… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 80 OF 2003 1. Shri Prakash Rama Naik, Major, 2. Smt. Nalini Prakash Naik, Major, Both residing at House No.470, Dhupe, Savoi Verem, Ponda, Goa. .. Appellants. Versus 1. Shri Ashok Shiva Naik, 2. Shri Ankush Shiva Naik, Both major, Residing at Chophad, Savoi Verem, Ponda, Goa. .. Respondents Mrs. A. Agni, Advocate for the appellants. Mr. U. K. Tari, Advocate for the respondents. CORAM :- U. D. SALVI,J. RESERVED ON : 4 th August, 2010. PRONOUNCED ON : 30th A ugust, 2010. JUDGMENT : This second appeal questions the legality of the concurrent findings of the learned CJJD Ponda in Regular Civil Suit No.99/1997/B and the learned IInd Additional District Judge, Panaji in the appeal ie. Regular Civil Appeal … 2 … No.69/2002 preferred from the judgment and decree dt. 29.4.2002 of dismissal passed in the said suit. 2. The appellants instituted the said suit for permanent injunction restraining the respondents/ defendants from entering the suit properties popularly known as Khute Mol bearing survey Nos.220/1 and 220/2 of village Savoi Verem, Taluka Ponda, Goa and for direction to the Talathi to delete the name of late Shiva Rama Naik entered as cultivator of Survey No.220/1 in the revenue records. According to the appellants, the defendants/ respondents are nephews – sons of late brother of the appellant/ plaintiff No.1 named Shiva and the suit properties were acquired by their common ancestor Rama- the father of the plaintiff No.1 and late Shiva; and Rama had developed, cultivated and enjoyed the suit properties along with other properties during his lifetime; and upon the death of Rama on 24/02/1964, the properties held by their common ancestor Rama were partitioned, and the suit properties along with various other properties came to be allotted to the appellant/ plaintiff No.1 as a result of the said partition. Since then, it is the plaintiffs' case that the plaintiff No.1 has been in continuous possession of the said properties, and upon the … 3 … marriage of the plaintiff No.1 with the plaintiff No.2, both the appellants continued to be in possession and enjoyment of the said properties and as a result thereto the name of the plaintiff No.1 was recorded in the revenue record at the time of survey of the village Savoi Verem. 3. It has also been the case of the plaintiffs that thereafter, the plaintiff No.1 started paying rent of Rs.200/- to the landlord Ganapat Vaidya and did not insist upon rent receipts on account of faith and cordial relations amongst them. The appellants further pleaded that they maintained, developed and irrigated the suit properties, and earned income therefrom over a considerable period of time. However, they further pleaded that late Shiva in collusion with Revenue Officials got his name illegally included as cultivator of paddy in Survey No.220/1 admeasuring 2200 square meters despite the fact that he never cultivated the said land and the area of the said plot utilised for cultivating paddy did not exceed 800 square meters in area; and a proceedings for negative declaration seeking deletion of the name of the plaintiff No.1 from the tenant's column in the revenue records pertaining the suit properties, has been initiated by the respondents/ defendants in collusion with the … 4 … landlord's brother and the defendants have illegally trespassed in the suit properties and robbed them of the farm produce on 23/09/1997. 4. The defendants countered the plaintiffs' claim to the possession of the suit properties with the written statement dated 21.11.1997. They claim to be tenants in possession and enjoyment of the suit property through their father Shiva Naik as an agricultural tenant of one Shripad Dattatrey Vaidya. They further contended that the father of the plaintiffs was handicapped person and at no point of time any properties were leased or given to the father of the plaintiffs for development or cultivation and, therefore, there was no question of partitioning of any properties. They dismissed the theory of oral partition as a pure concoction. According to them, the plaintiff No.1 was helping the Surveyors in the survey work conducted in Goa and through his influence with the Surveyors, got his name included in tenant's column in the revenue record concerning the suit properties. The suit properties, they pleaded, belonged to Dr. Shripad D. Vaidya and not to Mr. Ganapat D. Vaidya. 