1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.337 OF 2005 Shree Rawalnath Devasthan, represented by the President of its Managing Committee with its office at Sanvordem, Sanguem Taluka – Goa. …. Appellant V/s Shri Bhaurao Vithal Ghaisass, r/o. Near Rawalnath Temple, Sanvordem, P.O. Curchorem, (Since deceased, through LR's) 1. Smt. Sulabha Bhaurao Ghaisas, widow, major; 2. Shri Vithaldas Bhaurao Ghaisas, son, major; 3. Shri Pushparaj Bhaurao Ghaisas, son, major; 4. Shri Laxmiprasad Bhaurao Ghaisas, son, major; All residents of Sanvordem, Sanguem, Taluka – Goa. …. Respondents Mr. S.D. Lotlikar, Senior Advocate with Mr. K.B. Surjuse, Advocate for the Appellant. Mr. I. Agha, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 29th JULY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 21/10/2005, passed by the learned Additional District Judge, South 2 Goa, Margao in Land Acquisition Case No.425/1995. 2. By the impugned judgment the Reference Court has disposed the reference under Section 30 of the Land Acquisition Act, 1894 (herein after referred to as “the said Act”) wherein there was a dispute with regard to the apportionment of compensation between the appellants and the respondents in respect of the land acquired admeasuring an area of 175 square metres from the property surveyed under no.1/5 of Sanvordem village which was acquired for the construction of the road to Dudhgal in Village Panchayat of Savordem in Sanguem Taluka. By the impugned judgment, the Reference Court has come to the conclusion that both the parties have failed to adduce evidence to substantiate their claim of title with regard to the acquired portion of the land and on the basis of the evidence on record has come to the conclusion that the respondents were in possession of the land acquired and, as such, directed that the compensation awarded be apportioned in favour of the respondents. 3. Shri S.D. Lotlikar, the learned Senior Counsel appearing for the appellants has assailed the impugned judgment and pointed out 3 that the land acquired under survey no.1/5 belongs to the appellants as according to him there is a purush located in the said property and a temple situated in the adjoining property surveyed under no.1/4. The learned Senior Counsel further submitted that the Reference Court has totally misdirected itself in coming to the conclusion that the respondents were in possession of the acquired portion of the land. The learned Senior Counsel further submitted that admittedly there were no fruit bearing trees or any other trees in the acquired portion of the land and, as such, the question of claiming that the acquired land was in actual possession of the respondents would not arise. The learned Senior Counsel further submitted that the entire property claimed by the appellants under survey no.1/4 and 1/5 corresponds to the property inscribed in the matriz record under no.40 which stands in the name of the appellant. The learned Senior Counsel further submitted that admittedly the survey records have not been promulgated and, as such, the question of drawing any presumption under the Land Revenue Code would not arise. The learned Senior Counsel, on the contrary, pointed out that the presumptions stand in favour of the appellant as according to him the property inscribed under no.40 stands in the name of the appellant and in view of the provisions 4 under Section 107 of the Land Revenue Code, the presumption of possession flows in favour of the appellant. The learned Senior Counsel took me through the impugned judgment as well as the evidence on record and pointed out that the learned Judge has erroneously come to the conclusion that the respondents were in possession of the acquired portion of the land, and as such the impugned judgment deserves to be quashed and set aside and the compensation awarded be ordered to be paid to the appellants. 4. On the other hand, Shri I. Agha, the learned Counsel appearing for the respondent has supported the impugned judgment. The learned Counsel submitted that the appellant has failed to establish that he was in possession of the property surveyed under no.1/5. According to the learned Counsel, the said property is in possession of the respondents and according to him the respondents have their residential house located therein besides mundkarial houses which were erected by the respondents. The learned Counsel further submitted that the purush which is existing in the said property belongs to the respondents. The learned Counsel further submitted that the question of relying upon the matriz record to draw the presumption in favour of the appellants 5 does not arise at all as the respondents are in possession of the land acquired. The learned Counsel further submitted that the respondents have carried out plantation in the property surveyed under no.1/5 and, as such, there is no infirmity committed by the Reference Court in coming to the conclusion that the respondents were in possession of the acquired portion of the property. The learned Counsel further submitted that there was an earlier acquisition for the water pipeline and the amount was received by the respondents. The learned Counsel further submitted that there is no error committed by the Reference Court to come to the conclusion that the respondents were in possession of the acquired land and, as such, there is no infirmity committed by the Reference Court in directing that the compensation awarded by the Land Acquisition Officer in the award under Section 11 of the said Act be paid to the respondents. The learned Counsel, as such, submitted that the appeal deserves to be rejected. 