1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.111 OF 2004 Shri Dula Shiva Ghadi (since deceased) through legal representatives: (1) Shri Bhagwant D. Ghadi, (2) Smt. Bhagirathi D. Ghadi, (3) Shri Dasharath D. Ghadi, All residents of Kansarpal, P.O. Assonora, Bardez-Goa. …. Appellants V/s Gomantak D.B.S. Saunstan, Kansarpal, P.O. Assonora, Goa. …. Respondent Mr. D. Pangam, Advocate for the Appellants. Mr. S.D. Lotlikar, Senior Advocate with Mr. S.R. Rivonkar, Advocate for the Respondent. CORAM : F.M. REIS, J. DATE : 7th JANUARY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 27/01/2004, passed by the learned Additional District Judge in Land Acquisition Case No.147/1990. 2. Pursuant to a notification issued under Section 4 of the Land Acquisition Act, herein after referred to as “the said Act”, the Government acquired the land bearing survey no.827/2 (part) having an area of 7,712 square metres for the construction of the 2 Left Bank Main Canal of Tillari Irrigation Project at Latambarcem and awarded compensation of Rs.77,723.90. In view of the rival claim put forward by the parties to the compensation awarded in the award under Section 11 of the said Act, the dispute was referred to the Reference Court under Section 30 of the said Act. By the judgment and award dated 27/01/2004, the learned Reference Court directed that the compensation awarded be apportioned in favour of the respondents. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 3. Shri D. Pangam, the learned Counsel appearing for the appellants has assailed the impugned judgment and pointed out that the Reference Court has totally misdirected itself in holding that the amount of compensation is to be apportioned in favour of the respondent. The learned Counsel further pointed out that the Reference Court has failed to appreciate the evidence adduced by the appellants and, as such, came to an erroneous conclusion that the amount of compensation is to be apportioned in favour of the respondent. Learned Counsel further pointed out that the presumption under Section 105 of the Land Revenue Code would not arise in the present case as the survey records have not been promulgated. The learned Counsel further submitted that the 3 judgment passed by the learned Judicial Commissioner's Court dated 31/12/1980 is not in any way assisting the case of the respondents as the same is not binding on the appellants. The learned Counsel further submitted that there is no evidence on record adduced by the respondents to establish that the property which is the subject matter of the present acquisition is part and parcel of the property “Molli” as claimed by the respondents. The learned Counsel submitted that the land acquired was in possession of the appellants and, as such, the compensation ought to have been awarded in favour of the appellants. The learned Counsel further pointed out that there is no discussion by the Reference Court with regard to the material adduced by the parties in the proceedings and, as such, the impugned judgment passed by the Reference Court stands vitiated and deserves to be quashed and set aside. 4. On the other hand, Shri S.D. Lotlikar, the learned Senior Counsel appearing for the respondents has supported the impugned judgment. He has pointed out that the Reference Court has rightly scruitinised the evidence on record and pointed out that at Exhibit AW1/C there is an order passed by the Deputy Collector to the effect that the land acquired is to be mutated in the name of the respondents herein. He further submitted that once the said order 4 has not been challenged by the appellants the same is binding on them and, consequently, the presumption under Section 105 of the Land Revenue Code is available in favour of the respondents. The learned Senior Counsel further submitted that in view of the judgment passed by the learned Judicial Commissioner there can be no dispute that the respondents have a right to the property known as “Molli” and, as such, the question of the appellants now disputing the right of the property would not arise. The learned Senior Counsel has taken me through the impugned judgment and pointed out that the impugned judgment does not suffer from any infirmity and the appeal deserves to be rejected. 5. Upon hearing the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION : Whether the Reference Court was justified to come to the conclusion that the property surveyed under no.827/2 (part) was part and parcel of the property belonging to the respondents. 6. The claim of the appellants in their written statement before the Reference Court is that the property surveyed under no.827/1, 5 827/2 and 827/3 of village Latambarcem of Bicholim Taluka forms part of the property known as “Pisteavoril Bhumi” or “Pisteachea Boroda Voril Bhumi” and possessed by the appellants being the heirs and successors of late Babli Narayan Ghadi. The appellants in First Appeal No.110/2004 wherein the subject matter of the land acquired was 827/1 have also put forward their claim on the same basis. While disposing of First Appeal No.110/2004, this Court has, inter alia, come to the conclusion that on the basis of material on record that the property surveyed under no.827/1, 827/2 & 827/3 admeasures an area of 63,000 square metres while the property granted to their ancestors of the Appellant admeasures only 9,200 square metres as per the land registration document. This Court, as such, held that the land acquired was belonging to the respondents and directed that the compensation be awarded in favour of the respondents therein. 7. The claim of the appellants herein is on the similar basis as that claimed by the appellants in First Appeal No.110/2004 wherein the respondents herein are also parties. For the reasons stated in the said judgment passed in First Appeal No.110/2004, I find that the respondents are entitled to the compensation awarded in the present reference proceedings. The appellants have failed to 6 establish that the land acquired forms part and parcel of the property claimed by the m. The Reference Court has rightly appreciated the evidence on record and has come to the correct conclusion that the amount of compensation awarded be apportioned in favour of the respondents. 8. In view of the above, I find no merit in the above appeal and, as such, the above appeal stands disposed of. F.M. REIS, J. NH/-