1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal No.98 of 2003 Shri Antonio Sebastiao Palha H.No.351, Mercurim Grande, Agassaim, Tiswadi, Goa. .... Appellant V e r s u s Smt. Niquela Palha (since deceased) through her legal representatives a) Mr. Ignacio Pereira Confri Bhat, Mercurim Grande Agassaim-Ilhas Goa. b) Mrs. Ruzaria Pereira c) Mr. Francisco Fernandes alias John, both resident of St. Cruz Band, Ilhas Goa. d) Mr. Antonio Felix Pereira, Confri Bhat, Mercurim Grande Agassaim Ilhas Goa. e) Mrs. Fransquinha Pereira Pires f) Mr. Alex Pires, both resident of Cardoz Waddo, Taleigao Goa. ..... Respondents Mr. Joseph Vaz, Advocate for the Appellant. Mr. N.K. Sawaikar, Advocate for the Respondents. 2 Coram: A. P. Lavande, J. Date: 30th September, 2010. ORAL JUDGMENT: By this appeal the appellant takes exception to the judgment and award dated 13/12/2002 passed by the Additional District Judge, Panaji, in Land Acquisition Case no.88/1995 holding that the compensation payable in respect of the acquired land was payable to the respondents. 2. The facts relevant for disposal of the appeal are as under: A portion of land admeasuring 1285 sq.metres from survey no.61/2 of village Mercurim was acquired for Konkan Railway B.G. Line. The acquired land was owned by Communidade of Gaunxi. There was no dispute that 50% of the compensation awarded by the Land Acquisition officer in respect of the acquired land was payable to Communidade of Gaunxi. In respect of the 3 remaining 50%, the appellant claimed 50% thereof whereas Smt. Niquela Palha, (original respondent) the sister of the appellant claimed the entire balance 50% compensation. Since there was a dispute as to apportionment, reference under Section 30 was made and Land Acquisition Case No.88/1995 was registered and the same was made over to the Additional District Judge at Panaji. 3. In Land Acquisition Case no.88 of 1995 the appellant (original applicant) examined himself, Ludovic Paulo Dias, AW.2 and Bosco Braganza, AW.3. The respondent Antony Felix Pereira, RW.1. Both the parties produced several documents in support of their case. Before the Reference Court the appellant claimed that he was the co-tenant whereas the original respondent claimed that she was the sole tenant. The Reference Court upon appreciation of the evidence held that both the parties 4 did not prove tenancy and held that the evidence clearly suggested that on the date of publication of Section 4 notification the original respondent was in possession of the acquired land. Consequently, the Reference Court held that the respondent was entitled to 50% of the compensation. 4. Mr. Vaz, learned counsel appearing for the appellant submitted that the Reference Court has not correctly appreciated the evidence led by the parties and has come to the wrong conclusion that it was the respondent who was in possession of the acquired land and therefore entitled to the compensation awarded. He further submitted that the evidence led by the parties clearly suggested that the appellant was the co- tenant of the property bearing survey no.61/2 belonging to the Communidade of Gaunxi and therefore the Reference Court ought to have granted 50% of the balance 5 compensation in favour of the appellant and the respondent. He, therefore, submitted that the impugned judgment and award be set aside and the appellant and the respondents be granted 50% compensation in equal shares. 5. As stated above, none has appeared on behalf of the respondents. 6. Perusal of the impugned judgment discloses that the Reference Court has dealt with the oral and documentary evidence led by the parties. Indisputably, both the parties have not produced any document on record to prove that their father was declared a tenant in respect of the acquired land. In paragraph 12 of the impugned judgment, the Reference Court has referred to the documentary evidence produced by the respondent which discloses that in the year 1977 the applicant had 6 field an application for restoration of the possession of the property which was allowed by the Mamlatdar by order dated 10/1/1994 who directed the respondent to restore the possession of the northern half of the paddy field to the applicant. However, the said order was challenged by the respondent and by order dated 26/12/1995 passed by the Deputy Collector, the said order was set aside. Tenancy Revision Application no.24/1996 preferred by the applicant against the order passed by the Deputy Collector was also dismissed by the Administrative Tribunal by order dated 9/10/2000. The Reference Court, therefore, held that in view of the said orders it was evident that on the date of publication of Section 4 notification the respondent was in possession of the acquired land and therefore she was entitled to the compensation. 7. As stated above, both the parties did not produce any documentary evidence to substantiate that 7 either their father or any of them was the tenant in respect of the acquired land. The record clearly discloses that the respondent was in possession of the acquired land on the date of publication of section 4 notification. This been the position, the finding of the Reference Court that the original respondent was entitled to compensation on the basis of possession cannot be faulted. Section 110 of the Evidence Act provides that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden to proving that he is not the owner is on the person who affirms that he is not the owner. In view of the said provision and in the absence of any evidence having been led by both the parties, regarding title to the acquired land, the Reference Court was justified in holding that the original respondent was entitled to the compensation in respect of the acquired land. Therefore, the impugned judgment and award cannot be faulted. 8 8. For the reasons aforesaid, I do not find any merit in the appeal. Consequently, the appeal stands dismissed with no order as to costs. A. P. Lavande, J. Ap/-