1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 163 OF 2005 Rohidas Datta Fal Dessai, R/o Vantem, Fatorpa, Quepem-Goa. ... Appellant versus 1. Sherifin Bi Shaikh Gafar, Bendordem, Quepem-Goa. 2. Shivram Desai, Veroda, Cuncolim, Salcete-Goa(since deceased through legal representatives) 2a.Dilip Phal Dessai and his wife, 2b.Deepti Dilip Phal Dessai, 2c.Santosh Shiva Phal Dessai, 2d.Vasanti Santosh Phal Dessai, 2e.Vikas Shiva Phal Dessai, 2f.Gurudas S. Phal Dessai, 2g.Ravindra S. Phal Dessai, All r/o H.No.183, Veroda, Cuncolim, Salcete-Goa. 3. Pandhari Laxman Fal Dessai, 2 4. Govind Laxman Fal Dessai, 5. Kapru Laxman Fal Dessai, All r/o Vantem, Fatorpa, Quepem-Goa. (since deceased represented through legal representatives) 5a.Smt. Sanjivani K. F. Dessai, widow, 5b.Shri Niwas K. F. Dessai, son, 5c.Shri Ramdas K. F. Dessai, son, 5d.Shri Rajendra K. F. Dessai, son, All r/o Vantem, Fatorpa, Balli. 5e.Smt. Sunayana Harish N. Gaonkar, daughter, married to 5f.Harish N. Gaonkar, Both r/o Demani, Cuncolim. 5g.Smt. Isha S. Dessai, daughter, married to 5h.Samir F. Dessai, Both r/o Shantinagar, Aquem-Baixo, Margao. 6. Pandhari Harichandra Fal Dessai, Head Surveyor, Directorate of Settlement and Land Records, Panaji. ... Respondents 3 Shri I. Agha, Advocate for the Appellant. Shri Sudesh Usgaonkar, Advocate for Respondent Nos.3, 4 and 5. CORAM : F. M. REIS, J. DATE : 4TH FEBRUARY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 31-1-2005 passed by the learned Additional District Judge at Margao in Land Acquisition Case No.470 of 1995. 2. By a notification issued under Section 4 of the Land Acquisition Act, 1894(herein after referred to as the said Act) and published in the Official Gazette dated 5-8-1994, the Government intended to acquire land for the construction of Broadguage line of Konkan Railway Corporation in villages Tiloi, Balli and Bendordem of Quepem Taluka admeasuring an area of 450 sq. meters from the property surveyed under No.12(part) of village Bendordem. In view of the dispute raised between the parties whilst passing the award under Section 11 of the said Act, the Land Acquisition Officer made a reference under Section 30 of the said Act for adjudication before the learned District 4 Judge. By Judgment and Award dated 21-2-2005, the learned Reference Court directed that Party No.3, the appellant herein was entitled to half of the compensation and Party Nos.4, 5 and 6, the respondent Nos.3, 4 and 5 herein are entitled to the remaining half of the compensation awarded along with interest accrued thereon. The other parties were held not to be entitled to receive any compensation. 3. Being aggrieved by the said Judgment and Award, the appellant has preferred the present appeal. 4. Shri I. Agha, the learned Counsel appearing for the appellant has assailed the impugned Judgment and submitted that the appellant is in possession of the said portion of the acquired land and as such the appellant was entitled to receive the compensation as awarded by the Land Acquisition Officer. Learned Counsel further submitted that the property surveyed under No.12 was in exclusive possession and enjoyment of the appellant and as such he was entitled to receive the compensation. Learned Counsel further submitted that though the property was originally registered in the name of Raiu Fal Dessai who was the grandfather of the appellant, the same devolved exclusively upon 5 the appellant. Learned Counsel further submitted that the Reference Court erroneously directed that half of the compensation is to be paid to respondent Nos.3, 4 and 5 who were not in possession of the acquired land and as such were not entitled to the said compensation. Learned Counsel further submitted that respondent Nos.3, 4 and 5 have failed to establish that they were in possession of any portion of the acquired land and as such the question of awarding compensation to them would not arise. Learned Counsel took me through the notes of the evidence as well as to the impugned Judgment and pointed out that the learned Judge has totally misdirected himself in coming to the conclusion that the amount of compensation is to be shared between the appellant and respondent Nos.3, 4 and 5. He accordingly submitted that the impugned Judgment is to be quashed and set aside. 5. Per contra the learned Counsel for respondent Nos.3, 4 and 5 has supported the impugned Judgment. Learned Counsel pointed out that there is no dispute that the property originally belonged to the common ancestors of respondent Nos.3, 4 and 5 and the appellant's and considering that no proceedings have been shown to have been initiated upon the death of any such common ancestors, the property has 6 devolved upon the appellant and respondent Nos.3, 4 and 5 as his descendants. Learned Counsel further pointed out that there is no dispute that the appellants as well as respondent Nos.3, 4 and 5 are descendants and successors of such common ancestor Raiu Laxman Fal Dessai and as such the finding of the Reference Court to the effect that the compensation is to be shared between the appellant and respondent Nos.3, 4 and 5 cannot be faulted. Learned Counsel has taken me through the impugned Judgment and has pointed out that there is no infirmity committed by the Reference Court in the findings arrived therein that the amount of compensation is to be shared between the appellant and respondent Nos.3, 4 and 5. Learned Counsel further submitted that there is no dispute that the property is registered in the name of the common ancestors of the appellant and respondent Nos.3, 4 and 5, namely Raiu Laxman Fal Dessai and his two brothers Ganesh and Shanu and that the property so registered forms part and parcel of the property which is subject matter of the present acquisition and as such, there is no error committed by the Reference Court in awarding compensation in the manner so done by the impugned Judgment. The learned Counsel took me through the evidence on record and pointed out that the claim of the appellant that there was an oral partition has not been established 7 by any evidence on record nor has the appellant adduced any evidence to establish his contention that he had title by adverse possession. The learned Counsel further submitted that once the title is vested in the name of the said common ancestors, the same devolves equally upon his descendants and as such, the Reference Court was justified in apportioning the compensation between the appellant and respondent Nos.3, 4 and 5. Learned Counsel has taken me through the evidence on record and pointed out that there is no infirmity committed by the Reference Court in passing the impugned Judgment. 