:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 76 OF 2004 1. Inacia Monteiro ( Since deceased ) represented by legal representatives: 1a) Mrs. Clara Monteiro, widow, 1b) Anthony Monteiro, son and his wife, 1b)(ii) Tecla Monteiro, 1c) Avelino Monteiro, son, and his wife, 1c)(ii) Sucorina Monteiro (expired) represented by the legal representatives: 1c(ii)(a) Manisha Monteiro, 1c(ii)(b) Nerisa Monteiro, 1c(ii)(c) Browin Monteiro, 1c(ii)(d) Avelino Monteiro, All residents of Canacona, Goa. 1d) Miss Sebastiana Monteiro, daughter, 1e) Miss Ruby Monteiro, daughter, (2) Filipe Monteiro ( since deceased ) represented by legal representatives: 2a) Jakina Monteiro, daughter, 2b) Menino D'Souza, Son-in-law, Both residents of Cudal, Chiplem, Poinguinim Goa. 2c) Leao Monteiro, son, 2d) Perpetua Monteiro, daughter-in-law, Both residents of Chiplem, Poinguinim Goa. 2e) Nicolau Monteiro, son, 2f) Joanita Monteiro, daughter-in-law, :2: Both residents of Chiplem, Poinguinim Goa. 2g) Maria Monteiro, daughter, 2h) Antonio Marcus Coutinho, son-in-law, Both residents of Chiplem, Poinguinim Goa. 2i) Alcina Monteiro, daughter, 2j) Mateus Fernandes, son-in-law, Both residents of Agonda Canacona Goa. 2k) Severina Monteiro, daughter, 2l) Antonio Fernandes, son-in-law, Both residents of Palolem, Canacona Goa. 2m) Adelina Monteiro, daughter, resident of Chiplem, Karegal, Poinguinim-Goa. 3. Sebastiao Monteiro (since deceased ) through legal heirs : 3a) Lourence Monteiro ( son ) 3b) Aurol Monteiro, daughter-in-law, 3c) Cruz Monteiro ( son), 3d) Ruzai Monteiro, daughter-in-law, 3e) Herculano Monteiro ( son ) All residents of Chiplem Ponguinim, Canacona Goa. 3f) Soccorina Monteiro, daughter, 3g) Bridzit Coutinho, son-in-law, Both residents of Bhatpal, Ordofond, Poinguinim, Canacona Goa. :3: 4. Caetano Monteiro ( since deceased ) through legal heirs : 4a) Domingos Monteiro (son ) 4b) Ajentina Monteiro, daughter-in-law, 4c) Estev Monteiro ( son), 4d) Ana Maria Monteiro, daughter-in-law, 4e) Girgol Monteiro ( son ) 4f) Navida Monteiro, daughter-in-law, 4g) Joao Monteiro ( son ), 4h) Shamira Monteiro, daughter-in-law, 4i) Simon Monteiro ( son ), 4j) Devdita Monteiro, daughter-in-law, 4k) Betty Monteiro, daughter, 4l) Anthony Rebello, son-in-law, All residents of Chiplem, Poinguinim, Canacona Goa. 5. Shri Antonio Monteiro, 6. Mathew Monteiro, 7. Shri Francisco Monteiro, All residents of Chiplem, Poinguinim, Canacona Goa. … Appellants V e r s u s 1. Shri Narayan Pandurang Kamat ( Expired during the pendency of the suit and Respondent Nos. 1(a) and (b) are brought on record ) 1a) Pandurang Narayan Kamat, 1b) Shripad Narayan Kamat, 2. Shashikant Vishnu Porob, 3. Taramati Atchut Kamat, 4. Shashikant Venkatesh Prabhu Gaonkar, 5. George Monteiro, :4: 6. Xavier Monteiro, ( Expired during the pendency of the suit and Respondent Nos. 6(a) and (b) are brought on record ). 6a) Rita Rebelo, 6b) Clifton Monteiro, minor, 6c) Clamsy Monteiro, 7. Santano Monteiro, 8. Ashish Monteiro, 9. Lourenco Monteiro, All residents of Chiplem, Poinguinim, Canacona Goa. … Respondents. Mr. P. S. Rao, Advocate for the Appellants. None for the Respondents. CORAM :F. M. REIS, J. DATE : 15 th OCTOBER, 2010. ORAL JUDGMENT The above Appeal challenges the judgment and award dated 12th January, 2004 passed by the learned Additional District Judge, Margao, in Land Acquisition Case No. 37/1990. The parties shall be referred to in the manner they so appear in the cause title of the impugned judgment. 2. The land was acquired by the Government pursuant to a notification under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as 'the said Act' ) dated 21st July, 1984 published in the Official :5: Gazette dated 2nd August, 1984 for the construction of road from Borus to Tirwan via Kelashi in Village Panchayat Loliem, Polem and Cotigao in Canacona Taluka. During the said acquisition an area of 3700 square metres of the land surveyed under No.15 Part was intended to be acquired. By an award dated 13th July, 1989 passed by the Land Acquisition Officer, in view of the dispute raised by different claimants, the matter was referred under Section 30 of the said Act to the learned District Judge. By the judgment and award dated 12th January, 2004, the Reference Court ordered the compensation to be paid to the Party nos. 1 to 7 to the extent of half and to the Party no.12 to 15 to the extent of 1/6th share. The claim of Party nos. 8 to 11 was rejected and the remaining amount was ordered to be refunded to the Land Acquisition Officer since no party succeeded in claiming the said compensation. 3. The Party Nos. 1 to 7 are the Appellants before this Court. Party Nos. 8 to 11 are the Respondent Nos. 1 to 4 and the Party Nos. 12 to 16 are the Respondent Nos. 5 to 9 in the above Appeal. 