1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 112 OF 1999 1. Mrs. Maria Celsa Gomes, major, married, 2. Mr. Maducar Sadananda Naique Cormoli, major, married, both having address at Alex Villa, Near Santa Cruz P.O. Santa Cruz, Goa 403 005. 3. Mrs. Maria Erta Tereza Gomes, major, widow, 4. Mr. Artemio Raul Do Rosario Fernandes(Deceased) through his heirs: (a) Dr. Andre Victor Fernandes major, married, son of deceased, (b) Mrs. Alaine Fernandes, major, married, daughter-in-law of deceased. (c) Miss Illona Nelly Lizette Fernandes major, spinster, daughter of deceased, (d) Mrs. Neila Neva Fernandes, major, married, daughter of deceased, (e) Mr. Sameer G. Kakodkar, major, married, son-in-law of deceased, (f) Miss Scarlet Ava Fernandes, major, spinster, daughter of deceased, all having their address at Near Church of Our Lady of Candelaria, Baina, Vasco-da-Gama, Goa. ... Appellants 2 versus 1. Maria Amalia Pereira, Expired, through her Legal Representatives:- (a) Smt. Kusum Kharangate major, married, daughter and her husband (b) Shri H. S. Ramaswamy major, married (c) Shri Suresh Kharangate major, married, son and his wife (d) Smt. Suman Kharangate major, married (e) Smt. Pushpa Kharangate major, daughter (f) Shri Vilas Kharangate major, son (g) Shri Pradip Kharangate major, married, son and his wife (h) Smt. Smita Kharangate major, married (i) Smt. Nisha Vilas Kharangate major, married w/o Vilas Kharangate All represented by their Power of Attorney Shri Vilas Kharangate, r/o H.N. 124 Velsao, Mormugao, Goa. 3 2. Alusio J. S. Viegas, major, married, having address at C/o Martinho Silveira e Souza(deceased) represented through Legal Representative Shri Jose Rui de Souza, Velsao, P.O.Cansaulim, Goa. 3. Communidade of Velsao, through their Attorney having address at Velsao, P. O. Cansaulim, Goa. ... Respondents Mr. A. R. Kantak, Advocate for the Appellants. Mr. J. E. Coelho Pereira, Senior Advocate with Mr. V. Korgaonkar, Advocate for Respondent Nos.2 and 3. CORAM : N. A. BRITTO, J. DATE : 29TH JULY, 2008. JUDGMENT This appeal is directed against the Judgment dated 29-6-1999 of the learned Additional District Judge, Margao. 2. In dispute between the parties is an amount of Rs.27,160/- due and payable on account of acquisition of 700 sq. meters of land forming part of survey No. 68/1 acquired by the Government vide Notification published on Gazette dated 22-3-1984 for the purpose of the construction of a road from Velsao to Dando. 4 3. As rightly noted by the learned Additional District Judge(ADJ) the dispute was essentially between the Appellants on one hand, and Respondent Nos.2 and 3 on the other hand. 4. The case of the Appellants(i.e. of Maria Jovita Pereira Gomes, since deceased) was that the acquired land belonged exclusively to the Appellants and no other person had any right or interest to the compensation that was awarded. As per the Appellants, the Appellants were the owners of the same, having purchased the same in auction in an inventory proceedings held before the Civil Judge, Senior Division at Vasco-da-Gama. The name of the Appellants(i.e. of Maria Jovita) along with the name of Respondent No.1 was figuring in the survey records but Respondent No.1 in exparte proceedings got his name included in the survey records but the Appellants challenged the same and the case was pending before the Deputy Collector. It was the case of the Appellants that from the dimensions given by Respondent No.2 before the Mamlatdar, Records of Rights, it was evident that the property did not belong to him inasmuch as the property also did not correspond with the dimensions of the property surveyed under No.68/1. 5. On the other hand, it was the case of Respondent Nos.2 and 3(Communidade) that survey No.68/1 comprised of two properties, the eastern property being “Toloi Anexo” originally belonging to Ida Herminia de Souza e Viegas and presently to Jose Rui D'Souza and the western portion being property 5 'Cajual' belonging to Communidade of Velsao. The Respondents stated that there was a Regular Civil Suit No.20/1984 filed by the said Ida Herminia against the Velsao and Pale Education Society and others in the Court at Vasco da Gama from which an appeal was filed against the order granting temporary injunction in respect of survey No.68/1 and the parties came to a compromise and a map was drawn showing both the said properties and also the road crossing them. The Respondents stated that an area of 199.96 sq. meters belonged to the Communidade of Velsao and the balance area of 500.04 belonged to Respondent No.1 and therefore they were entitled to receive the compensation in terms of the said areas. 6. The learned trial Court initially framed two issues and at the time of Judgment framed another issue. The Appellants examined the attorney and daughter of the said Maria Jovita as well as one Venktesh Vital Kharangate who is the brother-in-law of PW1/Celsa Cormoli. The Respondents examined several witnesses in support of their claim. Both the parties also produced documents. 