1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 247 OF 2005 Shri Ram Bamto Gaonkar, resident of Gokuldowaddo, Gokuldem, P. O. Barcem, Quepem-Goa. ... Appellant versus 1. Shri Devu Jalmi, resident of Gokuldowaddo Gokuldem, P. O. Bardecm, Queopem-Goa. 2. Vaddo Bukdo Gaonkar, resident of Gokuldowaddo Gokuldem, P. O. Bardecm, Quepem-Goa. ... Respondents Shri D. Pangam, Advocate for the Appellant. None for the Respondents. CORAM : F. M. REIS, J. DATE : 7TH APRIL, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 18-7-2005 passed by the learned Additional District Judge, South Goa, 2 Margao in Land Acquisition Case No. 49 of 2000. 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act), the Government acquired land for construction of a culvert and approach road to Gokulvado in Village Panchayat Barcem in Quepem Taluka. An area of 160 sq. meters forming part of survey No.13/1(part) of village Gokuldem, Quepem Taluka was sought to be acquired. In view of the dispute between the appellant and the respondents herein, the matter was referred under Section 30 of the said Act to the District Judge for deciding the dispute. 3. By Judgment and Award dated 18-7-2005, the learned Reference Court directed that the amount of compensation awarded is to be paid to Party No.1 who is respondent No.1 herein. 4. Being aggrieved by the said Judgment and Award, the appellant/Party No.2 before the learned Reference Court preferred the present appeal. 3 5. Shri D. Pangam, learned Counsel appearing for the appellant has assailed the impugned Judgment and pointed out that the learned Reference Court has misdirected in holding that the amount of compensation is to be awarded to the respondent No.1. Learned Counsel has further submitted that there is no evidence on record produced by the appellant to the effect that the land acquired was in possession of the respondent No.1 and as such, the compensation ought to be awarded in favour of the appellant. Learned Counsel further submitted that the respondent No.1 failed to adduce any evidence to substantiate his claim that he was the owner in possession of the land acquired and as such the learned Reference Court erroneously held that the compensation is to be awarded to the respondent No.1. Learned Counsel further submitted that the acquired portion of the land was forming part of the paddy field which was cultivated by the appellant and prior to that by his ancestors and the respondent No.1 has no right at all to claim compensation as awarded by the Land Acquisition Officer. Learned Counsel has taken me through the evidence on record and pointed out that there are suggestions put by the respondent No.1 to the appellant to the effect that the property was in their possession for some time as they were rendering services to 4 the temple of the respondent No.1. Learned Counsel as such pointed out that the impugned Judgment deserves to be quashed and set aside. The respondents though served, chose to remain absent. 6. Having heard the learned Counsel and on perusal of the record, I find that the attorney of the respondent No.1 who has deposed on their behalf, has admitted that prior to 10 years, the father of the appellant was enjoying the suit paddy field but, however, it was stated that he was rendering the services during the said period to the temple. The said attorney has further stated that he has been enjoying the suit paddy field for the last few years and rendering services to the said temple. On perusal of the evidence, though he has claimed that he was the owner in possession of the land acquired but he has admitted in the cross-examination that the father of the appellant was at some point of time prior to 10 years rendering services to the temple and also cultivating the suit paddy field. The said witnesses have further stated that for the last more than 15 years he is rendering the services to the said temple. Respondent No.2 has failed to put up any claim to any compensation awarded by the Land Acquisition Officer. On perusal of the record, I find that the appellant and the respondent No.1 have not 5 produced any documents of title to substantiate their claim of ownership in the land acquired. In such circumstances, it is difficult to ascertain as to who was in actual possession of the acquired portion of the land and who is entitled to remain in such possession as between the appellant and the respondent No.1 herein. On perusal of the evidence on record, it suggests that the appellant is claiming to be in possession of the acquired portion of the land. The appellant has nevertheless claimed that he was in possession of the land for rendering services to the temple on account of the income received from the acquired portion. In such circumstances, I find that the learned Reference Court was not justified in awarding the total compensation in favour of the respondent No.1. There is no dispute that the survey records stand in the name of the appellant as well as the respondent No.1 herein. In such circumstances, I find that in the interest of justice, it would be appropriate considering that there is a link between the enjoyment of the property and the services rendered to the temple, that the compensation awarded is to be apportioned in favour of the appellant and the respondent No.1 in the ratio of 50:50. I accordingly find that the appellant will be entitled to 50% of the compensation and the remaining 50% is to be awarded to the respondent No.1. It is clarified 6 that the findings are confined to the acquired portion of the land only and the same have been arrived at on the basis of the evidence on record. Such findings would not come in the way of the rival claims in respect of the remaining property which would have to be decided on its own merits by an appropriate forum in case such occasion arises. 6. In view of the above, I find that the impugned Judgment deserves to be quashed and set aside and the amount of compensation along with interest is to be apportioned to the appellant and the respondent No.1 to the extent as stated above. 7. In view of the above, I pass the following order:- ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Award dated 18-7-2005 is quashed and set aside. 3. The amount of compensation with accrued interest is apportioned in favour of the appellant to the extent of one half and to respondent No.1 with the remaining half. 7 4. The appeal is disposed of accordingly with no order as to costs. F. M. REIS, J. RD