1 IN THE HIGH COURT OF BOMBAY AT GOA PANAJI LETTERS PATENT APPEAL NO. 15/2000 1. Shri Sanjay Z. Rane, 2. Smt. Zanyogita Z. Rane, 3. Shri Jitendra Z. Rane, All residents of Vithalpur, Sanquelim, Goa. 4. Smt. Jyoti Botelho, Ribandar, Goa. .......... Appellants. V/s. 1. Smt. Saibai S. Dubaxi, (since deceased) through her legal representatives - (a) (i) Motiben Shivaji Nadkarni, (ii) Subhash S. Nadkarni, (iii) Santosh S. Nadkarni, (iv) Sandeep S. Nadkarni, (v) Sudin S. Nadkarni, All residing near Aquem Post Office Margao, Goa, (b) (i) Mr. Sitakant Shivaji Dubashi, (ii) Mrs. Shantabai Sitakant Dubashi, both residents of Sanquelim, Goa. (c) (i) Mr. Vajrajeet Shivaji Dubashi, (ii) Mrs. Shailaja Vajrajeet Dubashi, Both residents of Sanquelim, Goa. (d) (i) Mrs. Pratibha alias Krishnabai Balkrishna Kulkarni, (ii) Mr. Balkrishna Narayan Kulkarni, Both residents of C/o. Bombay 2 Trading Co., Sawantwadi, Dist. Sindhudurga; (e) (i) Mrs. Durgabai (Baban) Jagdishrao Valaulikar, (ii) Mr. Jagdish Shripadrao Valaulikar, Both residents of Near Power House Aquem, Margao, Goa (f) (i) Mrs. Mohini Ratnakar Kamat Maad, (ii) Mr. Ratnakar Krishna Kamat Maad, Both residents of Vidyanagar, Aquem, Margao, Goa. (g) Late Mrs. Jadit Mohan Prabhu Colwalkar, (i) Mr. Mohan Raghuvir Prabhu Kolwalkar, (ii) Mrs. Swapnil Kotnis, (iii) Mr. Sunil M. Kolwalkar, (iv) Miss Supriya Kolwalkar, All residents of C/o. Pharmacia Colvalkar, Margao, Goa. (h) (i) Mr. Ashok Shivaji Dubhashi, (ii)Mrs. Swarupa Ashok Dubhashi, Both residents of Sanquelim, Goa. (i) (i) Mr. Suhas (Daji) Shivaji Dubhashi, (ii) Mrs. Suchita Suhas Dubhashi, Both residents of Sanquelim, Goa. (j) (i) Dr. Suresh Shivaji Dubhashi, (ii) Mrs. Medha Suresh Dubhashi, Both residents of Sanquelim, Goa. (k) (i) Mr. Shravan (Rudraksh) Shivaji Dubhashi, (ii) Mrs. Seema Shravan Dubhashi, Both residents of Sanquelim, Goa. 2. Smt. Manoramabai Rauji Rane (deceased) by her legal representative : a.(i) Shri Fatesingh Raoji Rane, (ii) Smt. Ashadevi Fatesingh Rane, Both residents of Napean Sea Road, Bombay 400 006. b.(i) Shri Pratapsingh Raoji Rane, 3 (ii)Smt. Vijayadevi Pratapsingh Rane, both residents of Vithalapur, Sanquelim, Goa; c. (i) Smt. Shalinidevi Satroji Rane, (ii) Shri Rajsingh Satroji Rane, (iii)Smt. Sarita Rajsingh Rane, All residents of Vithal Krupa Nagala Park, Kolhapur, Maharashtra. d. (i) Co. H.N. Jagtap, (ii) Smt. Hiradevi H. Jagtap, both residents of Tadiwalla Road, Jagtap Park, Poona 5, Maharashtra. e. (i) Shri Prataprao Chowgule, (ii)Smt. Sarladevi P. Chowgule, both residents of Datta Prasad, (iii) Shri Mahendrasingh D. Mukne, (iv) Smt. Padmini R. Eswaran, residents of Modi Bang, Ganesh Khing, Poona 411 005, Maharashtra. f.(i) Shri Digvijay Singh Makne (deceased) (ii)Smt. Indiradevi Makne, (iii)Shri Mahendrasingh D. Makne, (iv) Smt. Padmini R. Eswaran, Residents of Modi Bang, Ganesh Khing, Poona 411 005, Maharashtra. g. (i) Shri Jayant Dhanwate, (ii)Smt. Jwantala J. Dhanawate, Both residents of Ramdeandra Reddy Layout, Begun Peth, Hyderabad 16, Andhra Pradesh. ........ Respondents. Mr. S. K. Kakodkar, Senior Advocate with Mr. Rama Rivonkar, Advocate for the appellants. Mr. S. G. Dessai, Senior Advocate with Ms. S. Rodrigues Advocate 4 for the legal heirs of respondent no.1; Mr. S. Vahidulla, Advocate for legal heirs of respondent No.2. CORAM : B.P. DHARMADHIKARI & U.D. SALVI , JJ. Date of reserving the Judgment : 9th June, 2009. Date of pronouncing the Judgment : 22nd June, 2009. J U D G M E N T : (Per B.P. DHARMADHIKARI, J.) Letters Patent Appeal was disposed of on 18.9.2002 by this Court and said Judgment was challenged in Special Leave Petition by the present appellants before the Hon'ble Apex Court. Hon'ble Apex Court vide its Order dated 13.10.2004 delivered in Civil Appeal No.1416/03, remanded the matter back to this Court in view of the Judgment of Full Bench of this Court in case of Rahul Sharad Awasthi vs. Ratnakar Trimbak Pandit and ors., 2004 (3) Mh.L.J. 706. It appears that on 18.9.2002, this court took a view that Section 4 of Code of Civil Procedure (Amendment) Act, 2002, especially in relation to Section 100A thereof was applicable retrospectively and, therefore, letters patent appeals already filed were not maintainable. This Court, at that 5 time, granted certificate under Article 134, r/w Article 133 of the Constitution of India to the appellants in LPA No.7/96. In view of the orders dated 13.10.2004 of the Hon'ble Apex Court, the present appeal has been listed before this court. The judgment impugned in this appeal is delivered by learned Single Judge of this court on 12.10.99, dismissing First Appeal No.116/197 filed by the present appellants. The said first appeal challenged the Judgment and Order delivered in reference proceedings under Section 18 of the Land Acquisition Act, 1894 by the District Judge, Panaji. 