1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 38 OF 2005 1. Shri Nilconta Gangadhar Amonkar, major, married, Landlord and his wife; 2. Smt. Prabhyavati Nilconta Amonkar, major, both r/o H. No.366, Near Maruti Gad, Kakodka, Curchorem of Quepem Taluka. ... Appellants versus 1. The Assistant District Education Inspector, Office of the A.D.E.I., Near Court, Quepem, Goa. 2. The Chief Secretary, Government of Goa State, Secretariat. 3. Director of Education, Office of Directorate of Education, Panaji, Goa. ... Respondents Shri D. Shirodkar, Advocate for the Appellants. Shri S. Vahidulla, Government Advocate for the Respondents. 2 CORAM : N. A. BRITTO, J. DATE : 15TH SEPTEMBER, 2010. ORAL JUDGMENT This appeal is filed by the plaintiffs whose Special Civil Suit No. 31/1998/A for declaration and injunction has been dismissed by the learned trial Court by Judgment dated 22-11-2004. 2. There is no dispute that properties surveyed under No.51/1 of Curchorem Village of Quepem Taluka belongs to the Government of Goa in which the Government has a Primary School, a stage, a flag post and a Civil Supplies Godown, and, is otherwise recorded in the name of the Government in the occupants column of form nos. I and XIV of the survey records. The plaintiffs claiming to have come into possession of 288.75 of the eastern portion of the said property from the year 1963 through one Camnem Aidem Forgento, which is the western side of the saw mill of the plaintiffs located in survey no.51/5, filed the suit for declaration on 7-5-1998 stating that the plaintiffs were the owners of the said plot admeasuring 288.75 sq. meters by adverse possession and for permanent injunction to restrain the Defendants from interfering in the said plot. The plaintiffs also sought 3 mandatory injunction directing the Defendants to remove five concrete poles, which according to the plaintiffs, were fixed by the Defendants on or about 6-5-1997. 3. The case of the Defendants was that the said Camnem Aidem Forgento had no right to survey no.51/1, and as such could not have agreed to sell the said plot in favour of the plaintiffs. The Defendants stated that the plaintiffs concocted the story to fabricate some evidence of their alleged possession. The Defendants stated that the Government School was existing for the last about 34 years, and was extended by constructing two additional rooms in the year 1980-81, and that the Mamlatdar for security reasons had requested the Education Department to construct a compound wall in the year 1980-81. The Defendants stated that the plaintiffs themselves had alleged(admitted?) to be an encroacher of Government land, and as such were not entitled for any reliefs against the Government as a mere encroacher in Government property had no rights unless the Government regularised the encroachment under the provisions of the Land Revenue Code. The Defendants stated that the parents of the students had complained about the danger posed to their children and had requested the A.D.E.I. to construct and erect pillars in the Government land in possession of the Government School and that the parents of the said students at their own costs and labour had 4 erected the poles within the area somewhere on 10-5-1997, and accordingly had informed the Defendant No.1. 4. Counsel on behalf of the parties have categorically stated that this suit/appeal pertains to survey No.51/1 and not to survey No.51/5 where the major portion of the structure of the saw mill is situated regarding which there were other suits. 5. The learned trial Court framed two issues. The plaintiffs examined their attorney Shri Gajanan N. Amonkar and also one Shailesh Krishna Sanzgiri. The Defendants examined their Assistant Director of Education. 6. The learned trial Court came to the conclusion that the plaintiffs' possession of the suit plot was permissive in nature, based on the averments in the plaint. The learned trial Court held that the plaintiffs had not shown as to from when they started showing hostility in their possession over the suit plot, against the Government, and that a mere plea that the Government was aware of their possession did not fulfill the requirements of the doctrine of adverse possession. The learned trial Court also held that the area in possession of the plaintiffs became more doubtful when the Surveyor stated that the area was shown to him by the plaintiffs though he was unable to give the length and 5 breadth of the place for storing the goods and ultimately held that the plaintiffs had failed to prove that they were owners by adverse possession of the plot having area of 288.75 from survey no.51/1. As regards the second issue, the learned trial Court held that the plaintiffs were not in lawful possession and that they had admitted that they were the encroachers of the suit plot which belongs to the Government, and, therefore no injunction could be granted against the Government and in favour of the plaintiffs. 