1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.291 OF 2004 Shri Pradip Vassant Fal Desai, House No.230, Deaulwada, Balli, Quepem-Goa. …. Appellant V/s 1. Smt. Rahimabi Shaikh, resident of House No.46, near Samant Shop, Aquem, Alto, Margao-Goa. 2. Devappa Yesso Fal Desai, resident of House No.157, Vante, Fatorpa, Quepem, Goa. 3. Shaikh Abdul Rehman, Madicotto, Cuncolim, Salcete-Goa. 4. Shaikh Mohammad Hussain, …. abated Madicotto, Cuncolim, Salcete-Goa. 5. Rohidas Datta Fal Dessai, resident of House No.186, near Hospital, Balli, Quepem-Goa. 6. Balsu Balkust Fal Dessai, resident of Vante, Fatorpa, Quepem-Goa. (since deceased) represented through legal representatives: 6(a) Shri Anil alias Balkust Shaba Fal Dessai, resident of Vantem, Fatorpa-Goa. 2 6(b) Shri Subhash Shaba Fal Dessai, resident of Vantem, Fatorpa-Goa. 6(c) Smt. Kishori Shanu Dessai, resident of Patnem, Canacona-Goa. 6(d) Smt. Babi Kushali Gaonkar, resident of Dessaiwada, Agonda, Canacona-Goa. 6(e) Smt. Lalita Anand Sawant Dessai, resident of Naquerim, Betul, Quepem-Goa. 7. Govind D. Phal Desai, resident of Mardol, near Football Ground, Ponda, Goa. (since deceased) through legal representatives: 7(1) Mrs. Suman G. Phal Dessai, 7(2) Shri Dhiraj G. Phal Dessai, 7(3) Vandana G. Phal Dessai, 7(4) Bipin G. Phal Dessai, 7(5) Pritija G. Phal Dessai, All residents of Vante, Fatorpa via Cuncolim-Goa. 8. Shaik Ahmed S. Rehman, resident of Velim, Salcete-Goa. 9. Smt. Saraswati Vassant Phal Dessai, resident of Char Rasta, P.O. Nagorcem-Goa. 10. Smt. Nita Vassanti Phal Dessai, resident of House No.230, Deulwada, Balli-Goa. 11. Smt. Tulshi Umesh Desai, 3 resident of Char Rasta, P.O. Nagorcem, Canacona-Goa. 12. Smt. Kusum Bhagwan Sawant, r/o. Deao, Quepem. Shri Parag Rao, Advocate for the Appellant. Ms. Susan Linhares, Advocate for Respondent No.2. Shri V. Parsekar, Advocate for Respondent No.3. Shri C.A. Coutinho, Advocate for Respondent No.5. CORAM : F.M. REIS, J. DATE : 18th MARCH, 2011. JUDGMENT : The above appeal challenges the judgment and award dated 17/09/2004 passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.246/1994. 2. Pursuant to a notification under Section 6 of the Land Acquisition Act, 1894, herein after referred to as 'the said Act', published in the Official Gazette on 7/11/1991, Government intended to acquire land for the construction of a new broad gauge line for Konkan Railway in Village Bendordem and Tiloi of Quepem Taluka. Amongst the area which was acquired an area of 775 square metres out of the property surveyed under no.9/1 (part) and an area of 13,625 square metres out of the property surveyed under no.9/44 (part) was sought to be acquired. In view of the 4 dispute between the parties, the Land Acquisition Officer referred the matter for adjudication before the learned District Judge under Section 30 of the said Act. By judgment and award dated 17/09/2004, the learned Additional District Judge directed that the compensation is to be paid to the party no.6, who is the respondent no.5 herein. Being aggrieved by the said judgment, the appellant, who is the party no.1 in the reference proceedings has preferred the present appeal. 3. The learned Counsel appearing for the appellant has assailed the impugned judgment and submitted that the land which is surveyed under no.9/4 forms part of the property belonging to the appellant which was inscribed in the matriz records under no.4. The learned Counsel further submitted that in the survey records the name of the father of the appellant was disclosed and, as such, the presumption under Section 105 of the Land Revenue Code was in favour of the appellant, which has not been rebutted by the respondent no.5. The learned Counsel further pointed out that the Reference Court has misconstrued the deed of gift dated 7/02/1970, which was in favour of the appellant herein executed by his father. The learned Counsel has taken me through the evidence on record and pointed out that the respondent no.5 has failed to establish that 5 the property which is described in the Land Registration Office under no.5624 corresponds to the property which has been acquired in the present proceedings. The learned Counsel has further submitted that the boundaries as shown in respect of the property in matriz record under no.4 correspond to the property which has been acquired in the present proceedings. The learned Counsel further pointed out that the findings arrived at in Land Acquisition Case No.245/1994 in respect of the property surveyed under no.9/6 are not at all relevant for the purpose of deciding the dispute in the present proceedings. The learned Counsel has strongly relied upon the survey records and submitted that as the respondent no.5 has failed to take any steps to get the survey records rectified, itself suggests that the respondent no.5 has no right at all to any portion of the acquired land. The learned Counsel further took me through the evidence on record as well as the impugned judgment and pointed out that the Reference Court has totally mis appreciated the evidence on record and has come to an erroneous conclusion that the property which has been acquired corresponds to the property as claimed by the respondents and is registered in the Land Registration Office under the said number. The learned Counsel further pointed out that the acquired portion of the property was in possession of the appellant and, as such, the 6 compensation which has been awarded is to be paid to the appellant herein. The learned Counsel further submitted that the northern boundary of the property as claimed to be belonging to the grandfather of the respondent no.5 has not been established by any cogent evidence on record and, as such, the appreciation of the evidence by the learned Judge is vitiated and, consequently, the impugned judgment deserves to be quashed and set aside. 