2. The State of Goa acquired a part of land surveyed under Survey No.106, admeasuring 21,450 sq. metres for construction of a canal. Compensation for said land acquisition was paid to original respondent No.2, Smt. Manoramabai Rauji Rane (now deceased). Respondent No.1 Smt. Saibai S. Dubaxi (now deceased) claimed 1/3rd joint and undivided share in the said land and along with 5 other persons applied to the Special Land Acquisition Officer (SLAO) to make reference to the District Court under Section 18 of the Act and sought enhancement of compensation. That application was rejected by the SLAO and hence, all of them filed Writ Petition No.261 of 1986 6 before this Court and vide Judgment dated 9.2.1988, this Court directed SLAO to make reference to District Court. Civil Suit No.718/85 (later on numbered as Civil Suit No.1/88) filed by the present respondent No.1 and some other persons in relation to very same property and pending on the file of Civil Judge, Sr. Division, Bicholim was also transferred to District Court, Panaji with direction to try and dispose of it along with reference proceedings. The appellants, thereafter, moved the SLAO for making reference under Section 18 of the Act, claiming 2/3rd interest in the acquired land. The SLAO declined that request and they approached this High Court in Writ Petition No.212/88 and vide Judgment dated 22.11.88, this Court directed SLAO to make reference. Accordingly, reference No.19/89 was made to the District Court, Panaji. It is not in dispute that all three proceedings have been tried together. By separate Judgment delivered on 10.6.1995, the learned District Judge, dismissed the suit filed by respondent No.1 and decreed counter-claim made by present respondent No.2 in that suit. By another Judgment on same day, Land Acquisition Case No.19/89 also came to be dismissed. The reference Court found that the present appellants could not prove that suit plot which was part of Survey No.106 belonged to them. It further found that respondent No.1 Smt. Saibai 7 also could not prove that any part thereof belonged to her. While answering issue No.3, it held that respondent No.2 Smt. Manoramabai proved that she was owner of survey No.106 and, therefore, compensation was rightly paid to her. Against this adjudication, the applicants in LAC No.19/89 filed First Appeal No.116/97 before this Court and after hearing the parties, above findings have been maintained by the learned Single Judge vide impugned Judgment dated 12.10.99. This Court while hearing the LPA on 9.8.2000 issued notice and then admitted the LPA for final hearing on 5.9.2000. One of the contentions of present respondent No.2 (through her legal heirs) is that the appeal has been admitted only on limited aspect, as notice issued was restricted. Hence, reference to both these orders passed while issuing notice and admitting the LPA in more details is warranted little later. 3. In this backdrop, we have heard Senior Advocate Mr. S. K. Kakodkar with Mr. Rama Rivonkar for the appellants and Senior Advocate Mr. S. G. Dessai with Ms. S. Rodrigues for the legal heirs of respondent no.1 and Advocate Mr. S. Vahidulla for legal heirs of respondent No.2. The relationship between the parties is not in dispute 8 and family tree is admitted. We will refer to it during the course of Judgment. It is to be noted that respondent No.1 did not challenge the Judgment delivered by the District Judge, dismissing her civil suit and her reference application. 4. Shri Dessai has raised a preliminary objection and contended that the LPA as filed, is not maintainable because the Bombay High Court, having its Bench at Goa cannot and does not retain jurisdiction to entertain intra court appeals in view certain specific legal provisions. We wish to consider this controversy after narrating the arguments of parties on merits. Accordingly, we proceeded to hear learned Senior Advocate Mr. Kakodkar on merits of controversy. 5. Advocate Kakodkar has urged that the contention about limited scope of present appeal on merits because of alleged restriction placed in Order dated 9.8.2000 while issuing notice is misconceived. On merits, it is contended that learned District Judge as also the Learned Single Judge of this Court were in error in holding that the property surveyed under Survey No.106 belonged to Manoramabai or 9 was in her possession. He insisted and on several times repeated that one of the sons of Manoramabai by name Pratapsingh (present respondent No.2(b)) is an influential politician belonging to ruling party and at the relevant time he was Minister in the State of Goa and because of his influence over Revenue Department and Forest Department several documents were fabricated to suit the design of showing his mother Manoramabai as owner of field survey no.106. He states that both the Courts have erroneously concluded that the said field was having local name “Pondornichem Mol” while