-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 75 OF 2011 1. Antonetta Gomes, Widow of Andrew Gomes, 63 years of age, r/o H. No.576, Opposite Goa Shipyard, Vaddem, Vasco-da-Gama, Goa 2. Elsa Gomes e D'Costa, Housewife, 41 years of age, d/o late Andrew Gomes. 3. Irene Gomes e D'Costa, Housewife, 39 years of age, d/o late Andrew Gomes. 4. Lucy Gomes, e Rebello Housewife, 38 years of age, d/o late Andrew Gomes. 3. Melita Gomes, 37 years of age, d/o late Andrew Gomes, Appellants no.2 to 5 represented by power of Attorney holder being Appellant no.1 Antonetta Gomes, widow of late Andrew Gomes and all residents of H. No.176, Opposite Goa Shipyard, Vaddem, Vasco-da-Gama, Goa. …... Appellants V e r s u s 1. Mrs. Angelina Colaco e Dias, Widow of late Jacinto Dias, 2. Miss Christina Dias, 3. Mr. Luis Dias, 4. Miss Fatima Dias, 5. Mr. Wilfred Dias, -2- Respondent no.2 t o 5 are children of late Jacinto Dias and all the respondents were originally r/o Vaddem, Vasco-da-Gama, Goa and currently residing at Agnel Villa, South Stand, Stadium Road, Fatorda, Margao, Goa. …... Respondents Mr. Anthony D'Silva Advocate for the Appellants. Coram :- F. M. REIS, J Date : 28 th September, 2011. ORAL JUDGMENT Heard Shri Anthony D' Silva, learned Counsel appearing for the Appellants. 2. The above appeal challenges the Judgments and Decrees passed by the Courts below whereby the suit filed by the Appellants to claim a share in the compensation awarded by the Land Acquisition Officer in the proceedings under Section 28A of the Land Acquisition Act, 1894 came to be dismissed. 3. The Appellants filed the suit being Special Civil Suit no. 55/2001/B in the Court of the learned Civil Judge, Senior Division at Vasco, inter alia, to direct the Respondents and their heir, administrators or legal representatives to jointly and severally pay to the Appellants as per their respective share an amount of Rs.10,99,000/- together with interest at the rate of 15 percent per annum from 01.08.2000 up to actual period. It was the contention of the Appellants that there existed a property known as “Choucho” situated at Baina, Vasco, bearing Matriz no. 1598, which belonged to late Anton Gomes and that the husband of the Appellant -3- no.1 Andre Gomes, had four brothers and three sisters namely Joao Ernesto Gomes, who died as a bachelor in 1951, Antonio Vincent Gomes, who died as a bachelor in 1956 and Joaquim Gomes, who died in 1951 and who was married to Luizinha Gomes, having two children and daughter Sebastiana. It is further their case that the sisters of Andre Gomes are Maria, who died as a widow, Liberata, died in 1980 as a spinster and Candelina, who died in 1971 as a widow. It is further the contention of the Appellants that some of the parties had renounced their rights to the inheritance of the said deceased. It was further their contention that on 20.12.1976, late Jacinto, husband of the Defendant no.1, fraudulently and by illegal means, got a partition deed executed dividing the estate of late Antonio Vincent Gomes among the surviving heirs and got the property “Choucho” to himself. It is further their case that the Deed of Partition was signed by the Appellant no.1 by misrepresentation. The Appellant no.1 filed a suit against the Respondent no.1 and her late husband which ultimately came to be dismissed. It is further the case that a portion of the said property “Choucho” was acquired by the Government for the sewerage treatment plant at Baina, Vasco, and an Award was passed on 20.02.1975. The compensation came to be enhanced in view of the proceedings of Section 28-A of the Land Acquisition Act and that the said Jacinto filed an application before the learned District Judge for enhancement of compensation and the compensation was enhanced. Without any right, it is the contention of the Appellants that the said Jacinto had retained the enhanced compensation. It is further the case of the Appellants that on the date of the acquisition, the Appellants also had a right to the property and, as such, they had a share in the compensation. It is further the case of the Appellants that the Appellant no.1 being illiterate was duped by the Respondents and, as such, a legal notice was sent on -4- 03.04.2001 to direct that amount be refunded together with interest. But, however, there was no response to the said legal notice from the Government and the Respondent no.2 misguided the contents of the said notice. Accordingly, the suit came to be filed to claim the aforesaid amount. 4. The Respondents filed their written statement wherein it was contended that the suit was not maintainable and was liable to be dismissed in limine. It was further the contention that the Appellants had never challenged the land acquisition Award in respect of the property acquired and that the Award had become final. It is further their case that the Deed of Partition has not been declared null and void nor did the Appellants challenge the said Deed of Partition. It is further their case that a Deed of Partition was executed voluntarily and freely and in full understanding and thereafter rectified on 28.02.1979. The said Deed of Partition was acted upon by the parties and even the suit filed by the Appellants challenging the said Deed, came to be rejected. It is further the case of the Respondents that the said property exclusively was in ownership of said Jacinto and that Appellants have no right at all to the compensation. 