5. Having heard the learned Counsel and on perusal of the record, there is no dispute that the survey records in respect of the property surveyed under no.1/5 have not been promulgated. On perusal of the records of the Reference Court, I find that the records 6 in form no.III have been produced. This itself discloses that there is no record of right promulgated which has to be in form no.1. As such, the question of drawing any presumption under Section 105 of the Land Revenue Code would not arise, merely because their names figure in form no.III. Apart from that it is born out from the records that the property inscribed under no.40 also corresponds to the property surveyed under no.1/5. Considering the said aspect, Shri Lotlikar, the learned Senior Counsel is justified to contend that under the provisions of Section 107 of the Land Revenue Code the presumption has to be drawn in favour of the appellants, but however Shri Agha the learned Counsel appearing for the respondents has pointed out that this Court has held that the matriz record are not documents of title. There can be no quarrel to the said preposition as it is well settled that revenue records do not create any title. The fact remains that the Reference Court came to the conclusion that the respondents have failed to adduce any evidence to establish that they are in possession of the acquired portion of the property. The only aspect to be considered is as to whether the appellant or the respondents have established their exclusive possession as far as the acquired portion of the land is concerned. 7 6. During the course of the hearing of the appeal it was pointed out that this Court by judgment dated 17/06/2011 in First Appeal No.338/2005 in respect of the acquisition of the portion of the property surveyed under no.1/4 has kept the issue of title as well as the contentions of both the parties with regard to the remaining portion of the land open to be adjudicated in appropriate forum and directed that the compensation awarded be apportioned in favour of the appellant and respondents therein in the proportion of 50:50. 7. Shri Agha the learned Counsel appearing for the respondents has pointed out that the said judgment is not binding on the respondents considering the fact that the respondents were not parties to the said proceedings. Though the said judgment may not be binding on the respondents, nevertheless the judgment becomes relevant for considering the matter in controversy. There is no dispute that in the acquired portion of the land there were no fruit bearing trees nor any evidence adduced by the parties to establish that any trees were planted in the acquired portion of the land. No doubt, it is come on record that as far as the remaining portion of the land is concerned the respondents were occupying the 8 residential house therein. Apart from that it is sought to be contended by Shri Agha, the learned Counsel appearing for the respondents that as regard to earlier acquisition the compensation was received by the respondents. No doubt, merely receiving such compensation may not defeat the right of the appellant in the property, as there is no evidence adduced as to whether there was any adjudication on the respective claims. 8. Considering the overall evidence on record and on the basis of the judgment passed by this Court dated 17/06/2011, in the interest of justice the compensation awarded by the Land Acquisition Officer is to be apportioned in the ratio of 50% to the appellant and 50% to the respondents with respective accrued interest thereon. As far as the issue of title is concerned, the matter will have to be kept open to be adjudicated in appropriate proceedings in accordance with law on its own merits. Contentions of both the parties to that effect are left open. Any findings rendered above or findings recorded in the impugned judgment will not affect the rights of the parties, to establish their respective claims in appropriate proceedings which shall be considered without being influenced by any such findings. 9 9. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment dated 21/10/2005 stands modified and the compensation awarded by the Land Acquisition Officer with accrued interest thereon is directed to be apportioned 50% in favour of the appellant and 50% in favour of the respondents. (iii) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-