4. Learned Counsel Shri P. Rao appearing on behalf of the Appellants/Party Nos. 1 to 7 has assailed the impugned judgment and submitted that the Reference Court has totally misdirected itself in coming to the conclusion that the Party Nos. 1 to 7 were not entitled for the entire :6: compensation awarded in the said proceedings. Learned Counsel further submitted that the sale deed produced by the Appellants states that one half of the property was purchased by the ancestors of the Appellants. Learned Counsel further submitted that they are entitled to the remaining half as the Appellants were in possession of the entire property which has been acquired. Learned Counsel further submitted that the Deed of Partition sought to be relied upon by the Respondent Nos. 5 to 8 has nothing to do with the land acquired. Learned Counsel further submitted that the Reference Court has not at all considered the evidence on record with regard to the claim of the Appellants that they were in possession of the acquired land and as such came to an erroneous conclusion that the Appellants/Party Nos. 1 to 7 were entitled to the compensation to the extent of half share. Learned Counsel further submitted that in any event the question of refunding part of the compensation to the Land Acquisition Officer would not arise at all after the Reference Court came to the conclusion that the land acquired was a part and parcel of the property which belonged to the ancestors of the Appellants. Learned Counsel further took me through the notes of evidence as well as the documentary evidence produced by the Appellants and submitted that the documents relied upon by the Appellants have been misconstrued by the Reference Court and as such an erroneous conclusion has been arrived at by the Reference Court while passing the impugned judgment. The Respondents though served have failed :7: to remain present inspite of service. 5. In support of the claim of the Appellants/Party Nos. 1 to 7, it has been stated in their written statement that part of the property known as 'CHIPLEM' belonging to Applicant nos. 1 to 4 and Applicant Nos. 5 to 7/ Appellants herein is the land surveyed under No.15/0 and no other person has any right or interest thereof. It is further their case that the said Appellants were entitled for the entire compensation awarded in the said land proceedings. The claim of Applicant Nos. 12 to 15/Respondent Nos. 5 to 8 herein has been that the entire property 'CHIPLEM' stands surveyed under No.15/0 of Village Cotigao and that their names figure in the Index of Land. It is further their case that they are enjoining the property in common and they are entitled for 1/6th share which was enjoyed by the legal heirs of late Domingos and his wife Inacia. They accordingly claimed 1/6th share in the said compensation. As far as remaining Applicants/Respondents are concerned, the Reference Court has come to the conclusion that they are not entitled for any compensation nor that the said Applicant Nos. 8 to 11/Respondent Nos. 1 to 4 have any right to the said compensation. The Respondent Nos. 1 to 4 have not challenged the said findings of the Reference Court. The dispute as such restrict to the claim of the Appellants as to whether they are entitled for the entire compensation to the exclusion of the :8: Respondent Nos. 5 to 7. 6. AW1 who has been examined in support of the claim of the Appellants has stated that the land acquired is a part of the property surveyed under No.15/0 and has an area of 3700 square metres. He further stated that the Respondent Nos. 1 to 4 are enjoying the property. He further stated that originally the property belonging to his ancestors and the same was purchased by sale deed dated 14th September, 1936 by Simao Monteiro from Narayan Pandurang also known as Pondari Pandurang. The sale deed is at Exhibit AW1/B. The property is stated to be known as Chiplem and is registered in the Land Registration Office. He has further stated that the said Simao Monteiro is his grandfather and after his death the property devolved to his four sons. In the cross examination of the said witness, he has stated that the land registration number of the said property is 5721 and that property bears survey Nos.15, 13 and 14. He has further stated that the other half of the property Chiplem is in their possession, after one half purchased by said Simao. He has further stated that he has not filed any objection to the survey authority. On perusal of the sale deed at Exhibit AW1/B, I find that the property which was purchased by the said Simao Monteiro from one Narayan Pandurang also known as Pondari Pandurang to the extent of half of the property is denominated as Chiplem besides another property known as :9: Gotintol which is described in the Land Registration Office under land registration No.5721 and 5722 respectively. The said sale deed clearly discloses the land registration number of the entire property Chiplem. As far as the claim of the Respondent Nos. 5 to 9 is concerned, in support of their claim, they have examined Santana Monteiro as AW3. He has stated that the property Chiplem is registered under Land Registration No. 5721 and is bounded towards the east and south by the Government land, on the west by the land of Kamotim family of Swami of Partagal and on north by the land of Kamotim family which is a vast property and the same is surveyed under No.15 and 17/6. He has further stated that by Deed dated 1/5/1891 the said property was partitioned among the owners of Monteiro family and allotted 15/60 to Luis Monteiro and his wife. He has further stated that the said Luis and his wife had two children by name Domingos and Pascoela. He has further stated that Domingos and his wife had one son by name Santana who married to Ana having five children, namely Mateus, Jose Paulo, Diogo, Rosa and Sabina. He has further stated that the said Mateus is his father and that the said Diogo died first then the said Jose Paulo as bachelor and his share went to Mateus, who became the owner of 1/6th share. In the cross examination, he has stated that the descendants of Domingos are not enjoying the entire hilly area. The Deed of Partition has been produced which is at Exhibit 45. On perusal thereof one of the property partitioned therein was a :10: property known as Chiplem. Next witnesses examined as AW4 is Vasudev Hari Bhat and one Devidas Poinguinkar as AW5 who have stated that the land acquired passes through the property of Monteiro. The learned Judge while passing the impugned judgment has come to the conclusion that on the basis of the said sale deed at Exhibit AW1/B, the Appellants were entitled to 1/2 share of the compensation. As far as the claim of Respondent Nos. 1 to 4, the same came to be rejected. The claim of the Respondent Nos. 5 to 8 was accepted and they were allowed to receive 1/6th share in the said compensation. Remaining compensation was ordered to be refunded to the Land Acquisition Officer. 