7. The learned ADJ after considering the evidence produced by the parties came to the conclusion that the Respondents had proved ownership and possession of the properties claimed by them. The learned ADJ also came to the conclusion that the Appellants had failed to prove her title to the suit property i.e. survey No.68/1 of Velsao. 6 8. As regards possession, the learned ADJ has given a finding that it is the Respondents who are in possession of the said property i.e. S. No.68/1 as per the claim made by them and this finding rendered by the learned ADJ has not been seriously contested on behalf of the Appellants, inasmuch as it otherwise also cannot be contested. 9. As regards possession, and at the outset, it must be stated that the Appellants(through the said Maria Jovita Pereira Gomes) did not claim in her statement of claim that the property claimed by her as 'Soncoralem' or 'Suncuroilem' or 'Soinkaroilem' comprised of two survey numbers, namely, Survey Nos. 71/1 and 68/1. It is to be noted that the property surveyed under No.71/1 is a vast property as compared to survey No.68/1 and it was suggested to PW1/Celsa that the property claimed by her comprised of survey No.71/1 only, a suggestion which she denied. She admitted that the students of the Infant Jesus High School at Velsao were playing on the western portion of survey No.68/1 since many years ago. She also admitted that some construction was being done therein to which she had objected to the Office of the PDA. She further stated that about 15-20 years back there were coconut trees in the said property surveyed under No.68/1 and that the same were plucked by her mother(the said Maria Jovita) but at present there were no such trees there. However, her own witness Venktesh V. Kharangate did not support her and he categorically stated that there were no coconut trees or cashew trees in survey No.68/1. As per him, there were about 100 coconut trees and 40 cashew trees in survey No.70/1. PW1/Celsa was 7 unable to state anything to the suggestion that the Communidade had allowed the said children to play in the said portion. On the other hand, the Communidade, through its attorney RW3/Brasilio Barreto had stated that the building of the Infant Jesus Secondary School is situated in the western portion surveyed under No.68/1. He further stated that in the year 1984 the said Mrs. Viegas had filed a Civil Suit No.20/84 and in that suit she had claimed that the property 'Cajual' belonged to her and against the said claim the Communidade had preferred an appeal(No.103/84) and in the said appeal a settlement was arrived at and as per the said settlement the western portion(i.e. Plot A admeasuring 1015 sq. meters) came to the Communidade while the eastern portion(Plot B admeasuring 1920 sq. meters went to Mrs. Viegas. The Respondent No.1(i.e. RW1/Jose Rui) had stated that the Communidade had permitted the Velsao Education Society to construct the school building. In case any part of survey No.68/1 belonged to the Appellants or the Appellants were in possession of the same and particularly the western portion, the Appellants would have challenged the construction being done thereon by the said Pale Education Society. It is therefore obvious that the Appellants were not in possession of any part of survey No.68/1. The evidence on record clearly shows that the Appellants(i.e. Smt. Maria Jovita P. Gomes) was never in possession of S. No.68/1 as part of their property and they were only in possession of S. No.71/1. 10. However, Mr. Kantak, the learned Counsel on behalf of the Appellants has submitted that the claim of the Appellants is based on title. He has 8 further submitted that although a Court could frame issues at any time, the learned ADJ having framed an issue, ought to have given the Appellants an opportunity to produce their evidence in support of the issue so framed. Learned Counsel further submits that although written submissions were filed, the same were not looked into by the learned ADJ. Learned Counsel has further tried to pick holes in the evidence of the Respondents submitting that the properties claimed by the Respondents as 'Cajual' or “Toloi Anexo” or “Tambeaxeta” could not have been surveyed under No.68/1 which admeasures 2950 sq. meters only while the property 'Cajual' originally admeasured 4383 sq. meters while “Toloi Anexo” or “Tambeaxeta” admeasured 2860 and thus there was a shortfall of 2035 sq. meters and therefore the properties claimed by the Respondents could not be the properties surveyed under No.68/1. Learned Counsel has further submitted that the Respondents might be having properties by those names but S. No.68/1 is not their property. 