1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.212 OF 2005 Shri Gopinath Purshottam Kamat, residing at Manaswada, Kundai, Goa – 403 115. …. Appellant V/s Shri Bhagwant Sadanand Kamat, residing at Lima Vaddo, Kenney Apartments (3), First Floor, Porvorim, Goa. …. Respondent Mr. R.G. Ramani, Advocate for the Appellant. Respondent in person. CORAM : F.M. REIS, J. DATE : 11th FEBRUARY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 31/03/2005 passed by the learned Additional District Judge at Panaji in Land Acquisition Case No.237/1996. 2. By a notification issued under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as “the said Act”, a portion of the property surveyed under no.119/3 of Kundaim village of Ponda Taluka was sought to be acquired by the Government, admeasuring an area of 100 square metres for the 2 broadening of the road. In view of the dispute raised between the appellant and the respondent, the Land Acquisition Officer while passing an award under Section 11 of the said Act, made a reference under Section 30 of the said Act to the learned District Judge to adjudicate the said dispute. By judgment and award dated 31/03/2005, the Reference Court held that the respondent was entitled to 1/64th share of the compensation awarded by the Land Acquisition Officer. Being aggrieved by the said judgment and award, the appellant has preferred the present appeal. 3. Shri R.G. Ramani, the learned Counsel appearing for the appellant has assailed the impugned judgment and submitted that the Reference Court has misdirected itself in coming to the conclusion that the respondent was entitled to 1/64th share of the compensation awarded. The learned Counsel took me through the statement of claim put forward by the appellant and pointed out that according to the appellant the acquired portion of the property was part and parcel of the property known as “Toximo” which is registered in Land Registration Officer under no.2325 which was purchased by the appellant pursuant to the sale deed dated 26/09/1945. The learned Counsel further submitted that pursuant to the said purchase the property came to be inscribed in the name 3 of the father of the appellant by inscription no.16758 of Book No.G-29 at page 54. The learned Counsel further submitted that the survey records in respect of the property surveyed under no.119/3 stand in the name of the appellant and, as such, there is a presumption in favour of the appellant under the provisions of Section 105 of the Land Revenue Code. The learned Counsel further submitted that the respondent has failed to establish that he was the co-owner of any portion of the land acquired and, as such, he pointed out that the impugned judgment deserves to be quashed and set aside. 4. On the other hand, the respondent who appeared in person submitted that the property originally belonged to the family of Narayan Duglo Kamat from whom a share devolved upon the respondent. The respondent further submitted that he had document in modi language which established that the property originally stood in the name of common ancestor and as per the shares the respondent is entitled to 1/64th share in the acquired portion of the property. The respondent further pointed out that once the property is shown belonging to the common ancestors, the presumption is that the same is undivided. The respondent further submitted that the Reference Court has rightly considered the 4 evidence on record and has come to the conclusion that the respondent is entitled to 1/64th share in the acquired portion of the property. 5. Having heard the learned Counsel for the appellant and the respondent in person and on perusal of the record, the following point for determinations arises in the present appeal: POINT FOR DETERMINATION (i) Whether the Reference Court was justified in directing that 1/64th share of the compensation is to be paid to the respondent. 6. On perusal of the records, I find that it was the case of the appellant that the acquired portion of the property was surveyed under no.119/3 and the same was part and parcel of the property which was registered in Land Registration Office under no.2225. It was further his case that the father of the appellant had purchased the said portion of the property pursuant to the sale deed executed in the year 1945 and thereafter the property came to be inscribed in the name of Purshottam Duglo Kamat. It is further their contention that the respondent had no right at all to the acquired portion of the property and that the acquired land is not undivided and the same belongs exclusively to the appellant. The records further reveal 5 that the respondent stated in his statement of claim that the acquired portion of the property is part and parcel of the entire property “Mauzekaralem” and was originally owned by late Ramchandra Vithoba Kamat, Duglo Venk Kamat, Pandi Crisna Kamat and Jivaji Sinai. It is further his case that in the year 1890 to 1899 it was owned by five different persons including Ramchandra