1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 181/2004. Shri Carlos Francisco Alemao, Resident of Navelim Salcete, Goa. … Appellant. V/s Smt. Sabina D'Cruz (Since deceased) Represented through legal representatives (a) Antonio Dias and his wife, (b) Philomena Dias, Both major, landlords, Residing at House No. 259, Oldem Sinquetim, Navelim, Salcete, Goa. … Respondents. Shri Valmiki Menezes, Advocate for the Appellant. Mrs. A . Agni, Advocate for the Respondents. CORAM : F. M. REIS , J. DATE : 22 nd October 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award 2 dated 24.3.2004 passed by the learned Addl. District Judge, South Goa, Margao in LAC No. 86/1993. The parties shall be referred to in the manner they so appeared in the cause title of the impugned judgment. 2. By notification issued by the Government under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act) dated 21.11.1988, land was acquired for improvement and black topping of road from Sinquetim to Coldem in village Panchayat Navelim of Salcete Taluka. The Land Acquisition Officer (LAO for short) passed an award dated 28.8.1992 under Section 11 o the said Act. An area admeasuring 650 sq. metres from the property surveyed under No. 126/8 of village Navelim came to be acquired and as there were rival claims put forward by party no. 1 and 2 to the compensation payable for the said land acquired, the matter came to be referred under section 30 of the said Act before the learned District Judge. By judgment and award dated 24.3.2004, the learned District Judge directed that the party no. 1 through their legal heirs were entitled to receive the entire compensation together with interest accrued thereon. Being aggrieved by the said judgment, the party no. 2 preferred the present appeal. 3 3. Mr. Valmiki Menezes learned Counsel appearing for party no. 2 has assailed the impugned judgment and submitted that the Reference Court has totally disregarded the evidence on record produced by the party no. 2 and consequently came to an erroneous conclusion that the compensation is to be paid to the party no. 1. The learned Counsel further submitted that the land depiction sought to be done by AW3 with regard to 1/8th portion purchased by the party no. 1 is totally erroneous as the boundaries shown in the original sale deed do not correspond with the boundaries found at loco. He further submitted that the party no. 2 had admittedly purchased 7/8th portion of the same property and their expert had duly identified the property in the plan which is at page no. 113 of the paper book which conclusively establishes that the land acquired was part and parcel of the property belonging to party no. 2. The learned Counsel further submitted that the surveyor examined by party no. 1 has not at all identified the whole property vis-a-vis the boundaries as shown in land registration documents and as such depiction by AW3 cannot be accepted. He further submitted that the engineer examined by party no. 2 has shown the extent of 1/8th purchased by party no. 1 in the plan produced by him as shown at loco. He has further submitted that the 4 Reference Court has totally misdirected itself in appreciating the evidence on record and as such erroneously came to the conclusion that the land acquired belonged to party no. 1. The learned Counsel further submitted that on perusal of the boundaries as shown in the sale deed at exhibit 35 which is dated 16.1.1941 the boundaries of the 7/8th portion purchased by party no. 2 do not at all co-relate with the depiction as sought to be done by the surveyor examined by party no. 1. He has further submitted that the documents produced by party no. 2 have not at all been scrutinized by the Reference Court while passing the impugned judgment and as such the conclusion drawn therein deserves to be set a side. He further submitted that the evidence of Shri Pascoal Barbosa who is a Civil Engineer examined by party no. 2 has not at all been considered by the Reference Court in a proper prospective. He as such submitted that on the basis of the material on record, the only conclusion which can be drawn is that the land acquired was part and parcel of the property of the party no. 2. 4. On the other hand, Mrs. A. Agni. learned Counsel for party no. 1 has supported the impugned judgment. The learned Counsel has taken me through the document of purchase of 1/8th portion by party no. 1 and pointed out that the boundaries shown 5 therein do tally with the boundaries as shown by their surveyor who is AW3. She further submitted that the said expert has co-related the measurements and dimensions shown in the deed of sale dated 16.01.1941 and has clearly come to the conclusion that the land acquired was part and parcel of the property of party no. 1. She further pointed out that the survey records stand in the name of party no. 1 and that the house existing therein also belongs to party no. 1. She further submitted that the Reference Court has correctly appreciated the evidence on record and come to a correct conclusion that the compensation awarded in the said proceedings is to be paid to party no. 1. She has taken me through the notes of evidence and pointed out that there is no reason which calls for any interference in the impugned judgment. She submitted that the contentions sought to be advanced by the learned Counsel appearing for party no. 2 cannot be borne out from the statement of the claim put forward by party no. 2 before the Reference