11. The Respondents have explained the shortfall stating that the areas of the respective properties was encroached by the neighbouring owners and that explanation has been accepted by the learned ADJ. Be that as it may, even if the Respondents were unable to prove that survey No.68/1 comprised of the property 'Cajual' and property “Toloi Anexo” or “Tambeaxeta” as claimed by them, they would certainly be entitled to receive the compensation as being in possession of the same in the absence of the Appellants proving their title to survey No.68/1 as part of the property allotted to her in inventory proceedings. As far as the framing 9 of additional issue is concerned, the learned trial Court could not be faulted inasmuch as there was also no question of any opportunity being given to the parties to lead evidence in terms thereof. As already stated, there were essentially two claims before the trial Court, the first from the Appellants and the other from the Respondents and each party was fully aware as to what they were required to prove. Firstly, the Appellants did not claim the property surveyed under No.68/1 as part of their property 'Soncoralem', the other part having been surveyed under No.70/1. That version came only in the evidence of PW1/Celsa. The Appellants produced the certificate of inventory proceedings at Exh.23 and it showed that the said property had land registration No.12348. However, the Appellants did not produce the Land Registration Certificate either to prove the boundaries or the area of their property. Respondent No.1 produced the sale deed dated 25-6-1950 by which Aluisio Joaquim Silverio Viegas had purchased the property from Fr. Joaquim Francisco de Assumcao e Souza known as “Toloi Anexo” or “Tambeaxeta” bounded on the east by the properties of the heirs of Jose Nazario Dias, on the west by the property of the Communidade of Velsao, on the north by the property of Maria Angelica Barreto and on the south by the property of Joquim Primo de Souza. The learned trial Court noted that the Appellants had not placed on record the Land Registration Certificate or the matriz certificate but the inventory certificate showed that the property 'Sancoralem' was bounded on the east by the property of the heirs of Nazario Dias and Joaquim Primo de Souza and others, on the west by the property of Jose Antonio Carvalho and heirs of Pedro Vincent de Souza Falcao and on the north by Pascoal do Rosario Dias Barreto and 10 others and on the south by the property of Pedro Vincente and the Communidade. The learned trial Court noted that the inventory certificate did not mention the area nor the survey numbers of the property and therefore the inventory certificate was not sufficient to prove that the property described in the said inventory certificate was surveyed under Nos.68/1 and 70/1. It was necessary for the Appellants to have produced Land Registration Certificate of their property having land registration No.12348. In the absence of production of Land Registration Certificate adverse inference has got to be drawn against the Appellants. 12. Admittedly, survey No.68/2 is adjacent to and on the east of survey no.68/1 has been recorded in the name of Nazario Dias in the survey but that in itself would not be sufficient for the Appellants to prove that their entire property i.e. survey Nos.70/1 and 68/1 was bounded on the east by the property of the said Nazario Dias. Admittedly also, Joaquim Primo Souza has his property surveyed under No.64/1 to the south of S. No.68/1 and not on west as per the documents of the Appellants. Admittedly also the southern boundary of survey No. 68/1 is a road and further south to the said road is the property of Joaquim Primo de Souza surveyed under No.64/1. By just pointing out to one boundary and that too only at the tail end of their property, the Appellants have sought to identify S. No.68/1 as part of their property. Except, for the said small extent of eastern boundary, the Appellants have not been able to identify S. No.68/1 as part of the property claimed by them. 11 13. As far as the said road is concerned the Appellants i.e. PW1/Celsa had deposed that the land beyond the said road belongs to the Communidade but in her next breath she stated that she could not positively state that the said land belongs to the Communidade or not. She had further stated that the said land could also belong to some other person. In other words, she herself was not sure about the southern boundary of her property. Moreover, she had conceded in her cross-examination that the land on the southern side was in possession of the said Joaquim Primo de Souza and thus it was clear that the property of the Communidade was not on the southern side of survey No.68/1. On the contrary Respondent No.1 had identified the property claimed by him with reference to at least three boundaries, the western boundary being of 'Cajual' of Respondent No.3 and the eastern boundary being the property of the said Nazario Dias and on the south being the property of Joaquim Primo de Souza(surveyed under No.64/1). In the given circumstances of the case, there was no other option but to accept the explanation given by the Respondents that their properties had reduced in area because of encroachments made by the neighbouring owners. Considering the evidence produced by both the parties and on balance of probabilities the Appellants had failed to prove her title as well as possession to S. No.68/1.The Respondents had taken a common stand that the said property No.68/1 included the properties claimed by them respectively. 10. In the above view of the matter, the compensation payable had to be apportioned to the Respondents in shares claimed by them. There is no merit in 12 this appeal and consequently the same is hereby dismissed with costs of Rs.5000/- to contesting Respondent No.1. N. A. BRITTO, J. RD