4. On the other hand, Shri C.A. Coutinho, the learned Counsel appearing for the respondent no.5 has supported the impugned judgment. The learned Counsel has taken me through the evidence on record and submitted that it is well settled that the records in the Land Registration Office confer on the person in whose name such records stand the title and possession thereof. The learned Counsel further submitted that once it is established that the acquired portion of the property corresponds to the property as registered in the Land Registration Office there can be no dispute that the title thereof belongs to the respondent no.5. The learned Counsel further pointed out that considering that respondent no.5 has adduced evidence to substantiate that the acquired portion of the property was in possession of respondent no.5, the question of refusing the compensation in favour of respondent no.5 would not 7 arise. The learned Counsel further submitted that the contention of the learned Counsel for the appellant that the property has not been properly identified cannot be accepted as there is ample evidence on record to suggest that the acquired portion of the property is located within the boundaries of the property as registered in the Land Registration Office. The learned Counsel further submitted that the alleged presumption claimed by the appellant does not arise in his favour as any such presumption stands rebutted in view of the cogent evidence adduced by respondent no.5 to the effect that he was in possession of the acquired portion of the land, apart from the fact that the property acquired is located within the boundaries of the property as registered in the Land Registration Office. The learned Counsel has taken me through the impugned judgment and pointed out that there is no infirmity committed by the Reference Court while passing the impugned judgment and, consequently, the appeal deserves to be rejected. 5. Having heard the learned Counsel and on perusal of the records, the following point for determination arises in the present appeal: POINT FOR DETERMINATION : Whether the acquired portion of the 8 property belongs to the respondent no.5. 6. In support of his claim, the appellant in his written statement has stated that the acquired portion of the property surveyed under no.9/1 and 9/44 belongs to him and that the survey records stand in the name of the father of the appellant, late Shri Vassant Fal Dessai and that the other name has been wrongly recorded. He has further stated that the remaining parties have no right at all to any portion of the acquired land. 7. The respondent no.5 in his written statement has stated that the property which has been acquired forms part and parcel of the property known as “Ornem” or “Biriornem” which is a paddy field bearing survey no.9 with several sub-divisions which include survey no.9/1 to 9/45 of Bendurdem village. The boundaries of the said property have been specified in para 2 of the written statement and he has further stated that the property stands registered in the Land Registration Office under no.5624 of book 18 at page 11. He has further stated that the property consists of bharad land besides the paddy field which has cashew plantation. 8. On the basis of the statement of claim put forward by the 9 parties it is evident that respondent no.5 has given the particulars and the details as far as their claim is concerned by stating not only the boundaries as well as the Land Registration Number and the nature of the property, which according to them forms part of the acquired portion of the land. On the other hand, the appellant in his written statement has not given any details about his claim apart from putting their claim on the basis of the survey records. 