1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.182 OF 2005 Shri Poro Bhik Gaunkar alias Puno Bhik Gaunkar son of late Bhik Gaunkar, aged about 75 years, married, resident of H.No.44, Subdolem, Post Balli, Taluka Quepem. …. Appellant V/s 1. Lila Colaco Tiloi, Quepem Goa. (Since deceased through legal representatives) 1a. Shri Mackmilan Colasso, resident of Collassowada, Velim, Salcete Goa. 1(a)(i) Smt. Ivetta Colaco, widow of Mackmilan Colasso, aged about 37 years. 1(a)(ii) Master Maxwell Colaco, son of Mackmilan Colasso, aged about 10 years, minor. 1(a)(iii) Miss Mezyia Colaco, daughter of Mackmilan Colasso, aged about 8 years, minor, both minors herein represented by their natural guardian Smt. Ivetta Colaco. All above residents of near Goa Shipyard Ltd., Vadem, Vasco da Gama, Goa. 2. Mauro Colaco, Tiloi, Quepem, Goa. 2 3. Olencia Colaco, Tiloi, Quepem, Goa. 4. Zelia Colaco Fernandes, Baga, Velim, Salcete Goa. 5. Bhicaro Vithoba Gaunkar, Bassraoi, Cordem, Quepem Goa. (since deceased through legal representatives) 5(a). Smt. Parvati Bicro Gaokar, widow, 5(b). Shri Gokuldas Bicro Gaonkar, major in age, son, 5(c). Shri Krishna Bicro Gaokar, son, 5(d) Shri Mayavati Datta Gaokar, major in age, daughter-in-law, all residents of House No.88, Bassairai, Balli, Quepem Goa. Mr. S. S. Kakodkar, Advocate for the Appellant. Mr. R.G. Ramani, Advocate for Respondents Nos.5(a),5(b) & 5(c). CORAM : N.A. BRITTO, J. DATE : 22nd DECEMBER, 2010 JUDGMENT : Heard learned Counsel on behalf of the parties. 2. This appeal is directed against judgment dated 9/03/2005 of the learned Reference Court by which compensation payable on 3 account of acquisition of 5000 square metres of Survey No.41/3 of Village Tiloi in Quepem Taluka has been ordered to be paid to party no.6 along with his brother Ram Vithoba Gaonkar. 3. The dispute for the payment of the said compensation was essentially between the appellant herein who was party no.5 in LAC No.252/1994 on one hand, and parties nos.1 to 4 and 6 on the other hand. There is no dispute inter se between parties nos. 1 to 4 who claimed to be the owners of the said property and party no.6 who claimed along with his brother Ram Vithoba Gaonkar to be the tenants of the said owners. Admittedly, the property surveyed under no.41/3 of village Tiloi from which 5000 square metres were acquired by notification gazetted on 7/11/1991 was shown in Form No.I and XIV in the name of party nos.1 to 4 in the occupants column and in the names of party no.6 and his brother in the tenants column. The case of party nos.1 to 4 as well as 6 and his brother was that party no.6 had purchased the said property under Section 18(C) of the Agricultural Tenancy Act, 1964, by order dated 23/11/1992 and parties nos.2 & 3 had received the purchase price. Parties nos.2 & 3 had conceded that party no.6 and his brother were alone entitled to receive the said compensation. According to them, the property surveyed under no.41/3 was 4 known as “Ponsa sheta”. 4. On the other hand, it was the case of the party no.5, the appellant herein, that the acquired property was part and parcel of property known as “Paniatil chactam” enrolled under matriz no.77 in the name of Xaba Fotti Gauncar who was the ancestor of party no.5. It was his case that half share in that property was owned by him and the other half share by Bhinva Janu Gauncar. According to him, the entire area of 5000 square metres forming part of Survey No.41/3 was part of the said property “Paniatil chactam”. 5. The party no.5 did not examine himself nor the said Bhinva Janu Gauncar, but examined his son and attorney by name Mhalu Gaonkar. The learned Reference Court has drawn adverse inference for non-examination of the appellant. Adverse inference was required to be drawn for non-examination of the said Bhinva Janu Gauncar, who is stated by party no.5, to be the co-owner of the property, along with him. The learned Reference Court has rightly concluded that Matriz No.77 as well as Survey No.30/1 are of properties located in Cordem Village while Survey No.41/3 falls in Tiloi village and that no part of the property “Paniatil chactam” is shown in village Tiloi and the boundaries as given of Matriz 5 no.77 is on the north is village Tiloi and, therefore, the said property Paniatil chactam goes up to the boundary limit of village Cordem and Tiloi. In fact, the learned Reference Court has observed and, in my view rightly, that attorney of party no.5, the appellant herein, is not at all aware of the relevant facts as regards the boundaries, area and other details of the property “Paniatil chactam” and that his cross-examination disclosed that he did not know the contents of the deed of partition by which the said property was allotted, etc. In fact, the attorney of party no.5 stated that he was unable to give the boundaries which fall in Survey No.41/3 as well as which fall in Survey No.30/1. He also stated that he did not know any property known as “Ponsa sheta” of Colaco. He also conceded that Survey No.41/3 was recorded in the names of party no.1,2 & 3 in the occupants column and the name of party no.6 was shown in the tenants column along with his brother and he came to know about the said record about 10 to 12 years back but failed to explain as to what action party no.5 had taken regarding correction of survey records. According to him, boundaries of Survey No.30/1 is the national highway on the east, property Balasorem on the west, property Sal on the north and property of one muslim family on the south. This means that the property surveyed under no.30/1 does not even touch the acquired 6 property surveyed under no.41/3 to claim that a part of property “Paniatil chactam” surveyed under no.30/1 extends into the property “Ponsa sheta” surveyed under no.41/3. 6. As regards the questionnaire dated 8/01/1992 produced at Exhibit 43-A, the learned Reference Court has observed that the said document only contained a thumb impression which thumb impression was not identified by any person and therefore the contents of the said document cannot be read in evidence. No grievance is made against the said finding, and that apart, one fails to understand as to why party no.6 who was the tenant and who had purchased the property would say that the acquired portion did not form part of the tenanted land. 7. The only submission made by Shri Kakodkar, the learned Counsel appearing on behalf of the appellant is that the learned Reference Court ought to have framed an issue of tenancy and referred it to the Mamlatdar which was required to be done in the light of two judgments of this Court reported in 1998 (1) GLT 156 and 1998 (2) GLT 292 as well as of the Apex Court in the case of Shri Inacio Martins, dec. thro' Lrs. V/s. Narayan Hari Naik & Ors. (AIR 1993 SC 1756). 7 8. In the case of Communidade of Saligao V/s. Mhalpa Manguesh Nagvekar & Anr. (1998 (1) GLT 156), this Court relying on the said case of Shri Inacio Martins, dec. thro' Lrs. (supra) has held that the issue of tenancy raised by the party to the proceedings in the civil Court is necessary to be referred to the Mamlatdar who is competent to decide such an issue under the said Act. Here, it may be noted that the claim of tenancy raised by party no.6 whose name along with his brother was shown in tenants column of survey records was accepted by parties nos.1 to 4 who were the owners of the said property and whose names were shown in the occupants column of the said survey records and there was no issue to be decided as against them. Party no.5 had claimed a part of their property as belonging to him and one Bhinva Janu Gauncar. There was no issue raised by party no.6 in relation to them and, therefore, there was no question of framing of any issue of tenancy and referring it to be decided by the Mamlatdar. 9. I find there is no merit in this appeal and, consequently, the same is hereby dismissed. N.A. BRITTO, J. NH/-