 9 than 80 years ago. He also stated that there were cashew trees planted by his father about 80 years ago. The appellant also examined one Vidhyadhar Gad (PW.2) who stated that the appellant had planted cashew trees, coconut trees, areca nut trees, mango trees and jackfruit trees in the suit land. According to PW.1 Modko there were about 1.5 lakhs cashew trees in the suit land, while according to Vidhyadhar PW.2 there were about 5,000 cashew trees in the suit land. Their deposition is at variance with each other even on the rough estimation of the number of the cashew trees. The appellant also examined one Laxman Veli (PW.3) who also stated about existence of coconut trees and areca nut trees, mango trees, jack fruit trees, banana plantation and paddy field. While PW.2 Vidhyadhar claims that cashew trees were in the age group of 100 to 150 years, PW.3 Laxman gives the age of the cashew trees as 20 to 25 years. The evidence of PW.3 is again at variance with the evidence of PW.2. The trial Court, after a careful scanning of the evidence of PW.1, PW.2 and PW.3, has noted the discrepancies in their evidence and I am in agreement with the discrepancies noted by the trial Judge. Furthermore, the evidence of PW.1 and PW.2 of the grandfather and father of PW.1 being in possession of the suit land is at variance with the pleadings. In the 10 plaint, the appellant has not stated anything about his grandfather or father being in possession of the suit land for several years, perhaps near about 100 years. Excluding the cause title of the suit, the plaint is only a one and half page document. Paragraphs 3 to 11 of the plaint regarding possession of the plaint are material and are extracted herein below verbatim. “ 3. The said property was leased out to the Plaintiff by the Defendant No.5 (respondent No.4 in appeal) in the year 1973 for the last time. 4. The yearly rent for the suit land is fixed as Rs.226/-. 5. The Plaintiff regularly pays the rent of the suit land to the Defendant No.5. 6. The suit land is brought under cultivation of cashew trees, and partly under nachini, chillies, colyo, voroi, etc. 7. The Plaintiff is in peaceful possession of the suit land since 1973. 8. However, all of a sudden the personnel of Defendant No.4 brought the labourers on 1-8-83 with nilguiri plants and directed them to plant in the suit land. 9. The Plaintiff obstructed the labourers employed by the Defendant No.4. 11 10.Since the Plaintiff is the tenant of the suit land the Defendants have no right to interfere in the same. 11.The plaintiff apprehends that the defendants may interfere forcibly and plant the nilgiri trees.” The remaining paragraph nos. 12 to 15 are formal paragraphs regarding valuation, cause of action and jurisdiction of the Court. The pleadings regarding possession in the plaint do not give any indication of the plaintiff being in possession of the land since the time of his forefathers as is the case sought to be made out in the evidence. On the other hand, in para 3 the appellant has stated that the property was leased to him in the year 1973 without indicating any lease in favour of his father or grandfather. The trial Court has properly considered the evidence and rightly held that the plaintiff was not in possession of the suit land. 8. For all these reasons, there is no merit in the appeal and the same is hereby dismissed with costs. D.G. KARNIK, J. ssm.