:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 202 OF 2005 1. The Chief Secretary Government of Goa, Secretariat, Panaji Goa. 2. The Director, Revenue Department, Panaji Goa. 3. The Director, Land Survey Department, Panaji Goa. 4. The Dy. Collector, Mapusa Sub-Division, Mapusa Goa. 5. The Mamlatdar Bicholim Goa. 6. The Talathi, Village Panchayat Maulinguem, Kudchirem, Maulinguem, Goa. …Appellants (Original Defendants ) V e r s u s 1. Shri Gajanan Sadashiv Khedekar son of late Sadashiv Khedekar major in age, married, agriculturist, resident of Naiguinim, Bicholim Goa. 2. Smt. Mangala alias Radhabai Gajanan Khedekar, daughter of Balwant Sahakari, major in age, Married, housewife, resident of House No.292, Naigunim, Bicholim Goa. :2: 3. Shri Shripati Sadashiv Khedekar 4. Smt. Kunda Shripati Khedekar (since deceased ) represented by her LRs. Both of major age, Indian National, r/o H.No.292, Naigunim, Kudchire, Bicholim Goa. 4.a) Smt. Girija Shripati Khedekar Aged 43 years, r/o Naiguni, Bicholim Goa, housewife, Second wife of plaintiff no.3., 4.b) Shri Rajesh Shripati Khedekar Married, aged 28 years, r/o Naiguini, Bicholim Goa, service, 4.c) Shri Neelesh Shripati Khedekar aged 22 years, agriculturist, r/o Naiguini, Bicholim Goa. 4.d) Smt. Jyoshna Satish Deu aged 33 years, married, Household, r/o Savordem, Tal. Quepem Goa. 4.e) Shri Satish Chintamani Deu aged 38 years, married, Government employee, r/o Savorde, Tal. Quepem Goa. 4.f) Smt. Neesha Shivprasad Dessai, aged 30 years, Housewife, r/o Mardol, Ponda Goa. 4.g) Shri Shivprasad Shamsunder Dessai, aged 35 years, Landlord and businessman, r/o Mardol, Ponda Goa. … Respondents ( Original Plaintiffs ) :3: Shri G. Shirodkar, Government Advocate for the appellants. Shri J. P. Mulgaonkar, Advocate for respondent nos. 1, 2, 3, 4(A), (c) to 4(G). CORAM : F. M. REIS, J DATE : 24 th JUNE, 2011 . ORAL JUDGMENT Heard Shri G. Shirodkar, learned Government Advocate appearing for the appellants and Shri J. P. Mulgaonkar, learned Counsel appearing for respondent nos. 1, 2, 3, 4(A), (C) to 4(G). 2. The above appeal challenges the judgment and decree dated 1.4.2005 passed by the learned Additional District Judge, Mapusa, in Civil Suit No. 20/2004. By the impugned judgment, the learned Judge has decreed the suit filed by the respondents and inter-alia declared that the property surveyed under nos. 197/1, 197/2, 204/3 and 204/4 as private property with no rights to the appellants and particularly the Government had no right therein. Some consequential reliefs were also granted by the impugned judgment. :4: 3. Being aggrieved by the said judgment, the appellants have preferred the present appeal. Shri G. Shirodkar, learned Government Advocate for the appellants has assailed the impugned judgment and pointed out that the claim of the respondents in the suit is that they are the owners in possession of the property which is more particularly identified at para 7 of the plaint with specific boundaries which according to them correspond to the property which is surveyed under Nos. 197/1, 197/2, 204/3 and 204/4. The learned Government Advocate further submitted that there is no evidence adduced by the respondents to the effect that the property claimed by them as surveyed by the said survey numbers are included within the boundaries as mentioned in para 7 of the plaint. Learned Government Advocate has taken me through the documents on record and pointed out that the respondents have failed to adduce evidence of any expert to co-relate the boundaries claimed by them with the boundaries in the private grant in favour of their predecessor in title. Learned Government Advocate further submitted that the suit property claimed by the appellants is a part and parcel of the property which was surveyed in the cadastral survey nos. 308, 308A, 228 and 229 surveyed during erstwhile regime. Learned Government :5: Advocate further submitted that on perusal of the cadastral survey records, only two of the said numbers stand in the name of the ancestor of the respondents and the other two numbers namely 308-A and 229 stand in the name of the State Government. Learned Counsel further submitted that the cadastral survey numbers were duly promulgated and according to him, the presumption in favour of the appellants ought to have been drawn by the learned Judge while passing impugned judgment. Learned Counsel has further taken me through the evidence on record and pointed out that the respondents have failed to adduce any evidence to substantiate their claim that they are entitled for a declaration as claimed by them as there was no identification of the property in the manner well settled in law and as such the impugned judgment deserves to be quashed and set aside. 4. On the other hand, Shri J. P. Mulgaonkar, learned Counsel appearing for the respondents has supported the impugned judgment. Learned Counsel submitted that the cadastral survey records have not been promulgated and as such the question of drawing any presumption in favour of the appellants would not arise at all. He further submitted that in any event, any presumption under erstwhile provisions of law :6: have no bearing after the survey records are duly promulgated under the Land Revenue Code, 1969. Learned Counsel further submitted that though the name of the appellant is shown in the occupants column nevertheless the name of the ancestor of the respondents is shown in the other rights column and as such the respondents have established that they were in possession of the property, as the presumption is to be drawn in favour of the respondents with regard to the ownership and possession thereof. Learned Counsel further submitted that in any event the said documents sought to be relied upon by the appellants are not title documents and as such the question of drawing presumption in favour of the appellants on the basis of such documents would not arise. Learned Counsel further submitted that the respondents have adduced sufficient cogent evidence to satisfy their possession over the suit portion of the property and according to him, there were admissions on the part of the appellants to that effect and as such there is no infirmity committed by the learned Judge in passing the impugned judgment. Learned Counsel has further taken me through the the evidence on record as well as the pleadings of the parties and pointed out that in the written statement filed by the appellants there is no specific denial :7: nor any dispute raised with regard to the identification of the property. Learned Counsel as such submitted that there was sufficient material on record for the learned Judge to decree the suit filed by the respondents. 5. Having heard the learned Counsel for the parties and on perusal of the records, the following point arises for my determination is as under :- POINT FOR DETERMINATION Whether the learned Judge was justified to come to the conclusion that the respondents were the owners in possession of the property surveyed under nos. 197/1, 197/2, 204/3 and 204/4 as claimed by them in the suit ? 