:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 73 OF 2004 WITH MISC. CIVIL APPLICATION NO. 843 OF 2010 1. Frank Moraes, ( since deceased ) represented by his legal heirs ) a. Smt. Joanita Moraes, widow r/o Benclem Waddo Cuncolim, Salcete Goa b. Shri Mario Moraes, son r/o Bencleam waddo, Cuncolim, Salcete Goa. c. Smt. Myra Moraes, daughter and her husband d. Shri Corwin Coutinho, son-in-law Both residents of Navelim Goa. e. Kum. Michelle Moraes, daughter r/o Bencleam waddo, Cuncolim, Salcete, Goa. All major of age, ( Registered Addresses ) … Appellants V e r s u s 1. Maria Antona Britto ( since deceased represented by her legal heirs ) a) Smt. Mary Moraes, daughter-in-law and her children b) Smt. Mebel Fernandes granddaughter and her daughter c) Miss Giselle Fernandes great granddaughter d) Mrs. Audrey D'Lima Moraes granddaughter, married, e) Shri Ivon D'Lima grandson in law, e(i) Mrs. Daphne Fernandes, granddaughter, married, f) Shri Brian Fernandes, grandson in law, f)(i) Shri Egbert Moraes, grandson, unmarried, g) Shri Brendan Moraes, grandson, unmarried, h) Shri Oliver Moraes, grandson, unmarried, :2: All residents of 14, Jer Mahal Annexe Jambulwadi, Dhobitalao, Mumbai-400 002 ( Respondent Nos. (a) to (h) deleted as per order dated 5.8.2004 ) ii) Smt. Verodiana Moraes, daughter a) Smt. Irene Antao, granddaughter, her husband, c) Shri Herculano Antao, grandson in law, d) Shri Ivon Moraes, grandson and his wife, e) Smt. Gwen Moraes, granddaughter in law, f) Kum. Iiaz Moraes, granddaughter, g) Shri Izar Moraes, grandson and his wife, h) Smt. Lilian Moraes, granddaughter in law, i) Shri Ivor Moraes, Grandson and his wife, j) Smt. Freda Moraes, granddaughter in law, All residents of H.No.25-A, Bencleam waddo, Cuncolim, Salcete Goa. ( Respondent Nos. ii(a) to (j) deleted as per order dated 5.8.2004 ) iii)a) Smt. Leena D'Souza, daughter and her husband, b) Shri Teotonimo D'Souza, son in law, both resident of Biunsa, Cuncolim, Taluka, Salcete Goa. ( Respondent Nos. iii(a) to (b) deleted as per order dated 5.8.2004 ) iv(a) Smt. Berta Tavares, daughter and her children (b) Miss Chris Tavares, grandson All residents of Aquem Alto, Margao Goa. (c ) Shri Denzil Tavares, grandson, All residents of Aquem, Alto, Margao Goa. ( Respondent Nos. iv(a) to (c ) deleted as per order dated 5.8.2004 ) v(a) Shri Fulgencio Moraes, son and his wife (b) Smt. Vandebai Moraes, daughter in law, both resident of Vaz Building Aquem, Margao Goa. ( Respondent Nos. v(a) to (b) deleted as per order dated 5.8.2004 ) vi) Sr. Lucy Moraes, daughter, Convent Holy Family Sancoale, Taluka, Margao Goa. :3: ( Respondent No.vi deleted as per order dated 5.8.2004 ) 2. Shri Deodado Magno Moraes ( since deceased represented by his legal heirs ) a) Smt. Verodiana Moraes, widow b) Smt. Irene Antao, daughter, her husband, c) Shri Herculano Antao, son in law, ( Respondent Nos. 2(b) to ( c ) deleted as per order dated 5.8.2004 ) d) Shri Ivon Moraes, son and his wife, e) Smt. Gwen Moraes, daughter in law, f) Kum. Iiaz Moraes, daughter, g) Shri Izar Moraes, son and his wife, h) Smt. Lilian Moraes, daughter in law, i) Shri Ivor Moraes, son and his wife, j) Smt. Freda Moraes, daughter in law, All residents of H.No.25-A, Bencleam waddo, Cuncolim, Salcete Goa. ( Respondent Nos. 2(e) to (j) deleted as per order dated 5.8.2004 ) 3. Dr. Condorcio Moraes ( since deceased represented by his legal heirs ) a) Dr. Claudio Moraes, son and his wife, b) Dr. Mrs. Roshan, daughter in law, c) Shri Clovis Moraes, son and his children d) Miss Sharmila Moraes, granddaughter, e) Dr. Cedric Moraes, son and his wife, f) Smt. Usha Moraes, daughter in law, All residents of Carvel, Mumbai. ( Respondent Nos. 3(a) to (f) deleted as per order dated 5.8.2004 ) 4. Shri Roque Manuel Moraes ( since deceased represented by his legal heirs ) a) Smt. Sofia Moraes, daughter in law, b) Flossy Martins, granddaughter and her husband c) Shri Cruz Martins, grandson in law d) Smt. Nancy Moraes, daughter in law, e) Shri Ravi Moraes, great grandson, bachelor, f) Shri Raju Moraes, great grandson, bachelor, g) Shri Rohin Moraes, great grandson, bachelor, h) Shri Cristanand Desai, grandson and his wife, :4: i) Smt. Nirmala Desai, granddaughter in law, j) Shri Edwin Moraes, grandson and his wife, k) Smt. Lanny Moraes, granddaughter in law, l) Smt. Goretti Figueiredo, granddaughter and her husband, m) Shri Levy Figueiredo, grandson in