1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 340 OF 2005 1. Bhalchandra Narayan Dessai, r/o Nagarsem, Canacona, Goa. 2. Anant Narayan Dessai r/o Shirewada, H. No.1576 Nagarsem, Canacona, Goa. ... Appellants versus 1. Balkrishna Nilu Naik Gaonkar, r/o Chaudi, Canacona, Goa. 2. Smt. Alpita Anant Dessai C/o Mrs. Laksha N. Komarpant Flat No.3, Nagarsem, Canacona, Goa. ... Respondents Shri R. G. Ramani, Advocate for the Appellants. Shri Sudesh Usgaonkar, Advocate for the Respondents. CORAM : F. M. REIS, J. DATE : 10TH JUNE, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 15-9-2005 passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.295 of 1995. 2 2. Vide notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act) dated 7-10-1991 published in the Official Gazette dated 22-10-1991, an area of 7111 sq. meters of the land situated at Chaudi village of Canacona Taluka was acquired for the construction of a new BG line for Konkan Railway. Amongst the land acquired, a portion of the property admeasuring 844 sq. meters forming part of the property surveyed under No.151/3 of Chaudi was intended to be acquired. The Land Acquisition Officer awarded compensation of a sum of Rs.11,831.81. In view of the dispute between the parties, the matter came to be referred to the learned District Judge under Section 30 of the said Act which came to be disposed of by Judgment and Award dated 15-9-2005. Being aggrieved by the said award, the Appellants/Parties No.1 and 2 before the Reference Court preferred the present appeal. The Respondent No.2 is stated to be the wife of the Appellant No.2. 3. Shri R. G. Ramani, learned Counsel appearing for the Appellants has assailed the impugned Judgment and pointed out that the Reference Court has totally misdirected itself that the compensation is to be paid to the Respondent No.1 herein. Learned Counsel has further 3 submitted that the land acquired forms part and parcel of the property which is in ownership and possession of the Appellants herein. Learned Counsel has further pointed out that the Respondent No.1 has failed to establish that they were the exclusive owners of the suit portion of the acquired land. Learned Counsel has further submitted that the vendors of the property sold pursuant to the sale deed dated 20-9-1947 were not shown to be the exclusive owners of the said property and consequently the question of any title being vested in favour of the Respondent No.1 would not arise. Learned Counsel has further submitted that prior to the sale deed half of the property described under No.21423 was inscribed along with other properties in favour of the Appellants herein. Learned Counsel has further submitted that the Reference Court has erroneously drawn the presumption in favour of the Respondent No.1 though the said presumption was rebuttable by the Appellants. Learned Counsel has further submitted that there was evidence on record to substantiate that the land acquired belonged to the Appellants and as such the compensation ought to have been awarded in favour of the Appellants herein. Learned Counsel further submitted that in respect of the acquired portion of the property which is part of a larger property, a suit was filed by the Respondent being Regular Civil Suit No.30 of 1993 before the 4 learned Civil Judge, Junior Division, Canacona which came to be decreed by Judgment and Decree dated 30-10-2002. He further submitted that an appeal preferred by the Appellants against the said Judgment and Decree came to be allowed by the learned District Judge by Judgment and Decree dated 19-10-2004 in Regular Civil Suit No.153 of 2003. Learned Counsel further submitted that in view of the said Judgment and Decree, there can be no doubt that the acquired portion of the property belongs to the Appellants and as such the compensation is to be awarded in favour of the Appellants herein. 4. On the other hand, Shri Sudesh Usgaonkar, learned Counsel appearing for the Respondent No.1 has supported the impugned Judgment. Learned Counsel submitted that the acquired portion of the property which forms part of the larger property registered in the Land Registration Office in favour of the Respondent No.1 and as such, the ownership and possession belongs to the Respondent No.1. Learned Counsel has further taken me through the impugned Judgment as well as the evidence on record and pointed out that there was cogent evidence adduced by the Respondent No.1 to establish that the acquired portion of the property belongs to the Respondent No.1. Learned Counsel further 5 submitted that the Appellants have failed to establish that they have any right to the acquired portion. With regard to the said Civil Suit, learned Counsel fairly conceded that the subject matter of the said suit includes the acquired portion of the property and that the learned District Judge has allowed the appeal in favour of the Appellants but, however, it is pointed out that the said Respondent has already preferred a Second Appeal before this Court and the same has been admitted and an interim Order has been passed therein and is pending for final hearing. Learned Counsel further submitted that the Respondent No.1 is a party to the said suit and the apportionment of compensation which has been awarded in the present acquisition proceedings can be decided after taking into consideration the final adjudication of the dispute in the said Regular Civil Suit No.30 of 1993. He further submitted that the matter can be remanded and the Reference Court can be directed to decide the reference after the Second Appeal preferred by the Respondent is disposed of by this Court. 5. Having heard the learned Counsel and on perusal of the record, I find that there is no dispute that the dispute herein as also the subject matter of the said suit filed by the Appellants being Regular Civil Suit No.30 of 1993 is the same and the dispute is pending adjudication in 6 the Second Appeal before this Court. As such, the above appeal is disposed of by consent by passing the following Order: ORDER 1. The impugned Judgment and Award dated 15-9-2005 is quashed and set aside. 2. The reference in Land Acquisition Case No.295 of 1995 is restored to the file of the learned Additional District Judge, South Goa, Margao. 3. The learned Reference Court is directed to decide the reference afresh after hearing both the parties only after the dispute in Regular Civil Suit No. 30 of 1993 is finally decided by this Court. 4. Parties are directed to appear before the learned Reference Court on 8-8-2011 at 10.00 a.m. and abide by its further directions. 5. The appeal stands disposed of accordingly with no orders as to costs. F. M. REIS, J. RD 7