Vithoba Kamat, Vithoba Venk Kamat and Narayan Duglo Kamat and his other brothers Pundalik Kamat and Jivaji Sinai. It is further his case that the property is undivided and, as such, according to the respondent he was entitled to 1/64th share in the acquired land. 7. On perusal of the cross-examination of the respondent, I find that the respondent has admitted that the acquired portion of the property forms part and parcel of the property which is described in the Land Registration Office. No doubt there is typographical error in the statement of the claim put forward by the appellant, nevertheless, on perusal of the sale deed as well as the land registration document which has been produced at the time of the filing of the claim before the Reference Court, the typing error is apparent and obviously the land registration number is 2325 and not 2225. The book number as well as the inscription number of 6 the said property in favour of the father of the appellant is the same. As such, it is not open to the respondent to advance his claim on the basis of the typing error in the statement of the claim put forward by the appellant, specially considering that the document to that effect was produced by the appellant himself. The cross-examination further discloses that the respondent did not dispute about the existence of the inscription number 16758, which came to be inscribed in the name of the father of the appellant. Once the property is admitted to be described in the Land Registration Office in the name of the father of the appellant, under the provisions of Article 953 of the Portuguese Civil Code the inscription of the property on the basis of such conveyance confers title and shows the possession of the property and the respondent has failed to show otherwise. The respondent has failed to dispute the fact that the property is registered in the Land Registration Office. The contention of the respondent to the effect that the property has been undivided cannot be accepted. On the facts and circumstances of the case and considering that the respondent has not disputed the existence of the said property being described in Land Registration Office, the Reference Court totally failed to consider the said aspect while disposing of the reference proceedings by the impugned judgment. Apart from that, 7 on perusal of the boundary described in the Land Registration Office, I find that the property is bounded on the east by the paddy field, on the west by the top of hill, on the south by the part of “Toximo” of the said coconut groove “Mauzekaralem” owned by Narana Duglea Camotim and others and on the north by a part of “Toximo” of the said property owned by Jivaji Sinai. The respondent is claiming his right from the said Narayan Duglo Kamat. The said boundary itself shows that the property claimed by the respondent is beyond the property which is described in the Land Registration Office part of which has been acquired by the Government for the purpose of widening of the road. The respondent has failed to adduce any evidence to establish that the property was enjoyed in co-ownership. Apart from that there is no dispute that the promulgated survey records stand in the name of the appellant. On the basis of such promulgated records, the presumption under Section 105 of the Land Revenue Code is available in favour of the appellant. The respondent has failed to adduce any evidence to substantiate his claim that he was enjoying any portion of the land acquired. The presumption in favour of the appellant is not rebutted by the respondent. The Reference Court has totally misdirected itself in appreciating the evidence on record as well as the material produced by the respective parties and 8 erroneously came to the conclusion that the respondent has 1/64th share in the acquired portion of the property. Apart from that the respondent has failed to establish on what basis 1/64th share has devolved upon him as admittedly no partition proceedings has been produced upon the death of common ancestors to establish that the alleged share of the respondent has been determined. On the contrary, the respondent himself has admitted in the inventory proceedings initiated upon the death of Hari M. Kamat, from whom the respondent is also claiming his share the said property was not enlisted. This aspect further infers that the respondent cannot claim any right to the property which is subject matter of the present acquisition proceedings. The Reference Court was not justified to pass the impugned judgment and directed that 1/64th share of the compensation is to be paid to the respondent. The point for determination is answered accordingly. 8. In view of the above, I pass the following order: O R D E R (i) The appeal is allowed. (ii) The impugned judgment and award dated 31/05/2005 is quashed and set aside. (iii) The amount of compensation awarded along with the interest thereon is to be paid to the appellant. 9 (iv) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-