1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.18 OF 2005 1. Shri Kashinath Phaldesai s/o late Rameshchandra Phaldesai, aged 75 years, Agriculture. 2. Smt. Banumati K. Phaldesai, since deceased rep. by legal representatives: a. Smt. Alka Jaiprakash Phaldesai wife of late Jaiprakash Kashinath Phaldesai, major, widow; b. Kum. Pratima Jaiprakash Phaldessai, daughter of late Jaiprakash Kashinath Phaldesai, major, unmarried; c. Kum. Pragati Jaiprakash Phaldessai daughter of late Jaiprakash Kashinath Phaldesai, minor; (represented by her mother the Appellant No.2a) d. Smt. Snehalata Kashinath Gadnis daughter of Shri Kashinath Phaldesai, major, married, and her husband; e. Shri Kashinath Gadnis major, married; f. Smt. Amal Arun Pai Raikar daughter of Shri Kashinath Phaldesai, major, married, and her husband; g. Shri Arun Pai Raikar major, married; h. Shri Santosh Kashinath Phaldesai, son of Shri Kashinath Phaldesai, 2 major, married, and his wife; i. Smt. Sanjita Santosh Phaldesai, major, married, j. Smt. Maya Shyamrao Desai daughter of Shri Kashinath Phaldesai, major, married, and her husband; k. Shri Shyamrao G. Desai major, married, All residing at Velvada, Poiguinim, Canacona, Goa. ... Appellants versus 1. The Government of Goa through its Chief Secretary, Secretariat, Panaji-Goa. 2. The Director of Land Survey Government of Goa, Panaji-Goa. ... Respondents Shri Sudin Usgaonkar, Advocate for the Appellants. Shri S. Vahidulla, Government Advocate for the Respondents. CORAM : F. M. REIS, J. DATE : 14th JANUARY, 2011. JUDGMENT : The above appeal challenges the judgment and decree passed in Civil Suit No.95/2004, by the learned Additional District Judge, Margao, dated 27/07/2004. 3 2. The suit came to be filed by the appellants on the ground that they are the owners in possession of the land known as “Bhatem Poiquim Thikan” situated at Sadolxem within the limits of Village Panchayat of Poinguinim, Canacona Taluka, described in the Land Registration Office under no.15445 of book B-42 and surveyed under survey no.222/2 and 222/3 of village of Poinguinim. It is further their case that on the western portion of the suit property belonging to them, there is a bund wherein there are coconut trees which are being plucked and enjoyed by the appellants and prior to them by their ancestors. It is further their case that the said bund admeasures 400 square metres and is surveyed under no.222/2 of village Poinguinim which was exclusively and continuously possessed by their parents. The remaining portion of the property is a paddy field and is admeasuring 8,200 square metres and the same has been surveyed under no.222/3 of the same village and is wrongly recorded in the name of the Government. It is further their contention that at the time of conducting the survey there were coconut trees in the area of said bund and, therefore, the same was surveyed as garden land, but, however, survey no.222/2 has been wrongly recorded in the name of the Government. It is further their case that they had filed objection to the entries in the survey records when the draft of the survey records was kept for 4 objections. Though the said objections were initially heard, the same came to be thereafter transferred to the Court of Deputy Collector, South Sub-Division at Quepem. Despite of the survey objections being pending the records came to be promulgated and, accordingly, the proceedings before the Deputy Collector came to be closed. The Deputy Collector directed the parties to approach the Civil Court as according to the appellants the respondents have no right to the said property. After issuing notice under Section 80 of the Civil Procedure Code, the suit came to be filed by the appellants for an order to declare that the appellants are the absolute owners in possession of the property surveyed under no.222/2 and 222/3 of the Poinguinim village and also for a direction for the purpose of correction of the survey records. 3. The respondents filed their written statement and disputed the claim of the appellants and also raised preliminary objections. In the said written statement the respondents denied that the appellants were the owners of the suit property and pointed out that there is no suit property surveyed under no.222/2 and 222/3 known as “Bhatem Poiquim Thikan” belonging to the appellants. It is further their case that prior to liberation the Government of Goa has been in actual and peaceful possession of the said property for 5 over 100 years. It is further their case that the appellants have no right at all to any portion of the said land and prayed that the suit be dismissed. 