5. After issues were framed and evidence was recorded, the learned Civil Judge, Senior Division at Vasco by Judgment and Decree dated 24.04.2009, dismissed the suit filed by the Appellants. 6. The learned Judge whilst passing the impugned Judgment, came to the conclusion that the Appellants were not entitled to the compensation collected by the Respondents. The learned Judge has noted that on the basis of the Deed of -5- Partition, the compensation in respect of another property acquired at Vaddem, was also received by the said Jacinto Dias. The learned Judge also noted that the suit filed by the Appellants to declare the Deed of Partition dated 20.12.1976 as null and void, came to be dismissed and which also came to be confirmed by this Court. The learned Judge also noted that the acquired land was allotted to the late Jacinto and on the basis of the Deed of Partition dated 20.12.1976, the said Jacinto got re- determination of the compensation under Section 28-A of the Land Acquisition Act and, as such, he was entitled to collect the amount awarded in such proceedings. Accordingly, the suit came to be dismissed. 7. The Appellants preferred an Appeal before the learned Adhoc District Judge being Regular Civil Appeal No. 254/2010. By Judgment and Decree dated 29.10.2010, the learned Adhoc District Judge dismissed the Appeal preferred by the Appellants. Whilst disposing of the said Appeal, the learned Judge has come to the conclusion that the Appellants were aware about the claim of the Respondents in the year 1976 and thereafter in the year 1985 and 1995 and, as such, the suit of the Appellants was barred by limitation. The learned Judge has noted that the Appellant no.1 is a signatory to the Deed of Partition which has attained finality in view of the Judgments passed in the earlier round of litigation filed by the Appellants. The learned Judge rejected the contentions of the Appellants that the suit property was not part of the partition as it was acquired earlier considering the fact that the suit property was in fact part of the properties partitioned by the Deed of Partition dated 20.12.1976. The learned Judge has also noted that the Award under Section 12 of the Land Acquisition Act passed by the Collector, had attained finality and the Appellants had also not challenged the said Award. Consequently, -6- the Appeal came to be rejected. 8. Shri Silva, learned Counsel, appearing for the Appellants, has assailed the impugned Judgment on the ground that the Appellants are the co- owners of the property and, as such, are entitled to one third share in the compensation received by the Respondents. The learned Counsel has taken me through the impugned Judgments and pointed out that the Courts below have failed to consider the fact that the Appellants were the co-owners of the property at the time of the acquisition and, as such, the Appellants were entitled to the compensation received by the Respondents. 9. On perusal of the records and impugned Judgments, I find that both the Courts below on the basis of the evidence on record, have rightly come to the conclusion that the property acquired was the subject matter of the Deed of Partition dated 20.12.1976 and that the said land was allotted to late Jacinto, ancestor of the Respondents. As such, the question of claiming that after the Deed of Partition was executed that the suit property was belonging in co-ownership to the Appellants would not arise. While executing the Deed of Partition as the said property was allotted to the ancestors of the Respondents, naturally, on account of the share of the Appellants, some other property of the inheritance must have been allotted for the purpose of equalization of shares. The validity of the Deed of Partition is not the matter in issue in the present case and, in any event, such validity which was challenged by the Appellants came to be rejected in the earlier round of litigation. As such, on going through the material on record, I find that the Courts below were justified to come to the conclusion that the Appellants were not -7- entitled to the share of compensation received by the Respondents. On going through the material on record, I find that there is no substantial question of law which arises in the present appeal which requires consideration of this Court under Section 100 of the Civil Procedure Code. The Courts below have rightly appreciated the evidence on record nor has the learned Counsel appearing for the Appellants pointed out any piece of evidence which has been misread or not considered by the Courts below whilst passing the impugned Judgments. 10. There is no merit in the above Appeal, which stands accordingly dismissed. F .M. REIS, J. arp/*