1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 233 OF 2005 Shri Mono Paik Velip aged about 50 years, married, landlord and his wife Smt. Mhalu Mono Velip major of age, married, housewife Both residents of H.No.128, Sirlim, Barcem, Quepem-Goa. ... Appellants versus 1. The Chief Secretary, Government of Goa, Secretariat, Panaji, Goa. 2. The Conservator of Forest, Office of the Conservator of Forest, Government of Goa, Panaji, Goa. ... Respondents Shri J. E. Coelho Pereira, Senior Advocate with Shri V. Korgaonkar, Advocate for the Appellants. Shri G. Shirodkar, Government Advocate for the Respondents. CORAM : F. M. REIS, J. DATE : 25TH FEBRUARY, 2011. 2 ORAL JUDGMENT The above appeal challenges the Judgment and Decree dated 7-5-2005 passed by the learned Additional District Judge, South Goa, Margao in Civil Suit No.110 of 2004. 2. A suit came to be filed by the appellants on the ground that they are the lawful co-owners in peaceful possession and enjoyment of the property known as “Boroddo-Poiquim” situated at Barcem village, Quepem Taluka and enrolled in the Land Registration Office under No.2298 and having matriz No.142 and bearing survey Nos.62/2 and 65/0 of Barcem village. It is further their case that as per the Land Registration document, the property is bounded towards the east by the property Boroddo Poiguim of Cuiro Cudcar, towards the west by the property Boroddo Poiguim of Mono Vagulo, towards the north by the top of the hill of Paik Velip and towards the south by the property Boroddo Poiguim of Mono Vagulo. It is further their case that as per the matriz records, the suit property is bounded on the east, west and south by rivulet and towards the north by the hill. It is further their contention that 25 mango trees, about 20 jack fruit trees and about 50 coconut trees besides other forest trees, have been planted by the ancestors of the 3 appellants. Consequently, it is their case that they are in enjoyment of the suit property for the past 40 years and that they have acquired the right to the suit property upon the death of their father and father-in-law Paik Mono Velip and Lokum Paik Velip. According to them, in the matriz record the suit property is registered in the name of Curio Paik Navorcar of Barcem who is the great great grand father of the appellants. It is further their case that they were forced to file the suit when at the time of the Revenue Cadastral survey the northern portion of the suit property admeasuring 68,540 sq. meters has been wrongly shown recorded in the name of the Government of Goa, Forest Department as occupant in survey No.65/0 of Barcem village. It is further their case that there are cashew trees in the suit portion of the property which are in their possession and consequently filed a suit for a permanent injunction which suit was withdrawn and after serving a notice to the respondents they filed Civil Suit No. 62 of 1987 against the respondents for relief of permanent injunction. As survey has been promulgated and as no declaration of ownership was asked the present suit has been filed by the appellants. The respondents filed the written statement disputing the claim of the Appellants and claimed that they have no right therein. It is further their case that the property bearing survey No.65/0 belongs to the 4 Forest Department and corresponds to compartment No.1, Barcem Forest which has raised cashew plantation in the suit property and are also auctioning the cashew plantation. It is their case that the Forest Department are doing seasonal work of the boundary clearance in the part of the suit property and that since 1974-75 onwards the remaining portion of the property has been covered with forest trees. 3. The learned Judge framed the issues and recorded the evidence and came to the conclusion that the appellants have failed to prove that the suit property along with cashew plantation belongs to them. The learned Judge further held that the suit was bad for non joinder of necessary parties. 4. Shri J. E. Coelho Pereira, the learned Senior Counsel for the appellants has assailed the impugned Judgment and pointed out that the learned Judge has mis-appreciated the evidence on record. The learned Senior Counsel submitted that the property was duly identified which has not been considered by the learned Judge whilst passing the impugned Judgment. Learned Senior Counsel further pointed out that the property has been registered and the title and ownership vests on the 5 Appellants. Learned Senior Counsel further submitted that the suit has been filed by the appellants who are the co-owners and consequently the learned Judge has committed an error in dismissing the suit. Learned Senior Counsel took me through the evidence on record and pointed out that the appellants have brought cogent evidence to prove their case. He accordingly submitted that the impugned Judgment and Decree deserves to be quashed and set aside. 5. Shri G. Shirodkar, learned Government Advocate for the Respondents has supported the impugned Judgment. Learned Government Advocate took me through the evidence on record and submitted that the suit property has not been identified at all at loco. Learned Government Advocate further submitted that there is no evidence on record to ascertain which is the part as claimed by Appellants that corresponds to the property registered in the Land Registration Office under No.2298. Learned Government Advocate further submitted that the appellants have failed to examine any expert to identify the boundaries vis a vis the records in the land registration document to come to the conclusion that the suit property belonged to the Appellants. Learned Government Advocate accordingly submitted 6 that the appeal deserves to be rejected. 6. After hearing the learned Counsel at length and on perusing the evidence on record adduced by the parties, I find that whilst passing the impugned Judgment the learned Judge has come to the conclusion that the appellants have failed to identify the suit property claimed by them in the plaint. The appellants have claimed that the property of the appellants is registered in the Land Registration Office under No.2298. No doubt, once the property is registered in view of Article 953 of the Portuguese Civil Code the ownership vests in the person in whose name the property stands registered. For the purpose of claiming such presumption, it is necessary that the party should identify the property at loco vis a vis the boundaries shown in the Land Registration Office. No doubt, the said presumption is rebuttable but, however, before such onus shifts on the other side it is imperative that the party should identify the property in the survey record vis a vis the boundaries in the land records to establish as to whether the property as claimed by them is in their ownership and possession. In the present case, the appellants have failed to adduce any evidence to correlate the boundaries. The learned Judge after minutely appreciating the evidence on record has come to the 7 conclusion that the appellants have failed to identify the property as claimed by them. The learned Senior Counsel for the appellants was unable to point out any piece of evidence on record to establish that such identification has been established by the appellants by any cogent and admissible evidence. Admittedly, the appellants have failed to examine any expert who could assist the Court to identify the property which forms part and parcel of the property claimed by the appellants which is registered in the Land Registration Office. The learned Judge no doubt has erroneously considered that the appellants are claiming exclusive ownership of the suit property but, however, on perusal of the plaint it is evident that the appellants were only claiming to be co-owners of the suit property and not seeking any declaration of exclusive ownership therein. 7. On perusal of the evidence on record and specially the pleadings of the appellants, the area claimed by the appellants is admeasuring 68,540 sq. meters which according to them is wrongly surveyed in the name of the Government and is surveyed under No.65/0. The appellants have not disclosed the total area of the property as owned by them. The appellants have failed to establish that the portion of the property claimed by them as registered under No.2298 corresponds to 8 the suit portion or corresponds to survey Nos.62/2 and 65/0 of Barcem village. There is nothing on record to show whether the boundaries of the suit property corresponds to the boundaries as shown in the Land Registration documents. Having failed to identify the suit property claimed by the appellants, the learned Judge was justified to come to the conclusion that the appellants have failed to establish that they are the owners in possession of the suit portion claimed by them. The contention of the learned Senior Counsel that the property claimed by the appellants has been duly identified cannot be accepted. No evidence has been adduced to substantiate such identity of the suit property. After minutely examining the evidence on record and considering the submissions of both the learned Counsel, I find there is no infirmity committed by the learned Judge whilst passing the impugned Judgment. 8. There is no merit in this appeal and accordingly the appeal stands dismissed with no orders as to costs. F. M. REIS, J. RD