1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 109 OF 2001 Communidade of Pirla, through its Attorney Dottu alias Dayanand Fall Dessai, r/o. Pirla, Taluka Quepem. …… Appellant. V/s 1. Government of Goa, Daman & Diu, through its Administration the Ltd, Governor Goa, Daman and Diu, at Panaji. 2. Dy. Conservator of Forests, Government of Goa, Daman & Diu, at Panaji. 3. Raghoba P.S. Dessai, major, r/o. House No.16, Biusa, Cuncolim, Salcete, Goa. …… Respondents. Mr. A. F. Diniz, Advocate for the appellant. Mr. S. Vahidulla, Addl.Government Advocate for respondents No.1 & 2. CORAM : D.G. KARNIK, J. DATE : 24TH SEPTEMBER, 2010 ORAL JUDGMENT : 1. This appeal by an unsuccessful plaintiff is directed 2 against the Judgment and Order dated 23.2.2001 delivered by the Addl. District Judge, South Goa, Margao. 2. The appellant Communidade of Pirla, through its Attorney, filed a suit against the respondents Government of Goa, Dy. Conservator of Forests and a private party who was claiming to be the licensee of the respondents No.1 and 2, in respect of two properties mentioned below. The first property in the suit is a property known as “Chiptinimmola” which is described in paragraph 1(a) of the plaint and the second property known as “Chandelacho Dongor” is described in paragraph 1(b) of the plaint. In the plaint, it is alleged that the suit lands belong to the Communidade since long and the Communidade is the owner thereof. It is further alleged that the respondents No.1 and 2 i.e. the State of Goa and the Forest Department, claiming to be the owners of the suit lands, granted a mining lease of the suit properties to the respondent No.3 with a permission to cut some of the trees standing thereon for the purpose of mining operation. Aggrieved by the activities of the respondent No.3 commenced in pursuance of the mining lease, the appellant filed the suit claiming possession of the suit properties and also seeking an injunction restraining the respondents 3 from felling or cutting the trees standing thereon. The appellant further prayed for a declaration that the name of the Forest Department appearing in the records of survey No.24/1 be deleted and the respondents be ordered to enter the name of the appellant in the records. The respondents No.1 and 2 filed a joint written statement, contesting the claim of the appellant. They denied the title of the appellant to the suit properties, and contended that the suit properties were surveyed under survey nos. 10 and 11 of Sulcorna Village and the suit properties did not form a part of the Village Pirla, as alleged. They further contended that the appellant i.e. Communidade of Pirla was not the owner of the suit lands and the suit lands belonged to the Government which had every right to grant the mining lease. Respondent no.3 licensee also filed his written statement and contested the suit. The dispute is mainly between the appellant which claims to be the owner and the respondent Nos.1 and 2 who deny the title of the appellant and themselves claim to be the owners of the suit lands. Respondent No.3 only claims as a licensee under respondent No.1. 3. The appellant examined Dayanand Phal Dessai (PW.1), the attorney of the Communidade, Vicent Correia Afonso (PW.2), a 4 Civil Engineer, and Dayanand Faldessai (PW.3), a Clerk in the Office of Communidade of Pirla. They have also produced certain documents including Matriz and Plans. Respondents No.1 and 2 examined Ragunath B. Dessai (DW.1), Asst. Conservator of Forests and Purushottam Dalvi (DW.2), a Surveyor holding Diploma in Civil Engineering. After carefully considering the evidence adduced by the parties, the Trial Court came to the conclusion that the appellant had failed to prove that they were the owners of the suit properties and consequently dismissed the suit. 4. I have heard the learned Counsel for the appellant and the learned Counsel for respondents No.1 and 2. None appeared for the respondent No. 3. After going through the pleadings and the evidence adduced by the parties and on hearing the learned Counsel for the parties the only point that arises for my determination is whether the appellant proves that it is the owner of the suit lands ? 