5. Denial of the plaintiffs' case and the specific … 5 … contentions in the written statements generated the following issues : (1) Whether the plaintiffs prove that they are in possession of the suit properties bearing survey no.220/1 and 220/2 of village Savoi Verem ? (2) Whether the plaintiffs prove that the name of Shiva Rama Naik has been wrongly recorded in the cultivators column in survey no.220/1 as said Shiva Rama Naik in collusion with Revenue officials had illegally included his name in the same ? (3) Whether the plaintiffs prove that the defendants in collusion with the brother of landlord are trying to commit trespass into the suit properties and are trying to dispossess the plaintiffs ? (4) Whether the defendants prove that this Court has no jurisdiction to try the present suit as defendants are tenants of the suit property ? (5) Whether the defendants prove that they are the tenants in possession and enjoyment of the suit properties through their father Shiva Naik ? (6) Whether the defendants prove that the suit properties were leased to their late father Shiva Naik for last more than 30 years on payment of fixed yearly rent to the landlord ? Issue No.5 was deleted. … 6 … 6. The plaintiff No.1 examined himself and 3 others. Two of the witnesses examined claimed to be farm labourers and the other is Uncle of the plaintiff No.1. The defendant No.1 examined himself. Besides himself, he examined a local farm labourer DW2 - Mosso Naik, Rent Collector DW3- Vidyadhar Shilkar, Notary DW4 - Timble and DW5 - Dr. Shripad Vaidya. The learned Civil Judge, upon considering the entire evidence and after hearing parties found that both the plaintiffs and defendants had failed to discharge their burden cast on them by virtue of the issues framed in the said suit and dismissed the suit. The learned First Appellate Court framed the point in order to answer the controversy in respect of the possession of the suit properties, and upon reappraisal of the facts and law, found no merit in the appeal. 7. Taking this Court through the provisions of Goa, Daman and Diu Land Revenue Code and Goa, Daman and Diu Agricultural Tenancy Act, learned Advocate Mrs. Agni submitted that the presumption arising out of revenue records namely entries in occupant's column and tenant's column in Form No.I & XIV in respect of the suit properties ought to turn the scales in favour of the plaintiffs unless the presumption stood rebutted. She added that there was … 7 … nothing in the cross-examination of the plaintiffs to show that the evidence concerning the possession of the suit properties was disturbed and not even a suggestion regarding fraud played for entering the name of the plaintiff No.1 in tenant's column figured in the cross-examination of the plaintiffs. After taking through the evidence of the witnesses, learned Advocate Mrs. Agni for the appellants submitted that there was no appreciation of evidence by the First Appellate Court inasmuch as the First Appellate Court did not indicate in its discussion on the evidence that the presumption arising out of the revenue record in favour of the plaintiffs stood rebutted. 8. To complement her submissions, learned Advocate Mrs. Agni for the appellants invited the attention of this Court to the judgments reported in 1990(2)GLT 407- C Damodara Ranum Porobo Loundu Vs. Bhaskar R. Jalmi and two others, AIR 1996 Karnataka 296 – N. Hanmantha Rao Vs. Corporation of the City of Bangalore. 2007(2) Bombay Cases Reporter 164- Shekoji Bhimrao and others Vs. Motiram Maruti Maratha and others, (2009)15 SCC 429- Ramesh Dutt and others Vs. State of Punjab and Others. She laid emphasis on the point of presumption of correctness of entry in the … 8 … record of rights to make submission that such presumption could not have been rebutted by mere affidavit evidence considered by the trial Court, particularly when affidavit was purportedly executed by a constituted attorney of Mr. Ganapat D. Vaidya and the deponent was not examined; and as such, the Courts below ought to have given a finding on the fact of possession of the suit property in favour of the appellants/ plaintiffs. 9. Controversy in the present appeal, according to learned Advocate Agni for the appellants, gives rise to the following substantial questions of law, which are required to be answered in favour of the appellants : (a) Whether the entry of the appellants in the tenant's column in form No.I and XIV, which is a promulgated survey record was indicative of possession and enjoyment of the appellants of the suit properties surveyed under No.220/1 and 220/2 ? (b) Whether the entries in cultivator's column for a few years can given rise to presumption under Section 105 and whether entry in the cultivator's register can rebut the presumption with regard to entry in record of … 9 … right as tenant ? (c) Whether the presumption arising out of entry as aforesaid can be rebutted by filing affidavit and whether the Appellate Court after holding that such a presumption arising out of entry in survey records could be rebutted by production of documentary evidence, could be treated entry as rebutted in absence of any documentary evidence ? 