1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.72 OF 2003 WITH MISC. CIVIL APPLICATION NO.99 OF 2011 1. Sadanand Mahadev Kurdikar, son of late Mahadev Kurdikar, major in age, married, agriculturist, resident of House No.255, Colony No.III, Valkinim, Sanguem Taluka, Goa. 2. Gajanan Mahadev Kurdikar, son of late Mahadev Kurdikar, major in age, married, businessman, resident of Colony No.I, Vadem, Sanguem Taluka, Goa. 3. Murlidhar Kashinath Kurdikar alias Murlidhar Krishnanath Kurdikar, major in age, agriculturist, married, resident of Colony No.III, Valkinim, Sanguem Taluka, Goa. 4. Laximan Keer Velip (expired) represented by his legal representatives: 4(a) Mangala Laxman Quir, major in age, resident of Colony No.III, Valkinim, Sanguem Taluka, Goa. 5. Sharad Shripad Paranjape (deceased), represented by his legal representatives; 5(a) Vassant Shripad Paranjape, major in age, married, resident of “Matruchaya”, Ram Maruti Road, Dadar, Mumbai 400028, represented by his attorney, the said Sadanand Mahadev Kurdikar, 2 the appellant no.1, herein; 6. Laximan Bhicu Kurdikar, (deceased), represented by his legal representatives; 6(a) Vilas Hori Kurdikar, major in age, agriculturist, resident of Colony No.II, Valkinim, Sanguem Taluka, Goa. 7. Shamsunder Kurdikar, (deceased), represented by his legal representatives: 7(a) Sumitra Shamsunder Kurdikar, major in age, residing at Colony No.III, Valkinim, Sanguem Taluka, Goa. 7(b) Shekhar Shamsunder Kurdikar, major in age, residing at B.No.20/232, Sahkar Nagar, Shell Colony, Chembur, Mumbai. 7(c) Prakash Shamsunder Kurdikar, major in age, residing at Colony No.III, Valkinim, Sanguem Taluka, Goa. 8. Balcrishna Baburao Kurdikar, (deceased), represented by his legal representatives; 8(a) Prabhakar B. Kurdikar, major in age; 8(b) Surendra B. Kurdikar, major in age; 8(c) Satish B. Kurdikar, major in age, and 8(d) Shama Rajnikant Somvanshi, major in age; all residents of Mumbai, represented herein by their attorney, the said Sadanand Mahadev Kurdikar, the appellant no.1, herein; 9. Bablo Bicaro Kurdikar, (deceased) represented by his legal representatives: 9(a) Smt. Premalata alias Prema Bablo Kurdikar, 3 major in age, widow; 9(b) Shri Prasad Bablo Kurdikar, major in age; 9(c) Shri Kiran Bablo Kurdikar, major in age; all residents of Colony No.III, Valkinim, Sanguem Taluka, Goa; 10. Yeshwant Govind Kurdikar, (deceased), represented by his legal representatives; 10(a) Smt. Laximibai Y. Kurdikar, major in age; 10(b) Shri Santosh Y. Kurdikar (since deceased) represented by his legal representatives; 10(b)(i) Smt. Kalindi Kurdikar, widow of Santosh Kurdikar, aged 45 years, resident of Colony No.III, Valkinim, Sanguem Taluka, Goa. 10(c) Shri Kamlakant Y. Kurdikar, major in age; 10(d) Shri Suresh Y. Kurdikar, major in age; and 10(e) Shri Arun Y. Kurdikar, major in age; all residents of Colony No.III, Valkinim, Sanguem Taluka, Goa. 11. Motiram Balaji Kurdikar, (deceased) represented by his legal representatives; 11(a) Indirabai Motiram Kurdikar, major in age, widow, resident of Matru Pitru Chaya Building, Block No.23, 4th Floor, Tukaram Nagar, Aayere Road, Dombivali (East), Dist.: Thane, Mumbai, represented herein by her attorney, the said Sadanand Mahadev Kurdikar, the Appellant No.1 herein; and 11(b) Ravindra Motiram Kurdikar, 4 major in age, resident of Matru Pitru Chaya Building, Block No.23, 4th Floor, Tukaram Nagar, Aayere Road, Dombivali (East), Dist.: Thane, Mumbai. …. Appellants V/s 1. Someshwar Devasthan of Curdi, of Sanguem Taluka, Goa; and 2. Pandurang Pisso Kurdikar, (deceased) through legal representatives; 2(b) Gurudas Pandurang Kurdikar, major in age, resident of Colony No.III, Valkinim, Sanguem Taluka, Goa. 3. Anand G. Kurdikar, (deceased), without any legal representatives. …. Respondents Shri S.S. Kakodkar, Advocate for the Appellants. CORAM : F.M. REIS, J. DATE : 6th SEPTEMBER, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 29/08/2002, passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.396/1981. 2. Pursuant to a notification under the provisions of the Land 5 Acquisition Act, 1894, (herein after referred to as “the said Act”), different portions of the properties were acquired by the State Government for the purpose of the Selaulim Irrigation Project (Submergence area) situated at Curdi village. 3. In view of different claims put forward by the appellants as well as the respondents to the compensation awarded by the Land Acquisition Officer under Section 11 of the said Act, a reference under Section 18 of the said Act was preferred by the appellants herein before the learned District Judge for adjudication of their respective claim in respect of the compensation awarded by the Land Acquisition Officer. 4. After hearing the parties and recording of evidence the learned Additional District Judge, South Goa, Margao by the impugned judgment dated 29/08/2002 decided the reference in the negative. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 5. The respondents though served failed to remain present. 