1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.78 OF 2000. 1. Janu Gaunkar r/o H.No.764, Sheli, Tansi, Loliem, Canacona 2. Laximon Gaunkar r/o H.No.765 Sheli, Tansi, Loliem, Canacona .. Appellants Versus 1. Shri Luis Fernandes (since deceased now represented by his legal heirs) 1.a) Rosanha Fernandes (since deceased by L.Rs. 1(b) to 1(n) 1.b) Smt. Santana Fernandes alias Victoria Fenandes 1.c) Smt. Inacinha S. Fernandes 1.d) Shri Xavier da Costa (expired) 1.e) Minguel Fernandes 1.f) Smt. Cirilia Barreto alias Socorina Fernandes 1.g) Smt. Filomena Fernandes alias Filona Fernandes 1.h) Ruyai A. Fernandes 1.i) Philip Fernandes (expired) 2 1.j) Tony Fernandes 1.k) Luis Fernandes 1.l) Anthony Luis Fernandes (expired) 1.m) Mrs. Rosy Fernandes 1.n) Mrs. Carlos Fernandes all r/o H.No.955, Sheli, Loliem, Canacona. .. Respondents. Mr. R. G. Ramani, Advocate for the appellants. Mr. Preetam Talaulikar, Advocate for the respondents. CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE JUDGMENT:25 TH FEBRUARY,2009 . DATE OF PRONOUNCING THE JUDGMENT: 6 TH MARCH, 2009. JUDGMENT : 1. This is an appeal by the party No.2 in Land Acquisition Case No.54/1988 under Section 30 of the Land Acquisition Act. The Party No.2 feels aggrieved by the direction of the Additional District Judge whereby she directed the compensation to be paid to the party No.1. 2. The facts giving rise to the appeal, are as follows: The Government of Goa has acquired 1060 square 3 metres of land out of Survey No.280/3 of village Loliem for widening and improvement of national highway No.17. The said land i.e. Survey No.280/3 is recorded in the name of the party No.1 in the revenue record. The Party No.2 and 3 had raised objection before the Land Acquisition Officer and had claimed that they were the exclusive owners of the suit property. Since there was dispute with regard to the title of the property, a reference was made to the District Judge under Section 30 of the Land Acquisition Act. The party No.1 claimed before the District Judge that there is a property known as 'Goliachem Tican' which consists of Survey No.272/5, 281/2 and 280/3 of Shelli. It is further contended by them that the said property was partitioned between the sons of the Luis Fernandes, the original applicant and they have been in possession of the suit property and they have right, title or interest to the said property. 3. The party No.2 i.e. the present appellants claimed that they are the owners of the Survey No. 280/3 which is part and parcel of the property known as 'Tanosso'. The party No. 2 has given description of the property and they submit that they are the exclusive owners of the property. This property has come to them from their forefathers. The party No. 3 claims that he is the owner of the property 4 known as 'Goliachem Tican' situated at Loliem, Shelli and he is the owner and in possession of the property. 4. The learned Judge considered the evidence tendered by the parties and found that neither party has proved that the suit property belongs to it. The learned Judge further found that since the property is recorded in the name of the party No.1 in the revenue record, the party No.1 was entitled to compensation and being aggrieved by that order, this first appeal is preferred. 5. I have heard the learned Counsel for the appellants as well as the respondents. 6. The facts would make it clear that the party No.1 claims that Survey No.280/3 is a part and parcel of the property known as 'Goliachem Tican' owned by them. The party No.2 i.e. the present appellants claim that Survey No.280/3 is a part of the property known as 'Tannoso' owned by their family and both the parties, it seems, have produced on record the inscription and matriz to prove their ownership. The learned Judge found that the party No.1 has by inscription and by other documents, proved that they are the owners of the property known as 'Goliachem Tican' and 5 also finds that the party No.2 has proved that they are the owners of the property known as 'Tannoso'. She further finds that neither party has proved that Survey No.280/3 is a part of their property. 7. It is thus obvious that the location of the property i.e. Survey No.280/3 itself, is in dispute. Unless therefore, it is found out as to whether the Survey No.280/3 falls within 'Goliachem Tican' and 'Tannoso', the dispute cannot be resolved. Having found this, the learned Judge should have appointed a Commissioner to measure the property on the basis of the inscription and matriz and other documents available with the parties, to locate the situation of Survey No.280/3. Both the parties had claimed that Survey No.280/3 is a part of their property but neither had proved. It was, therefore, absolutely incumbent on the part of the learned Judge to have appointed a Commissioner to locate the situation of the said property. The dispute has to be finally and effectually decided. The main dispute with regard to the ownership of the acquired property, has not been resolved by the learned Additional District Judge and she has proceeded to award compensation to a party, who has not even according to her, proved their title. It is only the party, who proves the title, who is entitled to receive the 6 compensation. It is also an established law that mere entry in the revenue record, is not a document of title. It is in these circumstances, it was necessary for the learned Judge to have appointed the Commissioner to measure both the properties i.e. 'Goliachem Tican' and 'Tannoso' with reference to the documents available with those parties. In the above circumstances, I find that the matter needs to be remanded to the Trial Court for fresh trial and the appointment of the Commissioner although the learned Counsel for the respondent No.1, objects to the order of remand. 8. The appeal is therefore, allowed. The judgment and order passed by the Additional District Judge, is set aside. The proceedings stands remitted back to the Additional District Judge. The Additional District Judge shall now appoint a Commissioner to measure the properties known as 'Goliachem Tican' and 'Tannoso' jointly with a further direction to the measurer to locate Survey No.280/3 and to find out whether Survey No.280/3 is a part and parcel of 'Goliachem Tican' or 'Tannoso' or neither of them. The Commissioner i.e. the Government Measurer from the Land Survey Department, should be asked to measure the lands with reference to the inscription and matriz and any other 7 documents, which the parties may have produced before the Reference Court. The said measurer shall also take into consideration any other old map available with the Government for the location of the present Survey No.280/3. Both the parties be directed to bear the expenses for measurement equally and the District Judge shall direct both the parties to deposit the said expenses in the Court within a week's time upon receipt of the order of this Court. Upon such deposit, the District Judge shall make an order of appointment of Commissioner in the above terms. The District Judge shall direct the said Commissioner to submit his report of measurement within a period of two months and thereafter, the District Judge may allow the parties to tender their oral as well as documentary evidence and decide the reference afresh. No order as to costs. C. L. PANGARKAR, J. SMA