7. Shri D. Shirodkar, learned Counsel appearing on behalf of the plaintiffs, submits that the plaintiffs were in possession of the said plot given to them by the said Forgento from the year 1953 to the knowledge of the officials of the Government who had a school, and a godown in the said property, and, therefore they had established their rights of adverse possession against the Government. Learned Counsel therefore submits that the possession of the plaintiffs was not only open but was continuous for the requisite period to claim ownership by adverse possession. 8. Learned Counsel has placed reliance on the decisions in the case of Jose Da Costa and another v. Bascora Sadashiva Sinai Narcornim and another((1976) 3 SCC 766) and Rame Gowda v. M. Varadappa Baidu and another((2004) 1 SCC 769) and in the case of Union of India and another v. Sohan Lal Puglia((2004) 1 SCC 768). 6 9. On the other hand, Shri S. Vahidulla, learned Government Advocate has submitted that the plaintiffs not only failed to identify the area of the plot in their possession but they also failed to prove that the plaintiffs were in possession of the suit plot admeasuring 288.75 sq. meters. Learned Government Advocate has placed reliance on the decisions of this Court in the case of Byramjee Jeejeebhoy Private Limited v. Govindbhai Appaji Bhatte and others(1994(1) Bom C.R. 211) and has submitted that in a case of open land the burden is heavy of the claimant of right by adverse possession and that mere long enjoyment of open piece of land does not necessarily infer adverse possession. Learned Government Advocate has also placed reliance on the case of L. N. Aswathama and another v. P. Prakash((2009) 13 SCC 229) and has submitted that the plaintiffs had to prove that the plaintiffs were in physical/actual, exclusive, open, uninterrupted, notorious and hostile possession against the true owner for the period exceeding 12 years. Referring to the same Judgment, learned Government Advocate has submitted that it is well settled that long and continuous possession by itself would not constitute adverse possession. 10. I have perused the decision cited by the learned Counsel. The plaintiffs case could be considered on two aspects. 7 11. First, there is no dispute that the plaintiffs have a saw mill which falls partly in survey no.51/5 and partly in 51/1, and the dispute in this suit is regarding that portion which falls in survey no.51/1. The saw mill according to the plaintiffs is of an area of about 45 x 21 meters but the plaintiffs expert has not been able to identify what is the area of the said saw mill which falls into the property surveyed under no.51/1. Otherwise, there is no dispute that a certain part of it does fall in survey no.51/1. This is also reflected in form Nos.I and XIV(Exh.H colly). The plaintiffs' expert has also not been able to identify the said area of 288.75 sq. meters as being in possession and enjoyment of the plaintiffs. In cross-examination, he stated that the wood storing place was towards the east of the saw mill but he could not give the length and breadth of the place where the plaintiffs stored their wood. It is seen from Exh.20 that to the south of the school and the stage and to the west of the saw mill, there is open space which the plaintiffs use to dump their logs. In other words, the plaintiffs were not able to prove that they were in actual and physical possession of 288.75 sq. meters of survey no.51/1. Thus, the plaintiffs failed to prove that they were in possession of any well defined area of survey No.51/5 which was otherwise in possession of the Defendants except the portion on which they constructed their saw mill. Only because the plaintiffs dumped their logs by the side of the saw mill in the open place of the property of the Defendants, it could not have been said that any definite area was in their possession. 8 12. Second, on form nos. I and XIV, the name of the Government appears in the occupant's column. There is a presumption that the Government is in possession of survey No.51/5. In the other rights column, it was stated that part of the saw mill of the plaintiffs falls in this plot. The plaintiffs admitted in their cross-examination that they had made an encroachment in Government property by constructing the saw mill. In other words, the plaintiffs admitted their status as encroachers on Government property. A person who admits his status as an encroacher could never claim ownership by adverse possession notwithstanding the fact that the encroachment continued for several years. The plaintiffs only used a part of the Government's property for storage of their logs and extended part of their saw mill. The plaintiffs did not state as to when their possession had become adverse to that of the Defendants. As observed by the Apex Court in the case of S. M. Karim v. Mst. Bibi Sakina(AIR 1964 SC 1254) adverse possession must be adequate in continuity in publicity and extent and a plea is required at least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. The plaintiffs had not pleaded as to when their possession as encroachers had become adverse to that of the Government. 9 10. From whatever angle one looks at the case of the plaintiffs, the plaintiffs suit was bound to be dismissed on their failure to prove that the plaintiffs were in possession of the suit plot adversely to the Government. 11. Consequently, I find there is no merit in this appeal and the same is hereby dismissed, with costs. N. A. BRITTO, J. RD