Court. She submitted that the party no. 2 has failed to co-relate the boundaries as shown in the land registration documents and as such, the question of raising an dispute with that regard at this stage would not arise at all. She took me through the plan prepared by the engineer of party no. 2 and pointed out that the depiction sought to be done is erroneous as the boundaries 6 shown in the sale deed do not correspond with the boundaries available at the site on the basis of such depiction. She further pointed out that the sale deed of party no. 1 was not even produced by party no. 2 before the said engineer for the purpose of locating the properties of the respective parties. She further submitted that there are two fixed points which have been mentioned by AW3 which is north west corner of the house and the chapel which are still existing and there is no dispute raised by party no. 2 in respect of the said two fixed points. As such she submitted that considering the measurements as disclosed in the sale deed the depiction as done by AW3 has to be accepted. She further submitted that there is no infirmity committed by the Reference Court in directing that the party no. 1 through his legal heirs were entitled to receive the entire compensation and as such the appeal deserves to be dismissed. 5. Having heard the learned Counsel and on perusal of the record, the following point arises for my determination in the present appeal: POINT FOR DETERMINATION 1. Whether the land acquired forms part of the property belonging to party no. 1 or party no. 2? 7 6. On perusal of the statements of the claim put forward by the respective parties, I find that party no. 1 has stated that the acquired portion of the land is part and parcel of the property surveyed under no. 126/8 and that said property is bounded towards east by village Sinquettim Navelim towards west by plot surveyed under no. 126/6 and 126/10 which portion otherwise forms part of the property surveyed under no. 126/8. They have further stated that acquired land is a strip on the western boundary of the property and that the same is defacto and de jure possession, occupation and enjoyment by them and are residing for over 60 years. They have further stated that they are entitled for the entire compensation awarded pursuant to the acquisition in the present proceedings. The party no. 2 has filed written statement stating that the compensation in respect of the property surveyed under no. 126/8 be paid to him as he is exclusive owner of the said plot. They further stated that the property surveyed under no. 126/8 is part of the entire property belonging to them. In support of their claim, AW1 who has been examined is party no. 1(b) who has stated that the said property belonging to Sabina D'Cruz who is her late mother in law, was allotted to her in the inventory proceeding which were initiated upon the death of her father Bernardo 8 D'Cruz. The property was enlisted at item no. 26 in the said inventory proceedings. She has further stated that Bento Matias Maximo Dias was her late father in law who had purchased another portion of the said property from one Dumingo Santa Martins by sale deed dated 16.1.1941. She has further stated that the said portion of the property purchased in the year 1941 was situated on the rear side of the house and that the dimensions of the said purchased property was mentioned in the said sale deed. She has further stated that the property belonging to her mother in law and portion of the property purchased by her father in law were abutting to one another wherein they have a residential house. She has stated that she is residing in the said house since her marriage about 26 years back. She has further stated that the property is surveyed under no. 126/8. She has also produced the sketch wherein the acquired portion of the land is located which is at Exh. AW1/E. She has further stated that the records stand in the name of his mother in law and that the acquired portion forms western side of the said property. She has further stated that there were 5/6 coconut trees in the acquired land which were in their possession. She has further stated that the property surveyed under no. 126/9 is surveyed in the name of Francisco Alemao who is party no. 2. She has further stated that the properties surveyed under nos. 126/5 and 125/10 are 9 also entered in the name of party no. 2. In the cross examination she has admitted that the party no. 2 and his brother's ancestors had purchased 7/8th share in the property 'Oldem' from Duningo Santana Martins. She has further stated that she could not give the area of 1/8th share portion purchased by her father in law. She has denied the suggestion that the acquired portion of the land belongs to party no. 2. 