IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI FIRST APPEAL NO. 131 OF 2005 Communidade of Balli, Balli, Quepem Goa. ….. Appellant V e r s u s 1. Vithoba Mahadev Dessai, Agonda, Canacona Goa. 2. Rohidas Datta Fal Dessai, Balli, Quepem Goa. 3. Smt. Chandrakala Vinayak Sawant 4. Smt. Jayshree Krishna Fal Dessai (since deceased) 4(a) Smt. Chandrakala Vinayak Sawant, major, married and her husband 4(b) Shri Vinayak S. Sawant, major, married, both resident of Balli Math, Quepem-Goa. 5. Shri Datta Govind Fal Dessai. 6. Shri Suresh Ramchandra Fol Dessai(expired). 7. Prabhakar Mukund Keni, r/o Cuncolim, Savorcotto, 2 8. Dattaram Gajanan Keni Robolo, r/o Cuncolim, Savorcotto. 9. Raghavdas Y. Keni, attorney of Shri Sudhakar Yeshwant Keni r/o Cuncolim, Savorcotto. 10. Shri Lourencio Jose Fernandes, (deleted) 11. Shri Sebestiao Pedro Fernandes, (deleted) 12. Shri Inacio Pedro Fernandes, 13.Shri Lourn Pedro Fernandes, (deleted) 14. Shri Gabriel Pedro Fernandes 15. Shri Nitin Vaikunth Fal Dessai …. Respondents Mr. S.S. Kantak, Senior Advocate with Mr. P. Talaulikar, Advocate for the Appellant. Mr. Iftikar Agha, Advocate for Respondents no.1 and 2. Mr. Sudesh Usgaonkar, Advocate for Respondents no.3 to 5. Coram: U.V.BAKRE, J. Reserved on : 2/12/2011. Pronounced on : 9/12/2011. JUDGMENT: This appeal is directed against the judgment and 3 award dated 31/3/2005 passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.5 of 1993. 2. Land was acquired for establishing Magazine and for transfer of land to the Forest Department in connection with construction of new B.G. line in village Balli of Quepem Taluka. The award under Section 11 of the Land Acquisition Act 1894 (L.A. Act, for short) was passed on 16/11/1992. The acquisition included an area of 4,14,000 square metres from survey holding no.56 of village Balli of Quepem Taluka. There was a dispute amongst the interested parties regarding apportionment of compensation and therefore the matter was referred, under Section 30 of the L.A. Act, to the trial Court. 3. The Appellant filed its written statement claiming that the acquired land is part of their property known as “Muyavortimolo” bearing matriz no.105 and therefore it is the 4 Appellant only who is entitled to receive the entire compensation. 4. The Respondent no. 1, in his written statement, alleged that the survey holding no.56 is part and parcel of his property known as “Bulbeachy Fondy” or “Condimol” bearing land registration no.4352, matriz no.139 and survey nos. 53(part), 55/1(part) and 56(part) of village Balli of Quepem Taluka and that an area of 2,68,240 square metres, which is part of survey no 56(part), as shown under letter “F” in the plan, has been acquired from his said property. He therefore claimed corresponding compensation. 5. The Respondent no. 2, in his written statement, claimed that he is a co-owner along with respondent no. 1 and Smt. Kesar D. Xet of the property known as “Bulbeachi Fondy” or “Condimoll” bearing land registration no.4352, matriz no.139 and survey nos. 53(part), 55 and 56 of village 5 Balli. He, therefore, claimed that the compensation should be equally divided between him; the respondent no. 1 and Smt. Kesar Xet. 6. The Respondents no. 3 and 4, in their written statement, claimed that they are the owners in possession of the property “Datriangalle” situated in village Balli bearing survey no. 39/3, 39/7, 39/15 and 56 (part) and that their said property bears land registration no.16011 and matriz no.115. According to them, an area of 48,848 out of the acquired land belongs to them and corresponding compensation should be paid to them. 7. The Respondent no.5, in his written statement, claimed ownership of the property “Dattriangale” bearing land registration no.16011, matriz no.115 and survey nos. 39/7, 39/18, 39/20 and 56(part) of village Balli and alleged that his portion admeasures 22,060 square metres out of the 6 total acquired land and he is entitled to receive the corresponding compensation. 8. The Respondent no. 6, by his written statement, claimed ownership of the property “Dattriangale” bearing land registration no.16011, matriz no.115 and survey nos. 39/4, 39/5, 39/11, 39/13, 39/18 and 56(part) and alleged that an area of 18048 square metres out of the acquired land belongs to him and he is entitled to corresponding compensation. 