6 6. Shri S.S. Kakodkar, the learned Counsel appearing for the appellants has assailed the impugned judgment and pointed out that the learned Judge has not at all applied its mind to the matter in controversy and, as such, came to an erroneous conclusion that the appellants have not established their claim to the compensation awarded by the Land Acquisition Officer. The learned Counsel further pointed out that the claim of the appellants is that pursuant to the concession document executed by the respondent no.1 in favour of the appellants by document at Exhibit AW1/N, the acquired portion of the land belonged to the appellants. The learned Counsel further submitted that the appellants have adduced evidence to substantiate their respective possession in respect of the acquired portion of the land and, as such, the learned Judge ought to have scrutinized the evidence on record to ascertain as to whether the appellants have any claim to the compensation awarded by the Land Acquisition Officer. The learned Counsel further submitted that the said document at Exhibit AW1/N has not at all been considered by the learned Judge while passing the impugned judgment and, as such, has come to an erroneous conclusion that the acquired portion of the land was not part and parcel of the property known as Tarimol, Taribhat, Galichem Xet 7 and Gorbhat. The learned Counsel further submitted that the appellants were in possession of the said portion of the property and, as such, even assuming the title of the property was not established the presumption under Section 110 of the Evidence Act could be drawn on the basis of such possession that the acquired portion of the property belonged to the appellants. The learned Counsel has taken me through the impugned judgment as well as the material on record and pointed out that the Reference Court has not at all scrutinized the material adduced by the parties and, as such, came to an erroneous conclusion that the appellants were not entitled to the compensation awarded by the Land Acquisition Officer. The learned Counsel, as such, submitted that the impugned judgment deserves to be quashed and set aside and instead of reappreciating the evidence on record the matter may be remanded to the Reference Court to decide the reference afresh in accordance with law. 7. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION: 8 Whether the Reference Court was justified to decide the reference in the negative. 8. On perusal of the impugned judgment, I find that the Reference Court has framed fifteen issues, but however, while discussing the material on record, there is no specific finding given by the Reference Court on each of the issues framed. Not giving such finding on each issues itself vitiated the impugned judgment. The Reference Court is expected to scrutinize every piece of evidence adduced by the parties and arrive at specific finding on each of the issues. Apart from that, the learned Judge has not even considered the document at Exhibit AW1/N and other documents of title produced by both the parties on which basis the appellants have put up their claim over the acquired portion of the land. The learned Judge further found that both the parties have not adduced documentary evidence to substantiate their claim over the acquired portion of the land. If the parties have not adduced such evidence, it was incumbent upon the Reference Court to consider the oral evidence adduced by the parties to ascertain as to who was in possession of the acquired portion of the land. Having not done such exercise, the Reference Court has not at all considered the 9 matter in a proper perspective and, as such, the impugned judgment cannot be sustained and deserves to be quashed and set aside. 9. As the evidence on record in such circumstances would have to be re-appreciated and as the respondents have not put in an appearance, it would be appropriate that the impugned judgment and award be quashed and set aside and the matter be remanded to the Reference Court to decide the reference afresh in accordance with law after hearing the parties. Apart from that the appellants have filed an application to adduce additional evidence which the Reference Court can consider after hearing both the parties. The point for determination is answered accordingly. 10. 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 award dated 29/08/2002 is quashed and set aside. (iii) Land Acquisition Case No.396/81 is restored to the file of the Reference Court. (iv) The Reference Court is directed to decide the reference afresh after hearing both the parties 10 in accordance with law. (v) In case any of the parties desire to produce further evidence, parties are at liberty to file an appropriate application and the same shall be considered by the Reference Court in accordance with law. (vi) The above appeal and the application is disposed of accordingly. (vii) Parties are directed to appear before the Reference Court on 4/10/2011 at 10.00 a.m. F.M. REIS, J. NH/-