-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 83 OF 2000 1. Antonio Aleixo Rodrigues Since deceased, now represented by his legal representatives (a) Smt. Yvonne Rodrigues (widow) (b) Shri Francis Rodrigues (son) deceased through his LR Appellant no.1(a) (c) Shri Allan Rodrigues (son) (d) Shri Evans Rodrigues (son) (e) Smt. Bernadette Rodrigues Pinto (daughter) (f) Shri Michael Pinto (Son in law) All residing at Vidyanagar, Margao, Goa. …... Appellants Original Party no.6 V e r s u s 1. Jose Rodolfo Rodrigues 2. Sebastiao Paulo Rodrigues Since deceased by Lrs (a) Savio Rodrigues (b) Theresa Rodrigues (c) Alwyn Rodrigues (d) Maria Rodrigues (e) Corina Rodrigues (f) Bonny Fernandes All major in age, residing at Paulin Granites, Paulo Building, Near Popular High School, Behind Margao Police Station, Margao, Salcete, Goa. (Amendment carried out as per Order dated 12.03.2009.) -2- 3. Zoraida Pacheco Rodrigues 4. Roque Antonio Alfredo Rodrigues since deceased by Lrs. (a) Nevil Rodrigues (b) Charlie Rodrigues (c) Natasha Rodrigues (d) Tinet Rodrigues (e) Dean Rodrigues All major in age, residing at Paulin Tiles, Centaur Building, Near Kamat Milan Hotel. Old Station Road, Margao, Salcete, Goa. 5. Veronica da Costa Rodrigues All the above 5 Respondents c/o Paulino Tiles, Station Road, Margao, Goa. 6. Joaquim Paulino Rodrigues (Since deceased) (The above mentioned appellants and Respondents are his legal representatives) (The above are the registered address of the appellants and Respondents) …... Respondents Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Appellants. Mr. A. F. Diniz, Advocate for Respondent no.1, 2(a) to 2(d), 4(a) to 4(e) CORAM: R. M. SAVANT, J. DATE : 3 rd March, 2010. ORAL JUDGMENT The above First Appeal arises out of the Judgment and Order -3- dated 23.12.1999, passed by the learned IInd Additional District Judge, South Goa, Margao, by which, the claim of the Appellant herein, party no.VI, for a share in compensation in respect of the acquired land, came to be rejected. 2. The impugned Judgment and Award arises out of the reference proceedings under Section 30 of the Land Acquisition Act, 1894, (hereinafter referred for brevities sake as the said Act). The said Reference proceedings had arisen on account of the dispute as regards the ownership of the acquired land admeasuring 4410 square metres from Survey no. 171/13, situated at Margao. In view of the said dispute, a reference was made under Section 30 of the said Act. The Respondents herein and the Appellant above named are the heirs of one Joaquim Paulino Rodrigues, who was their father. Upon the death of the said Joaquim, all his heirs executed a Deed of Partition and Agreement dated 31.08.1976, whereby all the properties of the said Joaquim as well as those to be allotted upon the death of their mother were divided and partitioned mutually by the said parties and party no. VI i.e. Appellant herein and his wife, as per the Partition Deed. One of the properties allotted to the Respondents herein, who were parties nos. I to V in the said reference proceedings, was known as “Aforamento” situated at Margao, described in the Land Registration Office under no. 28555. The Respondents herein claimed that the acquired land formed part and parcel of the property “Aforamento” which was allotted to them. They claimed that they are in possession and enjoyment of the said acquired land and that the Appellant herein and his wife have no interest in the acquired land. -4- 3. Per contra, it was the case of the Appellant herein that the acquired land was not the subject matter of the Partition Deed and, therefore, he claimed equal right in the said land and resultantly claimed 1/4th share in the compensation awarded. The Trial Court i.e. the reference Court, framed the following issues : ISSUES FINDINGS 1. Are Parties no. 1, 2, 3, 4 and 5 heirs are representatives of Part y no. VII Joaquim Paulino Rodrigues, since deceased ? … In the affirmative 2. Is the acquired land part of the property “Aforamento” belonged and possessed by the deceased Party no. VII Joaquim Paulino Rodrigues and now Parties no.I to V ? … In the affirmative 3. Does the party no. VI Antonio Aleixo Rodrigues prove that he is entitled to 1/4th share in the compensation awarded ? … In the negative 4. In so far as the issue no.1 is concerned, the reference Court recorded a finding that the parties to the reference are the heirs and legal representatives of the said Joaquim. In so far as the other issues are concerned, on behalf of the Respondent herein, Aw.1/Jose Rodrigues, deposed on behalf of the Appellant herein, in support of his case. The Partition Deed dated 31.08.1976 was produced on record which was marked as exhibit Aw.1/A. The said Partition Deed has been signed by all the heirs of the deceased Joaquim. The said Partition Deed reveals that the property -5- “Aforamento” bearing Land Registration no. 28555 and Matriz no. 1.105 was the subject matter of the said Partition Deed. The said