9. The Appellant examined its Attorney namely Shankar Fol Dessai, one of its share holders namely Ram Krishna Fal Dessai and its supervisor by name Suresh Vithal Ballikar. The respondent no. 1 examined himself, one Shri Prashant Naik and an Engineer by name Mr. Mahendra S. Kakule. The respondent no. 2 examined himself. The respondents no. 3 to 6 examined the respondent no. 5 namely 7 Mr. Datta Govind Fal Dessai. They also examined one Engineer by name Eknath Shankar Dhuri and one more witness by name Pandhari Naik. 10. Upon assessment of the entire evidence on record, the learned trial Judge held that the Appellant could not prove its title as well as possession in respect of the acquired land. He held that the respondents no. 1 and 2 have proved their right for an area of 2,68,240 square metres, out of which, share of the respondent no. 2 is 1/12th and that of the respondent no. 1 is remaining 11/12th. The learned trail Judge further held that the respondents no. 3 to 6 are entitled for an area of 1,45,760 square metres together with interest accrued thereon in equal share i.e. 1/4th each. 11. The Appellant is aggrieved by the impugned judgment and award. The other parties to the reference have not challenged the said award. 8 12. Heard arguments. Learned Senior Advocate Shri S.S. Kantak, argued on behalf of the Appellant. Learned Advocate Shri Sudesh Usgaonkar argued on behalf of the respondents no. 3 to 5 whereas, learned Advocate Shri Iftikar Agha argued on behalf of the respondents no. 1 and 2. 13. Perused the entire record and proceedings. 14. Article 549 of the Code of Comunidade requires a Book known as “Tombo 1” to be used for the inscription of the rural, urban and barren lands of the Comunidade, their measurements and land-marks, for the description of the sources of income of the Comunidade other than from private lands and for the registration of the deeds of identification, description and demarcation of the marginal lands of the roads and the paddy fields, exclusively reserved for the constructions and of the lands capable of being brought under 9 the plough at the cost of the Comunidade. This book has to be accompanied by the plans. Under Article 551 of the Code of Comunidade, book called “tombo 2” should be used for the description of the tributary lands of the Comunidade or those subject to any definite contribution. These are the title documents of the Comunidade. In the present case, the Party no.1 has not produced any such title document. In his cross examination, AW.1, the Attorney of the Party no.1 has stated that except the matriz certificate, they do not have any other document regarding the property. He has, however, added that tombasao book is kept at the office of the Administrator of Comunidade at Margao and that the same is not legible, being very old and having become wet due to rains. The above statement made by AW.1 is by way of an after though since in the pleadings of the party no.1, there is no whisper that the tombo book is illegible or has become wet due to rains, etc. The party no.1 has not produced the copies of such old and wet records in order to show that they are illegible. 10 Hence adverse inference is bound to be drawn, which has been rightly done by the trial judge. 15. Admittedly, the matriz records cannot confer title. AW.1 has produced the certificate of matriz no.105 pertaining to the Comunidade property as Exhibit 44. According to AW.1, their property “Muyaortimol” is surveyed under no.56, entirely. For example, the western boundary of survey no. 56 is National Highway, but the western boundary of “Muyaortimol” bearing matriz no.105 is the property “Dantregal” bearing matriz no.115 which belongs to the parties no.12 and 13. There is no explanation from party no.1 as to why the boundaries of matriz no.105 do not tally with those of survey holding no.56. 16. The party no.1 has not engaged any expert surveyor or a civil engineer to draw the plan based on matriz certificate no.105 and the plan of survey no.56 in order to 11 show that the property bearing matriz no.105 tallies with that of survey no.56. There is no evidence produced by party no.1 to trace the present boundaries of survey no.56 to those mentioned in matriz no.105. There is no evidence regarding change of boundaries or change of the nature of land on the boundaries, by passage of time, if any. 17. Learned Senior Counsel Shri S.S. Kantak, on behalf of the party no. 1, argued that the name of Comunidade is recorded as occupant of survey holding no.56 and therefore, the presumption of correctness of the entries of occupancy (possession) under Section 105 of the Land Revenue Code, 1968 (L.R.Code) is in favour of the party no.1 and unless the other parties show better title, the party no.1 is bound to succeed. Learned Senior Counsel Mr. Kantak then at length argued as to how the parties no.5 and 6 and the parties no. 11 to 15 have failed to prove better title. 