5. In the description of the properties given in paragraphs 1 (a) and 1(b) of the plaint, the appellant has not mentioned the survey numbers of the suit lands. But the two suit properties are described 5 only by their names and boundaries. Area or the size of the properties is also not mentioned anywhere in the plaint. In paragraph 2 of the plaint, it is asserted that the suit properties are situated in the record of survey No.24 of Village Pirla, but, there is no mention when the properties were surveyed, what is the total area of the survey No.24, whether survey No.24 comprises of only the suit lands or whether it comprises of some other lands i.e. to say whether the suit lands constitute the whole or only a part of survey No.24. Respondents No.1 and 2 have categorically denied that the suit lands form part of survey No.24 of Village Pirla. Respondents No.1 and 2 have contended that suit lands form part of survey Nos. 10 and 11 of Sulcorna Village. In the written statement, the respondents specifically denied the title of the appellant. In the circumstances, the burden of proving that the appellant is owner of the suit lands lies on the appellant. In my view, the appellant has not discharged the burden and has not proved that it is the owner of the suit lands for the reasons indicated below. 6. Dayanand Dessai (PW.1) is the attorney of Communidade of Pirla. In the Examination-in-chief, he asserted that the suit properties were surveyed under no.24 of Village Pirla. He further 6 asserted that the mining lease granted to the respondent No.3 falls partly in survey No.24/1 of Village Pirla and partly in Village Datorlem. However at the very opening of the cross examination, he stated that he did not know whether at the time of filing of the suit the survey was carried out or not. Therefore, his contention that the suit properties form part of property surveyed under no.24 is belied by his own admission that he did not known whether at the time of filing of the suit the survey was carried out or not. When asked about the total area of survey No.24, he stated that he did not know the total area of survey No.24. He then admitted that he had not seen survey plan in respect of no.24. He then stated that the properties “Chiptinimmola” and “Chandelacho Dongor” were separated by a nallah, which was running on the southern side of the property “Chiptinimmola”. When asked about the area of the suit lands, he stated that he did not know the area of either of the suit lands. When asked about the matriz certificate, he stated that as per the matriz certificate the boundaries of the two properties were not touching each other. When asked about the boundaries he stated that he cannot state the boundaries and further stated that there were no boundary marks. In short, PW.1 failed to identify the suit properties and failed to substantiate the case that the 7 suit properties form part of survey no.24 of Village Pirla. 7. Vicent Correia Afonso (PW.2) stated that he was a Civil Engineer and possessed a degree in Engineering. He then stated that he was habitually appointed as the court commissioner in respect of boundary disputes by the Court. He stated that 12 cases were pending in the Civil Court at Margao in which he was appointed as a commissioner from the year 1969 onwards. In the examination-in- chief, he stated that he had visited the suit lands and they were having Matriz Nos. 43 and 152 respectively. In the cross examination, he admitted that the plan produced by PW.1 at exhibit PW.1/F did not show the location of the suit lands. He further admitted that from the plan at Exhibit PW.1/F one cannot demarcate the suit lands and that the property “Chiptinimmola” did not at all figure in the plan produced at Exhibit PW.1/F. When asked as to how boundaries of the suit lands were fixed, he stated that he fixed the boundaries of the suit lands on the basis of the matriz document. He admitted that the matriz document did not give the area of the properties. He then was forced to admit that he did not know the total area of survey No.24 and even from the plan produced by him at Exhibit PW.2/A, he was not in a 8 position to state what was the area of survey No.24. He further admitted that the survey plan which was given to him (which perhaps was used by him for the purpose of preparation of his survey plan) did not mention survey numbers. In the cross examination, he further stated that the property “Chandelacho Dongor” was a vast property which went right down upto Village Corla and the property “Chiptinimmola” was a small part within that property. This admission meant that the first suit property namely “Chiptinimmola” was a part of the second property, namely “Chandelacho Dongor”. But then he again changed his version and stated that between the two suit properties there were properties of private persons, and further stated that he would not be able to tell how many private properties were there in between the two properties. He admitted that he had not verified the boundary stones of survey No.24 and he did not know the nature of the entire survey No.24 since it was a vast land containing some lands with trees and some waste land. In my view, the evidence of PW.2 is of little assistance to the appellant to show that the appellants were owners of the suit lands. 