7. The sale deed produced by party no. 1 is at Exh. AW1/B and the same is dated 16.1.1941. On perusal of the said sale deed the said Bento Dias who is stated to be the father in law of AW1 had purchased the 1/8th share of the property known as 'Oldem' situated at Navelim which is stated to constitute a distinct property by itself and bounded towards east by the property of heirs of Bernardo Da Cruz, paddy field of said Communidade of Margao and by the property of heirs of Vassu Xete and towards west and south by remaining 7/8th part of the said property and on the north by the property of heirs of said Bernardo and that the same 1/8th part is separated by four marked stones plunged between first on the western side of the house of the heirs of said Bernardo on the corner north west of the said house from this to the first mark the distance is 17mts and 65 cms and from the corner north east from the small chapel to the first mark the distance 10 of 13 mts and 60 cms. From the said corner of the said house at the distance of 17 mtrs and 65 cms and the first boundary mark an angle of 95 degree was formed and at the distance of 35 mts and 80 cms on the southern side of the first boundary mark. The second boundary mark was placed in the direction of the wall of the western side of the house of the said heirs and starting from the north west corner at the distance of 41 mtrs and 45 cms, the third boundary mark was placed which is at the distance of 14 mtrs and 55 cms of the second boundary mark and in the extension of the second and the third boundary mark at the distance of 43 metrs and 30 cms, the fourth boundary mark was placed. The said property 'Oldem' is described as a whole in the land registration under no. 18696 of new series. The said sale deed clearly stipulates the four boundaries marks and the description and the dimensions between the said marks clearly discloses that 1/8th purchased by the party no. 1 is well identified. 8. The next witness examined is AW2 Actilles Gracias. But however the said witness was not cross examined as party no. 1 endorsed that he was not available for cross examination, hence said evidence can be discarded. The next witness examined is AW3 Peter Antao who has stated that he had inspected the property surveyed 11 under no. 126/8 and he had identified the property at loco. He has considered the north west corner of the house existing in the property surveyed under no. 126/8 as one of the fixed point. The said point is shown by letter 'B' on the plan prepared by him. North western corner was taken as another fixed point at letter 'C'. He has also fixed the dimensions at the site and prepared the plan which is at Exh. AW3/A. As per the said plan he has identified the four marks by points A, D, E and F. On going through the plan which is at Exh. AW3/A, the distance from point A and B has been mentioned as well as the other distances. In the cross examination he has stated that he does not know the boundaries of the entire property known as 'Odlem' but knows the boundary of only 1/8th share of the said property. He has further admitted that the distance shown by him from points A to D is 35.50 mts but as per the document the distance is 35.80 mts. He has denied the suggestion that depiction done by him was not correct. He as further sated that the property purchased by the party no. 1 is 'L' shape. He denied the suggestion that the property purchased by party no. 1 is triangular in shape. He has further stated that he is not aware whether the chapel located on the western side has been renovated. He has stated that the said chapel is an old structure and not extended. 12 9. In support of his claim party no. 2 has examined Carlos Alemao. He has stated that he is residing in the property adjoining to the suit property. He has further given the boundaries of the whole property as being towards the east by paddy field “Toloy” belonging to Margao Communidade on the west by property belonging to Condorcett Rodrigues E Costa, on the north by the property of Condorcett and Joao Salvador Alemao and towards south by the property of Vassu Xette and Mossuete Alemao. He has further stated that the suit property is 7/8th part of the property 'Oldem' and the same is bounded towards east by 1/8th part of the said property 'Oldem” sold to Mr. Bento Dias from Navelim and by the paddy field of Communidade of Margao towards west by the property of heirs of Macioto Alemao, Victor Alemao and others and the property of Roldao Rodrigues towards north by the property of said Roldao Rodrigues and said Bento Dias and heirs of Bernardo De Cruz and on the south by property of Leopoldo Rodrigues and that of heirs of Macioto Antonio Alemao and said Roldao Rodrigues and others. He has further stated that the suit property exclusively belong to him pursuant to the deed of partition and allotment which is registered in the office of sub registrar at Margao under no. 2721 dated 19.10.2000. He has further stated that he had engaged services of Pascoal Noronha 13 for identifying the property who has prepared the plan. He has further stated that he is in possession of the suit property as owner there of. Consequently he claims that he is entitled for compensation awarded in the said proceedings. In the cross examination he has stated that the acquired portion is part of the property surveyed under no. 126/8 and 126/9. He has admitted that party no. 1 has not claimed any share in respect of the property surveyed under no. 126/9. He has further sated that in the year 1986 he came to know about the entries in the survey records as prior to that he was abroad. He has further stated that he had claimed said property surveyed under no. 126/8 as belonging to him. He has also claimed that he has addressed a letter stating his said objection. He has admitted that his vendor had sold 7/8th property to him and remaining 1/8th share sold to party no. 1. He has further stated that there is a reference to a chapel in the said sale deed of party no. 1 and that the said chapel belong to him. He denied the suggestion that dimensions are mentioned in the said sale deed with regards to the chapel He has further stated