12 18. Learned Senior Counsel, on behalf of the Appellant, argued that the Land Registration Certificates, Matriz Certificates, and Sale Deeds produced by the respondents do not mention survey numbers and that the respondents have miserably failed to identify their property to be one surveyed under no. 56. He argued that the Civil Engineer, Mr. Kakule who has only drawn the plan of acquisition based on survey plan, has not shown as to how the boundaries in the documents tally with those of survey no. 56. He further showed that Mr. Kakule has stated that his surveyor was one Vaikunth Kamath, but said Vaikunth Kamath has not been examined. He contended that the trial Judge has merely considered the western boundary which is national highway and without seeing whether other three boundaries tally or not, has decided the matter in favour of the respondents. He argued that the findings of the trial Judge are not born out from the evidence of the expert witness. From the plan (Exh. 84) drawn by Kakule, learned Shri Kantak 13 pointed out that the area acquired from survey no. 56/1 is shown as 236200 square metres and an area of 32040 has been shown as not acquired inspite of which the trial Judge has held that the respondents no.1 and 2 have shown right for an area of 2,68,240 square metres. He therefore, argued that none of the respondents could prove any better title to the acquired land as against the survey record in favour of the appellant and therefore the impugned judgment and award is liable to be set aside. 19. First of all, what is produced on record by AW.1 at Exhibit 45 is only the index of land in form No.III pertaining to survey no.56 which shows the name of the party no. 1 in bracket. It appears from the evidence that the party no.1 and other interested parties had filed appeals as a result of which the name of the party no.1 as occupant of survey no.56 has been restored. But admittedly, the appeal before the Administrative Tribunal is pending in respect of entry in the 14 index of land under Form No.III. It was pointed out that the witness of the parties no. 12 to 14, namely Mahendra Kakule who is an civil engineer has stated in his cross examination that he has verified Form no. I and XIV of survey no.56 and that the names of Comunidade as well as that of Keni are recorded in the occupant's column. The above casual statement of Mr. Kakule cannot be taken as gospel truth since the dispute regarding the entry in the index of land is still pending before the Administrative Tribunal and it is nobody's case that the records are promulgated. It is not the case of the party no.1 that the name of Keni still exists in the index of land as occupant. No Form No. I and XIV of survey no.56 is produced on record. No value, at all can be given to the said casual statement of Shri Mahendra Kakule. 20. As argued by Shri Sudesh Usgaonkar, the learned counsel for the parties no. 12 to 14, the presumption under Section 105 of L.R.Code is available only in respect of the 15 entry in the record of rights. The record of rights, as mentioned in Section 95 of L.R.Code, shall be maintained in the prescribed form. In terms of Rule 3 of the Goa, Daman and Diu Land Revenue (Record of Rights and Register of Cultivators) Rules, 1969, the said prescribed Form is Form No. I and not the Form No. III. Form No. III is only a draft of the index of land prepared under Rule 6 of the said rules of 1969, which is subject to correction and promulgation. Therefore, there can be no presumption regarding the correctness of the entry in the index of land in Form No.III. Admittedly, survey records do not confer title and mere production of Form No. III cannot prove occupation or possession. 