10. Learned Advocate Tari for the respondents submitted that under Section 14 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964, the rights of the tenants are inheritable, and where a tenant dies, the landlord shall be deemed to have continued the tenancy to his heir or heirs on the same terms and conditions on which the said tenant was holding it at the time of his death; and in view of the failure of the appellants/ plaintiffs to prove the partition upon the death of the common ancestor Rama - the original tenant, the tenancy as rightly held, devolved on the heirs of Rama i.e. the plaintiffs and the defendants; therefore, no wrong was committed by the Courts below in dismissing the suit of the appellants for perpetual injunction based on the possession of the suit property. … 10 … 11. Section 2(35) of Goa, Daman and Diu Land Revenue Code, 1968 (hereinafter referred to as the Land Revenue Code) defines 'tenant' as a person, who cultivates or holds land of another person under an agreement, express or implied, on condition of paying rent therefor and includes a person deemed to be a tenant under the Goa, Daman and Diu Agricultural Tenancy Act, 1964. Section 2(24) of the said Code defines 'occupant' as a holder in actual possession of land, other than a tenant or government lessee, and further provides that where a holder in actual possession is a tenant, the land holder shall be deemed to be the occupant. The record reveals that Form No.I & XIV in respect of the suit properties carry name of Ganapat D. Vaidya as a occupant and the appellant No.1 as a tenant. A reference is found made to the corresponding mutation entries by virtue of which the names of the occupant and tenants were entered accordingly in Form No.I & XIV. However, extract of the said mutation entries have not been adduced in evidence. Name of Shiva Rama Naik figures as a cultivator in the entry in the year 1978-79 in Form No.I and XIV of survey no.220/1. 12. Section 105 of the Land Revenue Code makes a … 11 … provision for presumption of correctness of entries in record of rights and register of mutations in the following words : An entry in the record of rights, and certified entry in the register of mutation shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therein. This clear provision of law has time and again been voiced in the judgments delivered by this Court in Shri Damodara Ranum Porobo Loundu's case and Shekoji Bhimrao's case (supra) cited on behalf of the appellants. It can hardly be disputed, it being settled position of law, that entry in revenue record of rights merely is an evidence of possession vide Ramsh Dutt's case (supra). 13. Perusal of the impugned judgments, both of the trial Court and First Appellate Court, reveal that both the Courts did take into account the said provisions of law and on appreciation of the evidence could discover that the presumptions arising out of the revenue records stood rebutted. The very source of possession of the suit properties being the oral partition as contended by the appellants / plaintiffs was found to have been not proved by both the … 12 … Courts below. Mainly on this premise, the Courts below held that the appellants had failed to prove their possession of the suit property and consequently, declined to grant the relief of injunction to the appellants/ plaintiffs. No doubt, Section 105 of the Land Revenue Code allows the raising of presumption in favour of the person whose name appears in the revenue record as a tenant, however, such presumption is rebuttable. The impugned judgments reveal that such presumption stood rebutted with evidence on record. 14. The Hon'ble Supreme Court in Kondiba Dagadu Kadam's case (AIR 1999 SC 2213- Kondiba Dagadu Kadam Vs. Sawitribai Sopan Gujar and Ors.) observed: “If the question of law framed as substantial question stands already decided by larger bench of the High Court concerned or by the Privy Council or Federal Court or by the Supreme Court, mere wrong application to facts of the case would not be termed to be a substantial question of law...... The mere appreciation of the facts, the documentary evidence or the missing of the entries and the contents of the documents, cannot be held to be raising a … 13 … substantial questions of law..... Whether the First Appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in Second Appeal.” Looking to the nature of the questions framed and the settled provision of law regarding presumptions arising out of the revenue records, it is difficult to assert, particularly in light of the aforesaid observations in Kondiba Dagdu Kadam's case(supra) that the questions framed are substantial questions of law. 15. As observed herein above, the First Appellate Court upon considering the impact of Section 105 of the Land Revenue Code in respect of the revenue record produced in evidence, arrived at the finding assailed. No perversity is seen in the approach of the First Appellate Court in arriving at the findings compatible with the findings of the trial Court. 16. The second appeal, therefore, stands dismissed with costs. … 14 … U. D. SALVI, J. SMA