Partition Deed also revealed the boundaries of the said property “Aforamento”. The said property “Aforamento” is bounded on the east by the property of the Communidade of Margao, on the west by the property of “Aforamento” of Joaquim Rodrigues and heirs of Lourenco Vaz, on the north by the property of Mahadeva Munz and Tito Camilo Carvalho and on the south by the property of the “Aforamento” of Francisco Xavier Fernandes. The Partition Deed further revealed that the property “Aforamento” was allotted to the Respondents herein in the partition. The witness on behalf of the Respondents i.e. Aw.1/Jose Rodrigues, has deposed that the property is surveyed in the Survey Records in his name and in the names of the other Respondents and that they are in possession of the property and that since the property was allotted to them in partition, the Appellant herein is not entitled to any compensation. He has denied that the acquired land does not form part of the “Aforamento”. 5. R.w.1/Allan Rodrigues, who is the son of the Appellant above named and who deposed in support of the case of the Appellant, admitted that upon the death of his grandfather Joaquim, all the properties were partitioned by the Deed of Partition dated 31.08.1976. He has further admitted that the property “Aforamento” was allotted to party nos. 1, 2 and 4 and that the parties were in possession of the respective properties allotted to them under the said Deed of Partition. He has stated that the subject matter of the Partition Deed which is the “Aforamento”, admeasures only 20,068 square metres whereas -6- the property under Survey no. 171/13 admeasures 33,882 square metres. The said excess area of 13000, according to him, included the encroachment admeasuring 5051 square metres. He has further stated that the said encroachment is situated towards the eastern side of the “Aforamento” and the same was regularised by his grandfather. He has stated that the said area of encroachment admeasuring 5051 square metres was not the subject matter of the Partition Deed. 6. The said case sought to be advanced on behalf of the Appellant was not accepted by the reference Court as, in the Partition Deed, the “Aforamento” is bounded on the east by the Communidade land and, therefore, the reference Court reached a conclusion that the said encroachment was also the subject matter of the said Partition Deed. What is significant to note is that the said witness was shown the blue print of the plan which was marked as Exhibit Rw.1/G wherein the location and the boundaries of the “Aforamento” as well as the encroachments were shown. Rw.1 has in turn admitted that the plot delineated under alphabets A, B, C, D, E and F corresponds to the “Aforamento” whereas the plot under alphabets E, F, G and H, correspond to the encroachment. He has also admitted that the boundaries mentioned in the Land Registration document are the same as shown in the plan. On the basis of the said admissions and comparison with the description in the Partition Deed, the reference Court has recorded a finding that the boundaries tally with those mentioned in the Partition Deed. The reference Court on the basis that in the event there is a dispute between the area and -7- boundaries, then the boundaries will prevail, has recorded a finding that considering the boundaries in the plan mentioned at Exhibit Rw.1/G, vis-a-vis boundaries mentioned in the Partition Deed, the said encroachment was also the subject matter of the Partition Deed, was proved. It would be pertinent to note that Rw.1/Allan has also admitted that the Respondents are in possession of the encroached area and that they have put up their factories in the said area. The reference Court, therefore, on the said basis also recorded that the said fact fortifies that the said encroachment was the subject matter of the Partition Deed and the same was allotted to the Respondents herein. The reference Court, therefore, held that since the acquired land forms part and parcel of the land which was allotted to the Respondents herein, they were entitled to receive the compensation. 7. It is sought to be contended on behalf of the Appellant herein by the learned Senior Counsel, Shri M. B. Da Costa, that the Plan, Exhibit Rw.1/G, could not be relied upon as the same was not proved by examining its author. It is further contended that the witness Allan was misled on account of the names appearing on the plan. In my view, the said submission of Shri Da Costa cannot be countenanced in the teeth of the said Plan being exhibited and in the teeth of the admission of the witness Allan. The reference Court, on the basis of the evidence before it, in my view, has rightly reached the conclusion that the Respondents herein were entitled to the compensation as the land had come to them by virtue of the Partition Deed dated 31.08.1976. -8- 8. In the facts and circumstances as above, there is no merit in the above Appeal which is accordingly dismissed. R. M. SAVANT, J. arp/*