law, n) Smt. Hilda Caeiro, granddaughter and her husband o) Shri Rosario Caeiro, grandson in law, ( Respondent Nos. 4 (b) to (o) deleted as per order dated 5.8.2004 ) p) Smt. Nima Moraes, daughter in law, q) Smt. Elvy Pinto, granddaughter and her husband r) Shri Jeffry Pinto, grandson in law s) Shri Elvon Moraes, grandson and his wife t) Smt. Sandra Moraes, granddaughter in law u) Smt. Erlifa Dias, granddaughter and her husband v) Shri Edwin Dias, grandson in law w) Batestina Moraes, daughter in law and her children x) Shri Khazanji Moraes, grandson and his wife y) Smt. Rubby Moraes, granddaughter in law z) Smt. Fatima Moraes, granddaughter in law and her children aa) Shri Sachin Moraes, great grandson, bb) Shri Shodhan Moraes, great grandson cc) Shri Savino Moraes, great grandson dd) Shri Derick Moraes, grandson and his wife ee) Smt. Jovino Moraes, granddaughter in law ff) Smt. Alda Moraes, daughter in law gg) Shri Antolino Carvalho, son in law and his children hh) Smt. Dhoraty D'Souza, granddaughter and her children ii) Shri Ramsay D'Souza, great grandson jj) Shri Grimaldo Carvalho, grandson and his wife kk) Smt. Nancy Carvalho, granddaughter in law ll) Shri Alvito Carvalho, grandson and his wife mm) Smt. Filomena Carvalho, granddaughter in law nn) Smt. Alexandrina Carvalho, daughter and her children oo) Smt. Eufemia D'Mello, granddaughter and her husband pp) Shri Domnick D'Mello, grandson in law qq) Shri Vithal Carvalho, grandson and his wife rr) Smt. Diana Carvalho, granddaughter in law ss) Shri Edy Carvalho, grandson and his wife tt) Smt. Matilda Carvalho, granddaughter in law uu) Shri Eulice Carvalho, grandson, bachelor All residents of Bencleam waddo, Cuncolim, Taluka Salcete Goa. ( Respondent Nos. 4(q) to (uu) deleted as per :5: order dated 5.8.2004 ) 5. Lourencinho Moraes ( since deceased represented by his legal heirs ) (a) Smt. Presrentacao Moraes – wife r/o House No. 2346, Bencleam waddo, Cuncolim, Taluka Salcete Goa. 6. Smt. Fransquinha Coutinho Gomes, r/o House No. 1074, Ward Mileamvaddo, Cuncolim, Taluka Salcete Goa. 7. Avelino Moraes ( since deceased represented by his legal heirs ) a) Shri Bonifacio Moraes, son and his wife b) Smt. Elita Moraes, daughter in law, c) Smt. Elcy Aguiar, daughter d) Smt. Eraldina Almeida, daughter and her children e) Smt. Irene Dias, granddaughter and her husband f) Shri Elias Dias, grandson in law g) Shri Wilfred Almeida, grandson, bachelor All residents of Bencleam waddo, Cuncolim, Taluka Salcete Goa. ( Respondent Nos. 7 (b) to (g) deleted as per order dated 5.8.2004 ) .... Respondents Mr. J. E. Coelho Pereira, Senior Advocate with Mr. J. Godinho, Advocate for the Appellants. Mr. G. Shirodkar, Advocate for the Respondent Nos. 4(a) & 4(p). CORAM :F. M. REIS, J. DATE :26 th NOVEMBER, 2010. ORAL JUDGMENT The above Appeal challenges the judgment and award :6: dated 18th December, 2003 passed by the learned Additional District Judge, South Goa, at Margao, in Land Acquisition Case No. 140/90/III. The parties shall be referred to in the manner in which they so appear in the impugned judgment. 2. By a notification dated 26th February, 1988 under the provisions of the Land Acquisition Act, 1894 ( hereinafter referred to as' the said Act') the land was acquired for the construction of minor m3 at Cuncolim in Salcete Taluka. Amongst the land which was acquired an area of 6225 square metres being a part of survey No.432/1, at Cuncolim, in Salcete Taluka was intended to be acquired. An amount of Rs.88,477/- was awarded by the Land Acquisition Officer in the award under Section 11 of the said Act and in view of the dispute between the parties, a reference under Section 30 of the said Act was made to the learned District Judge for deciding the dispute. By the judgment and award dated 18th December, 2003, the Reference Court directed that the compensation awarded was to be paid to each of the parties No.1 to 8 and the legal heirs of the deceased parties. Each of the parties No. 1 to 8 and the legal heirs of the deceased parties were held to be entitled to 1/8th share in the said compensation along with accrued interest. Being aggrieved by the said judgment and award, the legal heirs of the party no.1 preferred the above appeal. During the pendency of the appeal, the :7: names of Respondent Nos. 3(a), (b), (c ), (d)(e),(f), came to be deleted. 