21. All the three witnesses of the party no.1 say that the property of Comunidade known as “Muyavortimolo” bearing matriz no.105 is surveyed under no.56. However, since there is no documentary evidence like site plan proving that the 16 property bearing matriz no.105 corresponds with property bearing survey no.56 and further since there is no evidence of an expert who has done the exercise of comparing the documents of matriz and survey, the statement of the witnesses of the party no. 1 are without any basis and cannot be relied upon. 22. The said three witnesses of party no.1 have all stated that there are cashew trees and other forest trees and that crop is given to the local villagers who pay annual rent to the Comunidade. Comunidades are composed of “Jonoeiros” and “share holders” and part of the annual income is claimed by jonoeiros which is known as “jono” and part of it is claimed by the shareholders which is known as “dividend”. There is a cashier working for each Comunidade who receives all the returns and makes payments. The items of incomes are auctioned periodically. Necessary documents pertaining to such auctions, income, expenditure, etc. are bound to be 17 maintained by each Comunidade and under the Code of Comunidade, such documents are required to be maintained. Statements in air are made by the witnesses of party no.1. Not a single document regarding any act of possession has been brought on record. On the contrary, the witness Ram Krishna Fal Dessai who is the attorney of party no.1 has stated that Comunidade has not auctioned the cashew trees but has enjoyed the income. He has further stated that the said property has not been leased to any person but has further added that persons who are paying rents towards cashew fruits were not issued receipts. The above are irresponsible and baseless statements. The other witness viz. Suresh Vithal Ballikar has contradicted the attorney of the Comundiade on number of trees existing in that property. In the Affidavit-in- evidence of said Suresh Ballikar survey no.56 is mentioned but in his cross examination he says that he does not know the survey number of the property “Muyaortimol”. A reading of the evidence of this witness, in fact goes to suggest that the 18 land belonging to the Comunidade is far away from survey no.56. The persons who have enjoyed the cashew trees or have allegedly paid rent, etc. have not been examined. 23. It cannot be said that the party no.1 has proved its title and possession in respect of the acquired land. The learned trial judge has rightly held that the party no. 1 has failed to prove its title as well as possession in respect of the acquired land. 24. As far as the respondents no. 3 to 6 are concerned in their written statements, they had claimed an area of 88,956 square metres. But the trial Judge has held that they are entitled to compensation corresponding to the area of 1,45,760 square metres. In this regard, the respondent no.5 in his affidavit-in-evidence has stated that they subsequently got the area measured and found that the total area acquired from their property is 2,72,530 square metres out of which an area 19 of 1,55,680 square metres belongs to the family of respondent no. 4, an area of 89,762 square metres belongs to his family and an area of 27,089 square metres belonged to late Suresh Ramchandra Fal Dessai (respondent no.6). The learned trial Judge, upon minute scrutiny of the oral and documentary evidence on record has found that the property of the respondents no.1 and 2 touches the national highway and goes towards eastern side. After the property of respondents no.1 and 2, there is a property belonging to Joao Manuel Colaco and an property known as Utkafondaro towards south-eastern side. The trial Judge has further found from the evidence on record that further towards east of the property of Joao Manuel Colaco, which is touching to survey no. 39 there is the property of respondents no.3 to 6 known as “Dantregal” which include survey no. 39 and sub divisions and further towards the east, the remaining part of survey no. 56, belonging to respondents no.3 to 6 lies and after the property of respondents no. 3 to 6, lies the property “Muyaortimol” 20 under matriz No. 105, claimed by the appellant. All the above findings are arrived at by the learned trial Judge, on the basis of the boundaries, mentioned in the documents produced by the parties, and the oral evidence of the witnesses. The learned trial judge has therefore held that since the respondents no.1 and 2 have claimed and proved to be entitled to an area of 2,68,240 square metres of land out of the total acquired land of 4,14,000 square metres, the remaining area of said survey no.56 (part) measuring 1,45,760 square metres is bound to be the portion of