8. The contention that the appellants were owners of the suit 9 lands is based upon a contention that the suit lands form part of survey no.24. However, from the evidence of PW.2 the appellant was unable to prove that the suit lands were part of survey No.24. It was not even proved that the survey No.24 belongs to the appellant. PW.2 has stated that the entire survey no.24 is a very vast land and he has not even seen the entire survey No.24. He has not been able to identify on which part of survey No.24 the suit lands are located and what is the basis on which it could be held that the suit lands were part of survey No. 24. 9. Dayanand Faldessai (PW.3) is a clerk working with the appellant since the year 1999. Prior to that he was working with another Communidade. In his examination-in-chief, he has stated that Tombo I Book and Tombo II Book did not exist in the Village. He further stated that Tombacao was not carried out in respect of the Communidade property. Article 549 of the Code of Communidades (Legislative Diploma No.2070) makes a provision regarding maintenance of Tombo 1 book. Article 551 makes provision regarding maintenance of Tombo 2 book . Article 549 states that Tombo 1 shall contain inscription of the rural, urban and barren lands of the Communidade, their measurements and land-marks and other details 10 such as maintenance and registration of deeds of identification, description and demarcation of the lands. Article 551 provides that Tombo 2 shall be used for the description of tributary lands of the Communidade or those subject to any definite contribution. A Communidade is thus required to maintain records, inter alia, in the form of Tombo 1 and Tombo 2. Records in Tombo 1 book and Tombo 2 book would give description of lands belonging to the Communidade. PW.3 was examined only for the purpose of showing that Tombo 1 and Tombo 2 records were not available and no adverse inference could be drawn against the appellant for non-production of Tombo 1 and Tombo 2 records. Even if the appellant is excused from production of Tombo 1 and Tombo 2 records which ordinarily would have contained description of the properties of the Communidade and that would have shown whether the suit lands were shown as the appellant's properties in the Tombo Books, and although no adverse inference may be drawn for non-production of Tombo Books, the appellant has failed to prove by producing cogent evidence on record that the appellant was the owner of the suit lands. 10. Learned Counsel for the appellant invited my attention to 11 the matriz records and submitted that the claim of title of the appellant was supported by matriz records. An English translation of a Portuguese document of decree No.170 was tendered by the Counsel for the appellant for the purpose of showing the meaning and importance of matriz record. Article 34 of the said translation shows that matriz is a record of revenue of properties contained in a book in which urban and agricultural properties of each Taluka are inscribed and in which entries are made regarding the complete registration of the properties. Article 35 says that the enrolment for revenue shall be done as per Form No.7 annexed to the regulation and shall contain the particulars mentioned therein. The particulars which are to be mentioned in the matriz are also mentioned in Article 35. One thing that is clear from Articles 34 and 35 is that the matriz is not a record of title or record of documents of title, but it appears to be a revenue record. It is settled principle of law that revenue records are maintained for the fiscal purposes and the entries in the revenue record do not confer or take away any title. 11. In Fabrica da Igreja de N.S. De Milagres vs. Union of India and ors., 1995 (1) Bom. C.R. 588, this Court had an occasion to 12 consider the value to be attached to the matriz records. Dr. E. De Silva, J. a learned Judge well-versed in the Portuguese law deciding the case has held that the matriz document is neither a instrument of title nor a source of possession. In M/s. Deeksha Holding Ltd. vs. Smt. Sita Rama Naik Desai and others, 1998 (2) Goa L.T. 443, R..M.S. Khandeparkar, J. again another Judge well-versed in the law applicable in the State of Goa in paragraph 21 of the decision has specifically rejected the contention that the matriz records have a presumptive value in terms of Section 107 of the Land Revenue Code. This Court has consistently taken a view that matriz records have no presumptive value as far as title to the property is concerned. Therefore, the matriz document to which my attention was drawn is of no assistance to the appellant. 