9. The appellant has also examined himself and has filed his affidavit and has stated that the property claimed by him is the one known as “Zamblimol”, and inscribed in Taluka Revenue office under matriz no.4 and is bounded on the east by the public road, on the west by river, on the north by the property of Bombo Xaba Fal Desai and on the South by the property of Babani Putu Fal Dessai. He has further stated that the name of the father stands recorded in the survey records. He has further stated that there are only two tenants in the said two properties known as Fondu Gaonkar and Vatu Gaonkar and that the property surveyed under no.9/44 consists of bharad land with cashew trees and paddy field which is the subject matter of the land acquired. In the cross-examination, he has stated that the acquired land was their ancestral property. In his further cross-examination by the respondent no.5 he has 10 admitted that the paddy field bearing survey no.9/2 sub division 3 to 8, 14,7 & 18 have been acquired by the Government for the Konkan Railway project. He has also admitted that there were reference proceedings in respect of the said acquisition which were pending. He has also admitted that he has not claimed any compensation for the said portion of the land. He has further admitted that he was a party to the said proceedings and he does not know as to whom the amount of compensation has been paid. He further stated that he is not aware whether the amount of compensation has been paid to respondent no.5. He further stated that he does not know that the property under survey no.9/44 is bounded towards the north by property of survey no.12 and that it is known as "Todpakodilbandi" or “Kodil”. He denied the suggestion that the same was in possession of respondent no.5. He has further stated that apart from matriz record he is not having any document of the said property. The appellant has also examined Vatu Bhoiro Gaonkar in support of their claim. In the cross- examination, he has stated that he does not remember the survey number of the property where he is residing. He has claimed that he was the tenant of the property, but he was not aware of the survey number of such property. He has further stated that the said property is a paddy field in the middle. He has admitted that there 11 is a property of Devappa Dessai after the river. He has further admitted that after the river there is also the property of Communidade of Fatorpa which is a hillock. He further admitted that the property “Tolpabandilacodil” belongs to the respondent no.5. The next witness examined is Fondu Malu Gaonkar, who has claimed that with the agreement in the year 1968, the deceased father of the appellant permitted him and Vatu Gaonkar to cultivate the said property. In the cross-examination, he has stated that he is not aware about the area of the entire property. He has further stated that the land which was acquired passes through the paddy field. He has denied the suggestion that his name has been rightly recorded in the tenants column. 10. Respondent no.5 has examined himself and stated his case on affidavit and produced the documents in support of his claim and stated that the property towards the northern side is registered in the Land Registration Office under No.5625 of book no.18 at page 12. He has further stated that the holding survey no.9/44 is a bharad land having cashew plantation and that the matriz certificate produced by the appellant is not the property surveyed under no.9/44. In the cross-examination, he has admitted that the Raiu Laxman Phal and his wife Sarashwati are his grandparents. He has 12 further stated that the acquired portion is a bharad land as well as paddy field. He has further stated that no paddy filed portion has been acquired and that no one is cultivating the paddy field in survey no.9/44. He has further stated that the survey no.9/44 consisting of bharad land of 96,900 square metres wherein there are cashew trees from which an area of 13,600 has been acquired. He denied the suggestion that he had no right to the said land. The next witness examined is Vassudev Manju Fal Dessai. 11. The learned Judge while passing the impugned judgment has appreciated the evidence on record and found that the property inscribed under no.4 known as “Zamblimola” stands in the name of Vassanta Visvonata Folo Dessai. The learned Judge has perused the survey plan at Exhibit 30 and found that the boundaries as disclosed in the survey records with regard to the property under survey no.9/44 did not correspond with the boundaries as mentioned in the matriz record claimed by the appellant herein. The learned Judge has perused the evidence of the appellant and has rightly come to the conclusion that he has failed to establish that the boundaries as disclosed in the matriz record in respect of the property surveyed under no.9/4 correspond to the property inscribed in the matriz record under no.4. The award passed in 13 Land Acquisition Case No.245/1994 at Exhibit 29 also discloses that the amount of compensation in respect of the land acquired therein was awarded to the respondent no.5 in respect of the property under survey no.9/2 to 8,9/14,9/17 and 9/18. It is to be noted that the claim of respondent no.5 is that the property as claimed by him and registered in Land Registration Office besides the property under survey No.9/44 also includes the property surveyed under said survey numbers. The learned Judge has rightly come to the conclusion that except the eastern boundary, which is a road, the other boundaries do not tally with the survey record. The leaned Judge has also considered the deed of gift produced by the appellants and found that the same cannot be considered to be in respect of the acquired portion of the land as the appellant has failed to establish that the property inscribed under no.4 corresponds to the property under survey no.9/44. 