the property belonging to the respondents no.3 to 6. Since, the above findings are based on the evidence on record, both oral and documentary and further since it is well settled that where there is conflict between statement of area and description by boundaries, the description by boundaries is to be preferred, they are bound to be accepted. Learned Advocate Shri Sudesh Usgaonkar, in this regard has relied upon “P.K.A.B. Co operative Society Ltd. Vs. Government of Palestine and others” [AIR (35) 21 1948 Privi Council 2073], wherein it has been held that in construing a grant of land, a description by fixed boundaries is to be preferred to a conflicting description by area and the statement as to area is to be rejected as falsa demonstratio. The respondent no.5 has produced the land registration certificate of L.R.no.16011 as Exh. 97 and the matriz certificate of no.115 as Exh. 98. 25. The respondent no.1 has produced the sale deed dated 3/8/1892 in respect of the property “Bullobeachy Fondy” as Exhibit 59, the land registration document of the same property bearing no. 3452 as Exhibit 60 and the matriz certificate of no. 139 as Exhibit 61. He has produced the Family tree at Exhibit 64 and various documents to trace his relationship with the purchaser named in sale deed Exhibit 59. The boundaries in all the three documents namely sale deed, land registration and matriz, substantially tally. The oral evidence on record including the evidence of expert witness 22 namely Mahendra Kakule read with the plan (Exhibit 84) drawn by him show that survey no.56 (part) is bounded towards west by National Highway and towards south by “Utkafondaro”. The documents produced by the respondent no.1 pertaining to “Bullobeachy Fondy” reveal that this property is bounded towards west by public road and south by paddy field “Utkafondaro”. On the eastern side of “Bullobeachy Fondy” lies “Dantregali. This property Dantregali is bounded towards east by “Muiam anvade molla” bearing matriz no.105 which is the property of the appellant. The certificate of matriz no.105 which is at Exhibit 44 shows that it is bounded towards west by Dantregal bearing matriz no.115. This matriz no.105 does not touch to any road on western side. 26. The respondent no.2 has produced the sale deed dated 9.9.1988 which is at Exhibit 87, by which 1/12th share of the said property “Bulobeachi Fondy” bearing land 23 registration no.4352 and matriz no.139 has been purchased by him. This sale deed mentions only the survey no.55. But the sale deed duly mentions the land registration no.4352 and matriz no. 139. In his evidence the respondent no.2 has explained that some portion of survey no.55 has been wrongly surveyed under no.56 and that the eastern side portion of survey no.56 is part and parcel of the property Bulbeachi fondi. The respondent no.2 has stated that a portion measuring 2,68,000 of Bulbeachi fondi has been surveyed under no.56. Since there is no partition or division of shares amongst co-owners, the trial judge has considered the case of respondent no.2 as one of the co-owners and having right to 1/12th share in the entire property. 27. Learned Advocate Shri I. Agha, on behalf of the parties no 1 and 2, has relied upon the judgment of the learned single judge of this High Court in Second Appeal No. 11 of 1994 ( Silvestre Mascarenhas and ors. V/s. Smt. Shantu 24 Locmu Fotto and Ors.) and also on the judgment of the learned single judge of this High Court in First Appeal No. 17 of 1990 (The Union of India and Ors. V/s. Vishnu Pai Kane and Ors.) wherein it has been held that in terms of Article 953 of the Portuguese Civil Code, the inscription in the registration of a title of conveyance without condition precedent, involves, irrespective of any other formality, the transfer of possession in favour of a person in whose favour such inscription has been done. The land registration document therefore proves title as well as possession. 28. The respondent nos.1 to 5 have therefore produced cogent evidence thereby establishing better title to the acquired land, as compared to the appellant. 29. The learned trial judge has properly assessed the entire evidence on record and even if another view is possible, this Court cannot interfere with the impugned judgment. No 25 interference is called for with the impugned judgment and award. 30. In the result, the appeal is dismissed, however with no order as to costs. U. V. BAKRE, J. Ap/-