12. Learned Counsel for the appellant then invited my attention to a copy of the licence (in Portuguese) dated 16.3.1943 at Exhibit PW.1/D and its English translation produced at Exhibit PW.1/H. In my view, the document at Exhibit PW.1/D is not admissible in evidence. Perusal of the record of the suit shows that Exhibit PW.1/D is only a copy. Mr. R.P. Kamat Haldonkar, in his 13 capacity as a notary public, State of Goa, has certified it to be a true copy. The original licence was not produced. The presumption as to the 30 years old document applies to an original document coming from proper custody and does not apply to a copy of a document. PW.1 in his deposition simply tendered the copy and deposed: “I am producing licence (sic copy) dated 16.3.43 taken on record and marked as Exh.PW1/D.” He then stated that this licence was in respect of assessment of trees to be cut and pertained to various properties including the properties “Chiptinimmola” and “Chandelacho Dongor”. He did not say anything about who executed the document, and where the original document was. He did not say that the appellant was in possession of the original document and nor did he say who had made the copy from the original. Learned Counsel for the appellant, however, relying upon a decision of the Supreme Court in Oriental Insurance company Limited vs. Premlata Shukla and ors., 2007 (13) SCC 476 submitted that since the document was marked as exhibit, it is not open for this Court to hold that the document is not proved. That was a case arising out of a motor accident. First Information Report (FIR) was produced and was relied upon by the parties. It was exhibited by the Tribunal. The objection to the admissibility of the 14 FIR appears to have been raised for the first time in the Supreme Court. In para 14 of its reported decision the Supreme Court observed that once a part of it was relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document having been proved or not. In that case, it appears that both the parties had relied upon a part of the FIR, but one of the parties was contending before the Supreme Court that part of the FIR was not admissible as it was not proved. It was in this context that the Supreme Court rejected the objection as to the admissibility and held that the objection to the document must be raised before the document was exhibited. It cannot be said that the decision lays down a general principle that once a document was exhibited in the evidence, the question regarding proof of the document cannot be raised in appeal at all. If a trial Court wrongly admits a document which is irrelevant or not admissible in evidence and/or not proved and the said fact is brought to the notice of the appellate court, and a ground is raised regarding its admissibility, the appellate court is bound to consider the objection and decide it. I am, therefore, of the view that the document at Exhibit PW.1/D and its English translation at Exhibit PW.1/H is not 15 admissible in evidence. 13. Assuming, however, that the document is admissible in evidence, I would consider the document at Exhibit PW.1/H and its effect. PW.1/H appears to be a deed of licence, purported to have been executed by Jose Maria Rodrigues, Secretary of the Administration, Interim, and seen by Mr. A. Gomes, the Administrator of Forests, in favour of Sadassiva Madu Folo Dessai in respect of certain properties. The property No.3 therein is stated to be “Chiptinimmola” and the property No.6 is stated to be “Chandelacho Dongor”. The Lessor is the Secretary of Administration (perhaps incharge of Forest). That document does not prove that the appellant was the owner of the suit lands, because if the appellant was the owner, it would be the appellant who would have given the land on lease and not the Secretary of Administration. The document exhibit PW1/D does not prove title of the appellant to the suit lands, nor does it help the appellant. 14. For these reasons, I am of the view that the appellant has not proved its title to the suit lands. Consequently, the trial Court has 16 rightly dismissed the suit of the appellant. There is no merit in the appeal which is hereby dismissed, but without any order as to costs. D.G. KARNIK, J. ssm.