actually it is “Culan”. He states that there was field property called “Languem Culan” and it was later on sub-divided into “Baillem Culan” and “Culan”. According to him, “Culan” forms the subject-matter for present consideration. He has attempted to demonstrate that the said “Languem Culan” initially belonged to one Morajkar, against whom a Decree was obtained and for satisfaction of that Decree, the Court auctioned the said property way back in 1936-37. In that auction, the said property was purchased by Rauji Satroji Rane, i.e. husband of original respondent No.2 Manoramabai, but then that purchase by Rauji was for Zaidev, son of Satroji Rane and when said Zaidev expired in 1956 as there was no lineal descendant, in inventory proceedings Rauji Satroji Rane came to 10 be appointed as an Administrator. While disclosing and declaring properties of Zaidev, Rauji Rane declared this property i.e. the suit property as the property of Zaidev and that property was accordingly apportioned between heirs of Satroji Rane who happened to be the real cousin of Zaidev. These properties in those inventory proceeds devolved upon heirs of Ahilyabai wife of Satroji Rane and not upon heirs of his other wife by name Rukminibai who expired way back in 1905. He invited attention to public notice of auction proceedings and also to inventory proceedings to substantiate this stand. In this background, it is his contention that when the title to suit property has been established by the appellants, the finding about title of Manoramabai based only upon revenue entries or then because of presumption under Section 105 of the Goa Land Revenue Code is unsustainable. He has attempted to show that the finding on issue of title in favour of Manoramabai recorded by the trial Court, as also the learned Single Judge of this Court is also erroneous. He points out that the Courts have proceeded on the basis that earlier the suit property was having Cadastral Survey No.1 and in the survey undertaken in 1973 and completed in 1976 it was given survey No.106. He points out the huge difference in area of these survey numbers to contend that these 11 properties are clearly distinct and separate. The other evidence on record is also shown to urge that field known as “Pondornichem Mol” was some other property and not “Culan”. He states that because of Vithal Temple and idol in that field, it was named “Pondornichem Mol”. He invites attention to boundaries of the field to show that the findings in this respect, as reached, are clearly contrary to recored. 6. According to him, the records of Revenue Department or the Cadastral survey, as relied upon by both the Courts to hold that Cadastral survey No.1 and Survey No.106 are one and same, have not been proved in accordance with law. He states that xerox copy of old Cadastral map was admitted on record during the evidence of Respondent No.2(a) Fatehsingh without any objection and that document has been mechanically used against these appellants by treating as if they had consented to it. He states that said document was originally exhibited in a reference case filed at the instance of respondent No.1 Smt. Saibai Dubaxi as Exhibit RW.1/C and the present appellants were not parties to the said proceedings. The order sheets recorded in reference case filed by the present appellants show that more than 2 years thereafter said examination-in-chief of Fatehsingh 12 and his cross examination by Saibai Dubaxi was accepted as evidence in reference case of the present appellants and they cross examined Fatehsingh further. He contends that while adopting the said evidence of Fatehsingh as evidence in case of the present appellants, in order sheet consent of present appellants has been recorded, but then the consent is only for the purposes of adoption of examination-in-chief and cross examination of Fatehsingh as evidence in appellants' reference. By no stretch of imagination the said consent can be said as consent for exhibiting the document Exhibit RW.1/C. In the alternative, it is contended that though document is exhibited, it does not mean that contents of said document are also proved. According to him, the contents of said document ought to have been independently proved and he invites attention to map of old Cadastral survey at Exhibit X-1 produced by the appellants to urge that the legend appearing on Exhibit RW.1/C does not find mention on Exhibit X-1. The said legend which mentions Cadastral Survey No.1 as “Pondornichem Mol” is introduced at the instance of respondent No.1 on copy only and it does not form part of original Cadastral survey. According to him, therefore, proving contents of document was essential. Reliance upon this document to show that survey No.106 is not “Culan”, but “Pondornichem Mol”, is 13 clearly an error. 