1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 13 OF 2006 Shri Pandurang Arjun Gosavi of Bhati, Sanguem(now deceased) through his legal representatives: a. Smt. Laxmi Pandurang Gosavi, major in age. b. Shri Suresh Pandurang Sosavi, major in age. c. Shri Naresh Pandurang Sosavi, major in age. d. Smt. Laxmi Suresh Gosavi, major in age. e. Miss Lopa Pandurang Gosavi, all residents of House No.11 at Bhati in Sanguem Taluka. ... Appellants versus 1. Dy. Conservator of Forests, Ponda, Goa. 2. Conservator of Forests, Panaji, Goa. 3. Government of Goa. Represented by Chief Secretary, Panaji. ... Respondents 2 Shri Ryan Menezes, Advocate for the Appellants. Shri Guru Shirodkar, Government Advocate for the Respondents. CORAM : F. M. REIS, J. DATE : 24TH FEBRUARY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Decree passed in Regular Civil Suit No.19 of 1991 dated 28-2-2002. 2. A suit came to be filed by the appellants/original plaintiffs on the ground that he is the owner in possession of a landed property known as “Batimola” admeasuring an area of 1.60 hectares situated in the village of Sanguem, and the same is bounded towards the east, west and north by Government land and on the south by a road. It is further their case that the said property is surveyed under No.89(Part) of Bhati village which has been referred to as a suit property. It is further the case of the appellants that the said property consists of cashew trees and other fruit bearing trees which are in their enjoyment for the last more than 30 years. It is further their contention that the land was granted to the appellants by the B.D.O. as per the Order dated 9-6-1975, and 3 subsequently the Collector of Goa issued necessary orders and sanad granting the said piece of the land in favour of the appellants. It is further their case that all of a sudden a notice was issued to auction the trees situated in the suit property and consequently filed the above suit for appropriate reliefs. The respondents filed their written statements disputing the claim of the appellants and further pointed out that the said piece of land surveyed under No.89(Part) of village Bhati does not tally with the order of the grant. It is further their case that the property bearing survey Nos.80/2, 89/1 and 92/0 of village Bhati are owned and possessed by the respondents and the same are surveyed in the name of Forest Department and that the Collector and B.D.O. are not entitled to grant any such land in favour of the appellants. For the other reasons stated in the written statement, the respondents submitted that the suit deserves to be dismissed. The respondents also filed their counterclaim to the effect that the alleged grant is bad in law, ab initio void and a nullity in the eyes of law, and, therefore sought a declaration to set aside the order of the B.D.O. 3. The learned Judge after framing of issues and recording of evidence dismissed the suit filed by the appellants and the counterclaim 4 also came to be dismissed. Whilst appreciating the evidence on record, the learned Judge came to the conclusion that the boundaries mentioned in the plaint do not tally with the boundaries mentioned in the documents and the depiction done by the appellants and their witnesses. The learned Judge held that the certificate of the grant of land issued by the Mamlatdar of Sanguem which is at Exh.PW1/B does not disclose any survey number mentioned therein and the boundaries are also different. The learned Judge dismissed the Suit on the ground that the grant claimed by the appellants does not correspond with the suit property. The learned Judge came to the conclusion that the Appellant failed to establish their case. The learned Judge further held that the counterclaim was not tenable in law. 4. Being aggrieved by the said Judgment and Decree, the appellants have preferred the present appeal. 5. Shri Ryan Menezes, learned Counsel for the appellants has submitted that the property was stated to be surveyed under No.89(Part) but, however according to him the said survey number is in fact 92(Part) of Bhati village. Learned Counsel further pointed out that the said 5 discrepancy came to be rectified by the respondents. Learned Counsel further submitted that in view of the subsequent event an application has been filed to amend the Plaint and the same came to be allowed in Miscellaneous Civil Application No.427 of 2006. Learned Counsel further submitted that in view of the said amendment the very basis on which the Suit was dismissed does not survive and the matter deserves to be remanded after giving the parties an opportunity to lead evidence. 6. Shri Guru Shirodkar, learned Government Advocate for the respondents has pointed out that the said corrigendum issued in favour of the appellants could not advance the case of the appellants as according to him, the appellants are not in possession of the said property. Shri Shirodkar, learned Government Advocate further submitted that the suit as filed does not survive and consequently the appeal deserves to be rejected. Learned Government Advocate further submitted that in case the matter is remanded, liberty is to be given to the respondents to file additional written statement. 7. Having heard the learned Counsel for both the parties and on perusal of the record, I find that whilst passing the impugned 6 Judgment, the learned Judge has considered that the property surveyed under No.89(Part) stands in the name of the respondents and consequently the presumption in favour of the respondents was drawn by the learned Judge. The learned Judge has not considered whether the property which is claimed by the appellants is surveyed under No.92(Part) of Bhati village, whilst passing the impugned Judgment. In view of the said corrigendum the property granted in favour of the appellants is stated to be surveyed under No.92(Part). 8. It is an admitted position that the application for amendment filed by the appellants came to be allowed by this Court, in view of the corrigendum issued by the Government during the pendency of the present appeal. I find that in the interest of justice the appellants should be given an opportunity to lead further evidence in support of their claim as set out in the said amendment. As the application for amendment has been allowed, naturally the appellants would be entitled to lead evidence in support of their claim. No doubt, the respondents would be entitled to file additional written statement and lead evidence in support of their contention. Considering the facts and circumstances of the case, the ground on which the impugned Judgment has been passed to the effect 7 that the Suit property is surveyed under No.89(Part) does not survive in view of the corrigendum relied upon by the appellants. As such, the impugned Judgment deserves to be quashed and set aside and the matter deserves to be remanded to the learned Judge to decide the said suit afresh after allowing the appellants to amend the plaint and permitting the respondents to file additional written statement. The learned Judge will thereafter have to frame additional issues, if any and permit the parties to lead additional evidence in support of their rival contentions. In view of the above, I pass the following Order:- O R D E R 1. The appeal is partly allowed. 2. The impugned Judgment and Decree dated 28-2-2002 is quashed and set aside. 3. Civil Suit No.19 of 1991 is restored to the file of the learned District Judge, South Goa, Margao who shall proceed to decide the said suit afresh in the light of the observations made hereinabove. 4. All contentions raised by the parties are kept open. 5. The appeal stands disposed of accordingly with no order as to costs. 8 6. Parties are directed to appear before the learned District Judge 28-3-2011 at 10.00 a.m. and abide by his further directions. F. M. REIS, J. RD