6. On perusal of the plaint filed by the respondents, I find that the suit filed by the respondents was not only for the consequential relief of injunction but also for a declaration. The declaration sought by the respondents was to the effect that the property surveyed under nos. 197/1, 197/2, 204/3 and 204/4 forms a part and parcel of the property which has devolved upon them and the same corresponds to the property as identified at para 7 of the plaint. :8: 7. In the written statement filed by the appellants, I find that the case put forward by the appellants is that the suit property belongs to the appellants. On perusal of the evidence on record, I find that the respondents have not adduced evidence of any expert nor surveyor to establish that the boundaries as mentioned by them at para 7 of the plaint correspond to the boundaries as depicted in the survey plan with regard to the said four survey numbers. When this was pointed out to Shri J. P. Mulgaonkar, learned Counsel for the respondents as to how the learned Judge has come to such a conclusion that the property surveyed under the said survey numbers are included in the property claimed by the respondents at para 7 of the plaint, Shri Mulgaonkar fairly conceded that though there is no evidence to that effect nevertheless according to him there is sufficient evidence to establish that the respondents were in possession of the suit property. 8. On perusal of specific evidence of the respondents on record, though there is some evidence to establish the claim of the respondents that they were in possession of some portion of the property, there is no cogent evidence to establish that such possession extended to the entire property :9: as claimed by them surveyed under the said four survey numbers. Apart from that, the contention of Shri Mulgaonkar, learned Counsel for the respondents that there was no dispute with regard to the identification of the property cannot be accepted. Admittedly, the suit filed by the respondents is for a declaration of title and the burden is upon the respondents to establish their case. There was dispute raised by the appellants to the effect that the suit property belongs to the Government. 9. The Apex Court in the judgment in the case of R. Hanumaiah and another v/s Secretary to Government of Karnataka, Revenue Department and others, reported in (2010) 5 S.C.C. 203 has held at paras 19, 20 and 21 thus :- “19. Suits for declaration of title against the Government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the Government. All lands which are not the property of any person or which are not :10: vested in a local authority, belong to the Government. All unoccupied lands are the property of the Government, unless any person can establish his right or title to any such land. This presumption available to the Government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession has to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against the Government. This follows from Article 112 of the Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by the Government as against the period of 12 years for suits by private individuals. The :11: reason is obvious. Government properties are spread over the entire State and it is not always possible for the Government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the Government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements. 20. Many civil courts deal with suits for declaration of title and injunction against the Government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against the :12: Government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the Government contests the suit or not, before a suit for declaration of title against a Government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the Government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the Government, grant declaratory or injunctive decrees against the Government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or :13: traversed are deemed to have been accepted or admitted. 21. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the Government: whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the Government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession—authorised or unauthorised; permissive; casual and occasional; furtive and clandestine; open, :14: continuous and hostile; deemed or implied (following a title).” Having regard to the said judgment of the Apex Court, I find that the learned Judge has not at all considered the matter in a proper perspective whilst passing the decree for declaration and injunction. 10. The respondents who were the plaintiffs in the suit had to establish by cogent evidence as well as by producing evidence of some expert to establish the title and ownership in the suit property. Having failed to establish the extent of the property as per the boundaries claimed by them from the document of title and the boundaries as shown in the survey records, it would be difficult for the Court to come to the conclusion that the suit property belongs to the Respondents and grant the declaration as claimed by them in the suit. On perusal of the impugned judgment, I find that the learned Judge has not at all considered the said aspect to ascertain the extent of the property of the respondents. Such exercise would be very essential for the Court while granting the declaration as claimed by the respondents. Hence, I find that the evidence was not sufficient for the learned Judge to grant :15: the declaration as prayed for in the suit. 11. In such circumstances, considering the claim of the parties in the above proceedings, I find that in the interest of justice it would be appropriate that the matter be remanded to the learned Judge to decide the suit afresh after giving an opportunity to the respondents to adduce further evidence and to establish their claim as far as the identification of the property is concerned. No doubt, if such evidence is adduced, the appellants would be at liberty to adduce evidence in rebuttal. 12. Shri Mulgaonkar, learned Counsel for the respondents at this stage pointed out that the respondents may file an application to amend the pleadings before the learned Judge. In case such an application is filed, the learned Judge shall deal with the said application on its own merits after hearing the appellants in accordance with law. The point for determination is answered accordingly. 13. In view of the above, I pass the following : :16: O R D E R (i) The appeal is partly allowed and the impugned judgment dated 01.04.2005 is quashed and set aside. (ii) The Civil Suit No. 20/2004 is restored to the file of the learned Additional District Judge. (iii) The learned Judge is directed to decide the suit afresh in the light of the observations made herein above in accordance with law. (iv) The above appeal is disposed of accordingly with no order as to costs. (v) The parties are directed to appear before the learned Additional District Judge on 26th August, 2011 at 10.00 a.m. and abide by the further directions. F. M. REIS, J at*