7. He points out that Rauji Satroji Rane, husband of respondent No.2 not only accepted the said property to be of Zaidev, but also allowed it to be apportioned as property of Zaidev and as per Article 2158 of the Portuguese Civil Code, the allottees became absolute owners of that property after inventory proceedings which concluded in 1960. He states that Rauji Satroji Rane died in 1968 and the provisions of the Benami Transactions (Prohibition) Act, 1988 (referred to as “1988 Act” hereafter) came into force 20 years thereafter. The appellants were owners after 1960 and right from the date of purchasing it in auction their predecessor-in-title was the owner. Hence, there was no question of raising plea of benami as such in the matter by the appellants and the bar worked out by both the courts under the said Act as such is misconceived. 8. Emphasizing the circumstances in which the matter reached the District Court in reference and after inviting our attention to order sheet maintained in the reference proceedings, it is contended that the entire trial stands vitiated as there were no pleadings on record. It is 14 pointed out that after reference was filed and reached the District Court, the said Court issued notices to respondents No.1 and 2 for filing written statement and though written statement was not filed, ultimately the matter was fixed for evidence and parties led evidence without any pleadings. He points out Judgment of Division Bench of this Court reported at 1990(2) Goa L.T. 225, Union of India vs. Mrs. Maria Julia Viegas, to state that in the said Judgment the Division Bench of this Court has taken a view that pleadings are not very relevant and in view of that law, all parties proceeded further with the trial in the absence of pleadings. He invited attention to the Judgment reported at 2006(2) Bom. C.R. 84, Jacinto Minguel De Quadros Barretto & Ors. vs. Haridas Maruti Kamat & anr., to point out that reference proceedings under Section 18 are in the nature of interpleader's suit and pleadings are essential. According to him, the controversy whether Survey No.106 was “Pondornichem Mol” or “Culan” ought to have been pleaded and the parties needed previous notice of such case before they entered witness box. He points out that in present circumstances field property known as “Languem Culan” of Morajkar was auctioned and purchased by Zaidev. In due course of time “Languem Culan” was sub-divided as “Baillem Culan” and “Culan”. In view of these developments, he 15 contends that unless and until parties had notice of all these developments and there were pleadings to that effect, the Courts below could not have proceeded further with trial. He also argued that it was an obligation cast upon the Court to direct parties to file their pleadings and hence in the absence of such order, the trial is vitiated. 9. He points out that two letters, allegedly written by Manoramabai claiming compensation for the acquired land have not been produced on record and have not been proved. Whether the letters were written by Manoramabai or her authorised attorney. In what capacity compensation was claimed and contents of those letters are very relevant and as those letters did not come on record, payment of compensation to Manoramabai could not have been maintained. He states that though this contention was specifically raised before the trial Court as also before the lower appellate Court, the aspect has been lost sight of by them. 10. To support his contention that the appellants have proved their ownership and possession over the acquired land, the learned Senior Advocate has taken us extensively through the oral evidence, as 16 also documents on record. 11. To counter the contention that LPA has been admitted only on limited grounds, order dated 9.8.2000 issuing notice before admission is pointed out to show that it does not decide any aspect. It is further contended that while admitting the LPA on 5.9.2000, this Court has admitted the appeal on all grounds and the order issuing notice before admission therefore merges into the final order of admission. According to the learned Senior Advocate, therefore, the argument of restricted or limited admission is not proper in present circumstances. Our attention is also invited to provisions of Order 41, Rule 11 and Rule 12 of Code of Civil Procedure to point out that there has to be either complete admission or then complete dismissal of appeal. To support the contention, reliance has been placed upon Judgments of the Hon'ble Apex Court reported at AIR 1982 SC 1223, Ramji Bhagala vs. Krishnarao Karirao Bagre and anr., Full Bench Judgment of this Court reported at AIR 1934 Bombay 207, Krishnaji Shrinivas Jalvadi vs. Madhusa Appansa Ladaba and Judgment of Madras High Court reported at AIR 1940 Madras 483, Vattipalle Eswariah vs. Vattipalle Rameswarayya. 