7. The contention of the learned Counsel appearing for the Appellants to the effect that the property which is the subject matter of the sale deed produced at Exhibit AW1/B is not the same as that which was the subject matter of the Deed of Partition at Exhibit 45 cannot be accepted. In fact there is no dispute between the Appellants and the Respondent Nos. 5 to 8 that the property is registered in the Land Registration Office under No. 5721. On perusal of the boundaries as mentioned in the Land Registration records, the boundaries tally with those as mentioned in the said Deed of Partition. The dispute raised that the land registration number is not figuring in the Deed of Partition does not advance the case of the Appellants inasmuch as it is not :11: established whether the land was in fact registered way back in the year 1891. Apart from that, as the boundaries mentioned in both the said documents are the same, there can be no reason to interfere with the findings of the Reference Court that the property Chiplem which is the subject matter of the Deed of Partition is the same property which is the subject matter of the acquisition. In fact after perusing the records, learned Counsel Shri Rao appearing for the Appellants did not assail the said findings of the Reference Court. Considering the said submissions of the learned Counsel, there can be no dispute that the land acquired under survey No.15/0 was a part and parcel of the property Chiplem which belong to the Monteiro family. 8. There is no dispute that the Appellants as well as the Respondent Nos. 5 to 8 originally came from the same Monteiro family. The Reference Court has come to the conclusion that the property belongs to Monteiro family and as such the question of refunding part of the compensation to the Land Acquisition Officer would not arise. The Reference Court was justified in disbursing the compensation to the extent of half in favour of the Appellants on the basis of the sale deed at Exhibit AW1/B and to the extent of 1/6th on the basis of the Deed of Partition as well as the other evidence adduced by the Respondent Nos. 5 to 8. Only aspect remains to be considered is whether the Reference Court was justified in refunding the balance amount to the extent of :12: 4/12th share to the Land Acquisition Officer though the Reference Court has come to the conclusion that the land acquired was part of the property known as Chiplem, and is registered in the Land Registration records under No.5721. There is no dispute that the Appellants are also the descendants of the said Monteiro family. The compensation is to be paid under the provisions of the said Act to the person known or believed to be interested in the land whether or not they appear before the Land Acquisition Officer. In such circumstances, the contention of the Appellants that they were in possession of the acquired portion would assume importance. It was necessary that the Reference Court ought to have considered as to whom the remaining share of the property devolved and to ascertain whether any party before the Reference Court would be entitled to receive the said compensation on their behalf or otherwise. The learned Reference Court has not carried out such an exercise and as such the learned Counsel appearing for the Appellants was justified to contend that the Reference Court has committed an error in directing the refund of the compensation to the extent of 4/12th share to the Land Acquisition Officer. Learned Counsel for the Appellants further pointed out that the Appellants would be in a position to lead further evidence to substantiate their claim that they are also entitled to receive the said 4/12th share in the said compensation. In such circumstances, the Reference Court will have to decide as to whether the Appellants or any other claimants before the Reference Court are entitled :13: to receive the said remaining compensation of 4/12th share awarded by the Land Acquisition Officer. For such purpose, and in the interest of justice, it would be appropriate that the matter be remanded for deciding the said aspect after permitting the parties to lead evidence in support of their claim. 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 is modified to the extent that it directs that remaining amount, if any, shall be refunded to the Land Acquisition Officer since no party succeeded in claiming the said share is quashed and set aside. (iii) The remaining part of the impugned judgment awarding the compensation to the Appellants and Respondent Nos. 5 to 8 is confirmed. (iv) The Reference Court is directed to decide the reference afresh as to who is entitled to receive the remaining compensation which works out to 4/12th share in the said compensation after permitting the parties to lead further evidence if they so desires in :14: accordance with law. (v) The Appeal stands disposed of accordingly with no orders as to costs. F. M. REIS, J. at*