that the said chapel is located in his property. He has further stated that chapel is not situated in the acquired portion of the property and not in the property surveyed under no. 126/8 but in the property surveyed under no. 126/10 which property belong to him. He has further admitted 14 that the acquired portion of the land was used as access or as a pathway by a local people. He has further admitted that a suit was filed with regards to the said pathway and the same was rejected. He has further stated that he came to know about the suit in the year 1981 and the same was filed against party no. 1. He has further denied the suggestion that the suit was compromise between party no. 1 and the villagers. He has further admitted that he has not objected the suit nor filed any third party objection. He has further admitted that 7/8th portion of the property purchased by him is shown as bounded on the east by the portion of Bento Dias i.e 1/8th share besides Communidade of Margao and Vassu Shet. He has further admitted that party no. 1 has got a house in the property surveyed under no. 126/8. Next witness examined by party no. 2 is Shri Pascoal Barbosa Noronha. He has stated that he is a qualified Civil Engineer and at the request of the party no. 2 he had inspected the property surveyed under nos. 126/8 and 126/9 situated at Village Navelim. He had proceeded to identify the property know as 'Oldem'. He has further stated that after carrying out said inspection he has prepared inspection report and sketch dated 12.3.2003. He has further stated that said property 'Oldem' consisted of coconut trees and bounded on east by 1/8th share, part of the property sold to Bento Dias and Paddy field of 15 Communidade of Margao and by property of heirs of Vassu Shet and on the west by property of heirs of Macioto Alemao and others and the property of Roldao Rodrigues. Towards the north by said Roldao and said Bento Dias and heirs of Bernado De Cruz and towards the south by property of Leopoldo Rodrigues, heirs of Macioto Alemao and said Roldao Rodrigues and others. He has further stated that major portion of the property 'Oldem' is surveyed under nos. 126/8 and 126/9 of village Navelim. He has further stated that Bernardo de Cruz did not possess any property towards the western side of the property 'Oldem' and 7/8th part of the property belonging to party no. 2 extends to the east upto the boundary of the property of Communidade of Margao. In the cross examination he has stated that he has not produced document/ plan with regards to the property of Sabina D'Cruz/party no. 1. He has further admitted that in the sale deed of party no. 2 there is a mention in respect of sale of 1/8th share of the said property in favour of ancestor of party no. 1. He has further admitted that the sale deed of party no. 1 was not shown to him. He has further admitted that he had identified the said property of party no. 1 without perusing the sale deed and other documents. He has further admitted that towards the western side of the acquired land property surveyed under no. 126/10 is located. He has further 16 admitted the existence of the chapel therein. He has further stated that the party no. 2 had not informed him that the property surveyed under no. 126/10 was included in 7/8th part of the property purchased by him. He has further stated that he was not aware of the length of the other side of the plot. 10. The learned Reference Court whilst passing the impugned Judgment and award has considered the sale deed produced by the party no. 1 which is at Exh. AW1/B and on perusal of the boundaries mentioned therein came to the conclusion that the land acquired was part and parcel of 1/8th share purchased by the ancestors of party no. 1 pursuant to the said sale deed. Learned Judge has accepted the plan prepared by AW3 which is at Exh. AW3/A and held that the acquired land belong to party no. 1. Learned Judge has also taken into account the fact that the survey record was standing in the name of party no. 1. Learned Judge has also considered the plan produced by party no. 1 alongwith report at Exh. 45 and rejected the depiction made therein. 11. After going minutely through the evidence on record as well as the documentary evidence produced by the parties, it reveals 17 that the sale deed produced by the party no. 1 at Exh. AW1/B clearly mentions the boundaries of the property sold as well as that on the northern side of the said portion of the property there are two fixed point. The fixed point as disclosed in the said sale deed is the western side of the house of the heirs of said Bernardo on the corner north west of the said house and from this point to the first marked the distance of 17 mts and 65 cms and from corner north east from the small chapel to the first mark the distance is of 13 mts and 16 cms. The plan produced at Exh. AW3/A by an engineer examined by party no. 1 clearly shows that the said two points have been identified by letter A and B and the distance is shown as 17.65 cms which correspondents to the distance mentioned in the said sale deed. The other point as shown in the said plant at Exh. AW3/A from points A to D mentioned the distance as 35.50 mts. The said point also correspondents approximately to the distance as mentioned in the said sale deed. Point 'B' in the said plan at Exh. AW3/A which is the corner wall of the house is another fixed point. There is no challenge to the existence of the said marks by the party