17 12. Senior Advocate Dessai, on the other hand, has contended that the reference, as filed, is clearly by way of afterthought and malafide one. Notification under Section 4 of the Land Acquisition Act was published on 28.2.1986 for acquiring 21,450 sq. metres of land, surveyed under Survey No.106 and Notification under Section 6 was published on 18.9.1986. These notifications disclose Manoramabai as owner and in possession. This was because of mention of her name as such in the revenue records prepared as per provisions of Goa Land Revenue Code, 1968. Our attention has been invited to provisions of Sections 105 and 107 of the Code for that purpose. It is further stated that it has not been disputed that present survey No.106 was having old cadastral survey No.1 and old cadastral survey number mentioned Satroji Rane as occupant. Our attention has been invited to new survey map at Exhibit P.W.1/B to show that there is public road on its southern side which goes from Bicholim to Sanquelim. The old cadastral at Exhibit R.W.1/C is also pointed out to show that it mentions the name of property as “Pondornichem Mol”. It is stated that in view of this position, it is apparent that notices under Land Acquisition Act were rightly issued in the name of Manoramabai and served upon her. 18 Compensation was, accordingly, awarded to her in Award made on 27.11.1986 and present appellants never claimed any interest in that land. When respondent No.1 Saibai Dubhaxi claimed 1/3rd right in survey No.106 and contended that it was part of “Codal” and also stated that 2/3rd belong to Ranes (the appellants), the appellants filed an application on 26.5.1987 under Section 18 and sought reference. He points out that this application dated 26.5.1987 has not been exhibited, but the present proceedings were initiated because of it and it mentioned the property as “Culan” and Zaidev was alleged to be 2/3rd owner thereof because of purchase in auction in 1938. When SLAO rejected the said application, Writ Petition was filed in 1988. He, therefore, states that the appellants have acted by way of afterthought and were never diligent. 13. He further points out that in view of this position, hence the burden lay upon the appellants to prove their title to the acquired property and the appellants did not produce any title document in support of their stand. They rely upon the notice of auction and thereafter, the actual auction proceedings in which 1/3rd property went to Dubaxi and 2/3rd property was purchased by Rauji Satroji Rane. He 19 contends that there was no document to show any purchase by Zaidev and 3 properties of Morajkars auctioned then did not include the acquired property. Story of benami ownership of Zaidev was evolved only after document Exhibit RW.1/G was produced by respondents to show that acquired property did not form subject-matter of said auction. Attention is invited to items at serial Nos. 73 and 74 in inventory proceedings relied upon by the appellants to urge that there was no public road on southern side of the said property and the properties mentioned therein were not registered while property possessed by Rauji is registered as per document Exhibit RW.1/G. It is further argued that no document has been filed on recored to show that “Languem Culan” was at any point of time bifurcated into “Baillem Culan” and “Culan”. It is contended that in fact there was no such case put to any of the witnesses of the respondents by the appellants. Learned Senior Counsel has compared boundaries of Items No.73 and 74 in an attempt to show that these properties situate side-by-side and not one above the other. In these circumstances, it is contended that both Courts have correctly held that the appellant has failed to prove their title to the acquired property. 20 14. Our attention has been invited to inventory proceedings of 1905 vide Exhibit RW.1/D to show that the cadastral survey no.1 which formed item No.21 therein was sub-divided, but came to lineal ascendant Rukminibai of these respondents and did not go to Ahilyabai. It is further stated that boundaries thereof clearly demonstrate that it is survey No.106. In this background, by referring to exhibit RW.1/C it is urged that acquired property has been rightly held to be “Pondornichem Mol” by both the Courts. It is stated that in 1905, the property came to branch of present respondents and the branch of appellants lost any title or interest to the said property. For this purpose, our attention has been invited to evidence tendered by Shri Sanjay Rane on behalf of the appellants and their witness (surveyor) Prazeres Gonsalves. The impugned order passed by the learned Single Judge is stated to be in accordance with the material on record. 15. The difference in area, as appearing in revenue records, is sought to be explained by pointing out evidence of AW.2 Gonsalves and also evidence of Fatehsingh for the respondents. It is urged that 10000 sq. metrs mentioned in