4. The learned Judge after recording of evidence and hearing the parties dismissed the suit filed by the appellants. Mr. Sudin Usgaonkar, the learned Counsel appearing for the appellants has assailed the impugned judgment and pointed out that there is no justification for the learned Judge to dismiss the suit filed by the appellants. The learned Counsel has further pointed out that the learned Trial Judge has misread the evidence of PW3/Shri Agostinho Leonard Inacio Barretto, as he had misinterpreted the boundaries mentioned by him. The learned Counsel took me through the evidence on record and pointed out that the boundaries disclosed in the Land Registration Office are available at the site as can be ascertained from the evidence of PW2/Shri Ruzario Bernard Coutinho and PW3/Shri Agostinho Leonard Inacio Barretto. He further submitted that there are two fixed boundaries, as far as the western boundary is concerned, there is a river and the property of the Devasthan which is located towards the southern side. The learned Counsel took me through the evidence on record as well as the impugned judgment and pointed out that the learned Judge has 6 erroneously appreciated the evidence on record and has come to an erroneous conclusion of facts. Learned Counsel further submitted that the Land Registration Document conclusively establishes the ownership and possession of the appellants over the suit property and the contention of the respondents that they are in possession of the suit property cannot be accepted. Learned Counsel, as such submitted that the impugned judgment and decree deserves to be quashed and set aside. 5. On the other hand, Shri S. Vahidulla, the learned Government Advocate has strongly disputed the contentions of the learned Counsel for the appellants. The learned Counsel took me through the evidence on record and pointed out that there is no identification carried out by the appellants to establish that the property surveyed under no.222/2 and 222/3 correspond to the property registered in Land Registration Office in the name of the appellants. The learned Counsel further submitted that the exercise of identification of the property vis-à-vis the survey records has not at all been carried out and, as such, the appellants are not entitled for the reliefs in the present appeal. 6. Having heard the learned Counsel and considering the 7 submissions, it is evident that the respondents have failed to adduce any evidence to substantiate any ownership rights over the suit property. The claim of the respondents is on the basis of Section 14 of the Land Revenue Code, as according to them the suit property does not belong to any private owner. 7. On perusal of the evidence on record, I find that the appellants have not adduced sufficient material on record to establish the identification of the property as registered in the Land Registration Office and the new survey records. There is no dispute that the property is owned by the appellants. Whether the said property corresponds to the property surveyed under no.222/2 and 222/3 has to be established by adducing proper material on record. 8. While passing the impugned judgment, I find that the learned Judge has found that the certificate at Exhibit 20 collectively does not indicate that the same corresponds to the new Survey No.222/2 and 222/3. The learned Judge also found that the appellants have not examined any surveyor or an expert to establish that the property registered under no.15445 corresponds to the new Survey No.222/2 and 222/3. As no such evidence was adduced, the 8 learned Judge came to the conclusion that in view of Section 14 of the Goa Land Revenue Code, which contemplates that the properties which are not the properties of any person vest with the Government and as such the suit property is to be considered to be belonging to the Government. 9. From the contention of both the Counsel, I find that there is strong contention raised by the respondents as far as the identity of the property is concerned vis-a-vis the survey records. Considering the extent of the property claimed by the appellants, I find that in the interest of justice, the appellants should be given an opportunity to establish their case as the evidence on record is not sufficient to establish that the property claimed by the appellants belonged to the appellants. Considering the dispute raised between the parties and in the interest of justice, it would be appropriate that the impugned judgment be quashed and set aside and the matter be remanded to the learned Judge to decide the civil suit filed by the appellants afresh after giving an opportunity to the parties to lead further evidence to establish their case. No doubt, in case any such evidence is adduced, the respondents would be entitled to adduce evidence in rebuttal, if they so desire. 9 10. At this stage, Shri Sudin Usgaonkar, the learned Counsel for the appellants has pointed out that he will file an appropriate application to examine an expert for the purpose of carrying out the identification of the suit property on the basis of the Land Registration Document. In case such an application is filed the learned Judge shall have to consider the said application on its own merits after hearing both the parties. 11. Shri Vahidulla, the learned Government Advocate contended that in case the matter is remanded an opportunity is to be given to the respondents to lead evidence. 12. 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 and decree dated 27/07/2004 is quashed and set aside. (iii) Civil Suit No.95/2004 is restored to the file of the learned Additional District Judge. (iv) The learned Judge is directed to decide the said suit afresh after giving both the parties an opportunity to lead further evidence and pass a fresh judgment after hearing both the parties on the basis of the evidence which has already been 10 adduced and any further evidence which is likely to be adduced by the parties, in accordance with law. (v) All contentions raised by both the parties are left open. (vi) The appeal stands disposed of accordingly with no order as to costs. (vii) Parties are directed to appear before the learned Judge on 14/03/2011 at 10.00 a.m. F.M. REIS, J. NH/-