3. During the pendency of the above appeal the legal heirs of the deceased party No.1/Appellants filed an application under Order 41 Rule 27 of the Civil Procedure Code seeking leave to produce the judgment dated 30th April, 2010 passed by the Inspector of Survey and Land Records ( Record of Rights ) At Margao. 4. Learned Senior Counsel appearing for the Appellants has assailed the impugned judgment and submitted that the Reference Court has totally misdirected in appreciating the evidence on record and came to an erroneous conclusion that the amount of compensation is to be apportioned between all the parties equally. Learned Senior Counsel further submitted that the Reference Court has merely relied upon the survey records to come to the conclusion that the apportionment of the compensation is to be carried out in the aforesaid manner. Learned Senior Counsel further submitted that the Reference Court failed to consider that the survey records in Form III produced on record were not promulgated and as such the same had no evidentiary value. Learned Senior Counsel further submitted that unless and until the records are duly promulgated, the presumption under Section 105 of the Land Revenue Code cannot be drawn. Learned Senior Counsel further :8: submitted that pursuant to the said judgment passed by the Inspector of Land Survey, the survey records are ordered to be promulgated in favour of the Appellant herein and as such the impugned judgment cannot be sustained. He accordingly submitted that the above application be allowed and the matter be re-appreciated on the basis of the evidence on record or otherwise remand the matter for fresh consideration by the Reference Court to decide the reference afresh in accordance with law. 5. On the other hand, Shri G. Shirodkar, learned Counsel for the Respondent Nos. 4(a) and 4(p) supported the impugned judgment and submitted that the Reference Court has duly appreciated the evidence on record and has come to the correct conclusion that the compensation deserves to be apportioned in the manner in which the survey record stands. Learned Counsel further submitted that the judgment sought to be produced by the Appellant dated 30th April, 2010 is not at all relevant for the disposal of the appeal, as according to him, the said Respondents were not parties nor they were heard in the said proceedings and consequently the said judgment is not binding on the said Respondents. Learned Counsel further pointed out that the Respondents are in possession of a specific portion of the acquired land and as such the Reference Court has rightly directed the distribution of the compensation as per the shares. Learned Counsel further submitted :9: that in case the matter is remanded for fresh adjudication, the Respondents should be permitted to lead further evidence in support of their claim and they be allowed to point out that the said judgment produced by the Appellant is not relevant for the disposal of the present proceedings. 6. Having heard the learned Senior Counsel for the Appellant and the Counsel for the Respondents and on perusal of the records, the following point arise for determination in the present Appeal : POINT FOR DETERMINATION Whether the Reference Court was justified to answer the reference in holding that each of the parties 1 to 8 and the legal heirs of the deceased parties are entitled to 1/8th share of the compensation of Rs.88,477/- along with accrued interest ? 7. On perusal of the records, I find that the Reference Court whilst passing the impugned judgment has ordered the apportionment of the compensation by drawing a presumption under Section 105 of the Land Revenue Code. The Reference Court on the basis of the said presumption and on noticing that the entries in the survey records stand in the name of party nos.1 to 8 in the occupant column in respect of the property surveyed under No.432/1 directed the apportionment of the compensation accordingly. The Reference Court has lost sight to the :10: fact that the promulgated survey records have not been produced on record by any of the parties. In fact the records which have been produced were in Form No. III which are not promulgated survey records. Section 105 of the Land Revenue Code provides that an entry in the records of right and a certified entry in the register of mutation shall be presumed to be true until contrary is proved or new entry is lawfully substituted there from. Rule 3 of the Goa, Daman and Diu