6. Having heard the learned Counsel and on perusal of the record, I find that the Reference Court has rightly decided issue nos.1 and 2 against the party nos.2 and 7 to the reference proceedings. 7. Dealing with issue Nos.3, 4, 5 and 6 framed by the Reference Court to adjudicate the dispute between the appellant and respondent Nos.3, 4 and 5, the Reference Court has found that respondent Nos.3, 4, 5 and 6 are claiming 1/6th share in the said property whilst the appellant claimed that the said property is part and parcel of the property inscribed in the matriz record having land registration 8 No.5625 and known as “Tolpa-Banda Coddil Bandy” which corresponds to the property surveyed under Nos.12/1 and 12/2. The land registration document is at Exh.33. On perusal of the said document, the same discloses that the eastern boundary is the road which is now a National Highway. The matriz record also shows that the eastern boundary has a free way and the western boundary is a rivulet, besides the property of Vassu Porob of Fatorpa. The Reference Court has perused the boundaries as shown in the matriz records and the land registration document and has come to the conclusion that the boundaries tally. Considering the document of the Land Registration as well as the matriz record and the survey plan produced by Party No.3, the claim of the appellant to the effect that the acquired portion is part and parcel of the property registered in the Land Registration Office and forms part of survey No.12/1 cannot be faulted. The Reference Court has appreciated the evidence on record and has rightly come to such conclusion. On perusal of the cross-examination of the appellant, the relationship between the appellant and respondent Nos.4 and 5 has not been disputed by the appellant. On perusal of the land registration document, I find that the property is registered in the name of Raiu Fal Dessai, besides the names of Ganesh and Shanu are also recorded. The said Ganesh and Shanu are 9 admitted to be the brothers of the said Raiu and whose rights devolved on the said Raiu. The said Raiu had two sons, namely Datta and Laxman, and it is admitted by the appellant that he along with his brothers are claiming the rights which devolved upon them from the said Datta. The appellant has also admitted that respondent Nos.3, 4 and 5 have acquired right to the land which devolves from the said Laxman. The appellant has denied the suggestion that the property was being enjoyed in common. Nevertheless, he has failed to produce any proceedings such as inventory proceedings to show that the ancestral property was partitioned between the legal heirs. Upon reading the overall evidence of the appellant, it is clear that the appellant is claiming a right which devolves upon him upon the death of the said Datta whereas respondent Nos.4 and 5 are the sons of the said Laxman. The claim of the appellant that the properties were being enjoyed separately has not been established by any evidence on record. As such, the findings of the Reference Court that respondent Nos.4 and 5 are also co-owners of the property registered under land registration No.5625 cannot be said to be erroneous. The Reference Court after perusing and appreciating the evidence on record has come to the conclusion that the appellant is entitled to half of the compensation awarded and the remaining half is to be paid to respondent 10 Nos.3, 4 and 5. On perusal of the cross-examination of the appellant, I find that it has been clearly admitted by him that respondent Nos.3, 4 and 5, namely Pondari, Govind and Kapru are claiming right to the acquired portion of the land through the said Laxman. Considering that no evidence has been produced to establish his case that there was any oral partition or that the property was being enjoyed separately by the descendants of Datta and Laxman the contention of the appellant that he is the exclusive owner in possession of the acquired land cannot be accepted. The appellant has also not produced any inventory proceedings nor any partition document to establish that the properties have been divided between the descendants of the said common ancestors. Having failed to do so, there is no evidence on record to establish that the property was divided by metes and bounds between the descendants of their common ancestors. Once the appellant has failed to establish any exclusive right to the acquired portion of land, the question of claiming the entire compensation be awarded to the appellant would not arise. The appellant has failed to establish any claim of title by adverse possession to demonstrate that the said respondent Nos.3, 4 and 5 had lost title to any portion of the acquired land. Once, there is no evidence on record to establish that respondent Nos.3, 4 and 5 have lost title to any portion of 11 the acquired land, the Reference Court was justified to award part of the compensation in favour of the said respondents. The appellant is not justified to contend that the Reference Court has not appreciated the evidence on record nor that the findings arrived at by the Reference Court are not borne out from the records. Learned Counsel appearing for the appellant was unable to point out any infirmity in the findings of the Reference Court that the property registered under No.5625 is part of the acquired portion of the land. Hence, I find no infirmity committed by the Reference Court whilst passing the impugned Judgment. The compensation is to be apportioned in the manner as directed by the impugned Judgment. 8. Considering the facts and circumstances of the case, I find no merit in the above appeal nor does the impugned Judgment call for any interference by this Court. The appeal as such stands dismissed with no order as to costs. F. M. REIS, J. RD