12. The Reference Court while considering the claim of respondent no.5, on perusal of the evidence on record and specially the boundaries as shown in the Land Registration Office and comparing with the boundaries in respect of the property under survey no.9/44, has come to the conclusion that the land acquired forms part of the property as registered in Land Registration Office 14 under no.5624. The learned Judge has minutely considered the evidence on record and the judgment passed in Land Acquisition Case No.245/1994 wherein the appellant also was a party and found that the compensation was awarded to the respondent no.5 in respect of the land acquired therein. The learned Judge has considered the boundaries and found that the property which has been acquired forms part of the property bearing survey no.9/44 and belongs to the respondent no.5 herein. 13. On perusal of the said Land Registration Records, I find that the boundaries of the property as shown therein disclose that on the eastern side there is a road, on the western side is a river and the hill of Communidade of Fatorpa, towards the northern side is one property known as “Condimollo” of Ganessa Laximan Fal Dessai and towards the South by the rivulet and the filed known as Nadcornia Xeta of Ananta Sinai Nadkarni. There is no dispute that the acquired portion of the land is located towards the eastern side of the property bearing survey no.9/44. Considering the said aspect, in view of the boundaries as disclosed in the Land Registration Office, specially the eastern boundary which is a road and the property surveyed under no.9/44 also discloses that the eastern boundary is a road, I find that the Reference Court was 15 justified to come to the conclusion that the acquired portion of the land belongs to the respondent no.5 herein. The appellant has failed to establish that the property acquired forms part of the property inscribed under no.4 as claimed by them. Considering the said judgment passed in the earlier land acquisition case, the property which is surveyed under no.9/1 also forms part and parcel of the property claimed by respondent no.5 herein. The findings arrived at by the Reference Court to the effect that the acquired portion of the land belongs to the respondent no.5 herein cannot be faulted. It is to be noted that the findings arrived at in the present case are confined to the area which was the subject matter of the acquired land only. 14. Shri Parag Rao, the learned Counsel pointed out that the property under survey no.9/44 is a vast property and besides the acquired portion of the land, there is a substantial area beyond the land acquired which according to the appellants belongs to them. The said aspect has been disputed by Shri Coutinho, the learned Counsel appearing for the respondent no.5. There is also a dispute raised by Shri Rao as to whether the property which is located towards the national highway side is the property of Bombo Xaba Fal Dessai and surveyed under no.12. The said aspect would not 16 be material for the purpose of deciding the claim of the parties herein in respect of the acquired portion of the land. Suffice it to say that even the witnesses examined by the appellant have admitted that the property under survey no.12 is in possession of the respondent no.5 herein. In any even, such controversy would not in any way affect the findings of the Reference Court that the compensation awarded in the present proceedings are to be paid to respondent no.5. Considering the boundaries as shown in Land Registration Office and the boundaries found on the record of the property under survey no.9/44, I find no hesitation to accept the findings of the Reference Court to the effect that the acquired portion of the land belongs to the respondent no.5. Shri Rao, the learned Counsel was trying to contend that the boundaries in respect of the property in the matriz records and the boundaries of the property claimed by the respondent no.5 as registered in the Land Registration Office are overlapping. It is well settled that the boundaries of the property as shown in the Land Registration Office would prevail over the boundaries as disclosed in the matriz record as the entries in the matriz record do not have any bearing with regard to the title of the property. 15. Considering the evidence on record and on perusal of the 17 impugned judgment and the findings recorded therein, I find no error committed by the Reference Court while passing the impugned judgment, in directing that the compensation be paid to respondent no.5. The Reference Court has rightly identified the property with regard to the boundaries as disclosed in the relevant document and has come to a correct conclusion, but however, it is clarified that the findings arrived at in the present proceedings are confined only to the acquired portion of the land as referred to herein above and any observation made herein would not affect the rival claim of the parties in respect of the unacquired portion of the land is concerned. The point for determination is answered accordingly. 16. In view of the above, I find no merit in the above appeal and, consequently, the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-