Revenue ( Record of Rights and Register of Cultivators ) Rules provides that the record of rights to be maintained in every village under Section 95 shall be in Form I for each survey number and in Form XIV the Register of cultivators and crops shall be maintained as per Rule 16. Rule 7 contemplates that after the procedure laid down therein is followed, the record of rights of village shall be maintained. Thus the record of rights have to be in Form I & XIV. Admittedly, in the present case no such document was produced and as such the question of drawing any presumption in respect of such entries would not arise. The Reference Court has totally misdirected itself in drawing such presumption on the basis of unpromulgated survey records which is only a draft prepared under Rule 6(1) of the said Rules. On perusal of judgment passed by the Inspector of Land Survey, I find that by the said judgment, the property surveyed under No. 432/1 is ordered to be promulgated by deleting the existing names and including the names of :11: Mario Moraes and M. Jenifer E. P. Moraes in occupants column of Form I & XIV of Village Cuncolim, Salcete Taluka. The name of field was ordered to be corrected. The said Mario Moraes is Appellant No.1(b) in the present appeal. Though entries in the survey records do not create title in favour of a person in whose name the records stand nevertheless the entries therein draw a presumption of possession which is otherwise rebutted. Shri G. Shirodkar, learned Counsel appearing for Respondent Nos. 4(a) and 4(p) is justified to contend that the Respondents are entitled to establish that the entries in the survey record are not correct and/or erroneous. This aspect will have to be considered after adducing necessary evidence to that effect. 8. As the Reference Court has decided the dispute essentially on the basis of the unpromulgated survey records, I find that in the interest of justice, it would be appropriate that the matter be remanded to the Reference Court to decide the reference afresh after giving the parties an opportunity of being heard. The issues raised by the Respondents to the effect that the judgment produced by the Appellant is not relevant would have to be decided by the Reference Court after evidence is adduced by the parties. The objections raised by the Respondents on that count will have to be kept open. :12: 9. As the said judgment sought to be produced by the Appellant is in respect of the land acquired, I find that the leave has to be granted to the Appellant to produce the said document in accordance with law. Shri J. E. Coelho Pereira, learned Senior Counsel has submitted that the Appellants desire to produce additional documentary evidence apart from the said judgment in support of their claim to the compensation awarded to the acquired land. Learned Counsel appearing for the Respondents Shri Shirodkar submits that the Respondents also desire to lead evidence in support of their claim for compensation and also lead evidence in rebuttal to the evidence likely to be produced by the Appellant. I find that in the interest of justice, both the parties should be given an opportunity to lead additional evidence in support of their rival claims in accordance with law. The point for determination is answered accordingly. 10. In view of the above, I pass the following order :- O R D E R (i) The application under Order 41 Rule 27 of the Civil Procedure Code is allowed.Appellants are permitted to produce the said document after examining the Appellant No.1(b) in accordance with law. (ii) The Appeal is partly allowed. :13: (iii) The impugned judgment and award dated 18th December, 2003 is quashed and set aside. Land Acquisition Case No. 140/90/III is restored to the file of the Reference Court. (iv) The Reference Court is directed to permit the parties to lead additional evidence in the light of the observations made herein above in accordance with law. (v) The Reference Court shall thereafter pass a fresh judgment on the basis of the evidence which has already been produced by the parties and the additional evidence which shall be adduced by the respective parties here after and after hearing the parties in accordance with law. (vi) Appeal stands disposed of accordingly with no orders as to costs. (vii) Parties are directed to appear before the Reference Court on 10th January, 2011 at 10.00 a.m. F. M. REIS, J. at*