1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 113 OF 2005 1. Antonio Lucio Mario Rodrigues, (deceased) represented by legal representative Mr. Jose Maurilio Druston Rodrigues, aged 33 years, 675/2, Xiro, Carmona, Salcete, Goa. 2. Antonio Jose Rodrigues, (deceased), represented by legal representatives: (i) Rosa Brigida Rodrigues, major of age. (ii) Gordan Francis Rodrigues, major of age, (iii) Vineeta Singh Rodrigues, major of age, all residents of 2, Bhairavi, Uttam Society, St. Anthony Road, Chembur, Mumbai – 040 071. ... Appellants versus State of Goa, represented by Chief Secretary, Government of Goa, Secretariat, Panjim, Goa. ... Respondent Shri C. Mascarenhas, Advocate for the Appellants. Shri G. Shirodkar, Government Advocate for the Respondent. 2 CORAM : F. M. REIS, J. DATE : 10TH JUNE, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Decree passed by the learned Additional District Judge, South Goa, Margao in Civil Suit No. 152 of 2004 whereby the suit filed by the Appellants came to be partly decreed. 2. The claim of the Appellants is to a salt pan which did not bear any survey number and as shown in the plan at Exh. 47 came to be rejected. 3. Shri C. Mascarenhas, learned Counsel appearing for the Appellants has assailed the impugned Judgment and pointed out that the learned Judge has totally misconstrued the sale deed at Exh.32 whereby the Appellants had purchased from their aunt a portion of the property surveyed under No.35 along with the disputed portion consisting of a paddy field, a coconut grove and a salt pan. The learned Counsel has taken me through the Judgment and pointed out that the learned Judge 3 has totally misconstrued the sale deed and has come to an erroneous conclusion to defeat the claim of the Appellants. Learned Counsel further pointed out that the suit property is registered in the Land Registration Office under No.24470 which is at Exh.51 which clearly discloses that the suit salt pan is situated in village Carmona, and belongs to the Appellants. Learned Counsel has pointed out that the Appellants have produced the survey plan which discloses that the property of the Appellants as claimed by them is bounded towards the northern, eastern and western side of the property of the Communidade of Carmona. Learned Counsel has further submitted that the learned Judge has mis-appreciated the evidence on record and has come to an erroneous conclusion that the salt pan does not belong to the Appellants. Learned Counsel as such submitted that the impugned Judgment deserves to be modified and the suit deserves to be decreed. 4. Shri G. Shirodkar, learned Government Advocate appearing for the Respondent has supported the impugned Judgment. Learned Government Advocate has pointed out that the southern boundary does not tally and as such the Appellants have failed to identify the suit property. Learned Government Advocate has submitted that the portion 4 which is part of the river does not belong to the Appellants. Learned Counsel has further submitted that the Appellants have failed to identify the suit property vis a vis the documents produced by them and as such no interference is called for, in the impugned Judgment. 6. Having heard the learned Counsel for the Appellants and the learned Government Advocate for the Respondent, the following point for determination arises. Whether the disputed portion claimed to be the salt pan as shown in Exh.47 by alphabet D belongs to the Appellants? 7. On perusal of the record and deposition of the witnesses, I find that the property described under No.24470 of the Land Registration Office is known as “Polem Xeta” which is in cultivation of coconut trees, sowing of rice and extraction of salt situated in the village Carmona and is bounded towards the east, north and west with the property belonging to the Communidade of Carmona and towards the south with the property belonging to the heirs of Felecissimo Rodrigues and Jose Rodrigues. On bare perusal of the said description, it is obvious 5 that the property claimed by the Appellants as described therein also includes land used for extraction of salt. Apart from that, on perusal of the sale deed produced by the Appellants dated 27-4-1984 and the schedule attached thereto at schedule No.3 the property purchased by the Appellants discloses the same Registration number as well as the matriz number and further identifies the property as consisting of cultivation of rice and extraction of salt and situated in Carmona. The question of disclosing any survey number in the said schedule with regard to the disputed portion identified by letter 'D' could not arise as no survey number was given to the said portion but the plan attached to the sale deed is the one produced by the Appellants at Exh.46 and the same is also signed by the vendor to the said sale deed. The said sale deed further identifies the property purchased by the Appellants and on perusal thereof, I find that the disputed portion also stands included as the portion purchased therein. In fact, on perusal of the boundary shown in the Land Registration Office, I find that the properties which are located towards the eastern side surveyed under Nos.90/45, 90/40 and 90/29 stand in the name of Communidade of Carmona. So also the property surveyed under No.90/26 also stands in the name of Communidade of Carmona together with the property surveyed under 6 No.90/24 located on the western side. The boundaries disclose that the property as described in the Land Registration Office under No.24470 includes not only the property surveyed under No.90/35 but also the disputed portion as identified by letter 'D'. In case the said disputed portion identified by letter 'D' is carved out, the boundaries would not tally. The southern boundary of the suit property is also of some private owners and not of the Respondent. The matriz records also disclose the same boundaries. Despite of such overwhelming evidence, I find that the learned Judge was not justified to hold that the disputed portion does not belong to the Appellants. The description of the property as well as its identification clearly establishes that the property claimed by the Appellants also includes a salt pan and as such there is no justification to hold that the salt pan belongs to the Respondent. The Respondent has failed to lead evidence to substantiate their claim that the disputed portion is part of the river. I find that the learned Judge has misconstrued the documents of title of the Appellants and consequently came to such an erroneous conclusion. On the basis of the evidence on record, there can be no doubt that the disputed portion belongs to the Appellants. In fact, the said disputed portion of the property has not been 7 given any specific survey number which forced the Appellants to approach the Court for appropriate reliefs. The Respondents failed to establish that the disputed portion belonged to them or that they were in possession thereof. The learned Judge has misconstrued the documents of title produced by the Appellants and has come to an erroneous conclusion that the disputed portion does not belong to the Appellants. As such, for the reasons stated hereinabove, I find that the Appellants have succeeded to establish that the disputed portion as shown by letter 'D' forms part of the property of the Appellants. The Respondent is not entitled to any such portion. The points are answered accordingly. 6. In view of the above, I pass the following order. ORDER 1. The appeal is allowed. 2. The impugned Judgment and Decree to the extent that the relief claimed by the Appellants is refused with regard to the disputed portion shown by letter D is quashed and set aside. It is further declared that the Appellants are the owners of the property shown by letter D in Exh.47 and the Respondent has no right therein. 8 3. The appeal stands disposed of accordingly with no orders as to costs. F. M. REIS, J. RD